EUROPEAN LAW REVIEW *373380*

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1 Analysis and Reflections A New Route into the Promised Land? Being a European Citizen after Ruiz Zambrano H. van Eijken and S.A. de Vries Destroying Democracy on the Ground of Defending It? The Data Retention Directive, the Surveillance State and Our Constitutional Ecosystem Theodore Konstadinides Re-establishing the Orthodoxy of Commitment Decisions under Article 9 of Regulation 1/2003: Comment on Commission v Alrosa Michele Messina and Jean-Claude Alexandre Ho Book Reviews Copies of articles/cases from the European Law Review and other articles, cases and related materials can be obtained from DocDel at Sweet & Maxwell's Yorkshire office. Current rates are: copyright charge + VAT per item for orders by post and DX. Fax delivery is guaranteed within 15 minutes of request and is charged at an additional 1.25 per page ( 2.35 per page outside the UK). For full details and to order contact DocDel on: Tel Fax sweetandmaxwell.docdel@thomson.com Go to Please note that all other enquires should be directed to Sweet & Maxwell, 100 Avenue Road, London, NW3 3PF; Tel ; Fax EUROPEAN LAW REVIEW October 2011 pp EUROPEAN LAW REVIEW Volume 36 No.5 October 2011 Editors: Panos Koutrakos and Niamh Nic Shuibhne Consultant Editor: Anthony Arnull Book Reviews Editor: Jukka Snell Editorial To look without understanding was their lot Articles Always at Your Service (Within Limits): The ECJ s Case Law on Article 56 TFEU ( ) Stefan Enchelmaier The Right to Be Heard in Composite Administrative Procedures: Lost in between Protection? Christina Eckes and Joana Mendes Delegated Acts, Implementing Acts and the New Comitology Regulation Paul Craig Article 8 TEU: Towards a New Generation of Agreements with the Neighbouring Countries of the European Union? Peter Van Elsuwege and Roman Petrov *373380*

2 European Law Review is the principal English-language journal covering the law relating to European integration and the Council of Europe. While preserving the highest academic standards, the Review also caters for the needs of those involved in the practice and administration of the law. It carries authoritative and thought-provoking articles on all aspects of European law and incisive commentaries on current developments in its field. Editors: Consultant Editor: Book Reviews Editor: Editorial Board: Panos Koutrakos and Niamh Nic Shuibhne Anthony Arnull Jukka Snell Fabian Amtenbrink, Nicolas Bratza, Damian Chalmers, Marise Cremona, Alan Dashwood, Laurence Gormley, Trevor Hartley, Francis Jacobs, Koen Lenaerts, Konrad Schiemann, Josephine Shaw, Erika Szyszczak, Verica Trstenjak, Walter van Gerven, Stephen Weatherill. Guide for Contributors 1. Please follow these guidelines in submitting material to the journal. It will avoid delays in acceptance of your material. 2. 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A more detailed guide to writing for the journal, including advice on levels of heading, is available on the Sweet and Maxwell website Citations and Abbreviations to be used Treaty provisions should be cited as follows: Citing Treaty provisions following entry into force of the Treaty of Lisbon on December 1, Where a provision is new Where a provision has been substantially amended art.10 TEU art.2 TFEU art.24 (ex 11, as amended) TEU or, if the context requires, art.11 (now as amended 24 TEU) art.16 TFEU (ex 286 EC, as amended) or, if the context requires, art.286 EC (now as amended 16 TFEU) Contributions: Potential contributors should refer to the Guide for Contributors, which appears on the inside back cover. 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II-923; [1997] 5 C.M.L.R. 309 Unreported cases should be cited using the date of judgment. References to the Official Journal should be given as follows: [2001] OJ L1/1 or [2001] OJ C1/1 Submitting material Articles should be sent to: Professor Panos Koutrakos The School of Law University of Bristol Wills Memorial Building Queens Road Bristol BS8 1RJ Tel: Fax: Panos.Koutrakos@bristol.ac.uk Contributions to Analysis and Reflections should be sent to: Professor Niamh Nic Shuibhne School of Law University of Edinburgh Old College South Bridge EH8 9YL Tel: Fax: niamh.nicshuibhne@ed.ac.uk Queries concerning book reviews should be sent to: Professor Jukka Snell Professor of European Law Swansea University School of Law Singleton Park Swansea SA2 8PP Wales, United Kingdom Tel +44-(0) j.j.snell@swan.ac.uk

3 European Law Review Table of Contents Issue 5 October 2011 Editorial To look without understanding was their lot 613 Articles Always at Your Service (Within Limits): The ECJ s Case Law on Article 56 TFEU ( ) Stefan Enchelmaier 615 The Right to Be Heard in Composite Administrative Procedures: Lost in between Protection? Christina Eckes and Joana Mendes 651 Delegated Acts, Implementing Acts and the New Comitology Regulation Paul Craig 671 Article 8 TEU: Towards a New Generation of Agreements with the Neighbouring Countries of the European Union? Peter Van Elsuwege and Roman Petrov 688 Analysis and Reflections A New Route into the Promised Land? Being a European Citizen after Ruiz Zambrano H. van Eijken and S.A. de Vries 704 Destroying Democracy on the Ground of Defending It? The Data Retention Directive, the Surveillance State and Our Constitutional Ecosystem Theodore Konstadinides 722 Re-establishing the Orthodoxy of Commitment Decisions under Article 9 of Regulation 1/2003: Comment on Commission v Alrosa Michele Messina and Jean-Claude Alexandre Ho 737 Book Reviews 752

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5 Editorial To look without understanding was their lot 1 Default; Economic conditions; EU law; Eurozone; Internal market; Sovereign debt Whilst these lines are being written, the EU leaders are struggling to decide how to respond to the financial crisis. The challenges they face are unprecedented: they are seeking to face off, or at least manage, the distinct possibility of sovereign default in the eurozone, to protect the European banks from the unpredictable responses of the markets, to bolster the existing mechanisms for supporting their weak partners, to contain the threat of contagion from the small countries (which the Union can afford to bail out) to the big ones (which it most certainly cannot), and to boost confidence in the markets. The Union is under intense international pressure to act decisively and swiftly: US President Barack Obama says that the debt crisis in Europe is scaring the world and that the Union is trying to take responsible actions but those actions haven t been quite as quick as they need to be ; 2 US Treasury Secretary Timothy Geithner takes the unprecedented step of attending a meeting of the Economic and Financial Affairs Council in September 2011 and says that it s time to move and that the Union needs to get on with it ; 3 Russia s then Finance Minister Kudrin pointed out that, if the Union does not act swiftly, we will be faced with a greater crisis, which will detonate in other countries, including ours. 4 The Union leaders are also under intense internal pressure stemming from their own parliamentarians and citizens, let alone the judiciary. The problems are so serious that the crisis has acquired an existential dimension. German Chancellor Merkel says time and again that if the euro fails, then Europe fails. 5 Commission President Barosso starts his 2011 State of the Union address to the European Parliament by stating that the current crisis is the most serious the Union has ever faced. The crisis is so grave, the problems so unique and their economic and political context so complex that the only consensus is on the painful irrelevance of the existing rules and procedures and the impossibility of predicting how things would develop. Amidst all this, the EU leaders, bewildered and baffled, are overtaken by events every step of the way and are struggling to adjust to the new realities which the EU life has thrown at them. They must find it hard to acknowledge the limits of what they deemed for a long time to be important. They dedicated so much energy on the long and painful process of the formal constitutionalisation and then de-constitutionalisation of the Union legal order, the changes of the Lisbon Treaty and the ensuing rules and procedures. And yet, the Union s leaders realise that these are not of much use now. Instead, they wonder how far they need to change things: [we] have to look for power sources here, and distribution networks we were never taught, routes of powers our teachers never imagined, or were encouraged to avoid We have to find meters whose scales are unknown in the world. Draw out own schematics, getting feedback, making connections, reducing the error, trying to learn the real function zeroing in on what incalculable plot? 6 1 C. Simic, Trouble Coming, The New York Review of Books, August 18 September 28, 2011, p The Guardian, September 26, Financial Times, September 17, Available at [Accessed September 30, 2011]. 5 A statement she made for the first time on May 19, 2010 before the German Parliament. 6 T. Pynchon, Gravity s Rainbow (Vintage, 1973, reissued in 2007),

6 614 European Law Review Amongst the many dangers to which the management of this crisis has given rise, a considerable one is the threat to the single market. As the very foundation of the Union, this should not be taken for granted. This ever developing project is by no means complete. The obstacles which constituted the starting point for the Monti Report 7 and the subsequent Single Market Act by the Commission 8 have not disappeared. The incomplete transposition of the Services Directive, 9 the problems of the consolidation of the energy sector, and the gaps in the management of digital economy are merely indicative of the vigilance and determination which the protection of the single market requires almost 20 years since its nominal completion. Crises may trigger further national reflexes to protect domestic industries. This is apparent all around the world. Recent measures by Brazil and Switzerland, for instance, to protect their own markets and currencies illustrate how irresistible a slide into protectionism may be in an uncertain global economic environment. It is vital that both the Member States and the Union institutions should not take the single market for granted. Its achievement requires constant energy and attention which the Union leaders may not afford to ignore. Not only is it essential to one of the aims of the current upheaval, namely economic growth, but it is also central to the widely hailed ambition of the Union to be a major international player. An incomplete internal market would be a constant thorn in the Union s side; it would frustrate its ambitions and would render its claim to global influence even more hollow than its post-lisbon performance on the world scene suggests it is. The UK Foreign Secretary Hague has reiterated his claim that the euro area is a burning building with no exits. 10 Whether this statement turns out to be unnecessarily alarmist or not, the single market should not be a casualty. Whilst the Union s leadership struggles to deal with a new and unpredictable reality which changes at an alarming pace, it would be ill-advised to take for granted what has been at the core of the Union legal order since its inception. [PK] 7 A New Strategy for the Single Market At the Service of Europe s Economy and society (May 2010). 8 COM(2011) 206 fin Single Market Act Twelve levers to boost growth and strengthen confidence (Brussels, April 13, 2011). 9 Directive 2006/123 on services in the internal market [2006] OJ L376/ The Spectator, September 30, 2011, p.18.

7 Always at Your Service (Within Limits): The ECJ s Case Law on Article 56 TFEU ( ) Stefan Enchelmaier * University of York Burden of proof; Discrimination; EU law; Freedom to provide services; Proportionality Abstract The European Court of Justice s case law between 2006 and 2011 on the freedom to provide services develops the principles of the earlier jurisprudence, but adds nuances and new beginnings to a number of questions, in particular regarding the distinction of that freedom from the other freedoms under the Treaty, wholly internal situations, proportionality and the burden of proof. While these developments are largely to be welcomed, the multiplicity of the Court s approaches to the question of when national measures amount to restrictions on the freedom to provide services remains a worry, as does the recent transfer of the too uncertain and indirect formula from the case law on the free movement of goods to the freedom to provide services. Introduction This article draws out some general points on the freedom to provide services from the case law of the European Court of Justice (the Court) since The intervening years were a turbulent time in the development of the Community (now, the Union). They saw the negotiation and eventual ratification of the Lisbon Treaty, the controversy surrounding the Services Directive, 1 and more recently the crisis of the single currency. All of these further raised the public s awareness of matters European, and this is even truer of the legal profession, both practising and academic. Hardly a judgment by the Court these days goes without academic comment, and some cause veritable floods of literature. No one commentator can hope to be equally expert in areas as diverse as labour, social, healthcare, tax, police, education, public procurement and administrative law. For this reason, the present survey will not even attempt to engage in the debates in these specific fields and the effects that art.56 TFEU has on them, or only to provide a digest of the opinions expressed by the pundits on particularly * This article is dedicated to the memory of Prof. Heiner Wilms who died, much too early, in September 2010, a friend since my student days, and always a source of encouragement and inspiration. Thanks are due to Michal Kovac for his research assistance, and to Panos Koutrakos for his comments on the draft of this article. 1 As this survey concentrates on the case law of the Court, the Directive and the convoluted history of its adoption must be left out in the following. It has so far generated only two cases, Commission v Luxembourg (Posted workers) (C-319/06) [2008] E.C.R. I-4323; [2009] All E.R. (EC) 1049, in [23] of which the Court established that Directive 2006/123 was not intended to replace Directive 96/71, and that the latter prevails over the former in the event of conflict, so that any arguments on the legislative procedure which led to the adoption of Directive 2006/123 could not support one interpretation or other of a provision of Directive 96/71. In the other case, Société fiduciaire nationale d expertise comptable (C-119/09) [2011] 3 C.M.L.R. 2, the Court held at [37] [42] that a prohibition of canvassing was precluded by art.24(1) of Directive 2006/123, which did not allow total prohibitions of commercial communications by members of the regulated professions. 615

8 616 European Law Review high-profile judgments such as Laval, Watts, and Santa Casa. 2 Instead, the survey will concentrate on the conceptual underpinnings of the freedom to provide services as developed in the Court s jurisprudence, and highlight how these general aspects inform the case law in selected areas. Why protect the freedom to provide services? Before we delve into the details of the Court s jurisprudence, it is helpful to reflect on the purpose of art.56. Its wording provides the first clue in that it presupposes the participants (in whatever role) in the provision of services to be established in different Member States. This opens the perspective of an internal market between Member States. 3 This is in keeping with art.26(2) (ex art.14(2) EC), which sets out the Union s programme for establishing the internal market, that is, an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the Treaty provisions that follow. Article 56 is, thus, about opening the service markets in all the Member States to providers from other Member States. 4 This mutual opening, in turn, is meant to enable undistorted competition to take place. The Court regularly emphasises this point in cases on public procurement, 5 where distortions of competition are still rife and may, to some extent, even be maintained by the Member States. Nevertheless, the Court s statement is of general validity. Competition, in turn, ultimately benefits the consumer, as art.101(3) (ex art.81(3) EC) envisages. The Court has, since the early days of its jurisprudence, emphasised that the Treaty s rules on competition and on free movement are complementary. 6 It has refined this position in the meantime, but never abandoned it. 2 For recent articles from this Review alone, see on the question of gambling and related services, A. Dawes and K. Struckmann, Rien ne va plus? Mutual recognition and the free movement of services in the gambling sector after the Santa Casa judgment (2010) 35 E.L. Rev. 236; D. Doukas, In a bet there is a fool and a state monopoly: are the odds stacked against cross-border gambling? (2010) 35 E.L. Rev. 243; on the protection of workers, K. Apps, Damages claims against trade unions after Viking and Laval (2009) 34 E.L. Rev. 141; P. Syrpis and T. Novitz, Economic and social rights in conflict: political and judicial approaches to their reconciliation (2008) 33 E.L. Rev. 411; C. Kilpatrick, Laval s regulatory conundrum (2009) 34 E.L. Rev. 844; and on public procurement M. Szydlo, Contracts beyond the scope of the EC procurement directives who is bound by the requirement for transparency? (2009) 34 E.L. Rev Commission v Belgium (Occupational pension schemes) (C-522/04) [2007] E.C.R. I-5701 at [37]: With reference to the single market and in order to permit the achievement of its objectives, Article [56 TFEU] precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (emphasis added); the same formula occurs in Commission v Denmark (Life assurance) (C-150/04) [2007] E.C.R. I-1163 at [38]. 4 Commission v Ireland (Interpretation and translation services) (C-226/09) November 18, 2010 ECJ at [30]: to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in another Member State. 5 Bayerischer Rundfunk v GEWA (C-337/06) [2007] E.C.R. I at [38] [39]: As regards public service contracts, the Court has emphasised that same primary objective, namely the free movement of services and the opening-up to competition in the Member States which is undistorted and as wide as possible (emphasis added). See also Pressetext Nachrichtenagentur (C-454/06) [2008] E.C.R. I-4401; [2008] Bus. L.R. D118 at [31] [32]; Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia (C-220/06) [2007] E.C.R. I at [39] [40]; most recently in Mehiläinen and Terveystalo Healthcare (C-215/09) December 22, 2010 at [41]. 6 Consten and Grundig v Commission of the EEC (56 and 58/64) [1966] E.C.R. 299 at 340; [1966] C.M.L.R. 418 at 471: The Treaty, whose preamble and content aim at abolishing the barriers between states, and which in several provisions gives evidence of a stern attitude with regard to their reappearance, could not allow undertakings to reconstruct such barriers. From the fundamental importance of the internal market to the Union follows that the prohibition on restrictions on freedom to provide services applies also to measures adopted by the European Union institutions: Schmelz v Finanzamt Waldviertel (C-97/09) [2011] S.T.C. 88 at [50], with references to earlier case law.

9 The ECJ s case law on services ( ) 617 Cross-border element versus wholly internal situations It follows from the reference in art.56 to a Member State other than the one where either the recipient or the provider or both (or merely the service) moves, that the article does not apply to a provision of services which does in neither of these respects straddle the border between two Member States. In other words, situations that remain wholly internal to one Member State are not covered by the freedom to provide services. A cross-border element to the case is required. Nevertheless, since the 1990s the Court has made exceptions from this rule. It held that it has jurisdiction to give preliminary rulings on questions concerning provisions of Union (then Community) law in situations where the facts of the case pending before the national court were outside the scope of that law. This is, however, on condition that Union law has been rendered applicable either by domestic law or merely by virtue of terms in a contract. 7 In the cases decided, the Court would know that Union law was rendered applicable in this way because the national courts had told it so. This jurisprudence still holds good in principle. In two respects, however, the Court now assumes jurisdiction more readily. First, even if the Member State court does not indicate that national law refers to Union law, the Court nevertheless answers questions concerning apparently wholly internal situations. This is because, a reply might be useful to the national court if its national law were to require that a national of the Member State in question must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation. 8 This is not entirely convincing. It is one thing for the ECJ to draw the national court s attention to the applicable Union law where the latter has failed to identify it correctly, or to rephrase the questions referred under art.267 TFEU (ex art.234 EC) so as to draw out the relevant aspects from the perspective of Union law, and to discard the irrelevant where necessary. 9 It is quite another, however, to answer, just in case, a question that might not even arise. The Court would do better to concentrate its efforts where its advice is genuinely needed; in the more recent past, it has sometimes taken very long to get back to the national courts with very little. 10 To be fair, though, the Court does not foist an answer on the national court: when specifically instructed by the referring court that national law drew a clear distinction between wholly internal situations and those with a cross-border element, the Court in Omalet declined to rule on a question concerning the former type of situation. 11 Secondly, even though at present nationals of one Member State alone might be affected, the Court is willing to assume a cross-border element if it is not inconceivable that at some future date, nationals of 7 See the summary in Giloy v Hauptzollamt Frankfurt/M-Ost (C-130/95) [1997] E.C.R. I-4291 at [23], with further references, and the study by N. Nic Shuibhne, Free movement of persons and the wholly internal rule: time to move on (2002) 39 C.M.L. Rev. 731, ; see more recently C. Ritter, Purely internal situations (2006) 31 E.L. Rev. 690, Servizi Ausiliari Dottori Commercialisti v Calafiori (C-451/03) [2006] E.C.R. I-2941; [2006] 3 C.M.L.R. 45 at [29]; Cipolla v Fazari (C-94/04 and C-202/04) [2006] E.C.R. I-11421; [2007] 4 C.M.L.R. 8 at [30]; Centro Europa 7 v Ministero delle Comunicazioni (C-380/05) [2008] E.C.R. I-349; [2008] 2 C.M.L.R. 18 at [69]; Blanco Pérez and Chao Gómez v Consejeria de Salud y Servicios Sanitarios (C-570/07 and C-571/07) [2010] 3 C.M.L.R. 37 at [39] (emphasis added); substantially identical formula in Omalet NV v Rijksdienst voor Sociale Zekerheid (C-245/09) December 22, 2010 ECJ at [15]. 9 For an example of the Court s sifting through the national court s questions, see Centro Europa 7 (C-380/05) [2008] E.C.R. I-349 at [48] [68]. 10 This is especially true of the judgments in Commission v Italy (Moped trailers) (C-110/05) [2009] E.C.R. I-519; [2009] 2 C.M.L.R. 34; and Âklagaren v Mickelsson and Roos (C-142/05) [2009] E.C.R. I-4273; [2009] All E.R. (EC) 842; see for a critical discussion of these cases S. Enchelmaier, Moped Trailers, Mickelsson & Roos, Gysbrechts: The ECJ s Case Law on Goods Keeps on Moving (2010) 29 Y.E.L. 190, with further references to the literature. 11 Omalet (C-245/09) December 22, 2010 at [16].

10 618 European Law Review other Member States might find themselves in the same situation, 12 or where it is possible that providers from other Member States have been or would be interested in providing the services concerned. 13 This seems to leave hardly any wholly internal situations or rather, given the yardstick not inconceivable, to find such a situation would only indicate a lack of imagination on the part of the onlooker. This is not, however, as alarming as it might appear at first sight, even though here as all too often, the Court does not offer any explanation. In this respect, one may draw a parallel with the Dassonville formula in the field of free movement of goods. It will be remembered that according to this formula, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-[union] trade are to be considered as measures having an effect equivalent to quantitative restrictions. 14 Seen in this light, not inconceivable appears to be the corollary of potentially. The whole point of the internal market is that anyone from whatever Member State is in principle allowed to try to find new customers in other Member States. To use a metaphor from the early case law on the prohibition of protectionist taxation (now art.110 TFEU, ex arts 90 EC/95 EEC), Member States must not crystallise consumer habits to the benefit of domestic providers. 15 It does not, therefore, matter that presently no one does engage in any cross-border provision of services: the market must be kept open for those who might at any point in time venture to do so. This would also explain the other paradigm mentioned by the Court, namely that a situation ceases to be wholly internal if traders from other Member States have been or would be interested in providing the services concerned. Here again, it is the potential for market entry that counts and that Member States must maintain at all times. Restrictions on the freedom to provide services The Court s formulae The jurisprudence on the freedom to provide services may have had fewer spectacular highlights than that on the free movement of goods. The judgments in Beer purity, 16 Sunday trading 17 and DocMorris 18 drew the attention of the public (that is, the non-specialist press) far beyond those who regularly follow the ECJ s exploits. The importance of Cassis de Dijon 19 may not immediately have sunk in, but it is now one of the handful of the Court s judgments of which virtually every European lawyer has heard. All the same, some of the topoi found in these judgments in particular, mandatory requirements and mutual 12 Blanco Pérez (C-570/07 and C-571/07) [2010] 3 C.M.L.R. 37 at [40]. 13 Centro Europa 7 (C-380/05) [2008] E.C.R. I-349 at [66]. 14 Procureur du Roi v Dassonville (8/74) [1974] E.C.R. 837; [1974] 2 C.M.L.R. 436 at [5] (emphasis added). A recent judgment on art.56 features a truncated version of this, namely Kattner Stahlbau GmbH v Maschinenbau- und Metall- Berufsgenossenschaft (C-350/07) [2009] E.C.R. I-1513 at [82]: hinders or renders less attractive, or even prevents, directly or indirectly, the exercise of that freedom (emphasis added). 15 Commission v United Kingdom (Beer and wine) (170/78) [1983] E.C.R at [7] [8]. 16 Commission v Germany (178/84) [1987] E.C.R One of several examples is Torfaen BC v B&Q (145/88) [1989] E.C.R. 3851; [1990] 1 C.M.L.R Deutscher Apothekerverband v Doc Morris (C-322/01) [2003] E.C.R. I-14887; [2005] 1 C.M.L.R Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) (120/78) [1979] E.C.R. 649; [1979] 3 C.M.L.R. 494.

11 The ECJ s case law on services ( ) 619 recognition have parallels, even precursors, in the foundational judgments on what was then art.59 EEC, namely Van Binsbergen (mandatory requirements) 20 and Van Wesemael (mutual recognition). 21 This is not where the similarities end. As far as goods are concerned, almost 20 years ago the Court set out, in Keck, to re-examine and clarify its case law on what amounts to a measure having equivalent effect to a quantitative restriction. 22 Following Moped trailers and Mickelsson & Roos, 23 however, the law is now less clear than for a long time. 24 With regard to services, we find in the case law a bewildering variety of approaches to the question what national measures amount to restrictions on the freedom to provide services. Some are mere verbal varieties of others, and none obviously contradict each other. Nevertheless, the Court uses these formulae in varying combinations (or only one in some judgments). Its method in doing so (if it has one) appears somewhat random. Below, under each entry an outline is given of some of the measures to which the Court applied the respective formula and its variants. As it turns out, these measures do not reveal common features that would allow us to subsume them under meaningful legal categories. That is, there are no discernible fact patterns that trigger their own, tailor-made test(s). At any rate, the best conclusion that we can draw from the absence of any explanation in this respect is that the Court itself does not think in this way that is so familiar to common lawyers. It is, hence, a matter of guesswork on which criteria the Court chooses one formula rather than another. As one observer put it, in the overwhelming majority of free movement judgments, the Court is working on a legal instinct, on a pragmatic sense of logic, maybe even on something as amorphous as a gut-feeling. 25 This matters because the different approaches can vary significantly in their breadth. Not only does this make the results of their application less foreseeable, it also means that some capture more, some fewer national provisions as restrictions of the freedom to provide services. Granted, the finding of a restriction is only the first step in establishing the compatibility or otherwise of national law with art.56. Such a finding does, however, force the Member State to adduce a justification. Discharging the burden of proof in this respect is not equally straightforward or easy in every case. 26 Outright prohibitions The extreme case of a restriction is an outright prohibition, and so the Court has rightly seen such national measures as being caught by art That provision, as we have seen above, grants the freedom to economic operators established in one Member State wishing to provide their services in a Member State in which they are not established. Member States therefore restrict that freedom if they require providers from other Member States to establish themselves on their territory before they allow them to provide their services 20 Van Binsbergen v Bestuur van de Bedrijfsvereningung voor de Metaalnijverheid (33/74) [1974] E.C.R. 1299; [1975] 1 C.M.L.R. 298 in the same year as Dassonville (8/74) [1974] E.C.R Van Wesemael (110/78 and 111/78) [1979] E.C.R. 35; [1979] 3 C.M.L.R. 87 a few weeks before Cassis de Dijon (120/78) [1979] E.C.R Criminal Proceedings against Bernard Keck and Daniel Mithouard (C-267/91 and C-268/91) [1993] E.C.R. I-6097; [1995] 1 C.M.L.R. 101 at [14]. 23 Moped trailers (C-110/05) [2009] E.C.R. I-519; Mickelsson and Roos (C-142/05) [2009] E.C.R. I Pointedly, S. Weatherill, Free movement of goods (2009) 58 I.C.L.Q. 985, 986: We are approaching the unhappy position where, just as in the pre-keck era, national courts are understandably baffled as to exactly what is expected of them when faced by speculative claims that national measures infringe Art [34]. 25 N. Nic Shuibhne, ann. to C-76/05 in (2008) 45 C.M.L. Rev. 771, 783. For a discussion of the older case law, see J. Meulman and H. de Waele, A Retreat from Säger? (2006) 33 L.I.E.I. 207, passim. 26 This aspect will be discussed below in the context of the available justifications. 27 See, e.g. Liga Portuguesa de Futebol Profissional and Bwin International (C-42/07) [2009] E.C.R I-7633; [2010] 1 C.M.L.R. 1 at [52]: prohibition of offering sports bets via the internet.

12 620 European Law Review there. 28 Variants on this are requirements to provide the services in a way that necessitates a permanent presence on national territory, 29 and to have intermediaries established in the Member State in which services are to be provided. 30 The point about the freedom to provide services is that it does not require anyone involved to be permanently integrated in the economy of the Member State where the services are to be provided: neither provider, nor recipient, nor anyone else. In a number of cases, the Court expressly and correctly classified the requirement to have an establishment in the Member State in which the services were to be provided as running directly counter to the freedom to provide services. 31 In another case, the Court took the same starting point. It went on to argue, however, that the requirement to have an establishment in each province or administrative district (in casu, of Italy) in which services were to be provided constituted a serious obstacle which affected access to the market and put operators in other Member States at a disadvantage compared with those already established in Italy. The latter would find it easier to make contact with providers in other provinces with a view to conferring on them powers of agency. 32 This is not convincing: once providers from other Member States were established in Italy, it is hard to see why it should be any more difficult for them to extend their contacts there than it was for their existing Italian competitors to set up their networks in that country, never mind for any future Italian competitors. The requirement of a multitude of regional establishments merely compounded the requirement to have an establishment in Italy at all. What the Court says about the former requirement can only obfuscate the fact that the latter is undoubtedly a restriction. 33 Alternatively, but with the same result, the Court could have considered the requirement region by region. There was no duty to provide the services in all regions, but no right to serve one region from an establishment in another: entering the market in each region was subject to the same conditions as was first entry anywhere else in Italy. Nevertheless, by contrast with a definitive prohibition, the requirement to have an establishment in the Member State in which the service is to be provided is not impossible to fulfil, and the services can lawfully be provided from then on. The prohibition is, in other words, only a conditional one. It shares this quality with a requirement to hold an administrative authorisation or a licence. 34 Without such permission, the provider must by law not operate in the host Member State. If he is unable or unwilling to obtain the permission, that is the end of the matter. The Court, in a somewhat roundabout manner, in one case described the licence requirement as liable to impede or render less attractive the provision of the services 28 Fidium Finanz v Bundesanstalt für Finanzdienstleistungsaufsicht (C-452/04) [2006] E.C.R. I-9521; [2007] 1 C.M.L.R. 15 at [46], [48]; Commission v Austria (Boilers and pressure tanks) (C-257/05) [2006] E.C.R. I-134* (summ. pub.) at [21]; Commission v Austria (Organic production inspections) (C-393/05) [2007] E.C.R. I-10195; [2008] 1 C.M.L.R. 42 at [32]; Commission v Germany (Organic production inspections) (C-404/05) [2007] E.C.R. I-10239; [2008] 1 C.M.L.R. 43 at [34]; Commission v Belgium (Estate agents) (C-518/09) July 21, 2011 at [71]. 29 Commission v Greece (Gaming machines) (C-65/05) [2006] E.C.R. I-10341; [2007] 1 C.M.L.R. 26 at [53]: operation of gaming machines only in casinos. 30 Criminal Proceedings against Placanica (C-338/04, C-359/04, and C-360/04) [2007] E.C.R. I-1891; [2007] 2 C.M.L.R. 25 at [44]; Commission v Austria (Patent attorneys) (C-564/07) [2009] E.C.R. I-100* (summ. pub.) at [47]. 31 Commission v Germany (Posting of Polish workers) (C-546/07) [2010] 2 C.M.L.R. 36 at [39]; see in the same sense already Commission v Germany (Insurances) (205/84) [1986] E.C.R. 3755; [1987] 2 C.M.L.R. 69 at [52]. 32 Commission v Italy (Extrajudicial debt recovery) (C-134/05) [2007] E.C.R. I-6251; [2007] 3 C.M.L.R. 36 at [56] [57]. 33 Equally timid is the classification, in Commission v France (Bovine insemination centres) (C-389/05) [2008] E.C.R. I-5337; [2008] 3 C.M.L.R. 36 at [56], of the regional exclusivity of insemination centres in France as liable to hamper or to render less attractive the provision of insemination services in that country: it was not permissible to provide such services independently of the centres: at [17] [24]. 34 See, e.g. Extrajudicial debt recovery (C-134/05) [2007] E.C.R. I-6251 at [23]; Commission v Austria (Posting of 3rd country workers) (C-168/04) [2006] E.C.R. I-9041 at [40]; Commission v France (Artists agencies) (C-255/04) [2006] E.C.R. I-5251; [2006] 3 C.M.L.R. 25 at [29].

13 The ECJ s case law on services ( ) 621 in question by operators established and already lawfully operating in other Member States. 35 It certainly was so liable the requirement prohibited the activity altogether, if conditionally. This is different where the prohibition is imposed not on the service as such, but on advertisements for it. Such restrictions applied in Italy, where advertisements for cosmetic surgery were not allowed on national television stations but were permissible on local or regional stations. 36 A prohibition of this kind is indeed only an encumbrance of a service that can in every (other) respect be lawfully provided. From the perspective of national advertisers, by contrast, such a prohibition concerns the very service they want to provide. The Court, therefore, found a restriction without any conceptual detours. 37 More difficult to provide services between Member States According to a number of judgments, a national measure amounts to a restriction if it makes the provision of services between Member States more difficult than provision within only one Member State. 38 Three variants of this can be found in the Court s case law. The first variation uses only this formula. The Court applied it, for instance, to a system of prior authorisation for the receipt of healthcare services abroad 39 ; to the granting of tax relief for tuition fees only if the school was officially approved 40 ; and to the denial to reimburse the costs for treatment incurred in a private hospital in another Member State. 41 The second variant extends this to encompass two situations. These are not prohibitions, conditional or definitive, but mere encumbrances (which does, of course, not render them legal without further assessment). Hence, we read that art.56 precludes the application of any national legislation which, without objective justification, impedes a provider of services from actually exercising the freedom to provide them. 42 The italicised words seem to indicate that such provisions do no establish an outright prohibition in law, but an insurmountable obstacle in fact. The Court goes on to say that, with reference to the single market and in order to permit the achievement of its objectives, Article [56] also precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State. 43 In the light of this second sentence, one might wonder whether the first is needed. Factual impossibility is only the outermost point (the extreme) on the spectrum of rules that make the provision of services 35 Bovine insemination centres (C-389/05) [2008] E.C.R. I-5337 at [64]. 36 Corporación Dermoestética v To Me Advertising Media (C-500/06) [2008] E.C.R. I-5785; [2008] 3 C.M.L.R. 33 at [33]. 37 Dermoestética (C-500/06) [2008] E.C.R. I-5785 at [33]; for a useful overview of the jurisprudence on advertising restrictions, see [75] [89] of A.G. Bot s Opinion in that case. 38 See, e.g. United Pan-Europe Communications Belgium SA v Belgium (C-250/06) [2007] E.C.R. I-11135; [2008] 2 C.M.L.R. 2 at [30]; Kattner Stahlbau (C-350/07) [2009] E.C.R. I-1513 at [79]. 39 R. (on the application of Watts) v Bedfordshire Primary Care Trust (C-372/04) [2006] E.C.R. I-4325; [2006] 3 C.M.L.R 5 at [94], [98]. 40 Herbert Schwarz, Marga Gootjes-Schwarz v Finanzamt Bergisch-Gladbach (C-76/05) [2007] E.C.R. I-6849; [2007] 3 C.M.L.R. 47 at [64], [67]. 41 Aikaterini Stamatelaki v NPDD (C-444/05) [2007] E.C.R. I-3185 at [25], [26]. 42 Life assurance (C-150/04) [2007] E.C.R. I-1163 at [37] (emphasis added). 43 Life assurance (C-150/04) [2007] E.C.R. I-1163 at [38] (emphasis added). An extension of this variant can be found in Occupational pension schemes (C-522/04) [2007] E.C.R. I-5701, where the Court at [36] [37] repeats the passages just cited from C-150/04, and then adds in [38] measures which are liable to prohibit or further impede the activities of a provider of services established in another Member State where he lawfully provides similar services. The meaning of further is not clear: what is the corresponding original obstacle? Neither is the emphasis on the lawfulness of the services in the other Member State. This point will be discussed below.

14 622 European Law Review between Member States more difficult than purely within one Member State, without expressly prohibiting them. This first sentence may be meant to highlight the most egregious example of what is encompassed in the second. In the absence of any explanation, however, we cannot be sure. 44 Be that as it may, the focus in the second sentence on the effects of a measure is familiar from the free movement of goods: the Treaty in art.30 (ex art.25 EC) prohibits charges having equivalent effect to customs duties; in art.34 (ex art.28 EC), measures having equivalent effect to quantitative restrictions; and in art.110 (ex art.90 EC), internal taxation of such a nature as to afford indirect protection to domestic products. In all three cases, we do not have to inquire (and the Commission under art.258 (ex art.226 EC) does not have to prove) exactly why and how it is that, as a result of the rules in question, products from other Member States end up with a disadvantage compared with goods made (or already on the market) in the Member State of importation. It is sufficient that the measure is liable to have this effect; the Member State must then furnish an objective justification (and bears the corresponding burden of proof). 45 For the same reason, it does not matter that imports account for only a small proportion of goods that are put at a disadvantage, 46 or that only a small number of domestic operators are favoured by the measure, while others suffer the same disadvantages as operators from other Member States. 47 Neither is the small volume of cross-border trade overall of any consequence for the legal assessment; Member States do not enjoy any de minimis rebate. 48 It is also irrelevant whether the Member State specifically intended its actions to have the effect of restricting transactions between Member States. 49 When the Court prefaces this formula in the above judgment on the freedom to provide services with a reference to the single market (unfortunately again without elaborating the point), it can draw on art.26(2) (ex art.14(2) EC). In defining the internal market, this article mentions all four freedoms in one breath. From this, it would appear that they are all meant together to bring about the internal market. At least as a starting point, therefore, they can all be understood to be based on the same principles. Effects, not intention is one such principle, even though it does not feature in the wording of every one of the four freedoms. The third variant of the more difficult to provide services between Member States formula is the most often used; it is, so to speak, the Court s standard formula. The Court used it, for instance, in its judgment on Spanish rules which required, among others, that private security undertakings and members of their staff possess Spanish nationality, that foreign providers be constituted as legal persons with a specific share capital and minimum numbers of staff. The Court held that art.56 aims at, 44 A similar ambiguity can be found in Moped trailers (C-110/05) [2009] E.C.R. I-519; see the discussion in Enchelmaier, Moped Trailers, Mickelsson & Roos, Gysbrechts (2010) 29 Y.E.L. 190, See, among many, Commission v Spain (VAT on arms and ammunition) (C-414/97) [1999] E.C.R. I-5585; [2001] 2 C.M.L.R. 4 at [21], [22]; see also section The burden of proof below. 46 For an application of this principle to the free movement of workers, see Carl Borawitz v Landesversicherungsanstalt Westfalen (C-124/99) [2000] E.C.R. I-7293 at [29], [30]. 47 See, in respect of services, United Pan-Europe Communications (C-250/06) [2007] E.C.R. I at [37]: In order for legislation to constitute an obstacle to the provision of services between Member States, it is not necessary for all undertakings in a Member State to be advantaged in comparison with foreign undertakings. It is sufficient that that legislation should benefit certain undertakings established on the national territory. 48 From the case law on services, see Commission v Germany (Posting of 3rd country workers) (C-244/04) [2006] E.C.R. I-885; [2006] 2 C.M.L.R. 23 at [33]; for goods, Commission v France (Franking machines) (21/84) [1985] E.C.R at [13], and more recently Commission v France (Homeopathy) (C-212/03) [2005] E.C.R. I-4213 at [15] [16]; for a more general statement to that effect, encompassing all four freedoms, see Government of the French Community and Walloon Government v Flemish Government (C-212/06) [2008] E.C.R. I-1683; [2008] 2 C.M.L.R. 31 at [45]. See also L. Gormley, EU Law of Free Movement of Goods and Customs Union (Oxford: Oxford University Press, 2009), paras to On the contrary, Member States cannot plead their best intentions, or their continued efforts to regularise the situation: Commission v Greece (Batteries recycling) (C-215/98) [1999] E.C.R. I-4913 at [15]; Gormley, EU Law of Free Movement of Goods and Customs Union, 2009, para

15 The ECJ s case law on services ( ) 623 the abolition of all restrictions, even if applicable without distinction to national providers of services and to those of other Member States, which are liable to prohibit or render less advantageous the activities of a provider of services established in another Member State, where he lawfully provides similar services. 50 What is more, art.56 also covers any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State. 51 On close inspection, the first, convoluted limb of this addresses two paradigms. The Court made this explicit in an extended version of the standard formula which appears in some judgments. According to this, the freedom to provide services requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable and so on as in the shorter version. 52 From this we can see that there are, first, restrictions which distinguish between national providers and those from other Member States (commonly called distinctly applicable measures ). Such measures typically extend to foreign providers treatment less favourable than to domestic ones. 53 It is not difficult to establish that such rules are liable to prohibit or render less advantageous the provision of services between Member States 54 : that is precisely their point whether this is acceptable (justified) is another matter. The second paradigm comprises rules that are applicable regardless of the providers place of establishment ( indistinctly applicable measures ). Their liability to prohibit or render less advantageous the cross-border provision of services may not be as obvious as that of distinctly applicable measures. Nevertheless, we have seen above that as long as the Commission under art.258 TFEU, or private parties invoking art.56 in the national courts, can establish that at least some providers from other Member States are affected as indicated, the burden of proof will then be on the Member State to justify its measures. 50 Only this formula, without what follows in the text above, is found in Proceedings Brought by Josep Peñarroja Fa (C-372/09 and C-373/09) [2011] 2 C.M.L.R. 49 at [50]. 51 Commission v Spain (Private security undertakings) (C-514/03) [2006] E.C.R. I-963 at [24] [25]; with substantially identical wording also in, among others, Cipolla (C-94/04 and C-202/04) [2006] E.C.R. I at [56] [57]; Commission v Germany (Paid leave fund) (C-490/04) [2007] E.C.R. I-6095 at [63], and Bovine insemination centres (C-389/05) [2008] E.C.R. I-5337 at [57]. Sometimes, the Court replaces prohibit or render less advantageous with prohibit, impede or render less attractive : Commission v Italy (Private security services) (C-465/05) [2007] E.C.R. I-11091; [2008] 2 C.M.L.R. 3 at [17]; Servizi Ausiliari Dottori Commercialist (C-451/03) [2006] E.C.R. I-2941 at [31]; Gaming machines (C-65/05) [2006] E.C.R. I at [48]; Estate agents (C-518/09) July 21, 2011 at [63]. At other times, it merely interposes impede between prohibit and render less advantageous, as in ITC v Bundesagentur für Arbeit (C-208/05) [2007] E.C.R. I-181 at [55]. These apparently random verbal differences have no substantive consequences. 52 United Pan-Europe Communications (C-250/06) [2007] E.C.R. I at [29] (emphasis added). 53 If, exceptionally, it is the other way around, national providers active on the national market would find themselves, vis-à-vis their own Member State, in a purely internal situation, unless national law expressly granted them the same rights as other Union citizens. 54 The burden of proof under art.258 is on the Commission; it cannot rely on any presumption in this respect, nor can anybody else invoking art.56 in national courts; see Commission v Portugal (Building services) (C-458/08) November 18, 2010 at [54]; Commission v Portugal (Mortgage interest taxation) (C-105/08) June 17, 2010 at [26], both with further references.

16 624 European Law Review The last sub-clause ( where he lawfully provides similar services ) also calls for a comment. It has some tradition in the Court s jurisprudence, 55 but it has never been properly explained. For a start, the wording of art.56 (leaving aside the jurisprudential extensions discussed above) does not contain a trace of it. The only conditions mentioned there are that the provider hold the nationality of a Member State, and that he be established in a Member State other than that of the person for whom the services are intended. The legality of the service in the Member State of establishment is not among these conditions. What is more, the Court has held that an economic operator does not even have to offer any services, lawfully or otherwise, in his Member State of establishment for that provider to come within the ambit of art : what counts is that in rendering the services that the operator does provide, he crosses the border between two Member States. To avoid the repetition of several other arguments: legality of goods or services in their home Member State is not required for their enjoyment of the freedom of movement. 57 The legality that counts is that in the Member State in which the service is to be provided (the host Member State). The host Member State s laws are not impermissible merely because they are more restrictive than that of the home Member State of the provider. 58 The service may not have been subject to any regulation in its home state. This may be even because it cannot lawfully be provided in that state. 59 In the absence of such regulation, the requirements of the host Member State apply without a discount, as it were, for controls that the services or their provider have already undergone in their home state. If, by contrast, the service or its provider has been subject to such regulation in its home state, it will have to be seen to what extent the aims of the host Member State s legislation have already been achieved by the home state s controls. Mutual recognition is always conditional on some protection afforded by the home state s regulations that can be recognised in the first place. 60 In this sense, the Court held that, a restriction on the fundamental principle of freedom to provide services can be based only on rules justified by overriding requirements relating to the public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established The earliest occurrence appears to be in Säger v Dennemeyer (C-76/90) [1991] E.C.R. I-4221; [1993] 3 C.M.L.R. 639 at [12]; since then, see, e.g. Posting of 3rd country workers (C-244/04) [2006] E.C.R. I-885 at [30], and Building services (C-458/08) November 18, 2010 at [83], with further references. 56 VT4 Ltd v Vlaamse Gemeenschap (C-56/96) [1997] E.C.R. I-3143; [1997] 3 C.M.L.R at [22]; most recently Carmen Media Group v Land Schleswig-Holstein (C-46/08) [2011] 1 C.M.L.R. 19 at [42] [44]. 57 A deduction of this proposition from the Court s case law can be found in S. Enchelmaier, The awkward selling of a good idea, or a traditionalist interpretation of Keck (2003) 22 Y.E.L. 249, Commission v Italy (Third party liability motor insurance) (C-518/06) [2009] E.C.R. I-3491; [2009] 3 C.M.L.R. 22 at [63]; Private security undertakings (C-514/03) [2006] E.C.R. I-963 at [49]. The Court had so held already in Alpine Investments BV v Minister van Financien (C-384/93) [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209 at [27]; see the references in the two recent judgments just referred to. 59 For an example of such a situation, see Deutsche Paracelsusschulen v Gräbner (C-294/00) [2002] E.C.R. I-6515 at [68]: prohibition in Austria of the services offered by Heilpraktiker (lay health practitioners) which were, however, legal in Germany and could be pursued there by Austrians. 60 See S. Weatherill, Cases & Materials on EU Law, 9th edn (Oxford: Oxford University Press, 2010), pp Criminal proceedings against Josef Corsten (C-58/98) [2000] E.C.R. I-7919 at [35] (emphasis added); see more recently Building services (C-458/08) November 18, 2010 at [87]; Criminal proceedings against dos Santos Palhota (C-515/08) [2011] 1 C.M.L.R. 34 at [30]; Commission v Belgium (Posting of 3rd country workers) (C-219/08) [2009] E.C.R. I-9213 at [14]; Posted workers (C-319/06) [2008] E.C.R. I-4323 at [43]; Posting of 3rd country workers (C-244/04) [2006] E.C.R. I-885 at [31]; Private security undertakings (C-514/03) [2006] E.C.R. I-963 at [27], all with further references.

17 The ECJ s case law on services ( ) 625 The italicised passage is a more articulate version of what the somewhat misleading shorthand where he lawfully provides similar services is meant to express. From this more explicit rendition, it also becomes clear that all this refers to the question whether the restriction resulting from the host Member State s rules is justified. This is different from the question of the restriction s very existence. Unfortunately, the standard formula 62 does not distinguish sufficiently clearly between the two. This is regrettable not only for its lack of conceptual clarity. It is also apt to lead to procedural confusion in the national courts. As has been pointed out repeatedly, the burden of proof is different with regard to restriction and justification. Additional burdens In some judgments, the Court tried to give the standard formula sharper contours. We thus read in Scorpio Konzertproduktionen that, the application of the host Member State s national rules to providers of services is liable to prohibit, impede or render less attractive the provision of services to the extent that it involves expense and additional administrative and economic burdens. 63 The Court found this to be the case with regard to, e.g. the obligation imposed on a provider of services residing in the Netherlands to request the competent German tax authority to issue a certificate of exemption, which allowed the provider to escape additional tax on his income in Germany 64 ; to a requirement for social security documents originating in other Member States to be translated into German 65 ; and to an Italian regional tax on providers established outside the region that was higher than for those established within. 66 A similar impediment arises from national requirements that providers of services be constituted as legal persons with a certain minimum share capital and/or with a minimum number of employees 67 or, conversely, not to be incorporated as listed companies. 68 Such requirements force some providers to alter their (legal) status. In this way, they make it more onerous for these providers to operate across the border than it would be were they allowed to do so in their original guise. From these examples, in particular the fact that some of the restrictions have already been discussed under the previous heading, it can be seen that this formula is similar to the one above, but more narrow in its scope: not any difficulty will be enough, but only specific ones. For a proper understanding of what amounts to additional burdens, it is important to be clear about which situations are being compared. What counts is not a comparison of the costs entailed by the national rule under scrutiny with a fictitious situation in which that rule did not apply in the same Member State. The comparison is, in other words, not between rule and no rule. To take such a starting point would render virtually all Member State regulation prima facie illegal and in need of a justification. The Treaty, by contrast, tackles only those that hinder the establishment of the internal market. As A.G. Tizzano lucidly explained in Caixa-Bank France, the Treaty aims at an internal market in which conditions are similar to those of a single market and where operators can move freely, not at a market without any rules at all or 62 See Private security undertakings (C-514/03) [2006] E.C.R. I-963 at [24] [25]. 63 FKP Scorpio Konzertproduktionen GmbH v Finanzamt Hamburg-Eimsbuttel (C-290/04) [2006] E.C.R. I-9461; [2007] 1 C.M.L.R. 33 at [46]; Paid leave fund (C-490/04) [2007] E.C.R. I-6095 at [69] (emphasis added). 64 FKP Scorpio Konzertproduktionen (C-290/04) [2006] E.C.R. I-9461 at [56]. 65 Paid leave fund (C-490/04) [2007] E.C.R. I-6095 at [68]; in the same sense for an obligation to store in the host Member State documents drawn up in the home Member State, and other obligations regarding documentation, see Santos Palhota (C-515/08) [2011] 1 C.M.L.R. 34 at [42]. 66 Presidente del Consiglio dei Ministri v Regione Sardegna (C-169/08) [2009] E.C.R. I-10821; [2010] 2 C.M.L.R. 8 at [31] [32]. 67 Private security undertakings (C-514/03) [2006] E.C.R. I-963 at [31], [36], [48]. 68 Placanica (C-338/04, C-359/04, and C-360/04) [2007] E.C.R. I-1891 at [42].

18 626 European Law Review rather, one in which rules are prohibited as a matter of principle, except if specifically justified. 69 In a similar vein, the Court held that measures do not fall within the scope of art.56 TFEU if their only effect is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State. 70 Instead, the relevant comparison is between the actual costs of providing the services in the host Member State under local regulations, and the costs that the provider would have to bear if he provided the services in the host Member State in the same way and under the same legal conditions as in his home Member State. The relevant additional burdens are, in other words, only those caused by the differences between national regulations. Natural barriers to market entry such as increased transport costs and travel expenses to cover the greater distance to the market in the host Member State are not covered. The same applies to the (merely advisable) translation of any promotional texts into the language(s) spoken there. Equally excluded are any market entry barriers lawfully set up by local competitors. An example would be operating facilities in local hospitals which the provider needs to use, in a situation where all available slots have been booked by doctors established in the host Member State. Similarly, it follows from the Court s judgment on Austrian rules requiring all patent attorneys active in Austria to have professional indemnity insurance that no additional regulatory burden arises if the same insurance requirement applies in home and host Member State, and the host Member State allows that requirement to be fulfilled in the home Member State. 71 Disadvantages In yet other judgments, the Court explained that all of the Treaty provisions on freedom of movement for persons are intended to facilitate the pursuit by Union nationals of occupational activities of all kinds throughout the European Union. This precludes measures which might place them at a disadvantage when they wish to pursue an economic activity in the territory of another Member State. 72 An instructive example is the requirement in Italy for the personnel of private security firms to make a solemn promise ( oath ) of allegiance to the Italian Republic and to its head of state. The Court found rightly, it is submitted that this would be more acceptable to citizens of Italy or to people who are already installed in that state. As a result, foreign operators were placed at a disadvantage as compared with Italian operators established in Italy. 73 To speak of disadvantages in the context of the provision of services shifts the focus from the service that is rendered more difficult (thus the formula discussed above) to the provider who suffers a corresponding encumbrance. This change of perspective does not, in principle and for all we can tell from the case law, imply any alteration in the substance of the test. It merely reflects that art.56 mentions the services as well as their providers and recipients. This is in contrast with arts 34 and 35 (ex arts 28 and 29 EC). These provisions address only imports and exports, respectively, not also the traders dealing in those goods. Nevertheless, the Court in its assessment of allegedly restrictive measures treats the traders as proxies for the goods that they import or export. 74 It would be misleading to ask whether the Court 69 Caixa-Bank France v Ministre de l Economie, des Finances et de l Industrie (C-442/02) [2004] E.C.R. I-8961; [2005] 1 C.M.L.R. 2, Opinion at [63]. 70 Mobistar and Belgacom Mobile v Commune de Fleron (C-544/03 and C-545/03) [2005] E.C.R. I-7723; [2005] 3 C.M.L.R. 46 at [31]. 71 See Patent attorneys (C-564/07) [2009] E.C.R. I-100* (summ. pub.) at [26] [29], where Austria had not, however, adduced any evidence that such insurance was compulsory or at least customary in other Member States. 72 Filipiak v Dyrektor Izby Skarbowej w Poznaniu (C-314/08) [2009] E.C.R. I-11049; [2010] 2 C.M.L.R. 11 at [58]; Schmelz (C-97/09) [2011] S.T.C. 88 at [46]. 73 Private security services (C-465/05) [2007] E.C.R. I at [37]. 74 Commission v Germany (Hospital Pharmacies) (C-141/07) [2008] E.C.R. I-6935; [2008] 3 C.M.L.R. 48 at [33]: provisions must apply indiscriminately to all operators concerned who carry out their business on German territory

19 The ECJ s case law on services ( ) 627 subjects goods and traders to different tests: there is only one integral test with different aspects to it. So, too, it is with services. Dissuasion/deterrence The Court occasionally finds that national measures are capable of dissuading or deterring providers established in one Member State from offering their services in another. This was the case with regard to, among others: a Danish requirement of a branch office or a permanent establishment for the enjoyment of certain tax advantages 75 ; Austrian legislation that required employers from other Member States of third-country nationals to declare to the authorities that certain standards were met in the terms of employment of these nationals 76 ; the obligation under German law on the recipient of services to make a retention at source of the tax on the payment made to a provider of services residing in another Member State and the fact that that recipient may in certain cases incur liability 77 ; Belgian rules obliging those who used foreign contracting partners not registered in Belgium to withhold a percentage of the sum payable for work carried out, and imposing on Belgian principals and foreign contractors joint and several liability for the latters Belgian tax debts 78 ; and Italian legislation resulting in a larger tax burden for taxpayers attending universities abroad rather than in Italy. 79 These findings of dissuasion or deterrence mostly follow after the Court s reciting the standard formula discussed above. 80 They are apparently meant to be illustrations of what the Court understands by prohibit or render less advantageous in the standard formula. One can certainly agree with the substance of the Court s conclusions. Nevertheless, the Commission and even more so the national courts will be little wiser: one broad concept is explained (or only illustrated) with an even vaguer one. Many factors might dissuade or deter a service provider from one Member State contemplating an extension of his operation to the markets in another Member State. The decisive question is which of these factors merely constitute the natural uncertainty attendant on every commercial venture, or the unavoidable hassles involved in doing business abroad, 81 and which should be open to challenge under Union law. The mere description as dissuasion or deterrence does not get us closer to the answer. Restriction of market access/of the opportunity to compete more effectively In some judgments of the period under review, we find yet another approach to what amounts to a restriction on the freedom to provide services. This draws on some of the formulae considered above. To these, the Court adds the perspective of the market and of the competition that takes place between providers on whether or not they are established in Germany or in another Member State. This is a more elaborate version of the requirement in Keck and Mithouard (C-267/91 and C268/91) [1993] E.C.R. I-6097 at [16], that a rule, for it to be compatible with art.34, must among others apply to all relevant traders operating within the national territory. 75 Life assurance (C-150/04) [2007] E.C.R. I-1163 at [39] [40]; note that establishment was not a precondition for the provision of assurance services per se (such a requirement was discussed in the text above), but only for the tax advantages. 76 Posting of 3rd country workers (C-168/04) [2006] E.C.R. I-9041 at [62]. 77 FKP Scorpio Konzertproduktionen (C-290/04) [2006] E.C.R. I-9461 at [33]. 78 Commission v Belgium (Withholding obligation) (C-433/04) [2006] E.C.R. I at [29]. 79 Zanotti v Agenzia delle Entrate (C-56/09) [2010] 3 C.M.L.R. 34 at [41] [42]; here, the Court uses only the simple formula referred to in Watts (C-372/04) [2006] E.C.R. I-4325 at [94], [98]. 80 Article 56 EC also covers any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State. 81 Commission v Italy (Lawyers fees) (C-565/08) [2011] 3 C.M.L.R 1 at [50]: The existence of a restriction within the meaning of the Treaty cannot therefore be inferred from the mere fact that lawyers established in Member States other than the Italian Republic must become accustomed to the rules applicable in that latter Member State for the calculation of their fees for services provided in Italy.

20 628 European Law Review that market. We have seen at the very beginning of this article that the creation of the internal market is meant to throw the hitherto isolated national markets open to competition, that is, to the activities of competitors, from other Member States. We thus read in the Court s judgment in an action brought by the Commission against Luxembourg that the obligation that providers of building services from other Member States designate an ad hoc agent residing in Luxembourg to retain the documents necessary for monitoring by the competent national authorities, involves an additional administrative and financial burden for undertakings established in another Member State, so that the latter are not on an equal footing, from the point of view of competition, with employers established in the host Member State, and they may be dissuaded from providing services in the latter Member State. 82 Similarly, the Court found that compulsory minimum rates in Italy deprived economic operators established in other Member States of the opportunity to compete more effectively, by offering charges lower than those in the scale of charges imposed, with the economic operators traditionally established in Italy. 83 This highlights that providers from other Member States do not have to be put in a competitive position that is overall worse than that of their domestic rivals. It suffices that they are deprived of an advantage that they would otherwise have had, even if other advantages still keep them ahead of the competition. There can be no doubt that every additional burden imposed on would-be providers from another Member State puts them at a disadvantage vis-à-vis their domestic competitors; for some, this might tip the scales against expanding their activities into the other Member State at all. It must be said, however, that this test if it is one would add unnecessary complexity to the assessment. Under the previous formulae, it was enough to find that national regulations imposed adaptation costs on providers from other Member States. Now, it seems, we have to take a wider perspective, and consider the competitive position of domestic providers also. The judgment could be read to mean that there will be a restriction only if on balance (as the net result, so to speak), providers from other Member States are at a competitive disadvantage. We are not told which factors ought to go into the equation. Nevertheless, it would seem that all other regulatory burdens to which domestic providers are subject would also have to be taken into consideration. An alternative and more plausible interpretation of this passage, however, is that the Court here does no more than openly articulate the reason why no additional burdens should be heaped on providers from other Member States, and tells us the expected outcome ( so that ). Foreign providers normally have complied with one set of regulations already, namely that of their home Member State. To comply with the host Member State s set on top of that can be costly, and these costs must be recouped. Domestic competitors have already paid this entry price, as it were, to the market of that state, their home Member State. They can, therefore, offer their services more cheaply. For this reason, it is enough to consider the position of providers from other Member States alone. Any wider perspective would be boundless: beyond the regulation immediately in issue, shall we (and, if so, how?) also quantify the impact the host Member State s tax, environmental, planning, transport, and employment legislation, to name but a few? It is 82 Posted workers (C-319/06) [2008] E.C.R. I-4323 at [85] (emphasis added); similarly, the Court found in Lawyers fees (C-565/08) [2011] 3 C.M.L.R 1 at [51] that a restriction would exist if lawyers were deprived of the opportunity of gaining access to the market of the host Member State under conditions of normal and effective competition. 83 Extrajudicial debt recovery (C-134/05) [2007] E.C.R. I-6251 at [71] [72]; Cipolla (C-94/04 and C-202/04) [2006] E.C.R. I at [70]; the Court said the same in SECAP and Santorso v Comune di Torino (C-147/06 and C-148/06) [2008] E.C.R. I-3565; [2008] 2 C.M.L.R. 56 at [28], about a rule requiring the automatic exclusion of abnormally low tenders to contracts of certain cross-border interest. This argument about the restrictive effects of minimum price-legislation has a long tradition in the case law on goods; see P. Oliver, Free Movement of Goods in the European Union (Oxford and Portland, Oregon: 2010), paras 7.87 to

21 The ECJ s case law on services ( ) 629 impossible to reach any justiciable conclusions in this respect. For this reason, the Court rightly turned its face against such balancing exercises in the field of taxes and charges having equivalent effect to customs duties. 84 It is regrettable that the Court should have confused (poured into the same vessel) the test and its motivation, but this need not do any harm if understood as above. 85 It is a truism to say that competition takes place on markets. Hence the provision of services in one Member State by a provider established in another means the extension of that provider s activity into a new market (at least in the typical paradigm of a provider who is active on his home market as well). To put it differently, in this situation the provider seeks access to the market in the other Member State. From the finding of competitive disadvantages imposed on foreign providers of services it is, therefore, only a small step to say that their market access is negatively affected, that is, restricted. Again, this is no surprise: the entire project of creating the internal market is about guaranteeing economic operators established in any Member State the legal possibility of access to the markets everywhere in the Union; it is then for other policies to make actual entry into foreign markets a commercially attractive proposition. Notice, however, that we are again speaking of motivations. The aim of creating, as between Member States, conditions that come close to a single market on a continental scale is translated into specific provisions in the Treaty, among them art.56. This and the other freedoms are all about market access: the restrictions they seek to remove are restrictions to market access. It adds nothing to our understanding, therefore, to say that we are in the presence of a restriction when market access is made more difficult we already knew that. Market access is, so to speak, about the why, not the how of creating the internal market through addressing prohibitions at Member States. Market access is not a test, but an objective. The crucial question is: what specifically must Member States not do that restricts market access? The Court, therefore, turns in circles when it says in Commission v Italy (Third party liability motor insurance) that, the concept of restriction covers measures taken by a Member State which, although applicable without distinction, affect access to the market for undertakings from other Member States and thereby hinder intra-community trade. 86 The Court does not, however, allow itself to be distracted by this. In the same judgment, it goes on to say that the obligation imposed by Italian law on insurers to accept anyone as a customer for certain types of insurance is likely to lead, in terms of organisation and investment, to significant additional costs for providers from other Member States. These might be required to rethink their business policy and strategy by, inter alia, considerably expanding the range of insurance services offered. The Court continues: 84 Denkavit Loire v French State (132/78) [1979] E.C.R at [8]: taxes on imported lard that were meant to offset the slaughter fees borne by domestic pork producers. 85 A prominent earlier example can be seen in the Court s formula for determining what amounts to a measure having equivalent effect to a quantitative restriction on exports as set out in P.B. Groenveld BV v Produktschap voor Vee en Vlees (15/79) [1979] E.C.R. 3409; [1981] 1 C.M.L.R. 207 at [7]; see the discussion in S. Enchelmaier, The ECJ s recent case law on the free movement of goods: movement in all sorts of directions (2007) 26 Y.E.L. 115, Third party liability motor insurance (C-518/06) [2009] E.C.R. I-3491 at [64]; also in Lawyers fees (C-565/08) [2011] 3 C.M.L.R 1 at [46]. Equally critical of the Court s case law on this point is J. Snell, The notion of market access: a concept or a slogan? (2010) 47 C.M.L. Rev. 437, : Ultimately, the notion of market conceals rather than clarifies. The very ambiguity of the term may explain its use by and usefulness for the Court Market access may simply provide a sophisticated-sounding garb that conceals decisions based on intuition. See also G. Davies, Understanding market access: exploring the economic rationality of different conceptions of free movement law (2010) 11 German Law Journal 469.

22 630 European Law Review Inasmuch as it involves changes and costs on such a scale for those undertakings, the obligation to contract renders access to the Italian market less attractive and, if they obtain access to that market, reduces the ability of the undertakings concerned to compete effectively, from the outset, against undertakings traditionally established in Italy. 87 This brings together a number of the elements already discussed above. The result is certainly correct, but the way in which the Court arrives there is not exactly straightforward. The judgment in United Pan-Europe Communications Belgium displays a similar pattern. The Court there explained that the Belgian legislation in issue directly determined the conditions for access to the market. It did so by imposing on the providers of services from other Member States (in casu, broadcasters) which were not granted a certain privileged status under that legislation a burden that was not imposed on the privileged providers of services those who were granted must carry status did not have to negotiate the terms of access to cable networks, the others did. Such legislation was accordingly liable to hinder the provision of services between Member States. From this, the Court concluded that the national legislation had the effect of making the provision of services between Member States more difficult than the provision of services purely within Belgium. 88 To hinder, to make more difficult and to affect market access are used synonymously in this passage. In substance, however, the Court s findings hinge on the unequal, that is, additional burdens imposed on providers from other Member States and on some domestic providers, i.e. on all those who were denied privileged status. Here again, therefore, we find a whole array of more or less helpful descriptions or illustrations of what are restrictions under art The various expressions accompany, as a kind of mood music, what really matters, namely the examination of the burdens imposed on domestic providers and those from other Member States, respectively. So much verbiage is apt to confuse the national courts and others called upon to interpret and apply Union law. It can also obfuscate the Court s reasoning or, more worryingly, tempt it to substitute intuition for reasoning. One must wonder whether there is not a simpler way. There is, as we shall see next. What is more, the Court has shown itself aware of this simpler way, if maybe not quite often enough. The default position: the discrimination test According to its wording, art.56 prohibits restrictions that specifically make establishment in another Member State the criterion for disadvantages meted out to some providers and not to others. In the words of the Court, the provision forbids restrictions on the freedom to provide services imposed on the ground that the person providing a service is established in a Member State other than that in which the service 87 Third party liability motor insurance (C-518/06) [2009] E.C.R. I-3491 at [66] [70]. The Court reasoned in a similar manner in Private security services (C-465/05) [2007] E.C.R. I at [125], with regard to administrative control of the fees providers were allowed to charge, and in SECAP (C-147/06 and C-148/06) [2008] E.C.R. I-3565 at [28], concerning a rule requiring the automatic exclusion of abnormally low tenders which could deprive economic operators from other Member States of the opportunity of competing more effectively with operators located in the Member State in question and thereby affect their access to the market in that State, thus impeding the exercise of freedom of establishment and freedom to provide services (emphasis added). 88 United Pan-Europe Communications (C-250/06) [2007] E.C.R. I at [33], [36]. 89 See also the doubts entertained by D. Edward and N. Nic Shuibhne, Continuity and change in the law relating to services in A. Arnull, P. Eeckhout and T. Tridimas (eds), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (Oxford: Oxford University Press, 2009), p.243 at p.256: If market access is ultimately the best criterion, applicable across the range of internal market law, there must nevertheless be some way of delimiting the scope of the freedom in relation to non-discriminatory obstacles. Otherwise, there is a danger of setting off again down the fausse piste that ended with Keck too right, but in what sense, then, is market access the best criterion?

23 The ECJ s case law on services ( ) 631 is provided. 90 An example of restrictions thus prohibited are tax provisions of a Member State which apply to cross-border economic activities rules less favourable than those which apply to an economic activity pursued within the borders of that Member State. 91 Taxes are, by contrast, compatible with art.56, the Court found, if they apply without distinction to all providers, and if foreign operators are not, either in fact or in law, more adversely affected by those measures than national operators. 92 This last quote contains a slight redundancy: to apply without distinction means that everyone is subject to the same rules, i.e. treated the same in law; this is not a separate condition with regard to foreign providers. What the Court means to say is that uneven factual repercussions of a rule that is applicable without distinction to all (that is, unequal treatment in fact rather than in law) trigger the prohibition of that rule under art.56 (as under the other freedoms). That aside, these examples take us back to the division of all measures into distinctly and indistinctly applicable; this has already been seen above. 93 The Court by and large adheres to this division, although it is sometimes not very clear on this point. The question of a rule s personal scope whether it is applicable to everyone, or only to those from other Member States is the starting point of an inquiry whether discrimination has taken place. Discrimination on grounds of nationality (and establishment, in the case of services) is expressly prohibited by art.18 (ex art.12 EC). Discrimination is unequal treatment, in law or in fact, without objective justification; scrutiny of the justification offered by the Member State is, hence, the second step in the assessment. In this respect, too, the Court s terminology is at times inconsistent and untechnical. Here is not the place to go into details, 94 particularly as we can now concentrate on judgments in which the Court did clearly articulate its methodology. One example is the judgment in Schmelz, in which the Court explained that art.56 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. 95 Overt equals direct discrimination, resulting from distinctly applicable measures without justification; covert equals indirect discrimination, resulting from the uneven factual impact of indistinctly applicable measures, unless justified. As the Court put it, discrimination can arise through the application of different rules to comparable situations or the application of the same rule to different situations Centro Equestro da Lezíria Grande v Bundesamt für Finanzen (C-345/04) [2007] E.C.R. I-1425; [2007] 2 C.M.L.R. 18 at [20]; Jundt v Finanzamt Offenburg (C-281/06) [2007] E.C.R. I-12231; [2008] C.E.C. 416 at [54]. 91 Filipiak (C-314/08) [2009] E.C.R. I at [62]; Commission v Spain (Deduction of R&D costs) (C-248/06) [2008] E.C.R. I-47* (summ. pub.) at [23] [24]. 92 Mobistar and Belgacom Mobile (C-544/03 and C-545/03) [2005] E.C.R. I-7723 at [31] [32]. 93 See section More difficult to provide services between Member States above. 94 See the references and discussion in Enchelmaier, The awkward selling of a good idea, or a traditionalist interpretation of Keck (2003) 22 Y.E.L. 249, ( indistinctly applicable ), as well as the wider analysis of the prohibition of discrimination in the case law on free movement at , and more recently Enchelmaier, The ECJ s recent case law on the free movement of goods (2007) 26 Y.E.L. 115, 127, with further references. For an example from the period under review, see Dermoestética (C-500/06) [2008] E.C.R. I-5785 at [35], [36] where the Court mentions among the conditions for a rule to be justified first that it be applied in non-discriminatory manner : a finding of discrimination (or its absence) is only ever the result of the whole assessment; similarly, Posting of Polish workers (C-546/07) [2010] 2 C.M.L.R. 36 at [48]. The Court used an unhappy hybrid in Commission v Spain (Tax on lottery winnings) (C-153/08) [2009] E.C.R. I-9735; [2010] 1 C.M.L.R. 30 at [4]: The restriction in the present case is not applicable without distinction but is discriminatory in nature (emphasis added). Admittedly, this is more of a semantic quibble than a substantive criticism. 95 Schmelz (C-97/09) [2011] S.T.C. 88 at [48]; Neukirchinger v Bezirkshauptmannschaft Grieskirchen (C-382/08) [2011] 2 C.M.L.R. 33 at [32]; Josemans (C-137/09) [2011] 2 C.M.L.R 33 at [58]; Blanco Pérez (C-570/07 and C-571/07) [2010] 3 C.M.L.R. 37 at [118]. 96 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet (C-341/05) [2007] E.C.R. I-11767; [2008] 2 C.M.L.R. 9 at [115].

24 632 European Law Review In Blanco Pérez and Chao Gómez the Court added that, unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect the nationals of other Member States more than the nationals of the state whose legislation is at issue, and if there is a consequent risk that it will place the former at a particular disadvantage. 97 The Court found this to be the case, for instance, with a measure which drew a distinction on the basis of residence. That requirement is liable to operate mainly to the detriment of nationals of other Member States, since non-residents are in the majority of cases foreigners 98 ; providers from other Member State are similarly disadvantaged by measures that seek to promote the official language(s) of the host state. 99 The same is true with regard to a requirement to be registered with the national authorities, 100 and more generally all other requirements which, even though applicable to all, are nevertheless capable of being more easily satisfied by providers established on national territory 101 or which otherwise favour them because of their establishment on that territory. 102 If, by contrast, an indistinctly applicable criterion is not inherently liable to place providers from other Member States at a disadvantage the number of axles on a lorry determining a road toll, for instance 103 then a statistical analysis of its impact will be required. 104 In this respect, there is a marked difference between the two types of rules. Distinctly applicable rules create a clear dividing line between domestic and foreign providers; they establish a separate and more burdensome legal regime for those from other Member States. An indistinctly applicable measure, by contrast, will be caught by art.56 only if it disadvantages primarily all undertakings from other Member States. 105 To put it differently, art.56 prohibits indistinctly applicable measures which operate mainly to the detriment of undertakings located other Member States. 106 This means that such rules tend to create mixed groups of those who are disadvantaged by the criterion used: most members of the group will be providers from other Member States, some might be domestic providers. By definition, the criterion used in an indistinctly applicable rule that results in disadvantages for providers from other Member States is not their nationality or place of establishment. For this reason, there is always the possibility that some providers from the Member State that imposes the rule will also suffer disadvantages as a consequence of the criterion. To use as an example the residence criterion from the Schmelz case: Ms Schmelz was a 97 Blanco Pérez (C-570/07 and C-571/07) [2010] 3 C.M.L.R. 37 at [119] (emphasis added). 98 Schmelz (C-97/09) [2011] S.T.C. 88 at [48]; Neukirchinger (C-382/08) [2011] 2 C.M.L.R. 33 at [34]; Josemans (C-137/09) [2011] 2 C.M.L.R. 33 at [59]. 99 UTECA v Administracion General del Estado (C-222/07) [2009] E.C.R. I-1407; [2009] 3 C.M.L.R. 2 at [27], [36]. Note that this does not automatically spell the illegality of such measures: this is a question of their justification, to be considered shortly. 100 See the lucid explanation by A.G. Tizzano in his Opinion in Withholding obligation (C-433/04) [2006] E.C.R. I at [36] [37]. 101 United Pan-Europe Communications (C-250/06) [2007] E.C.R. I at [49]. 102 Zeturf Ltd v Premier ministre (C-212/08) June 30, 2011 at [73] [75]: prohibition of offering bets on horse races over the internet. 103 Commission v Austria (Alpine transit tolls) (C-205/98) [2000] E.C.R. I-7367 at [76]. 104 See Enchelmaier, The awkward selling of a good idea, or a traditionalist interpretation of Keck (2003) 22 Y.E.L. 249, 270 with further examples and references. 105 Commission v Italy (Healthcare transport) (C-119/06) [2007] E.C.R. I-168* (summ. pub.) at [64]. The Court does not say what the legal position is if providers from other Member States are in a minority of those suffering disadvantages. An analogy with the case law on the prohibition of tax discrimination in art.110 (ex art.90) would indicate that an even distribution of advantages and disadvantages, according to objective criteria regardless of the providers place of establishment, would not be prohibited under Community law; see Chemial Farmaceutici SpA v DAF SpA (140/79) [1981] E.C.R. 1; [1981] 3 C.M.L.R. 350 at [14] [16]; John Walker v Ministeriet for Skatter og Afgifter (243/84) [1986] E.C.R. 875 at [21]; Commission v Greece (Ouzo) (C-230/89) [1991] E.C.R. I-1909; [1993] 1 C.M.L.R. 869 at [11] [12]. 106 ASM Brescia (C-347/06) [2008] E.C.R. I-5641; [2008] 3 C.M.L.R. 35 at [60]; in this and in the preceding judgment, the Court adds that unless justified, such unequal treatment in fact amounts to indirect discrimination based on nationality.

25 The ECJ s case law on services ( ) 633 German resident in Germany and letting an apartment in Austria (this was the service in the meaning of art.57 that she provided in that Member State). Because she was not resident in Austria, she did not qualify for certain tax advantages but neither would any Austrian national have qualified who, for whatever reason, also happened to live in Germany (or, for that matter, in any other Member State bar Austria). Finally and obviously, there are more Germans living in Germany, Italians living in Italy, etc., than there are Austrians resident in these countries. The Court, thus, still uses a classical discrimination assessment, albeit only among others. The decisive advantage of this over the various approaches discussed above is its simplicity: first, distinctly applicable measures always require a justification. Secondly, indistinctly applicable measures do so only if they are liable to impose on providers from other Member States adaptation costs which their domestic competitors do not have to bear. By contrast, one rule for all with the same factual repercussions (burdens) for all is permissible under art.56. Add to this, thirdly, outright prohibitions, as discussed above: these remain outlawed, even if they apply to, and affect, providers from the home and from the host Member State in the same way. This is not because they discriminate in any way (they do not), but because they undermine the creation of an internal market between Member States. 107 The superiority of the discrimination assessment is clearest with regard to cases that hinge on the outcome of the second step. All the vague expressions that the Court uses in the other formulae ultimately boil down to a question of unequal, that is, additional burdens imposed by indistinctly applicable measures on providers from other Member States. This is particularly true as far as a test is concerned that has recently become more prominent in the Court s jurisprudence, namely the market access formula. The Court deployed this in the Moped Trailers and Jet Skis judgments 108 as an apparent panacea for its case law on the free movement of goods post-keck. 109 As is evident from United Pan-Europe Communications Belgium, 110 this made its appearance slightly earlier in the case law on services. In this and the other examples discussed above, that formula is invariably followed by a discrimination test. We can only speculate whether this is because the Court has so little confidence in its latest innovation, or whether the solution could so simply be found using a tried and tested, if somewhat homely discrimination assessment. At any rate, there is little evidence that, as one commentator wrote, the discrimination test is clearly outrun by the restriction test or the market access test. 111 Justifications for restrictions The question whether a restriction is justified is the second stage in the Court s assessment under all of the approaches discussed above. This stage has two elements: there must be an acceptable ( legitimate ) 107 For details, see Enchelmaier, The awkward selling of a good idea, or a traditionalist interpretation of Keck (2003) 22 Y.E.L. 249, , in particular Moped trailers (C-110/05) [2009] E.C.R. I-519 at [37]; Mickelsson and Roos (C-142/05) [2009] E.C.R. I-4273 at [24]. 109 Keck and Mithouard (C-267/91 and C-268/91) [1993] E.C.R. I United Pan-Europe Communications (C-250/06) [2007] E.C.R. I at [33], [36]. 111 B. Kirchev, Freedom of Services and Abolition of Tax Barriers ECJ 9 November 2006, Case C-433/04 Commission v Belgium (2007) 34 L.I.E.I. 295, 298; similarly, S. Prechal and S. De Vries, Seamless web of judicial protection in the internal market? (2009) 34 E.L. Rev. 5, 8, argue that market access has become the main criterion for adjudicating national measures under the prohibitive rules on free movement, which entails that national rules preventing or hindering market access are unlawful, irrespective of whether they discriminate against other persons, services, or capital. To be fair, Kirchev also (at 300) criticises the ECJ for its lack of analytical rigour regarding discrimination, obstacles, or market access.

26 634 European Law Review ground of justification (the end or objective of the national measure), and that ground must be pursued by proportionate means. 112 Written and unwritten grounds of justification Article 62 (ex art.55 EC) makes the provisions of arts 51 and 52 (ex arts 45 and 46 EC) applicable to the Treaty s chapter on services. The wording of both provisions differs slightly: art.51 says that the freedom to provide services shall not apply to, and art.52 that it shall not prejudice, national measures as described in the two provisions. It is not entirely clear whether and how this difference does or should influence the assessment of measures under either article. Whenever it touches on the question, the Court merely paraphrases the wording of the Treaty. 113 Pragmatically, we can treat both in the same way, 114 as does the Court. Be that as it may, art.52 in particular highlights that these written grounds are capable of justifying special treatment for foreign nationals, that is, distinctly applicable measures. That leaves open two questions: first, on what grounds can indistinctly applicable measures be justified, and secondly, are the written ones the only grounds of justification for distinctly applicable measures? In the recent jurisprudence, neither question has received a fundamentally new answer, but the Court has added interesting nuances to both. The answer to the first question is well established in the Court s case law beginning with the judgments in Van Binsbergen in the field of services, and Cassis de Dijon for goods, 115 culminating in the Gebhard formula of that the Court has used ever since. In the period under review, the Court confirmed that any national measure liable to hinder or make less attractive the exercise of those freedoms can be justified only if it fulfils four conditions: it must be applied in a non-discriminatory manner 117 ; it must be justified by overriding reasons based on the general interest; it must be suitable for securing the attainment of the objective which it pursues; and it must not go beyond what is necessary in order to attain that objective. 118 In a small number of more recent judgments, the Court sums this up as follows: 112 FIFA v Commission (T-68/08) February 17, 2011 at [160]; UEFA v Commission (T-55/08) February 17, 2011 at [151]. 113 Liga Portuguesa de Futebol (C-42/07) [2009] E.C.R I-7633 at [55]: It is necessary to consider to what extent the restriction at issue in the main proceedings may be allowed as a derogation expressly provided for by Articles [51 and 52], applicable in this area by virtue of Article [62], or justified, in accordance with the case law of the Court, by overriding reasons in the public interest ; this is repeated in Ladbrokes Betting & Gaming and Ladbrokes International v Stichting de Nationale Sporttotalisator (C-258/08) [2010] 3 CM.L.R. 40 at [17]. A similar formula already appears in Placanica (C-338/04, C-359/04, and C-360/04) [2007] E.C.R. I-1891 at [45]. 114 Concurring, C. Ohler, ann. to Case C-42/07 [2010] Europarecht 253, See Cassis de Dijon (120/78) [1979] E.C.R. 649; Binsbergen v Bestuur van de Bedrijfsvereningung voor de Metaalnijverheid (33/74) [1974] E.C.R Gebhard v Consiglio dell Ordine degli Avvocati e Procuratori di Milano (C-55/94) [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603 at [37]. 117 By this, the Court means indistinct applicability; see Enchelmaier, The awkward selling of a good idea, or a traditionalist interpretation of Keck (2003) 22 Y.E.L. 249, ( indistinctly applicable ), as well as the wider analysis of the prohibition of discrimination in the case law on free movement at , and more recently Enchelmaier, The ECJ s recent case law on the free movement of goods (2007) 26 Y.E.L. 115, 127, with further references. The Court correctly, it is submitted renders this applicable to all persons and undertakings pursuing an activity in the territory of the host Member State in Commission v Spain (Maritime cabotage) (C-323/03) [2006] E.C.R. I-2161 at [45], as well as Paid leave fund (C-490/04) [2007] E.C.R. I-6095 at [64], and apply without distinction as to the Member State in which the undertaking at which those rules are directed is established in Dermoestética (C-500/06) [2008] E.C.R. I-5785 at [36]. 118 See, e.g. Private security undertakings (C-514/03) [2006] E.C.R. I-963 at [26] [28]; Maritime cabotage (C-323/03) [2006] E.C.R. I-2161 at [45]; Santos Palhota (C-515/08) [2011] 1 C.M.L.R. 34 at [45]; Engelmann (C-64/08) [2011] 1 C.M.L.R. 22 at [47].

27 The ECJ s case law on services ( ) 635 An obstacle can be justified under [Union] law only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions. 119 The italicised words are preferable to the traditional, somewhat opaque overriding reasons and mandatory [also referred to as imperative ] requirements that must apply to all providers. All of these expressions are shorthand for a purpose which is in the general interest and such as to take precedence over the requirements of free movement. 120 To say, however, that the purpose takes precedence over the concern for free movement only means that the restriction which the Member State has erected in pursuance of said purpose is justified. Nevertheless, is the obstacle justified? is the very question that we are trying to answer. To describe, therefore, the available grounds of justification as overriding reasons or mandatory requirements does not take us far beyond the starting line. What, then, are the available grounds of justification for indistinctly applicable measures? A number of those scrutinised by the Court in the period under review are discussed below. Can a definition be distilled from these examples? The answer is yes: objective considerations independent of the nationality of the persons concerned, as the Court now puts it. Unfortunately, this is as specific as it is going to get. The reason is that any legislation raises issues of inequality, i.e. of unequal treatment. The question of discrimination (that is, of unequal treatment without justification) arises with every rule. Distinctly applicable measures overtly (directly) treat providers from other Member States less favourably than those established on national territory: that is what they say, and that is what they do. A similar problem, nevertheless, crops up with indistinctly applicable measures. A given tax, for instance, will only ever be imposed on certain persons but not on others; on certain transactions to the exclusion of others; or on income above a certain threshold, while earnings below that remain exempt. The same is true of any legislation: as soon as its scope is defined, some people, actions, or situations are encompassed and some are not; some are in whereas the others are out. With indistinctly applicable rules that amount to an obstacle to the freedom to provide services, the criterion that determines in or out is not establishment in the Member State or abroad. The practical effects of the criterion chosen instead can, however, amount to the same, except that, as highlighted above, some providers established on national territory might also find themselves disadvantaged compared with their domestic competitors. Put simply, indistinctly applicable measures purport to treat everybody the same, but that is not always what they actually do. Still, some such inequality of outcomes is inherent in all legislation. There is no way Member States can avoid it short of having no rules at all, or only rules of an undifferentiated generality. Union law does not demand that Member States cease all meaningful, adequately detailed legislation. The aim of the four freedoms is limited to removing the legal obstacles to the creation of the internal market. The Treaty does so by granting equal rights of access, in law and in fact, to all operators established within the Union. What justifications for restrictions on the freedom to provide services are available to Member States follows from this premise. In the case of distinctly applicable measures, Member States openly enact legislation that is diametrically opposed to the creation of a market common to all the Member States, which is one of the core aims of the Union. Such legislation can only be allowed exceptionally. The few grounds that are acceptable must 119 Neukirchinger (C-382/08) [2011] 2 C.M.L.R. 33 at [35]; Zanotti (C-56/09) [2010] 3 C.M.L.R. 34 at [43]; Commission v Germany (School fees) (C-318/05) [2007] E.C.R. I-6957; [2008] All E.R. (EC) 556 at [133]; Schwarz (C-76/05) [2007] E.C.R. I-6849 at [94] (emphasis added). For simplicity s sake, we can refer to the whole passage as the short formula. 120 Thus the Court in Cassis de Dijon (120/78) [1979] E.C.R. 649 at [14].

28 636 European Law Review be the same, and enumerated in a binding way, for all Member States. What is more, the permissible grounds must be construed narrowly. 121 With indistinctly applicable measures, things are different. As some unequal treatment is inherent in any legislation, the justifications for such measures must be as manifold as the objectives that lead the Member States to adopt each piece of legislation. The ends of the legislation, being ex hypothesi objective considerations independent of the nationality of the persons concerned, are at the same time the grounds on which that legislation can be justified, provided the legislature has pursued these ends by proportionate means. This is because to be justified, in the most general sense, means to seek acceptable ends by acceptable means. From this, it also follows that the written grounds of arts 51 and 52, too, can justify indistinctly applicable measures. These are, at least as a starting point, less harmful to the internal market. If they have restrictive effects, they must be able to benefit from the same grounds that can make such effects acceptable if they emanate from distinctly applicable measures. This is also in keeping with the Court s jurisprudence, which applies the written grounds to indistinctly applicable measures. 122 Beyond the written grounds, the catalogue of objective considerations is open 123 : the Court recognises 124 such considerations only in the limited sense that it refuses certain justifications outright, as we shall see shortly. Otherwise, it merely takes note of the Member State s objectives, and checks whether the measures adopted for their realisation are in keeping with the principle of proportionality. Apart from this, the Court does not endorse or approve of national objectives: policy choices remain for the Member States to make, albeit within certain confines. The case law in the period under review largely confirms these results. In a number of judgments, the Court held that distinctly applicable measures can be justified only on written grounds of justification, whereas indistinctly applicable measures may rely on any overriding requirement relating to the public 121 Posting of Polish workers (C-546/07) [2010] 2 C.M.L.R. 36 at [48]. For a recent example, see Tax on lottery winnings (C-153/08) [2009] E.C.R. I-9735 at [40], where the Court refused to read protection of public health so widely as to encompass measures against the addiction to gambling, at least in the absence of any evidence that such addiction was so endemic as to pose a danger to public health. Similarly, the Court excluded from the concept of the exercise of official authority (arts 62, 51) functions that are merely auxiliary and preparatory vis-à-vis an entity which effectively exercises official authority by taking the final decision; Organic production inspections (C-393/05) [2007] E.C.R. I-10195; [2008] 1 C.M.L.R. 42 at [35] [36]; Organic production inspections (C-404/05) [2007] E.C.R. I at [37] [38], and providers of ambulance services were not encompassed by this concept merely because they were allowed to use flashing blue lights or sirens and had the right of way with priority under the German Highway Code: Commission v Germany (Emergency services) (C-160/08) April 29, 2010 at [81] [85], because neither confers on those activities the necessary direct and specific connection with the exercise of public authority. For further examples, see Organic production inspections (C-404/05) at [47] [48]; Private security services (C-465/05) [2007] E.C.R. I at [33] (surveillance and protection services); Josep Peñarroja Fa (C-372/09 and C-373/09) [2011] 2 C.M.L.R. 49 at [42] [44] (court translators); and for a similarly narrow reading of public policy and public security (arts 62, 52), see Servizi Ausiliari Dottori Commercialisti (C-451/03) [2006] E.C.R. I-2941 at [45] [48]; Posting of 3rd country workers (C-168/04) [2006] E.C.R. I-9041 at [63] [65]; and Boilers and pressure tanks (C-257/05) [2006] E.C.R. I-134* at [25] [29] (boiler inspections). The same principle applies to provisions in Directives allowing Member States exceptions in a harmonised field: Posted workers (C-319/06) [2008] E.C.R. I-4323 at [26] [30], because the provisions of a Directive have to interpreted in the light of the Treaty provisions which the Directive is designed to implement: Laval (C-341/05) [2007] E.C.R. I at [61]. 122 Aragonesa de Publicidad Exterior (C-1/90 and C-176/90) [1991] E.C.R. I-4151; [1994] 1 C.M.L.R. 887 at [13], for goods; Questore di Verona v Zenatti (C-67/98) [1999] E.C.R. I-7289; [2000] 1 C.M.L.R. 201 at [28], for services; Centros Ltd v Erhvervs- og Selskabsstyrelsen (C-212/97) [1999] E.C.R. I-1459; [1999] 2 C.M.L.R. 551 at [34], for establishment. In the same sense already C.-D. Ehlermann, Die Bedeutung des Artikels 36 für die Freiheit des Warenverkehrs (1973) 8 Europarecht 1, Concurring, Gormley, EU Law of Free Movement of Goods and Customs Union, 2009, para Thus the Court in Tax on lottery winnings (C-153/08) [2009] E.C.R. I-9735 at [36].

29 The ECJ s case law on services ( ) 637 interest. 125 Occasionally, however, we find the Court, in its assessment of distinctly applicable measures, discussing grounds of justification that are reserved for indistinctly applicable measures, at least going by the judgments just mentioned. The Court thus pondered whether (and ultimately denied that) distinctly applicable rules in Spain on the tax deductibility of expenditure on research and development, depending on whether the work was carried out inside or outside of Spain, could be justified by that Member State s concern to promote research and development, and to combat tax evasion. 126 The authority of the latter judgment is not so much weakened by the fact that it remained outside the Reports. One should hope that the judges deliberate no less carefully on cases that proceed to judgment without an opinion. Crucially, it is baffling that the Court, after a lengthy exchange of arguments by the parties, first convincingly decides (at [20] [25]) that the Spanish measures were distinctly applicable. Then (at [32]) it cites the Gebhard formula, 127 according to which a measure must be indistinctly applicable for it to benefit from grounds of justification beyond than those listed in the Treaty. Finally, the Court discusses (at [33] [43]) the promotion of R & D and the prevention of tax evasion. This approach is contradictory. It is unlikely that the Court wanted to put on an entirely new footing its jurisprudence regarding the available grounds of justification. It would not have done this in such a cavalier way (that is, without even an attempt at an explanation), and certainly not by means of an unpublished judgment that could not benefit from an Advocate General s opinion. The most benign interpretation seems to be that we should not take this judgment as a considered contribution by the Court to the debate, but as being rendered per incuriam. Such occurrences are mercifully rare. Nevertheless, this judgment is not the first to raise the question whether distinctly applicable measures should also be amenable to a justification on grounds beyond those expressly mentioned in the Treaty. Notable among the latter are the protection of the environment and consumer protection. 128 In the past as in the period under review, the Court in most judgments gave a negative answer. Yet its case law is not entirely consistent, and some Advocates General were more positive, as were some commentators. 129 Others opposed any extension of the available grounds. 130 Pragmatically, to confine distinctly applicable measures to the grounds in arts 51 and 52 appears a prudent course. There is no reason why it should be made easier for Member States to adopt protectionist legislation. The weightier the concern the protection 125 Servizi Ausiliari Dottori Commercialist (C-451/03) [2006] E.C.R. I-2941 at [36] [37]; Posting of Polish workers (C-546/07) [2010] 2 C.M.L.R. 36 at [48]: It follows from Article [52 TFEU], which must be interpreted strictly, that discriminatory rules may be justified only on grounds of public policy, public security or public health ; likewise in Laval (C-341/05) [2007] E.C.R. I at [117]; Engelmann (C-64/08) [2011] 1 C.M.L.R. 22 at [34]; and Tax on lottery winnings (C-153/08) [2009] E.C.R. I-9735 at [36] [37] and [45]. 126 Deduction of R&D costs (C-248/06) [2008] E.C.R. I-47* at [32] [34]. 127 Gebhard (C-55/94) [1995] E.C.R. I-4165 at [37]. 128 On the former, see Presidente del Consiglio dei Ministri v (C-169/08) [2009] E.C.R. I-10821; on the latter, Servizi Ausiliari Dottori Commercialisti (C-451/03) [2006] E.C.R. I-2941; Cipolla (C-94/04 and C-202/04) [2006] E.C.R. I For an overview of the Court s earlier jurisprudence on this question, and an impressive argument in favour of going beyond the written grounds, see [32] [41] of A.G. Jacobs s Opinion in Danner v Finland (C-136/00) [2002] E.C.R. I-8147; [2002] 3 C.M.L.R. 29. A proponent of even longer standing of this approach is Oliver, Free Movement of Goods in the European Union, 2010, paras 8.04 to Recently, A.G. Mengozzi contemplated this suggestion (but declined to follow it) in Tax on lottery winnings (C-153/08) [2009] E.C.R. I-9735 at [80] [83] of his Opinion, as did A.G. Kokott in Presidente del Consiglio dei Ministri (C-169/08) [2009] E.C.R. I at [95] of her Opinion: Under Article [52](1) in conjunction with Article [62], and specifically in the field of the protection of public health, otherwise than in that of the protection of the environment, measures are expressly permitted which are specifically directed against foreigners (emphasis added). 130 L. Gormley, The Definition of Measures Having Equivalent Effect in Continuity and Change in EU Law, 2009, p.189 at p.190: [T]here is still a clear distinction between the Treaty-based justifications and those finding their basis solely in case law under the mandatory requirements ; to assimilate them is, it is respectfully submitted, a fundamentally flawed approach.

30 638 European Law Review of the environment, say the less convincing will be the case that domestic providers need not contribute their share to its promotion. 131 Conspicuously, the Member States retained arts 51 and 52 throughout all the Treaty revisions over the decades. On those occasions, a number of issues were recognised as being of concern to the Community/Union, notably the environment. It is true that Treaty negotiations are seldom guided by legal niceties thrown up by the jurisprudence, let alone by its academic critics; the reform of what is now art.263(4) (ex art.230(4) EC) might be seen as a rare exception. Nevertheless, the preservation of the wording can be taken as an indication that the Member States prefer the traditional limitation. The opposite suggestion, that is, to restrict the grounds of justification for indistinctly applicable measures, was canvassed in one opinion by A.G. Tizzano. In issue was a requirement that providers of services in Belgium be registered with the Belgian tax authorities. Anyone drawing on the services of a provider not so registered had to withhold a certain percentage of the sums due to that provider, and was jointly liable with the provider for the latter s tax debts. Although indistinctly applicable, this requirement in practice worked to the detriment of providers not established in Belgium. 132 A.G. Tizzano derived from this that the measures at issue apply solely to operators not registered in Belgium. As a consequence, a criterion of that nature is of itself capable of giving rise to disparity of treatment between operators on the basis of their country of establishment or citizenship. He concluded that the measures at issue may be permitted only if they are justified by one of the derogations specifically provided for by Article [52]. 133 The Advocate General s concern is understandable: if the criterion deployed in an indistinctly applicable measure creates the same outcome as if the national rule were distinctly applicable, one might indeed wonder why its justification should not be subject to the same strictures. After all, some requirements residence or registration in particular come very close in substance to demanding establishment on national territory. The traditional differentiation between the two types of rules only seems to invite semantic trickery on the part of Member States. Yet, however thin the difference may be, registration does not equal establishment. What is more, how close do the factual outcomes under an indistinctly applicable measure have to come to the neat division between providers established on national territory and everybody else that results from a distinctly applicable rule? In the interest of legal certainty, very close will not do as an answer. Arguably, as long as there is only the possibility that the criterion creates a mixed group of providers, 134 the Member State s purported ground of justification should be taken at face value. This does not mean that the measure has passed muster at this stage already. If the criterion is spurious, it will fail the proportionality test. Unacceptable grounds It will be remembered that the Court s short formula 135 in its second limb speaks of the aim of the national measure. This aim is the same as the considerations mentioned in the first limb of the said formula, namely the objective that the Member State seeks to meet with its legislation. To this, the Court adds that the aim must be a legitimate one. In the judgment on the Belgian rules governing occupational pension schemes, we find a more elaborate version of this. The Court there held that obstacles can be allowed only 131 Occasionally, of course, a problem may be localised abroad, as in Commission v Germany (Crayfish) (C-131/93) [1994] E.C.R. I-3303; [1995] 2 C.M.L.R. 278, or in the cases dealing with the BSE crisis of the 1990s which originated in Britain; see, e.g. R. v Ministry of Agriculture, Fisheries and Food Ex p. National Farmers Union (C-157/96) [1998] E.C.R. I-2211, and United Kingdom v Commission (BSE) (C-180/96) [1998] E.C.R. I-2265; [1998] 2 C.M.L.R. 1125, but this will rarely be true of environmental concerns. 132 See section More difficult to provide services between Member States above. 133 Withholding obligation (C-433/04) [2006] E.C.R. I-10653, Opinion at [36] [37]. 134 See section The default position: the discrimination test above. 135 See Neukirchinger (C-382/08) [2011] 2 C.M.L.R. 33 at [35].

31 The ECJ s case law on services ( ) 639 if they pursue a legitimate objective compatible with the Treaty, are justified by imperative requirements in the general interest, [and are proportionate]. 136 There is some redundancy in this passage: legitimate aims and overriding reasons says the same thing twice, as we saw above. Leaving this aside, the Court first used the topos of a legitimate aim compatible with the Treaty in its case law on the prohibition of tax discrimination, art.110 (ex art.90 EC). The Court does not explain why it transposed this into the present context. On close inspection of the older case law, however, it turns out that the Court does not mean to say that the Member States have to scour about for some provision in the Treaty endorsing the aims of the measure that they propose to adopt. All they have to make sure is that they are not going against a rule of the Treaty or of secondary Union law. Above all, in the absence of specific provisions in Regulations or Directives, this means that Member States must not discriminate against goods or services from other Member States. 137 Occasionally, however, one finds in the Treaty specific provisions other than the prohibition of discrimination. The Court thus found that tax incentives which Spain granted to ensure that research and development activities take place in Spain rather than in other Member States were contrary to the Treaty s provisions on research and technological development in art.179(1) and (2) (ex art.163(1) and (2) EC. This tainted the otherwise acceptable end of encouraging such activities: the Treaty seeks to support Member States enabling undertakings to exploit the internal market potential to the full. 138 Apart from this, three types of objectives have traditionally been rejected outright by the Court, and this has been confirmed in the period under review. These are: economic protectionism, the stabilistaion of tax revenue alone and mere administrative convenience. As far as economic protectionism is concerned, Italy argued unsuccessfully that renewing several hundred licences for horse-race betting operations without inviting any competing bids was justified by the need to ensure continuity, financial stability and a proper return on past investments for licence holders. 139 France saw itself censured for national legislation that made the grant of a licence for artists agencies subject to the needs of the market, 140 and for its restrictive regime on horse racing which was purportedly justified, among others, by the revenue it produced and which France invested in rural development projects. 141 Similarly unacceptable was the contention, again by the Italian Government, that an already sufficient supply could justify the denial of (further) licences to organise games of chance. 142 The Court s firmness is to be welcomed: national markets are not the fiefdoms of the providers established there. The idea of the internal market is to allow competitors from other Member States to vie with the incumbents for customers, to the benefit not only of those customers, but also of the European economy 136 Occupational pension schemes (C-522/04) [2007] E.C.R. I-5701 at [47]; largely identical in Bovine insemination centres (C-389/05) [2008] E.C.R. I-5337 at [67]. 137 See, e.g. Chemial Farmaceutici (140/79) [1981] E.C.R. 1, where the Court translates the phrase in [14]: pursues economic policy objectives which are themselves compatible with the requirements of the Treaty, in [15] when it says that the choice to promote the distillation of agricultural products as against the manufacture of alcohol from petroleum derivatives does not conflict with the rules of [Union] law or the requirements of a policy decided within the framework of the [Union]. 138 Deduction of R&D costs (C-248/06) [2008] E.C.R. I-47* at [33]. 139 Commission v Italy (Horseracing licences) (C-260/04) [2007] E.C.R. I-7083; [2007] 3 C.M.L.R. 50 at [35]; similarly in Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien (C-338/09) [2010] C.M.L.R. 23 at [51]: profitability of a competing bus service. Nevertheless, the length of the initial concession may reflect the time the concessionaire needs to recoup the required investment: Engelmann (C-64/08) [2011] 1 C.M.L.R. 22 at [46], [48]. The case above refers to a situation where the investment had already been amortised, and the extension allowed the licence holders a gratis rent on top. 140 Artists agencies (C-255/04) [2006] E.C.R. I-5251 at [29]. 141 Zeturf (C-212/08) June 30, 2011 at [51] [52]. 142 Placanica (C-338/04, C-359/04, and C-360/04) [2007] E.C.R. I-1891 at [51]; ultimately, the Court found the licensing system justifiable on other grounds.

32 640 European Law Review as a whole. Again, this only means equal rights of access for all. It does not deprive Member States of the possibility to regulate the activities in question. It only precludes regulation that for no objective reason is more favourable to domestic providers than to those from other Member States. With regard to the second heading, the stabilisation of tax revenues, the Court, when assessing the German authorities refusal to grant a tax exemption to foundations with limited liability to tax in Germany, left no doubt that a, reduction in tax revenue cannot be regarded as an overriding reason in the public interest which may be relied on to justify a measure which is, in principle, contrary to a fundamental freedom. 143 A refusal, again by the German authorities, to allow parents tax relief on school fees incurred in respect of their children attending schools in other Member States was met with a similar rebuke; the grant of that relief was reserved to taxpayers who had paid school fees to certain German private schools. The German Government argued that every Member State was entitled to ensure that the granting of aid in relation to school fees did not become an unreasonable burden that could have consequences on the overall level of aid which that State could grant. The Court sternly held that, prevention of a reduction in tax receipts is not one of the reasons set out in Article [52], read in conjunction with Article [62], and neither can it be regarded as an imperative reason in the public interest. With regard to the substance of the German Government s position, however, the Court was more conciliatory. It held that, in order to avoid an excessive burden, it was legitimate for a Member State to limit the amount deductible in respect of school fees to a given level, corresponding to the tax relief granted by that state and in accordance with certain values of their own, for the attendance of schools situated in its territory. This would constitute a less restrictive method than refusing to grant the tax relief in question. At any rate, a refusal of all tax relief was disproportionate. 144 This judgment is an instance of the Court, as one commentator put it, actually listening to a Member State s economic arguments, and refuting rather than simply dismissing them. 145 This is because here, the fiscal argument is a function of a question of educational policy and its funding: to what extent should a Member State put a premium (in the shape of the tax relief) on parents opting out of the state education system, given that this relief takes away from the taxes which the Member State needs to finance its education system for the vast majority who stay within that system? The Government s contention was, in essence, that unless a tight rein were kept on such opt-outs, the state system would at some point become financially unsustainable. Such an argument is far from outrageous: the Treaty itself contains a similar idea, albeit in a somewhat different context. Article 106(2) (ex art.86(2) EC) subjects certain undertakings to the rules on competition (only) in so far as the application of such rules does not obstruct the performance, in law or in fact, of 143 Centro di Musicologia Walter Stauffer v Finanzamt Munchen für Korperschaften (C-386/04) [2006] E.C.R. I-8203; [2009] 2 C.M.L.R. 31 at [59]; substantially identical formula in Tankreederei I SA v Directeur de l Administration des Contributions Directes (C-287/10) [2011] C.M.L.R. 29 at [27]. Note that this refers only to the inflation of the amount of tax to be collected. Member States remain justified in taking proportionate measures that ensure effectiveness of fiscal supervision and effective collection of income tax, and prevent tax avoidance: Life assurance (C-150/04) [2007] E.C.R. I-1163 at [51] [56]; KP Scorpio Konzertproduktionen (C-290/04) [2006] E.C.R. I-9461 at [35] [38]; Schmelz (C-97/09) [2011] S.T.C. 88 at [57], [63]. 144 Schwarz (C-76/05) [2007] E.C.R. I-6849 at [77] [81]; likewise in School fees (C-318/05) [2007] E.C.R. I-6957 at [95] [99]. 145 Nic Shuibhne, ann. to C-76/05 in (2008) 45 C.M.L. Rev. 771, 784. As the same author observes: And this is where the States light-touch engagement with serious questions about budgetary priorities and balance lets them down. If the Court s dismissal of the justification seems light-touch in turn, it should not seem surprising but be seen instead within a structure of cause and effect.

33 The ECJ s case law on services ( ) 641 the particular tasks assigned to them. By analogy, fiscal considerations are permissible if funding shortages threaten to undermine a policy choice that a Member State has legitimately made. Part of that choice is what resources the Member State wants to allocate to the particular policy. The German Government did not, therefore, even have to claim that the state school system would have collapsed if any relief for education at foreign schools had been granted. It would have been enough to argue that significant resources would have to be found that had been earmarked for other purposes: this hassle, too, is an obstruction (to cite art.106(2)) of the chosen policy. 146 What is more, the educational values which the German policy sought to promote could equally be met by schools in other Member States, following approval by the German authorities if necessary. Also, the relief granted on their fees could be capped to the relief available for education at private schools in Germany. In other words, the policy was in principle legitimate, but Germany had realised it with a narrowly national outlook rather than with the perspective of the internal market. Here again, therefore, equal treatment for all providers regardless of their place of establishment is key. Lastly, Member States cannot marshal pure administrative expedience as a justification of restrictions that they impose on the freedom to provide services. A requirement in Austria that doctors maintain an account with a bank on national territory, so that the authorities could control whether the doctors social contributions were of the prescribed proportion to their earnings, fell at this hurdle. 147 Likewise, Spain could not argue that in view of the overall situation in the postal sector and the liberalisation achieved so far, it was convenient to reserve cross-border mail services to the state-controlled universal provider. 148 France s argument was dismissed that the supervision of a single operator offering bets on horse races was less cumbersome than the control of a greater number of such operators. 149 Having to adapt its ways to the arrival of providers from other Member States will always cause some inconvenience for the national administration. This is an imposition, however, with which the creation of the Internal Market requires them to live (up to a point). 150 The requirement(s) of proportionality Having considered the acceptable ends under the two preceding headings, we can now turn to the question what makes the means acceptable?. As has been seen above, the principle of proportionality provides the answer. That principle, 146 Similarly, under art.106(2) it is not necessary that the financial balance or economic viability of the undertaking entrusted with the operation of a service of general economic interest should be threatened: International Mail Spain v Administración del Estado (C-162/06) [2007] E.C.R. I-9911; [2008] 4 C.M.L.R. 1 at [35], [39]. 147 Commission v Austria (Doctors compulsory account) (C-356/08) [2009] ECR I-108* (summ. pub.) at [46]; same for a requirement on estate agents to be established in Belgium in Estate agents (C-518/09) July 21, 2011 at [66]. 148 International Mail Spain (C-162/06) [2007] E.C.R. I-9911 at [41] this is so notwithstanding the proviso regarding the financial balance of the undertaking concerned. 149 Zeturf Ltd (C-212/08) June 30, 2011 at [48]. 150 See Building services (C-458/08) November 18, 2010 at [105]: [T]hose difficulties, which exist to some extent in all activity [sic] sectors in respect of which conditions of access have not been harmonised at European Union level, cannot exempt a Member State from the obligation to avoid making the issue of authorisation to a service provider already established in another Member State subject to requirements which duplicate the equivalent evidence and safeguards required in the Member State of establishment. Similarly, Commission v Luxembourg (Laboratory analyses) (C-490/09) January 27, 2011 at [45], and Watts (C-372/04) [2006] E.C.R. I-4325 at [121] and [147]: [T]he achievement of the fundamental freedoms guaranteed by the EC Treaty inevitably requires Member States to make some adjustments to their systems of social security. It does not follow that this would undermine their sovereign powers in this field.

34 642 European Law Review requires that the measures adopted be appropriate to secure the attainment of the objective they pursue and not go beyond what is necessary in order to attain it. 151 Instead of appropriate, we occasionally find suitable, 152 or likely, 153 which is clearer. Once, the Court also mentioned reasonableness as a third element of proportionality 154 without, however, in any way elaborating on it. 155 With regard to the first requirement of proportionality, namely appropriateness or suitability, the period under review brought not quite an innovation, but certainly a clarification. The Court held that national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner. 156 This was said in the context of conflicting aims which Member States pursued in their regulation of betting and gaming. On the one hand, they wanted to protect the consumer and the wider public against the dangers of addiction and fraud in connection with that industry, and therefore sought to limit its activities; on the other hand, they could not resist the temptation of the huge takings that could be had in the form of taxes or profits, which led them to expand and promote the very same activities (typically by state-owned monopoly providers). At least part of the income thus generated was usually spent on a number of worthy causes. As seen above, the restrictions imposed in this context did not serve the aim of a mere generation of revenue, which would have been unacceptable; the financing of any social activities must constitute an ancillary beneficial consequence of, and not the substantive justification for, a restrictive policy Artists agencies (C-255/04) [2006] E.C.R. I-5251 at [44]; Cipolla (C-94/04 and C-202/04) [2006] E.C.R. I at [64] [65]; Posting of 3rd country workers (C-168/04) [2006] E.C.R. I-9041 at [37], and Posting of 3rd country workers (C-244/04) [2006] E.C.R. I-885 at [31], all with further references. 152 Cipolla (C-94/04 and C-202/04) [2006] E.C.R. I at [64]; Commission v Belgium (Must-carry status) (C-134/10) March 3, 2011 at [43]. 153 Josep Peñarroja Fa (C-372/09 and C-373/09) [2011] 2 C.M.L.R. 49 at [56]. 154 Watts (C-372/04) [2006] E.C.R. I-4325 at [110]: the requirement that the assumption of costs by the national system of hospital treatment provided in another Member State be subject to prior authorisation appears to be a measure which is both necessary and reasonable. 155 This third element is well established in the German doctrine of Verhältnismäßigkeit, from which the Court s case law is derived; see also J. Snell, Goods and Services in EC Law: A Study of the Relationship between the Freedoms (Oxford: Oxford University Press, 2002), pp As an example under Union law, one might perhaps cite Houtwipper (C-293/93) [1994] E.C.R. I-4249; [1995] All E.R. (EC) 163 at [24] [26]: even though the compulsory hallmarking of (among others) cheap jewellery is suitable and necessary to indicate its date of manufacture, the typical consumer cares little about this, so that the burden resulting from the hallmarking bears no reasonable proportion to the minimal benefit derived from it. 156 Liga Portuguesa de Futebol (C-42/07) [2009] E.C.R I-7633 at [61]; Presidente del Consiglio dei Ministri (C-169/08) [2009] E.C.R. I at [42]; Placanica (C-338/04, C-359/04, and C-360/04) [2007] E.C.R. I-1891 at [53]; Ladbrokes (C-258/08) [2010] 3 CM.L.R. 40 at [28]; Criminal proceedings against Sjöberg and Gerdin (C-447/08 and C-448/08) [2011] 1 C.M.L.R. 11 at [40]; Winner Wetten GmbH v Burgermeisterin der Stadt Bergheim (C-409/06) [2011] 1 C.M.L.R. 21 at [68]; Stoß v Wetteraukreis (C-316/07, C-358/07, C-359/07, C-360/07, C-409/07 and C-410/07) [2011] 1 C.M.L.R. 20 at [83]; Engelmann (C-64/08) [2011] 1 C.M.L.R. 22 at [35]; Josemans (C-137/09) [2011] 2 C.M.L.R 33 at [70]; Zeturf (C-212/08) June 30, 2011 at [57]. The first (and until C-338/04 the only) judgment with this formula was Criminal proceedings against Gambelli (C-243/01) [2003] E.C.R. I-13031; [2006] 1 C.M.L.R. 35 at [67]. The Court later as predicted by A. Cuyvers, ann. to Joined Cases C-338/04 etc. (2008) 45 C.M.L. Rev. 515, 528 transposed this to the freedom of establishment in Hartlauer Handelsgesellschaft mbh v Wiener Landesregierung (C-169/07) [2009] E.C.R. I-law in Petersen v Berufungsausschuss für Zahnarzte für den Bezirk Westfalen-Lippe (C-341/08) [2010] 2 C.M.L.R. 31 at [53]; and to the free movement of goods in Josemans (C-137/09) [2011] 2 C.M.L.R 33 at [70]. For traces of this in the older jurisprudence, see G. Mathisen, Consistency and coherence as conditions for justification of Member State measures restricting free movement (2010) 47 C.M.L. Rev. 1021, Stoß (C-316/07) [2011] 1 C.M.L.R. 20 at [104]; Ladbrokes (C-258/08) [2010] 3 CM.L.R. 40 at [28].

35 The ECJ s case law on services ( ) 643 There was, therefore, a genuine conflict of aims, none of which had to yield, as a matter of law, to the other. Each, nonetheless, undermined the other, so that the Member State could from the outset not hope to realise either. Each measure, considered in isolation, was not unsuitable. It was only its legislative context, the conflicting aim pursued simultaneously, that prevented both from being effective. Effectiveness, that is, the capacity to achieve a given objective, is what the first limb of the principle of proportionality is about. The Court s new formula highlights more clearly than was the case before that the proportionality of a measure cannot sensibly be assessed as if it existed in a legal vacuum. 158 In principle, this is not a new insight at all. The long-established test for indirect discrimination, too, is all about context, namely about the uneven consequences that a seemingly innocuous criterion in one Member State s law can have for those who come from a different regulatory environment in another Member State. It is only due to the coincidences of litigation that, so far, we had only seen the paradigm that a Member State s legislation was capable of justification on several grounds that were complementary or at least neutral to one another, rather than clashing. From this we should not, however, jump to the conclusion that the question of consistency only arises in a situation where the Member State pursues conflicting aims. The question is not so limited: it can always be asked whether the Member State has adopted (or failed to adopt) additional measures, or limited (or extended) the original measure so as to undermine, objectively (i.e. regardless of an intention to that effect), its own policy. An example regarding the protection of public health can be found in Corporación Dermoestética, where the Court branded as inconsistent a prohibition in Italy of advertisements for medical and surgical treatments on national television, while such advertisements could lawfully be broadcast on local television. 159 A similar example of a measure whose limited scope made it fall short of achieving its aim is the regional tax on stopovers by ship or aircraft on Sicily. As mentioned earlier, this was higher for providers established outside that region of Italy (including in other Member States) than for those established within. As a rule that was supposed to protect the environment, this was inconsistent: providers from within the region cause as much pollution as those from outside. Their different tax domiciles were no objective reason to treat the former more generously than the latter. This difference was unrelated to the objective pursued. 160 That judgment, however, also shows that consistency is only a new and catchy label for something familiar, rather than an entirely new departure. The judgment does not use the term, but asks in the manner traditional for tax cases whether there is an objective difference in the situation, with regard to the levy in question, which would justify different treatment between the various categories of taxpayer. 161 This, of course, is nothing but a discrimination test: treating providers differently on the basis of their tax domiciles does nothing to protect the environment (i.e. is unsuitable for its protection) as it will at most deflect demand from the dearer to the cheaper providers. The burden imposed on providers from outside Sicily is, hence, disproportionate, and the unequal treatment therefore not objectively justified. The second requirement of proportionality is that the measures adopted restrict the freedom to provide services no further than is necessary to achieve the Member State s legitimate objective. In its assessment, 158 H.-G. Dederer, Stürzt das deutsche Sportwettenmonopol über das Bwin-Urteil des EuGH? [2010] Neue Juristische Wochenschrift 198, 200 sub c)bb), uses yet another metaphor to express the same idea: the ECJ, he says, takes the Member State strictly by its own word; the Member State cannot claim to pursue a legitimate aim if it acts inconsistently. 159 Dermoestética (C-500/06) [2008] E.C.R. I-5785 at [39]; conversely, however, Member States may adopt distinctly applicable measures in order to combat the trafficking from abroad of narcotics or prostitutes, while allowing or tolerating prostitution or consumption of some drugs internally, withouth being censored for acting inconsistently: Josemans (C-137/09) [2011] 2 C.M.L.R 33 at [76] [79]. 160 Presidente del Consiglio (C-169/08) [2009] E.C.R. I at [43] [45]. 161 Presidente del Consiglio (C-169/08) [2009] E.C.R. I at [35].

36 644 European Law Review the Court looks for a less burdensome alternative that is equally capable of realising the Member State s policy choice. 162 Examples abound in the recent case law. For instance, in its judgment on the compatibility with art.56 of certain rules governing the private security industry in Spain, the Court held that the setting of a minimum share capital to ensure the protection of creditors was excessive. Instead, it would suffice to allow the lodging of security. What is more, in light of the increasing ease of cross-border debt recovery and execution of foreign judgments within the Union, Spain was not allowed to insist that said security be lodged with a Spanish bank rather than with one in the provider s home Member State. 163 Likewise, the Court found that a simple prior declaration to the host Member State s authorities concerning the legality of the employment situation of posted workers, followed by spot checks after the work has begun, is a proportionate alternative to comprehensive up-front checks as a precondition for the work to go ahead. 164 In the same vein, the Court held that an authorisation procedure and controls during the conduct of boiler inspections in Austria by providers from other Member States were less restrictive than the requirement that providers be established on Austrian territory. 165 From these and other examples, it follows that the protection offered by the proportional alternative need not in every respect be identical with that guaranteed by the measure under scrutiny. There is no point in looking for an abstract answer to the question how similar is similar? The Court does not ask this question, and it should not. This is because a rough and ready method is at hand: what is safe, healthy, fair, etc. in one Member State is prima facie acceptable in other Member States, too. The Court alludes to this when, in the judgment on the Spanish rules just mentioned, it uses a formula that has already been discussed above 166 : An obstacle may be justified only in so far as the public interest relied on is not safeguarded by the rules to which the provider of the service is subject in the Member State in which he is established. 167 That does not preclude Member States from arguing that their chosen level of protection is not adequately ensured by the home Member State s rules. The starting point, however, is the mutual recognition of Member States standards. As a consequence, a national measure which in effect duplicates supervision that has already been carried out in the provider s home Member State cannot be considered necessary to attain the objective pursued. 168 The flipside of this is that providers established in other Member States, having complied with their home state s regulations, must be given the chance to prove what guarantees they can already furnish 169 ; in particular, national authorities must ensure that qualifications obtained in another Member State are 162 A subdivision of this has developed, in the case law concerning taxation, in the requirement that for a measure to be justified on grounds of the cohesion of the national tax system, there must be a direct link between the tax concession concerned and the offsetting of that concession by a particular tax levy; where there is no such link, the burden is excessive, see Jundt (C-281/06) [2007] E.C.R. I at [68] [70]; Jobra Vermogensverwaltungs-Gesellschaft mbh v Finanzamt Amstetten Melk Scheibbs (C-330/07) [2008] E.C.R. I-9099; [2009] 1 C.M.L.R. 41 at [34]; Presidente del Consiglio dei Ministri (C-169/08) [2009] E.C.R. I at [47] [48]. 163 Private security undertakings (C-514/03) [2006] E.C.R. I-963 at [42] [43]. 164 Cipolla (C-94/04 and C-202/04) [2006] E.C.R. I at [40] [41]; Posting of 3rd country workers (C-219/08) [2009] E.C.R. I-9213 at [15] [16]; Santos Palhota (C-515/08) [2011] 1 C.M.L.R. 34 at [33] [34], [48], [51]. 165 Boilers and pressure tanks (C-257/05) [2006] E.C.R. I-134* at [25] [29]. 166 See section More difficult to provide services between Member States above. 167 Private security undertakings (C-514/03) [2006] E.C.R. I-963 at [43] (emphasis added); Josep Peñarroja Fa (C-372/09 and C-373/09) [2011] 2 C.M.L.R. 49 at [54]. 168 Private security services (C-465/05) [2007] E.C.R. I at [63]; Neukirchinger (C-382/08) [2011] 2 C.M.L.R. 33 at [38] [39], [42]; for the necessary taking into account of provisions of the home state granting social protection to workers posted in the host state: see Laval (C-341/05) [2007] E.C.R. I at [116]. 169 Building services (C-458/08) November 18, 2010 at [100].

37 The ECJ s case law on services ( ) 645 accorded their proper value and duly taken into account. 170 In a case concerning Italian rules for providers offering extra-judicial debt recovery, the Court therefore held that a denial by the host Member State to consider the obligations to which the trans-frontier service provider is already subject in the Member State of its establishment is excessive. 171 This is even more the case where Union law lays down minimum criteria for the supervision of providers, and for the bodies to be trusted therewith. 172 In this situation, the proportionate alternative to insisting on the host Member State s controls will be for that Member State to require proof of the provider s approval in its home Member State, or to exchange information with that Member State s authorities in case of any doubt concerning the provider s fitness. 173 Where the supervision of providers is not harmonised, the same applies, but Member States have more leeway to deny the equivalence of the respective national standards. The burden of proof In the period under review, the Court refined its previous case law to the effect that in the absence of secondary Union law harmonising the matter, it is for the Member States to decide on the degree of protection which they wish to afford to lawful interests, and on the way in which that protection is to be achieved. Member States are, in these respects, allowed a measure of discretion. 174 From this discretion it follows that it is not essential for a restrictive measure adopted in one Member State to correspond with a view shared by all the Member States concerning the means of protecting the legitimate interest at issue. This circumstance alone does not affect the measure s proportionality, which has to be assessed on its own merits. 175 This statement can arguably be read as putting an end to the controversy whether the Court pursues a majoritarian activism, i.e. applies stricter scrutiny to measures that deviate from the solution that a majority of Member States have adopted. 176 This is not surprising: the Court had always held, and reiterated it recently, that the mere fact that one Member State imposes less strict rules than another Member State does not necessarily mean that the stricter rules are disproportionate and incompatible with [Union] law Josep Peñarroja Fa (C-372/09 and C-373/09) [2011] 2 C.M.L.R. 49 at [58], [76]. 171 Extrajudicial debt recovery (C-134/05) [2007] E.C.R. I-6251 at [25]; likewise in Private security undertakings (C-514/03) [2006] E.C.R. I-963 at [55], and Neukirchinger (C-382/08) [2011] 2 C.M.L.R. 33 at [42]. 172 Organic production inspections (C-393/05) [2007] E.C.R. I at [56] [59]; Organic production inspections (C-404/05) [2007] E.C.R. I at [53] [57]. 173 At the same time, such co-operation and exchange of information, in particular if it is governed by provisions of secondary Union law, renders superfluous the retention in the host Member State by a service provider of social security documents relating to its employees after the provider has ceased to employ workers there: Posted workers (C-319/06) [2008] E.C.R. I-4323 at [90] [92]; see for co-operation between national tax authorities under Directive 77/779 Occupational pension schemes (C-522/04) [2007] E.C.R. I-5701 at [52] [57] and X and Passenheim-van Schoot v Staatssecretaris van Financien (C-155/08 and C-157/08) [2009] E.C.R. I-509; [2009] All E.R. (EC) 888 at [36] [39], [63] [75] (denying the national authorities recovery periods for concealed income abroad that are longer than the co-operation between authorities will take, but allowing extended periods, in light of the added difficulties of investigation, where no such co-operation can take place). 174 See, e.g. Artists agencies (C-255/04) [2006] E.C.R. I-5251 at [44]; Blanco Pérez (C-570/07 and C-571/07) [2010] 3 C.M.L.R. 37 at [44]. 175 Third party liability motor insurance (C-518/06) [2009] E.C.R. I-3491 at [83] [84]; Stoß (C-316/07) [2011] 1 C.M.L.R. 20 at [80]. 176 Thus Snell, Goods and Services in EC Law, 2002, pp ; see also C. Barnard, Restricting restrictions: lessons from the EU from the US? [2009] C.L.J , sub b); against this view, S. Enchelmaier, Four Freedoms, How Many Principles? (2004) 24 O.J.L.S. 155, See, e.g. Private security undertakings (C-514/03) [2006] E.C.R. I-963 at [49]; more recently Lawyers fees (C-565/08) [2011] 3 C.M.L.R 1 at [49]. Conversely, the competition by providers from Member States with lighter regulation is not, for that reason alone, unfair. The freedom to provide services is not conditional on the prior

38 646 European Law Review The Member States discretion regarding the level and means of protection has two aspects. First, Member States can choose which policy objectives they want to pursue, in other words, the choice of interests of the general public which they wish to promote is theirs. 178 Secondly, it is in principle up to the Member States to decide which measures to adopt, whether their enforcement is to be a matter of public or private law, and so forth. They are also free to decide not to act at all because they do not think that an observed mischief warrants any intervention. Conversely, Member States can decide that some concern is so important that they do not want to take any risks, with the health and life of humans ranking foremost among the assets and interests protected by the Treaty. 179 In such a situation, in keeping with the principle of precaution 180 Member States are free to adopt legislation even though the factual circumstances may not yet have been exhaustively explored. It could also be the case that the impact of their measures may be difficult to gauge empirically, or to predict with any accuracy. In all of these paradigms, the discretion that Member States are allowed has consequences for the burden of proof that is incumbent on them. The starting point is that in the four freedoms, the Treaty grants individuals rights which they can enforce against the Member States. 181 If, therefore, Member States want to deny individuals the freedom to provide services, they bear the burden of proof that they may lawfully do so. If, however, we take this together with what has just been said about Member States discretion, the courts (national and European) can really only check whether the Member State s action is manifestly dis-proportionate: whether it is patently unsuitable prima facie inappropriate, 182 as the Court puts it to achieve the desired outcome (its objective), or whether it clearly restricts the freedom further than is necessary to this end. 183 Correspondingly, the Member States burden of proof cannot be so extensive as to require them to prove, positively, that no other conceivable measure could enable the chosen objective to be attained under the same conditions. 184 For the same reason, and because Member States may choose to protect to differing degrees public concerns of different importance, a measure will not be disproportionate solely on the ground that the Member State is unable to produce studies serving as the basis for the adoption of the legislation at issue. 185 Nonetheless, a restriction will be held to be disproportionate if the Member State does not even attempt to put forward a justification, 186 or fails to give any reasons why it considered that a less restrictive measure might not have been equally suitable. 187 In at least two recent judgments, however, the Court appeared to use more demanding standards. In one, it had to assess the legality of French provisions which allowed only bovine insemination centres authorised in France to carry out activities related to the artificial insemination of cows. This legal regime provided for, among others, a general system of exclusive rights over a defined geographical area in favour harmonisation of national rules on a given type of service: Boilers and pressure tanks (C-257/05) [2006] E.C.R. I-134* at [30] [31]. 178 Tankreederei I (C-287/10) [2011] C.M.L.R. 29 at [30] the point is there made with regard to taxation, but is of general application. 179 Blanco Pérez (C-570/07 and C-571/07) [2010] 3 C.M.L.R. 37 at [44]; for an example concerning a different public interest, see A.G. Bot in Ladbrokes (C258/08) [2010] 3 CM.L.R. 40, Opinion at [92]: A Member State has the right to invoke the risk of fraud associated with gaming as the basis for legislation restricting that activity, without being required to show that fraud is actually being committed in its territory. 180 See on this principle Oliver, Free Movement of Goods in the European Union, 2010, paras 8.83 to This starts with the judgment in NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) [1963] E.C.R. 1; [1963] C.M.L.R. 105; see more recently with regard to art.56 Laval (C-341/05) [2007] E.C.R. I at [97]. 182 Private security services (C-465/05) [2007] E.C.R. I at [103]. 183 The Court s scrutiny is, in this sense, a marginal review : Snell, Goods and Services in EC Law, 2002, p Third party liability motor insurance (C-518/06) [2009] E.C.R. I-3491 at [84]. 185 Stoß (C-316/07) [2011] 1 C.M.L.R. 20 at [71] [72]. 186 Occupational pension schemes (C-522/04) [2007] E.C.R. I-5701 at [48]; Dermoestética (C-500/06) [2008] E.C.R. I-5785 at [39]. 187 Jundt (C-281/06) [2007] E.C.R. I at [64].

39 The ECJ s case law on services ( ) 647 of those centres. One of the grounds of justification adduced by the French Government was town and country planning. The Government claimed that said legal regime had enabled it to conserve agricultural activity in the greater part of the French territory, most of which consisted of areas sparsely populated with livestock or mountainous areas. Preserving cattle breeds adapted to the climactic constraints and terrain had allowed livestock rearing to be maintained in regions threatened with depopulation on account of their climatic or geographical characteristics. The Court gave this short shrift. It found that the French Republic s contentions were not substantiated by any statistical information or data. France had not fully established that the exclusive rights over defined geographical areas granted to those authorised centres were necessary to ensure that the insemination service was offered throughout French territory. In addition, that justification could not be relied upon with regard to the areas of French territory which did not have the unfavourable characteristics described by that Member State. 188 The French Government s argument was certainly worth a try. Nevertheless, the connection between the purported objective and the virtual foreclosure of the French market brought about by the almost chicaneous conditions imposed on providers from other Member States was, to put it untechnically, somewhat tenuous. The principle that can arguably be derived from the judgment is this: the farther-reaching the restriction, the more convincing the justification must be. In other words, the strictness of the proportionality assessment, and the amount and quality of evidence to be furnished, increases on a sliding scale with the gravity of the restrictions imposed by the Member State. That said, it has to be borne in mind also that a more tenuous connection can be the more acceptable, the more important the concern to be protected and the graver and more imminent the danger is from which it is to be protected. This works, in effect, as a limited proportionality and evidentiary rebate for urgent measures taken to protect high-ranking concerns in the name of the precautionary principle, with the life and health of humans coming on top of all other concerns. 189 By these standards, the French Government s undifferentiated assertions were doomed to fail. The same principles can be seen at work in the second judgment that seems to apply a stricter test. In issue in the case was, among others, the proportionality of a rule in Luxembourg s labour law which provided for compulsory increases of wages in line with inflation in Luxembourg ( indexation ). This extended also to all wages paid to workers posted to Luxembourg by service providers established in other Member States, and it included wages which did not fall within the minimum wage category. The Government contended that this answered a public policy imperative by protecting workers from the effects of inflation and by ensuring good labour relations. The Court did not accept this. It insisted that any ground of justification must be accompanied by appropriate evidence or by an analysis of the expediency and proportionality of the restrictive measure adopted by that state. The Court demanded precise evidence enabling Luxembourg s arguments to be substantiated. The Government should have submitted evidence to establish whether and, if so, to what extent the application to workers posted to Luxembourg of the rule concerning automatic adjustment of rates of pay to the cost of living was capable of contributing to the achievement of the Government s objective. The Court found that Luxembourg had instead merely cited in a general manner the objectives of protecting the purchasing power of workers and good labour relations. It had not adduced any evidence to enable the necessity for and proportionality of the measures adopted to be evaluated. 190 Whether compulsory, universal indexation protects workers against inflation, or only further stokes it, is a question which the Court did not have to decide. Plainly, however, this and other rules in force in Luxembourg deprived providers from other Member States of the one competitive advantage that they had over their rivals established in Luxembourg, namely lower wage costs. The ensuing restriction was, 188 Bovine insemination centres (C-389/05) [2008] E.C.R. I-5337 at [103] [104]. 189 Oliver, Free Movement of Goods in the European Union, 2010, paras 8.83 to Posted workers (C-319/06) [2008] E.C.R. I-4323 at [51] [53].

40 648 European Law Review therefore, a grave one. The connection between it and the purported objectives, by contrast, was rather far-fetched: by definition, service providers are only ever temporarily active in the host Member State, and so their workers living standards will be less affected by inflation in that state. On the other hand, the rate of inflation in their home Member State, and the state of labour relations there, were hardly of any concern to Luxembourg. At any rate, these aspects do and will always vary widely among the other 26 Member States. A blanket rule for all was, hence, as likely to be effective as not. In all, therefore, Luxembourg s case suffered from the same weakness as France s: the care that went into the presentation of the arguments fell markedly short of the severity of the restrictions imposed on service providers from other Member States. Goods and services: convergence in the assessment of the Treaty s fundamental freedoms? In its judgment in an action brought by the Commission against Spain, the Court for the first time 191 in the context of the freedom to provide services used an argument that is well known from its case law on the free movement of goods. This argument says that there is no restriction where the allegedly restricting effects of a measure are too uncertain in indirect, with the result that the causal link between the possible distortion of intra-community trade and the difference in treatment at issue is not established. 192 There are two problems with this. First, how uncertain is too uncertain, how indirect is too indirect? How long is a piece of string? Pick your answer: any will do. There is simply no way of knowing, of arriving at any result that is not arbitrary and subjective. Secondly, we have yet to see a convincing explanation how this criterion is different from a de minimis threshold which, the Court has insisted, time and again, does not apply to any of the four freedoms. 193 These problems are again in evidence in the Spanish case, and they could again have been avoided. Where a person insured under the Spanish national health scheme was left to pay part of the costs of treatment in another Member State because the institutions of that state did not reimburse the full costs, Spain did not repay that person the balance. This was so even if treatment in Spain would have been costlier and the difference claimed was below the costs of treatment in Spain. In other words, Spanish nationals could only expect such financial assistance as was available in the Member State where they had received the treatment. No complementary payment was available under the Spanish health insurance scheme, which covered only the cost of treatment received in Spanish hospitals. These rules, however, only applied if the person had gone to another Member State for some purpose other than receiving treatment, for example as a student or as a tourist, and the necessity to go to hospital had arisen unforeseen ( unscheduled treatment, art.22(1)(a) of Regulation 1408/71). The Court reasoned that it could not be foreseen with any certainty whether persons who had gone to other Member States as tourists, students, or in a similar capacity as recipients of services, would require any hospital treatment during their stay abroad. A similar uncertainty attended on the question whether the state of health of the elderly or the chronically sick, when they were abroad, would take such a turn for the worse as to necessitate hospital treatment. Some might still be fit enough to have a choice whether to return to the Member State where they are insured. The effect of legislation depended on the overall 191 The Court only hinted at a similar idea in Viacom Outdoor v Giotto Immobilier Sàrl (C-134/03) [2005] E.C.R. I-1167; [2006] 1 C.M.L.R. 47 at [38]; and Mobistar v IBPT (C-438/04) [2006] E.C.R. I-6675 at [28] [29]. 192 This was first used in H. Krantz GmbH & Co v Ontvanger der Directe Belastingen (C-69/88) [1990] E.C.R. I-583; [1991] 2 C.M.L.R. 677 at [11], and most recently in Francesco Guarnieri & Cie v Aandevelde Eddy VOF (C-291/09) April 7, 2011 at [17], with further references. 193 See the references to case law and literature in S. Enchelmaier, Moped Trailers, Mickelsson & Roos, Gysbrechts (2010) 29 Y.E.L. 190, 193 fnn.13, 14; equally critical of the judgment is A.P. van der Mei in his annotation (2011) 36 E.L. Rev. 431, 437.

41 The ECJ s case law on services ( ) 649 cost of the hospital treatment, but this was uncertain at the time when these persons had to decide where to receive the treatment. 194 From this, the Court concluded that the possibility appeared too uncertain and indirect that the uncertainty regarding the costs would prompt these people to return home, or not to go abroad in the first place to receive services there. Legislation denying complementary reimbursement could not, therefore, in general terms be considered a restriction on the freedom to provide hospital services, tourist services, or educational services. Such an effect was merely hypothetical. 195 It should be noticed that the Court s vantage point here is purely factual: the state of health of someone insured under the Spanish system who is temporarily abroad as a recipient of services, and the medical possibility for that person to choose where to receive the treatment. The first element says, one never knows, the second, they might, at any rate, avoid suffering any disadvantage. Both are, it is respectfully submitted, insufficient reasons. The second element can be dealt with very briefly: the four freedoms are individual rights. It is not the recipients of services who have to take evasive action in order to avoid any disadvantages. They can, in principle, choose freely which services to receive, and where. It is the Member States that must not impose any restrictions in the first place, and must justify those that they do impose. Nevertheless, the Court allows Member States some leeway in the name of a balanced system of healthcare. 196 Regarding the first element, A.G. Mengozzi had argued differently from the Court. According to him, a national measure may have a restrictive effect even when it did not deter a person from going to another Member State in order to obtain services there. It was enough that it deterred the person from prolonging his stay there for that purpose, or that it prompted him to bring forward his return to his state of residence in order to receive treatment. In all of these cases, the effect of the measure was to give an advantage to the provision of services in home state at the expense of that in the host state. 197 We have already seen that the deterrence and the advantage formulae are somewhat vague, but that they can be meaningfully translated into the terms of a discrimination assessment. The first question in this assessment would be whether the Spanish rule was distinctly applicable, in which case it qualified without further assessment as a restriction. It was not: every person got the cost cover that was available in the Member State of treatment, whether this had taken place in Spain or abroad. The next question would be whether this criterion place of treatment was inherently likely to impose a heavier burden on those who received treatment in other Member States as compared with those treated in Spain. It was: we know that treatment in Spain was fully covered, whereas any Spanish-insured person treated in a Member State in which there was no full cover would have to shoulder the balance. As discussed earlier, since Cassis de Dijon, the legal regimes and their likely impacts in a given legal and factual context are the points of reference. There is no uncertainty about such cost disadvantage: if anyone suffers a disadvantage at all, it will be the persons who receive treatment in other Member States. Granted, we may have to ascertain which (if any Member States) these are, but this is apparent from public documents that everyone is free to consult. The legal situation is certain (at least ascertainable) at all times, even though 194 Commission v Spain (Hospital care abroad) (C-211/08) [2010] 3 C.M.L.R. 48 at [66] [71]. 195 Hospital care abroad (C-211/08) [2010] 3 C.M.L.R. 48 at [72] [73]. 196 Somewhat puzzlingly, the Court did look into this justification, and concluded that with the ever-increasing mobility of citizens in the European Union, the burden sharing envisaged by Regulation 1408/71 would break down if Member States saw themselves systematically called on to reimburse the highest financial burden, whether incurred at home or abroad (Hospital care abroad (C-211/08) [2010] 3 C.M.L.R. 48 at [76] [80]). The same (Grand) Chamber of the Court held only a few weeks later that reimbursement in respect of treatment the need of which had arisen unforeseen was not likely to compromise achievement of the objectives of hospital planning, nor seriously to undermine the financial balance of the social security system, nor did it affect the maintenance of a balanced hospital service accessible to all, or that of treatment capacity and medical competence on national territory: Elchinov v Natsionalna Zdravnoosiguritelna Kasa (C-173/09) [2011] 1 C.M.L.R. 29 at [45] [47]. 197 Hospital care abroad (C-211/08) [2010] 3 C.M.L.R. 48, Opinion at [87].

42 650 European Law Review the tourists, students, etc., needing treatment abroad may be ignorant of it most of the time. Nevertheless, the existence of a right under the Treaty is not dependent on whether those who might invoke it know of it. The Advocate General was, therefore, right in concluding that there was a restriction. In all, this is not a felicitous transplant from one area of the case law to another. Conclusion Despite all the criticism of individual judgments, this survey has shown a lot more light than shade. The opening of the service markets in the Member States is an important objective. It is also one where a new obstacle arises once an old one has been removed. Those who can remember the run-up to Europa 92, the race towards the completion of the internal market by December 31 of that year, will by now have understood that this project will never end. Nonetheless, the Court has contributed a good deal to the successes already achieved. It is all the more puzzling, therefore, that it is still grappling with some basic concepts, above all with the question what is a restriction of the freedom to provide services. Its role as the ultimate arbiter of EU law imposes a higher responsibility on the Court than just to find some solution any solution that will close the case file. It must also create legal certainty so that national courts and all those called upon to apply Union law can do so with confidence and without permanent recourse to the Court. Finally, clearly reasoned and articulated legal principles are also an imperative of European legal culture.

43 The Right to Be Heard in Composite Administrative Procedures: Lost in between Protection? Christina Eckes and Joana Mendes * University of Amsterdam Administrative decision-making; Customs duty; EU law; Freezing of funds; Geographical indications; Pesticides; Repayments; Right to be heard; Terrorism Introduction The right to be heard in administrative procedures made its entrance into EU law 1 as a general rule of law drawing inspiration from Member States national legal systems, in particular from the common law principle of natural justice audi alteram partem. 2 Shaped and refined by the Courts case law, this is today a securely anchored general principle of EU law that cuts across the whole EU legal system. In particular it, cannot be excluded or restricted by any legislative provision [and] must therefore be ensured both where there is no specific legislation and also where legislation exists which does not itself take account of that principle. 3 Or, as has been repeatedly stated by the Courts, observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. 4 Despite the acceptance of the fundamental nature of this rule under EU law, its effectiveness is challenged by the composite nature of many of the EU administrative procedures. Composite administrative procedures combine decisions of national and EU administrative bodies or entities in a unitary outcome. As such, they include one or more intertwined sub-procedures that are functional to the adoption of the final * Amsterdam Centre for European Law and Governance. We would like to thank Itai Rabinovici for his insightful comments on earlier drafts. The usual disclaimer applies. 1 The Union has replaced and succeeded the Community (art.1(3) TEU). This article will use the terms European Union, EU and and Union, including where it refers to what was pre-lisbon the Community, except where the historical context requires otherwise. 2 Transocean Marine Paint Association v Commission (17/74) [1974] E.C.R. 1063; [1974] 2 C.M.L.R. 459 at [15]. Opinion by A.G. Warner, delivered on September 19, 1974 [1974] E.C.R at Air Inter v Commission (T-260/94) [1997] E.C.R. II-997; [1997] 5 C.M.L.R. 851 at [60]. 4 Earlier, among others, Belgium v Commission (234/84) [1986] E.C.R at [27]; Fiskano v Commission (C-135/92) [1994] E.C.R. I-2885; [1995] 3 C.M.L.R. 795 at [39]. More recently, TV 2/Danmark A/S v Commission (T-309/04, T-317/04, T-329/04, T-336/04) [2008] E.C.R. II-2935 at [136] (though referring broadly to the rights of the defence ); Alrosa Co Ltd v Commission (T-170/06) [2007] E.C.R. II-2601; [2007] 5 C.M.L.R. 7 at [91]; Ente per le Ville vesuviane v Commission (T-189/02) [2007] E.C.R. II-89 at [88]. 651

44 652 European Law Review decision. 5 Often, they fail to be considered as unitary procedures for purposes of procedural protection. The complex interaction between national and EU interventions in given procedures is therefore likely to lead to gaps in procedural protection, in particular with regard to the exercise of the right to be heard. It may for instance prevent at the due moment the procedural intervention of persons concerned, possibly hindering the effectiveness of their participation. Further, in composite procedures both information and assessments of the situation may be artificially split. Yet, despite these difficulties, composite procedures are common and are likely to remain an important feature of EU administrative law because of the multilevel nature of the European Union. In this article, we will in particular examine and question the rule developed by the judiciary according to which, in composite EU administrative procedures, the right to be heard must in the first place be ensured in the relationships between the affected person and the competent national administrative authority. Ensuring the possibility to be heard at the national level might be logically coherent with the institutional principles of EU law, namely with the principles of procedural autonomy and of loyal co-operation. However, we will argue, such principles ensure neither the procedural protection of the legal sphere of the persons affected nor the due consideration of the public interests voiced by the participants. The rule mentioned cannot be a general rule applicable irrespective of the concrete division of procedural competences between the national and EU authorities. We will further argue that, despite the fundamental nature of the right to be heard, the EU legislator has taken insufficient account of the consequences of the divided nature of composite administrative procedures for participation rights. This article is structured as follows. First, it sets out the Courts approach to the problem of ensuring compliance with the right to be heard in composite administrative procedures. This has been defined essentially in the body of case law concerning procedures on the remission of import duties and the reduction of financial assistance provided by the European Social Fund. These are the two classic examples of composite procedures and the ones where the case law on the right to be heard regarding this type of procedures has developed. Secondly, it examines the Courts interpretation of the right to be heard in the adoption procedure of EU counter-terrorist sanctions in the light of the judge-made rules generally applicable to the right to be heard in composite procedures. Problems of procedural protection in composite administrative procedures have been at the core of the cases on the listing procedures that culminate in the adoption of autonomous EU counter-terrorist sanctions. Arguably, they are also one of the most extreme examples of these problems, in that few other administrative measures restrict fundamental rights to the same extent. In this article, we will examine the listing procedure that culminates in the adoption of autonomous EU sanctions. 6 In this procedure, the listing suggestion originates at the national level and not at the UN level. 7 Even though individual sanctions have been the subject of research for some time, litigation continues and the latest 5 On composite administrative procedures and the ensuing legal problems in EU law, see G. della Cananea, The European Union s mixed administrative proceedings (2004) 68 Law and Contemporary Problems 197; and H.C.H. Hofmann, Composite decision making procedures in EU administrative law in Hofmann and Türk (eds), Legal Challenges in EU administrative law towards an Integrated Administration (Edward Elgar, 2009), pp Autonomous EU sanctions have to be distinguished from EU sanctions based on United Nations (UN) lists. The most well-known case concerning sanctions based on UN list is the case of Kadi: Yassin Abdullah Kadi v Council and Commission (T-315/01) [2005] E.C.R. II-3649; and Kadi and al Barakaat International Foundation v Council and Commission (C-402/05 P and C-415/05 P) [2008] E.C.R. I-6351; [2008] 3 C.M.L.R. 41. See also C. Eckes, Judicial review of European anti-terrorism measures The Yusuf and Kadi judgments of the Court of First Instance [2008] E.L.J. 74; on the Court of Justice s ruling in Kadi, see C. Eckes, International Sanctions against Individuals: A Test Case for the Resilience of the European Union s Constitutional Foundations (2009) 15 European Public Law As is the case for the other UN sanctions regime based on Security Council Resolution 1267 (S/RES/1267 (1999), of October 15, 1999).

45 The Right to Be Heard in Composite Administrative Procedures 653 ruling of the General Court 8 on autonomous sanctions in the case of Al Aqsa demonstrates that the protection of the procedural rights of terrorist suspects is still controversial. 9 Thirdly, on the basis of selected examples that are particularly illustrative for this purpose, this article examines how the EU legislator has conceived the procedural protection of the persons affected by composite administrative procedures. The examples chosen are the procedures for the definition of geographical indications and designations of origin, for placing plant protection products on the market and fixing maximum residue levels of pesticides, as well as procedures for obtaining a permit for the use of alien species in aquaculture. These different procedures further stress the limitations of general rules on the right to be heard in composite procedures that can be distilled from the Courts case law. Specific legislative provisions on this matter tend to be rare. As such, legislation often leaves unsolved the problems that have not yet been addressed by judge-made rules. Fourthly and finally, the article makes an overall assessment of the rules governing the right to be heard in EU composite procedures. On this basis, it discusses how effective compliance with this procedural right could be ensured. The framework of participation in composite administrative procedures: judicial origins of the right to be heard The right to be heard in composite administrative procedures is not governed by legislation. The applicable rules emerge as a patchwork construction created by the EU Courts on a case-by-case basis. In this section, we will retrace the origins and emerging principles in the case law of the General Court and, exceptionally, of the Court of Justice. As mentioned, the position of the General Court on the right to be heard in composite administrative procedures was defined essentially in cases regarding the remission of import duties and the reduction of financial assistance provided by the European Social Fund. The legal rules applicable to the first example require the applicant to submit an application for the remission of import duties to the relevant national administration. In certain cases, defined in the applicable regulation, the competent national administrative body must send the application to the Commission. The Commission then decides whether the application is justified, after consulting a group of experts. 10 In the case of financial assistance provided by the European Social Fund, the Commission determines the reduction after giving the Member State concerned an opportunity to be heard. The sums to be repaid are requested by the Member States from the beneficiaries of the financial assistance. 11 In the case of France Aviation, the General Court was faced with one of the potential problems that the composite procedure for the remission of import duties might entail. Procedural defects imputed to the national administrations in this case, the failure of the French administration to share all the relevant documents with the Commission hindered the persons concerned to fully enjoy their right to be heard. The Court maintained that, the applicants right to be heard in a procedure such as that to which these proceedings relate must actually be secured in the first place in the relations between the person concerned and the national administration The former Court of First Instance (CFI) was renamed the General Court by the Treaty of Lisbon. This article will throughout refer to the lower EU Court as General Court. 9 Stichting Al Aqsa (T-348/07) September 9, 2010; see for repeated annulments: Jose Maria Sison v Council (Sison II) (T-341/07) [2009] E.C.R. II See arts 899, and of Regulation 2454/93 laying down provisions for the implementation of Regulation 2913/92 establishing the Community Customs Code [1993] OJ L253/1, as amended. 11 Regulation 2950/83 on the implementation of Decision 83/516 on the tasks of the European Social Fund [1983] OJ L289/1, repealed), in force at the time the judgments analysed below were issued. 12 France Aviation v Commission (T-346/94) [1995] E.C.R. II-284; [1996] 1 C.M.L.R. 875 at [30] (emphasis added).

46 654 European Law Review Apparently, only the fact that the procedure does not provide for direct contact between the Commission and the person concerned could justify this position. 13 However, given the Commission s power of appraisal and the fact that, in this specific case, it deviated from the assessment of the national administration of the behaviour of the applicant, the General Court held that the Commission had a duty to arrange for the applicant to be heard by the French authorities. 14 Only the focus on the legislative formalities of the procedure, which, as mentioned, did not envisage any direct contact between the Commission and the person concerned, could explain the bureaucratic detour 15 endorsed by the General Court, denying a right to be heard directly before the Commission. At the same time, the Court sought to avoid the problems resulting from the composite nature of the procedure and protect the effectiveness of the right to be heard by conferring on the Commission a duty to control the conduct of the national administration in this respect. The Court specifically highlighted the Commission s duty under the applicable rules to require additional information from the national administration. 16 The Court held that the Commission should have used the right to inquire in order to ensure respect for the applicant s right to be heard. 17 In the cases of Eyckeler and Primex Produkte by contrast, the General Court relied on France Aviation but decided that the right to be heard should be ensured directly before the Commission. The reason for this decision was not new. It had already been present in France Aviation: the Commission diverged from the decision of the national administration. 18 This constituted a difference in the assessment of the applicant s behaviour. The applicant should therefore be able to present their views directly before the Commission. Despite the similarity of these cases with France Aviation, the different outcome could be explained because the Court relied on one particular aspect of the audi alteram partem principle that, apparently, it had not considered in its reasoning in France Aviation. The Court pointed out that the right to be heard must be guaranteed even in the absence of any rules governing the procedure in question. 19 It follows from this case law that, in instances in which the Commission does not limit itself to approving the decision of the national authority, it is obliged to hear directly the persons concerned. 20 This is because it exercises discretion and may have a different assessment of the facts of the case. In all other cases, it needs at least to ensure that the file transmitted to it by the national administrations was complete and that the person concerned was properly heard on the facts and evidence of the file. This was taken a step further in the case of Mehibas Dordtselaan. 21 After France Aviation, the Commission started requiring in procedures governing the repayment of import duties that the file transmitted to it by the national authorities is accompanied by a statement by the person concerned certifying that they have read the file and that either they have nothing to add or submitting the documents that they consider pertinent. 22 In Mehibas Dordtselaan, the Court was called to assess the Commission s procedural conduct under these new rules. Surprisingly in view of the wording of France Aviation, but in line with 13 This was stressed by the Court in France Aviation (T-346/94) [1995] E.C.R. II-284 at [30]. 14 France Aviation (T-346/94) [1995] E.C.R. II-284 at [36] (emphasis added). See also [34] and [35]. 15 The expression is Nehl s: H.P. Nehl, Principles of Administrative Procedure in EC Law (Oxford: Hart Publishing, 1999), p According to the current rules, the Commission may request that additional information be supplied (see art.905 (3) and (5) of Commission Regulation 2454/93). 17 France Aviation (T-346/94) [1995] E.C.R. II-284 at [30]. 18 Eyckeler & Malt AG v Commission (T-42/96) [1998] E.C.R. II-401; [1998] 3 C.M.L.R at [84] [86]; Primex Produkte Import-Export GmbH & Co v Commission (T-50/96) [1998] E.C.R. II-377; [1999] 1 C.M.L.R. 99 at [65] [67]. 19 Eyckeler (T-42/96) [1998] E.C.R. II-401 at [77]; Primex Produkte (T-50/96) [1998] E.C.R. II-377 at [59]. 20 See also below, the General Court s interpretation of its ruling in France Aviation (T-346/94) [1995] E.C.R. II Mehibas Dordtselaan BV v Commission (T-290/97) [2000] E.C.R. II-15; [2000] 2 C.M.L.R This requirement was introduced by the Commission Regulation 12/97 amending Commission Regulation 2454/93 [1997] OJ L9/1 and is maintained in the current version of art.905(3) of Commission Regulation 2454/93 (last amended by Commission Regulation 1335/2003 [2003] OJ L187/16.

47 The Right to Be Heard in Composite Administrative Procedures 655 the Eyckeler and Primex Produkte judgments, the General Court ruled that such a statement did not fully meet the requirements of France Aviation. The General Court argued that this enables the person concerned to exercise his right to be heard during the first stage of the administrative procedure, which takes place at national level. 23 However, it in no way guarantees [their] rights of defence during the second stage of the procedure, since, the statement is made at a stage when the Commission has not yet had an opportunity to consider the position of the person concerned, let alone come to a provisional view on his application for repayment. 24 Hence, in the General Court s interpretation of France Aviation, this requires that the right to be heard is guaranteed at both stages of the procedure, in particular given the Commission s discretion in adopting a decision in these cases. 25 According to the General Court, the Commission s powers of assessment make compliance with the right to be heard all the more important. 26 Yet the main reason why the right to be heard needs to be ensured also in the second stage of the procedure relates to the status of this right as a fundamental principle of EU law which needs to be ensured even in the absence of any rules governing the procedure. One could add that, irrespective of the rules governing the procedure, the Commission must give the person concerned the opportunity to make her views known on all the evidence and the legal analysis on which it bases its decision. Even if some of the documents that form part of the evidence only confirm facts that were already included in the national administrative procedure, the Commission is still obliged to disclose them for the purpose of the hearing. 27 Overall, it would seem that EU law has reached a degree of maturity on this issue capable of addressing some of the main problems posed by EU composite administrative procedures in the customs sector. The mere control of the Commission over the way the procedure is conducted at the national level is no longer considered enough to ensure compliance with the right to be heard in procedures regarding the remission of import duties. 28 Furthermore, the General Court s starting point in France Aviation i.e. the assumption that, in composite procedures the right to be heard needs to be ensured in the first place in the relations between the person concerned and the national administration was abandoned in subsequent judgments. Indeed, the General Court corrected this in Mehibas Dordtselaan. However, the case law on the procedures on the reduction of financial assistance granted under the European Social Fund appears to contradict this first conclusion; or, at least, it appears to reveal that these rules are only applicable to the procedure on remission of import duties and not to composite administrative procedures in general. While the General Court, subsequently supported by the Court of Justice, seems to have endorsed a unitary conception of the procedure, it did not fully consider the consequences this conception would have with regard to the right to be heard. In view of the actual adverse effects on the beneficiary of the reduction of financial assistance, the General Court and the Court of Justice held that a direct link is in fact established between the latter and the Commission. This is the case despite the fact 23 Mehibas Dordtselaan (T-290/97) [2000] E.C.R. II-15 at [44]. 24 Mehibas Dordtselaan (T-290/97) [2000] E.C.R. II-15 at [44] (emphasis added). See also Kaufring AG v Commission (T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-216/97, T-217/97, T-218/97, T-279/97, T-280/97, T-293/97 and T-147/99) [2001] E.C.R. II-1337; [2001] 2 C.M.L.R. 43 at [160] and [188]. This seems to apply also to cases in which the Commission does not intend to deviate from the position of the national authority, but intends in any case to issue a decision that is unfavourable towards the applicant. At least, the wording of the judgment clearly favours the interpretation that the right to be heard needs to be ensured at both levels as long as it is capable of adversely affecting the person concerned. This is confirmed by the Court s reasoning in Kaufring at [151] [155]. 25 Mehibas Dordtselaan (T-290/97) [2000] E.C.R. II-15 at [45] and [46]. 26 Mehibas Dordtselaan (T-290/97) [2000] E.C.R. II-15 at [44]. 27 Kaufring (T-186/97) [2000] E.C.R. II-1337 at [185] [187]. 28 See current arts 905 and 906a of Regulation 2454/93.

48 656 European Law Review that the Commission interacts in these procedures only with the national administrations and not with the beneficiaries themselves. In other words, the national administrative entities are formally the sole actor that is in direct contact with the person concerned. 29 The Courts position is grounded in three main reasons. First, the Commission is legally fully liable for its decisions. 30 Secondly, national administrations, despite their formal role, do not have a formal power to make an assessment of their own. 31 Thirdly, the Commission s decisions directly concern the beneficiaries of the financial assistance, who assume primary liability for the repayment of the sums at issue. 32 On this basis, the General Court concluded that the Commission itself must ensure compliance with the right to be heard. According to the Court, this meant that the Commission is obliged either to hear directly the persons concerned or to ensure that they had had the possibility of effectively setting forth their views on the proposed reduction in assistance. 33 This was reiterated in subsequent case law, where the Court of Justice endorsed the view that the right to be heard needs to be ensured by or on behalf of the Commission, namely by submitting a draft Commission decision to the person concerned to enable them to submit any observations. 34 Accordingly, the procedural protection of the person concerned needs to be either way ensured at the second stage of the procedure that takes place at EU level. However, the rule allows the right to be heard to be ensured by the national administration on behalf of the Commission. This flexibility would seem to favour the economy of the procedure while at the same time respecting the way the latter is structured by the legislator. Nevertheless, the Commission has to bear the burden of controlling the administrative conduct of national administrations and of correcting procedural irregularities that do not allow those concerned effectively to put forth their views. In the case of Mediocurso, for example, the failure to respect the right to be heard arose because the national administration did not give the person concerned a reasonable time to be heard. The Court found, in essence, that the Commission had the duty to correct this. 35 Thus, contrary to what could initially be assumed, the rule according to which the right to be heard needs to be ensured by or on behalf of the Commission may ultimately lead to duplication of procedures. Moreover, it favours situations, such as those in Vlaams Fonds, where the decision to reduce the financial assistance was taken without giving the person concerned notice of all the information on which it was based. More specifically, in Vlaams Fonds, the right to be heard was exercised before the Member State concerned. At the end, the decision was based on documents of the Commission of which the beneficiary was not informed. 36 Naturally, this may also occur when the Commission has the sole responsibility for ensuring the procedural protection of those concerned. However, if the hearing is organised by the Member State at a stage of the procedure in which the Commission is still entitled to continue its investigations, breaches of the right to be heard similar to the one in Vlaams Fonds are more likely to occur. Furthermore, the possibility that the national administration is in charge of the hearing on behalf of the Commission opens the way to the Cofac type 29 Lisrestal Organização Gestão de Restaurantes Colectivos Ldª and others v Commission (T-450/93) [1994] E.C.R. II-1177 at [47]; Commission v Lisrestal Organização Gestão de Restaurantes Colectivos Ldª (C-32/95 P) [1996] E.C.R. I-5393; [1997] 2 C.M.L.R. 1 at [28]. 30 Lisrestal (C-32/95 P) [1996] E.C.R. I-5393 at [29]; Lisrestal (T-450/93) [1994] E.C.R. II-1177 at [47], [49]. 31 Lisrestal (T-450/93) [1994] E.C.R. II-1177 at [44]. The Court of Justice admitted that the Commission s decision may sometimes reflect an assessment and evaluation by the competent national authorities (at [29]). However, this is merely a choice of the Commission, who is formally the competent body to decide. 32 Lisrestal (C-32/95 P) [1996] E.C.R. I-5393 at [24], [26], [33]; Lisrestal (T-450/93) [1994] E.C.R. II-1177 at [43], [45], [48]. See also Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission (T-102/00) [2003] E.C.R. II-2433 at [61]. 33 Lisrestal (T-450/93) [1994] E.C.R. II-1177 at [49] (emphasis added). 34 Mediocurso v Commission (C-462/98 P) [2000] E.C.R. I-7183 at [42] and [43]. Similarly, Vlaams Fonds (T-102/00) [2003] E.C.R. II-2433 at [61]; Cofac v Commission (T-158/07) [2009] E.C.R. II-237 at [39]. 35 Mediocurso (C-462/98 P) [2000] E.C.R. I-7183 at [37] to [43]. 36 Vlaams Fonds (T-102/00) [2003] E.C.R. II-2433 at [66], [67], and [83].

49 The Right to Be Heard in Composite Administrative Procedures 657 of litigation. In this case, the applicant claimed that they should have been heard directly by the Commission regarding the decision to reduce its financial assistance on the basis of alleged failures of the national administration that, in their view, would have infringed its right to be heard. Yet the allegations were not founded. The applicant took advantage of the division of tasks between the Commission and the national administration and of the possibility to be heard either by one or the other. As in Cofac, this type of claims may ultimately force the Court to assess the procedural conduct of the national administration, namely to assess whether it took into account the observation submitted by the beneficiary of the assistance; whether it was negligent with respect to the file; or whether a national criminal procedure had consequences for the case at issue. 37 It follows from these considerations that the persons concerned would be better protected if the right to be heard were exercised directly before the authority that effectively defines the content of the act. Furthermore, a hearing directly before the Commission would also contribute to a better administration of the procedure. Offering a possibility to be heard exclusively at the national level is not consistent with the rule according to which a direct link is established between the Commission and the beneficiary of the financial assistance where received subsidies are reduced. At any rate, the discussed case law, while allowing that the right to be heard is ensured through the Commission s control over national administrative procedures, does not amount to restating the rule according to which the right to be heard needs to be ensured first and foremost before the national administration. Lisrestal, Mediocurso, and Cofac do not establish a preference for either the national or EU level, so long as the right to be heard is effectively complied with. In the following section, we will see that this is an insight that seems to be disregarded in the case law on counter-terrorist sanctions, where the General Court gave hearings at the national level preference. Individual sanctions The General Court s case law The General Court developed the specific content of the right to be heard in the context of individual sanctions in its rulings in the saga of Organisation des Modjahedines du Peuple d Iran (OMPI) 38 and in the case of Sison. 39 The General Court annulled the listing of OMPI three times 40 before it was finally taken off the list. 41 The Court found the rights of the defence, the duty to state reasons in art.253 EC (now art.296(2) TFEU), and the right to a fair trial, fully applicable to EU sanctions against individuals 42 and held that the listing procedure failed to comply with all three. 43 Essentially, the breach resulted from the 37 Cofac (T-158/07) [2009] E.C.R. II-237 at [32], [44], [48], [49]. 38 Organisation des Modjahedines du peuple d Iran v Council and UK (OMPI I) (T-228/02) [2006] E.C.R. II-4665; [2007] 1 C.M.L.R. 34; People s Mojahedin Organization of Iran v Council (OMPI II) (T-256/07) [2008] E.C.R. II-3019; [2009] All E.R. (EC) 1221; appeal pending: People s Mojahedin Organization of Iran (C-576/08 P); People s Mojahedin Organization of Iran v Council (OMPI III) (T-284/08) [2008] E.C.R. II-3487; [2009] 1 C.ML.R See in particular OMPI I (T-228/02) [2006] E.C.R. II-4665; Jose Maria Sison v Council and Commission (T-47/03) [2007] E.C.R. II-73* (summ. pub.); [2007] 3 C.M.L.R OMPI I (T-228/02) [2006] E.C.R. II-4665; OMPI II (T-256/07) [2008] E.C.R. II-3019; and OMPI III (T-284/08) [2008] E.C.R. II See for a more detailed account of this case: C. Eckes, EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford: Oxford University Press, 2009), Ch OMPI I (T-228/02) [2006] E.C.R. II-4665 at [108] [113]; see also Sison (T-47/03) [2007] E.C.R. II-73 at [138] [160] surprisingly the General Court did not in this section directly refer to its judgment in OMPI I in which it had already made a similar argument. 43 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [218] (duty to state reasons); [214] (rights of the defence); and [225] (right to a fair trial).

50 658 European Law Review fact that the Council had not made any attempt to notify the relevant evidence to the applicant. Furthermore, and equally resulting from the failure to share any information, even with the Court, the General Court found the right to judicial protection infringed. It expressly stated that it did not feel, even at this stage of the procedure, in a position to review the lawfulness of [the contested] decision. 44 The right to be heard in the procedure culminating in the adoption of individual sanctions differs depending on whether the person is listed for the first time (initial listing) or whether a decision is taken to maintain her name on the list (subsequent listing). 45 One essential difference is the general limitation that a hearing before the initial decision would be liable to jeopardise the effectiveness of the listing. 46 Hence the applicant can be heard after the initial listing, while the hearing for a subsequent listing must in principle take place in advance. 47 According to the General Court, both in the context of initial and subsequent listings, [t]he rights of the defence of the person concerned must be effectively safeguarded in the first place as part of the national procedure. 48 Further, even if there is a hearing at the Union level, it is subject to significant limitations. As a consequence of the limited competences of the Council, it is confined to the narrow legal question whether a decision existed that meets the definition of the Union regulation. 49 Based on the understanding of the General Court, the hearing does not extend to the substance of that decision: the appropriateness or well-foundedness of the decision cannot be questioned at EU level. 50 Further, since in view of the principle of sincere co-operation it is not for the Council to examine whether the fundamental rights of the party concerned were respected by the national authorities, the hearing does not cover the fairness of the procedure at the national level either. 51 Only where the Member State submits to the Council evidence that has not been assessed by the competent national authority, must this newly-adduced evidence be subject of the hearing before the Council. 52 In the course of the initial listing, the General Court found that the Council is only competent to verify that there exists a decision of a national authority meeting the definition in art.1(4) of Common Position 2001/931/CFSP. 53 Furthermore, the principle of sincere co-operation 54 entails, for the Council, the obligation to defer as far as possible to the assessment conducted by the national authority, at least where it is a judicial authority 55 : 44 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [173]. 45 Article 2(3) of Regulation 2580/2001 [2001] OJ L344/70, read in conjunction with art.1(4) and art.1(6) of Common Position 2001/931/CFSP on combating terrorism [2001] OJ L344/93, respectively. OMPI I (T-228/02) [2006] E.C.R. II-4665 at [161]; this becomes obvious in the word whereas in [164]. The General Court continues to apply the distinction between the initial and the subsequent procedure in its most recent judgments: Stichting Al Aqsa (T-348/07) September 9, Sison (T-47/03) [2007] E.C.R. II-73 at [175]; see also OMPI I (T-228/02) [2006] E.C.R. II-4665 at [128]; restricting hearing right in emergency situations is well accepted. See also Campolargo v Commission (T-372/00) [2002] E.C.R. II-223 at [32]. 47 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [137]. 48 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [119] (emphasis added); nearly identical: Sison (T-47/03) [2007] E.C.R. II-73 at [166]. 49 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [120]. 50 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [121]. 51 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [121]. 52 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [125]. 53 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [117] (emphasis added); Sison (T-47/03) [2007] E.C.R. II-73 at [164]. 54 Article 4(3) TEU. 55 OMPI II (T-256/07) [2008] E.C.R. II-3019 at [133]; see also: OMPI I (T-228/02) [2006] E.C.R. II-4665 at [122].

51 The Right to Be Heard in Composite Administrative Procedures 659 [I]t is not for the Council to decide whether the [national] proceedings opened against the party concerned and resulting in th[e relevant] decision was conducted correctly, or whether the fundamental rights of the party concerned were respected. 56 However, the listing in the case at hand, OMPI I, was based on a decision of the Home Secretary which at the time of the initial listing had not yet been examined in substance by a judicial authority. 57 Moreover, although the existence of serious and credible evidence or clues is a legal condition for the application of EU sanctions, 58 establishing the existence of such evidence falls within the competence of the national authorities and the principle of sincere co-operation excludes that this could be made subject to the scrutiny or a hearing at EU level. 59 At the same time however, the General Court held that the Council enjoys broad discretion in its assessment. 60 The Council needs the decision of a competent national authority to list anyone but, even if a decision of a national authority exists (and the Member State proposes listing), the Council is not obliged to list the person. This demonstrates that the Council bases its decisions on additional substantive considerations, presumably on issues such as whether the applicant can be linked to terrorism. Therefore it is submitted that any hearing at EU level would have to extend to these substantive considerations. The Court resumed France Aviation 61 when it ruled that the right to be heard must in the first place be safeguarded at the national level. However, contrary to France Aviation, the General Court did not associate this split of the right to be heard with a duty on the part of the EU institution to control the procedural conduct of the national authorities. The Court s reluctance to let EU institutions review national procedural conduct could be due to the fact that it assumed in line with Common Position 931/2001/CFSP 62 that the competent national authority should in principle be a judicial authority. 63 However, the list of competent authorities, and later amendments to it, demonstrates that none of the competent authorities is actually part of the judiciary. They are in fact part of the home department, ministries of finance or economics, or national banks. 64 With regard to the subsequent decisions, those listed have slightly more extensive rights at Union level to make their views known. This is due to the greater competences of the Council. Here, the General Court considered it necessary that the Council verified the consequences [of the decision of the competent authority] at the national level. 65 The General Court explicitly stated that [a]ny subsequent decision to freeze funds must accordingly be preceded by the possibility of a further hearing and, where appropriate, notification of any new incriminating evidence. 66 In OMPI II and OMPI III, the General Court examined in detail the rights of the defence at the Union level where the Council takes a subsequent listing decision to continue sanctions against a specific person. The right to be heard extends here to all the information that the Council is obliged to consider in the subsequent decision. This includes appeal decisions at the 56 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [121]. 57 The High Court had ruled that the British Proscribed Organisations Appeal Commission (POAC) was the correct (quasi-)judicial authority to carry out the applicant s examination. The appeal was pending when OMPI was listed for the first time on May 2, 2002 (OMPI I (T-228/02) [2006] E.C.R. II-4665 at [1] [17]). 58 Article 1(4) of Common Position 2001/931/CFSP. 59 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [122]. 60 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [159]. 61 See section Judicial origins of the right to be heard above. 62 Article 1(4) of Common Position 931/2001/CFSP: For the purposes of this paragraph competent authority shall mean a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area. 63 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [116]. 64 Regulation 745/2003 [2003] OJ L106; Regulation 1207/2005 [2005] OJ L197; Regulation 1957/2005 [2005] OJ L314; Regulation 1461/2006 [2006] OJ L272; Regulation 1791/2006 [2006] OJ L Sison (T-47/03) [2007] E.C.R. II-73 at [164]. 66 Sison (T-47/03) [2007] E.C.R. II-73 at [178].

52 660 European Law Review national level and, if applicable, the Member State s omission to take further substantive measures after the first decision, such as further investigations into the applicant s link with terrorism. In OMPI II, the General Court annulled the listing because the Council failed to give sufficient reasons as to why it had not taken into account the appeal decision of a national quasi-judicial body (the British Proscribed Organisations Appeal Commission (POAC)) ordering the removal of the applicant from the list. 67 This was recently confirmed in the case of Al-Aqsa, where the General Court annulled the Council s listing decision because the national decision that had served as a basis for the listing had been repealed in the meantime. The General Court argued that there was no longer any substratum in national law that justified to the required legal standard keeping the equivalent Community measure. 68 Possible reasoning behind the General Court s position The General Court s decision to require first and foremost the competent national authorities to ensure compliance with the right to be heard when a person is listed as a terrorist suspect 69 raises many questions: Why did the Court focus on the national level? Is this focus justified? What are the consequences for the procedural protection of those sanctioned that compliance with the right to be heard must in the first place be ensured at the national level? To explain its focus on the national level, the General Court referred to an earlier case on state sanctions against the then Federal Republic of Yugoslavia (the Invest Import und Export case). 70 Invest Import und Export concerned a regulation ordering the freezing of all assets of Yugoslav companies in the European Union. The Commission drew up the list of companies to which the regulation applied based on proposals by the competent national authorities of Germany and France hence in a composite administrative procedure consisting of a national and a European stage. The Regulation contained a cursory reference to the possibility of defence, stipulating that persons could request the competent national authorities to be delisted. 71 The Commission, however, had listed the applicants in the Invest Import und Export case without giving them the opportunity to be heard. The applicants brought an action for breach of their hearing rights arguing that in the end it is the Commission which is responsible for ensuring that the undertakings concerned receive a lawful hearing. 72 The General Court found the applicant s claim unsubstantiated. Not denying that the Commission had not given the applicants the opportunity to be heard, the Court turned to the national level. The Court held that the right to be heard must actually be secured in the first place in the relations between that undertaking and the competent national administrative authority. 73 This justified certain limitations imposed on the right to be heard at EU level. The General Court pointed out that the applicants had made no submissions as to any breach by the national authorities of their right to be heard, but that on the contrary they had been heard at the national level. 74 The Court explained that Community law itself recognises the lawfulness of such procedural adaptations in the 67 The POAC is the specialist body set up by the Parliament of the United Kingdom to hear and determine appeals brought against decisions proscribing, or refusing to lift the proscription of, organisations regarded as terrorist by the Home Secretary; see OMPI II (T-256/07) [2008] E.C.R. II-3019 at [155] et seq. this paragraph concerned the listing in Decision 2007/ Stichting Al Aqsa (T-348/07) September 9, 2010 at [178]. 69 OMPI I (T-228/02) [2006] E.C.R. II-4665 at [119]. 70 Invest Import und Export and Invest Commerce v Commission (T-189/00 R) [2000] E.C.R. II Article 8(4) of Council Regulation 1059/2000 amending Regulation 723/2000 [2000] OJ L119/1. 72 Invest Import und Export (T-189/00 R) [2000] E.C.R. II-2993 at [26]. 73 Invest Import und Export (T-189/00 R) [2000] E.C.R. II-2993 at [40] (emphasis added). The order was approved on appeal with no reference to the question of the right to be heard; see Invest Import und Export and Invest Commerce v Commission (C-317/00 P(R)) [2000] E.C.R. I Invest Import und Export (T-189/00 R) [2000] E.C.R. II-2993 at [40] [41].

53 The Right to Be Heard in Composite Administrative Procedures 661 context of economic sanctions against individuals. 75 By procedural adaptations, the General Court meant the possibility that procedural rights at one level substitute for the rights at another level. The General Court drew in its reasoning in Invest Import und Export on the earlier case of France Aviation that was discussed in detail in the previous section of this article. 76 Yet, as has also been discussed above, the General Court had ruled in this case that the Commission was under an obligation to control whether the applicant had been duly heard at the national level, even though in the first place this was the obligation of the national authorities. Two important conclusions can be drawn from the Invest Import und Export case. First, even though in this case the Commission was not obliged to grant the opportunity for a hearing, such an obligation is not excluded as a matter of principle. The General Court found that the right has to be guaranteed in the first place at the national level. It did not argue that the right must exclusively be guaranteed at the national level. Secondly, in Invest Import und Export, the General Court was not in principle unwilling to review whether the applicants had the opportunity to be heard at the national level. Indeed, it discussed that the applicants had been heard by the national authorities, even though this had not directly been raised as an issue by either of the parties. The General Court appears to have interpreted the specific outcome in Invest Import and Export and herewith indirectly in France Aviation as a general rule and applied it to the sanctions cases without taking into account that the procedure for sanctioning individuals is different and requires therefore different measures to comply with the right to be heard. The next section will analyse in detail why the right to be heard must lead to different conclusions in the case of counter-terrorist sanctions. Why is the General Court s reasoning flawed? The assessment of the General Court s interpretation and application of the right to be heard in the sanctions cases requires a more detailed understanding of the sanctioning procedure and of the effects attached to the measures taken at the different levels. The autonomous EU sanctioning regime was set up to give effect to the international obligations of the Member States under Resolution 1373, 77 which obliges UN Member States to draw up lists of alleged terrorists and freeze their financial funds. For the EU Member States, it is the European Union that gives effect to these UN obligations in the autonomous sanctioning regime based on Common Position 2001/931/CFSP 78 and Regulation 2580/ These latter instruments draw up a list of private individuals who are made subject to EU counter-terrorist sanctions following proposals from the Member States and third countries. As was explained above, contrary to what the wording of Common Position 2001/931/CFSP suggests, the competent national authorities do not form part of the judiciary but are part of the executive. Under the Treaty of Lisbon, the European Union is given express competence for the adoption of sanctions against private individuals (arts 75 and 215 TFEU). However, it is still controversial which of the two legislative procedures is applicable to which type of sanctions. 80 Both arts 215 and 75 TFEU state explicitly that [t]he acts referred to in this Article shall include necessary provisions on legal safeguards Invest Import und Export (T-189/00 R) [2000] E.C.R. II-2993 at [40] [41]. 76 France Aviation (T-346/94) [1995] E.C.R. II-284; see also Eyckeler (T-42/96) [1998] E.C.R. II S/RES/1373 (2001), of September 28, Common Position 2001/931/CFSP. 79 Regulation 2580/ Two different EU sanctions must be distinguished: (1) autonomous EU sanctions (lists of terrorist suspects are drawn up at EU level following proposals from the Member States these sanctions are the subject of this article); and (2) EU sanctions that give effect to lists of terrorist suspects drawn up at the UN level (see for more detail Eckes, EU Counter-Terrorist Policies and Fundamental Rights, Articles 215(3) and 75(3) TFEU.

54 662 European Law Review and the Court was given jurisdiction to review individual sanctions (art.275(2) TFEU). However, the general reference to legal safeguards has not so far led to the adoption of more specific rules setting out at what level those sanctioned can exercise their right to be heard. In the listing procedure, names are added by the Council based on a proposal from one of the Member States. 82 The listing is prepared in a permanent Working Party. 83 Usually, the competent national authorities conduct an investigation and decide whether to propose a specific name to the other members of the Working Party. After a proposal is made, the representatives have two weeks to consult other governmental officials. Pursuant to its mandate, the permanent Council Working Party is in charge of (1) examining and evaluating information with a view to listing; (2) assessing whether the information meets the criteria in Common Position 2001/931/CFSP and in the Council s statement agreed when the Common Position was adopted ; (3) preparing the regular review; and (4) making recommendations for listings and delistings. 84 Any listing is finally agreed in a unanimous decision of the Council, usually, if there are no objections, in written procedure (A-point). Article 1(6) of Common Position 2001/931/CFSP provides that the list is revised every six months. The process of removing a specific name is not explicitly set out. This means that, according to the general amendment rules, removal also requires unanimity, which gives any one Member State the power to keep the sanction system indefinitely in place with regard to a specific person. In June 2007, the Council introduced some basic procedural safeguards, presumably in order to ensure compliance with the guidelines laid down by the General Court in OMPI I. Every listed person is now provided with a statement of reasons. 85 They are notified (1) of their listing 86 ; (2) of the possibilities to submit a request for delisting; and (3) of the possibilities to bring a legal action before the General Court. The new statement of reasons must be sufficiently detailed to allow those listed to understand the reasons for their listing and to allow the Community Courts to exercise their power of review. 87 It is discussed by the Working Party on a case-by-case basis, 88 and must contain information about the acts committed, the competent national authority, and the type of decision that was taken. 89 Pursuant to its working methods, the Working Party ensures that the information provided meets the criteria in Articles 1(3) and 1(4) of Common Position 2001/931/CFSP. 90 Article 1(3) defines the meaning of terrorist act and terrorist group. Article 1(4) stipulates that listings are based on, precise information or material in the relevant file which indicates that a decision has been taken by a competent [usually judicial] authority in respect of the persons, groups and entities concerned. Furthermore in OMPI III, the General Court annulled the listing of the same organisation because the Council was unwilling or unable to submit the relevant information on which it had based its decision to the EU Courts. 91 Hence the Working Party will have to verify that the Council is in the position to submit 82 Exceptionally, third countries make listing proposals (see: Council Doc.10826/07, Annex II, para.4). 83 Council Document 10826/07 on the fight against the financing of terrorism implementation of Common Position 2001/931/CFSP, of June 21, 2007, Annex II. Until the establishment of the permanent working party in 2007, the listings were prepared in an ad hoc forum. 84 See the Working Party s mandate at Council Doc.10826/07, Annex I, p Council Doc.10826/07, Annex II, paras Council Doc.10826/07, Annex II, paras Council Doc.10826/07, Annex II, para Council Doc.10826/07, Annex II, para Council Doc.10826/07, Annex II, paras Council Doc.10826/07, Annex II, para OMPI III (T-284/08) [2008] E.C.R. II-3487 at [71] [73].

55 The Right to Be Heard in Composite Administrative Procedures 663 the relevant information to the Court in the event of a legal challenge. Moreover, the working methods provide for the possibility, to invite a representative from Europol or the Situation Centre to attend the meeting of the Working Party to make a presentation of background information in order to facilitate discussion on a particular subject. 92 Consequently, the working methods appear to assume that the Working Party does indeed discuss the informational basis of the proposal. Moreover, the working methods stipulate that the Working Party will check in particular whether the proposal complies with the fundamental principles and the rule of law when the proposal was submitted by a third state. 93 This implies that it will also check compliance when Member States propose a listing. However, the General Court held in OMPI II explicitly that the Council cannot examine whether the decision of the national authority is well founded. 94 The Court explained that any such scrutiny by the Council would be contrary to the principle of sincere co-operation. 95 This argument might have merit if the national authorities were indeed judicial authorities. Considering that the Council consists of national representatives from the executive, such scrutiny could be seen as contrary to the principle of separation of powers. Yet, as was shown above, the competent national authorities are part of the executive, and in line with France Aviation such scrutiny should not be excluded. By way of conclusion, it is submitted that the Council s actual tasks stand in clear contrast with the limitations introduced by the General Court to the right to a fair hearing at EU level, and that such limitations cannot be justified by the principle of separation of powers. It follows from the working methods that the Council Working Party assesses the factual situation before it, including background information provided by Europol and compliance of the national proposal with the rule of law. This justifies that those listed have a right to be heard on the assessment at EU level. Hence both the assessment of the evidence or clues that led to the listing and compliance with procedural rights at the national level should be subject to the right to a fair hearing at EU level. However, at present based on a false understanding of the Council s role as merely rubber-stamping national proposals assessed by a judicial authorit the General Court does not grant applicants this right to a fair hearing on the substantial foundation of the Council s decision. This effectively leads to an artificial limitation of the hearing requirements at EU level. Admittedly, if the bulk of the decision were formed at the national level, it would be reasonable that the responsibility to hear those listed would lie in the first place with the national authorities, as the General Court held already in Invest Import und Export. Besides striking a balance between the rights of the affected individual and interests of security, the principle of subsidiarity, the sovereignty of the Member States, as well as the principle of sincere co-operation 96 must be taken into account when the right level for a hearing is determined. The EU institutions can only offer the opportunity to be heard to the extent that they do not interfere with the rights of the Member States to conduct their own procedures of criminal investigations. Nevertheless, we argue that the EU institutions are procedurally responsible because of the additional adverse effects that they attach to the national decision and the substantive assessment they (may) carry out. As to the substantive assessment by the Council, it was shown above that the Council does not only approve of the decision within the meaning of the Court s understanding in France Aviation. 97 At the 92 Council Doc.10826/07, Annex II, paras Council Doc.10826/07, Annex II, para.4 (emphasis added). 94 OMPI II (T-256/07) [2008] E.C.R. II-3019 at [147]; this paragraph concerned the listing in Council Decision 2007/445 [2007] OJ L169/ OMPI II (T-256/07) [2008] E.C.R. II-3019 at [133]; OMPI I (T-228/02) [2006] E.C.R. II-4665 at [122]. 96 See also the General Court in Sison (T-47/03) [2007] E.C.R. II-73 at [170] [171]. 97 See section The framework of participation in composite administrative procedures above.

56 664 European Law Review same time, it should be noted that the quality and accuracy of the Union decision depends largely on the quality and accuracy of the national decision. Because of the particular division of responsibility, a defect of the national procedure is not easily healed at the Union level. As was explained above, the decision at EU level in composite procedures may be tainted with any irregularities occurring at the national level. This can be seen in the case of OMPI II. 98 On appeal before a quasi-judicial authority, the decision of the competent national authority was found to be unreasonable and perverse. The authority had failed to take the more recent information on the activity of OMPI into account. Yet the Council had listed and sanctioned OMPI exclusively based on this national decision and consequently attached additional adverse effect to a flawed decision. As to the additional adverse effects, the great negative consequences of counter-terrorist measures should be recalled. The General Court labelled individual sanctions particularly draconian and questioned whether they must not be considered criminal rather than administrative in nature. 99 The UK Supreme Court went as far as calling those sanctioned prisoners of the state. 100 Further, and beyond the immediate consequences of depriving those listed of all their financial resources, without limit of time, being designated as a terrorist suspect has also more indirect consequences. The case of M and Others 101 for instance, concerned the question of whether financial support within the meaning of the European sanctions regime included social security benefits of spouses who live together with the designated person. In a second preliminary reference (B and D 102 ), the Court of Justice was asked to rule on the interpretation of the German asylum authority that membership of an organisation included on the terrorist lists justifies excluding the person from refugee status. The Court answered in both cases the negative: spouses can still receive social aid and exclusion from refugee status must be decided on a case-by-case basis. Despite the fact that the Court of Justice limited the effects of European counter-terrorist listings, these cases illustrate that European listings are understood as separate legal decisions with potential effects unrelated to the underlying decisions of the national competent authorities. As was also explained above by reference to the European Social Fund case law, the intensity of the interference with the person s legal sphere should be matched by the procedural protection that is granted to the individual. 103 This is the core of our argument. The Council lists individuals in a procedure building upon, but separate from, the procedure at the national level. The procedure at EU level results in a different outcome (being listed as a terrorist suspect rather than being subject to usually criminal procedures; potentially facing criminal charges) and pursues a different objective (containing terrorism rather than addressing criminal behaviour). 104 The differences in outcome and objective are admittedly limited by the General Court s ruling that the purpose of the national proceedings in question must none the less be to combat terrorism in the broadest sense 105 and that a decision of a national judicial authority does not suffice if it rules 98 OMPI II (T-256/07) [2008] E.C.R. II-3019; see also: France Aviation (T-346/94) [1995] E.C.R. II-284 and Technische Glaswerke Ilmenau GmbH v Commission (T-198/01) [2004] E.C.R. II-2717 at [145], [153] [160] and [183]. In this case, the receiver of a state aid complained that confusion between the Commission and the responsible Member State denied it the opportunity to comment on important documents. This problem would have been avoided had the applicant had direct access to the Commission s file. 99 Kadi II (T-85/09) [2011] All E.R. (EC) A v HM Treasury [2010] UKSC 2; [2010] 2 A.C. 534 at [60] and [192]. See also International Commission of Jurists, Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights (February 2009). 101 R. (on the application of M) v HM Treasury (C-340/08) [2010] 3 C.M.L.R Bundesrepublik Deutschland v B and D (C-57/09 and C-101/09) [2011] Imm. A.R J. Mendes, Participation an participation right in EU law and governance in H. Hofmann and A. Türk (eds), The Move to an Integrated Administration: Legal Challenges in EU Administrative Law (Cheltenham: Edward Elgar, 2009), p.270 at p See for more detail Eckes, EU Counter-Terrorist Policies and Fundamental Rights, 2009, Ch.6 pp.316 et seq. 105 Stichting Al Aqsa (T-348/07) September 9, 2010 at [100].

57 The Right to Be Heard in Composite Administrative Procedures 665 only incidentally and indirectly on the possible involvement of the person concerned in such activity in relation to a dispute concerning, for example, rights and duties of a civil nature. 106 However, even if national decisions are limited to decisions governed by criminal law, such as the case of El Morabit, 107 and even if the crime is linked to terrorist activities, the new assessment and the additional adverse effects require a hearing at EU level. We argue that hearing rights must be granted at any particular level corresponding to the detrimental effect on the rights of the individual of the decision taken at that level. 108 The legislator s approach The two previous sections have analysed the way the Courts have approached the problems arising from composite procedures with regard to the right to be heard. In particular, they have highlighted the limitations of the rule according to which the right to be heard must in the first place be safeguarded at the national level. We will now move on to assess how the EU legislator has dealt with the right to be heard in the context of composite procedures. Do legislative provisions address this problem in any way, and, if so, how? In general, it is fair to say that the EU legislator does not pay enough attention to the procedural protection of the persons affected by composite procedures, and, in particular, the effet utile of the right to be heard. In EU legislation, the procedures tend to focus on the co-ordination between the different entities operating at the national and EU level. Often, the intricacies of EU composite procedures are neglected; possible problems are considered a matter to be solved by resort to the general principles of law. The possibilities to participate in the procedure of the persons affected are not conceived to address the problems resulting from the fact that the procedure is split between national and EU authorities. Furthermore, beyond the scope of application of the audi alteram partem principle (limited to adverse individual decisions), the provision of participation rights in composite procedures, as in other EU procedures, tends to depend on policy choices, determined to large extent by the substantive matter at stake, as is exemplified below. The analysis of different instances of composite procedures illustrates the fragmentary approach that results from the factors just presented. The examples below do not provide an exhaustive analysis of composite procedures. They nevertheless shed light on the relevance of composite procedures in EU law and on the variety of their structures, beyond the examples analysed in the sections above. The procedures analysed exemplify the problems in defining the place of the right to be heard in each case. Member States, agencies and the Commission First, composite procedures arise in areas where the scientific assessment of the risks of certain products is entrusted to an EU agency, but where, nevertheless, national administrative authorities have an important say. This is the case of the procedure for placing plant protection products on the market. 109 In order to obtain the approval of an active substance, the market operator will have to deal directly with the Member State where they choose to file the application. The latter will act as a rapporteur for the Union. A three-step procedure will follow. The application is first assessed by the Member State rapporteur, possibly together with other Member States and with the support of the European Food and Safety Authority (EFSA). 110 The rapporteur makes a first scientific and technical assessment of the application, preparing a draft 106 Stichting Al Aqsa (T-348/07) September 9, 2010 at [101], referring to Sison II (T-341/07) [2009] E.C.R. II-3625 at [111]. 107 El Morabit v Council (T 37/07 and T 323/07) [2009] E.C.R. II See also J. Mendes, Participation in EU rulemaking: A rights-based approach (Oxford: Oxford University Press, 2011), Ch.4 Section Regulation 1107/2009 [2009] OJ L309/ Regulation 1107/2009 arts 7(1), (2) and (5).

58 666 European Law Review assessment report. 111 This draft report is the basis of the procedure that will continue at EU level. In a second phase, the report is communicated to the applicant by the EFSA, which also organises a public and an expert consultation of the draft report. 112 The EFSA adopts a conclusion, on the basis of the current scientific and technical knowledge, presumably taking into account the observations it received from the public and from the experts. 113 In a third step, the Commission presents a review report and a draft regulation to the Standing Committee on the Food Chain and Animal Health on the basis both of the Member State s draft report and the EFSA s conclusions. 114 The Commission s report must take into account the draft assessment report of the Member State rapporteur and the EFSA s conclusions, in line with the general food law rules. 115 The final act a decision if the application is rejected, a regulation if the authorisation is approved is adopted following a comitology procedure. While as a matter of principle, under current EU law the right to be heard is only applicable to procedures leading to the adoption of individual adverse decisions, the legislator is free to define participation rights in other cases. The following observations will focus on how the intervention of the applicant has been conceived by the legislator in this instance. 116 The applicant can only comment on the Commission s review report. At the first two stages, no formal opportunity is given to them to comment either on the draft report of the Member State rapporteur or on the EFSA s conclusion. The formal contacts with the applicant are essentially restricted to possible requests to complete the file and communications regarding the status of the application. 117 Admittedly, these allow the applicant to be continuously informed about the state of the procedure either because they are requested to present additional information, or because they are informed that the procedure is continuing. Nevertheless, this does not amount to having an input into the procedure equivalent to the input that would result from the opportunity to submit comments on the first two assessments of the application. This case illustrates the difficulties not only of ensuring the effectiveness of the right to be heard in composite procedures, but also of our claim that the right to be heard should be ensured at the level at which the decision is formed. It is the Commission s review report that will set the basis for the final decision. However, it is questionable how much the Commission will effectively deviate from the assessments previously carried out by the Member State and by the EFSA. If, in practice, the Commission tends to follow the latter, the applicant s observations at this stage are unlikely to have much impact on the final decision. This might be different if the Commission is willing to refer back to the Member State and to the EFSA or, indeed, review their assessments in the light of the comments received. The applicant s right to be heard may (or may not) be depleted as a result. A similar three-step procedure is followed for the definition of maximum residue levels of pesticides in or on food and feed. 118 Similar to the procedure described above, the applicant may be requested at different stages to provide additional information. 119 However, there is no provision that grants them a right to be heard at any stage of the procedure, even if the final decision may produce adverse effects in the legal sphere of the persons concerned (e.g. impact on the conditions under which a product may be 111 Regulation 1107/2009 art Regulation 1107/2009 arts 12(1) and (2). 113 Regulation 1107/2009 art.12(2). There is no explicit duty of the EFSA to take the comments received into account. 114 Regulation 1107/2009 art.13(1). 115 Regulation 178/2002 arts 6(3), 22(6) and (8). 116 For a criticism of the fact that the recognition of participation rights is based on the nature of the act at issue, in particular in cases such as this, when the outcome of the procedure may either be an individual decision or a general act depending on whether the authorisation is denied or approved, see Mendes, Participation in EU rulemaking, 2011, Ch.7 para Regulation 178/2002 art.9(2) and (3), art.11(3), art.12(1) and (3). 118 Regulation 396/2005 arts 6(1), 8(1), 9(1), 10 and 14(1) [2005] OJ L70/ Regulation 396/2005 arts 7(2), 11(2) and 14(3).

59 The Right to Be Heard in Composite Administrative Procedures 667 marketed with a view to protect public health). This can only be ensured by resorting to the general audi alteram partem principle applicable only where the final act will be a decision, i.e. when the Commission rejects the application 120 the consequences of which in composite procedures are still not fully established, as seen above. One possibility of defence may result from triggering the administrative review procedure that may be initiated by any person directly and individually concerned. 121 Yet this only covers decisions or omissions of the EFSA. 122 Co-ordination of Member States In a second type of situation, composite procedures can support decision-making by a network of Member States administrative authorities, co-ordinated by the Commission. In these cases, an EU institution adopts the final decision. This occurs in the procedure for obtaining a permit for the use of alien species in aquaculture with cross-border environmental effects. 123 In these cases, the Member State that would be competent to issue an authorisation in the absence of cross-border effects needs to notify the Member States concerned and the Commission of its intention to grant a permit. In addition, it ought to send them the draft decision. The Member States concerned submit their comments to the Commission, which confirms, rejects or amends the Member State draft decision after consulting the relevant EU advisory and expert committees. The Member States concerned may then refer this decision to the Council, which may adopt a different decision on the matter. 124 At no point is there a reference in Regulation 708/2007 to the applicant s right to be heard. One could argue that this is not required given that respect of the right to be heard is a general principle of EU law. Yet we have sufficiently shown the limitations of relying purely on this general principle when applicable to composite procedures. The same is true for the procedures for placing novel foods on the market, which have in essence a similar, albeit more complex, procedural structure. 125 In these cases the right to be heard cannot possibly be effectively ensured at the national level, given that the national decisions may be overturned at EU level. Again here, procedural protection can only be ensured by resort to the general principle of EU law according to which the right to be heard needs to be ensured before the adoption of decisions that have adverse effects, with the respective uncertainties that were pointed out above. The Courts have not so far had the occasion to rule on the right to be heard under the procedure for placing novel foods on the market. Union procedures, local knowledge A third group encompasses certification procedures of Union relevance that are intrinsically rooted in local knowledge, such as the procedures for registration of protected geographical indications and protected designations of origin for agricultural products and foodstuffs. 126 These procedures are essentially developed in two stages. Member States receive registration applications and assess them following the national rules of procedure, subject to the specifications defined in the EU Regulation. 127 This entails a national objection procedure, in which those persons who are established or have residence in the Member State conducting the procedure, who are concerned by the registration and can demonstrate a legitimate interest 120 Regulation 396/2005 art.14(1). 121 On the possibility of administrative review procedures having equivalent effects to the right to be heard, see Mendes, Participation in EU rulemaking, 2011, Ch.7 para Regulation 396/2005 art Regulation 708/2007 art.11 [2007] OJ L168/1, as amended. 124 These steps are established in art.11 of Regulation 708/ Regulation 258/97 concerning novel foods and novel food ingredients. On this, see Mendes, Participation in EU rulemaking, 2011, Ch.7 para Regulation 510/2006 [2006] OJ L93/ Regulation 510/2006 art.5.

60 668 European Law Review in the procedure may voice their views and interests. 128 Their access is limited by specific criteria. In particular, they need to show that the registration does not comply with specific requirements defined by the EU Regulation. 129 These criteria reveal that their intervention is geared towards the achievement of a sound decision that takes duly into account all the relevant facts. There is no provision regarding the right to be heard of the applicant (who is necessarily a group, in the sense of art.5(1) of the EU Regulation). In this case, the general national rules of procedure will apply, and most likely, will ensure the right to be heard when a negative decision is envisaged. 130 The Regulation does however establish the Member State s duty to ensure that holders of legitimate interest have means to appeal the decision adopted. The favourable decision needs to be made public and transmitted to the Commission. From this point onwards, the procedure develops at the Union level. The Commission scrutinises the application, and presumably the Member State s decision to check that it is justified and meets the conditions laid down in [the Regulation]. 131 In effect, the application turns into an application of the assessing Member State. 132 The Commission may reject the application, thereby reversing the Member State s decision. In this case, in the absence of any legislative provision ensuring the right to be heard, the general audi alteram partem principle applies, since the act adopted is a decision. 133 Nevertheless, given the structure of the procedure, the issue arises whether the right to be heard should be granted to the Member State formally the addressee of the decision or to the group who originally applied for the registration. From the perspective of the effective procedural protection of the persons concerned, and in line with Lisrestal, the latter also needs to be heard. Presumably, the Member State s care in conducting the procedure is decisive for the final decision adopted by the Commission. Both the Member State and the Commission perform exactly the same role: both need to check that the application is justified and meets the conditions of the EU Regulation. 134 At the end, the Commission s assessment amounts to controlling the procedural conduct and the substantive decision of the Member State. In these circumstances, the exercise of the right to be heard should encompass the factual basis of both the Member State s and the Commission s decision. This may be problematic in view of the composite nature of the procedure. 135 However, when the Commission is favourable to the registration, it needs to initiate, upon publication of its decision, an EU objection procedure very similar to the one conducted at the national level. This time, this will be extended to Member States, third countries and natural or legal persons established or resident in a Member State other than that applying for the registration, or in a third country. 136 The access requirements for natural and legal persons are the same as the ones defined for the national objection procedure. 137 If the procedure has reached this stage, its most likely outcome is the registration of the geographical indication or designation of origin, adopted in form of a regulation. 138 According to art.7(5) of the EU Regulation, the Commission will seek to reach an agreement between the interested parties. If this is not possible, it will ultimately, take a decision pursuant to a comitology procedure. The right to be 128 Regulation 510/2006 art.5(5). 129 Regulation 510/2006 art.5(5) second paragraph and art.7(3). 130 See further Mendes, Participation in EU rulemaking, 2011, Ch.2 para Regulation 510/2006 art.6(1). 132 Article 7(2) refers to the Member State applying for the registration (emphasis added). 133 Regulation 510/2006 art.7(5) para Regulation 510/2006 art.4(1) second paragraph, and art.6(1). 135 See section The framework of participation in composite administrative procedures above. 136 Regulation 510/2006 art.7(1) and (2). 137 See note to Regulation 510/2006 art.5(5) second paragraph and art.7(3). 138 Regulation 510/2006 art.7(4) of does not explicitly indicate that the registration will be adopted as a regulation (it merely indicates that it needs to be published in the Official Journal, which could be interpreted as an indication in this sense). In practice, entering a designation in the register of protected designations of origin and protected geographical indications has been done by the adoption of regulations.

61 The Right to Be Heard in Composite Administrative Procedures 669 heard of the applicant (in this case the Member State who forwarded the application to the Commission) is ensured by the fact that their opinions need to be considered in the agreement sought. 139 In this case, the fact that the final act is adopted in the form of a regulation is irrelevant, since this rule is enshrined in express legislative provisions. In this procedure, parallel participation opportunities are ensured both at the national and at EU level, although targeting different groups of interested persons in each case. This is in principle desirable, even if it still does not solve all the problems that might flow from the composite nature of the procedure. The same analysis and conclusion applies mutatis mutandis to the procedure for the registration of agricultural products and foodstuffs as traditional specialities guaranteed. 140 Suggestions for a conceptual approach Composite procedures differ fundamentally in how they divide competences and combine the contributions and intervention of national and EU administrations. This makes it impossible to defend one universal rule defining the level at which the right to be heard should be ensured. The above analysis of the way the Courts have approached the right to be heard in the procedure leading to the adoption of autonomous EU sanctions has illustrated the shortcomings of the Courts approach. These lie, in particular, in the rule according to which the right to be heard must be ensured in the first place in the relations between the person concerned and the national administration. This rule originated in the realm of customs procedures (France Aviation 141 ) and was already overcome in customs cases when the Court applied it to procedures leading to the adoption of counter-terrorist sanctions. The cases on procedures regarding the reduction of financial assistance granted by the European Social Fund indicate that this rule is limited to one specific sector and suggests on other ways of approaching participation in composite procedures. Indeed, in particular since Lisrestal, 142 the Court has been especially mindful of the consequences that follow from the design of the procedure when assessing the place of the right to be heard in these composite procedures. Admittedly, some aspects of the autonomous sanctions procedures such as the fact that the listing proposal results from a separate national criminal procedure; that criminal law is not generally an EU competence but is close to the core of national sovereignty; and that the competent national authority forms part of the judiciary (if this was the case) could justify the applicability of the rule according to which the right to be heard needs to be ensured in the first place at the national level. However, in particular the great adverse effects that the EU listing has for the individual and also the fact that the Council has the task to carry out a substantive analysis would require a hearing at EU level which extends to the factual grounds that justify the listing, as well as to the compliance with procedural rights in the national procedure. We argue that, as a matter of principle, in accordance with the fundamental nature of the right to be heard, this should be ensured at the level at which the decision is formed, taking into account the effects that decisions produce at each level. This requires considering composite administrative procedures as unitary procedures that lead to unitary outcomes, including possible adverse effects in the legal sphere of private persons. Only this way can the position of those affected be duly protected. This is, however, a difficult rule to apply, given the complexity and intricate interdependence of the intervention of national and EU administrations in each case. Thus, it might be quite difficult to determine beforehand where the decision is effectively formed in cases where, for example, the Commission adopts the substantive and final decision on the basis of previous assessments made by national administrations, when both have a 139 Regulation 510/2006 art.7(5) second paragraph. 140 Regulation 509/2006 arts 7 9 [2006] OJ L93/ France Aviation (T-346/94) [1995] E.C.R. II Lisrestal (T-450/93) [1994] E.C.R. II-1177.

62 670 European Law Review power of appraisal (i.e. are not bounded by the assessments of the other intervening administrative bodies). The procedure for placing plant protection products on the market is a case in point. At the end, determining where the decision was effectively formed may be very much dependent on the way the procedure develops in each case. One alternative could be to ensure parallel participation opportunities at the different stages of the procedure, similarly to what is envisaged in the procedures for registration of protected geographical indications and protected designations of origin for agricultural products and foodstuffs. This might, however, imply excessive procedural costs in certain cases (e.g. double participation on the same substantive issues). In any event, implicit or explicit reliance on the general audi alteram partem principle, without a unitary conception of the procedure, is incapable of ensuring the procedural protection of the persons affected. In fact, its application is very likely hindered by the composite nature of the procedure, as results from the case law analysed in the first section of this article. The analysis of selected procedures enshrined in EU legislation has demonstrated that the legislator has not given enough attention to procedural protection in the context of composite procedures. This may be due to a variety of factors, such as the fact that the design of procedures tends to focus on the co-ordination between different administrative entities situated at different levels of government. For this reason, the EU Courts should step in and take an active stance in ensuring a unitary conception of the procedure in order to warrant effective compliance with the right to be heard. In doing so, however, they will need to take into account the specificity of each procedure, and in the light of the problems that these have raised, refine the principle according to which the right to be heard should be ensured at the level in which the decision is formed.

63 Delegated Acts, Implementing Acts and the New Comitology Regulation Paul Craig * St John s College and the University of Oxford Committee procedures; EU law; EU legislative process; Implementation; Subordinate legislation Abstract The hierarchy of norms was central to the Lisbon Treaty reforms. This hierarchy is crucially dependent on the divide between delegated and implementing acts, since differing regimes of oversight and accountability apply to the two types of act. The first half of this article is concerned with the tenability of this divide and it is argued that there are five problems with the Lisbon dichotomy. The focus then shifts to analysis of the new Comitology Regulation that applies to implementing acts as governed by art.291 TFEU. The difficulties with the new regime will be highlighted and the official orthodoxy to the effect that the new Regulation simplifies the previous rules will be questioned. Introduction On December 16, 2010 the Belgian Presidency of the EU issued a press communiqué announcing that it had brokered an agreement with the European Parliament and the Commission on the new Comitology Regulation 1 that applies to implementing acts in accordance with art.291 TFEU. The communiqué stated that the agreement had been negotiated in record time, and that the days of the then current comitology system, which was both an indispensable tool for interest groups and a nightmare for European studies students, were numbered. There is no doubt that the pre-existing comitology regime has indeed gone. Whether the new system proves less of a nightmare for students and institutional players alike is a good deal less certain. This article analyses in detail Regulation 182/2011, which contains the new comitology rules. The discussion begins, however, with the divide between delegated and implementing acts. This is crucial in the post-lisbon world, since very different sets of controls and accountability mechanisms operate in relation to the two types of act. It is argued that there are five problems with this dichotomy, that the criterion for the division between the two types of act is fragile and difficult to apply, and that it calls into question the wisdom of making the divide. The discussion thereafter examines in detail the provisions of the new Regulation, highlighting ambiguities and areas of difficulty. The article concludes with some more general reflections on Regulation 182/2011, questions the accepted orthodoxy that it embodies only two procedures and considers the way in which it is likely to play out in practice. * Professor of English Law. 1 Regulation 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission s exercise of implementing powers [2011] OJ L55/

64 672 European Law Review The divide between delegated and implementing acts: five problems The Lisbon Treaty established two categories of act below that of legislative acts, delegated and implementing acts, the rules relating to which are set out in arts 290 and 291 TFEU respectively. There has been much discussion concerning the Lisbon hierarchy of norms, and the forces that shaped it. 2 I do not intend to traverse this general terrain, but to focus sharply on the nature of the divide between delegated and implementing acts, since it is crucial to the new order. The rationale for the divide was to distinguish between secondary measures that were legislative 3 or quasi-legislative in nature, delegated acts, and those that could be regarded as more purely executive, implementing acts. The difficulties of realising this divide were, however, never fully thought through in the deliberations on the Constitutional or Lisbon Treaties, and it is doubtful whether the objective has been realised. Article 290 TFEU provides that delegated acts are of general application and amend or supplement non-essential elements of the legislative act. Implementing acts will normally be of general application, since art.291 TFEU specifies their use in circumstances where uniform conditions for implementing legally binding acts are needed. Thus in most instances implementing acts will be of general application. The key distinguishing feature is therefore that implementing acts execute the legislative act without amendment or supplementation. There are five significant problems with the Lisbon dichotomy. The language problem The most fundamental issue is of course to decide when an act amends or supplements a legislative act. If a secondary measure does so it must be a delegated act. If it does not, then it is an implementing act. The Commission came close to perceiving the nub of the problem, but did not fully grasp the difficulties of the new schema. 4 The language of amend and supplement was used to denote the circumstances in which the 2006 regulatory procedure with scrutiny would be applied. 5 The Commission drew on this to interpret the divide between delegated and implementing acts in the post-lisbon world. Thus it argued that amend connoted those instances where there was a formal amendment to a basic instrument, which would then demand use of delegated acts. The Commission correctly noted that this must be so irrespective of the nature of the amendment. Thus amendment to an annex of a basic act was subject to the delegated act regime just as much as amendment to articles in the main body of the basic act. 2 A. von Bogdandy, J. Bast and F. Arndt, Legal Instruments in European Union Law and their Reform: A Systematic Approach on an Empirical Basis (2004) 23 Y.B.E.L. 91; K. Lenaerts and M. Desomer, Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures (2005) 11 E.L.J. 744; J. Liisberg, The EU Constitutional Treaty and its Distinction between Legislative and Non-Legislative Acts in B. Olsen and K. Sorensen (eds), Regulation in the EU (Thomson, 2006), pp ; B. de Witte, Legal Instruments and Law-Making in the Lisbon Treaty in S. Griller and J. Ziller (eds), The Lisbon Treaty, EU Constitutionalism without a Constitutional Treaty (Springer, 2008), pp ; H. Hofmann, Legislation, Delegation and Implementation under the Treaty of Lisbon: Typology Meets Reality (2009) 15 E.L.J. 482; B. Driessen, Delegated Legislation after the Treaty of Lisbon: An Analysis of Article 290 TFEU (2010) 35 E.L. Rev. 837; P. Craig, The Lisbon Treaty, Law, Politics and Treaty Reform (Oxford: Oxford University Press, 2010), Chs 2, 7. 3 Article 290 TFEU states that delegated acts are non-legislative, but this simply reflects the formal position that under the Treaty legislative acts are those made in accordance with a legislative procedure (art.289 TFEU). The appellation non-legislative applied to delegated acts should not therefore mask the fact that they are commonly legislative or quasi-legislative in nature, in the sense that they are acts of general application that establish secondary rules, which specify in greater detail the meaning or application of articles within the legislative act itself. 4 Implementation of Article 290 of the Treaty on the Functioning of the European Union COM(2009) 673 final. 5 Decision 2006/512 amending Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission [2006] OJ L200/11.

65 Delegated Acts, Implementing Acts and Comitology 673 The Commission then addressed the meaning of the verb supplement, noting that it was less specific than the verb amend. The Commission s approach to determining whether a measure supplemented the basic instrument was to assess whether the future measure specifically added new non-essential rules which changed the framework of the legislative act, leaving a margin of discretion to the Commission. If this occurred the measure would supplement the basic instrument, and the delegated act regime would once again be required. If conversely, the measures were intended only to give effect to the existing rules of the basic instrument they should not be deemed to be supplementary measures, and hence the implementing act regime could be used. We can now appreciate what I have termed the language problem: all secondary measures involve some addition to the basic or primary act. Many thousands of secondary measures have been enacted since the inception of the EEC. In the paradigm case they are of general application and bring greater exactitude to the meaning of an article of the primary act. Thus, for example, there might be a complex primary act dealing with agriculture, and a secondary measure specifies in greater detail one part of the primary act relating to, for example, the requirements for the independence of agencies that pay money pursuant to the primary regulation. Such measures clearly add something to the primary act. This will be equally true for any measure classified as an implementing act in the post-lisbon world, since the very specification of uniform conditions of implementation will be adding something to the enabling provision in the legislative act. The key issue is therefore whether what is added will be regarded as supplementing the legislative act. This necessarily means that the criterion for the divide between delegated and implementing acts is dependent on, and demands, the following evaluation. This is the criterion that flows from the Lisbon schema. 6 It might be considered that the article in the legislative act has sufficiently resolved the relevant issues, the conclusion being that the secondary measure, while obviously imbuing the article of the legislative act with greater detail, and hence adding something, does not supplement it by adding any new non-essential element so as to trigger recourse to art.290, and therefore art.291 can be used. It might in other instances be considered that the relevant article in the legislative act is less definitive, the conclusion being that while the legislative act has provided sufficient guide as to essential principles so as to be lawful under art.290, the secondary measure has nonetheless supplemented it by the addition of new non-essential elements, and therefore art.290 must be used. The divide between the terrain of delegated and implementing acts turns on the preceding determination. It is difficult to regard this as satisfactory. It is bound to generate inter-institutional disputes as to whether recourse should be had to art.290 or 291 TFEU. It calls into question the normative foundation for the differential controls that operate in relation to delegated and implementing acts. There will inevitably be instances where juxtaposition of acts will reveal scant reason as to why the supplementation of the legislative act in the one instance should be regarded as a new non-essential element, such that a delegated act is required, while in other instances this is not so, such that an implementing act can be used. The same point can be put rather more baldly. Take 20 experts. Ask each independently to consider whether a secondary measure should be adjudged to supplement the basic act by the addition of new non-essential elements so as to require recourse to art.290 using the preceding criterion. Compare the results and the reasoning. The political consequences of this fine line will be considered below. It might be argued that some legal way will be found around the preceding conundrum. The legal mind is infinitely ingenious and some solution may therefore be proffered. I will not attempt to predict the unpredictable. Suffice it to say the following in this respect. Any legal solution to this conundrum must be pragmatically, textually and normatively sustainable, to some minimal degree at least. 6 Craig, The Lisbon Treaty, 2010, Ch.7.

66 674 European Law Review Thus, for example, a putative argument that implementing acts should be allowed to amend or supplement a basic act, where uniform conditions for implementation are required, fails on textual and normative counts. 7 Such an argument has no foundation in the wording of the Treaty, and in normative terms emasculates the very rationale for the divide between the two types of secondary measure. An alternative solution might be to attempt to deny that all secondary measures add something to the basic act, which is the root cause of the dilemma identified above. The problem is of course that such an argument makes no sense. They clearly do add something, so to asseverate to the contrary is simply to fly in the face of reality. If anyone were inclined to make such an argument it would then of course be incumbent on them to give examples of secondary measures that specify uniform conditions for implementation and yet do not add something to the relevant provision of the basic act. Any solution predicated on general invocation of the quasi-legislative/executive divide is equally problematic, albeit for different reasons. There is no point incanting the phrases legislative/quasi-legislative in nature and executive in nature in relation to secondary acts, as if this were some magic wand that enabled the informed, let alone the uniformed, observer to decide whether the measure should be regarded as falling within arts 290 or 291, since such phrases can provide no certain or predictable basis for deciding on the divide. Such conclusory phrases merely mask the underlying substantive issue and do not resolve it. They furnish no explanation as to why two secondary measures, both of which are general and add something to the basic act, should be treated differently in terms of the regime of control and oversight. Any answer to this inquiry leads back, directly or indirectly, to the meaning of amendment or supplementation. The same is true of functional tests, which would make the divide between the two types of act turn on a range of factors in order to determine whether a secondary measure should be classified as a delegated or an implementing act. It is not clear what this range of factors would be, other than amendment/supplementation, given that both types of secondary measure will, in the paradigm case, be of general application and add something to the basic act. The vagueness of any such test inevitably means that it would provide scant guidance to the institutional players, let alone any interested outsider, and would be interpreted instrumentally to serve the desired imperatives of the particular institutional player. The temporal problem The second problem is less obvious than the first, but it is equally significant. It is not possible to decide conclusively whether a secondary measure falls into the category of delegated or implementing acts according to the preceding criterion until it is made, more especially because any draft measure may be changed prior to final enactment and this may take the measure from the category of delegated to implementing act, or vice versa. The new Comitology Regulation has multiple opportunities for change to a draft implementing act. The only mechanism for checking whether the Commission has exceeded its power in making an implementing act is in art.11, but there are limitations as to the use of this article and it is not primarily geared towards the divide between delegated and implementing acts. The choice between delegated and implementing act will, however, be made at an early stage. This is because the procedures for making delegated and implementing acts are very different. Delegated acts are subject to the ex ante and ex post controls in art.290 exercised by the Council or European Parliament. Implementing acts are subject to the revised comitology procedure. The danger is that once a draft measure is classified as, for example, an implementing act, and the revised comitology process has been engaged, the Commission will be loath to admit that any changes made by this process involve supplementation 7 Craig, The Lisbon Treaty, 2010, pp

67 Delegated Acts, Implementing Acts and Comitology 675 of the legislative act via the introduction of new non-essential elements, since this would mean that the act should be regarded as a delegated act. The institutional problem There are three institutional problems with the Lisbon schema. They are related but distinct, the first being more obvious than the second and third. First, the Lisbon regime will lead to greater institutional complexity. There will be comitology committees established pursuant to art.291, which will, as before, be listed. There will, as acknowledged in the Common Understanding, however also be a whole world of advisory committees created by the Council and perhaps the European Parliament pursuant to art.290, in order to enable these institutions to decide whether they should exercise their veto power, and there is no formal mechanism for such committees to be known or listed. The art.290 committees will be distinct from those created under art.291, and their membership will differ. Secondly, the difficulties in applying the Treaty criteria for the divide between delegated and implementing acts will almost certainly mean that the principal institutional players will seek to categorise secondary measures in order to maximise their control. How this plays out remains to be seen. The Council may, for example, be content for measures to be categorised as implementing acts, notwithstanding that it has no formal veto of the kind that exists under art.290, and notwithstanding the fact that the new Comitology Regulation provides no means of recourse to the Council of the kind that existed hitherto. This is because the art.291 route does give Member State representatives the opportunity for formal and detailed input into the making of the measure. Moreover, while the Council qua Council is not afforded the oversight role that it had previously, the political reality is, as will be seen below, that things may not work out that differently. The European Parliament, by way of contrast, is likely to press for more measures to be included within the category of delegated acts, since it is art.290 that contains the veto power, and art.291 has little to offer the European Parliament. Thirdly, if the new divide between delegated and implementing acts is played for maximum political advantage as judged by the principal institutional players, this then undermines the very rationale for the dichotomy between the two types of act. If the political reality is that the divide does not in practice embody some real difference between the two types of act, but is used instrumentally for institutional advantage, then it brings into question the very rationale for this part of the new Treaty schema. The transitional classification problem The devil is always in the detail. It just depends where the detail is located. In this instance it is found in the interstices of the new Comitology Regulation. Article 12 repeals Decision 1999/468, but preserves the effects of art.5(a). Thus going forward the effect of art.5(a) for acts that were subject to the regulatory procedure with scrutiny will be maintained. Article 13 of Regulation 182/2011 contains transitional provisions for all other comitology measures, with some being subject to the new advisory procedure, others being subject to the new examination procedure, in the manner explicated below in the discussion of Regulation 182/2011. The assumption is that the many thousands of secondary measures previously subject to the management and regulatory procedure will henceforth be regarded as implementing acts. The divide between delegated and implementing acts going forward will therefore be powerfully shaped by the categorisation that existed hitherto. It might be argued that it was correct to make the classification in this manner. Such an argument is predicated on the following rationale. In the pre-lisbon world any measure that was not subject to the regulatory procedure with scrutiny did not amend or supplement the basic act. In the post-lisbon world

68 676 European Law Review it is therefore correct for such measures to be regarded as implementing acts, and not delegated acts. This reasoning is neat, but incomplete for the following reasons. First, the criterion for invocation of the regulatory procedure with scrutiny in art.5(a) was that the basic act was made by co-decision and the secondary measure of general scope amended it, or supplemented it by the addition of new non-essential elements. This procedure was therefore inapplicable where the basic act was not passed by co-decision, irrespective of whether the secondary measure might otherwise be regarded as amending or supplementing the basic act. The problem is immediately apparent. The Lisbon Treaty extended the reach of co-decision, now the ordinary legislative procedure, to many new areas. The justification for regarding secondary measures within such areas as ipso facto implementing acts falls away. They might be so regarded. They might not. We can make no assumption either way. We have to decide whether the relevant measure amends or supplements the basic act in the manner discussed above. Secondly, the premise that everything subject to the management and regulatory committee procedure is properly to be regarded as an implementing act only makes sense on the assumption that the modification of the acquis in the light of the 2006 changes to the comitology procedure was completed prior to the new Comitology Regulation. The 2006 amendment to the 1999 comitology regime demanded assessment as to whether secondary measures that were hitherto subject to the management or regulatory procedure should be upgraded to the regulatory procedure with scrutiny, on the ground that such measures were passed pursuant to a basic act made by co-decision and amended or supplemented it. This assessment and upgrading was undertaken. 8 It is nonetheless clear from a resolution of the European Parliament that the process was still ongoing until at least The Commission has, however, stated that powers under legislative acts that had not yet been adapted to the regulatory procedure with scrutiny prior to entry into force of the Lisbon Treaty, would be adapted if necessary to the regime for delegated acts under art Thirdly, the premise that everything subject to the management and regulatory committee procedure is properly to be regarded as an implementing act is not only contingent on the upgrading process having been undertaken, but also on the way in which it was done. In some instances this was uncontroversial. Thus, where the Commission was empowered to amend a basic act passed pursuant to art.251 EC via a secondary measure, this clearly triggered upgrading to regulatory procedure with scrutiny. It is more difficult to form a view as to the interpretation given to the idea of supplementation by the addition of a new non-essential element in this upgrading exercise. Thus the mere fact that the acquis was divided into two piles gives little indication as to the criterion that was used in making the all-important determination as to whether a secondary act supplemented the primary act. Finally, it should not automatically be assumed that the criteria used to determine the divide between the regulatory procedure with scrutiny and other comitology procedures, howsoever it was applied, can be mapped perfectly on to the post-lisbon world. The European Parliament adverted to this point, when stating that the pre-lisbon alignment process could not be regarded an exact precedent for the future divide between delegated and implementing acts. 11 There is force to this point. The divide between the regulatory procedure with scrutiny and other comitology procedures was important. The European Parliament s point is nonetheless surely correct. The divide between delegated and implementing acts under the Lisbon Treaty is far more significant. This is in part because the consequences of the division, in terms of the differential 8 Regulation 1137/2008 adapting a number of instruments subject to the procedure laid down in Article 251 of the Treaty to Council Decision 1999/468, with regard to the regulatory procedure with scrutiny Adaptation to the regulatory procedure with scrutiny Part One [2008] OJ L311/1. See also Regulation 219/09 [2009] OJ L87/109; Regulation 596/2009 [2009] OJ L188/14. 9 Alignment of legal acts to the new Comitology Decision. European Parliament resolution of September 23, 2008 with recommendations to the Commission on the alignment of legal acts to the new Comitology Decision (2008/2096(INI)) [2010] OJ C8E/ Council 5768/11, February 7, Alignment of Legal Acts to the new Comitology Decision [2010] OJ C8E/22, Recitals, K, L.

69 Delegated Acts, Implementing Acts and Comitology 677 regimes for control and accountability in arts 290 and 291, are more far-reaching. It is in part because the distinction is now embodied in primary Treaty articles, and has a constitutional significance beyond anything that existed hitherto. The formalism problem The final problem with the divide between delegated acts and implementing acts flows from the formalism of the Treaty schema for the hierarchy of norms. Article 290 is conditional on a delegated act being made pursuant to a legislative act. The definition of legislative act in art.289 is formal: it is an act made by the ordinary or special legislative procedure. There are important Treaty provisions such as art.103 TFEU dealing with competition, and art.109 TFEU dealing with state aid, which empower the making of regulations, etc. in terms that do not come within the category of ordinary legislative act, and it is questionable whether they fall within the category of special legislative act. 12 If the primary act in such areas cannot be regarded as a special legislative act then the condition precedent for use of art.290 disappears. The consequence would be that any secondary measure would have to be made via art.291, even if it amended or supplemented the primary act. This would be wrong in principle, since the primary measures in these areas encapsulate important issues of policy and value, and should only be capable of being amended or supplemented through the art.290 procedure. The new Comitology Regulation The discussion thus far has been concerned with the difficulties attendant on the divide between delegated and implementing acts in the post-lisbon regime. The importance of that distinction is thrown into sharp relief by realisation of the very different set of controls that apply to delegated and implementing acts. The new comitology schema for implementing acts under art.291 is embodied in Regulation 182/2011. The ensuing analysis will consider the Regulation in detail and the political forces that shaped it. It is only by juxtaposing the original Commission proposal, 13 and paying close attention to the subsequent deliberations in the European Parliament and the Council, that one can appreciate the areas of contestation and the modifications that the Commission had to make in order to secure the passage of the new Regulation. The two general procedures: criteria for choice between them Regulation 182/2011 has simplified the pre-existing comitology regime. There are, subject to comments made below, now two basic procedures, the advisory procedure and the examination procedure. This picture is, however, rendered more complex than it appears at first sight through qualifications, and because art.8 of the Regulation also makes provision for implementing acts to be immediately applicable on grounds of urgency. Article 2 specifies when the respective procedures are to be applied. Article 2(1) states that the basic act may provide for application of the advisory or examination procedure taking into account the nature or impact of the implementing act required. 12 Craig, The Lisbon Treaty, 2010, pp Proposal for a Regulation of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission s exercise of implementing powers COM(2010) 83 final.

70 678 European Law Review It is nonetheless clear from art.2(3) that the advisory procedure is the default procedure, in the sense that it is to be used except when the examination procedure is mandated. 14 Article 2(3) provides moreover that even where the examination procedure is mandated, the advisory procedure may nonetheless be used in duly justified cases. The precise meaning accorded to this Delphic phrase remains to be seen. Recital 15 to the Regulation provides scant assistance in this respect, stating that the advisory procedure should apply in all instances not covered by the examination procedure, or where it is considered more appropriate. The phrase appears at a number of points in Regulation 182/2011, but the contexts in which it is used are, as will be seen, very different. It is unclear who makes the determination that use of the advisory procedure is duly justified. It is possible that this might be done in the legislative act that authorises passage of implementing acts, but it will be rare for the Council and European Parliament to be sufficiently prescient of what are as yet unknown implementing acts to be in a position to trigger the exception in art.2(3). It will in all likelihood be the Commission that argues that the advisory procedure is duly justified and thereby displaces the examination procedure, and indeed the very inclusion of this phrase is indicative of the Commission s desire to have recourse to the less troublesome advisory procedure if possible. This still leaves open the issue as to who ultimately decides whether such recourse is possible. If the relevant comitology committee signals its acceptance of the shift from examination to advisory procedure because it acknowledges that the latter is indeed duly justified then it will undoubtedly be used. The more difficult instance is of course where the Commission s desire to invoke the duly justified clause meets opposition from the comitology committee, which wishes to retain the examination procedure for the particular implementing act. The logic of Regulation 182/2011 should be that the examination procedure prevails, since there is nothing to suggest that the Commission has decisional autonomy enabling it to legally force a shift from examination to advisory procedure against the will of the comitology committee. How this plays out in political terms is quite another matter. Article 2(2) specifies the instances where in particular the examination procedure should be used. It draws not surprisingly on the instances specified in the 1999 Comitology Regulation for use of the management and regulatory procedures. 15 Thus art.2(2)(a) states that the examination procedure applies in relation to implementing acts of general scope. Article 2(2)(b) then lists other acts for which the examination procedure should be used. These are acts that relate to: programmes with substantial implications; the common agriculture and fisheries policies; the environment, security and safety or protection of the health or safety of humans, animals or plants; the common commercial policy; and taxation. The criteria for the more demanding examination procedure in art.2 therefore relate in part to the nature of the act, implementing acts of general scope or programmes with substantial implications, and in part to specific subject matter areas such as agriculture, fisheries, taxation and the like. The net effect is that although the advisory procedure is the default procedure, in the sense that it applies to those instances where the examination procedure is not required, the examination procedure itself will prima facie be applicable to a considerable range of implementing acts, since the criteria for its application in art.2(2), viewed both individually and in aggregate, are broad. Thus, for example, many implementing acts will be of general scope. There will be many others that relate to programmes with substantial implications, more especially because this criterion for application of the examination procedure does not demand that the implementing act itself should have substantial implications, but that the programme to which it relates has such implications. 14 Proposal for a Regulation laying down the rules and general principles concerning mechanisms for control by Member States of the Commission s exercise of implementing powers COM(2010) 83 final art.2(3). 15 Decision 99/468 laying down the procedures for the exercise of implementing powers conferred on the Commission art.2 [1999] OJ L184/23.

71 Delegated Acts, Implementing Acts and Comitology 679 The application of the criteria for the examination procedure in art.2(2), in particular those parts that do not relate to specific subject-matter areas, will nonetheless by their very nature leave considerable discretion as to whether for example a programme does have substantial implications. The temptation for the Commission may well be, in cases of doubt, to push particular implementing acts through the less demanding advisory procedure, or to seek to invoke the duly justified clause whereby an implementing act that is prima facie subject to the examination procedure can nonetheless be dealt with through the advisory procedure. The advisory and examination procedures: common provisions Article 3 specifies certain provisions that apply in common to the advisory and examination procedure. Thus in both instances the Commission is assisted by a committee composed of representatives of the Member States, which is chaired by a representative of the Commission, but the chair does not take part in the committee vote. The chair submits to the committee the draft implementing act to be adopted by the Commission and except in duly justified cases, the chair convenes a committee meeting not less than 14 days from submission of the draft implementing act and of the draft agenda to the committee. The committee delivers its opinion on the draft implementing act within a time limit specified by the chair in accord with the urgency of the matter. Article 3(3) nonetheless makes clear that time limits shall be proportionate and shall afford committee members early and effective opportunities to examine the draft implementing act and express their views. Article 3(4) is important in allowing the Commission to retain control of proceedings. It provides that until the committee delivers an opinion, any committee member may suggest amendments and the chair may present amended versions of the draft implementing act. It is, however, incumbent on the chair to inform the committee of the manner in which the discussions and suggestions for amendments have been taken into account, in particular as regards those suggestions which have been largely supported within the committee. The magic phrase duly justified appears once again in art.3(5). In this instance it is used by the chair to justify obtaining the committee s opinion by written procedure. The chair sends the committee members the draft implementing act and lays down a time limit for delivery of an opinion according to the urgency of the matter. Any committee member who does not oppose the draft implementing act or who does not explicitly abstain from voting thereon before expiry of the time limit is regarded as having tacitly agreed to the draft implementing act. The possibility of recourse to the written procedure is, however, qualified by art.3(5). It states that, unless otherwise provided in the basic act, the written procedure is terminated without result where, within the time limit referred to above, the chair so decides or a committee member so requests. In such cases, the chair must then convene a committee meeting within a reasonable time. The advisory procedure The advisory procedure is specified in art.4. It is simple by way of comparison with the examination procedure. Thus art.4(1) states that where the advisory procedure applies, the committee delivers its opinion, if necessary by taking a vote. If the committee takes a vote, the opinion is delivered by a simple majority of its component members. Article 4(2) reveals the advisory nature of the advisory procedure. It states that: The Commission shall decide on the draft implementing act to be adopted, taking the utmost account of the conclusions drawn from the discussions within the committee and of the opinion delivered.

72 680 European Law Review It is clear therefore that the Commission is not bound by the committee s opinion, but must simply take utmost account of it. The examination procedure The examination procedure is, by way of contrast, a good deal more complex, and the initial Commission proposals for this procedure were changed in the light of criticisms voiced by the other institutional players. Article 5(1) stipulates that where the examination procedure applies, the committee delivers its opinion by the majority laid down in art.16(4) and 16(5) TEU, and, where applicable, art.238(3) TFEU, for acts to be adopted on a proposal from the Commission. The votes of the Member State representatives on the committee are weighted in the manner set out in those articles. Article 5 provides for different outcomes depending on whether the committee votes in favour of the draft measure, against it, or delivers no opinion The positive vote by the committee is, not surprisingly, the simplest scenario. Article 5(2) provides that where the committee delivers a positive opinion in accord with the preceding voting rules the Commission shall then adopt the draft implementing act. The negative vote by the committee leads to greater complexity. Article 5(3) states that where the committee delivers a negative opinion the Commission shall not adopt the draft implementing act in such instances. This is, however, qualified in four ways. First, art.5(3) provides that where an implementing act is deemed to be necessary, the chair may submit an amended version of the draft implementing act to the same committee within two months of the negative opinion. Secondly, art.5(3) provides in the alternative that the Commission can submit the draft implementing act within one month of such delivery to the appeal committee for further deliberation. Thirdly, art.7 contains a derogation from art.5(3), such that the Commission can adopt the draft implementing act even where there has been a negative opinion if such adoption without delay is necessary to avoid creating a significant disruption of the markets in the area of agriculture, or a risk for the financial interests of the Union within the meaning of art.325 TFEU. The Commission must then immediately submit the adopted acts to the appeal committee, and if it delivers a negative opinion on the adopted act, the Commission must then repeal it. Where the appeal committee delivers a positive opinion or delivers no opinion, the act shall remain in force. Fourthly, art.8, which is explained in more detail below, provides a further derogation from art.5, whereby, subject to the conditions in art.8, the Commission can adopt the draft act in cases of urgency. The consequences of the committee delivering no opinion are also complex. The default position in art.5(4) is that the Commission can adopt the draft implementing act, or submit an amended version to the committee. This default position is however subject to the following qualifications. First, there are instances listed in art.5(4) where the Commission cannot adopt the draft implementing act. These are: implementing acts that concern taxation, financial services, the protection of the health or safety of humans, animals or plants, or definitive multilateral safeguard measures; where the basic act provides that the draft implementing act may not be adopted where no opinion is delivered; or where a simple majority of the component members of the committee opposed it. Secondly, the inability to adopt a draft implementing act in relation to the matters listed in the preceding paragraph is then itself qualified. This is because art.5(4) further provides that in, any of the cases listed in the second subparagraph where an implementing act is deemed to be necessary, the chair may either submit an amended version of that act to the same committee within 2 months of the vote, or submit the draft implementing act within 1 month of the vote to the appeal committee for further deliberation.

73 Delegated Acts, Implementing Acts and Comitology 681 Thirdly, the inability to adopt a draft implementing act in relation to the matters listed above where the committee has delivered no opinion is further qualified by art.7: the Commission can adopt the draft implementing act even where there has been no opinion if such adoption without delay is necessary to avoid creating a significant disruption of the markets in the area of agriculture, or a risk for the financial interests of the Union within the meaning of art.325 TFEU, subject to Commission submission of the adopted act to the appeal committee in the manner explicated above. Fourthly, art.5(5) derogates from art.5(4) in relation to adoption of draft definitive anti-dumping or countervailing measures, where no opinion is delivered by the committee and a simple majority of its component members opposed the draft implementing act. Article 5(5) contains a distinct procedure for such cases, which involves Commission consultation with Member States, followed by Commission submission of a draft implementing act to the appeal committee, which delivers its opinion in accord with art.6, discussed below. Finally, art.8 contains a general derogation from arts 4 and 5 enabling the Commission, subject to certain conditions, to adopt an act immediately on grounds of urgency. Immediately applicable implementing acts The preceding discussion has adverted to art.8 of the Regulation, which deals with immediately applicable implementing acts. We should now examine the rules pertaining to such acts. The reality is that although the new Regulation has been promoted as entailing only the advisory and examination procedures, the rules concerning immediately applicable implementing acts constitute a third type of procedure within the new comitology world. Article 8(1) provides, by way of derogation from arts 4 and 5, that a basic act may provide, on duly justified imperative grounds of urgency, that the procedure for immediately applicable acts is to apply. Where this is so, the Commission adopts an implementing act which shall apply immediately, without prior submission to a committee, which remains in force for a period not exceeding six months unless the basic act provides otherwise (art.8(2)). It is, however, incumbent on the chair within 14 days after its adoption to submit the act to the relevant committee to obtain its opinion (art.8(3)). If the act is one to which the examination procedure would apply and the committee delivers a negative opinion, the Commission must then repeal the implementing act (art.8(4)). There are, however, special provisions applicable to provisional anti-dumping or countervailing measures. The Commission adopts such measures after consulting or, in cases of extreme urgency, after informing the Member States (art.8(5)). 16 Appeal committee The original Commission proposal 17 for Regulation 182/2011 contained no provision for an appeal committee. The inclusion of such a committee as part of the new comitology rules was the result of amendments suggested by the European Parliament. 18 There were hard-fought battles about the precise role to be played by such a committee within the new comitology regime, and, as will be seen below, it is accorded a prominent place in the new schema, in particular in relation to the examination procedure. Article 3(7) stipulates that the appeal committee adopts its own rules of procedure by a simple majority of its component members, on a proposal from the Commission. Where the appeal committee is seised, it must meet at the earliest 14 days, except in duly justified cases, and at the latest six weeks, after the date 16 If the Member States are merely informed, consultations must then take place 10 days at the latest after notification to the Member States of the measures adopted by the Commission: art.8(5). 17 COM(2010) 83 final. 18 Committee on Legal Affairs, November 26, 2010, 2010/0051, Rapporteur József Szájer. See also Council, November 30, 2010, 16976/10.

74 682 European Law Review of referral. A representative of the Commission chairs the appeal committee. The chair sets the date of the appeal committee meeting in close co-operation with the members of the committee, in order to enable Member States and the Commission to ensure an appropriate level of representation. The default rule is that the appeal committee delivers its opinion within two months of the date of referral. The more general workings of the appeal committee are set out in art.6. The appeal committee delivers its opinion by the majority provided for in art.5(1), which means qualified majority voting in accord with arts 16(4) and 16(5) TEU and art.238(3) TFEU. 19 Until an opinion is delivered, any member of the appeal committee can suggest amendments to the draft implementing act and the chair may decide whether or not to modify it. The chair is to endeavour to find solutions that command the widest possible support within the appeal committee. The chair must also inform the appeal committee of the manner in which the discussions and suggestions for amendments have been taken into account, in particular as regards suggestions for amendments which have been largely supported within the appeal committee. Article 6(3) then specifies what is to happen when the appeal committee delivers a positive opinion, a negative opinion or no opinion. Where it delivers a positive opinion, the Commission shall adopt the draft implementing act. Where no opinion is delivered, the Commission may do so. 20 Where the appeal committee delivers a negative opinion, the Commission shall not adopt the draft implementing act. Information on committee proceedings The early years of comitology were marked by a singular lack of transparency concerning the relevant committees. Criticism in this regard led to the establishment of the comitology register. 21 Article 10 embodies the relevant new rules. Article 10(1) stipulates that the Commission must keep a register of committee proceedings, which must contain: a list of committees; the agendas of committee meetings; the summary records, together with the lists of the authorities and organisations to which the persons designated by the Member States to represent them belong; the draft implementing acts on which the committees are asked to deliver an opinion; the voting results; the final draft implementing acts following delivery of the opinion of the committees; information concerning the adoption of the final draft implementing acts by the Commission; and statistical data on the work of the committees. The Commission must publish an annual report on the work of the committees. 22 Article 10 also specifies access by the European Parliament and Council to this information, although the apposite provisions are not entirely clear in this respect. Thus art.10(3) states that the European Parliament and Council shall have access to the information referred to in art.10(1) in accordance with the applicable rules, but the import of this phrase is not self-evident. It could mean, by extension from Recital 20, that rules relating to protection of classified documents applicable to the Commission should also apply to use of the register by, inter alia, the European Parliament and Council. Article 10(4) is, in any event, more specific. It requires the Commission to make available to the European Parliament and the Council, at the same time as they are sent to the committee members, certain documentation: agendas of committee meetings; the draft implementing act on which the committee is asked to deliver an opinion; and the final draft implementing act following delivery of the committee s opinion. Article 10(4) states moreover that the Commission must in addition inform the European Parliament and Council as to the availability of such documents. 19 This is subject to the qualification in art.6(5): until September 1, 2012 the appeal committee delivers its opinion on draft definitive anti-dumping or countervailing measures by a simple majority of its component members. 20 This is subject to the qualification in art.6(4): by way of derogation from art.6(3), for the adoption of definitive multilateral safeguard measures, in the absence of a positive opinion voted by the majority provided for in art.5(1), the Commission shall not adopt the draft measures. 21 See [Accessed August 22, 2011]. 22 Regulation 182/2011 art.10(2).

75 Delegated Acts, Implementing Acts and Comitology 683 Information available to the public The information available to the public under the new regime is somewhat more difficult to discern, but the resulting picture does not appear to offer the general public very much. Article 10(5) provides that the references to all the documents in art.10(1), and the information concerning the statistical data, shall be made public in the register. This must then be read together with art.9(2), which provides that the principles and conditions on public access to documents and the rules on data protection applicable to the Commission shall apply to the committees. Article 10(5) thus repeats the substance of art.7(5) from the 1999 Comitology Regulation, while art.9(2) reiterates the same wording hitherto found in art.7(2) of the 1999 Comitology Regulation. However as Bunyan notes, the public register set up by the Commission rarely contained these references and the separate comitology register was patchy with summary records listed in some cases and not in others. 23 The result appears to be as follows. Article 10(3) provides, as we have seen, that the European Parliament and the Council will have access to the content of the information, namely the documentation, listed in art.10(1). The public will, however, under art.10(5) only have access to the references to these documents via the register of committee proceedings. It remains doubtful whether they will get access to the detailed content of the documentation, subject to the fact that statistical data on the work of the committees will be available to the public. The right of scrutiny for the European Parliament and the Council The Commission s position in relation to art.291 TFEU has always been that implementation is a matter between it and the Member States. Where implementing acts are required then it is Member State representatives who inhabit the relevant committees. It regarded the Council and European Parliament as having no institutional role within this part of the Lisbon regime. The soundness of this view will be considered below. It was, however, reflected forcefully in the original Commission proposal for what became Regulation 182/2011, 24 which gave no rights to the Council or European Parliament other than those concerned with access to information about committee proceedings. This changed during the passage of the Regulation as a result of pressure from the Council and European Parliament, which pressed for greater powers of oversight. 25 The result is now contained in art.11, which provides that where the basic act is adopted under the ordinary legislative procedure, the European Parliament or the Council may at any time indicate to the Commission that they consider a draft implementing act to exceed the implementing powers provided for in the basic act. The Commission has a duty to review the draft act, taking account of the views of the European Parliament and Council. It is not, however, obliged to withdraw the act, but must rather inform these institutions whether it intends to maintain, amend or withdraw the draft implementing act. The inclusion of art.11 was a victory of sorts for the European Parliament and the Council. Its limits must nonetheless be noted. The Commission is, as seen, not bound to withdraw the draft act, but merely to review it. This limited obligation is moreover only applicable to implementing acts made pursuant to a legislative act made via the ordinary legislative procedure. Most legislative acts will be made in this way in the post-lisbon world. It is not, however, readily apparent why the art.11 obligation is inapplicable to basic acts made via the special legislative procedure. The normative argument underpinning art.11, 23 T. Bunyan, EU: Deepening the democratic deficit: the failure to enshrine the public s right of access to documents, p.3, Statewatch Analysis, [Accessed August 22, 2011]. 24 COM(2010) 83 final. 25 Committee on Legal Affairs, November 26, 2010, 2010/0051, Rapporteur József Szájer; Council, November 30, 2010, 16976/10.

76 684 European Law Review namely to control possible ultra vires implementing acts, would be equally applicable where the basic act was made through a special legislative procedure. Less obvious, but may be equally important, is the fact that art.11 does not apply in relation to implementing acts made pursuant to delegated acts. Article 291(2) TFEU authorises use of implementing acts pursuant to legally binding Union acts, and this clearly includes delegated acts. The Council and European Parliament may have concerns as to whether the implementing acts are intra vires the implementing power granted by the delegated act, just as much as they have such concerns where the implementing powers are exercised pursuant to a legislative act. However art.11 does not cover the scenario of delegated act followed by implementing act. Nor is it easy to stretch its wording to fill this gap, since art.11 is framed in terms of a draft implementing act exceeding the implementing powers provided for in the basic legislative act. In the scenario envisaged here the implementing powers could well be provided for in the delegated act, with no direct mention of this in the legislative act underpinning the delegated act. It might be argued that this lacuna could be filled by inclusion of a provision analogous to art.11 in a delegated act that granted implementing power to the Commission. The Commission would almost certainly resist any such move, and argue that art.290 TFEU does not allow the Council and European Parliament to impose such conditions if implementing power is granted pursuant to a delegated act. Transitional provisions Articles 12 and 13 contain transitional provisions, the effect of which can be summarised briefly. Article 12 repeals Decision 1999/468, subject to maintenance of the effects of art.5(a), the regulatory procedure with scrutiny, for basic acts making reference thereto. The intent seems to be that these will be adapted to the Lisbon regime and the secondary measures will henceforth be adopted as delegated acts Article art The effect of art.13 is that measures that were hitherto made under the advisory procedure will continue to be made in this way under Regulation 182/2011. Article 13 provides furthermore that measures previously made via the management and regulatory committee procedure will now be made via the examination procedure. The relevance of these provisions for the divide between delegated and implementing acts was considered above. Reflections on the new Comitology Regulation The earlier analysis revealed the difficulties attendant on the divide between arts 290 and 291 TFEU. The discussion of Regulation 182/2011 has shown some of the complexities of the new comitology regime. There are, however, two points about the new Comitology Regulation that are of more general significance. Two procedures or four The new Regulation has been promoted as leading to greater simplicity, on the hypothesis that there are now only two procedures, the advisory and examination procedures, by way of comparison with the more complex range of procedures that existed previously. It is however questionable how far this simplification has really been achieved. This is in part because Regulation 182/2011 has three separate procedures, since the rules relating to immediately applicable acts derogate from the otherwise applicable advisory and examination procedures, as is apparent from the express wording of art.8. There is, however, a less obvious, but in practical terms more important, reason for scepticism concerning the reduction of the basic procedures to two, the advisory and the examination procedures. This is because 26 Council 5768/11, February 7, 2011.

77 Delegated Acts, Implementing Acts and Comitology 685 the closer one looks at the details of the way in which the examination procedure works, the more it replicates the divide between the management and regulatory procedure that existed hitherto. I am not claiming that the divide within the examination procedure is exactly the same as that between the management and regulatory procedures. I am claiming that there are in reality two tracks within the examination procedure that reduce the difference between the new and the old regimes. The key difference between the management and regulatory procedure was of course the criteria that triggered recourse to the Council. In the case of the management committee procedure, this occurred when the committee voted against the measure. In the case of the regulatory procedure, the trigger was failure to vote in favour of it. The new regime is obviously different from the old in that there is no recourse to the Council in any eventuality, an issue that will be considered below. It is also clearly different in that the examination procedure is applicable to the measures that were previously dealt with separately by the management and regulatory procedures. This does not alter the fact that within the complex rules relating to the examination procedure there are in effect different regimes that apply depending on whether the committee votes against the measure, or fails to vote in favour of it. This is readily apparent by standing back from the complexity of the new regime and appreciating its basic architecture. Where the committee delivers a negative opinion art.5(3) provides that the default position is that the Commission shall not adopt the draft implementing act, but this is then qualified in four ways. Where the committee delivers no opinion the default position in art.5(4) is that the Commission can adopt the draft implementing act, or submit an amended version to the committee, but this too is subject to the five qualifications analysed above. The very fact that different rules apply depending upon whether the committee votes against the measure or fails to deliver an opinion is scarcely surprising. This does not alter the fact that there are in reality two tracks within the examination procedure, with different default rules that are subject to different qualifications. The twin tracks are powerfully symbolised by the provision in art.5(4) which allows the Council and European Parliament to specify in the basic act that in the event of no opinion being given the measure should not be adopted, thereby preserving in substance the need for a positive vote, as was the case previously under the regulatory procedure. This divide is further reinforced by the appeal procedure, in particular art.6(3), which specifies what is to occur when the appeal committee votes in favour of the measure, against it, or delivers no opinion. The existence of two tracks within the new Regulation is powerfully reinforced yet again by the transitional rules in art.13. Thus the net effect of art.13(1)(b) is that where a basic act made reference to the management procedure under the old regime, the examination procedure applies, subject to the caveat that the second and third subparagraphs of art.5(4) are deemed not to apply, thereby preserving the essential feature of the management committee procedure, namely that the committee s failure to deliver an opinion does not prevent the Commission from adopting the implementing act. The net effect of art.13(1)(c) is that where a basic act made reference to the regulatory procedure under the old regime, this automatically means that point (b) in the second paragraph of art.5(4) is triggered, with the consequence that where no opinion is delivered the act cannot be adopted, thereby preserving the essential feature of the regulatory procedure within the new order for those measures that were subject to it. The role of the European Parliament and the Council We have seen that the European Parliament and the Council have access to certain documentation through art.10 of Regulation 182/2011. This should not mask the difference between the new Regulation and the previous comitology regime. The Commission emphasised, as we have seen, in its original proposal that control was to be exercised by the Member States, and that neither the Council nor the European Parliament

78 686 European Law Review was accorded a direct role on the committees, although they could have access to information about the proceedings 27 : The provisions of the new Treaty on implementing acts, which are set out in Article 291, do not provide any role for the European Parliament and the Council to control the Commission s exercise of implementing powers. Such control can only be exercised by the Member States. A legal framework is required to establish the mechanisms of such control. This approach is reflected in the Regulation. The committees are composed of representatives of the Member States, but there is no recourse to the Council as there was under the previous comitology regime. The new Regulation formally disaggregates the representatives of Member States that serve on the committees from those on the Council, although whether this is sustainable in practice remains to be seen. The ministers that represent the Member States on the Council may well take a keen interest in the appointees from their respective states that serve on the new comitology committees. There is moreover likely to be exchange of views between the two sets of personnel. The Commission s desire to preserve the distinction between input into implementation via Member State representatives on comitology committees, and Member State interests as vocalised in the Council, may therefore be hard to sustain, more especially because the committee voting rules mirror those of the Council itself. Thus it is difficult to believe that Member State representatives in the Council will not discuss, brief and consult their representatives on the comitology committees on the policy position that should be taken on important implementing acts. This interchange will in all probability work both ways. The Member State representatives on the committees are likely to liaise with, inform and seek the views of those who represent their Member States on the Council, or what is more likely in reality, the civil servants, whether based in Coreper or at home, who support their ministerial representatives on the Council. Thus, while it remains formally true, as the Commission opined in the preceding quotation, that the Council is accorded no role in controlling implementing acts, channels of communication of the kind adumbrated above are likely to emerge, which may well be used to effectuate Council objectives indirectly even if this cannot be done through more direct means. This is unsurprising, and reveals the fragility of the practical and theoretical underpinning to the art.291 strategy. It is predicated on the assumption that implementing acts are of no concern to the Council qua Council, and that it is simply a matter of the practicalities of implementation in each Member State, by way of contrast to delegated acts where the Council and European Parliament are both given a formal institutional role in their own right. This assumption is problematic because of the difficulty of the divide between delegated and implementing acts considered above. There will inevitably be many cases where it is contestable whether a secondary measure should be characterised as a delegated or implementing act. The assumption that if this fine calculus leads to classification of the measure as an implementing act then the Council or European Parliament have no institutional interest in the measure, and that it is simply a matter of the practicalities of implementation in each Member State, does not readily withstand examination. The reality is that value judgments and political choices will be contained in and effectuated through implementing acts. They are EU measures in both formal and substantive terms. It will therefore not be surprising if the Council qua Council, or the European Parliament, takes an interest in these more detailed measures that flesh out the basic legislative act. 27 COM(2010) 83 final, p.3.

79 Delegated Acts, Implementing Acts and Comitology 687 Conclusion The passage of new measures always takes time to bed down, and it remains to be seen how Regulation 182/2011 fares in this respect. The divide between delegated and implementing acts will continue to present difficulties in the post-lisbon world, and this is so irrespective of whether the distinction is drawn on the criterion identified above that flows logically from the schema of the Lisbon Treaty, or from political forces, or an admixture of the two. There will therefore inevitably be many instances where the distinction is contestable.

80 Article 8 TEU: Towards a New Generation of Agreements with the Neighbouring Countries of the European Union? Peter Van Elsuwege * Ghent University Roman Petrov ** Kyiv-Mohyla Academy and University of Heidelberg EU law; European Free Trade Association; European neighbourhood policy; External relations; Russia Abstract Article 8 of the Treaty on European Union (TEU) provides a new legal basis for developing the European Union s relations with its neighbouring countries. This contribution traces the origins of this provision and analyses its objectives and potential application in practice. It is argued that art.8 TEU codifies the conditionality approach of the European Neighbourhood Policy (ENP) and introduces a differentiation with traditional association agreements for political reasons. The launch of the Eastern Partnership in May 2009, including the offer of concluding association agreements with the European Union s eastern partners, largely undermines the significance of this distinction. It is, however, not to be excluded that art.8 TEU is used in relation to other neighbouring countries which are not interested in formal association with the European Union. Introduction The Treaty of Lisbon significantly amends the legal framework of EU external action. Apart from the much discussed institutional innovations and the abolition of the pillar structure, 1 the inclusion of a legal basis for the development of the Union s relations with its neighbouring countries is of particular significance. According to new art.8 of the Treaty on European Union (TEU): 1. The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation. 2. For the purposes of paragraph 1, the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as * Professor of European Law, Ghent University (Jean Monnet Centre of Excellence) and Post-Doctoral Research Fellow of the Research Foundation Flanders (FWO). The author is grateful to Prof. Dominik Hanf and Prof. Marc Maresceau for providing useful information during the preparation of this article. ** Jean Monnet Chair in European Union Law, Kyiv-Mohyla Academy (Ukraine) and Alexander von Humboldt Research Fellow at the University of Heidelberg (Germany). The authors express their gratitute to the Jean Monnet programme for its support in preparing this article. 1 See P. Van Elsuwege, EU External Action after the Collapse of the Pillar Structure: In Search of a New Balance between Delimitation and Consistency (2010) 47 C.M.L. Rev

81 Scope, Objectives and Potential Application of Article 8 TEU 689 well as the possibility of undertaking activities jointly. Their implementation shall be the subject of periodic consultation. This provision is remarkable for a number of reasons. First, it provides a legal basis for a new type of bilateral agreement to be concluded on the basis of geographical and political criteria. Only neighbouring countries respecting the values of the Union are eligible for what is ambiguously called a special relationship. Secondly, art.8 TEU does formally not belong to the Treaty provisions on EU external action but is part of the so-called common provisions of the TEU including the Union s foundational values, basic objectives and fundamental principles. This position within the structure of the Treaties reveals the importance attributed to the European Union s neighbourhood relations but, at the same time, it raises questions about the concrete implications of this article. Thirdly, it is remarkable that the wording of art.8(2) TEU seems to be inspired by the traditional provision on the conclusion of association agreements, which is retained in art.217 of the Treaty on the Functioning of the European Union (TFEU). 2 Hence the legal implications of art.8 TEU and, in particular, its relationship with the other Treaty provisions on EU external action are far from clear. In order to tackle those issues, this contribution traces the origins and objectives of this article, analyses its legal scope and discusses its potential application in the framework of the European Neighbourhood Policy (ENP), the European Union s Strategic Partnership with Russia and the relations with the Union s old neighbours (EFTA countries and micro-states). The genesis of article 8 TEU The idea to introduce a specific Treaty provision concerning the relations between the European Union and its neighbours was launched within the European Convention during the preparation of a Draft Treaty establishing a Constitution for Europe. According to the travaux préparatoires, a separate title and an article on the Union and its immediate environment was deemed necessary to stress the importance to the Union of privileged relations with its neighbours. 3 This proposal cannot be disconnected from the general political context at that time. After a long and intensive period of pre-accession preparations, starting with the June 1993 Copenhagen European Council and resulting in the finalisation of negotiations with 10 countries at the December 2002 Copenhagen European Council, the development of a proper neighbourhood strategy became a top priority for the Union. In a joint document, the External Relations Commissioner, Christopher Patten, and the High Representative for Common Foreign and Security Policy, Javier Solana, proposed a new proximity policy initiative. Significantly, they explicitly suggested the creation of new contractual arrangements such as Neighbourhood or Proximity Agreements. 4 The European Commission adopted this idea in its proposals for a European Neighbourhood Policy (ENP). The ENP aims to avoid the emergence of new dividing lines between the enlarged European Union and the neighbouring countries that do not (currently) have an accession perspective. It is an umbrella policy with a strong degree of differentiation, bringing together the European Union s eastern and southern neighbours in a single framework. The main objective is to open up certain sectors of the EU internal market for the ENP countries and to enhance political dialogue between the partners in return for substantive political, economic and legal reforms. The perspective of enhanced bilateral relations between the European Union and each ENP partner country is 2 Article 217 TFEU (ex 310 EC) states that The Union may conclude, with one or more States or international organisations, agreements establishing an association involving reciprocal rights and obligations, common action and special procedure. 3 Title IX: The Union and its immediate environment, CONV 649/03 (April 2, 2003) at [Accessed August 25, 2011]. 4 Joint Letter on Wider Europe by Commissioner Chris Patten and High Representative Javier Solano (August 8, 2002), [Accessed August 25, 2011].

82 690 European Law Review complemented with specific regional and multilateral co-operation initiatives: the Eastern Partnership (launched in Prague in May 2009) including the European Union s Eastern partners Ukraine, Belarus, Moldova, Georgia, Armenia and Azerbaijan; the Union for the Mediterranean (the former Euro-Mediterranean Partnership or Barcelona process, relaunched in Paris in July 2008) targeting the European Union s southern neighbours (Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Syria, Tunisia and the Palestine Authority); and the Black Sea Synergy (launched in Kiev in February 2008) promoting regional co-operation among the Black Sea littoral states. 5 In its first Communication on the ENP, the Commission announced the prospect of new Neighbourhood Agreements to upgrade the contractual relations with the Union s Eastern and Southern neighbours. 6 In addition, it argued that the EU should aim to develop a zone of prosperity and a friendly neighbourhood with whom the EU enjoys close, peaceful and cooperative relations. The parallels with the wording of art.8 TEU are striking. Hence, despite the absence of any explicit reference to the ENP in art.8 TEU, it is obvious that the discussions surrounding the elaboration of the ENP affected the final decision to include a specific Treaty provision on the Union s relations with its immediate environment in the Draft Constitutional Treaty. 7 Reflecting the geographical extension of the ENP to the Southern Caucasus countries, which did not have a direct land or sea border with the European Union, the final version of the Constitutional Treaty referred more generally to the Union and its neighbours. 8 Notwithstanding suggestions from several Convention members that such an article was either redundant or at least should be placed elsewhere in the Constitution, 9 its position in the first part of the Draft Treaty was retained to highlight the importance of the European Union s neighbourhood relations. Moreover, this article preceded a title on Union membership and, accordingly, underlined the distinction between the ENP and enlargement as two separate yet equally important policies of the Union. The restructuring of the Treaties after the negative outcome of the ratification referenda in France and the Netherlands brought an end to this connection. The article on enlargement kept its numbering (art.49 TEU) and its traditional position under Title VI Final Provisions of the TEU. The article on the Union s neighbourhood relations (art.8 TEU), on the other hand, was no longer awarded a separate title but was integrated under Title I Common Provisions of the TEU. It is obvious that the inclusion of art.8 TEU is largely inspired by political and symbolical motivations. The Patten and Solana paper already acknowledged that the strong symbolism of a new label that marks a strengthened commitment of the Union could help to raise the profile of relations with the EU and unlock additional political will and administrative capacity. 10 In line with this approach, the European Commission 5 On May 25, 2011, the Commission and the High Representative issued the Joint Communication, A New Response to a Changing Neighbourhood COM(2011) 303, which confirms the ENP as a comprehensive policy framework for the European Union s eastern and southern neighbours. For more information see [Accessed August 25, 2011]. 6 Commission, Wider Europe Neighbourhood: A New Framework for Relations with our Eastern and Southern Partners COM(2003) 104 final, March 11, 2003, p The explanatory note on Title IX: the Union and its immediate environment, published by the Secretariat of the Convention on April 2, 2003, states without any ambiguity that this provision sets out the Union s intention to establish a neighbourhood policy (CONV 649/03). On the establishment of the ENP and its relations with the work of the Convention, see E. Lannon and P. Van Elsuwege, The EU s Emerging Neighbourhood Policy and its Impact on the Euro-Mediterranean Partnership in P. Xuereb (ed.), Euro-Med Integration and the Ring of Friends. The Mediterranean s European Challenge (Malta: EDRC, 2003) pp Compare art.56 of the Draft Treaty establishing a Constitution for Europe (CONV 850/03, July 18, 2003) with art.i-57 of the Treaty establishing a Constitution for Europe [2004] OJ C310/38. 9 Reactions to draft Article 42 (The Union and its immediate environment) CONV 671/03 (April 14, 2003) at http: //european-convention.eu.int [Accessed August 25, 2011]. 10 Joint Letter on Wider Europe by Commissioner Chris Patten and High Representative Javier Solano, August 8, 2002, [Accessed August 25, 2011].

83 Scope, Objectives and Potential Application of Article 8 TEU 691 used the prospect of new contractual links, in the form of European Neighbourhood Agreements, as an incentive within the ENP. 11 Remarkably, since the failed ratification of the Constitutional Treaty, the Commission no longer applies the term Neighbourhood Agreements but rather refers to Deep and Comprehensive Free Trade Agreements (DCFTAs), enhanced agreements and a new generation of Association Agreements (AAs). 12 The entry into force of the Treaty of Lisbon on December 1, 2009 did not affect this evolution. For instance, on July 15, 2010, the European Union launched negotiations on association agreements with Armenia, Georgia and Azerbaijan, and negotiations on the conclusion of association agreements with Ukraine and Moldova are also still going on. Taking into account that the practice of association is nothing new in the external relations of the European Union, the question arises what role art.8 TEU can play within the context of the European Union s neighbourhood strategy. The scope and objectives of article 8 TEU The wording of art.8(1) TEU reflects the objectives and conditions that have to be fulfilled before the Union can conclude a specific agreement with a certain category of third countries. In particular, the countries concerned have to be neighbouring countries, who are interested in a special relationship which is founded on the values of the Union, and aims at the establishment of an area of prosperity and good neighbourliness and is characterised by close and peaceful relations based on cooperation. Neighbouring countries of the Union The application of art.8 TEU depends on explicit geographical criteria and is restricted to neighbouring countries. Taking into account the genesis of art.8 TEU it appears that this provision essentially concerns the target countries of the ENP. Significantly, the ENP itself has never been very clear in defining the specific scope of the notion neighbourhood. For instance, the very first ENP documents referred to the ENP as an external EU policy towards the Union s immediate neighbourhood which implied third countries sharing a land or sea border with the European Union. 13 This explains why also the Draft Constitutional Treaty referred to the Union and its immediate environment. Later documents distinguished between neighbourhood and immediate neighbourhood and envisaged the extension of the ENP towards countries where the European Union has a strong interest in the stability and development of the region. 14 Generally speaking, the ENP now brings together a variety of countries which are situated in the southern and eastern periphery of the Union. 15 It is an umbrella policy with a strong degree of differentiation, including the southern Mediterranean countries of the Union for the Mediterranean (Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Syria, Tunisia and the Palestinian Authority) and the partner countries of the Eastern Partnership (Ukraine, Belarus, Moldova, Georgia, Azerbaijan and Armenia). In other words, the ENP is a flexible policy directed at countries situated in regions within a relevant proximity 11 Commission, European Neighbourhood Policy. Strategy Paper COM(2004) 373 final, May 12, 2004, p See, e.g. Commission, On Strengthening the European Neighbourhood Policy COM(2006) 726 final, December 4, 2006 and Commission, A Strong European Neighbourhood Policy COM(2007) 774 final, December 5, Communication from the Commission, Wider Europe-Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours (COM(2003) 104 final). Also the European Security Strategy, endorsed at the European Council of December 2003, states that the European Union s task is to make a particular contribution to stability and good governance in our immediate neighbourhood [and] to promote a ring of well governed countries to the East of the European Union and on the borders of the Mediterranean with whom we can enjoy close and cooperative relations. 14 Communication from the Commission, European Neighbourhood Policy Strategy Paper COM(2004) 373 final. 15 Communication from the Commission, Taking Stock of the European Neighbourhood Policy (COM(2010) 207 final.

84 692 European Law Review to the European Union s borders and of strategic political importance to the Union. This interpretation implies that the term neighbouring country is not exclusively defined on the basis of geographical criteria. The southern Caucasus countries, for instance, are geographically speaking no immediate neighbours of the Union but are nevertheless included in the geographical scope of the ENP for political reasons. 16 Apart from the ENP partners, nothing seems to prevent the potential application of art.8 TEU with regard to other neighbours such as Russia, the EFTA countries or the European micro-states. For the last countries in particular, art.8 TEU might become an interesting instrument to formalise their peculiar relationship with the Union. 17 In this respect, it is noteworthy that a Declaration on art.8 TEU, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, explicitly provides that [t]he Union will take into account the particular situation of small-sized countries which maintain specific relations of proximity with it. 18 This Declaration indicates that the geographical scope of art.8 TEU is not necessarily restricted to the ENP partner countries but may be used as a passe-partout for designing the Union s relations with other neighbouring countries as well. A special relationship with the Union Article 8 TEU pursues the objective of establishing a special relationship with the European Union s neighbours. The parallels with the traditional provision on the conclusion of association agreements, which is retained in art.217 TFEU, are striking. The ambiguous and undefined notion of a special relationship is almost identical to the special privileged links which characterise the association agreements according to the Court of Justice. 19 Moreover, the reference to rights and reciprocal obligations is drawn from art.217 TFEU and the regular consultation foreseen in the last sentence of art.8(2) TEU is usually provided for under association agreements through the creation of a structural relationship (e.g. Association Council/Committee). 20 Finally, the loose formulation of both art.8 TEU and art.217 TFEU allows for a high level of flexibility, which is a prerequisite to ensure sufficient differentiation in the relations with the various partners. As can be derived from the practice of association, the established privileged relationship can take several forms, ranging from little more than a free trade agreement to a level of integration that comes close to membership. 21 The actual scope of the association depends on the outcome of the negotiations. The same flexibility applies with regard to the envisaged new generation of agreements under art.8 TEU. Both provisions are, in other words, flexible legal instruments allowing for a variety of ties with states interested in a formal legal relationship with the European Union. 16 Whereas Georgia has a sea border with the Union since the accession of Romania and Bulgaria, this is not the case for Armenia and Azerbaijan. As a result of their geographical location, the three Caucasus countries were not included in the initial proposals on the ENP. This was changed for political reasons and after pressure on the part of the CFSP High Representative, the EU Special Representative for the Southern Caucasus and the European Parliament. See: ENP Strategy Paper COM(2004) 373 final, pp On the initial discussions regarding the geographical scope of the ENP, see Lannon and Van Elsuwege, The EU s Emerging Neighbourhood Policy and its Impact on the Euro-Mediterranean Partnership in Euro-Med Integration and the Ring of Friends, 2003, pp M. Maresceau, The Relations between the EU and Andorra, San Marino and Monaco in A. Dashwood and M. Maresceau (eds), Law and Practice of EU External Relations: Salient Features of a Changing Landscape (Cambridge: Cambridge University Press, 2008), p Declaration No.3 on art.8 of the Treaty on European Union [2010] OJ C83/ Meryem Demirel v Stadt Schwäbisch Gmünd (12/86) [1987] E.C.R at [9]. 20 CONV 649/03, Title IX: The Union and its immediate environment, April 2, Walter Hallstein, former Commission president, declared that association can be anything between full membership minus 1% and a trade and co-operation agreement plus 1%. Cited in D. Phinnemore, Association: Stepping-Stone or Alternative to EU Membership? (Sheffield: Sheffield Academic Press, 1999), p.23.

85 Scope, Objectives and Potential Application of Article 8 TEU 693 Arguably, the frequent use of association agreements in recent periods, which has resulted in a certain inflation of associated countries, 22 explains the inclusion of a specific clause for the Union s neighbours. This once again underlines the symbolic importance of art.8 TEU as a label differentiating the European Union s special relations with its neighbouring countries from traditional association agreements. There is, however, no explicit or compelling link between art.8 TEU and art.217 TFEU. Article 8 TEU may even be considered as an alternative to formal association. In comparison with traditional association agreements, agreements based on art.8 TEU have a clear objective, i.e. to establish an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation. This finalité is important because, from a political point of view, the conclusion of an association agreement with a European country is often perceived as a stepping-stone to EU membership. 23 Article 8 TEU, on the other hand, leaves no doubt about the objectives of the established relationship and thus confirms the European Union s official position about the disconnection between ENP and enlargement. Founded on the values of the Union The European Union s external action in general and its neighbourhood relations in particular, are value-driven. Pursuant to art.3(5) TEU, the Union shall uphold and promote its values laid down in art.2 TEU 24 in its relations with the wider world. Article 8(1) TEU applies this principle with regard to the European Union s neighbourhood. The reference to the values of the Union is not only a logical consequence of the European Union s ambition to act as a normative power in the world, it is also fully consistent with the strategy of the ENP. The 2004 ENP Strategy Paper underlines that, the privileged relationship with neighbours will build on mutual commitments to common values principally within the fields of the rule of law, good governance, the respect for human rights, including minority rights, the promotion of good neighbourly relations, and the principles of market economy and sustainable development. 25 All bilateral documents between the European Union and the neighbouring countries (Action Plans, Association Agenda) emphasise the need for the latter to adhere to common values as a precondition for further enhancement of their bilateral relations with the European Union. Significantly, the ENP policy documents all refer to shared or common values whereas art.8 TEU explicitly refers to the values of the Union. This difference reflects the double function of values in the European Union s political discourse. On the one hand, the values of art.2 TEU constitute the foundation of the European Union s identity; on the other hand, they are considered to be universal. 26 The abstract nature of values such as democracy, freedom or equality implies that they can easily be regarded as shared or common. The key question is who decides about the interpretation of these values in a particular context. Within the framework of the ENP, it appears that common or shared values should be 22 See M.-A. Gaudissart, Réflexions sur la nature et la portée du concept d association à la lumière de sa mise en oeuvre in M.-F. Tchakaloff (ed.), Le concept d association dans les accords passés par la Communauté: Essai de clarification (Brussels: Bruylant, 1999), p Phinnemore, Association, Pursuant to art.2 TEU: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. 25 COM(2004) 373 final, p P. Leino and R. Petrov, Between Common Values and Competing Universals: The Promotion of the EU s Common Values through the European Neighbourhood Policy (2009) 15 E.L.J. 654, 655.

86 694 European Law Review fundamentally understood as the EU s fundamental values and objectives. 27 For example, the European Union is explicit that the depth of the EU-Ukraine relationship will be determined by the implementation of reforms and by further consolidation of common values. 28 In practice it means that any further enhancement of bilateral relations (liberalisation of visa regime, economic and trade co-operation) is strongly linked to practical adherence of Ukraine to the European Union s democratic and human rights values. In order to counterbalance the perception that the European Union unilaterally imposes external conditions on the partner countries, the European Commission initiated the concept of joint ownership as a key principle of the ENP. The idea that both the European Union and the partner countries contribute to shaping and implementing the bilateral relationship is reflected in the procedure for the adoption of the ENP Action Plans and the monitoring of its implementation, which both occur within the bodies established under the Partnership and Co-operation Agreements or Association Agreements. However, this practice does not alter the essentially unilateral character of the ENP. 29 The agenda of the Action Plans is primarily arranged by the European Union and the evaluation of progress remains based upon periodic Commission reports. Despite the rhetoric of joint ownership, it is obvious that the Union is the dominant party in a relationship that is characterised by a strict conditionality approach. The neighbouring countries are required to implement a significant portion of the acquis communautaire and to launch ambitious political, legal and economic reforms under a pre-accession type monitoring process carried out by the EU institutions. The European Union s common values represent an incentive for the implementation of this reform programme. The political elites of the neighbouring countries can refer to the shared values enshrined in the Action Plans as objectives and benchmarks for further internal legal, political and economic reforms. It is noteworthy that the scope of value references included in the ENP Action Plans extends beyond the values of the Union as they are defined in art.2 TEU and include references to democratic norms and standards developed by other international and regional institutions (United Nations, Organisation for Security and Cooperation in Europe, Council of Europe, International Labour Organisation). 30 Furthermore, various other elements which are not directly related to the traditional values have also been added to the list of commitments in the Action Plans, including, for instance, the fight against terrorism, the proliferation of weapons of mass destruction and efforts to achieve conflict resolution. 31 In other words, the multiple references to shared and common values are instrumental to promote the European Union s own interests in different areas. The asymmetrical nature of the European Union s neighbourhood relations is enshrined in art.8 TEU. In principle, only partner countries respecting the European Union s values are eligible for a special relationship. The European Union already applied this approach in the 1990s when it was to conclude the PCAs with the countries of the former Soviet Union. Only countries respecting the rule of law, democracy 27 The 2004 European Neighbourhood Strategy Paper, for instance, explicitly provided that the ENP s vision involves a ring of countries, sharing the EU s values and objectives : COM(2004) 373 final, p See the Joint Press Statement of the 14th EU-Ukraine Summit in Brussels on November 22, 2010, [Accessed August 25, 2011]. 29 M. Cremona and C. Hillion, L Union fait la force? Potential and Limitations of the European Neighbourhood Policy as an Integrated EU Foreign and Security Policy, EUI Working Papers, 2006/39 (2006), p.20, available at [Accessed September 14, 2011]. 30 For instance, the ENP Action Plan with Georgia provides that local, parliamentary and presidential elections have to be conducted in accordance with international standards, through implementation of OSCE/ODIHR and Council of Europe recommendations. Moreover, Georgia is to enhance support for the UN and the OSCE in order for them to carry out the implementation of their mandate, including in the field of human rights. Finally, core labour standards have to be implemented in accordance with relevant ILO conventions as ratified by Georgia. See [Accessed August 25, 2011]. Similar provisions can be found in the Action Plans with other ENP partner countries. 31 European Neighbourhood Policy Strategy Paper COM(2004) 373 final, p.8.

87 Scope, Objectives and Potential Application of Article 8 TEU 695 and human rights; guaranteeing the rights of minorities; accepting the inviolability of frontiers and committing themselves to a peaceful resolution of conflicts were considered eligible for this new type of agreements. 32 This explains why the PCA with Belarus never entered into force after the establishment of an authoritarian regime by Alexander Lukashenko. A similar conditionality approach is applied with regard to the European Union s southern neighbours. The entry into force of an association agreement with Syria, for instance, is still pending owing to the political circumstances in that country. Moreover, all the PCAs and Euro-Mediterranean association agreements contain an essential element clause stating that respect for human rights and democratic principles is an essential element of the agreement and a non-execution clause providing that the parties may take appropriate measures in the event that the other party fails to comply with an obligation. A violation of the essential elements clause is considered to be a case of special urgency allowing the parties to act without prior consultation in the joint council under the agreement. Obviously, this type of conditionality is a prerequisite for the conclusion of agreements under art.8 TEU. It remains to be seen how the reference to the values of the Union will be implemented in practice. A strict interpretation suggests that all the values listed in art.2 TEU are to be considered as essential elements of the bilateral relationship between the European Union and its neighbours. However, proceeding from existing practice and taking into account the importance of joint ownership, it seems more likely to seek a common denominator in the form of international legal instruments. For the eastern neighbours, the Council of Europe and the Organisation for Cooperation and Security in Europe provide the common standards, 33 for the Southern neighbours this will be the United Nations and other relevant international organisations. An area of prosperity and good neighbourliness characterised by peaceful relations based on co-operation Article 8 TEU envisages the establishment of an area of prosperity and good neighbourliness. These, at first sight, rather vague and broad terms have been frequently used by the EU institutions in the context of the ENP and the pre-accession strategies. The notion of prosperity is usually linked with stability and security. Whereas prosperity is mainly of an economic origin and is related to the well-being of the population, the notions of stability and security are closely associated with democracy and good governance and imply preserving the territorial sovereignty of the neighbouring countries. 34 The concept of good neighbourliness was introduced as a condition for accession in the Presidency Conclusions of the 1994 Essen European Council. 35 It basically implies a commitment to resolve any outstanding (border) conflicts by peaceful means. Taking into account the close connection between the pre-accession methodology and the ENP, it is no surprise that this concept has found its way to art.8 TEU. The reference to peaceful relations based on cooperation strengthens the perception that the objective of art.8 TEU is not to prepare the (full) integration and (potential) accession of the neighbouring countries but, rather, to ensure close economic and political relations. Hence, despite the similarities with the Treaty provision on association, the final objective of art.8 TEU, i.e. close co-operation, resembles more the wording of the Partnership and Cooperation Agreements (PCAs) concluded with the former Soviet 32 C. Hillion, Partnership and cooperation agreements between the EU and the Newly Independent States of the ex-soviet Union (1998) 3 E.F.A. Rev For instance, the European Union urges Ukraine to conduct its constitutional reform in close co-operation with the Venice Commission of the Council of Europe (advisory body of the Council of Europe composed of independent experts in the field of constitutional law). See the Joint Press Statement of the 14th EU-Ukraine Summit in Brussels on November 22, Commission, Eastern Partnership COM(2008) 823 final. 35 Presidency Conclusions Essen European Council (December 9 10, 1994), Bull. EU (1994) 12, I.13.

88 696 European Law Review Republics with the exception of the Baltic States in the period of Accordingly, agreements based on art.8 TEU appear to provide a pragmatic solution to upgrade the PCAs without entering into the politically sensitive area of association. It would, however, be inconsistent with both the rationale of the ENP and the idea of establishing a special relationship with the European Union s neighbours to suggest that forms of advanced integration going beyond mere co-operation would be out of the scope of art.8 TEU. 36 To the contrary, the possibility of undertaking activities jointly and the creation of reciprocal rights and obligations suggest a form of far-reaching integration based upon the export of the acquis to non-eu Member States. The only limit seems to be the exclusion of the neighbouring countries from the formal decision-making of the Union. This reflects Romano Prodi s idea about sharing everything but institutions as a model for the European Union s neighbourhood relations. 37 The potential application of article 8 TEU The specific characteristics of art.8 TEU, including its position within the Treaties and political inspiration, raise questions about its potential applicability in practice. In particular, the procedural requirements and potential use in the European Union s relations with the ENP partner countries, the Russian Federation and the so-called old neighbours of the Union (EFTA countries and micro-states) deserve specific attention. Procedural requirements for the application of article 8 TEU Taking into account the flexibility of its wording and its place within the structure of the Treaties, art.8 TEU is essentially a framework provision and a declaration of intent. The clause remains vague as to the concrete substance of the European Union s neighbourhood relations and the added value in comparison with existing legal bases for the conclusion of bilateral agreements, in particular art.217 TFEU on association, seems rather limited. 38 Hence the question arises to what extent art.8 TEU can make a difference in the development of the European Union s relations with its neighbours. Is it, for instance, in itself a sufficient legal basis for the conclusion of a new generation of bilateral agreements with the neighbouring countries or does it always require a combination with the material legal bases included in the Treaty on the Functioning of the European Union (TFEU)? In principle, nothing in the Treaties seems to prevent that art.8(2) TEU in itself is used to conclude a specific agreement with a neighbouring country. After all, art.216(1) TFEU makes clear that a legal basis for concluding international agreements can also be found in the TEU. 39 Moreover, art.8 TEU can be considered as a catch-all provision, which does not require the determination of specific substantial legal bases but is, in itself, a sufficient legal basis for the conclusion of agreements of a general nature. 40 In line with the practice of association, agreements based on the single legal basis of art.8 TEU could 36 The 2004 ENP Strategy Paper, for instance, explicitly states the objective to draw the ENP partner states into an increasingly close relationship, going beyond cooperation to involve a significant measure of economic and political integration : COM(2004) 373 final, p Romano Prodi, A Wider Europe A Proximity Policy as the Key to Stability, Sixth ECSA-World Conference, Jean Monnet Project, Brussels, December 5 6, D. Hanf, The ENP in the light of the new neighbourhood clause in E. Lannon (ed.), Challenges of the European Neighbourhood Policy (Brussels-Berlin: Peter Lang Publishers, 2011). 39 Pursuant to art.216(1) TFEU: The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope. (Emphasis added.) 40 The same characteristic applies to traditional association agreements. See M. Maresceau, Bilateral Agreements Concluded by the European Community (2004) 309 Recueil des cours de l académie de droit international 411.

89 Scope, Objectives and Potential Application of Article 8 TEU 697 cover any of the competences attributed to the Union. Taking into account the broad scope and importance of those agreements as well as their strong focus on political dialogue and conditionality, they can be expected to be mixed, requiring also the Member States to be a party to the agreement. Notwithstanding the attractiveness of a special type of neighbourhood agreements to be concluded on the single legal basis of art.8 TEU, this option raises a number of practical and political questions. For instance, the procedure for the conclusion of agreements on the basis of art.8 TEU is not very clear. No procedural requirements are included in this Article, which implies the application of art.218 TFEU as the general provision for the conclusion of international agreements by the Union. While art.218 TFEU proceeds from the principle that qualified majority voting in the Council is the rule during this procedure, a specific number of areas require unanimity in the Council (i.e. when unanimity is required internally, for association agreements, co-operation agreements with candidate countries and the agreement on accession to the European Convention of Human Rights). No explicit reference to neighbourhood agreements is, however, included. Based upon the close connection between the wording and rationale of art.8 TEU and art.217 TFEU it may be argued that the procedure for the conclusion of association agreements will need to be followed. This requires unanimity in the Council and the consent of the European Parliament. An alternative interpretation is that, given the absence of any procedural guidelines, art.8 TEU cannot be used as an autonomous substantive legal basis. The symbolic nature of this provision and its unusual location under Title I, common provisions of the TEU, seems to point in the latter direction. This would render art.8 TEU into a mainly political instrument alongside the substantive legal provisions on EU external action in the TFEU. Potential application in the European Union s relations with the ENP partner countries The option of specific agreements to be concluded with the ENP partner countries under the legal basis of art.8 TEU might be interesting from an EU point of view because it provides for an upgrade of the European Union s bilateral relations which is consistent with the conditionality approach of the ENP and, most importantly, creates no false hope as far as accession prospects are concerned. However, the negotiations on a post-pca agreement with Ukraine reveal that the partner countries are not necessarily interested in such a kind of relationship. From the outset, the Ukrainian negotiators opposed against the use of the neighbourhood label. 41 Only after a period of uncertainty about the legal status of what was diplomatically called an enhanced agreement, a Joint Declaration of European Commission President Barosso, the French Presidency and the Ukrainian President Yushchenko adopted on the occasion of the September 9, 2008 European Union-Ukraine summit made an end to the speculations when it announced that the new agreement between the European Union and Ukraine will be an association agreement. 42 The initial reluctance on the part of the European Union to accept the association formula cannot be disconnected from the discussion about the recognition of the European aspirations of the European Union s eastern neighbours. Notwithstanding the absence of any automatic link between association and accession, certain Member States apparently feared that this would be perceived as a signal towards further enlargement in the future. The ultimate decision to work towards association in September 2008 can be explained by a growing pressure to support the pro-european forces in Ukraine, on the one hand, and the absence of any viable alternative, on the other hand. At that time, Ukraine faced a serious political crisis 41 C. Hillion, Mapping-Out the New Contractual Relations between the European Union and its Neighbours: Learning from the EU-Ukraine Enhanced Agreement (2007) 12 E.F.A. Rev See also R. Petrov, Legal basis and scope of the new EU-Ukraine enhanced agreement. Is there any room for further speculation?, EUI Working Papers, MWP 2008/ Council of the European Union, EU-Ukraine Summit, 12812/08, September 9, 2008.

90 698 European Law Review as a result of disagreements within the coalition of the Orange revolution. 43 Moreover, the fate of the Treaty of Lisbon and by consequence of art.8 TEU as a potential alternative to formal association was highly uncertain owing to the negative outcome of the first ratification referendum in Ireland. Under those circumstances, the acceptance of negotiations on a proper association agreement seemed a logical step. Taking into account the front-runner position of Ukraine in the eastern neighbourhood, the new initiative on Eastern Partnership, formally launched with the adoption of the Prague Declaration on May 7, 2009, extended the offer of association to all Eastern neighbours. This evolution is remarkable. Whereas the ENP Action Plans, adopted between 2005 and 2007, all refer to the objective of neighbourhood agreements or, in the case of Ukraine, enhanced agreements, the European Union now unambiguously accepted that the new legal framework will be based on association. Arguably, this shift in perspective has consequences for the legal basis of the new agreements. Whereas the idea of concluding neighbourhood agreements was clearly inspired by art.8 TEU, the term association is related to art.217 TFEU. Of course, given the similarities between both provisions, it may be argued that the European Union can conclude specific association agreements on the basis of art.8 TEU alone. 44 However, the absence of any specific reference to association in the wording of art.8 TEU and the political interest of at least certain partner countries to be a formal associated country of the Union complicates this option. A potential compromise, satisfying the European Union s interest in developing a specific type of neighbourhood relationships and the partner countries ambition to become or to remain in the case of the southern neighbours formally associated countries of the Union, might be to seek recourse to the double legal basis of art.8 TEU and art.217 TFEU. This would at least clarify the institutional requirements for the conclusion of this new type of agreements. Whereas the combination of both articles might appear somewhat redundant, the reference to art.8 TEU reflects the importance of the European Union s values as the foundation of the bilateral relationship and indicates that the objective is good neighbourliness rather than (potential) accession. The formal association on the basis of art.217 TFEU, on the other hand, responds to the neighbours ambitions and sensitivities. Whatever the outcome of the negotiations will be, the choice of the legal basis for the new association agreements with the European Union s eastern neighbours (art.8 TEU, art.217 TFEU or a combination of both) essentially has a political significance. The flexibility of the Treaty provisions implies that the scope of a bilateral agreement is less dependent on its legal basis than on the political will of the EU institutions and Member States to engage in a far-reaching form of integration with a third country. As observed by Steve Peers, a particular association agreement might even contain fewer integration objectives than a partnership or co-operation agreement. 45 Also non-association agreements can contain at least some special privileged links and reciprocal rights. In Simutenkov, for instance, the Court of Justice accepted that also certain provisions of a Partnership and Cooperation Agreement are eligible to have direct effect. 46 Moreover, agreements with a comparable content are sometimes concluded under the association formula and sometimes not. 47 Hence, the classification of the European Union s agreements 43 The internal political crisis in Ukraine began with a dispute between President Viktor Yuschenko and Prime Minister Yulia Tymoshenko over Ukraine s reaction to the armed conflict between Russia and Georgia that started in early August Whereas Yuschenko unequivocally supported Georgian President Saakashvili and condemned Russia s attacks within Georgia, Tymoshenko adopted a more neutral position. The political crisis culminated when the Prime Minister s Bloc Yulia Tymoshenko voted, together with the opposition parties, a Bill to limit the President s powers. This action resulted in the collapse of the coalition of the Orange Revolution on September 16, D. Hanf, for instance, argues that art.8 TEU can be perceived as a lex specialis for the conclusion of association agreements with one or several of the European Union s neighbouring countries. D. Hanf, The ENP in the light of the new neighbourhood clause, College of Europe, Research Papers in Law 2/ S. Peers, EC frameworks of international relations: cooperation, partnership, association in A. Dashwood and C. Hillion (eds), The General Law of EC External Relations (London: Sweet & Maxwell, 2000), p Simutenkov v Ministerio de Educacion y Cultura (C-265/03) [2005] E.C.R. I-2579; [2005] 2 C.M.L.R. 11 at [28]. 47 A good example is the Economic Partnership, Political Coordination and Cooperation Agreement with Mexico, which follows to a large extent the association agreement with Chile. See M. Maresceau, A Typology of Mixed

91 Scope, Objectives and Potential Application of Article 8 TEU 699 with third countries is mainly a matter of politics, not law. 48 This political connotation is of particular importance in the European Union s neighbourhood relations. Taking into account that the Union already concluded formal association agreements with the southern ENP states in the past, anything less than association would not be perceived by the eastern ENP countries as an enhancement of their existing contractual relations. 49 For the southern partners, on the other hand, an upgrading of the existing bilateral relations is less obvious. Except for Libya and Syria, those countries already have a functioning association agreement containing reciprocal rights and obligations and the possibility of undertaking activities jointly. Nevertheless, within the context of the ENP, the European Union has offered some countries a perspective of further integration. On October 13, 2008, the European Union and Morocco adopted a road map towards the establishment of an advanced status, 50 a status that was also granted to Jordan in 2010 and is now offered to all southern ENP countries in the context of the new Partnership for Democracy and Shared Prosperity in the Southern Mediterranean. 51 The advanced status essentially implies a prospect of closer political relations with permanent consultation mechanisms, progressive integration in the EU internal market and enhanced sectoral co-operation. Even though this upgrade of the bilateral relations is perfectly possible under traditional association agreements, the conclusion of a new generation of Euro-Mediterranean neighbourhood agreements may make sense for political reasons. 52 This is particularly the case in the wake of the Arab revolutions. In this context, art.8 TEU and its emphasis on the values of the Union as the foundation for contractual relations provides an attractive point of reference to make a clear distinction with the current generation of Euro-Mediterranean association agreements. Potential application in the European Union s relations with the Russian Federation In contrast to most ENP partner countries, which are interested in formal association and (far-reaching) integration with the European Union, the situation is different for the Russian Federation. In the Medium-Term Strategy for the development of its relations with the European Union, Russia explicitly rejected the option of association. 53 Obviously, the political connotation of association, suggesting an asymmetrical relationship between the partners which is based upon a strong conditionality approach and the unilateral approximation to EU rules and policies, is difficult for Russia to accept politically. For the same reasons, Russia refuses to take part in the ENP and prefers a bilateral Strategic Partnership outside the formal ENP framework. This involves a far-reaching programme for the establishment of four Common Spaces, recently upgraded with a Partnership for Modernisation, which potentially also offers deep and comprehensive free trade and a visa free regime. In contrast to the ENP, which is characterised Bilateral Agreements in C. Hillion and P. Koutrakos (eds), Mixed Agreements Revisited: The EU and its Member States in the World (Oxford: Hart, 2010), p Peers, EC frameworks of international relations, 2011, p Hillion, Mapping-Out the New Contractual Relations between the European Union and its Neighbours (2007) 12 E.F.A. Rev Document conjoint UE-Maroc sur le renforcement des relations bilatérales/statut Avancé, Council Doc.13653/ This new Partnership is the European Union s response to the Arab revolutions and involves increased support for democratic transition and institution-building, civil society and economic development. See Joint Communication of the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy, A Partnership for Democracy and Shared Prosperity within the Southern Mediterranean COM(2011) 200 final, March 8, It is noteworthy that on the occasion of the European Union-Morocco Summit in Granada (Spain) on March 7, 2010, both partners agreed that they will continue the process and reflection on the nature and form of the contractual relationship to replace the Association Agreement. See /pressdata/en/er/ pdf [Accessed August 25, 2011]. 53 Medium-Term Strategy for Development of Relations between the Russian Federation and the European Union ( ), on file with the authors.

92 700 European Law Review by a strict conditionality approach and an asymmetrical nature of the bilateral relations, the European Union-Russia Strategic Partnership is based on a more equivocal relationship. As an alternative to an ENP type of Action Plan, the European Union and Russia jointly drafted road maps for the implementation of the Common Spaces agenda. 54 Remarkably, the Common Spaces road maps avoid references to the one-sided approximation of Russia s legislation to EU standards but use more neutral terms such as regulatory convergence or the elaboration of common approaches. This is an important evolution in comparison with the drafting of the PCA, which explicitly proclaims that Russia shall endeavour to ensure that its legislation will be gradually made compatible with that of the [European] Community. 55 Given Russia s dissatisfaction with this provision as well as the need for an updated bilateral relationship after enlargement, the European Union and Russia agreed at their Summit in Sochi (Russia) in May 2006 to develop a new, comprehensive framework agreement. After a series of problems with new EU Member States and after the conflict between Russia and Georgia, the negotiations officially started at the end of One of the key questions concerns the legal basis of this new contractual relationship. At first sight, art.8 TEU might be an interesting instrument to upgrade the PCA without entering into a formal association status. However, it remains to be seen to what extent the conditionality approach underpinning the ENP and reflected in art.8 TEU is acceptable from a Russian point of view. The idea that the relationship is founded on the values of the EU may be difficult to reconcile with Russia s insistence on equal partnership. Notwithstanding the consensus on an abstract set of common values, 57 the interpretation of those concepts may be different. On several occasions, Prime Minister Putin and President Medvedev argued that the principles of democracy and liberty must be interpreted in line with Russia s national values, in particular the aspiration to strengthen the statehood and sovereignty of Russia. 58 This implies, of course, a different reading of the events in Chechnya, South Ossetia or Abkhazia. The diverging perceptions between the 54 The ambition to create four Common Spaces, namely a Common Economic Space; a Common Space of Freedom Security and Justice; a Common Space of External Security; and a Common Space of Research and Education, including Cultural aspects, was introduced at the May 2003 Saint Petersburg European Union-Russia Summit. The May 2005 Moscow European Union-Russia Summit adopted a single package of road maps with action points for the implementation of the new agenda. For comments, see P. Van Elsuwege, The Four Common Spaces: New Impetus to the EU-Russia Strategic Partnership? in Law and Practice of EU External Relations, 2008, pp Article 55 PCA. 56 Poland vetoed the planned opening of the negotiations at the November 2006 Helsinki European Union-Russia summit in response to Russia s ban on the import of Polish meat. At the following summit meeting, held in Samara on May 18, 2007, European Union-Russia relations reached an absolute freezing point. In the light of a long list of tensions and mutual disagreements ranging from the future status of Kosovo, the issue of energy supply to the fate of Russian-speaking minorities in Estonia and Latvia, and in contrast to previous practice, the summit ended without a Joint Declaration. It was only on the occasion of the June 26 27, 2008 European Union-Russia Summit in Khanty-Mansiysk that a new atmosphere in the bilateral relationship was perceptible. This gathering, for the first time chaired by the new Russian President, Dmitry Medvedev, and organised under the auspices of Slovenia as the first new EU Member State to hold the Presidency of the European Union, formally launched the negotiations for a new Strategic Partnership agreement. Unfortunately, the new enthusiasm quickly received a major blow with the outbreak of the conflict in Georgia in August 2008 and Russia s unilateral decision to recognise the independence of Abkhazia and South Ossetia. In response, the European Union decided at an extraordinary European Council meeting to postpone the negotiations on the new partnership agreement. However, it soon became clear that a long-term postponement of the negotiations was not in the European Union s interest. Accordingly, it was decided to start the negotiations in December For instance, the Road Map for the Common Space on External Security explicitly states that The EU and Russia share common values, as defined in the Helsinki Final Act as well as in the PCA and other relevant international documents notably respect for international law, including respect for democratic principles and human rights, including the rights of persons belonging to minorities, equality and respect of mutual interests. 58 R. Petrov and P. Leino, Between Common Values and Competing Universals: The Promotion of the EU s Common Values through the European Neighbourhood Policy (2009) 15 E.L.J. 654,

93 Scope, Objectives and Potential Application of Article 8 TEU 701 European Union and Russia are also obvious with regard to the legal protection of Russian-speaking minorities in Estonia and Latvia. Whereas Russia regularly condemns what it calls the discriminatory treatment of the Russian-speaking population in the latter countries, the Union sees no problems and confirms the Member States full compliance with the European Union s values and norms. 59 Hence the value dimension may become a significant issue for the potential application of art.8 TEU in the European Union s relations with Russia. In any event, the agreement with Russia can be expected to focus more on issues of economic and political co-operation than the envisaged association agreements to be concluded with the Eastern ENP partners, which unequivocally aim at the export of the European Union s acquis. Potential application in the European Union s relations with the EFTA countries and micro-states Despite the observation that art.8 TEU was conceived to provide a constitutional basis for the ENP and the development of specific bilateral relations with the European Union s new neighbours, this Treaty provision also potentially applies to the relations between the European Union and its so-called old neighours : the EFTA countries and the micro-states. As a result of EU enlargement and the further deepening of the European integration process, none of those countries can escape a growing pressure to align its legislation to that of the Union. Different models of close co-operation and (partial) integration already exist but it is not to be excluded that art.8 TEU can play a role in a revision of the current structures. It is not very clear how art.8 TEU could add something new to the EEA, which is formally an association agreement providing for the application of the internal market acquis and so-called flanking policies (such as social policy, consumer protection, environment policy) in the European Union s relations with Norway, Iceland and Liechtenstein. 60 With regard to Switzerland, however, no comprehensive framework agreement exists. The legal relationship is based upon a network of more than 120 bilateral and sectoral agreements without an overarching institutional framework. 61 This construction gradually developed as an alternative to the EEA, which was rejected in a popular referendum, and reflects the status of Switzerland as a very particular neighbour of the Union. However, it appears that the limits of this model of enhanced bilateralism are reached. The absence of a possibility to automatically adapt the bilateral agreements to evolutions in EU law 62 potentially undermines the uniform application of the acquis. 63 Moreover, the existence of multiple Joint Committees complicates the efficient and coherent implementation of the relevant legislation. It is, therefore, no surprise that the option of concluding a comprehensive framework agreement to streamline the existing legal and institutional structure is contemplated. 64 Recently, both the 59 P. Van Elsuwege, From Soviet Republics to EU Member States: A Legal and Political Assessment of the Baltic States Accession to the European Union (Leiden: Martinus Nijhoff, 2008), pp Agreement on the European Economic Area [1994] OJ L1/3. 61 The most important agreements are the Free Trade Agreement signed in 1972, the seven agreements of the so-called Bilaterals I (free movement of persons, land and air transport, technical barriers to trade, public procurements, research, agriculture) concluded in 1999 and the Bilaterals II concluded in 2004 (Schengen and Dublin treaties, fight against fraud, taxation of savings, statistics, processed agricultural products, pensions, environment, media and a common declaration of intent regarding the association to educational programmes). For an analysis, see C. Kaddous, The Relations between the EU and Switzerland in Law and Practice of EU External Relations, 2008, pp Notable exceptions are the Schengen and Dublin association agreements, which provide that Switzerland accepts the Schengen and Dublin acquis as well as their future developments. The refusal to accept future acquis may lead, in certain circumstances, to the termination of the agreements. 63 See A. Lazowski, Enhanced Multilateralism and Enhanced Bilateralism: Integration without Membership in the European Union (2008) 45 C.M.L. Rev See R. Schwok, Towards a Framework Agreement in the Context of New Bilateral Agreements between Switzerland and the European Union, EUI Working Papers, MWP 2009/10, pp

94 702 European Law Review President of the European Council and of the European Commission hinted at the necessity of new institutional structures and also the European Parliament endorsed the idea of concluding an all-encompassing bilateral agreement to the mutual benefit of Switzerland and the EU. 65 Notwithstanding the difficulties to reconcile the European Union s insistence on the (quasi)-automatic implementation of new acquis and the Swiss political system of direct democracy, the perspective of a comprehensive framework agreement opens up a potential application of art.8 TEU. This provision could, at least symbolically, mitigate the perception that a new framework agreement is a step towards enlargement or a further erosion of national sovereignty. Of course, the distinction with a traditional association agreement is only political and the choice of a legal basis is a purely internal matter for the Union. In this respect, it is worth recalling that the Bilaterals I with Switzerland are already based on ex art.310 EC (art.217 TFEU). Even though the formal association of Switzerland had never been the subject of the bilateral negotiations, recourse to this legal basis avoided complex internal discussions about competence. 66 The legal implications of this decision should not be exaggerated but it remains a bit odd that a third country can be associated without its prior consent. The introduction of art.8 TEU with the Treaty of Lisbon at least provides an opportunity to clarify the finalité and context of the envisaged relationship. This may be important in the context of the political discussions surrounding the organisation of a ratification referendum in Switzerland. Declaration No.3 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon clarifies the potential application of art.8 TEU with regard to the micro-states. 67 It is somewhat ironic that this declaration was included on request of certain micro-states themselves whereas the envisaged target countries of this new type of neighbourhood agreements, in the first place Ukraine and the other eastern neighbours of the Union, always remained very sceptical about this provision. 68 In the preparatory stages of the European Convention, Andorra and San Marino already announced an interest in closer co-operation with the Union. San Marino even suggested a possible application for EU membership. 69 It is obvious that such a scenario would create serious institutional and legal complications for the European Union. Hence, a specific form of privileged relationship in accordance to the terms of art.8 TEU may be an interesting alternative reflecting the peculiar situation of the European Union s small-sized neighbours. Conclusion The introduction of a special Treaty provision for the development of the European Union s relations with its neighbouring countries is closely connected with the establishment of the European Neighbourhood Policy and serves a number of political objectives. First, art.8 TEU underlines that the Union is interested in privileged relations with its neighbouring countries and lays down the constitutional foundations for 65 Remarks by Herman Van Rompuy, President of the European Council, following his meeting with Doris Leuthard, President of the Swiss confederation (Brussels, July 19, 2010) PCE 196/10; Déclaration du Président Barroso au point de presse avec la Conseillère fédérale suisse Micheline Calmy-Rey, Genève, October 14, 2010, Speech/10/558; European Parliament Resolution of September 7, 2010 on EEA-Switzerland: Obstacles with regard to the full implementation of the internal market, P7_TA-PROV(2010) Maresceau, Bilateral Agreements concluded by the European Community (2004) 309 Recueil des cours de l académie de droit international 411, Declaration No.3 on Article 8 of the Treaty on European Union [2010] OJ C83/ On the initiative of the micro-states to seek a declaration regarding the neighbourhood clause, see M. Maresceau, Les micro-états européens et l Union européenne: une relation de proximité sous tension? in Etudes en honneur de Jean-Claude Gautron. Les dynamiques du droit européen en début de siècle (Paris: Editions A. Pedone, 2004), p.751 at pp Maresceau, The Relations between the EU and Andorra, San Marino and Monaco in Law and Practice of EU External Relations, 2008, p.291.

95 Scope, Objectives and Potential Application of Article 8 TEU 703 the development of the ENP. Secondly, this article clarifies that the European Union s neighbourhood relations are based upon a policy of conditionality and respect for the European Union s values and norms. Thirdly, art.8(2) TEU provides an opportunity to conclude a new generation of agreements with the neighbouring countries of the Union. In contrast to art.217 TFEU, which remains silent on the concrete content and objectives of the established privileged relationship, agreements under art.8(2) TEU aim to establish an area of prosperity and good neighbourliness. Hence it may be argued that the introduction of art.8 TEU essentially aimed to allow for an upgrade of the European Union s relations with its east European ENP partners without offering a traditional association agreement. The political connotation between association and (potential) accession, inspired by the experience of the Europe Agreements with the central and east European countries that acceded to the Union in 2004 and 2007 and the Stabilisation and Association Agreements with the countries of the western Balkans, explains this differentiation. The intention to offer a new type of European neighbourhood agreement as an alternative to ordinary association agreements faces a number of practical obstacles. Apart from the uncertain procedural requirements for the application of art.8 TEU, it appears that the neighbouring countries are not interested in such a formula. Ukraine, in particular, strongly opposes any reference to the term neighbourhood or neighbouring country in the context of the ENP. Moreover, the special relationship envisaged under art.8 lacks exclusivity. It is not at all clear what kind of specific benefits it offers to neighbouring countries in comparison with traditional association or even partnership agreements. The strong focus on conditionality and the vague reference to good neighbourliness make this new type of agreement not very attractive either. Finally, it remains to be seen to what extent the objective of creating reciprocal rights would allow the neighbouring countries to contribute effectively to the development of the bilateral relationship. 70 Rather than providing a new type of integration arrangement, which stops short of enlargement but goes beyond existing forms of partnership and association, art.8 TEU only institutionalises the ambiguity that also characterises the ENP. 71 The introduction of a legal basis for concluding specific agreements with the neighbouring countries of the Union is essentially the result of a rhetorical exercise. This is clearly illustrated in the case of Ukraine and the initial reluctance on the part of the Union to negotiate a proper association agreement. The ultimate decision to negotiate full-fledged association agreements with all Eastern Partnership countries renders the original intention of art.8 TEU virtually redundant. It is, however, not to be excluded that this provision is used in relation to other neighbours of the Union, such as Russia, Switzerland or the micro-states, which are not necessarily interested in formal association with the Union. From a legal perspective, the added value of having a specific legal basis for the development of a special relationship with neighbouring countries is not very clear because this type of privileged relations can perfectly be established under art.217 TFEU. Moreover, the codification of the European Union s conditionality approach in its neighbourhood relations does not make a difference either, mainly because art.3(5) TEU already lays down that the Union shall uphold and promote its values and interests in its relations with the wider world. Hence art.8 TEU is essentially a political provision the significance of which for the practical development of the European Union s neighbourhood relations is questionable. 70 N. Bobitski, Do Ut Des? The Need for True Reciprocity in the European Neighbourhood Policy (2008) 13 E.F.A. Rev D. Bechev and K. Nicolaïdis, From Policy to Polity: Can the EU s Special Relations with its Neighbourhood be Decentred? (2010) 48 J.C.M.S. 477.

96 Analysis and Reflections A New Route into the Promised Land? Being a European Citizen after Ruiz Zambrano H. van Eijken and S.A. de Vries * Utrecht University Citizenship; EU law; EU nationals; Free movement of persons; Fundamental rights; Reverse discrimination; Rights of entry and residence; Third country nationals; Work permits Abstract Although exceptionally concise, the judgment of the Court of Justice of the European Union in the Ruiz Zambrano case invites further reflection on the notion of European Union citizenship. The Ruiz Zambrano judgment raises important questions about the relationship between market citizenship and EU citizenship, the current status of European citizenship, the relevance of the cross-border dimension, reverse discrimination against Union citizens and the relationship between European citizens and third-country nationals. In our exploration of this case, we examine the impact of Ruiz Zambrano on the development of European citizenship. We also discuss another important issue, although it was not further explored by the Court itself, that is, the relationship between citizenship and the protection of fundamental rights, and the consequences of the Ruiz Zambrano case for the enforcement of fundamental rights in the European Union. Introduction Those who, after the all-embracing, sophisticated and fascinating opinion of Advocate General Sharpston in the Ruiz Zambrano case, had hoped for an equally elaborated decision by the Court of Justice of the European Union (ECJ or Court) might have been somewhat disappointed. The relatively succinct, but definitely to the point, judgment of the ECJ is, however, important as it sheds further light on European citizenship and once again puts more flesh on the bones of EU citizenship. 1 In this article we discuss the Advocate General s Opinion and the ECJ s judgment in detail. The essential questions are, how far-reaching is this judgment and what will its impact be on the status of European citizenship? In which terms should EU citizenship now be defined? Could the judgment serve to bridge the gap between Union citizens who have exercised their right to free movement and those citizens of the Union who have stayed in their Member State of origin? 2 And could it reduce the differences between nationals of the Member States and residents from third countries, similar to the incola, a Roman conception, * Hanneke van Eijken is a PhD candidate, Europa Institute, Utrecht University. Sybe de Vries is an Associate Professor of European Law, Europa Institute, Utrecht University. 1 Compare S. O Leary, Putting Flesh on the Bones of European Citizenship (1999) 24 E.L. Rev Editorial Comment, Two-speed European Citizenship? Can the Lisbon Treaty help close the gap? (2008) 45 C.M.L. Rev. 1; and N. Nic Shuibhne, Free Movement of Persons and the Wholly Internal Rule: Time to Move on? (2002) 39 C.M.L. Rev

97 Analysis and Reflections 705 which means that someone belongs to a city or community not merely by reason of their origin, but also by establishing residence? 3 After an introduction to the case in the next section, the starting point for our analysis is the development in EU law from market citizens towards EU citizenship and how these two concepts relate to each other. Then, the extension of the scope of European citizenship will be discussed, with a particular focus on the distinction between the right to reside and the right to move, and on reverse discrimination. The role of the Charter of Fundamental Rights will also be assessed, as well as the potential consequences of the Ruiz Zambrano judgment for the enforcement of fundamental rights. Furthermore, the effect of European citizenship on the position of third-country nationals will be briefly addressed. Finally, in the last section of our article, we provide a future outlook on European citizenship. The case of Ruiz Zambrano The case began in 1999, when Gerardo Ruiz Zambrano, a Columbian national, came to Belgium with his spouse, Moreno López, and their son on a visa issued by the Belgian Embassy in Bogotá. The Ruiz Zambranos applied for asylum in Belgium because of violence by private militants, violent assaults against Gerardo Ruiz Zambrano s brother and because of the kidnapping of their three-year-old son for one week. However, the Belgian authorities refused their requests in September Nevertheless, in the light of the ongoing civil war in Colombia and with a view to the principle of non-refoulement, they were not actually deported. The family therefore remained in Belgium. Without having been granted a work permit, Mr Ruiz Zambrano nevertheless found a job in In 2003 and 2005, two additional children Diego and Jessica were born. Since Colombia grants nationality based on ius soli, the children did not (automatically) acquire Colombian nationality. The Belgian law on nationality provides that if a child who is born in Belgium becomes stateless, Belgian nationality will be granted. Nevertheless, Diego and Jessica could have obtained Colombian nationality if Mr Ruiz Zambrano had registered them as such with the Colombian diplomatic or consular authorities. Since Mr Ruiz Zambrano had not registered his children, they acquired Belgian nationality. It was not surprising that after the birth of Diego and Jessica, their father once again requested (for the third time) a residence permit, now based on the fact that his children are Belgian nationals. Subsequently, he was offered a residence registration card for the period up to February Meanwhile, owing to the temporary suspension of his employment, Mr Ruiz Zambrano applied for social benefits. This application was unsuccessful, as he did not possess a work permit. Although his unemployment was only of short duration, his application for social benefits led to an investigation by the Belgian labour authorities, which resulted in the dismissal of Mr Ruiz Zambrano by his employer. Being unemployed once again, he applied for social benefits. It is within this context that the Employment Tribunal referred three questions to the ECJ. The first question was whether Jessica and Diego Ruiz Zambrano could rely on their status as European citizens, even though they were born in Belgium and had not exercised their right to free movement under EU law. In a more abstract fashion, the referring tribunal asked the ECJ whether a Union citizen has the right to reside in the Member State of their nationality, irrespective of whether they have exercised their right to move according to art.21 TFEU. Furthermore, the Tribunal asked whether arts 19, 20 and 21 TFEU in conjunction with art.21 of the Charter should be interpreted as meaning that a third-country national, such as Mr Ruiz Zambrano, who is caring for a dependent child, being a Union citizen, and has sufficient resources and sickness insurance, 3 J.-Y. Carlier, Incola est About European Citizenship in A. Böcker, T. Havinga, P. Minderhoud, H. van de Put, L. de Groot-van Leeuwen, B. de Hart, A. Jettinghoff and K. Zwaan (eds), Migration Law and Sociology of Law. Collected essays in honour of Kees Groenendijk (Nijmegen: Wolf Legal Publishers, 2008), p.161.

98 706 European Law Review has a secondary right of residence in that Member State, irrespective of that child or their legal representative exercising their right to move to another Member State. Lastly, the Tribunal asked the ECJ whether arts 19, 20 and 21 TFEU should be interpreted in the sense that, under the specific conditions of the present case, a third-country national might be exempted from the obligation to possess a work permit in light of attributing useful effect to the rights of a minor European citizen who is dependent on the care of the third-country national. The Court reformulated the questions in order to ask whether the status of Union citizenship could be autonomously relied upon, without there being a cross-border connection, and, especially in this case, whether this status implied a right to residency for a third-country national who is entrusted with the daily care of a Union citizen. The essential question in the Ruiz Zambrano case is the following: does art.20 TFEU have an autonomous character and does it serve as a sufficient connection in order to trigger the scope of Union law? Interestingly, Advocate General Sharpston in her Opinion devoted 178 paragraphs to the Ruiz Zambrano case, whereas the ECJ decided the case in only 46 paragraphs. In her Opinion, the Advocate General made three suggestions to the Court. First, she examined whether art.20 TFEU could be applied autonomously in the situation of Mr Ruiz Zambrano. Secondly, she recommended that the Court should adopt a new approach towards European citizenship and the protection of fundamental rights. She proposed that the Court should assert that art.18 TFEU prohibits, reverse discrimination caused by the interaction between Article 21 and national law that entails a violation of a fundamental right protected under EU law, where at least equivalent protection is not available under national law. 4 Thirdly, she discussed the possibility of invoking fundamental rights, independently from any other provision of EU law, with regard to areas in which the European Union has competence to act (irrespective of whether this competence has not yet been exercised). The ECJ, however, without explicitly rejecting the arguments of the Advocate General, referred only to art.20 TFEU, which confers the status of citizen of the Union on every person holding the nationality of a Member State, and held, without hesitation or extensive argumentation, that, citizenship of the Union is intended to be the fundamental status of nationals of the Member States Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. 5 The Court appears to have gone much further in its interpretation of art.20 TFEU than the Advocate General in her Opinion. The ECJ s interpretation of that provision also means that third-country nationals, under the circumstances in the present case, obtain a derived right to reside in the Member State of their children s nationality. The most important aspect of the judgment is that the Court, for the first time, interpreted art.20 TFEU as an autonomous source of rights for Union citizens, even without there being a supporting cross-border link. 4 Ruiz Zambrano (C-34/09) March 8, 2011 at [144]. 5 Ruiz Zambrano (C-34/09) March 8, 2011 at [40], [41] and [42].

99 Analysis and Reflections 707 From economically active citizens to EU citizenship Market citizenship in its purest form With the coming into force of the EEC Treaty, the free movement of persons, although extending to all economic sectors, was confined to persons participating in the Common Market. The establishment of the common market and, later, when the Single European Act came into force, the internal market, has played a central role in attaining the objectives of the E(E)C Treaty as previously laid down in art.2 EC. The free movement of persons and services have, together with the other freedoms (goods and capital) formed the backbone of the European Community. That the original substantive provisions of the Treaty of Rome did not provide for a general right of free movement for all persons and companies appeared from the requirements that the individual or company should be a national of a Member State and be engaged in an economic activity as a worker, a self-employed person, a service provider or a service recipient. 6 In other words, the economic connotation seemed to be crucial. However, the case law in this field shows how far-reaching the scope of the Treaty provisions on services could be. After cases like Luisi and Carbone and, in particular, Cowan, it became clear that art.56 TFEU can be invoked by service recipients as well 7 : tourists, recipients of medical treatment in another Member State patients 8 and those persons travelling for the purpose of private education have a right to free movement under art.56 TFEU. 9 This case law shows how far-reaching the scope of art.56 TFEU can be, in that it grants the recipients of services (nearly equating service recipients with citizens) certain rights that are similar to citizenship rights. 10 In a similar vein, the humanization of free movement rights became clearly traceable here. 11 Individuals were no longer merely regarded as factors of production, but a more social and human approach to individuals became visible in the case law of the ECJ. 12 Carpenter is, of course, illustrative of the broad approach to the free movement of services. 13 After all, in Carpenter, the existence of virtual recipients of services located in another Member State sufficed to bring a case concerning the right to reside of a third country national spouse of a self-employed British national, residing in the UK, within the scope of application of Article 56 TFEU. 14 Non-economically active citizens: before the Treaty of Maastricht European citizenship has been the subject of debate since the 1970s. After the Paris Summit (1974), the former Belgian Prime Minister Tindemans drew up a report on the future of the European Union, which included a separate chapter on European citizenship and emphasised that Europe must be close 6 C. Barnard, The Substantive Law of the EU The Four Freedoms (Oxford: Oxford University Press, 2010), p Cowan v Tresor Public (186/87) [1989] E.C.R. 195; [1990] 2 C.M.L.R. 613; Luisi v Ministero del Tesoro and Carbone (286/82 and 26/83) [1984] E.C.R. 377; [1985] 3 C.M.L.R E.g. R. (on the application of Watts) v Bedford Primary Care Trust (C-372/04) [2006] E.C.R. I-4325; [2006] 3 C.M.L.R Schwarz v Finanzamt Bergisch Gladbach (C-76/05) [2007] E.C.R. I-6849; [2007] 3 C.M.L.R N. Nic Shuibhne, Annotation Case C-76/05, Schwartz, C-318/05, Commission v. Germany and Joined Cases C-11/06 & C-12/06, Morgan (2008) 45 C.M.L. Rev N. Nic Shuibhne, The Resilience of EU Market Citizenship (2010) 47 C.M.L. Rev S. O Leary, Free Movement of Persons and Services, The Evolution of EU Law (Oxford: Oxford University Press), p Carpenter v Secretary of State for the Home Department (C-60/00) [2002] E.C.R I-6279; [2002] 2 C.M.L.R S. O Leary, The Free Movement of Persons and Services in P. Craig and G. De Búrca, The Evolution of EU Law, 2nd edn (Oxford: Oxford University Press, 2011), p.533.

100 708 European Law Review to its citizens. 15 It took, however, almost 20 years before the Council adopted, in 1990, three separate directives on free movement for students, 16 pensioners 17 and non-economically active persons in general. 18 Through the adoption of these three directives, the right to free movement for non-economically active persons was gradually extended. The fact that workers as well as self-employed or other economically active citizens increasingly made use of their right to free movement within the European Union made the adoption of these directives necessary. 19 The inclusion of European citizenship in the Treaty Union citizenship was formally introduced by the Treaty of Maastricht in According to art.20 TFEU, the status of European citizenship is bestowed on every national of a Member State and this status grants specific rights to those individuals (in arts TFEU). Article 21 TFEU, which grants the right to move and reside freely, has played an important role in the development of the idea of European citizenship. The rights granted to EU citizens are subject to the limitations and conditions laid down in the Treaties and in the measures adopted to give effect to these rights, such as Directive 2004/38, 20 which has replaced inter alia the three residence Directives and also regulates, in more detail, the right to free movement for persons who migrate for economic purposes. The ECJ has interpreted the right to free movement broadly. 21 Article 21 TFEU was read in conjunction with the general prohibition of discrimination on grounds of nationality. 22 This combined approach was adopted by the ECJ in respect of any measure that discriminated against citizens of the Union on the basis of their nationality, not only regarding residence-related benefits (such as housing), but also with respect to any subject that potentially affected individuals daily lives in another Member State. 23 In subsequent case law, the ECJ extended this approach to restrictions on the exercise of Union citizens rights to move and reside, beyond a mere prohibition of discrimination. 24 This application of either the prohibition of 15 Report by Mr Leo Tindemans, Prime Minister of Belgium, to the European Council. Bulletin of the European Communities, Supplement 1/76, Ch.IV, A Citizen s Europe, p Directive 90/366 on the right of residence for students [1990] OJ L180/ Directive 90/365 on the right of residence for employees and self-employed persons who have ceased their occupational activity [1990] OJ L180/ Directive 90/364 on the right of residence [1990] OJ L180/ See also K.J.M. Mortelmans en H.G. Sevenster, Het burgerschap van de Unie: het spoor terug in: M.P.A. DeKoninck, A. van den Brink, S.A. de Vries, Beginselen Bouwen Burgerschap, Boom Juridische Uitgevers: Den Haag (2011, forthcoming). 20 Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/ See also S. Prechal, S.A. de Vries and H. van Eijken, The Principle of Attributed Powers and the Scope of EU Law in L.F.M. Besselink, F. Pennings, S. Prechal (eds), The Eclipse of the Legality Principle in the European Union (Alphen aan den Rijn: Kluwer Law International, 2011), pp Martinez Sala was the first case in which arts 18 and 21 TFEU were connected. Martínez Sala v Freistaat Bayern (C-85/96) [1998] E.C.R. I-2691 at [63]. This connection was further developed in Grzelczyk v Centre public d aide sociale d Ottignies-Louvain-la-Neuve (C-184/99) [2001] E.C.R I The prohibition of discrimination applied to national measures such as those concerning social benefits, e.g. a child-raising allowance: Martínez Sala (C-85/96) [1998] E.C.R. I-2691; student assistance: R. (on the application of Bidar) v Ealing LBC (C-209/03) [2005] E.C.R. I-2119; [2005] 2 C.M.L.R. 3; and Förster v Hoofddirectie van de Informatie Beheer Groep (C-158/07) [2008] E.C.R. I-8507; [2009] 1 C.M.L.R. 32; subsistence allowances: Trojani v CPAS (C-456/02) [2004] E.C.R. I-7573; and Grzelczyk (C-184/99) [2001] E.C.R. I-6193; also, concerning a centralised register of personal data for purposes of combating crime; Huber v Germany (C-524/06) [2008] E.C.R. I-9705; [2009] 1 C.M.L.R. 49; and an annual toll disc free of charge for disabled persons: Gottwald v Bezirkshauptmannschaft Bregenz (C-103/08) [2009] E.C.R. I-9117; [2010] 1 C.M.L.R Pusa v Osuuspankkien Keskinainen Vakuutusyhtio (C-224/02) [2004] E.C.R. I-5763; [2004] 2 C.M.L.R. 23; De Cuyper v Office national de l emploi (C-406/04) [2006] E.C.R. I-6947 are examples.

101 Analysis and Reflections 709 discrimination or of restrictions only applies, however, to EU citizens who have exercised their right to move and reside in the European Union. Relationship with the other (economic) freedoms The concept of European citizenship has played an additional role, beyond the economic freedoms, in situations where no actual economic link could be established. But this does not mean that the economic freedoms have become less relevant. The Court seems to have a certain preference to seek to apply the economic freedoms first before turning then, if necessary, to the provisions on EU citizenship. The case of Schwarz 25 serves as an example, wherein the ECJ first examined whether education could qualify as a service within the meaning of art.56 TFEU, and only then proceeded to consider whether tax relief for education undertaken in German private schools only could be regarded as a restriction on the free movement of Union citizens. In the more recent case of Josemans, this preference of the Court is also apparent. The ECJ ruled that a measure that prevented non-nationals from having access to Dutch coffee shops (selling soft drugs) did not fall under the scope of application of the freedom to provide services, since trade in soft drugs is prohibited in all Member States. The ECJ continued by stating that the right for every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in the provisions guaranteeing the freedom to provide services. 26 Hence it can be argued that although the ECJ has increasingly adopted a humanity approach to free-movement rights, the market aspect of citizenship continues to be extremely relevant. Article 56 TFEU was not applicable in Josemans, yet the ECJ refused to assess the Dutch measure in the light of the Treaty provisions on citizenship, although the Dutch court had explicitly asked it to do so. Of course, the case was of a highly political nature, but still, the Court could have decided that the refusal to allow non-dutch residents to have access to Dutch coffee shops fell under the prohibition of arts 18 and 21 TFEU, while still being able to conclude that the residence criterion was objectively justified for reasons of public security and public order. 27 Market citizenship continues to be a cornerstone for the free movement rules. 28 However, European citizenship has an added value in situations in which the economic link with EU law is not present or is unclear, as seen in Schwarz, and also in cases on social benefits for non-economic EU citizens. 29 Furthermore, EU citizenship may be understood as possessing a more fundamental or constitutional status, which underlies the economic status that a national of a Member State may acquire and/or lose. In other words, citizenship remains the basic foundation for nationals of the Member States, irrespective of whether they lose their job or the status of a self-employed person. The statement by A.G. Cosmas in one of the first cases on Union citizenship 30 may be illustrative; he stated that the free movement of Union citizens, constitutes a goal in itself and is inherent in the fact of being a citizen of the Union, and is not merely a parameter of the common market, it does not merely have a different regulatory scope: it also, and primarily, differs in terms of the nature of the rights it bestows on individuals and the breadth of the guarantee that Community and national principles must accord it Schwarz (C-76/05) [2007] E.C.R. I Josemans v Burgemeester van Maastricht (C-137/09) [2011] 2 C.M.L.R. 19 at [53]. 27 H. van Eijken and H.J. van Harten, Lookin for a Little Green Bag: en de werkingssfeer van het Unierecht [2011] Nederlands Tijdschrift voor Europees Recht N. Nic Shuibnhe, The Resilience of EU Market Citizenship (2010) 47 C.M.L. Rev Martinez Sala (C-85/96) [1998] E.C.R. I-2681; Bidar (C-209/03) [2005] E.C.R. I-2119; Tas-Hagen and Tas v Raadskamer WUBO van de Pensioen- en Uitkeringsraad (C-192/05) [2006] E.C.R. I-10451; [2007] 1 C.M.L.R Criminal proceedings against Wijsenbeek (C-378/97) [1999] E.C.R. I-6207; [2001] 2 C.M.L.R. 53, Opinion of A.G. Cosmas at [81] [87]. 31 Wijsenbeek (C-378/97) [1999] E.C.R. I-6207, Opinion of A.G. Cosmas at [86].

102 710 European Law Review Against this background, the question arises as to what extent European citizenship independently from the economic freedoms may enhance the more constitutional development of the European Union. What is the reach of the intended fundamental status of nationals of the Member States? Extending the scope of EU citizenship Ever since its inclusion in the Treaty, the Court has been forced to define and demarcate further the scope of EU citizenship. Which type of persons, EU nationals and/or third-country nationals, can in which type of circumstances, including situations where no clear cross-border link exists, rely upon art.21 TFEU to claim a right to free movement and residency? After the Opinion of A.G. Sharpston in Ruiz Zambrano, there was good reason to believe that the Court would shed more light, drawing from the analysis of the Advocate General, on the triangular relationship between the concept of the internal situation, third-country nationals and the Charter of Fundamental Rights, thereby searching for the limitations on the scope of application of EU law in general and of arts 20 and 21 TFEU in particular. But has the Court managed to do so, considering its (very) brief judgment? In the following paragraphs, we discuss the concept of the internal situation (based on the distinction between the right to reside and the right to move), the scope of art.20 TFEU, the role of the Charter of Fundamental Rights and the position of third-country nationals. Internal situations and the right to reside on the territory of the Member States In answering the question whether Union citizens may rely on their right to move and reside under art.21 TFEU, irrespective of an actual cross-border link, Advocate General Sharpston disconnects the right to move from the right to reside. She advised the ECJ to acknowledge the right to residency as a free-standing right for European citizens and, therefore, to extend the existing case law to situations in which no actual movement has taken place. The fact that the rights of EU citizens are largely ensured through the model of free movement, by prohibiting discriminatory measures as well as restrictions, might result in reverse discrimination. After all, the treatment of a Union citizen in his or her own Member State, without there being a cross-border dimension, is not governed by EU law. This implies, for instance, that national measures that are more stringent for that Member State s own nationals cannot be set aside on the basis of European law. This issue of reverse discrimination not only plays a role within the context of the economic freedoms, but also within the context of European citizenship. The Court of Justice repeatedly emphasised that Citizenship of the Union is not intended to extend the scope ratione materiae of the Treaty to internal situations which have no link with Community law. 32 Hence, in order for the application of the provisions on European citizenship to arise, a cross-border link has to be established. Since EU law does not apply in purely internal situations, any difference in treatment between those Union citizens and those who have exercised their right of freedom of movement, as regards the entry and residence of their family members, does not therefore fall within the scope of Community [Union] law See inter alia Nerkowska v Zaklad Ubezpieczen Spolecznych Oddzial w Koszalinie (C-499/06) [2008] E.C.R. I-3993; [2008] 3 C.M.L.R. 8 at [25]; Garcia Avello v Belgium (C-148/02) [2003] E.C.R. I-11613; [2004] 1 C.M.L.R. 1 at [26]; Tas-Hagen and Tas (C-192/05) [2006] E.C.R. I at [23]. 33 Metock v Minister for Justice, Equality and Law Reform (C-127/08) [2008] E.C.R. I-6241; [2008] 3 C.M.L.R. 39 at [78].

103 Analysis and Reflections 711 But in the Court s case law on the economic freedoms, as well as on citizenship, one can see tendencies of not interpreting the cross-border requirement too strictly. 34 The cases of the so-called passport migrants, such as Garcia Avello, may serve as an example. In those cases, the fact that European citizens were residing lawfully in a Member State other than that of their nationality was sufficient to establish a cross-border link within the meaning of art.21 TFEU. Although the cross-border link became frail, the ECJ still applied it as part of its assessment. In Garcia Avello, the children of Spanish parents had been born in Belgium but had dual Belgian/Spanish nationality. They fell within the scope of art.18 TFEU because they were, as European citizens, lawfully residing in another Member State. Although the children did not actually exercise their right to free movement, their parents had at least used their rights as EU citizens by moving to another Member State. 35 In another case, the Schempp case, the citizen who was disadvantaged by a national measure was not the citizen who had actually moved, but the citizen who was affected negatively by the movement of his former spouse. Nevertheless, irrespective of the ECJ s flexible interpretation of the cross-border requirement, thereby delimiting the scope of purely internal situations, the requirement is still relevant. This means that the vast majority of EU citizens, who have neither the resources nor the opportunity to use their migration right to move to another Member State and reside there, will not benefit from EU law. It has therefore been questioned whether one can truly speak of a concept of European citizenship destined to be the fundamental status. 36 The Ruiz Zambrano case significantly differs from cases like Garcia Avello, Cowan and Schempp: Jessica and Diego Ruiz Zambrano are Belgian nationals residing in Belgium with their Columbian parents. As an established fact, no cross-border dimension is present in their case. All six intervening Member States had therefore argued that the situation of the Ruiz Zambrano family had to be regarded as a purely internal situation. The Commission also stressed that the case lacks a link with EU law. Furthermore, the Commission, as well as the Member States, emphasised that, in these cases, both national law and the European Convention on the Protection of Human Rights (ECHR) should offer sufficient protection for Mr Ruiz Zambrano and his family members. The Court of Justice was warned not to compete with this form of protection by applying the rules on EU citizenship. However, in Ruiz Zambrano A.G. Sharpston took another stance. She referred to the Rottmann case, arguing that the situation of Mr Ruiz Zambrano does have a link with EU law and, therefore, falls within its scope of application. In Rottmann, the question was whether the withdrawal of a German national s nationality would be contrary to the citizenship provisions, if that withdrawal resulted in statelessness and thus in losing the status of EU citizenship. Janko Rottmann had moved from Austria to Germany and, owing to naturalisation, had lost his Austrian nationality and acquired German nationality. Although his situation could have been interpreted as a cross-border situation based on his earlier migration from Austria to Germany, the Court found that: 34 This is most obvious in the field of art.30 TFEU and charges having equivalent effect (see, for example, Carbonati (C-72/03) [2004] E.C.R. I-8027), but also in cases where the ECJ has adopted a more subtle approach: S. de Vries, Tensions within the Internal Market The Functioning of the Internal Market and the Development of Horizontal and Flanking Policies (Groningen: Europa Law Publishing, 2006), p.36; Barnard, The Substantive Law of the EU, 2010, pp In the judgment of the Court of Justice, it remains unclear whether the cross-border migration of the parents was taken as a central point, or whether the fact that the children with Spanish nationality invoked their European citizenship rights against the Belgian legislation, according to which they could not be registered with double surnames. 36 E. Spaventa, The Constitutional Impact of Union Citizenship in U. Neergaard (ed.), The Role of Courts in Developing a European Social Model (Djøf Publishing, 2010), pp

104 712 European Law Review It is clear that the situation of a citizen of the Union who is faced with a decision withdrawing his naturalization, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article 17 EC [art.20 TFEU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law. 37 The Court s judgment was based on the status of EU citizenship and the consequences of the withdrawal of nationality for that status. Mr Rottmann would inter alia not be able to exercise his right as a European citizen to move and reside freely in other Member States; but also, his right to participate in European elections in other Member States on an equal footing would be lost. 38 The fact that the withdrawal of his nationality would constitute an obstacle to the future exercise of his right seems to have been decisive in the judgment of the ECJ. A.G. Sharpston also referred to the well-known Chen case, 39 which gave Ms Chen, the Chinese mother of Catherine, the right to reside in the United Kingdom because baby Catherine was dependent on the care of her mother. Ms Chen, a temporary migrant to the United Kingdom, had travelled from Great Britain to Northern Ireland to give birth to her daughter Catherine. Although Northern Ireland forms part of the United Kingdom, by being born on the island of Ireland and based on the principle of ius soli, her daughter did have the right to acquire Irish nationality and, therefore, the right to reside in the United Kingdom as a European citizen subject to the condition of having sufficient means and comprehensive health insurance. In the light of this case law, the children of Mr Ruiz Zambrano would have the right to have their care-providing parents with them in Belgium on the ground of their status as European citizens. A.G. Sharpston therefore argued that the situation of Mr Ruiz Zambrano falls within the scope of Union law, since the Ruiz Zambrano children cannot exercise their rights as Union citizens (specifically, their rights to move and to reside in any Member State) fully and effectively without the presence and support of their parents. 40 The argument that the carers of children should have a derived right to reside had also been developed in Chen and Baumbast. 41 Interestingly, in Chen and Baumbast, the Court explicitly referred to the primary carer of the children who should have a derived right to reside and not just to the parents of the children being their carers. However, in Ruiz Zambrano, the ECJ referred to the dependency of the children with regard to their parents, which may raise the question of to what extent differences in the concepts of primary carer and parents of dependent children overlap. One may consider dependency as a broader concept than primary care for children. In the pending case of Dereci, 42 this question may be answered (see further below). The ECJ is brief and clear: a link with European law can be established by the fact that the children have the nationality of one of the Member States of the EU and that they are therefore citizens of the Union. The link with EU law is thus not triggered by the use of free movement, but simply by the status of European citizenship autonomously. The ECJ subsequently holds that Union citizenship is destined to be the fundamental status of nationals of the Member States, which means that national measures may not preclude the genuine enjoyment of the substance of the rights conferred by that status. According to 37 Rottmann v Freistaat Bayern (C-135/08) [2010] 3 C.M.L.R. 2 at [42] (emphasis added): it may be that the Court has opened the door in Rottmann to a new phase in its case law : J. Shaw, Citizenship: Contrasting dynamics at the interface of integration and constitutionalism in The Evolution of EU Law, 2011, p Most European citizens rights are connected with free movement, except for the right to petition the EP, to submit complaints to the European Ombudsman and probably to sign in for a citizen s initiative. These rights are also, however, granted to any natural or legal person lawfully residing in the EU (arts 227 and 228 TFEU). 39 Chen v Secretary of State for the Home Department (C-200/02) [2004] E.C.R. I-9925; [2004] 3 C.M.L.R Ruiz Zambrano (C-34/09) March 8, 2011 at [96]. 41 Baumbast v Secretary of State for the Home Department (C-413/99) [2002] E.C.R. I-7091; [2002] 3 C.M.L.R Dereci (C-256/11) [pending].

105 Analysis and Reflections 713 the ECJ, a refusal to grant a residence permit and the refusal to grant a work permit to a third-country national are both national measures which have such negative effects for Union citizens. The most important aspect of Ruiz Zambrano is definitely the application of art.20 TFEU as an autonomous right. Looking at Chen and Rottmann, the Court s judgment in Ruiz Zambrano can be explained and could even have been predicted. But the Court, for the first time, makes it very clear that, in its view, without there being a cross-border link, art.20 TFEU constitutes a sufficient link with Union law by itself. Consequently, the scope of application of EU law is extended by this new line of case law. 43 What kinds of restrictions are caught by article 20 TFEU? Since the ECJ holds that art.20 TFEU constitutes a sufficient link with EU law, the question arises whether the refusal to grant a residence permit and a working permit to Mr Ruiz Zambrano would amount to a restriction of his children s rights. As mentioned before, the Court ruled that, under the circumstances of the Ruiz Zambrano family, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. 44 The difficulty here is the following: what could be understood as the genuine enjoyment of the substance of the rights? It seems that the Court of Justice limited its decision to situations in which Union citizens do not have the actual possibility to enjoy their EU citizens rights, as was the case in Rottmann. If the Ruiz Zambrano children had to return to Colombia with their parents, only the right to consular and diplomatic protection in third countries by other Member States, subject to conditions which apply equally to the nationals of that particular consulate or embassy, would be relevant (art.23 TFEU). The other rights of EU citizens are connected with residency on European Union territory the right, for instance, to vote and stand as a candidate in another Member State in municipal and European elections, subject to conditions which apply equally to the Member States s own nationals (art.22); the right to free movement (art.21 TFEU); and also the citizens initiative or the right to petition the EP (art.24 TFEU) would not be very relevant when residing in Colombia. The rather ambiguous statement on art.20 TFEU by the Court may, however, have potentially far-reaching consequences. Should, for example, certain benefits have to be granted to third-country nationals in order to facilitate residency in the European Union and, if so, to what extent? Would Mr Ruiz Zambrano also have a right to social benefits which were refused to him if he could not find a job? The scope of art.20 TFEU still remains unclear and national courts, struggling with these types of questions, will probably have to refer new cases to the ECJ. An example is the pending case of Dereci, in which the Austrian Verwaltungsgerichtshof has referred a number of questions to the ECJ on the interpretation of art.20 TFEU. 45 An interesting question raised in this case is the extent to which the derived right to residency can be limited by national or EU law. What kind of justifications can be invoked by Member States in respect of art.20 TFEU? Hopefully, this and other rulings by the ECJ will bring the desired certainty as to both the content and outer boundaries of art.20 TFEU. 43 See also, on European citizenship and the scope of application of EU law, Prechal et al., The Principle of Attributed Powers and the Scope of EU Law in The Eclipse of the Legality Principle in the European Union, 2011, pp Ruiz Zambrano (C-34/09) March 8, 2011 at [42]. 45 Dereci (C-256/11) [pending].

106 714 European Law Review The condition of having sufficient financial resources and the entitlement to a working permit Advocate General Sharpston stated that the refusal to grant a residence permit which also implied the refusal of a work permit interfered with the children s right to reside. After all, they would eventually have to leave Belgian territory (and the European Union at the same time) if their parents had to return to Columbia. A similar reasoning can be found in the Court s judgment. In addition, the ECJ stated that, similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. 46 So, what does Ruiz Zambrano entail for the condition of having sufficient resources and for acquiring a work permit? Directive 2004/38 requires that EU citizens must not constitute an unreasonable burden on a Member State s finances, and includes the requirement that EU citizens must have sufficient means (art.7(1)(b)). In the case of Chen, baby Catherine had sufficient resources and sickness insurance, provided to her by her mother, which the Court accepted as fulfilling the conditions of the Directive. 47 The same could be true for Mr Ruiz Zambrano, although the present case is not, however, governed by the Directive, since the scope of the Directive is limited to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members. On the one hand, one could argue that the Court in Ruiz Zambrano circumvents the conditions of the Citizenship Directive, which may lead to the paradoxical conclusion that citizens having exercised their right to free movement would have to meet the strict requirements of the Directive, whereas static citizens would not be faced with such requirements at all. In other words, this may entail that EU citizens who have moved are treated less favourably than those who have not. 48 On the other hand, the right to reside and the right to move could be seen as two autonomous rights whose modes of application differ and which have different boundaries. The fact that the right to move is subject to the condition of having sufficient financial resources and sickness insurance could be explained by the reason that nationals of another Member State should not become a burden to the social security system of the host Member State. 49 But where the right to reside is at issue, and, in particular, the right as a national to reside in their own Member State based on art.20 TFEU, residency in the Member State of nationality should be ensured without such strict conditions. The ECJ unreservedly holds that art.20 TFEU, precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen. 50 The Court does not attach specific circumstances to this interpretation of art.20 TFEU, which raises the question whether the obligation for Member States to grant a work permit would be limited to the specific circumstances of Ruiz Zambrano or should be interpreted more broadly. Mr Ruiz Zambrano had been working for five years. The only reason for him to request social benefits was that he had become 46 Ruiz Zambrano (C-34/09) March 8, 2011 at [44]. 47 Chen (C-200/02) [2004] E.C.R. I A. Wiesbrock, The Zambrano case: Relying on Union Citizenship Rights in Internal Situations, European University Institute, -rights-in-internal-situations [Accessed September 2, 2011]. 49 Grzelzcyk (C-184/99) [2001] E.C.R. I-6193 at [44]. 50 Ruiz Zambrano (C-34/09) March 8, 2011 at [45].

107 Analysis and Reflections 715 unemployed owing to the fact that he had not been granted a work permit. One could quite likely imagine that these circumstances supported the decision of the ECJ. Besides, according to the referring Belgian tribunal, third-country nationals who are married to a Belgian national would be exempted from the requirement to have a work permit if they had children who are financially dependent on their parents. Against this background, Mr Ruiz Zambrano had argued before the national tribunal that the refusal to grant him an exemption constituted discrimination on grounds of nationality vis-à-vis his children. But the ECJ in its judgment did not refer to the specific Belgian legal circumstances, or to the fact that Mr Ruiz Zambrano had been working for five years, which leads to unclear limits to the scope of the obligation for Member States to grant a work permit to a third-country national whose children have the status of Union citizenship. The Court s judgment in McCarthy The more recent McCarthy judgment may be of assistance in grasping the meaning, scope and limits of Ruiz Zambrano. 51 McCarthy was decided two months after Ruiz Zambrano. Shirley McCarthy had dual Irish/UK nationality. She had married a Jamaican national and requested, on the basis of her status as a European citizen, a right of residence in the United Kingdom with her husband. The British authorities refused, however, to grant Mr McCarthy a residence document. Mrs McCarthy had always lived in the United Kingdom and had never resided in Ireland; but since her mother had Irish nationality, Mrs McCarthy could successfully apply for an Irish passport, which she did after her marriage. Furthermore, Mrs McCarthy had been in receipt of social benefits and therefore did not fulfil the condition of having sufficient resources. The ECJ explained, more clearly than in Ruiz Zambrano, that a national has an unconditional right to residency 52 in the Member State of their nationality and that, in this situation, the conditions of Directive 2004/38 are not relevant. But can Mrs McCarthy rely on art.20 TFEU to claim a residence right for her husband? According to the ECJ, she can in principle rely on art.20 TFEU, but, in this particular case, the fact that Mr McCarthy was refused a residence document as the spouse of Mrs McCarthy did not deprive Mrs McCarthy of genuine enjoyment of the substance of her rights as a European citizen. Hence the situation of Mrs McCarthy has no factor linking it with any of the situations governed by European Union law and the situation is confirmed in all relevant aspects within a single Member State. 53 Wrapping all of this up, although Ruiz Zambrano may have opened the door to relying on art.20 TFEU and the concept of European citizenship even in internal situations, there still has to be a link with the future exercise of citizens rights. In both Rottmann and Ruiz Zambrano, the right to reside and the actual possibility to enjoy this right as an EU citizen were in danger. In McCarthy, the Court clarified that the scope of application of this right is limited to those situations in which European citizenship would be eroded. From now on, European citizens have two different routes. First, whenever there is an actual cross-border link, Directive 2004/38 applies, granting the right to reside in other Member States subject to certain conditions (inter alia having sufficient means); secondly, in cases where the fundamental status of European citizenship is endangered, because the EU citizen has been precluded from enjoying this status, art.20 TFEU applies. But that right under art.20 TFEU so far appears to be more limited and needs to be further elaborated in the forthcoming case law. 51 McCarthy v Secretary of State for the Home Department (C-434/09) [2011] 3 C.M.L.R McCarthy (C-434/09) [2011] 3 C.M.L.R. 10 at [50]. 53 McCarthy (C-434/09) [2011] 3 C.M.L.R. 10 at [55].

108 716 European Law Review The question of reverse discrimination: how is article 18 TFEU connected with Union citizenship? As observed above, the fundamental question of reverse discrimination, which may occur in internal situations, was dealt with by the Advocate General but not by the Court, as it decided the case on the basis of art.20 TFEU. It is nevertheless worthwhile to discuss A.G. Sharpston s proposal with regard to the application of art.18 TFEU in internal situations. The essential question in the second part of her Opinion is whether the principle of non-discrimination as laid down in art.18 TFEU may be invoked to resolve reverse discrimination, which is created by the interaction between EU and national law if Mr Ruiz Zambrano could not rely on art.20 TFEU. She argues on the one hand that the protection of European citizens against discrimination is important, since this is intended to be the fundamental status of nationals of the Member States. On the other hand, the scope of art.21 TFEU has clear limits, which will have to be respected as well. Extending the scope of art.21 TFEU to situations without an evidently cross-border dimension creates legal uncertainly for Union citizens who find themselves in the grey area between purely internal and cross-border situations. To illustrate the strange and illogical results of all of this, A.G. Sharpston wonders whether the situation would have been different if Jessica and Diego Ruiz Zambrano had visited Parc Astérix in Paris or the seaside in Brittany. Would the fact that the Ruiz Zambrano children had exercised their right to move to another Member State for a short visit have triggered the scope of application of EU law? Or would such a short visit not have constituted a sufficient cross-border link with Union law to activate their Union citizens rights? It seems that under such circumstances lottery rather than logic would seem to be governing the exercise of EU citizenship rights. 54 Hence, for the purposes of legal certainly, it is important that the ECJ makes a clear statement on the acceptable limits of reverse discrimination. It is in that context that the Advocate General proposes that, Article 18 TFEU should be interpreted as prohibiting reverse discrimination caused by the interaction between Article 21 TFEU and national law that entails a violation of a fundamental right protected under EU law, where at least equivalent protection is not available under national law. 55 This application of art.18 TFEU to reverse discrimination is quite limited in its scope and is only applicable in very specific circumstances. This proposal may be welcomed as it respects the division of powers between the European Union and its Member States, on the one hand, and the substance of European citizenship and fundamental rights, on the other. And, although the impact of such a model on the national legal order may be rather intrusive, it will put the Member States under pressure to guarantee a high level of protection for fundamental rights also for their own nationals who are affected by EU law in a negative sense. After all, they are being discriminated against compared to migrating Union citizens. 56 The protection of fundamental rights and the Charter The Charter of Fundamental Rights played a crucial role in A.G. Sharpston s Opinion in Ruiz Zambrano, but was not even mentioned in the Court s judgment. The question explored here is whether the Charter may nevertheless have had an impact, through the backdoor. 54 McCarthy (C-434/09) [2011] 3 C.M.L.R. 10 at [88]. 55 Opinion in Ruiz Zambrano (C-34/09) September 30, 2010 at [144]. 56 See, on reverse discrimination, Union citizenship and art.18 TFEU, E. Spaventa, Seeing the Wood despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects (2008) 45 C.M.L. Rev. 30.

109 Analysis and Reflections 717 Proposed extension of the protection of fundamental rights Could Mr Ruiz Zambrano invoke his fundamental right to family life independently from any other provision of EU law, considering the fact that fundamental rights may only be relied upon in cases falling within the scope of application of Union law? This question is pertinent as it touches upon the boundaries of the ECJ s case law on the application of fundamental rights. On the basis of the case law of the ECJ, the following classification of cases where fundamental rights as general principles of EU law play a role could be made 57 : first, cases where infringements of fundamental rights by the EU institutions were at issue 58 ; secondly, cases where actions by Member States may lead to an infringement of fundamental rights in implementing EU law, 59 or in deviating from the free movement rules 60 ; lastly, cases where fundamental rights constitute a per se derogation from the free movement rules. 61 This case law is based on the recognition of fundamental rights as (unwritten) general principles of EU law. Now that the Treaty of Lisbon has entered into force and the Charter of Fundamental Rights has become binding, difficult questions are raised, about the constitutional interplay between unwritten and written fundamental rights within the Union legal order. Whether the Charter will eventually displace the general principles as the Court s primary reference point; or whether the Court will continue to prefer to rely on its own case law. 62 According to art.51(1) of the Charter of Fundamental Rights, the Charter applies to acts of Member States, when they are implementing Union law. How this condition should be interpreted and how it relates to the application of general principles of EU law still remains unclear. 63 Since Ruiz Zambrano extends the scope of application of Union law, the Charter might also be more easily triggered. But would the ECJ make such a connection? It will soon have the opportunity to pronounce on this question in the Yoshida Iida case. 64 One of the explicit questions referred by the German court to the ECJ in this case is whether, fundamental rights which continue to apply as general principles of Union law under Article 6(3) EU stand autonomously and independently alongside the new fundamental rights laid down in the Charter in accordance with 6(1) EU. Interestingly, this case concerns the rights of a parent who is a third-country national and has custody of a non-dependent child, who is a Union citizen, under Directive 2004/38, the Charter of Fundamental Rights and art.8 ECHR. 57 Prechal et al., The Principle of Attributed Powers and the Scope of EU Law in The Eclipse of the Legality Principle in the European Union, 2010, pp ; Editorial, The Scope of Application of General Principles of Union Law: An Ever Expanding Union? (2010) 47 C.M.L. Rev E.g. Stauder v City of Ulm (29/69) [1969] E.C.R. 424; [1970] C.M.L.R. 112; Internationale Handelsgesellschaft mbh v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (11/70) [1970] E.C.R. 1125; [1972] C.M.L.R Mangold v Helm (C-144/04) [2005] E.C.R. I-9981; [2006] 1 C.M.L.R ERT v Pliroforissis (C-260/89) [1991] E.C.R. I Eugen Schmidberger Internationale Transporte Planzuge v Austria (C-112/00) [2003] E.C.R. I-5659; [2001] 2 C.M.L.R. 34; Omega Spielhallen- und Automatenaufstellungs GmbH v Bundesstadt Bonn (C-36/02) [2004] E.C.R. I-9609; [2005] 1 C.M.L.R. 5; Sayn-Wittgenstein v Landeshauptmann von Wien (C-208/09) [2011] 2 C.M.L.R. 28; Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet (C-341/05) [2007] E.C.R. I-11767; [2008] 2 C.M.L.R Editorial, The Scope of Application of General Principles of Union Law (2010) 47 C.M.L. Rev D. Chalmers, G. Davies and G. Monti, European Union Law (Cambridge: Cambridge University Press, 2010), pp Iida v City of Ulm (C-40/11) [pending].

110 718 European Law Review The scope of application of the protection of fundamental rights in the context of EU law remains ambiguous. In the case of Carpenter, 65 for instance, the fact that Mr Carpenter, a UK national who also resided in the United Kingdom, occasionally travelled on behalf of his company to other Member States was sufficient to trigger the scope of application of the freedom to provide services. As a result, the deportation of his Philippine spouse could also be examined in the light of fundamental rights, more specifically the right to family life. According to the Court, Mrs Carpenter had a right to reside in the United Kingdom, as her deportation would otherwise restrict Mr Carpenter s right of free movement. A.G. Sharpston argues, in Ruiz Zambrano, that the use of the model of free movement for the protection of fundamental rights in the European Union leads to legal uncertainty: whenever a link can be established with the application of a provision of EU law, e.g. by moving to or visiting another Member State, the protection of fundamental rights at EU level is activated. If, however, such a link is not found, EU fundamental rights will not apply. Of course, the limits set by the principle of conferral have to be respected. The Advocate General proposed, therefore, to extend the application of the protection of fundamental rights to situations in which the European Union is competent to act, irrespective of the actual exercise of this competence by the EU legislator. One of the four reasons for extending the scope of application in this way is that a more consistent level of protection of fundamental rights in the European Union would correspond to the (intended) fundamental status of European citizens. 66 But A.G. Sharpston acknowledges that at the time of the facts of Ruiz Zambrano, the Lisbon Treaty had not yet been concluded (it was not even on the horizon 67 ) and the Charter was still not legally binding. Consequently, the question as to whether Mr Ruiz Zambrano would be able to claim a right to family life without any supporting EU provision was ultimately answered in the negative. A.G. Sharpston s Opinion may nevertheless be seen as a direct call for the ECJ to shape and fine-tune its future case law on fundamental rights. Consequences of Ruiz Zambrano for the protection of fundamental rights Although the Court did not articulate on the issue of the protection of fundamental rights, its judgment may nevertheless have important ramifications for the scope of application of fundamental rights in the Union and thus for the scope of application of EU law in general. As stated above, the protection of fundamental rights is activated in those situations that are embraced by the concept of falling within the scope of EU law. A broad interpretation of art.20 TFEU could thus easily trigger the application of fundamental rights. The main rule in Ruiz Zambrano is that whenever the substance of citizens rights, which constitutes the spine of European citizenship, is at risk, art.20 TFEU can be invoked. Arguably, the enjoyment of at least certain fundamental rights could be qualified as crucial for the enjoyment of European citizenship rights. 68 On the other hand, rather than extending the scope of application of fundamental rights, Ruiz Zambrano may just as well entail a levelling down of fundamental rights protection in the Member States, which can be explained as follows. 65 Carpenter (C-60/00) [2002] E.C.R I Other reasons mentioned by A.G. Sharpston are that such a new approach would keep the European Union within the limits of its competences, that Member States would be encouraged to enhance fundamental rights protection in areas of shared or exclusive competences and it would avoid the need to create a certain link with EU law in order to enjoy the protection of fundamental rights: Opinion of A.G. Sharpston in Ruiz Zambrano (C-34/09) September 30, 2010 at [167] [170]. 67 Opinion in Ruiz Zambrano (C-34/09) September 30, 2010 at [175]. 68 See also L. Azoulai, A comment on the Ruiz Zambrano judgment: a genuine European integration, EUDOCitizenship, -genuine-european-integration [Accessed September 2, 2011].

111 Analysis and Reflections 719 In the first place, the right to nationality could come under pressure. 69 Member States may seek to limit their rules on the acquisition of nationality to persons born on their territory, since nationality opens the door to European citizenship, within the limits of international law. During the proceedings in Ruiz Zambrano, the relevant Belgian law was revised, so that situations such as that occurring in Ruiz Zambrano would be prevented in the future. According to the new law, persons born in Belgium who would potentially become stateless do not acquire Belgian nationality if, owing to an administrative procedure or registration, the baby would be able to obtain the nationality of their country of origin. 70 Similarly, the nationality laws of Ireland were revised after the Court s judgment in Chen, in order to limit the possibilities for non-irish nationals to acquire Irish nationality. 71 Furthermore, and perhaps more importantly, Ruiz Zambrano could lead to a certain tension between the right to family life and the right to reside on the territory of the European Union as a European citizen, since the ECJ does not explicitly address whether one or both parents have a derived residency right. A case from a Dutch court serves to illustrate this point. 72 A national of Kosovo had migrated to the Netherlands and requested a residence permit, which was refused. In the meantime, she gave birth to a daughter, after which her deportation was postponed for six weeks. But she never left the Netherlands, and gave birth to a second child almost two years later. Her partner, a Dutch national, made a declaration of paternity with regard to the two children, who had both been granted Dutch nationality. The mother relied on the right to family life in her request for a permanent residence permit. She also relied on the Ruiz Zambrano judgment, since her children had acquired Dutch nationality and were EU citizens. The Dutch court ruled, however, that the situation of the mother differed from that in Ruiz Zambrano, since her children could still enjoy residency in the European Union with their father, who had Dutch nationality. The question is, how acceptable is this judgment in the light of Ruiz Zambrano? A narrow reading of Ruiz Zambrano suggests that one parent would indeed suffice to facilitate the residency of a Union citizen on the territory of the European Union in order that the latter might be able to genuinely enjoy the substance of their rights as a Union citizen. A broader reading implies that the splitting-up of the family would lead to an erosion of the enjoyment of European citizenship rights. The full enjoyment of those rights would thus lead to a divorce between the parents and children. For example, would it be acceptable if Mr. Ruiz Zambrano had a derived residency right but Mrs Ruiz Zambrano had to leave and return to Colombia? The text of the judgment leaves room for differing views on this point. On the one hand, as observed above, the ECJ refers to parents in the plural form, which could imply an expansion of its previous case law, such as Chen and Baumbast in which the ECJ only referred to the primary carer. On the other hand, the ECJ also speaks about a single third-country national, upon whom children are dependent. 73 The position of third-country nationals linked to EU citizens The questions emerging from Ruiz Zambrano regarding the position of third-country nationals will only be briefly touched upon here. More generally, third-country nationals have rights on the basis of Directive 69 See International instruments on the right to nationality: European Convention on Nationality [1997] E.T.S. 166 (art.4), or the Convention on the Reduction of Stateless Persons [1961] U.N.T.S. 989, Universal Declaration of Human Rights (art.15). 70 On December 28, 2006 the exception to art.10 of the Nationality Act was added (art.380); see [Accessed September 2, 2011]. 71 See also the Opinion of A.G. Sharpston in Ruiz Zambrano (C-34/09) September 30, 2010 at [114] [115]. 72 LJN: BQ0062, Rechtbank s-gravenhage, zittingsplaats Roermond, Awb 10/ Ruiz Zambrano (C-34/09) March 8, Compare [44]: It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents and [45]: Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children.

112 720 European Law Review 2004/38, which are based on their family connection with a Union citizen. Ruiz Zambrano may have left the door ajar to rights for third-country nationals in situations where no actual movement of EU citizens from one Member State to another is involved, as was the case in Chen or in Metock. 74 One can therefore argue that the rights of third-country nationals are strengthened by the Ruiz Zambrano judgment. The gap between the rights of Union citizens and third-country nationals seems to have been somewhat reduced. Residency is based upon the status and rights of the Union citizens (the children). Yet there appears to be a caveat in the judgment, namely that the extent to which third-country nationals have such a right outside the situation where they are care providers for the children is unclear. In the light of McCarthy, the Court s judgment in Ruiz Zambrano seems to be limited to those situations in which children who are EU citizens would not be able to reside in the European Union. Ruiz Zambrano has not been extended by the Court in McCarthy to third-country nationals who are spouses of EU citizens. In Metock, however, the residency of a third-country national spouse was connected to Union citizens rights, but that case was decided on the basis of the free movement of Union citizens. Up until now, it seems that the position of care providers is different from that of third-country nationals married to Union citizens. Although the position of third-country nationals has surely been strengthened by the judgment in Ruiz Zambrano, the extension of residency rights should not be overestimated. Residency is directly linked to the actual possibility or impossibility for the children to enjoy their rights as Union citizens. From that perspective, another interesting question can be raised: is there a time-limit to the derived residency right of the Ruiz Zambrano parent(s)? Would, for instance, parents like Mr Ruiz Zambrano have to leave Belgium or the European Union after the children become 18? Conclusion Ruiz Zambrano: a revolutionary judgment or much ado about nothing? The truth probably lies somewhere in the middle. The most important aspect of the Ruiz Zambrano case is undoubtedly the disentanglement of residence rights from free movement rights for EU citizens. Alongside the already existing path laid out by Directive 2004/38, a second route is now being offered, by the apparently directly effective art.20 TFEU, to citizens who have not used or been able to use their free movement rights. In that sense, the Directive, as some have argued, may not have been circumvented by the Court, but simply does not foresee Ruiz Zambrano types of situations. This second route reveals another dimension of EU citizenship, a concept that is developing autonomously and independently from national citizenship. This is most manifestly shown by the Court granting a de facto fundamental right to EU citizens and their third-country national carers not to be simply removed from EU territory on the basis of the Treaty. In our view, the Court thereby takes a significant step towards the further constitutionalisation of EU citizenship. And, without questioning the essential market dimension of citizenship, this development had already been launched since the Court revealed its human approach to the four freedoms, making the economic connotation less pertinent. Nevertheless the route offered by the Court is narrow and full of obstacles. From the more recent McCarthy case, it may even be concluded that Ruiz Zambrano is an exceptional case, which, owing to the exceptional circumstances, forced the Court to give a sympathetic ruling in respect of the Ruiz Zambrano family. Nevertheless, the words of the ECJ cannot be simply dismissed as pub talk ; one cannot uphold that European citizenship ought to be a fundamental status if such a status is not accompanied by certain guarantees. At the moment, such minimum guarantees are ensured at least with regard to residency within the European Union. The door might be open for certain other minimal or, to speak in the language of the Court of Justice, certain fundamental guarantees to European citizens, irrespective of any cross-border movement. 74 Metock (C-127/08) [2008] E.C.R. I-6241.

113 Analysis and Reflections 721 The, to some extent, rhetorical language used by the ECJ art.20 TFEU precludes national measures which have the effect of depriving citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union will have to be explained and polished, so that we can understand what the boundaries of art.20 TFEU actually are. But, most importantly, a new route into the promised land seems to have been created by the ECJ, thereby extending the scope and strengthening the nature of European citizenship in a constitutional sense. New cases will undoubtedly continue to arrive in Luxembourg, offering the ECJ the opportunity to provide further new insights into the complex status of European citizenship.

114 722 European Law Review Destroying Democracy on the Ground of Defending It? The Data Retention Directive, the 1 Surveillance State and Our Constitutional Ecosystem Theodore Konstadinides University of Surrey Constitutional rights; Criminal investigations; Data protection; Data retention; EU law; Germany; Harmonisation; Ireland; Privacy; Public electronic communications networks; Public electronic communications services; Romania Abstract Recent technological developments have brought into question the protection of personal data and individual privacy. This contribution focuses on the harmonisation of data retention rules in the European Union, in particular the controversy surrounding the adoption and implementation of the Data Retention Directive (2006/24). It first considers the initiation of secondary EU legislation on data retention and the human rights implications of the retention of traffic data for the purpose of law enforcement. It then discusses challenges against domestic implementation legislation that have been initiated by NGOs. The analysis leads to the conclusion that harmonisation of the length of time that telecom operators and internet providers must retain data, along with other measures regarding the prosecution of crime, have not met with success. These measures have rather generated uncertainty as to the form that data retention should take vis-à-vis the permissible degree of centralisation of power to the European Union and the adoption of legislation that allows for abuses of retained data contrary to the rule of law and fundamental rights. With an ECJ preliminary ruling pending on the constitutionality of Directive 2006/24, this debate is all the more interesting. Introduction In less than five years, EU criminal law has become a sub-discipline of EU law and what one can comfortably describe as well-travelled ground. 2 A central element of the development of EU criminal law comprises the increasing tendency to adopt EU mechanisms for the intensification of access to, collection and exchange of personal data. 3 Data surveillance has indeed occupied a special place in the European 1 The title is inspired by Klass v Federal Republic of Germany ( ) 2 E.H.R.R. 214 ECtHR. Thanks go to Leslie Blake and to Niamh Nic Shuibhne for their constructive comments and to Natasha Gouseti for her support. The usual disclaimer applies. 2 The increasing number of textbooks using the term EU criminal law justifies this assumption. See, for instance, in (reverse) order of date of publication: C. Schwarzenegger and S. Summers, The Emergence of EU Criminal Law: Cyber Crime and the Regulation (Oxford: Hart Publishing, forthcoming, 2012); S. Miettinen, Criminal Law and Policy in the European Union (Routledge-Cavendish, 2010); M. Fletcher, R. Loof and B. Gilmore, EU Criminal Law and Policy (Edward Elgar Publishing, 2010); A. Klip, European Criminal Law (Intersentia, 2009); V. Mitsilegas, EU Criminal Law (Oxford: Hart Publishing, 2009). 3 See Mitsilegas, EU Criminal Law, 2009, Ch.5.

115 Analysis and Reflections 723 Union s response agenda for countering global security threats such as terrorism and organised crime. 4 Co-operation between private and public actors has been crucial for the retention of data related to the use of electronic communications services for the purposes of combating crime for instance, tracing the source of illegal content and identifying those involved in misusing the above-mentioned services. This contribution will deal with the adoption and implementation of Directive 2006/24 by Member States the so-called Data Retention Directive which has sought to harmonise the way in which private providers of electronic communications services, or public communications networks, are obliged to retain data (telephone calls and internet access) 5 under art.15 of Directive 2002/58 on privacy (which states that Member States may adopt measures to restrict the scope of the rights that it introduces [2002] OJ L201/37). Although the Data Retention Directive has only been in force since 2007, it has generated considerable controversy among national authorities, which have been called upon to implement it. In a recent speech, Cecilia Malmström, the Commissioner responsible for Home Affairs, stated that most Member States have implemented the Directive, but differences are still noticeable on several important points, namely the duration and purpose of data retention; the procedures regulating access to personal data; and the cost of data retention for economic operators, to list but a few. 6 This forms only one aspect of the thorny implementation of the Directive. Retaining communication and location data of all citizens in the European Union has raised sensitive issues related to the far-reaching impact of EU harmonisation legislation on privacy and the protection of personal data. Hence the argument is that the regime of the Data Retention Directive needs to be complemented by adequate legal safeguards in order to limit the risk of abuses or any undermining of the rights guaranteed by art.16 TFEU, the European Convention of Human Rights (ECHR), several EU regulatory initiatives such as Directives 95/46 and 2002/58, Regulation 45/2001 and the EU Charter of Fundamental Rights (discussed further below). The Charter is now in force and can be invoked as a guarantee of justice and constitutional recognition of the right to data protection (art.7). Although the discussion hereafter is focused on the Data Retention Directive, this article aims to reflect upon the broader tension between the efficiency of implementation of the Member States obligations within the European Union and effective compliance of secondary EU legislation with constitutionally focused standards, such as the protection of fundamental rights. It is submitted that a balance must be achieved between the two. This is true not only in the context of the Data Retention Directive but also when it comes to many other EU legislative instruments of general or targeted application that Member States are called upon to transpose into national legislation. 7 Despite the fact that the balance between implementation efficiency and preservation of constitutional values is central to this contribution, the ambition is to go beyond the procedural aspects of data retention. In other words, this article invites the reader to consider two constitutional dangers impeding the European polity. First, even prior to Lisbon s Communitarisation of the former Third EU Pillar, one can notice a shift in EU criminal law from mutual recognition to harmonisation. After all, the Data Retention Directive was adopted as an internal market measure. Secondly, one may also notice a shift from a co-operative model towards a coercive one. This 4 See European Commission, Delivering an area of freedom, security and justice for Europe s citizens: Action Plan implementing the Stockholm Programme COM(2010) The specified classes of data that can be retained are listed in art.5 of the Data Retention Directive ([2006] OJ L105/54). Article 6 of the Directive sets the limits of the period of retention, which may be between six months and two years from the date of the communication. 6 C. Malmström, Taking on the Data Retention Directive, European Commission Conference (Brussels, December 3, 2010) at [Accessed September 1, 2011]. 7 For measures of general application, see the Council Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States [2002] OJ L190/1 and for measures of targeted applications, see Regulation 881/2002 [2002] OJ L139/9 on the imposition of specific restrictive measures (i.e. freezing of funds and economic resources) against persons and entities associated with Osama bin Laden, Al Qaida and the Taliban.

116 724 European Law Review model is based on rapid and intrusive action against potential serious security threats. Mere suspicion suffices to resort to actions, such as intense and all-encompassing telecommunications surveillance, bringing Member States close to the pervasive Orwellian surveillance state model. Inception and adoption of the Directive In the aftermath of the London terrorist attacks (2005) and Madrid bombings (2004), where according to the Commission telephone data up to six months old was investigated, 8 it became apparent that control over telecommunications (especially the use of mobile telephony and the electronic communications systems) played a significant role in the prevention, investigation, detection and prosecution of terrorism and organised crime. Yet there was a gap in national and EU legislation. Traffic data was not always stored by operators in the Member States (e.g. not even for billing or settling customer disputes) and was not, therefore, available for public authorities to use against criminals whenever there was a legitimate cause to do so. Hence, shortly after the Brussels EU Summit of March 25 and 26, 2004, 9 which emphasised the necessity of rules guaranteeing the availability of traffic data for anti-terrorism purposes across the European Union, a number of Member States 10 presented a Draft Framework Decision to be adopted under the Third Pillar (articles former Title VI TEU). The Draft concerned the a priori mandatory storage by a state and/or exchange between Member States of telecommunications traffic and location data (excluding content) of all users for law enforcement purposes for a period between 12 to 36 months (art.4), depending on the usefulness of the data in relation to countering crime and the cost of retention. 11 The Draft s main point was the need to ensure the harmonisation of national procedures regarding the way in which individual data is processed and stored by providers of a publicly available electronic communications service (or network) for the purpose of detecting and prosecuting serious crime, including terrorism. This Draft noted that many Member States have passed legislation concerning a priori retention of data for these same purposes but the content of this legislation varies considerably. 12 These differences, according to the Draft, were prejudicial to co-operation between Member States and, therefore, counter-productive to effective police and judicial co-operation in criminal matters in the European Union. The Draft also highlighted, on the one hand, the imperative for the maintenance of a balance between the protection of personal data and the necessity for law enforcement authorities to access such data (for criminal investigation purposes), on the other. To avoid being criticised for proposing the adoption of a measure encouraging excessive state intrusion into private life, the proposing Member States recalled both the ECHR and EU privacy legislation. 13 These references served as thresholds calculating the appropriateness (and proportionality) of state interference vis-à-vis the risks at stake. 8 European Commission staff Working Document, Annex to the Proposal for a Directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58, Extended impact assessment (Brussels, September 21, 2005) COM(2005) 438 final. 9 See the Declaration on Combating Terrorism adopted by the European Council on March 25, 2004, Presidency Conclusions, [Accessed September 1, 2011]. 10 The proposal was presented by France, Ireland, Sweden and the United Kingdom. 11 Council of the European Union, Draft Framework Decision on the retention of data processed and stored in connection with the provision of publicly available electronic communications services or data on public communications networks for the purpose of prevention, investigation, detection and prosecution of crime and criminal offences, including terrorism (Brussels, April 2, 2004) [Accessed September 1, 2011]. 12 Draft Framework Decision on the retention of data, 2004, para.8, /st08958.en04.pdf [Accessed September 1, 2011]. 13 Draft Framework Decision on the retention of data, 2004, paara.10, /st08958.en04.pdf [Accessed September 1, 2011]. See Directive 2002/58 of concerning the processing of personal

117 Analysis and Reflections 725 On November 9, 2004, the Article 29 Data Protection Working Party, an independent European advisory body on data protection set up under Directive 95/46, published its Opinion on the Draft Framework Decision s compliance with human rights and data privacy laws. 14 In particular, the Working Party assessed the conditions that legitimise state interference with the right to private life by looking at the broad criteria laid down in art.8(2) ECHR: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 15 The Working Party did not consider it opportune to scrutinise the Draft against all the contingencies set out in art.8(2) ECHR. It rather focused on the requirement of necessity of state interference in a democratic society, citing the case law of the European Court of Human Rights (ECtHR). This provided that any interference must respond to a pressing social need and should only occur in exceptional cases. 16 The Working Party concluded that the Draft not only failed to satisfy the above criteria but even sought to nullify them. 17 It thus concluded that: The mandatory retention of all types of data on every use of telecommunication services for public order purposes, under the conditions provided in the draft Framework Decision, is not acceptable within the legal framework set in Article Following a detailed consultation process with representatives drawn from law enforcement authorities, the electronic communications industry, and data protection experts, the Commission considered that aspects of the proposed Framework Decision should be adopted (under former art.47 TEU, now deleted) 19 using First Pillar rather than Third Pillar instruments. These aspects consisted of the regulation of, first, data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) [2002] OJ L201/37; Directive 97/66 concerning the processing of personal data and the protection of privacy in the telecommunications sector [1998] OJ L24/1; Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/ Working Party, Opinion 9/2004 on a draft Framework Decision on the storage of data processed and retained for the purpose of providing electronic public communications services or data available in public communications networks with a view to the prevention, investigation, detection and prosecution of criminal acts, including terrorism, November 9, 2004, [Accessed September 1, 2011]. 15 In a similar manner, art.15(1) of Directive 2002/58 on privacy and electronic communications [2002] OJ L201/37, which has harmonised personal data protection rules in relation to electronic communications services, provides that Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period. See also art.52 of the Charter of Fundamental Rights of the European Union. 16 Klass v Germany ( ) 2 E.H.R.R Working Party, Opinion 9/2004, p.4, [Accessed September 1, 2011]. 18 Working Party, Opinion 9/2004, p.5, [Accessed September 1, 2011]. See for a detailed analysis of the Working Party s Opinion: S. Blakeney, The Data Retention Directive: Combating Terrorism or Invading Privacy? [2007] C.T.LR. 153, Former art.47 TEU regulated the relationship between the Treaty on European Union (TEU) and the EC Treaty stipulating that no legal instruments adopted under the TEU may affect the legislative framework adopted under the EC Treaty.

118 726 European Law Review the harmonisation of retention periods across the European Union (including the types of data to be retained) and, secondly, access to (and exchange of) such data by national law enforcement authorities. The Commission s proposal of September 21, 2005 stressed that a directive harmonising data retention obligations forms the most appropriate legislative instrument to regulate the obligation on providers of electronic communication services because it is less stringent compared with a regulation and it allows considerable room for implementation manoeuvre (e.g. leaving the choice to Member States to decide which authorities should have access to data retained and under which conditions). 20 Moreover, it was proposed that the cross-availability of data would be ensured for the period of not less than six months and not more than two years from the date of the communication. According to the Commission, differences in the national legal, regulatory, and technical provisions concerning the retention of traffic data presented obstacles to the internal market for electronic communications. This was due to the fact that service providers had to deal with different requirements regarding the types of data to be retained and the conditions for doing so. The Commission agreed, therefore, that these provisions needed to be subject to harmonisation under former art.14 EC (current art.26 TFEU) and proposed that the specific legal basis of former art.95 EC (current art.114 TFEU) was appropriate for the adoption of the Directive. The Commission concluded that the principles of subsidiarity and proportionality had been complied with: the former because organised crime and terrorism are often cross-border and the latter because the Directive only deals with the processing (and not the content) of traffic data by service providers. It was further noted that the matter was indeed one that came under Community competence, given that data retention had already constituted the subject-matter of previous instruments based on First Pillar legal bases, such as Directives 2002/58 and 95/46. When it came to the protection of fundamental rights, the Commission admitted that it is clear that the proposed Directive will have an effect on the privacy right of citizens as guaranteed under Article 7 as well as Article 8 of the [EU] Charter [of Fundamental Rights]. It is worth repeating that, although the text of the Charter has not been incorporated in the Treaty of Lisbon, art.6(1) TEU confirms that it shall have the same legal value as the Treaties. This is an important development because while art.7 of the Charter reproduces art.8 ECHR (right to privacy), art.8 of the Charter concerns the protection of personal data. This is an independent fundamental right, which has no equivalent in the ECHR. The legally binding nature of the EU Charter of Fundamental Rights adds emphasis to the rights aspect of Directive 95/46. The right to protection of personal data has also been reproduced in art.16 TFEU, which provides for provisions having general application in areas such as judicial co-operation in criminal matters and art.39 TEU where data protection is relevant in the sphere of Common Foreign and Security Policy. Despite the protection offered by the Charter, the Commission recalled in its 2005 proposal for a data retention Directive that art.52 of the Charter provides justification for interference with the right to privacy and protection of personal data. Since the Commission concluded that limitations to privacy and to the protection of personal data are both proportionate and necessary to meet the objectives of countering serious crime and terrorism, it abstained from proposing any general provisions to safeguard the retention of traffic communications data from potential abuses. To that end, it drew from the existing EU data protection provisions encompassed in Directives 95/46 and 2002/58. It concluded that specific additional provisions on general data protection principles and data security are not necessary. 21 In this fashion, the Commission appeared to have proposed a Directive which was in tandem with art.6(2) TEU, and thus in compliance with fundamental rights as guaranteed by the ECHR. 20 European Commission Proposal for a Directive on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58 (Brussels, September 21, 2005) COM(2005) 438 final. 21 European Commission Proposal COM(2005) 438 final, p.3.

119 Analysis and Reflections 727 Yet, according to the European Data Protection Supervisor (EDPS), which is an independent supervisory body devoted to protecting personal data and privacy, such a level of protection of personal data was deemed to be neither necessary nor proportionate. The EDPS stressed that a simple reference to the existing legal framework on data protection (in particular the Directives 95/46/EC and 2002/58/EC) was not sufficient. 22 What is more, the European Economic and Social Committee (EESC) shared that sentiment, expressing its surprise and concern over the submission of such a proposal for a Directive. 23 The EESC predicted that the Directive, in its proposed form, was at risk of being declared unconstitutional by national constitutional courts because the fundamental rights test used by the Commission was both flimsy and flawed. For instance, the EESC suggested that the Commission s proposal only mentioned arts 7 and 8 ECHR as safeguards, while it ignored arts 36 (access to services of general interest); 38 (consumer protection); 47 (the right to an effective remedy) and 48 (presumption of innocence). These criticisms were also echoed in the European Parliament Minority Opinion where it was stressed that the proposed retention period was far too long. 24 The Commission s proposal for a Directive based on former art.95 EC (art.114 TFEU) was adopted by the EU legislature taking the form of Directive 2006/24, on March 15, 2006 and entered into force on May 4, Ireland and the Slovak Republic were the only Member States that voted against it in the Council. What is more, a number of Member States took up the option (available under art.15(3) of the Directive) to postpone the Directive s application to the retention of communications data relating to internet access, internet telephony and for a period between 18 and 36 months after the date of adoption of the Directive. In a nutshell, the Directive established that individual data is to be made available for the purpose of the investigation, detection and prosecution of serious crime (as defined by each Member State in its national law) and, also, eliminated national regulatory differences deemed to impede the functioning of the internal market for electronic communications. Thus the Committee on the Internal Market and Consumer Protection was wise when it commented that the Directive represents a paradigm shift in the way society looks at traffic data. 26 Implementation problems and judicial challenges The European Union s pre-emptive response to cross-border crime has altered our constitutional ecosystem by transferring competence to supranational institutions with limited accountability. With regard to the Data Retention Directive, it is argued that this has put national judges under enormous pressure to uphold constitutional values in light of the fact that the Directive allowed Member States to 22 Opinion of the European Data Protection Supervisor on the proposal for a Directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58 [2005] OJ C298/1, available at: /LexUriServ/LexUriServ.do?uri=OJ:C:2005:298:0001:0012:EN:PDF [Accessed September 28, 2011] and COM(2005) 438 final. 23 Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58 COM(2005) 438 final 2005/0182 (COD). 24 European Parliament, Minority Opinion pursuant to Rule 48(3) of the Rules of Procedure, November 28, 2005, A6-0365/2005 final. 25 Directive 2006/24 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58 [2006] OJ L105/ Opinion of the Committee on the Internal Market and Consumer Protection for the Committee on Civil Liberties, Justice and Home Affairs on the proposal for a directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58, COM(2005) 0438 C6-0293/ /0182 (COD).

120 728 European Law Review transpose it using divergent rules in terms of the retention and availability of data. This is clearly demonstrated in the various national challenges against the Data Retention Directive. This section considers the Irish, Romanian and German cases on data retention, which have gained considerable academic attention. 27 These adverse judgments are used here as case studies to demonstrate the difficulties and inconsistencies in the implementation of the Directive. They are also indicative of the role of national courts as the last line of defence when it comes to the protection of national constitutional values. Ireland The first challenge to the Directive came before the ECJ on July 1, Ireland, which voted against the Directive in the Council, sought its annulment on the ground that it was not adopted on an appropriate legal basis. 28 Ireland, supported by the Slovak Republic (also outvoted in the Council), argued that the Community was not competent to adopt such a measure, at least not on the legal basis that was chosen, because its centre of gravity was not the functioning of the internal market but public safety and crime prevention. 29 Apart from the Slovak Republic s human rights concerns (which were based on art.8 ECHR), the case revolved solely around the scope of the EU legislature s power to adopt harmonising measures pursuant to former art.95 EC (art.114 TFEU). 30 If nothing else, the judgment was academically stimulating. It shed some light on the ECJ s threshold for connecting a particular measure with the internal market and the relationship between internal market competence and other legal bases stemming from the Treaties. In addressing those issues, the ECJ compared the case at hand with the Passenger Name Records (PNR) case, where a Council Decision was annulled. 31 That Decision had enabled the transfer of air passenger name records from the Community to the US Bureau of Customs and Border Protection. 32 That annulment related, however, to the dividing line between the former First and Third Pillars. The ECJ concluded that the two cases shared no similarities. One the one hand, Council Decision 2004/496 was annulled because it concerned a transfer of personal data within a framework instituted by public authorities in order to ensure public security. On the other hand, Directive 2006/24 could be defended because it covered the activities of service providers in the internal market. It did not, therefore, contain any rules governing the activities of public authorities for law enforcement purposes. 33 Had the Directive contained a detailed system of data access and safeguards, it would have shared the same dismal fate of the PNR Decision. Ironically, the lack of safeguards in the Directive (and, by implication, in national implementing legislation) has proved to be its Achilles heel. Much comment has been published on the merits of Ireland v Parliament and Council, and the manner in which the ECJ (using the Community preference clause of former art.47 TEU) held in favour of 27 It should be noted that the decisions of the constitutional courts of the Czech Republic, Bulgaria and most recently Cyprus and Hungary are of equal importance but are not considered in this article. See for a summary: European Commission, Evaluation Report on the Data Retention Directive (Directive 2006/24/EC) (Brussels, April 18, 2011) COM(2011) 225 final, pp Ireland v European Parliament and European Council (C-301/06) [2009] E.C.R. I-593; [2009] 2 C.M.L.R Ireland s argument was that the Directive should have been adopted under art.30 TEU, art.31(1)(c) TEU and art.34(2)(b) TEU. 30 Ireland v European Parliament (C-301/06) [2009] E.C.R. I-593 at [57]. 31 European Parliament v Council and Commission (C-317/04 and C-318/04) [2006] E.C.R. I-4721, [2006] 3 C.M.L.R Council Decision 2004/496 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection [2004] OJ L183/83, and corrigendum at [2005] OJ L255/ Ireland v European Parliament (C-301/06) [2009] E.C.R. I-593 at [86] [92].

121 Analysis and Reflections 729 former art.95 EC. 34 Thus our analysis of the judgment will draw to a close. In any event, as Dougan notes, after the coming into force of the Treaty of Lisbon, the value of this aspect of the judgment has become marginal. 35 This is true, given that, post-lisbon, the EC-EU dichotomy is no more; art.47 TEU has been deleted; and under current Title V of the TFEU, measures in the area of police and judicial co-operation in criminal matters will inevitably take the form of regulations and directives. Judicial co-operation in the fight against serious crime has become a fully fledged EU policy. The ordinary legislative procedure applies and the ECJ s jurisdiction has been extended in former Third Pillar areas, albeit subject to certain limits defined in Protocol 36 annexed to the Treaty. Almost at the same time that the Irish Government sought to annul the Data Retention Directive, a civil rights advocacy group, Digital Rights Ireland (DRI), brought a case against the Irish Government in the High Court of Ireland 36 seeking, inter alia: 1. Declarations to the effect that s.63(1) of the Criminal Justice (Terrorist Offences) Act 2005 (CJ(TO)A 2005) (was) null and void for breach of domestic law (both statute 37 and the Constitution 38 ); EU data protection law; and the ECHR An Order pursuant to art.267 TFEU addressing the validity of Directive 2006/24 notwithstanding art.6(1) and (2) TEU; arts 3a and 21 TFEU; arts 7, 8, 11 and 41 of the EU Charter of Fundamental Rights; art.5 TEU. On May 5, 2010, the High Court, having considered the relevant case law on locus standi, 40 agreed that a more flexible and liberal approach was necessary where questions of EU law are raised so that a person s rights are not unduly hampered or frustrated. 41 Accordingly, the High Court judge was satisfied that the DRI had a bona fide concern and interest in the subject-matter of the provisions seeking to be impugned, and that the rights that it sought to protect were of general importance to society at large. He therefore granted standing to the plaintiffs to bring an actio popularis to question whether the contested provisions violate citizens rights to privacy and communications (but not with regard to family and marital privacy or travel). 42 The judge further agreed with the DRI that a reference to the ECJ under art.267 TFEU was 34 See E. Herlin-Karnell, Annotation of Ireland v. Parliament and Council (2009) 46 C.M.L. Rev. 1667; T. Konstadinides, Wavering between Centres of Gravity: Comment on Ireland v. Parliament and Council (2010) 35 E.L. Rev. 88; C. Murphy, Fundamental rights and security: the difficult position of the European judiciary (2010) 16 European Public Law M. Dougan, Legal Developments (2010) 48 Journal of Common Market Studies 163, Digital Rights Ireland v Minister for Communications, Marine and Natural Resources May 5, 2010 High Court, Record No: 2006/3785, [Accessed September 3, 2011]. See also Ireland: Data Retention Directive Faces Challenges in Irish, European Court Hearings (2008) 3 World Communications Regulation Report Data Protection Acts 1988 and Constitution arts ; ; (the rights to privacy, travel and communication). 39 See Digital Rights Ireland May 5, 2010 High Court at [70]. Here the High Court referred to the much celebrated comment of the ECtHR in Klass v Germany ( ) 2 E.H.R.R. 214 at [49]: [P]owers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions [T]he Court being aware of the danger such a [telecoms interception] law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism adopt whatever measures they deem appropriate. 40 Especially Cahill v Sutton [1980] I.R. 269 and The Irish Penal Reform Trust Ltd [2005] IEHC 305 regarding the relaxation of standing rules in cases where a category of person may not be in a position to adequately assert their constitutional rights. 41 Digital Rights Ireland May 5, 2010 High Court at [46]. 42 Digital Rights Ireland May 5, 2010 High Court at [48]; 116.

122 730 European Law Review required since there was no effective remedy under national law and because, under Foto-Frost, a national judge has no discretion to declare an EU instrument invalid. 43 Compared with Ireland v Parliament and Council, this pending case tackles the problem at its root i.e. the Directive s interference with the right to privacy of all citizens living in the European Union. Because Ireland maintained a longer (i.e. more invasive) retention period under s.63(1) of the CJ(TO)A 2005 (three years) than that proposed by art.6 of the Directive (six months and two years respectively), it is clear why the Irish Government did not challenge the measure on human rights grounds. The ECJ s Digital Rights Ireland judgment, expected in 2012, will be significant because the ECJ will be called upon to determine the material aspects of the Directive. These are far more important to the citizen than the procedural aspects of implementation efficiency, for they will determine the permissible degree of EU involvement in the Area of Freedom Security and Justice through restrictive regulation to the right to privacy. Romania On October 8, 2009, the Constitutional Court of Romania ruled that Romania s national implementation law (298/2008), which transposed Directive 2006/24 into domestic law, was unconstitutional. 44 The case was initiated by a national human rights NGO, Comisariatul Pentru Societatea Civila (Civil Society Commisariat), which brought an action before the Tribunalul Bucuresti (Bucharest Tribunal) against its mobile operator (Orange Romania) for storing traffic data according to the new domestic legislation. Once a motion for the unconstitutionality of Law 298/2008 was raised, the Tribunal referred the case to the Constitutional Court on February 5, The latter declared the law on data retention unconstitutional in its entirety for affecting several rights entrenched in the Romanian Constitution. It stressed that the implementation law did not offer sufficient safeguards to compensate for the risks to the exercise of constitutional rights, such as the right to free movement, private life, secrecy and freedom of expression. The Constitutional Court further condemned the lack of precision in the law, mainly with regard to its broad notions of related data and threats to national security. It held that the former term was in breach of the requirements of accessibility and foreseeability, and that the latter term allowed too much discretion to public authorities to render all citizens potential suspects by requiring the retention of data on all communications (contrary to the presumption of innocence). 45 In harmony with the Irish High Court s decision in Digital Rights Ireland, the Constitutional Court of Romania made reference to the judgment of the ECtHR in Klass. 46 It is remarkable, according to some commentators, that despite the fact that the literal wording of the ECHR does not cover modern means of communication, the ECtHR has favoured both a dynamic and broad interpretation of the ECHR to bring those means within the scope of art.8 of the Convention. 47 Equally, national courts appear keen on applying the ECtHR s jurisprudence on adequate safeguards in order to balance interference by public authorities 43 Firma Foto-Frost v Hauptzollamt Lubeck-Ost (314/85) [1987] E.C.R. 4232; [1988] 3 C.M.L.R. 57. See Digital Rights Ireland May 5, 2010 High Court at [114]. 44 Decision 1258 of October 8, 2009 on the objection of unconstitutionality of the provisions of Law 298/2008 on the retention of data generated or processed by the providers of publicly available electronic communications services or public communications networks, which also amends Law 506/2004 on the processing of personal data and privacy protection in the electronic communications sector, Official Gazette No.798 of November 3, See for a detailed analysis C. Murphy, Case-Note on the Romanian Constitutional Court decision in relation to the Data Retention Directive (2010) 47 C.M.L. Rev Klass v Germany ( ) 2 E.H.R.R The Court also mentioned Airey v Ireland ( ) 2 E.H.R.R. 305 ECtHR; Popescu v Romania (49234/99 and 71525/01) June 26, 2007 ECtHR. 47 P. De Hert and S. Gutwirth, Data Protection in the Case Law of Strasbourg and Luxembourg: Constitutionalisation in Action in S. Gutwirth et al. (eds), Reinventing Data Protection (Springer, 2009), p.16.

123 Analysis and Reflections 731 with individual freedoms. 48 This similarity aside, two main features distinguish the position of the Romanian Constitutional Court from that of the Irish High Court. First, the former did not mention Directive 2006/24 in its judgment, although it was obvious that (since Law 298/2008 was the only national implementing measure for the Directive) any criticism aimed at it would actually constitute a criticism of the Directive itself. The Irish High Court, on the other hand, spent considerable time assessing the merits of the DRI claim against the Directive. Secondly, unlike the Irish High Court, the Romanian Constitutional Court did not demonstrate a willingness to make a preliminary reference to the ECJ regarding the validity of Directive 2006/24. Because the decisions of constitutional courts cannot be revoked by any state authority, the Directive s implementation process was sent back to square one. Although the attitude of the Romanian Constitutional Court challenged the ultimate authority of the ECJ for determining the correct interpretation of EU law, the Romanian Ministry of Information Society and Communication submitted, on June 23, 2011, new draft implementing legislation. The draft, which is almost identical to the unconstitutional Law 298/2008, makes it explicit that effective implementation of the Directive serves to avoid infringement proceedings taken by the Commission against Romania. 49 Preceding these developments, the Romanian judgment reflects the general aversion of the Romanian Constitutional Court s judges to excessive data retention legislation, which can potentially lead to the establishment of a police state, hostile to the rule of law, upon which the European Union is founded upon according to art.2 TEU. This may be correct, given that the Constitutional Court is renowned for the relatively low amount of challenges that it upholds as unconstitutional. 50 Yet one cannot help but conclude that despite the Romanian plans for implementation of the Directive, the judgment struck a blow at the established dialogue between European and national courts and the latter s acceptance of the principles of loyal co-operation (art.4(3) TEU) and primacy of EU law. Following this line of thinking, one can argue persuasively that any glimmers of co-operative federalism within the European Union have proved to be a false dawn. 51 This is especially because the implementation of EU law seems, at least in this case, to have taken place out of fear that express refusal to fulfil an obligation imposed by EU law will lead to the imposition of enormous fines by the Commission following infringement proceedings under art.258 TFEU. Germany Soon after its Lisbon Urteil of June 30, 2009, 52 the German Federal Constitutional Court (BVerfG) was required (on March 2, 2010) to make another constitutional value judgment. This time, a complaint was lodged by Arbeitskreis Vorratsdatenspeicherung (Working Group on Data Retention), with the support 48 This is in tune with the Decision of the Supreme Administrative Court of Bulgaria, which held that art.5 of Bulgarian Regulation 40 regulating access to data without limitations was in violation of art.8 ECHR; Directive 2006/24; and arts 32 and 34 of the Bulgarian Constitution. It was, therefore, annulled. See Decision13627 of November 12, Comment in English, EDRI, -data-retention [Accessed September 1, 2011]. This case will not be analysed here since, on February 17, 2010, the Bulgarian Parliament approved the second reading of amendments to the Electronic Communications Act. 49 See Digital Civil Rights Europe Report, EDRI, -romania [Accessed September 1, 2011]. 50 European Digital Rights, Romania: Data Retention Law Declared Unconstitutional (October 21, 2009), EDRI, [Accessed September 1, 2011]. 51 See Conclusion: Kompetenz-Kompetenz Revisited in T. Konstadinides, Division of Powers in European Union Law:The Delimitation of Internal Competence between the EU and the Member States (The Hague: Kluwer Law International, European Monographs Series, 2009). 52 BVerfG, 2 BvE 2/08, June 30, 2009, Absatz-Nr.(1-421), _2bve000208en.html [Accessed September 2, 2011]; Press Release 2/2009 of June 30, 2009, /press/bvg09-072en.html [Accessed September 2, 2011] (the German Data Retention Judgment).

124 732 European Law Review of 35,000 citizens, against the Act for the Amendment of Telecommunications Surveillance of December 21, The Act, which transposed Directive 2006/24 into national law, entered into force on January 1, While avoiding a direct clash with the ECJ, the BVerfG focused on the protection of state prerogatives vis-à-vis the entrenched protection for the privacy of telecommunications under the Grundgesetz (the German Constitution GG). It agreed that the contested national transposition legislation infringed art.10(1) GG (Privacy of correspondence, posts and telecommunications) and had to be annulled. At this point, it needs to be highlighted that the BVerfG did not declare the domestic legislation in question to be unconstitutional but rather established that it encroached too severely on the protection of human rights enshrined in the Grundgesetz. 54 The BVerfG did not comment on the Directive s validity because it was the domestic law that went too far beyond the requirements established by that Directive. It therefore adopted a more rigorous proportionality check than that employed by the ECtHR, concluding that secret processing and retention of data may only be permitted in particular cases and must always take place under judicial oversight and with effective judicial remedies available to the citizen. 55 It also cited, albeit implicitly, the Lisbon Urteil with reference to the obligations of the state to its citizens. These obligations entail that the enjoyment of personal freedom may not be recorded or registered. This duty was described by the BVerfG as comprising part of Germany s constitutional identity. As such it was held to be imperative that it be preserved in both the European and international context. 56 This notion adds to the constitutional safeguard of ultra vires review as established by the BVerfG in the Solange saga. 57 Contrary to the wishes of the plaintiffs, the BVerfG stressed that a referral to the ECJ was out of the question. It clarified the position by arguing that the issue in this case was neither one of the precedence of EU law over national fundamental rights, nor did it concern the validity of Directive 2006/24. This was especially so because the judgment did not declare the domestic law to be altogether void. The judgment simply related to the extent of state discretion implied in the implementation of the Directive. The decision of the BVerfG to bring the matter of the constitutionality of data retention legislation under its own jurisdiction can be characterised as reasonable, given that the Directive is limited to the duty of storage alone and does not govern access to the data or their use by national authorities. 58 As such, the Directive allows a wide margin of discretion to the national legislature. Since the BVerFG thereby discovered the Kompetenz-Kompetenz to examine its own jurisdiction, it held that Germany was in a position to implement the Directive in such a manner that avoids any fundamental rights clashes with the Grundgesetz. It should be noted, however, that the Grundgesetz does not prohibit data storage in all circumstances. In fact, the BVerfG found that a six-month retention period is legitimate, for that transient breach of privacy does not amount to a blanket interception of the public s communications. Yet, the Court emphasised that this is not the case when it comes to all-encompassing and intrusive legislation. 59 Hence the ruling suspended the domestic legislation until appropriate amendments restraining its scope were introduced by the German Parliament. 53 Decision of March 2, 2010, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/ German Data Retention Judgment, June 30, 2009 at [212]. 55 See for an analysis of the decision: C. De Simone, Pitting Karlsruhe Against Luxembourg? German Data Protection and the Contested Implementation of the EU Data Retention Directive (2010) 11 German Law Journal German Data Retention Judgment, June 30, 2009 at [218]. 57 Internationale Handelsgesellschaft von Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Solange I), decision of May 29, 1974, BVerfGE 37, 271 [1974] C.M.L.R. 540; and Wünsche Handelsgesellschaft (Solange II), decision of October 22, 1986, BVerfGE 73, 339, 2 BvR 197/83; [1987] Europäische Grundrechte-Zeitschrift 1; [1987] 3 C.M.L.R 225; (1988) 25 C.M.L. Rev German Data Retention Judgment, June 30, 2009 at [186]. 59 German Data Retention Judgment, June 30, 2009 at [218].

125 Analysis and Reflections 733 By way of conclusion, it can be argued that this judgment was not aimed at raising a challenge to the application of EU law in Germany. On the contrary, the BVerfG s reasoning was based on the Directive s method of implementation by the German Parliament. It was this that was in breach of art.10 GG. Inevitably, the BVerfG s rhetoric brings to mind its Solange jurisprudence. But, far from it, the German judgment encompasses both a firm judicial recognition of the grounds of adoption of the Directive (as a First Pillar instrument) and an adherence to EU harmonisation of retention of traffic data (as a means of eliminating obstacles to the internal market). All in all, the BVerfG distinguished between the internal market aspect of the Directive (data retention by service providers) and its criminal aspects (access to data and their use and exchange between law enforcement authorities). While it attributed competence to regulate the former to the European Union, it characterised the latter (in accordance to arts 7 and 13 of Directive 2006/24) as an issue that was intimate to the competence of the Member States. This orthodox analysis of competence delimitation by the BVerfG saved it from having to refer the matter to the ECJ. The BVerfG also distanced itself from the Romanian decision because the latter rejected altogether the obligation of data retention. Thus, the Romanian Constitutional Court s attack was not limited to the relevant implementation process but to the Europeanisation of the system of data retention. In its view, this new process drained away the right to private and family life protected under art.8 ECHR. Analysis It is evident from the discussion of the judgments related to the transposition of Directive 2006/24 that all relevant national courts employed, in one way or another, an adequate safeguards review. Such an approach took into account the legality, legitimate purpose and proportionality of the contested implementation measures. It is not surprising that each court called upon to review the relevant data retention legislation arrived at a different conclusion. The Irish High Court preferred to refer the case to the ECJ for an assessment of the Directive s validity. The Romanian Constitutional Court decided to shut its eyes to EU law, expressing its general dislike of any trend towards a general system of data surveillance. The German Constitutional Court chose to adjudicate on the case by merely highlighting those aspects of the Directive that relate to the exercise of national competence. However crucial, these judgments tell us only half the story. We seem to have learned a lot about the mechanics of the constitutionality of national implementation laws vis-à-vis domestic and international human rights guarantees. Regrettably, we cannot claim to have received the same enlightenment about the constitutionality of Directive 2006/24, because as with any EU legislation questions about its validity are reserved to the ECJ. No doubt the ECJ s insights into the substantive aspects of the Directive will be more crucial than its procedural ones as clarified in Ireland v Parliament and Council. This is important since it is obvious, from its implementation misfortunes, that Directive 2006/24 has failed to harmonise national legislation and has led to legal uncertainty. At the time of writing, only Sweden has not transposed the Directive. However, implementation has been far from harmonious. The Commission has taken numerous actions against non-compliant Member States under art.258 TFEU, most of which have complied with the ECJ s judgment by putting relevant legislation in place. 60 As previously observed, these actions stemmed from Member States rejection of national implementing legislation for being in breach of the fundamental rights enshrined in the ECHR 60 See, for instance, Commission v Ireland (C-202/09) [2009] E.C.R. I-203*; Commission v Greece (C-211/09) [2009] E.C.R. I-204*; Commission v Austria (C-189/09) July 29, 2010; Commission v Luxembourg (C-394/10) August 4, 2010; Commission v Sweden (C-185/09) February 4, 2010 (on March 16, 2011, Sweden decided to postpone the implementation for a year. Hence the Commission referred Sweden back to ECJ for failing to transpose the Directive. See Commission Press Release, April 6, 2011, IP/11/409, =IP/11/409&type=HTML [Accessed September 2, 2011]. It is noteworthy that the implementation of the Directive has been influenced by political factors. For instance, Sweden, which was initially in favour of Data Retention legislation, had a change of government in 2006, which resulted in a minimal implementation of the Directive.

126 734 European Law Review and their own national constitutions. The present author is not aware of an enforcement action against either Germany or Romania. This makes one wonder whether Member States possessing constitutional courts enjoy more latitude than their counterparts to implement and enforce EU law. For instance, Romania received a letter from the Commission as late as June 16, 2011, warning the Government of the consequences of non-implementation. In any event, it is argued here that enforcement actions against Member States are rather unfitting, for three reasons: first, because on July 7, 2010, the European Union started negotiations for its accession to the ECHR; secondly, because it is hazardous for the Commission to rule with an iron fist by forcing Member States to adopt data retention legislation that is incompatible with their constitutions; and thirdly, because in its April 2010 plan of actions for the implementation of the Stockholm Programme, the Commission included a plan for an evaluation, followed by a possible proposal for revision, of Directive 2006/ Following its April 2010 plan, the Commission held a conference on (December 3, 2010) entitled Taking on the Data Retention Directive as part of the ongoing evaluation process of Directive 2006/24. The conference consisted of experts from police authorities, national ministries, data protection authorities, industry, civil society and the scientific community. The Commission appeared to have been persuaded to consider a broad review of the Directive, focusing on nine variables. 62 Since the Directive harmonises only the obligation of service providers to store data about their customers communications something that had already taken place in some Member States for commercial purposes a number of questions remain unanswered regarding its necessity and added value. To name but a few, taking stock of the variables presented by the Commission: Who qualifies for the retention of data? Since the Directive does not specify the types of national authorities competent to access retained data, there is a danger that even private parties may use retained data for purposes other than those identified by the Directive. To what kinds of crimes is data retention applicable and what should the threshold be for the definition of serious crime? This is uncertain, especially since the Directive does not itself provide a definition of serious crime. Perhaps the Directive could borrow from the list of serious crimes provided in the 2002 Framework Decision on the European Arrest Warrant. This may be a starting point, but it is not a panacea, especially given the fact that various forms of undesirable conduct as listed in art.2(2) of the Framework Decision do not constitute any criminal offence under the laws of some Member States Europa Press Release, European Commission plan to deliver justice, freedom and security to citizens ( ), MEMO/10/139, April 20, 2010, &format=html&aged=0&language=en&guilanguage=en [Accessed September 2, 2011]. 62 European Commission, Directorate General for Home Affairs, Taking on the Data Retention Directive (Brussels, December 3, 2010) at [Accessed September 2, 2011]. The nine variables presented by the Commission are: (1) purpose of data retention; (2) scope; (3) data retention period; (4) definition of serious crime; (5) authorities with access; (6) mode of access and cross-border transfer; (7) operators under retention obligations; (8) cost recovery; (9) data security. See also the Plenary presentation delivered by A.M. Arnbak LLM, Privacy expert at EDRi-member Bits of Freedom at the abovementioned conference (Brussels, December 3, 2010) at [Accessed September 2, 2011]. 63 See, for a detailed analysis, T. Konstadinides, The Europeanisation of Extradition: How Many Light Years Away to Mutual Confidence? in C. Eckes and T. Konstadinides (eds), Crime within the Area of Freedom Security and Justice: A European Public Order (Cambridge: Cambridge University Press, 2011).

127 Analysis and Reflections 735 Who would pay the costs of retention (the criminals or the state)? 64 The Directive does not provide any guidance as to reimbursement of public communications providers for additional costs they incur. Should the European Union adopt further legislation harmonising access to data, or their use by national authorities, as well as introducing stronger safeguards against disproportionate state interference with individual freedoms? It appears that EU citizens are very much in favour of restrictions on privacy as a means of countering terrorism. A 2008 Eurobarometer survey showed that 64 per cent of survey participants were concerned as to whether their data are handled appropriately by the relevant organisations. But what is most revealing is that most EU citizens agreed that the fight against international terrorism is an acceptable reason to restrict data protection rights. The respondents agreed that it should be possible to monitor passenger flight details (82%), telephone calls (72%) and Internet and credit card usage (75% and 69%, respectively) when this served to combat terrorism. 65 The Directive s revision prior to the ECJ s DRI judgment is an interesting development, given that the Directive has led Member States to an incoherent set of national measures. This was most recently emphasised in the Commission s 2011 evaluation report. 66 Perhaps a Kadi-style system of targeted application may replace the Directive s current system of general application. Whatever the case may be, protection of the right to privacy has to be a top priority. The ECJ s recent case law suggests that the threshold for allowing data retention is high. For instance, in the recent case of Schecke and Eifert, the ECJ delivered a remarkable judgment regarding transparency laws in the management of funding for the Common Agricultural Policy (CAP). 67 This contested EU legislation required disclosure and publication on a publicly accessible website of the names, residences, and amounts awarded to farmers from CAP funds. It was held that this legislation infringed the farmers right to privacy and personal data. 68 The ECJ therefore declared Regulation 259/2008 to be invalid and also certain provisions of Regulation 1290/2005, stressing that the Council and the Commission breached the principle of proportionality. 69 Will the Data Retention Directive share the same fate? Probably not. Its alleged necessity seems to outweigh any proportionality concerns. One should recall that Directive 2006/24 only goes as far as harmonising the obligations of providers of publicly available electronic communications or of public communications networks to retain individual data for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. As a result, the retained data shall be disclosed to the relevant public enforcement authorities in accordance with the national laws of each Member State. 64 A constitutional challenge by Afors Telecom against the relevant implementation law was rejected in France. However, the Conseil d Etat held on August 7, 2007 that criminals should pay the costs. The decision is available at [Accessed September 2, 2011]. 65 Data Protection in the European Union Citizens Perceptions: Analytical Report (February 2008), [Accessed September 2, 2011]. 66 European Commission, Evaluation Report on the Data Retention Directive (Directive 2006/24/EC) (Brussels, April 18, 2011) COM(2011) 225 final. 67 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen (C-92/09 and C-93/09) November 9, The case involved arts 42(8b) and 44a of Regulation 1290/2005 on the financing of the CAP, as amended by Regulation 1437/2007 [2007] OJ L322/1, and Regulation 259/2008 of March 18, 2008 laying down detailed rules for the application of Regulation 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) [2008] OJ L76/ See also Promusicae v Telefónica (C-275/06) [2008] E.C.R. I-271; [2008] 2 C.M.L.R. 17. Here, the ECJ stressed that there is no obligation upon Member States to disclose personal data in civil proceedings (proportionality).

128 736 European Law Review Conclusion Whatever the fate of Directive 2006/24 may be, one can hardly applaud the EU institutions for harmonising regulation all across the European Union with reference to the collection and processing of personal data in the telecommunications market. Implementation has been uneven between Member States, both with regard to retention periods and data protection safeguards. The haste of national executives to boost the European Union s profile in this area has not been met with success. National courts are acting as guardians of our constitutional ecosystem. They have compensated for the lack of parliamentary involvement in the adoption of EU legislation either by being critical of the excesses of their executives in the Council or by insisting on bringing national parliaments into the EU legislative terrain, i.e. rendering national implementation of EU law dependent upon rigid parliamentary oversight. In particular, as is the case in Germany, the Parliament has been called upon by the BVerfG to restrain the scope of pre-emptive EU legislation that may run counter to national constitutional identity, a value explicitly mentioned in art.4(2) TEU. This would take place when EU legislation is intra vires i.e. where the European Union has been acting in compliance with the principle of conferral (art.5(1) TEU). 70 Indeed, the increased involvement of national parliaments in the European Union s legislative process is a crucial step in the clarification and re-distribution of competences at European level. No doubt the lack of clarity surrounding the Directive leaves a broad margin of interpretation to national legislatures. Hence Member States should be reminded that the Directive in itself neither harmonises the powers of the state to spy on its citizens nor prescribes the rights of citizens against state power abuse. What is more, the European Union possesses no coercive powers of its own. It rather relies on Member States to implement and enforce EU legislation, using in this case experts from both industry and law enforcement authorities. To that extent, it is apparent that Member States hold the keys to open or shut the gates of the surveillance state. For instance, in the United Kingdom, even prior to the inception of the Data Retention Directive, communications data were an essential component of prosecution evidence in 95 per cent of cases concerning serious crimes. 71 On the other hand, Commission statistics from 2008 to 2009 indicate that, out of two million data requests made in compliance with Directive 2006/24, one million emanated from Poland alone. 72 Mandatory and consistent retention of telecommunications data requires the establishment of sufficient safeguards covering access to that material. Five years after its adoption, the Data Retention Directive is still confronted with both procedural and substantive questions. 73 It remains, therefore, as contentious and publicly controversial as any transfer of sovereignty away from Member States to EU level. 70 See for a detailed analysis of art.4(2) TEU, T. Konstadinides, Constitutional Identity as a shield and as a sword: The European legal order within the framework of national constitutional settlement in C. Barnard and O. Odudu (eds), ( ) 13 Cambridge Yearbook of European Legal Studies (Oxford: Hart Publishing, forthcoming December 2011). 71 Daily Hansard, HL (March 24, 2009) at [Accessed September 3, 2011]. 72 European Commission, Evaluation Report on the Data Retention Directive (Directive 2006/24/EC) (Brussels, April 18, 2011) COM(2011) 225 final. 73 These include, for instance, privacy concerns vis-à-vis data protection and access to the retained data, incosistencies between national practices concerning its scope of application and retention periods, criticism from activist groups related to its general application and preemptive nature, questions of legitimacy and effectiveness, and academic queries related to the permissible degree of EU centralisation. See Digital Civil Rights in Europe, Top 10 Misleading Statements of the European Commission on Data Retention (April 20, 2011), [Accessed September 2, 2011].

129 Analysis and Reflections 737 Re-establishing the Orthodoxy of Commitment Decisions under Article 9 of Regulation 1/2003: Comment on Commission v Alrosa Michele Messina Academy of European Law (ERA) and University of Messina Jean-Claude Alexandre Ho * FORUM Institut für Management, Heidelberg Commitments; EU law; National competition authorities; Proportionality; Right to be heard; Third parties Abstract The case of Alrosa deals with the difficult relationship between the fight against cartels, commitment decisions and fundamental rights. This article examines the implications of the judgment for the application of the principle of proportionality under art.9 of Regulation 1/2003. The authors agree with the ECJ that the principle of proportionality is to be applied in different ways in commitment and infringement decisions. This does not, however, exempt the Commission from carrying out a complex economic assessment in commitment decisions. The article also discusses the enforceability and effects of commitment decisions adopted by the Commission for national courts and national competition authorities. A further question raised by the ruling is whether third-party undertakings finding themselves in a factual and legal position where the commitment has a direct effect upon them could be accorded the same rights of defence enjoyed by the undertaking concerned. Introduction Alrosa 1 is the first case where the EU courts were called up to examine legal issues surrounding commitment decisions. The major issue was the impact of the principle of proportionality on commitment decisions under art.9 of Regulation 1/2003. The question was whether that principle has to be applied in the same way in situations concerning both art.7 and art.9 of the Regulation. The Court of Justice, in that context, also had to decide whether the control exercised by the General Court was restricted to manifest error committed by the Commission. A further problem concerned the right to be heard and the conditions under which a third party is to be accorded the rights enjoyed by the undertaking concerned, i.e. that offering commitments; in particular, in parallel proceedings ending with the adoption of commitments, where the undertakings concerned have been investigated under both arts 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Before discussing the outcome and the possible effects of the Court of Justice judgment, the background to the Alrosa case and the context of art.9 decisions will be briefly addressed. The article will then go on * Michele Messina, LLM, PhD, Course Director, Academy of European Law (ERA), Trier, and University of Messina; Jean-Claude Alexandre Ho, Maître en Droit, LLM, Rechtsassessor, Conference Manager, FORUM Institut für Management, Heidelberg. The authors wish to thank Richard Crowe and the reviewers for their helpful comments. Any errors and inaccuracies remain solely ours. 1 Commission v Alrosa (C-441/07 P) June 29, 2010.

130 738 European Law Review to present the General Court s judgment, the Opinion of the Advocate General and the judgment of the Court of Justice. Special attention will be paid to the findings related to the application of the principle of proportionality to art.9 decisions, the intensity of the applicable judicial review and, to a lesser extent, the rights enjoyed by third parties in such proceedings. The ensuing assessment will concentrate in particular on the principle of proportionality and its different application in respect of situations under art.7 and art.9 of Regulation 1/2003, 2 and on the possible effects for the future of commitments not only in the enforcement of arts 101 or 102 TFEU but also in the area of mergers and the application of state aid rules. Finally, the lessons to be drawn for parties involved and the effects of commitments for national courts and national competition authorities (NCAs) will be examined. Alrosa: the legal background Article 9 of Regulation 1/2003 and its context Regulation 1/2003 is the main implementing measure governing the enforcement of arts 101 and 102 TFEU. It sets out inter alia the powers of the Commission for the purpose of applying those Treaty provisions. Article 9 of Regulation 1/2003 provides the Commission with a legal basis for the acceptance of binding commitments in cases concerning possible infringements of arts 101 and 102 TFEU. In particular, commitment decisions are possible when the Commission intends to adopt a decision requiring that an infringement be brought to an end and the undertakings offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment. According to art.2(1) of Regulation 773/2004, 3 formal proceedings must have been initiated. However, the last sentence of Recital 13 of the Preamble to Regulation 1/2003 states that commitment decisions are not appropriate in cases where the Commission intends to impose a fine. It is thus clear that art.9 proceedings are entered into at a stage where the Commission has already made up its mind about whether or not to impose a fine. In the light of the foregoing, the preliminary assessment follows an investigation of the case, which is sufficiently serious to have allowed the Commission to take a preliminary position about the existence of an infringement and about the likely imposition of a fine, and sufficiently detailed to serve as a benchmark against which to evaluate any commitment offered. 4 A decision, incorporating the accepted commitments, has to establish the material facts of the case and the prima facie evidence of the suspected infringement, 5 while concluding that there are no longer grounds for action and that it may be adopted for a specified period. A commitment decision will normally protect its addressees against a reopening of an infringement procedure by the Commission. However, art.9(2) of Regulation 1/2003 provides that the Commission may reopen the proceedings in certain specified circumstances; for example, when the undertakings concerned act contrary to their commitments. In that circumstance, art.23(2)(c) of Regulation 1/2003 provides that fines, amounting to as much as 10 per cent of the total turnover in the preceding business year, can be imposed on an undertaking that fails to comply with a commitment made binding by an art.9 decision. Likewise, art.24(1)(c) provides for the imposition of periodic penalty payments of up to 5 per cent of average daily turnover in the previous business year for continuing infringement of a commitment decision. 2 Regulation 1/2003 on the implementation of the rules of competition laid down in Articles [101] and [102] of the [TFEU] [2003] OJ L1/1. 3 Regulation 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102] of the [TFEU] [2004] OJ L123/18. 4 W. Wils, Settlements of EU Antitrust Investigations: Commitment Decisions under Article 9 of Regulation No 1/2003 (2006) 29 World Competition 345, See the Explanatory Memorandum attached to the proposal for Regulation on the implementation of the rules on competition laid down in Articles [101] and [102] of the [TFEU] and amending Regulations 1017/68, 2988/74, 4056/86, and 3975/87 COM(2000) 582 final, p.18.

131 Analysis and Reflections 739 The rules guiding the commitment decision procedure are only incompletely developed in Regulation 1/2003. As mentioned above, art.2 of Regulation 773/2004 requires a formal initiation of proceedings, which may coincide with the issuing of the preliminary assessment. The latter may be, and sometimes is, replaced at a later stage by a more elaborate statement of objections, in which the Commission specifies its concerns about possible infringements of arts 101 or 102 TFEU. The preliminary assessment is conveyed to the undertakings concerned, providing the basis for the negotiations on commitments. If the Commission is, in principle, convinced by the commitments offered and intends to make them binding, it must publish a concise summary of the case and the main content of the commitments in the Official Journal in accordance with art.27(4) of Regulation 1/2003. In addition, it publishes the full text of the commitments in their original language online. 6 Interested third parties have at least one month to comment. If this so-called market test reveals weaknesses, the Commission can renegotiate the commitments or abandon that option altogether, thus proceeding towards the adoption of an infringement decision. According to art.30(1), all commitment decisions adopted must be published. One of the main objectives of introducing commitments into the EU legal system was the promotion of procedural economy and efficiency in the administrative process before the Commission, thus freeing up time and resources for the enforcement of EU competition rules against hard-core infringements. For the undertaking offering commitments, long and costly proceedings are avoided, together with the possibility to avoid the imposition of a fine following the finding of an infringement. 7 The case before the EU courts Facts In the case of Alrosa, the world s leading diamond producer, De Beers, had bought rough diamonds from the world s second largest producer, Alrosa, under an agreement concluded in Upon notification of the agreement by both companies to the Commission for negative clearance or exemption, the Commission opened two parallel proceedings, one on the basis of art.101 TFEU (ex 81 EC) and the other on the basis of art.102 TFEU (ex 82 EC). 9 In order to respond to the Commission s objection, De Beers and Alrosa in 2004 offered joint commitments providing for a progressive reduction in sales until 2010, with a cap on subsequent sales. 10 After De Beers and Alrosa had offered joint commitments to the Commission, the Commission invited interested third parties to submit observations regarding those commitments. 11 In light of the market test, the Commission demanded that both companies should modify their joint commitments towards a total cessation of trading activities by Thereupon, only De Beers complied and submitted unilateral commitments. 13 A copy of those commitments and the non-confidential versions of third parties observations regarding the joint commitments were sent by the Commission to 6 See: Commitment decisions (Article 9 of Council Regulation 1/2003 providing for a modernised framework for antitrust scrutiny of company behaviour), European Commission MEMO/04/217 (September 17, 2004) at =en [Accessed September 2, 2011]. 7 For a detailed analysis of costs and benefits related to commitments, see Wils, Settlements of EU Antitrust Investigations (2006) 29 World Competition 345, Alrosa v Commission (T-170/06) [2007] E.C.R. II-2601; [2007] 5 C.M.L.R. 7 at [10]. 9 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [14]. 10 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [19]. 11 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [20]. 12 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [21]. 13 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [22].

132 740 European Law Review Alrosa, together with the invitation to submit its observations. 14 Finally, the Commission adopted De Beers unilateral commitments as binding under art.9 of Regulation 1/ Even though De Beers alone was a party to the proceedings under art.102 TFEU, De Beers unilateral commitments would have had a direct impact on Alrosa s trading relationship with De Beers. Thus Alrosa brought an action before the General Court, which duly annulled the Commission s decision. This led the Commission to appeal successfully before the Court of Justice against the General Court s judgment. Judgment of the General Court The General Court (then CFI) arrived at three major findings. First, it found that art.7(1) and 9(1) of Regulation 1/2003 had the same objective, namely to ensure the effective application of the competition rules laid down in the Treaty. 16 Secondly, it affirmed that it would be contrary to the scheme of Regulation 1/2003 to allow for the possibility to adopt a remedy, through a commitment decision under art.9, which would, under an art.7 decision, fall to be regarded as disproportionate to the infringement established (on the ground that in an art.9 decision, the infringement does not need to be formally proved). Thirdly, the voluntary nature of the commitments would not relieve the Commission of the need to comply with the principle of proportionality, because it is the Commission s decision that makes those commitments binding erga omnes. On the intensity of the review, the General Court stressed that cases involving a limited review must be restricted to those in which the contested decision is based on a complex economic assessment and, particularly in the field of mergers, where review limited to manifest error is justified by the prospective nature of the economic analysis carried out by the Commission. By contrast, the analysis carried out in proceedings initiated under Regulation 1/2003 concerns existing practices. This does not mean that complex economic assessment may not be necessary in those decisions; but it cannot mean that, in the absence of such assessments, the review undertaken by the Court is, on any basis, to be limited to manifest errors of assessment. The General Court acknowledged that the individual commitments offered by De Beers were sufficient (suitable) to address the concerns expressed in the Commission s preliminary assessment, a matter that not even Alrosa contested. However, the Court did not consider the criterion of necessity, entailing the assessment of other, less restrictive, available options, to have been satisfied. Therefore the Commission did not seem to carry out any complex economic assessment justifying limited judicial review. For this reason, the General Court annulled the Commission s decision on the ground that it was vitiated by a manifest error of assessment. It went through an in-depth analysis of the alternative solutions offered, 17 before concluding that others, less onerous and more proportionate than the one made binding, 18 were possible in order to achieve the aim pursued. As to the right to be heard, the General Court admitted that Alrosa, although not an undertaking concerned, was not merely an interested party to the Commission s proceedings. The General Court reasoned, first, that Alrosa was the contracting partner of De Beers in the context of a long-lasting bilateral 14 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [23]. 15 Decision 2006/520 relating to a proceeding pursuant to Article 82 of the EC Treaty [2006] OJ L205/ Alrosa (T-170/06) [2007] E.C.R. II-2601 at [95]. 17 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [132] [153]. 18 The General Court defined the De Beers commitments accepted by the Commission for an indefinite period as manifestly going beyond what was necessary to achieve the targeted objective. See Alrosa (T-170/06) [2007] E.C.R. II-2601 at [156]. Furthermore, the Commission could not adopt a decision prohibiting absolutely any future trading relations between two undertakings unless such a decision was necessary to re-establish the situation which existed prior to the infringement. Alrosa (T-170/06) [2007] E.C.R. II-2601 at [103]. It has been argued that the General Court seemed to introduce a further parameter for the evaluation of proportionality, namely the re-establishment of the status quo ante. See C. Cazzella, Proporzionalità e diritti della difesa nei procedimenti per abuso di posizione dominante: la sentenza Alrosa [2008] Giustizia Civile 293, 294.

133 Analysis and Reflections 741 trading relationship, which the Commission s decision brought to an end, and, secondly, that Alrosa was involved in proceedings under both arts 101 and 102 TFEU. 19 The General Court thus assumed that Alrosa should have been allowed the rights accorded to an undertaking concerned as the proceedings brought by the Commission under arts 101 TFEU and 102 TFEU were always de facto regarded by both the Commission, and by De Beers and Alrosa, as forming a single set of proceedings. 20 The General Court came to the conclusion that it was impossible for Alrosa to provide an effective reply and to propose new joint commitments with De Beers, since the documents in question were supplied to the company at the same time as the copy of the individual commitments proposed by De Beers. 21 For that reason, the General Court annulled the Commission s decision also on the ground of infringement of right to be heard. 22 The Commission then appealed that judgment to the Court of Justice. 23 Opinion of the Advocate General A.G. Kokott was very explicit in explaining the distinctive features of art.9, affirming that the provision is not an instrument for establishing infringements of competition law, but merely gives the Commission the possibility of effectively addressing concerns over competition for the future. 24 This distinction necessarily affects the examination of the proportionality of commitment decisions. In particular, she made reference to the concept of manifest appropriateness of commitments, affirming that if such commitments are not manifestly appropriate for eliminating the competition problems identified by the Commission, the Commission is entitled to reject them. 25 She emphasised the requirement always to examine whether the commitments go beyond what is necessary to address the competition concerns in question, having regard to the interests of third parties. More specifically, according to A.G. Kokott, the Commission is required to consider all the alternatives known to it to the commitments offered and to ascertain whether they constitute less onerous means by which the interests of third parties are not affected or are affected less severely. All the alternative commitments, in order to be considered by the Commission, must be equally appropriate to the ones offered. Therefore, they must all be manifestly appropriate for resolving the competition concerns. 26 The manifestly appropriate test seems to be well in line with the spirit and purpose of art.9 since, on account of the desired procedural economy, the assessment of alternatives is not intended to require any extensive and lengthy investigations or evaluations. Consequently, the Commission does not need to take into consideration alternatives the appropriateness of which could not be established with sufficient certainty without such efforts. 27 On the protection of the interests of third parties, A.G. Kokott acknowledged 19 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [177]. 20 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [186] and [187]. 21 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [201]. 22 Alrosa (T-170/06) [2007] E.C.R. II-2601 at [205]. 23 The Commission put forward two grounds of appeal. The first alleged that the General Court had infringed art.9 of Regulation 1/2003 and the principle of proportionality. The second alleged that the General Court had misinterpreted and misapplied the right to be heard. 24 See Opinion in Commission v Alrosa (C-441/07 P) June 29, 2010 at [50]. 25 See Opinion in Alrosa (C-441/07 P) June 29, 2010 at [53]. 26 Opinion in Alrosa (C-441/07 P) June 29, 2010 at [54] and [58]. 27 As part of the proportionality check, A.G. Kokott expressly referred to the manifestly appropriate test as the only test able to address those higher demands : Alrosa (C-441/07 P) June 29, 2010 at [53]. According to A.G. Kokott, only through the manifestly appropriate test it is possible to meet the objective of art.9 of Regulation 1/2003, which is to ensure a quick and effective resolution of the competition problems while avoiding a considerable investigation and assessment effort on the part of the Commission. In reviewing decisions involving such higher demands, involving a high degree of discretion from the administration s side, the competent court should abstain from a comprehensive review and adopt a limited scrutiny based on a manifest error of assessment standard, consisting of a finding that a particular measure is obviously unfounded, having regard to the established facts. Although the

134 742 European Law Review that the present case was one where commitments could work to their detriment. However, as their behaviour relied on the continued existence of a practice of a dominant undertaking, which gave rise to competition law concerns, she concluded that such reliance deserved a more limited protection having regard to the general interest associated with undistorted competition. 28 Judgment of the Court of Justice In the appeal judgment, the Court of Justice completely overturned the General Court s reasoning. First, it noted that the two provisions in question, arts 7 and 9 of Regulation 1/2003, pursue different objectives, one aiming at putting an end to the infringement that has been found to exist and the other aiming at addressing the Commission s concerns following its preliminary assessment. 29 This marked distinction, according to the Court, is also clear from the differences in the specific characteristics of the mechanisms established within both provisions and from the different means of action available. Consequently, the Commission s obligation to ensure that the principle of proportionality is observed has a different extent and content. 30 In so doing, the Court of Justice affirmed that the application of the principle of proportionality in the context of art.9 is confined to verifying that the commitments in question address the concerns expressed in the preliminary assessment (suitability) and that the undertakings concerned have not offered less onerous commitments that also address those concerns adequately (necessity). 31 The Court of Justice dismissed the idea, therefore, that a measure which could possibly be imposed under art.7 should serve as a reference for the purpose of assessing the extent of the commitments accepted under art.9, thus automatically regarding as disproportionate anything going beyond that measure. Therefore, although decisions adopted under both provisions are in either case subject to the principle of proportionality, its application differs according to which of those provisions is concerned. Furthermore, when carrying out that assessment, the Commission must take into consideration the interests of third parties. 32 On the intensity of judicial review of the proportionality of commitments, the Court of Justice assessed in a preliminary manner the extent of the Commission s discretion. It started its analysis by considering that the Commission is not required itself to seek out less onerous or more moderate solutions than the commitments offered to it, the only obligation in the present case being to ascertain whether the joint commitments offered in the proceedings initiated under art.81 EC (now art.101 TFEU) were sufficient to address the concerns identified in the proceedings initiated under art.82 EC (now art.102 TFEU). The language used by the Court may differ from one area of law to another, the emphasis remains on the discretion of the decision-maker. To that purpose, it is worth remembering the most significant case law on the similar manifestly inappropriate test in the field of agricultural policy. See R. v Minister of Agriculture, Fisheries and Food and Secretary of State for Health Ex p. Fedesa (C-331/88) [1990] E.C.R. I-4023 at [14], and the comments in T. Tridimas, General Principles of EU Law, 2nd edn (Oxford: Oxford University Press, 2006), p.143. In other circumstances, the manifestly incorrect test has been used (for example, in the Microsoft case) where even a negative formulation of the test has been applied. See Microsoft Corp v Commission (T-201/04) [2007] E.C.R II-3601; [2007] 5 C.M.L.R. 11 at [665]. 28 Alrosa (C-441/07 P) June 29, 2010, Opinion A.G. Kokott at [61]. 29 However, it has been argued that the General Court was right in emphasising the overall common aim of both instruments. See A. Klees, Freie Bahn für die Kommission in Kartellverfahren bei Anwendung des Art. 9 VO 1/2003 (2010) 10 Recht der Internationalen Wirtschaft 688, See Klees, Freie Bahn für die Kommission in Kartellverfahren bei Anwendung des Art. 9 VO 1/2003 (2010) 10 Recht der Internationalen Wirtschaft 688, Alrosa (C-441/07 P) June 29, 2010 at [41]. The necessity test is only applied, however, if the undertaking has offered alternative commitments; if not, the review of proportionality is reduced to a mere suitability test, as Klees concludes. He points correctly to the fact that the suitability test as a single-tier test can no longer be regarded as a proportionality test. But the Commission should have acknowledged this outcome favourably as it is even less than the Advocate General had required. See Klees, Freie Bahn für die Kommission in Kartellverfahren bei Anwendung des Art. 9 VO 1/2003 (2010) 10 Recht der Internationalen Wirtschaft 688, Alrosa (C-441/07 P) June 29, 2010 at [47].

135 Analysis and Reflections 743 Commission, before concluding that the alternative commitments were inappropriate, gave due consideration to them in the light of the objective pursued, also taking particular note of the results of the market test. The Court of Justice affirmed, therefore, that the intensity of the judicial review should be limited to review of whether the Commission s assessment was manifestly incorrect, 33 thus acknowledging a considerable margin of discretion on the part of the Commission. The General Court did not limit itself to a manifest error assessment, reviewing only the lawfulness of the Commission s assessment, but rather substituted its own assessment of complex economic circumstances for that of the Commission, thereby encroaching on the discretion enjoyed by the Commission. 34 The Court of Justice also overturned the General Court s reasoning with regard to the right to be heard. It challenged the General Court s assumption of a de facto single set of proceedings and instead distinguished the proceedings under art.101 TFEU, involving both De Beers and Alrosa, and those under art.102 TFEU, involving only De Beers. 35 The Court of Justice, following the Advocate General, 36 admitted an exception only if it transpired that the Commission without an objective reason made a single factual situation the subject of two separate sets of proceedings. 37 However, the Court of Justice indicated that the General Court had not found such a misuse of powers by the Commission and consequently found that the Commission was objectively justified in conducting two separate proceedings in consideration of the two different material legal bases. 38 As a result, the Court of Justice denied Alrosa the status of a party concerned within the meaning of art.27(2) of Regulation 1/2003, pointing out its status as a mere third-party having capacity to bring an action only against a decision taken under arts 7 or 9 of Regulation 1/2003 by which the undertaking considers itself to be affected. 39 Consequently, the Court of Justice also set aside the judgment under appeal with regard to the infringement of the right to be heard and upheld the Commission s decision. 40 Analysis Alrosa is likely to be the first many cases on commitment decisions to come before the EU Courts. 41 The present case thus presents an opportunity to reflect on the future application and enforcement of art.9 decisions. The most important reflections concern the proportionality of commitments made binding by the Commission and the extent of the judicial review exercised by the General Court in that regard, as compared with review of infringement decisions under art.7 Regulation 1/2003. Other important aspects concern the right to be heard in those proceedings as either an interested party or an undertaking concerned. Both aspects will be discussed below. The application of the principle of proportionality Compliance with the principle of proportionality is of key importance in assessing the legality of decisions, most importantly when they are expressions of a discretionary power of the Commission. A problem, which often arises, is that of determining the intensity of the judicial review that should be exercised by 33 Alrosa (C-441/07 P) June 29, 2010 at [42]. 34 Alrosa (C-441/07 P) June 29, 2010 at [66]. 35 Alrosa (C-441/07 P) June 29, 2010 at [85] [88]. 36 Alrosa (C-441/07 P) June 29, 2010, Opinion A.G. Kokott at [176] and [177]. 37 Alrosa (C-441/07 P) June 29, 2010 at [89]. 38 Alrosa (C-441/07 P) June 29, 2010 at [89]. 39 Alrosa (C-441/07 P) June 29, 2010 at [90]. 40 Alrosa (C-441/07 P) June 29, 2010 at [97] and [120]. 41 There have already been appeals on the basis of commitment decisions, although declared inadmissible; see, for example, the Repsol case (COMP/38.348). See also Transportes Evaristo Molina v Commission (T-45/08) [2008] E.C.R. II-265*; and Transportes Evaristo Molina v Commission (C-36/09 P) November 11, 2010.

136 744 European Law Review the EU courts in assessing the legality of those acts. The specific features of commitment decisions set out above make that analysis all the more interesting. The principle of proportionality as a general principle of EU law The principle of proportionality originates from continental legal systems, especially Germany and France. It is an established general principle of EU law, the meaning of which has been primarily shaped by the EU Courts. 42 Its development as a ground for review can be seen as a judicial response to the growth of administrative powers and the increase of administrative discretion. Although originally consisting of three elements, the EU legal system seems to have developed the first two only, namely the suitability, or appropriateness, and necessity tests. Uncertainty remains as to whether the third element, also referred to as proportionality stricto sensu, is part of the EU test. 43 It has been affirmed, however, that the EU Courts generally make reference to the third limb of the proportionality inquiry when the applicant presents arguments directed specifically to it, 44 suggesting some evidence, at least, of a three-part test. 45 The proportionality principle entails a varying scope of judicial scrutiny, 46 often depending on the relative expertise and overall competence of the court, as against that of the administrative authority, in assessing the relevant factors of a case. The intensity spectrum may range from a very deferential approach to a quite rigorous and searching examination of justification for a measure. 47 Where an administrative body makes a discretionary political, economic or social choice, entailing the weighing of a number of complex variables, 48 the judiciary is likely to be cautious with regard to its assessment of the proportionality of that choice, 49 thus never overturning it because of a different opinion. Courts should not substitute their judgment for that of the administration in such cases. This does not mean that a proportionality assessment is completely ruled out. It means that the courts are likely to apply the proportionality test less intensively than in other cases, 50 and will only overturn the decision of the administration if it is clearly or manifestly disproportionate. This is different from an assessment of whether the measure adopted was the only one or the best one possible. 42 For a detailed analysis of the principle of proportionality, see, inter alia, P. Craig, EU Administrative Law (Oxford: Oxford University Press, 2006), Ch.17; and T. Tridimas, The General Principles of EU Law, 2nd edn (Oxford: Oxford University Press, 2006), Ch.3. Reference to proportionality was already made in case law concerning the European Coal and Steel Community Treaty (ECSC). See Fédération Charbonnière Belgique v High Authority (8/55) [1955] E.C.R. 292 at 299; and, Mannesmann AG v High Authority (19/61) [1962] E.C.R. 357, 370. The first judgment where proportionality was established as a ground of review was Internationale Handelsgesellschaft GmbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (11/70) [1970] E.C.R 1125; [1972] C.M.L.R W. van Gerven, The Effect of Proportionality on the Actions of Member States of the European Community: National Viewpoints from Continental Europe in E. Ellis (ed.), The Principle of Proportionality in the Laws of Europe (Oxford: Hart Publishing, 1999), pp The three elements test derives from the principle s German modern formulation. J. Schwarze, European Administrative Law (London: Sweet & Maxwell, 1992), p See P. Craig, EU Administrative Law (Oxford: Oxford University Press, 2006), p.657. The author affirms that this may mean that the EU Courts accept stricto sensu proportionality as a proper part of the overall test, but that the onus to raise arguments in this regard is on the applicant (p.670). 45 The third limb seems relevant where the applicant argues that the burden placed on it by the measure should nonetheless be regarded as disproportionate to the benefits secured. Craig, EU Administrative Law, 2006, p.670. But it has also been argued that, in practice, the Court does not distinguish in its analysis between the second and the third test. Tridimas, The General Principles of EU Law, 2006, p Tridimas, General Principles of EU Law, 2006, pp G. de Búrca, The Principle of Proportionality and its Application in EC Law (1993) 13 Y.B.E.L. 105, See, Germany v European Parliament (C-233/94) [1997] E.C.R. I-2405; [1997] 3 C.M.L.R at [55] [56]; Microsoft (T-201/04) [2007] E.C.R. II-3601 at [88]. 49 This seems to be based on the case law of the EU courts. See, K. Lenaerts, D. Arts, I. Maselis and R. Bray, Procedural Law of the European Union, 2nd edn (London: Sweet & Maxwell, 2006), pp Craig, EU Administrative Law, 2006, p.658.

137 Analysis and Reflections 745 The Commission s discretionary power The Commission, in every proceeding closed with the adoption of a commitment decision, must necessarily have a suspicion of an ongoing infringement. It is the exercise of its discretionary power during the investigation that allows the undertakings concerned to offer commitments. 51 The Commission s broad discretion in the use and design of commitment decisions dilutes the otherwise direct and indispensable link between an alleged infringement of competition law and the remedies imposed. 52 This explains why the General Court s contention that a disproportionate remedy under art.7 cannot be considered to be proportionate vis-à-vis art.9 could not be upheld. The General Court seemed to ignore the peculiar features of the art.9 procedure and the fact that commitments may constitute the most appropriate means to bring an alleged ongoing infringement to an end, in circumstances where it is in the public interest to obtain this result more quickly, with a view to saving important resources. Therefore, although the broader objectives pursued may coincide, namely the effective enforcement of EU competition rules, the same cannot be affirmed when the actual finding of an infringement is at stake. In fact, if, in art.7 proceedings, the full finding of an infringement is a condition for the adoption of a decision, the only findings involved in art.9 proceedings are concerns following a preliminary assessment. 53 The key features of the Alrosa case concerned the proportionality check, in terms of the relationship between the extent of the judicial review and the complex economic assessment that the Commission carries out in proceedings ending with the adoption of commitment decisions. In fact, although the Commission does not need to go as far as the finding of an infringement, it must nonetheless arrive at a stage of the investigation that allows it to conclude that a fine should not be imposed and that, for reasons of priority (i.e. procedural economy), a finding of an infringement is not necessary. The fact that the Commission does not need to go through a thorough examination in its assessment of the different commitments offered to it does not rule out the assessment of complex economic issues, and therefore a margin of appreciation, before taking a decision that, overall, best addresses the competition concerns. The possibility of such an assessment, entailing a high degree of discretion, makes the application of the principle of proportionality relevant also to art.9 decisions, but limits the standard of review to manifest error only. This principle would not apply in the same way to art.7 decisions, however, because of the different objectives pursued by the two provisions. It will be interesting to see, in future cases, whether the parameters for art.9 decisions may be those set by A.G. Kokott, namely the manifest appropriateness test. 54 The Court of Justice did not address this point in Alrosa. However, a reasonable guess might tilt towards an upholding of the A.G. s test, as it too emphasised the differences between arts 7 and 9 of Regulation 1/ Another interesting analysis 51 Recital 13 of the Preamble to Regulation 1/2003 seems to indicate that commitment proceedings can be entered into when the Commission has already made up its mind about whether or not to impose a fine. This entails the exercise of a wide discretion on the part of the Commission, since whether or not to impose a fine will depend on the gravity and duration of the alleged infringement. 52 See H. Schweitzer, Commitment Decisions under Article 9 of Regulation 1/2003: The Developing EC Practice and Case Law, EUI Working Papers, Law 2008/22, pp.10 11, available at SSRN, [Accessed September 3, 2011]. 53 Wils interestingly points out that a combined reading of art.9 and Recital 13 of Regulation 1/2003 indicates that the preliminary assessment follows an investigation of the case, sufficiently serious to have allowed the Commission to take a preliminary position about the existence of an infringement and about the likely imposition of fines, and sufficiently detailed to serve as a benchmark against which to evaluate any commitment proposal. See Wils, Settlements of EU Antitrust Investigations: Commitment Decisions under Article 9 of Regulation No 1/2003 (2006) 29 World Competition Opinion in Alrosa (C-441/07 P) June 29, 2010 at [52] and [62]. 55 As affirmed elsewhere, the difference in the application of the principle of proportionality could also lie in the fact that, while the principle would still continue to apply in the same way to procedures under both arts 7 and 9 of the Regulation, thus applying the same test, the outcome would not be the same in view of the different obligations

138 746 European Law Review contained in A.G. Kokott s Opinion is the parallelism drawn between commitments offered under merger control proceedings and the prospective analysis underlying their assessment. In fact, in affirming that art.9 gives the Commission the possibility of addressing concerns over competition for the future, the A.G. seems to provide a prospective analysis also in the assessment of commitments under art.9 of Regulation 1/2003. Her approach is quite convincing as, in both cases, the Commission gives a decision in the nature of a forecast, assessing the shape that future market activities will take in the light of commitments. The fact that, in the context of art.9, existing practices constitute the reason for the initiation of proceedings does not affect the need for a future-oriented, prospective economic analysis of the effects of commitments on the market. 56 This analysis would itself require an appraisal of complex economic matters, justifying a wide margin of appreciation and, therefore, a limited review of the proportionality of those decisions. In our opinion, the need for this future-oriented, prospective analysis could be made more explicit by the Court, as the Commission s determination to accept commitments, which presupposes the intention not to impose any fines, seems naturally more oriented towards future market conditions than to the possible infringement that has already occurred. 57 Finally, within the context of the proportionality of commitment decisions, it is worth mentioning the interest expressed by the Court of Justice towards third parties. Not surprisingly, A.G. Kokott was more explicit in that elaboration, affirming that commitments made binding should not affect or should affect less severely the interests of third parties. 58 She continued by saying that, sometimes, commitments may work to the detriment of the interests of a third party, as occurred in Alrosa. These statements seem to confirm the presence of the third limb of the proportionality test, so-called proportionality stricto sensu, in EU law. In fact, in the Alrosa case, the applicant argued that the commitments made binding by the Commission were too burdensome and detrimental as regards the benefits secured, as they created a considerable risk of reducing production in the relevant market as a consequence of Alrosa no longer being able to find buyers for its rough diamonds. Therefore, although the third limb of the test seemed to be dealt with as part of the necessity limb, the Alrosa case shows how the proportionality stricto sensu test may be of distinct relevance in commitment cases. 59 on the Commission stemming from the two provisions. See M. Messina, and J.-C. Alexandre Ho, Case Law Report: Commission v Alrosa (Case C-411/07 P) (2011) 11 ERA Forum See Alrosa (C-441/07 P) June 29, 2010, Opinion A.G. Kokott at [71]. 57 As the principle of proportionality covers both legislative and administrative action of the EU Institutions, it seems natural to make a parallelism with the legality check of EU legislative acts, which it has been affirmed cannot depend on retrospective considerations of its efficacy. In fact, where the EU legislature is assessing the future effects of rules to be adopted and these effects cannot be foreseen with accuracy, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question. A similar test also applies to the Commission s discretion whether to follow a complaint and conduct investigations for breach of competition law. See, Tridimas, The General Principles of EU Law, 2006, pp The recent attempt of the General Court to enter into the merits of the Commission s economic assessment has not been achieved through a more rigorous application of the principle of proportionality but rather through an exhaustive examination of the institutions reasoning. Tridimas, The General Principles of EU Law, 2006, p The limited standard of review of proportionality is seen to be appropriate only with regard to the aim of an effective enforcement of the competition rules. It has been argued, however, that if third-party undertakings are affected, the review of proportionality should be less limited so that agreements between the Commission and an undertaking to the disadvantage of third parties can be excluded, given that there is a breach of contractual freedom. See W. Frenz and C. Ehlenz, Die Verhältnismäßigkeit im Wettbewerbsrecht (2010) 8 Europäisches Wirtschaftsund Steuerrecht 308, and, in the same sense, Klees, Freie Bahn für die Kommission in Kartellverfahren bei Anwendung des Art. 9 VO 1/2003 (2010) 10 Recht der Internationalen Wirtschaft 688, Craig affirmed that it is clear from the case law that applicants face an uphill battle in convincing the EU courts that a measure should be struck down as stricto sensu disproportionate when balanced with the objective sought by the European Union, most often involving the protection of public health or public policy. See, Craig, EU Administrative Law, 2006, p.672. The Alrosa case does not seem to depart from the line of case law referred to by Craig.

139 Analysis and Reflections 747 Implications for commitments in other areas The Grand Chamber judgment in Alrosa will most probably influence the review of commitments also in other important areas of EU law, like merger control and state aid. Such an influence seems to be much clearer for the commitments offered under art.6(2) of Regulation 139/2004, as they both come at a preliminary stage of the proceedings, thus sharing the same concern for procedural economy. 60 In the area of state aid, Regulation 659/1999 does not provide for commitments as part of the preliminary investigation under art.108(3) TFEU (ex 88(3) EC) 61 ; however, the Member State concerned, in its correspondence with the Commission, may agree to alter its original plan or to give certain commitments so as to defuse any concerns raised by the Commission, without entering into lengthy negotiations. 62 The concern for procedural economy seems clear also in this latter case. In consideration of that common objective, the judgment in Alrosa will therefore influence the adoption of commitments in these other areas also, especially with regard to the discretionary power of the Commission, and the consequent effects for the proportionality check and the intensity of judicial review. Lessons to be learnt The judgment in Alrosa established a wide margin of discretion for the Commission in the adoption of a commitment decision; maybe too wide, but most certainly in line with the objective of art.9 of Regulation 1/2003. The clear message is that the Commission will apply the proportionality test differently, as compared with art.7, and the standard of review will be based on the manifest error of assessment, justified by the presence of complex analysis but also by the intrinsic discretion of the Commission in accepting commitments offered. The Commission will never itself try to find a less onerous or, at least, equally appropriate alternative. Therefore it cannot be ruled out that commitments submitted by an undertaking will result in detriment to the interests of third parties. 63 The practical lesson for the undertakings concerned is that they should be prepared to submit different offers of commitments, which the Commission is required to examine in view of proportionality. 64 Only in that way can the Commission analyse and find equally appropriate commitments. Undertakings should also take into account that the commitments they offer do not require a thorough examination of appropriateness by the Commission. Furthermore, they may also like to include in their offer a specified period for the application of commitments, as that may indeed constitute a less onerous alternative in comparison with indeterminate ones, and the Commission may not be required to find a less onerous alternative if indeterminate commitments are offered. 65 With regard to art.101 TFEU (ex 81 EC) cases, it 60 Regulation 139/2004 on the control of concentrations between undertakings (EC Merger Regulation) [2004] OJ L24/1. 61 Regulation 659/1999 laying down detailed rules for the application of Article [108 TFEU] [1999] OJ L83/1. 62 See C. Quigley, European State Aid Law and Policy, 2nd edn (Oxford: Hart Publishing, 2009), pp As acknowledged by A.G. Kokott in her balancing of the economic interests of a third party relying on an anti-competitive agreement and the general interest in undistorted competition. For recent examples of judicial balancing, and also ranking, of interests (although in the exercise of legislative power by the EU institutions), see Afton Chemicals Ltd v Secretary of State for Transport (C-343/09) [2011] 1 C.M.L.R. 16 at [56]; and Vodafone Ltd v Secretary of State for Business, Enterprise and Regulatory Reform (C-58/08) [2010] 3 C.M.L.R Klees considers that undertakings offering alternative commitments must reckon that the Commission may abandon the commitment procedure and return to an infringement procedure. See Klees, Freie Bahn für die Kommission in Kartellverfahren bei Anwendung des Art. 9 VO 1/2003 (2010) 10 Recht der Internationalen Wirtschaft 688, With reference to the principles of good administration laid down in art.41 of the Charter of Fundamental Rights of the European Union, Klees considers it reasonable for the Commission to be required to indicate obvious, less onerous commitments. See Klees, Freie Bahn für die Kommission in Kartellverfahren bei Anwendung des Art. 9 VO 1/2003 (2010) 10 Recht der Internationalen Wirtschaft 688, 691.

140 748 European Law Review will be interesting to see the impact on contract negotiations, as the undertaking concerned might like to include a clause concerning the possibility of presenting commitments in order to prevent actions for unlawful breach of contract being brought by colluding undertakings. The right to be heard Commitment decisions not only affect the undertakings concerned, i.e. those offering commitments. In some cases, undertakings are adversely affected because they are in a factual and legal position where the commitment has a direct effect upon them, although they are not the addressees of the Commission s objections. The General Court intended to allow such undertakings the right to be heard, relying inter alia on an extensive reading of the concept of party to the proceedings. 66 The Court of Justice rejected that interpretation and stuck to a mechanical reading of the procedural rules, 67 affirming that there were two legally separate proceedings under way. While it is true that the EU legislature has deliberately made a distinction between undertakings concerned and third parties, as the Advocate General pointed out, 68 the Alrosa case shows that there might be a need for a further legal category of undertakings involved in EU competition law procedures, especially in commitment decisions i.e. undertakings not concerned, but adversely affected, enjoying the same rights of undertakings concerned. It is questionable whether an exceptional abuse of the Commission s discretionary power would be necessary as the Court of Justice required in the wake of the Advocate General s Opinion before the rights enjoyed by an undertaking concerned are extended to a third party affected by a commitment decision, given the Commission s wide margin of discretion in such procedures. Had the Commission adopted the view that De Beers and Alrosa, as first and second operator in the relevant market, formed a collective dominance, the Commission would have most probably made Alrosa an undertaking concerned. 69 However, since one of the main advantages of the commitment procedure is that the Commission is not required fully to develop its investigation on whether an undertaking has committed an infringement, 70 it was ultimately at the Commission s discretion to identify Alrosa as co-dominant with De Beers and thus whether to make Alrosa an undertaking concerned or not. While the Commission did not see a collective dominance by De Beers and Alrosa, it nevertheless granted Alrosa more rights of defence, especially access to the file, than required. For the sake of legal certainty, future amendments of Regulation 1/2003, or other soft-law procedural rules concerning commitments, may consider taking account of the position of those undertakings that are not concerned but are affected by a commitment decision of the Commission following the Court of Justice s formalistic approach in that area. Effects of commitment decisions for national courts and national competition authorities It has been noted that the importance of the Alrosa case is not limited to the application of EU rules only, but can be easily extended to those EU Member States legal orders which have recently adopted similar 66 F. Cenzig, Alrosa v. Commission and Commission v. Alrosa: Rule of Law in Post-Modernisation EU Competition Law Regime, TILEC Discussion Paper (2010), p.29, SSRN, [Accessed September 2, 2011]. 67 Cenzig, Alrosa v. Commission and Commission v. Alrosa, TILEC Discussion Paper, 2010, p.29, SSRN, /ssrn.com/abstract= [Accessed September 2, 2011]. 68 Alrosa (C-441/07 P) June 29, 2010, Opinion A.G. Kokott at [173]. 69 Cenzig, Alrosa v. Commission and Commission v. Alrosa, TILEC Discussion Paper, 2010, p.29, SSRN, /ssrn.com/abstract= [Accessed September 2, 2011]. 70 Cenzig, Alrosa v. Commission and Commission v. Alrosa, TILEC Discussion Paper, pp.29 30, 2010, SSRN, [Accessed September 2, 2011].

141 Analysis and Reflections 749 rules in their domestic law. 71 This final reflection concerns the enforceability and effects of commitment decisions adopted by the Commission for national courts and national competition authorities (NCAs). Although the applicants did not directly raise these issues before the EU courts, the specific features of commitment decisions (as compared with infringement decisions) affirmed by the Court of Justice give rise to some further interesting reflections. For that purpose, it is of great interest to read Recital 13 of the Preamble to Regulation 1/2003, where it is stated that: Commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to make such a finding [of infringement] and decide upon the case. That provision seems to raise the concern of whether NCAs and national courts could do so only under their respective national law or also under the European competition rules. It has been argued that, in principle, they should only be able to do so under the national competition law rules. 72 Furthermore, the EU law supremacy principle, set forth in art.3 of Regulation 1/2003, might also render problematic a later finding of an infringement by a national court or NCA under national rules. 73 In our opinion, such an interpretation cannot be upheld, as Recital 22 of the Preamble to Regulation 1/2003 seems to affirm something different when it states that Commitment decisions adopted by the Commission do not affect the power of the courts and the competition authorities of the Member States to apply Articles [101] and [102] of the [TFEU]. Considering that a commitment decision is neither a finding of infringement nor a finding of non-infringement, a finding by an NCA would not in any way run counter to a commitment decision of the Commission within the meaning of art.16(1) of Regulation 1/ Nor would it violate the art.4(3) TEU (ex 10 EC) duty of loyalty. 75 In fact, it has been argued that commitment decisions will not prevent private actions for injunctive relief before national courts or the imposition of further remedies by NCAs, unless those actions would make it impossible for the undertaking concerned to comply with the commitments made binding by the Commission s decision. 76 Only in this latter case would the national measure run counter to the Commission s decision within the meaning of art.16 of Regulation 1/2003. Further action from a national court and/or an NCA seems, therefore, subject to the guarantee of effet utile 77 for the Commission s commitment decisions. This principle 71 See L. Idot, Acceptation des engagements et principe de proportionnalité, Europe, Actualité du droit de l Union Européenne, No.10, October 27, See Cenzig, Alrosa v. Commission and Commission v. Alrosa, TILEC Discussion Paper, 2010, p.8, SSRN, http: //ssrn.com/abstract= [Accessed September 2, 2011]. 73 See Cenzig, Alrosa v. Commission and Commission v. Alrosa, TILEC Discussion Paper, 2010, p.9, SSRN, http: //ssrn.com/abstract= [Accessed September 2, 2011]. 74 It is worth mentioning that the Court of Justice has recently clarified that NCAs are precluded from adopting a finding of non-infringement of arts 101 or 102 TFEU, but can only decide that there are no grounds for action on their part as provided in art.5(2) of Regulation 1/2003. See Prezes Urzedu Ochrony Konkurencji I Konsumentów v Tele 2 Polska sp. z o. o., now Netia SA (C-375/09) May 3, See Schweitzer, Commitment Decisions under Article 9 of Regulation 1/2003. EUI Working Papers, Law 22/2008, p.13, SSRN, [Accessed September 2, 2011]; and, S. Rab, D. Monnoyeur and A. Sukhtankar, Commitments in EU Competition Cases: Article 9 of Regulation 1/2003, its application and the challenges ahead (2010) 3 Journal of European Competition Law & Practice 171, See, Wils, Settlements of EU Antitrust Investigations (2006) 29 World Competition 362; and R. Whish, Commitment Decisions under Article 9 of the EC Modernisation Regulation: Some Unanswered Questions in M. Johansson, N. Wahl and U. Bernitz (eds), Liber Amicorum in Honour of Sven Norberg A European for all Seasons (Bruxelles: Bruylant, 2006), p On the effet utile of the Commission s commitment decisions, see, P. Gasparon and B. Višnar, Coca-Cola: Europe-wide remedies in fizzy drinks (2005) 3 Competition Policy Newsletter 60, 64, /publications/cpn/2005_3_60.pdf [Accessed September 2, 2011], where the authors affirmed that by bringing the Coca-Cola case to an end with the Commission s commitment decision, Member States regained their competence to act against Coca-Cola, as a commitment decision only finds that there are no longer grounds for action by the Commission without taking any position on the existence of an infringement. See, also, the Commission Decision 2005/670 of June 22, 2005 (Case COMP/A /B2 Coca Cola) relating to a proceeding pursuant to art.82 of the EC Treaty and art.54 of the EEA Agreement [2005] OJ L253/21.

142 750 European Law Review might also solve the apparently difficult coexistence between the obligation on national authorities to enforce art.9 commitment decisions, on the one hand, and the principle that they are not bound by such decisions, on the other. 78 The fact that national authorities are not bound by commitment decisions would only mean that they are not prevented from taking further action for the establishment of an infringement and the imposition of remedies, while the full effect of the operative part of the commitment decision should never be undermined. Re-establishing the orthodoxy of article 9 The Court of Justice judgment in Alrosa, when compared with that delivered at first instance by the General Court, seems, therefore, to have re-established the orthodoxy of art.9 decisions. 79 In fact, what seems to be clear from a closer reading of the provision itself and the relevant recitals in the preamble to Regulation 1/2003 is that commitment decisions serve the purpose of guaranteeing procedural economy. They replace a finding of an infringement under art.7 with a finding that there are no longer grounds for action by the Commission without concluding whether there has been or still is an infringement. 80 Commitment decisions should therefore substitute infringement ones only in those cases where the benefits, in terms of an earlier termination of the infringement procedure and the related saving of costs, outweigh the benefit which infringement decisions could bring, in terms of clarification of the law, deterrence and facilitation of follow-on actions for compensation, among others. 81 In contrast, the General Court had reconceptualised commitment decisions under art.9 of the Regulation. In fact, in that judgment, commitment decisions were not conceived as settlements, that is, as voluntary bilateral agreements based on a negotiated bargain by which the defendant accepts certain constraints in return for an end to the official charges and in which a broad margin of discretion is implied for the authorities, as the Commission actually claimed. 82 In the view of the General Court, commitment decisions under art.9 were in no way different from infringement decisions under art.7, with consequent effects for proportionality assessment and the applicable standard of judicial review. The Court of Justice limited itself to re-establishing the original orthodoxy and authentic interpretation of art.9, by bringing commitment decisions back within their original scope, namely, addressing the Commission s concerns following preliminary assessment. Similar considerations apply to the right to be heard. In fact, the Court of Justice, on this specific point, restated the general distinction between third/interested parties and parties concerned in EU competition law administrative proceedings. In fact, such distinction affects commitment decisions as much as other proceedings in the field of EU competition law, such as in the area of state aid, by way of example. For the future, however, it cannot be ruled out 78 Such difficult coexistence has been highlighted in Whish, Commitment Decisions under Article 9 of the EC Modernisation Regulation in Liber Amicorum in Honour of Sven Norberg, 2006, pp Orthodoxy here refers to the real scope of commitment decisions under art.9 of Regulation 1/2003, as intended by the EU legislator. As mentioned above, one of the main objectives of introducing commitments into the EU legal system was the promotion of procedural economy and efficiency in the administrative process before the Commission, thus freeing up time and resources for the enforcement of EU competition rules against hard-core infringements, where the imposition of a fine is necessary. The judgment of the General Court did not seem to be in line with that scope, as it considered art.7 and art.9 of Regulation 1/2003 as having the same objective, thus entailing the same kind of in-depth and lengthy analysis. Such an approach would not show any difference between the two instruments, making the introduction of commitment decisions of no particular impact, if at all, in terms of the objectives set out above. 80 Recital 13 of the Preamble to Regulation 1/ See Wils, Settlements of EU Antitrust Investigations (2006) 29 World Competition See Schweitzer, Commitment Decisions under Article 9 of Regulation 1/2003, EUI Working Papers Law 2008/22, p.19, SSRN, [Accessed September 2, 2011].

143 Analysis and Reflections 751 that the General Court s approach, in favour of an extension of the right to be heard of interested parties, will be upheld, or at least taken into due consideration in light of a less formalistic approach. 83 Conclusion The principle of proportionality applies differently to the decisions that the Commission adopts under art.9 and under art.7 of Regulation 1/2003. Although the general common aim of the two provisions may coincide in the overall pursuance of an effective enforcement of arts 101 and 102 TFEU, their specific aims serve different purposes, namely, addressing the Commission s concerns following its preliminary assessment and putting an end to the infringement that has been found to exist. According to the Court of Justice, these differences are decisive in determining a different application of the principle of proportionality, in light of the greater discretion enjoyed by the Commission in adopting commitment decisions, thus entailing a standard of judicial review based on the manifest error test. The conclusions of the Court of Justice in Alrosa are perfectly in line with the letter of art.9 Regulation 1/2003, and with the overall architecture underlying the modernisation of EU competition rules. There are a few aspects, however, which are worth emphasising for the future, in anticipation of further clarification from the Court of Justice. First, it will be good to see whether the parameters for the different application of the principle of proportionality may be those suggested by A.G. Kokott, namely the manifest appropriateness test. Secondly, the Court of Justice could be more explicit about the need for future-oriented, prospective analysis concerning the Commission s determination to accept commitments, because, presupposing the intention not to impose any fines, it seems naturally oriented towards future market conditions than to the possible infringement that has already occurred. Thirdly, for the sake of legal certainty, future amendments of Regulation 1/2003 should take account of the position of those undertakings which are not concerned but are affected by a commitment decision of the Commission, following the Court of Justice s unwillingness to allow them the same rights accorded to undertakings concerned. 83 Although concerning state aid administrative proceedings before the Commission, it is worth mentioning the Opinion of A.G. Mengozzi in the Scott case. The A.G., on that occasion, defined the Court of Justice s approach concerning the participation of aid recipients, or interested parties, to Commission s proceedings as markedly formalistic ; whereas he considered the more inclusive approach adopted by the General Court, in that case like in others, although less precise and more marked by oscillation and uncertainty, as a possible invitation to the Court of Justice to reconsider its case law in this regard. See Commission v Scott SA (C-290/07 P) [2011] 1 C.M.L.R. 15, Opinion A.G. Mengozzi at [52] [66].

144 Book Reviews The End of Territoriality? The Impact of ECJ Rulings on British, German and French Social Policy, by Andreas J. Obermaier, (Farnham: Ashgate, 2009), xiv + 220pp. inc. index, hardback, 55, ISBN: The End of Territoriality? is a nicely executed case study on the reception of the Kohll/Decker jurisprudence (Kohll (C-158/96) [1998] E.C.R. I-1931; Decker (C-120/95) [1998] E.C.R. I-1831; Vanbraekel (C-368/98) [2001] E.C.R. I-5363; Geraets-Smits/Peerbooms (C-157/99) [2001] E.C.R. I-5473; Müller-Fauré/van Riet (C-385/99) [2003] E.C.R. I-4509; Inizan (C-56/01) [2003] E.C.R. I-12403; Leichtle (C-8/02) [2004] E.C.R. I-2641; Keller (C-145/03) [2005] E.C.R. I-2529; Watts (C-372/04) [2006] E.C.R. I-4325; Acereda Herrera (C-466/04) [2006] E.C.R. I-5341; Stamatelaki (C-444/05) [2007] E.C.R. I-3185) in three large Member States of the European Union (Germany, France and the United Kingdom). Using a process-tracing method, relying on documentary evidence and expert interviews, the book explores the means by which the Kohll/Decker jurisprudence was received within those Member States. The book s greatest strength, and its contribution to the literature, is the empirical evidence of implementation and reception into national law, administrative practice and policy of the principles elaborated by the Court of Justice of the European Union in the Kohll/Decker jurisprudence. The book sets out very clearly indeed the policy, administrative and legislative changes made in the three Member States the product of careful sifting of disparate sources and construction of a clear narrative therefrom. For EU scholars, practitioners in Member States and others seeking to understand the implications of a particular legal and policy development at EU level, for the national levels within the European Union, and the interactions between national and EU-level institutions, there is gold in here. However, the book seeks to accomplish more than this narration of processes of change. First, it seeks to test five major explanations of Europeanisation processes: goodness-of-fit (see, e.g. T. Risse, M. Green Cowles and J. Caporaso, Europeanization and Domestic Change in M. Green Cowles, J. Caporaso and T. Risse (eds), Transforming Europe: Europeanization and Domestic Change (Ithaca: Cornell University Press, 2001)); national courts behaviour (see, e.g. J.H.H. Weiler, The Transformation of Europe (1991) 100 Yale Law Journal 2402; J.H.H. Weiler, The Constitution of Europe (Cambridge: Cambridge University Press, 1999)); European Commission actions (see, e.g. F. Snyder, The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques (1993) 56 Modern Law Review 19); domestic policy preferences (see, e.g. G. Falkner, O. Treib, M. Hartlapp and S. Leiber, Complying with Europe: EU Harmonisation and Soft Law in the Member States (Cambridge: Cambridge University Press, 2005)); and the fine tuning of its jurisprudence by the Court itself (see, e.g. L. Conant, Justice Contained: Law and Politics in the European Union (Ithaca/London: Cornell University Press, 2003); D.S. Martinsen, Towards an Internal Health Market with the European Court (2005) 28 West European Politics ). It finds (unsurprisingly) that no one of these explanatory factors in itself provides a complete explanation, but that different combinations of them pertain to the different Member States studied here (pp ). Here, the weaknesses of a one case case study for these kinds of analytical questions, at the interface between legal and political science, become apparent. Obermaier is able to show that his case study does not fit with any single existing explanation of Europeanisation processes. But such explanations do not seek to explain the specific details of single case studies; rather, they seek to provide a more broad brush explanatory account, which is applicable, with appropriate adjustment, in a broad range of situations and policy areas. But, with only one case study, it is impossible to say that one s study can provide an improvement on those multi-case studies. (Nor, to be fair, does 752

145 Book Reviews 753 Obermaier claim to do so.) All that can be said is that such explanations need to be modified if the empirical evidence raised by this case study is to be taken into account. Secondly, the book seeks to determine the extent to which the concept of territoriality ( inclusion in a given territorial community, and entitlement to its sharing arrangements (M. Ferrera, The Boundaries of Welfare: European Integration and the New Spatial Politics of Social Protection (Oxford: Oxford University Press, 2005), p.126, cited p.34)) has been challenged, undermined or eroded by the Kohll/Decker jurisprudence hence the book s title. This idea has been around for at least 15 years (see, e.g. S. Leibfried and P. Pierson, European Social Policy: Between Fragmentation and Implementation (Washington D.C.: Brookings, 1995), and has been most strongly associated with the work of Maurizio Ferrera (Ferrera, The Boundaries of Welfare, 2005). Scholars such as Ferrera and others have noted an opening of the formerly territorially closed social (and, hence, healthcare) systems of the EU Member States (p.177). Obermaier concludes that this opening has been furthered by the legislative implications of the Kohll/Decker jurisprudence in the three Member States studied (p.179). But the opening is within confined limits: it only affects out-patient healthcare (France and Germany); and it is subject to the discretion of local healthcare authorities (United Kingdom). However, in one of the Member States studied (Germany) the response to Kohll/Decker had the effect of dismantling the principle of in-kind delivery of healthcare benefits not only for cross-border patients, but for all patients or at least all patients can now opt for cash benefits (p.179). The extent to which this policy change was driven solely by EU level developments is unclear, but the fact that it was achieved (at least in principle, if not in practice) before the Kohll/Decker rulings suggests strongly that EU law or Europeanisation processes cannot be the sole explanatory factor at play here. Neither France nor the United Kingdom experienced any internal de-structuring of the basic principles governing their healthcare systems (p.180). Moreover, in terms of Peter Hall s (P. Hall, Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain (1993) 25 Comparative Politics 275) order of changes (p.35), these are second order changes, affecting policy instruments and their setting (p.179). The third order changes changes to the over-arching goals of a policy implied by the worst detractors from the effects of the Kohll/Decker jurisprudence (see, e.g., C. Newdick, Citizenship, Free Movement and Health Care: Cementing Individual Rights by Corroding Social Solidarity (2006) 43 C.M.L. Rev. 1645), to the effect that the dynamics of EU law will undermine the fundamental territorial and solidaristic basis of national healthcare systems, are not borne out in this study. No evidence was found of major impact over the financial stability of healthcare systems, in spite of the clear rhetoric emanating from all Member States who intervened in the litigation on this matter on the unwelcome consequence of the application of internal market law to healthcare systems, and the acceptance of this rhetoric by the Court in its jurisprudence. Overall, then, the book concludes that, in this case study, there is evidence only of limited de-territorialisation, and that the weakening of the principle of territoriality was not accompanied by internal de- or re-structuring or financial destabilization (p.189). The book also represents a good example of the challenges and benefits of interdisciplinary research. Such research provides an opportunity to gain greater insights than a single disciplinary focus. Although Obermaier (whose background is in political science) goes to some pains to explain some of the best-known legal accounts of Europeanisation processes, citing such authors as J.H.H. Weiler and Francis Snyder, his methodological assumptions and framework leave no room for some of the dominant (though admittedly usually implicit) assumptions of (EU) legal scholarship. For sure, his entire focus (a case study on the reception of Court s rulings in Member States) rests on the assumption that courts matter. But his explanatory account gives very little space for legal or constitutionalist explanations of such reception for instance, the ideas that respect for the rule of law per se, the place of courts in a democratic polity, shared normative framings and professional practice of courts at EU and national levels, and the strong benefits of legal certainty, explain the reception of Court s rulings in national law and provide (part of) an

146 754 European Law Review explanatory account for Europeanisation processes in themselves. Because of this, legal scholars may find this book rather frustrating. Tamara K. Hervey Jean Monnet Professor of European Union Law, University of Sheffield EU Competition Law in Context: Essays in Honour of Virpi Tiili, by Heikki Kanninen, Nina Korjus and Allan Rosas, (Oxford: Hart Publishing, 2009), xxiv +340pp. inc. index, hardback, 60, ISBN: This Festschrift of 20 essays celebrates the retirement of Judge Virpi Tiili from 14 years at the Court of First Instance (now the General Court of the European Union). The contributors of these essays include an impressive list of present or former judges at the Court (Josef Azizi, Marc Jaeger, Heikki Kanninen, Koen Lenaerts, Pernilla Lindh, Arjen Meij, Savvas Papasavvas, Irena Pelikanova, Allan Rosas, Bo Versterdorf and Nils Wahl), Advocate General Paolo Mengozzi, and a selection of their référendaires and civil servants. All the views expressed in this volume are personal to the authors, but nonetheless offer an insight into the judicial mind of the Court. The essays cover a wide range of topics that will surely be of interest to both practitioners and academics, including points of law and sector specific issues. It is difficult to give full attention in this short review to all of the stimulating contributions to this book. Instead, some selected highlights will be discussed. Perhaps the most informative of the contributions from the judges is that of Judge Marc Jaeger, a CFI judge since 1997 and President of the Court since He gives a fascinating insight into the management of competition law litigation. This is a subject of some importance to practising lawyers after the Sumitomo judgment of the ECJ ((C-403/03) [2007] E.C.R. I-729), which held that the delay of a case of four years and three months before the CFI was not disproportionately long. Jaeger argues that, in the European context, the establishment of the CFI in 1989, has succeeded in avoiding the total congestion of the ECJ (p.2). Statistics bear out this conclusion. Only 25 per cent of CFI decisions that can be appealed to the ECJ reach the superior court. This is a testament to the soundness of the CFI s judgments. In terms of judicial method, and unlike a common law court, writing a judgment is the responsibility of several anonymous individuals through a quasi-administrative procedure. Before the hearing, a dossier or file is compiled by a designated juge rapporteur with the assistance of référendaires and other civil servants. This file forms the basis for the draft judgment of the juge rapporteur, which is circulated after the oral hearing. Then, other judges of the Court amend the draft to reach a final judgment. As may be expected, this procedure can be lengthy, and actual and potential reforms are discussed by Judge Jaeger. Between 2000 and 2004, the CFI s pending caseload roughly doubled. In response, the Court increased the number of chambers in 2007 from five to eight, began holding hearings five days a week, and implemented greater monitoring and planning of work allocation among judges and référendaires. These reforms reduced the average duration of competition proceedings to 27 months. Additionally, they facilitated competition cases, which tend to be fact-intensive and require complex economic analysis. Judge Jaeger recommends further reforms to the Court s procedure: (1) the creation of a specialised judicial panel for IP cases; (2) increasing the number of judges and creating specialised chambers within the CFI; (3) the creation of rapporteurs adjoints (civil servants to assist the juge rapporteurs) to assist in the management and preparation of a greater number of files at the same time. Other judicial contributions concern the contribution of the CFI to the substantive law of the European Union. Judge Pernilla Lindh argues that competition law has had an important effect on free movement rules. Functionally, Lindh argues that the respective bodies of law protect the free market in different

147 Book Reviews 755 ways: antitrust law prevents the market from reducing competition through inherent tendencies to monopoly; free movement rules protect the market from excessive state intervention. But these two functions have become obfuscated by recent judgments of European courts. Free movement rules have been applied to non-state actors; competition rules have been applied to state entities held to be undertakings. Practically, the two work well, but Lindh ponders what is the rationale for this in economic theory or legal doctrine? She suggests that market access could be seen as a theory of competitive harm in free movement law which justifies these developments. Judge Irena Pelikánová, in her chapter, looks at the role of competition law in the evolution of EU law. She argues that it is underpinned by common normative principles which must not be neglected. Similarly, Judge Ottó Czúcz looks at the difficult relationship between national health systems and EU competition rules. Judge Czúcz s analysis of the case law leads him to the following proposition: In the case of national institutions which provide basic services that reflect elements of solidarity (meaning that they strive to provide services to all the insured members regardless of their financial or health-related situation or the length of time they have been members), the ECJ consistently rules out the application of EU competition law. (p.55) These institutions are not undertakings because of their social purpose. Yet, for state institutions where there is a more market-orientated balance between contributions and accessible services, even where the institution also follows social aims, these are regarded by the ECJ as undertakings. Judge Czúcz regards this distinction in the case law as consistent, if complex. Judge Nils Wahl examines the controversial issue of fines for infringements of competition law. He argues that clear definitions of prohibited perpetrators is lacking, which is surely important when fines are so high. The case law bears out various approaches to understanding the subject. A formal approach found, for example, in the Albany ((C-65/96, C-115, 116, 117 & 219/97) [1999] E.C.R. I-5751) and FENIN ((C-205/03) [2006] E.C.R. I-6295) cases, looks at the economic activities carried out by the entity and asks whether it is an undertaking subject to competition law. This approach has the benefit of consistency, but depends greatly on the contested concept of economic activity. A teleological approach found, for example, in AC Treuhand ((T-99/04) [2008] E.C.R. II-1501), where the legal successor to a company which acted as a secretary to a cartel was fined despite not entering into any agreement to fix prices, divide markets or allocate supply, etc.), can stretch the boundaries for the application of competition rules to do justice in particular cases, but may not give clear guidance in the future. A functional approach, seen, for example, in Schunk Kolenstoff ((T-69/04) [2008] E.C.R. II-2567), which depended on the presumption of control between parent and subsidiary) raises questions where the facts show economic independence. Judge Wahl concludes that the rationales for such approaches are justified by the promotion of economic activity and also the deterrent effect of the fines themselves. Three of the essays concern state aid. A virtue of these essays is that they seek to clarify key principles of law within this expansive topic. State aid has seen renewed prominence in the global financial crisis and subsequent bailouts of European banks and companies. Judge Koen Lenaerts (of the ECJ) considers state aid and direct taxation, developed since the early 1990s by decisions of the European Commission. He argues that, despite recent judgments of the ECJ that have prohibited selective or discriminatory taxation measures of some Member States, the law continues to respect sovereignty in direct taxation. Judge Josef Azizi (of the CFI) looks at the roles of the European Commission and Member States in the enforcement of State aid law. Marc Barennes (formerly référendaire to Judge Tiili) considers the standing of competitors of the aid recipient in state aid cases. Two chapters examine the abusive exploitation of a dominant position under art.102 TFEU. Judge Bo Vesterdorf advocates a cautionary approach to regulatory and judicial approach, arguing that two important legal notions dominance and abuse are vague and imprecise (p.86). He reflects on excessive

148 756 European Law Review prices, arguing that the decisional practice of the Commission shows that it may only be expected to intervene where there is clear evidence of persistent excessive prices and lack of competitive pressure on the dominant undertaking. Judge Arjen Meij and his référendaire Tristan Baumé advance a theoretical framework governing an object or effect test under Article 102 (p.114). They argue that competition on the merits, in terms of consumer welfare, should play a determinative role. They examine much of the classic case law in a persuasive fashion. Other interesting contributions include a chapter on parallel trade in the pharmaceutical industry from a competition law point of view by Aitor Montesa Lloreda, confidentiality issues in EU law by Judge Savvas Papasavvas, the relationship between administrative law and competition law by Judge Heikki Kanninen, VAT and EU competition by Allan Rosas, consumer protection and EU law by Sari Haukka, unfair competition and trade marks by Nina Korjus, sanctioning infringements by Arnaud Bohler and maritime transport and EU competition law by Jan Vanhamme. Advocate General Mengozzi gives a short but powerful reflection on the enforcement role of the European Commission. Overall, these 20 essays are a refreshing contribution to the critical literature and must surely serve as a fitting tribute to Judge Tiili. John Townsend In-house competition counsel, Clear Channel UK; Barrister, Lincoln's Inn Human Rights and Minority Rights in the European Union, by Kirsten Shoraka, (Abingdon: Routledge, 2010), xxxvi+288pp. inc. index, hardback, 75, ISBN: Kirsten Shoraka in her book Human Rights and Minority Rights in the European Union examines the development of human rights, with emphasis on minority rights in the European Union. She proposes to do so through the historical overview of the relevant body of provisions and at the same time through the critical assessment of EU policy on minority rights on the occasion of enlargement to central and eastern Europe. To this latter effect, she utilises a comparative analysis of minority protection in seven Member States, four new ones and three old ones. One final yet essential aim of the scientific inquiry is the extent to which international legal standards can have (and indeed whether they have had) any impact on EU minority protection policy, including the role that other international organisations have played so far in standard-setting. Shoraka in her introduction validly points out that the protection of various forms of cultural pluralism, and the integration of immigrants and national minorities might become a central concern to the EU (p.2 of the book). This observation largely justifies on its own merit the need for a detailed analysis of the levels of minority protection in the Union. To respond to this policy concern, the author structures her book in the following way: first, she traces the internal historical development of EU human rights policy (Ch.2). She then turns her attention to the CFSP as a constitutive element of the European Union s external human rights policy (Ch.3). Following that, she proposes an overview of the relevant international instruments on minority protection applicable within the European Union (Ch.4) as a basis to assess the situation of minorities in her seven case studies (Ch.5). Chapter 2 gives a detailed account of the evolution of the treaties and other essential legal texts of the European Community and later the European Union, highlighting each time the new elements in the Union s human rights policy on the legal, policy and institutional level. A point of interest in the analysis at this level is the one that argues that the European Union despite not being a state in the classic sense (p.38) has gradually shifted its attitude on human rights from one of near indifference to that of a value

149 Book Reviews 757 concept that guides in the present and the future every act of legislation and every policy decision adopted. The final sections of this chapter place emphasis on the analysis of the judicial and juridical interaction between the Union and in particular the European Court of Justice (ECJ) with the Council of Europe s European Court of Human Rights (ECtHR). The concern here is to relate EU human rights developments to the wider landscape of human rights and minority protection as it has been taking shape in other institutional settings in Europe, given the established relationship between the two bodies. Following the descriptive analysis of what has been taking place on the internal policy level of the Union with regard to the evolution of human rights protection, the author turns logically her attention to the external aspects of EU law and policy-making on human rights. She chooses to look at the Common Foreign and Security Policy (CFSP) of the European Union as an instrument of human rights policy. After an expected overview of the development of the European Union s foreign policy from the 1970s onwards, she proposes to add two elements to her analysis: one that examines the reasons that the European Union evidenced interest and in some cases prioritised its concern over the levels of human rights protection in third countries, and a second one that studies the patterns of interaction with other international organisations within the framework of the CFSP, in the same methodological style as in the previous chapter. Enlargement to central and eastern Europe is thus viewed and accepted as an activity or an item on the agenda of the CFSP. The development of human rights and minority rights conditionality is therefore explored from its initial very broad expression down to its current more concrete form (second-generation conditionality for the applicant states in the western Balkans). In the same context, the author chooses to shift from a purely historical and legal account of her analysis to one that approaches CFSP from an international relations angle. This viewpoint is definitely interesting and enlightening, and complements nicely the account of a topic that by definition cannot be treated single-handedly as a legal topic. Once more, there is great detail on the interactions between the various institutions (CoE, OSCE and various EU bodies) that have been involved in enlargement to CEE, yet it would have been helpful to add some thoughts on the conclusions that one may draw from these interactions towards the shaping of EU policy-making and standard-setting on human rights. The next chapter introduces the reader to minority rights in the European Union stricto sensu with the intention to show how internal (legal) developments and international commitments of EU Member States have shaped minority protection standards that can be seen today as an integral part of the acquis. Following the review of the literature on the definition and content of minority rights, Shoraka turns to the European Union, first through the lens of enlargement to CEE and then, and on a strictly legal basis, through the legal references in the treaties that demonstrate EU commitment to minority protection. She then undertakes a tour d horizon of the contributions of various international organisations in setting minority protection standards in Europe (Council of Europe, the UN and CSCE/OSCE). In each case, she attempts summarily to link the work of each organisation with minority protection within the European Union. At the end of the chapter, she logically reaches the conclusion that as the European Union evolves and as it enlarges, it tends to refine its minority protection conditionality policy and at the same time develops the legal bases available for the protection of difference, mainly through the recent revisions and adjustments in the Lisbon Treaty. It does so, however, at the cost of creating double standards requiring higher levels of protection of minorities from new and prospective Member States than those that the older Member States offer. The discrepancy of methods adopted towards minority protection between the European Union and the other international organisations active in Europe becomes obvious in the analysis although, as previously, if the main query of the work reverts to the conditions shaping the European Union s minority and broader human rights policy, it would have been welcome to systematise the differences in the approaches undertaken, especially since the reasons for the difference are often invoked. The final chapter of the book turns to the study of minority protection in more concrete settings: it discusses the legal and policy parameters of minority rights in seven EU Member States. A number of

150 758 European Law Review these studies are drawn from among the old members of the Union and the rest from the newer members following the recent enlargements to central and eastern Europe. While the selection from the old Member States relies on the interestingly diverse (and opposing) legal approaches that are pursued in order to protect diversity (i.e. Germany, the United Kingdom and France), one is left wondering what criterion has been used for the CEE case studies selected (i.e. Estonia, Slovenia, Lithuania and Slovakia). In that sense, the reader could have been further guided on the elements that tie together these states. Methodologically, Shoraka structures her survey according to reasonable criteria drawn from the Framework Convention for the Protection of National Minorities that allow us to have a general picture of the level of protection of minorities in a given setting. Emphasis on the situation of the Roma in each case is particularly relevant owing to the legal and socio-political complexities that the group is facing throughout Europe. Once more, what the reader misses is some conclusions or remarks on what the case studies demonstrate with regard to the general inquiry on which the whole book is based upon, namely the dynamics affecting the development of EU minority protection standards. In general terms, the book represents a sound account of the legal situation of minority protection in Europe, covering well the most important legal aspects of human and minority rights development. For that reason, it deserves a place among the materials that should be used to introduce interested readers to the study of human rights protection, and more specifically minority rights, in Europe. Kyriaki Topidi University of Lucerne The Recast of the European Works Council Directive, by Filip Dorssemont and Thomas Blanke, (Antwerp: Intersentia, 2010), xxix + 419pp., paperback, 95, ISBN: This book offers a very complete and original analysis of the European Works Council (EWC) Directive. This Directive, first adopted in 1994, undoubtedly constitutes one of the most important achievements of Social Europe. The adoption of the Recast Directive in 2009 with effect from June 6, 2011, which modifies the original text, requires an analysis of its new potentialities but also of its loopholes. However, the new Directive cannot be understood and appreciated without an appraisal of the implementation of the original Directive. The originality and interest of the book is precisely to put the analysis of the new Directive into the context of case law on the national implementation of the European Works Council Directive, and it tries to answer to the question whether the Recast Directive provides real improvements in the problematic areas identified. The first part of the book studies the background of the EWC Directive adopted in 1994, without concentrating on issues already analysed elsewhere. In the first chapter, a fundamental rights perspective is provided (C. Kollonay Lehoczky, The fundamental right of workers to information and consultation under the European Social Charter ). The EWC Directives (both the 1994 Directive and the Recast Directive) refer in their Preambles to fundamental rights and the Directives can be also analysed as instruments of realisation of fundamental rights and more precisely of the right of workers or their representatives to be guaranteed information and consultation in good time at the appropriate levels. The presentation of the meaning of the fundamental right of workers to information and consultation under the European Social Charter gives some keys to understanding and interpreting the EWC Directives. The second chapter deals with the legislative background of this Directive (F. Dorssemont, Worker involvement in secondary EC law prior to the Recast Directive ). The EWC Directive is not the only directive recognising information and consultation rights to workers representatives and the chapter shows

151 Book Reviews 759 that the analysis of this piece of legislation should be linked to the other directives. Analysing the six directives dealing with worker involvement, the chapter shows that these directives do not reveal a coherent and consistent vision. A rewriting and a codification of these directives adopted at different periods will be necessary to have a coherent and articulated European system of worker involvement including the Recast Directive. Two chapters of the book present the genesis of the EWC Directive and of the Recast Directive, stressing the role of the European social partners in the process of adoption of these texts (J.E. Dølvik, The first test of the Maastricht Social Protocol: European Works Councils ; R. Jagodzinski, Review, Revision or Recast? The quest for an amended EWC Directive ). If the EWC case reveals the underlying logic of negotiations under the threat of law and constitutes a failure to start negotiations, the Recast Directive shows a more positive contribution of the social partners to the revision even if they have not negotiated within the legal framework of art.138 EC Treaty. By setting out the process of negotiation between the social partners, before the formal adoption of the Recast Directive, the chapter provides background information which help understanding the content of the Directive. An important part of the book is dedicated to the presentation of domestic case law related to EWCs. The book here fills an important gap in the area of comparative legal studies. Indeed, if generally EWCs represent a well-described and investigated element of industrial relations, until now there has been no research presenting the legal disputes at national level with regard to the establishment or the functioning of EWCs. Most of the time these cases are unknown outside the Member States they originated from, while they provide much information regarding the interpretation of the lacunas and loopholes of EWC Directive. Thus eight countries with EWC-related court cases have been identified (Austria, Belgium, France, Germany, the Netherlands, Sweden, Slovakia, United Kingdom) and analysed following a common pattern in order to make the comparison between the countries possible. The conclusions are that domestic judges as well as the ECJ have played a constructive role in the development of the right to transnational information and consultation (F. Dorssemont, The European Works Council Directive and the domestic Courts: A critical analysis of the legal issue at stake ). According to Dorssemont, their contribution tends to facilitate the establishment of European Works Councils as well as the safeguarding of the prerogatives of the EWCs. The legal comparative approach followed in the book is also particularly interesting because many of the national cases analysed in the national reports dealt with issues which are at the heart of the Recast Directive (i.e. the right to obtain information essential for the opening of negotiations, the issue of the substance, form and timing of the information and consultation procedure, the linking or the articulation between the levels of information and consultation, the need to adapt the agreement to the changing structure of the Community-scale undertaking or group, the scope of transnationality) and they constitute tools to evaluate the solutions given to these issues by the new Directive and an inspiring source for the interpretation of the Recast Directive as well. The second part of the book proposes an assessment of the Recast Directive in choosing to concentrate on specific issues. If most of the time the authors underline some of the positive outcomes of the recasting of the EWC Directive, most of the loopholes of the text are presented and analysed. S. Picard explains how the choice of the recast technique has consequences on the material scope of the revision exercise. The role granted to negotiation to implement the objectives of the Directive also raises questions with regard to the scope rationae temporis of the Recast Directive ( Straitjacketing, time travelling and unifying: The multiple impact of the recast European Works Council Directive ). Regarding the notion of information and consultation, C. Sachs-Durand demonstrates that the result of the recast needs to be appreciated in a mitigated way: On the one hand some necessary modifications have been made, such as a definition of the concept of information and some precisions given to the concept of consultation, but also the articulation between national employees representatives and European representatives, the training organised

152 760 European Law Review for EWC members, the possible presence of trade unionists during the negotiations to establish the EWC, etc. But these modifications have not really and deeply changed the institution. The Balance between conflicting social and economic interests remains unaltered ( Information and Consultation in the Recast Directive.) T. Blanke and E. Rose analyse the difficult question of the sequencing of the European and national procedures of information and consultation ( Who is first? The correct timing of information and consultation of European Works Councils in relation to national rights of worker involvement ). For the authors, the European standard of the correct timing of informing and consulting employee representatives on transnational matters is clarified by the Recast Directive. Step by step the new law will infiltrate into the whole complex normative framework of all EWCs. Concerning the sequencing of European and national procedures, the Recast Directive does not define any specific timely succession of informing and consulting at the different levels. For the authors, the solution here chosen by the Recast Directive seems appropriate, as any predefined chronological commitment to the course of action could narrow down the options here for the selection of the respective most practical process. J.J.M. Lamers ( EWC s role recast: a European actor? ) focuses on the role of the EWCs in relations to the national systems of industrial relations: will the European role introduced by the Recast EWC Directive turn the EWC into a stand-alone European actor? Or will it make the EWC work towards its integration into the various national cultures of industrial relations? The chapter shows that some of the provisions of the Recast Directive stress the European role of the EWCs. A consequence could be that this new legal European status of the EWC to collectively represent the interests of the employees will confirm its legitimacy as a signatory party for transnational agreements. However, improvements of the information and consultation of workers should also have effect at local level. And the author concludes that if the EWC does not add that value, it fails to make the transnational business developments, strategy and industrial relations transparent for the European workforce. Finally, P. Kerckhofs questions whether the Recast Directive could bring more and more effective EWCs. Sylvaine Laulom Université Jean Monnet, Saint-Etienne The Cambridge Companion to European Union Private Law, by Christian Twigg-Flesner, (Cambridge: Cambridge University Press, 2010), xxix + 350pp. inc. index, paperback, 27.99, ISBN: Insiders to the European private law debate tend to strive for highly systematised and all-inclusive accounts of the state of the art of European law s private law province. From this vantage point, writing a Companion in the field would appear to be relatively effortless and uncomplicated it would seem that a re-exposition of the underlying patterns of discourse would be at hand. But things are not as straightforward as one might think. Let me consider two aspects to the Companion that I am reviewing. First, the Companion is presented as conveying the field s discourse as a body of rules that governs the mutual rights and obligations of individuals (p.1). This is a truly classical rendition that has the understandable attractiveness of easing exposition, but at the risk of playing down what private law is really about, with political (state and supranational) authorities fully implicated in the making, enforcement and effects of (European) private law regulation; with multinationals and social (qua consumer) groups implicated in terms of impact and consequences of private law rules; and with private law rules far from neutral as the classical tenet would have us believe. I find many of the chapter contributions revelatory of deeper dimensions that adapt classical categories to new developments, such as those on: state liability

153 Book Reviews 761 as applicable to private law (Van Dam, Johnston and Unberath, Stuyck); product liability (Howells and Pilgerstorfer); competition and private law (Monti); non-discrimination and private law (Zoll) and the mutual influence and impact of the Unfair Commercial Practices Directive on national law (Micklitz). Let me consider a second aspect. The book is also presented as a Companion to EU Private Law rather than European private law, in the sense that: EUPL may be distinguished from the wider field of European Private Law. While the focus of EUPL is on EU measures and case law European private law is broader, combining EUPL with what is common to national legal systems and the rules on private international law. (p.2). In this view, to identify how each individual jurisdiction has dealt with the introduction of EU-based rules into their respective legal systems would be out of the reach of EUPL the province of comparative law. This difference is far from uncontroversial. It comes from an approach popular among Acquis Group scholars, who like to read private law in a European perspective as entirely and exclusively resting on identifying common principles derived from the body of rules contained in EU law (Gemeinschaftsprivatrecht) seen in isolation from national private laws (contra, cf. Nils Jansen and Reinhard Zimmermann, Recasting the Acquis Communautaire? A Critical Evaluation of the Principles of the Existing EC Contract Law [2008] Modern Law Review 505; L. Niglia, Taking Comparative Law Seriously Europe s Private Law and the Poverty of the Orthodoxy (2006) 54 American Journal of Comparative Law 401). The fact is that many of the contributions trespass the boundaries thus set out, making the Companion more than just an account of a supposedly emerging EU Private Law as an independent legal discipline. I find such intrusions among the most interesting aspects of this collection of papers for example, one chapter contribution (Monti) emphasises the greater impact of the Europeanisation of competition law on national law than European private law itself and, in this context, discusses the problematic impact of European competition law on national (English) private law rules such as economic duress or restraint of trade; other chapter contributions emphasise: the spill-over effect of the implementation and enforcement of directives on national legal systems (Johnston and Unberath); the impact of the ECJ case law on free movement on the complex arrangements of national private laws (Stuyck); and the difficulty in separating European from national remedies in relation to EU regulation of commercial practices (Micklitz). Even the issue of competence sensibility (Weatherill) calls into question problematic boundary issues that one cannot really resolve nor fully understand without bearing in mind, at least counterfactually, the complexities that underlie the national private law dimension a complex analysis that Weatherill rightly undertakes. Further chapter contributions such as those on the role of language (Dannemann, Ferreri and Graziadei) and on private international law aspects (Muir-Watt) all point to the inevitability of a treatment of EU private law as part and parcel of a European private law. Even themes only referred to rather than fully developed must raise a similar perspective. For how can one speculate on the problem of the extent to which private law is undertaking a constitutionalisation without taking into account the national dimension (p.9)? And how could one attempt an account of the relevance of fundamental rights to European private law while turning a blind eye to the national dimension (pp.8 et seq.)? The multi-level character of regulation and the multi-regional character of language are further issues that must direct scholarship towards taking the national dimension into full consideration for it to be really intelligible. Overall, many of the chapter contributions have balanced the Companion to make it more representative of the complexities of European private law than one would have expected on reading the introductory pages. Ultimately, what seems to me a mistake in classification the attempt at confining the field within the narrow boundaries of a European Union private law qua Gemeinschaftsprivatrecht (p.2) does some good to the book, making it combine clarity of exposition with attention to detail. Other ways in which private law is both EU and comparative can be found everywhere. They relate to aspects that

154 762 European Law Review one can call critical and to which the Companion refers but only limitedly, including the creeping process of codification through the Common Frame of Reference project, the constitutionalisation of private law, the interface between fundamental rights and private law or between regulation and private law, the relevance of culture to private law (for example, respectively pp.116 et seq. and pp.1 et seq.). There are no chapters dedicated to such aspects in critical fashion. The Companion pays close attention to many of the subject s key dimensions from the historical (Heirbaut and Storme) and comparative (Smit) to conflict of laws (Muir-Watt) and competence (Weatherill), through a treatment of the role of language (Dannemann, Ferreri and Graziadei) and Directives (Johnston and Unberath), followed by an account of the role of the ECJ (Stuyck) and of various types of harmonisation instruments (Beale on the Draft Common Frame of Reference; Schulte-Nölke on optional instruments). More practical topics follow then, in a second part, focusing on commercial aspects relevant to private law harmonisation (Cordero Moss, Micklitz, Saintier) as well as on consumer sales (Magnus), financial markets (Pisulinski), travel law (Karsten), non-discrimination (Zoll), product liability (Howells and Pilgerstorfer), competition law (Monti), unfair terms (Nebbia), information obligations and withdrawal rights (Rott), tort (van Dam) and property (Van Erp and Akkermans). The structure of the book thus organised, at times stretches the field perhaps too far in terms of content, making it become one and the same thing as EU general law, which is only representative of a general climate of uncertainty as to the exact framing of the discipline. The Common Frame of Reference project illustrates how problematic it is to accept a trespassing of private law regulation from consumer to general private law in terms not only of actual EU competence, and of the credibility of such generalisation moves in private law terms (cf. Jansen and Zimmermann, Recasting the Acquis Communautaire? [2008] Modern Law Review 505), but also in relation to wider legitimacy considerations (cf. L. Niglia, Beyond Enchantment The Possibility of a New European Private Law [2010] Yearbook of European Law ). However, no doubt the Companion thus structured is useful to whoever is interested in an overview of the increasingly wide range of interests that underlie the field in particular those interested in working out what a general private law might look like, in a hypothetical situation in which the DCFR (or part of it), notably containing not just consumer private law rules, would be adopted. From this very vantage point, the choice for a wide range of subject areas as addressed in the Companion is welcome, if only because it shows once more, and with unusual clarity, how the issue of the outer reaches of the field can no longer be left unresolved in European private law scholarship (for perspectives towards addressing that issue, see R. Brownsword, H.-W. Micklitz, L. Niglia and S. Weatherill (eds), The Foundations of European Private Law (Hart, 2011)). Leone Niglia University of Exeter The Law of Green and Social Procurement in Europe, by Roberto Caranta and Martin Trybus, (Copenhagen: DJØF Publishing, 2010), 330pp. inc. index, paperback, 38, ISBN: Perhaps the most significant challenge faced by the Community s regime of public procurement regulation is to locate the balance between the need to eliminate nationality-based discrimination in the selection of suppliers, while also permitting the use of public contracts as a means to pursue social and environmental goals. Considerations of a non-economic nature in contract award procedures may reflect vital and legitimate national and Community values. However, they also make it more difficult to detect whether an award procedure has been tainted with the desire to favour a national supplier. This tension has been the subject

155 Book Reviews 763 of a number of recent works, most notably a monograph by Professor Christopher McCrudden (Buying Social Justice (Oxford University Press, 2007) and an edited collection by Professors Arrowsmith and Kunzlik (Social and Environmental Policies in EC Procurement Law (Cambridge University Press, 2009)). The distinctive approach of the present volume is that it proceeds by way of nine Member State case studies. The value of this approach is identified by the editors in their Foreword. The hope is to disseminate awareness of common and diverging interpretations of the Union s procurement rules in order to promote best practice and allow misunderstandings to be avoided. Developments at the Member State level may be a source of inspiration for other Member States, as well as the Court and other EU institutions. Caranta s opening chapter preludes the Member State case studies by analysing the development and content of the European Union s procurement rules with the theme of sustainable public procurement in mind. The chapter details the guidance provided by the Court in cases involving uncertainty about the permissibility of so called secondary or horizontal policies relating, for example, to the employment of the long-term unemployed, and the emissions standards of a fleet of urban buses. Caranta describes the process whereby principles developed by the Court came to be consecrated in the Community Directives and proceeds to analyse the different stages in the contract award process at which secondary considerations may be relevant. Integrated within the discussion of the different stages is a treatment of the Commission s efforts to provide guidance through Communications. The chapter gives a commendable impression of the origin, current state and future direction of the attempts to bring some clarity and predictability to what is evidently a complex regulatory challenge. Treumer s chapter considers the Danish experience, noting that the Directives have been implemented without significant changes to their texts. A distinction is drawn between environmental considerations which are pervasive and social considerations which are much more limited. This is confirmed by the results of an empirical study based on searching for key terms in tender notices and interviews with contracting authorities. The treatment of the disputes highlights the level of uncertainty associated with the pursuit of social conditions. An interesting observation in the conclusion is that the lesser relevance of social considerations in Danish procurement may be explained by the high level of taxation which results in a high degree of protection for the weakest in society. Vidal s chapter considers procurement and sustainable development in France, highlighting the evolution from only limited scope for taking account of sustainability, to a situation in which this concern pervades all stages of the contract from the launch of the procedure to contract performance. Burgi deals with the German perspective. He begins with a helpful discussion of the distinction and overlap between primary and secondary considerations in procurement introducing the contrast between the contracting authority as both consumer and regulator. Competition is described as the towering principle of the German Competition Act. Like Treumer, Burgi finds a greater emphasis on the pursuit of environmental, rather than social policies. He considers that a lack of detail in European and national rules, and a consequent fear of non-compliance and damages liability on the part of public authorities, inhibits authorities from pursuing secondary objectives to the extent that politicians might prefer. Caranta and Richetto provide the first of two chapters on Italy and detail some examples of social considerations relating to security in the workplace originally approved in the Italian case law, and later affirmed in legislation. They doubt, however, that the Directives permit the characterisation of a bid for the supply of goods and services as abnormally low on the basis that the foreign supplier is complying only with their own rules on security in the workplace. As the authors note, the desire to protect national firms and workers from social dumping has to be carefully balanced with the need not to set barriers to the free circulation of goods and services. In the second chapter on Italy, Racca deals with the relationship between centralised purchasing techniques, which aggregate the requirements of individual authorities, and secondary considerations in Italy. She notes that economies of scale possible through aggregation have the potential of offsetting the sometimes higher costs associated with some secondary considerations.

156 764 European Law Review Some concern is expressed about the operation of the central purchasing body in Italy. In order to limit public expenditure, procuring entities are free to procure independently only when better conditions can be secured other than through the central purchasing body. Pursuing secondary considerations which entail higher costs can therefore be difficult, albeit that this very much depends on how such considerations are incorporated into the award process. Spyra s chapter considers the legal environment of sustainable procurement in Poland. He notes the emphasis on procurement based on economic criteria alone despite the admissibility of secondary considerations in successive enactments of the Public Procurement Law, and suggests as an explanation concerns about liability for misuse of public funds. Dragos, Neamtu and Veliscu present a substantial chapter on Romania based partly on interviews with procurement officers and empirical analysis of the extent of inclusion of secondary considerations. The authors note that procurement is regulated by a Government Emergency Ordinance of 2006 which closely transposes the Community Directives. Consideration is given to the new institutional dimension under the 2006 Ordinance and the recognition here of the future potential for sustainable procurement. Also covered are the two avenues available to aggrieved bidders, being a complaint to a national council or a court of law. The authors remark that the inclusion of secondary considerations might be enhanced by the existence of unitary and coherent case law at both levels. Garcia s chapter on Spain begins by acknowledging the modern tendency to question the distinction between the primary and secondary objectives of procurement on the basis that the service received by the public authority is as important as the instruments by which public contracts are carried out. Like many of the chapters, consideration is given to the relevance of general sustainability initiatives such as the Sustainable Economy Law to the procurement function. Most of the chapter is devoted to explaining the scope for sustainability considerations during the different stages of the procurement process with reference to the Public Sector Procurement Law of Trybus provides the final country-specific chapter on the United Kingdom, beginning with the comment that value for money and efficient procurement outcomes are the dominant objectives of British procurement law and policy. His historical overview links this position with the reluctance of Conservative governments to use procurement as a policy tool along with a perception of ECJ cases as largely excluding this possibility. Subsequent Labour Government initiatives establish links between procurement and environmental objectives in so far as they can be pursued consistently with EU law and without compromising value for money. Trybus expresses concern that some aspects of guidance documents published by the Office for Government Commerce seem to encourage social considerations in a manner at odds with both EU law and the implementing UK Regulations. Indeed a general theme of the chapter is that the guidance serves mainly, and perhaps unintentionally, to raise difficult questions as to how secondary considerations can be incorporated consistently with the legal framework. The author also refers to the guidance glossing over the issue of reconciling social considerations with value for money. Comba s closing chapter discusses the advantages and challenges of a comparative approach in the study of this area. He makes the crucial point that the approach towards sustainability in procurement is likely to differ depending on what is placed in the other side of balance, be this competition or value for money, how these concepts are understood, and what weight is attributed to the different concerns. Contrasting examples are then drawn out from the case studies. The author proceeds to discuss the notion of secondary considerations as state aids in the sense of the authority paying more not for a better product, but in order to foster a general interest. He finds evidence of the legal admissibility of such mixed contracts in some of the case studies and considers the EU law position on this matter. The editors of this volume should be commended for bringing together the national case studies and in particular for achieving a balance between long-established and new Member States. One observation is perhaps that Comba s task of drawing comparisons between the case studies might have been shared to

157 Book Reviews 765 a greater extent by the individual contributors. This is not to suggest that individual chapters ought to have provided comparisons with all other chapters, but rather that more attention might have been given to identifying close similarities and fundamental differences. The volume, however, represents a significant contribution to the scholarship in this area. It will disappoint only those readers who infer from the title that there is a clear and predictable body of law in this area which is capable of being quickly understood. On the contrary, perhaps the main impression created by this volume, and the related literature, is that there are considerable intellectual challenges in this area of study. Arwel Davies Swansea University

158 Table of Cases European Court of Justice and General Court: Numerical List of Cases (8/55) (9/56) (13/61) (19/61) (25/62) (26/62) (90/63) (6/64) (56/64 & 58/64) (56/65) (24/68) (2/69 & 3/69) (29/69) (41/69) (44/69) (45/69) (11/70, 25/70, 26/70 & 30/70) (22/70) (25/70) Fédération Charbonnière Belgique v High Authority [1955] E.C.R Meroni & Co v High Authority [1957] E.C.R , 605 Robert Bosch GmbH v Kleding Verkoopbedrijf de Geus en Uitdenbogerd; sub nom. Kledingverkoopbedrijf de Geus en Uitdenbogerd v Robert Bosch GmbH [1962] E.C.R. 45; [1962] C.M.L.R , 317, 551 Mannesmann AG v High Authority [1962] E.C.R Plaumann & Co v Commission of the European Economic Community [1963] E.C.R. 95; [1964] C.M.L.R , 56, 507, 508 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] E.C.R. 1; [1963] C.M.L.R , 646 Commission of the European Economic Community v Belgium; sub nom. Import of Milk Products, Re [1964] E.C.R. 625; [1965] C.M.L.R Costa v Ente Nazionale per l'energia Elettrica (ENEL)[1964] E.C.R. 585; [1964] C.M.L.R Etablissements Consten Sarl v Commission of the European Economic Community; Grundig-Verkaufs GmbH v Commission of the European Economic Community [1966] E.C.R. 299; [1966] C.M.L.R , 317, 616 Société Technique Minière v Maschinenbau Ulm GmbH [1966] E.C.R. 235; [1966] C.M.L.R Commission of the European Communities v Italy; sub nom. Statistical Levy, Re [1969] E.C.R. 193; [1971] C.M.L.R Sociaal Fonds voor de Diamantarbeiders, Antwerp v SA Ch Brachfeld & Sons, Antwerp; Sociaal Fonds voor de Diamantarbeiders, Antwerp v Chougol Diamond Co, Antwerp [1969] E.C.R. 211; [1969] C.M.L.R , 350 Stauder v City of Ulm [1969] E.C.R. 419; [1970] C.M.L.R ACF Chemiefarma NV v Commission of the European Communities (Quinine) [1970] E.C.R , 192 Buchler & Co v Commission of the European Communities [1970] E.C.R , 192 Boehringer Mannheim GmbH v Commission of the European Communities [1970] E.C.R , 192 Internationale Handelsgesellschaft mbh v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel; Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Köster, Berodt & Co; Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Gunther Henck; Firma Ottoscheer v Einfuhr und Vorratsstelle fur Getreide und Futtermittel [1970] E.C.R. 1125; [1972] C.M.L.R , 441, 717, 744 Commission of the European Communities v Council of the European Communities; sub nom. European Road Transport Agreement, Re [1971] E.C.R. 263; [1971] C.M.L.R , 412, 416, 417, Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Köster, Berodt & Co. See Internationale Handelsgesellschaft mbh v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel; Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Köster, Berodt & Co (11/70, 25/70, 26/70 & 30/70) i

159 ii Table of Cases (41/70) (92/71) (1/72) (6/72) (7/72) (21/72) (10/73) (146/73) (155/73) (166/73) (8/74) (17/74) (33/74) (26/76) (27/76) (33/76) (45/76) (74/76 & 78/76) (117/76 & 16/77) (13/77) (80/77 & 81/77) (106/77) (136/77) (149/77) (101/78) International Fruit Co NV v Produktschap voor Groenten en Fruit (No.1); sub nom. International Fruit Co NV v Commission of the European Communities [1971] E.C.R. 411; [1975] 2 C.M.L.R Interfood GmbH v Hauptzollamt Hamburg-Ericus [1972] E.C.R. 231; [1973] C.M.L.R Frilli v Belgium [1972] E.C.R. 457; [1973] C.M.L.R Europemballage Corp v Commission of the European Communities [1973] E.C.R. 215; [1973] C.M.L.R , 610 Boehringer Mannheim GmbH v Commission of the European Communities [1972] E.C.R. 1281; [1973] C.M.L.R International Fruit Co NV v Produktschap voor Groenten en Fruit (No.3) [1972] E.C.R. 1219; [1975] 2 C.M.L.R , 452 Rewe-Zentral AG v Hauptzollamt Kehl [1973] E.C.R Rheinmühlen-Dusseldorf v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel [1974] E.C.R Italy v Sacchi [1974] E.C.R. 409; [1974] 2 C.M.L.R Rheinmühlen-Dusseldorf v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel [1974] E.C.R. 33; [1974] 1 C.M.L.R , 278, 543, 545, , 550, 551 Procureur du Roi v Dassonville; sub nom. Dassonville v Commission of the European Communities [1974] E.C.R. 837; [1974] 2 C.M.L.R. 436; [1975] F.S.R , 422, 618, 619 Sadolin & Homblad A/S v Commission of the European Communities; sub nom. Transocean Marine Paint Association v Commission of the European Communities [1974] E.C.R. 1063; [1974] 2 C.M.L.R Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] E.C.R. 1299; [1975] 1 C.M.L.R , 619, 634 Metro SB-Grossmarkte GmbH & Co KG v Commission of the European Communities; sub nom. Verband des SB-Grosshandels ev v Commission of the European Communities [1977] E.C.R. 1875; [1978] 2 C.M.L.R. 1; [1978] F.S.R United Brands Co v Commission of the European Communities [1978] E.C.R. 207; [1978] 1 C.M.L.R Rewe Zentralfinanz eg v Landwirtschaftskammer fur das Saarland [1976] E.C.R. 1989; [1977] 1 C.M.L.R , 543, 548 Comet BV v Produktschap voor Siergewassen [1976] E.C.R , 548 Iannelli & Volpi SpA v Ditta Paolo Meroni; Firma Steinike und Weinlig v Bundesamt fur Ernahrung und Forstwirtschaft [1977] E.C.R. 595; [1977] E.C.R. 557; [1977] 2 C.M.L.R Albert Ruckdeschel & Co v Hauptzollamt Hamburg-St Annen; Diamalt AG v Hauptzollamt Itzehoe [1977] E.C.R. 1753; [1979] 2 C.M.L.R GB-INNO-BM NV v Vereniging van de Kleinhandelaars in Tabak [1977] E.C.R. 2115; [1978] 1 C.M.L.R SociétéLes Commissionnaires Réunis Sàrl v Receveur des Douanes; Les Fils de Henri Ramel v Receveur des Douanes [1978] E.C.R , 350, 351, 357 Amministrazione delle Finanze dello Stato v Simmenthal SpA; sub nom. Italian Tax and Revenue Administration v SA Simmenthal, Monza (Italy) [1978] E.C.R. 629; [1978] 3 C.M.L.R , 117, 365, 581 Firma A Racke v Hauptzollamt Mainz [1978] E.C.R. 1245; [1978] 3 C.M.L.R Defrenne v SA Belge de Navigation Aerienne (SABENA); sub nom. Defrenne v SA Belge d'exploitation de la Navigation Aerienne (SABENA) [1978] E.C.R. 1365; [1978] 3 C.M.L.R Granaria BV v Hoofdproduktschap voor Akkerbouwprodukten [1979] E.C.R. 623; [1979] 3 C.M.L.R , 348

160 Table of Cases iii (110/78 & 111/78) (120/78) (132/78) (141/78) (148/78) (170/78) (179/78) (15/79) (140/79) (804/79) (98/80) (100/80, 103/80 & 102/80) (158/80) (15/81) (60/81) (102/81) (106/81) (230/81) (283/81) (11/82) (218/82) (286/82) (337/82) (C-14/83 & C-79/83) Ministere Public and Chambre Syndicale des Agents Artistiques et Impresarii de Belgique Asbl v van Wesemael and Poupaert; Ministere Public, Chambre Syndicale des Agents Artistiques et Impresarii de Belgique Asbl v Follachio and Leduc [1979] E.C.R. 35; [1979] 3 C.M.L.R Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein [1979] E.C.R. 649; [1979] 3 C.M.L.R , 262, 367, 421, , 634, 635 Denkavit Loire SARL v France (Customs Authorities) [1979] E.C.R. 1923; [1979] 3 C.M.L.R Fishing Net Mesh Sizes, Re; sub nom. France (Commission of the European Communities intervening) v United Kingdom [1979] E.C.R. 2923; [1980] 1 C.M.L.R Pubblico Ministero v Ratti [1979] E.C.R. 1629; [1980] 1 C.M.L.R Excise Duties on Wine, Re; sub nom. Commission of the European Communities v United Kingdom [1980] E.C.R. 417; [1980] 1 C.M.L.R , 618 Procureur de la Republique (Administration des Douanes Francaises Intervening) v Michelangelo, Rivoira and Giovanni Rivoira & Figli SNC [1979] E.C.R. 1147; [1979] 3 C.M.L.R PB Groenveld BV v Produktschap voor Vee en Vlees [1979] E.C.R. 3409; [1981] 1 C.M.L.R Chemial Farmaceutici SpA v DAF SpA [1981] E.C.R. 1; [1981] 3 C.M.L.R , 639 Commission of the European Communities v United Kingdom [1981] E.C.R. I Romano v Institut National d'assurance Maladie-Invalidite (INAMI)[1981] E.C.R. 1241; [1983] 2 C.M.L.R Musique Diffusion Francaise SA v Commission of the European Communities; Pioneer High Fidelity (GB) Ltd v Commission of the European Communities; Pioneer Electronic (Europe) NV v Commission of the European Communities; C Melchers & Co v Commission of the European Communities (101/80) [1983] E.C.R. 1825; [1983] 3 C.M.L.R , 187, 189, 190, Rewe-Handelsgesellschaft Nord mbh v Hauptzollamt Kiel; Rewe Markt Steffen v Hauptzollamt Kiel [1981] E.C.R. 1805; [1982] 1 C.M.L.R Gaston Schul BV, Douane Expediteur BV v Inspecteur der Invoerrechten en Accijnzen; sub nom. Gaston Schul BV v Inspector of Customs and Excise, Rossendaal, Netherlands [1982] E.C.R. 1409; [1982] 3 C.M.L.R , 346 IBM Corp v Commission of the European Communities; sub nom. International Business Machines Corp v Commission of the European Communities [1981] E.C.R. 2639; [1981] 3 C.M.L.R Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG & Co KG [1982] E.C.R. 1095; [1982] Com. L.R Kind KG v European Economic Community [1982] E.C.R Luxembourg v European Parliament [1983] E.C.R. 255; [1983] 2 C.M.L.R CILFIT Srl v Ministero della Sanita; sub nom. CILFIT Srl v Ministro della Sanita [1982] E.C.R. 3415; [1983] 1 C.M.L.R , 563, 583 Piraiki-Patraiki Cotton Industry AE v Commission of the European Communities [1985] E.C.R. 207; [1985] 2 C.M.L.R. 461; [1985] 2 C.M.L.R Commission of the European Communities v Council of Ministers; sub nom. Reexport of Caribbean Rum, Re [1983] E.C.R. 4063; [1984] 2 C.M.L.R Luisi v Ministero del Tesoro [1984] E.C.R. 377; [1985] 3 C.M.L.R , 707 St Nikolaus Brennerei und Likofabrik, Gustav Kniepfmelde GmbH v Hamptzollamt Krefeld [1984] E.C.R. 1051; [1985] 3 C.M.L.R Von Colson v Land Nordrhein-Westfahlen; Harz v Deutsche Tradax GmbH [1984] E.C.R. 1891; [1986] 2 C.M.L.R

161 iv Table of Cases (15/83) (37/83) (106/83) (218/83) (240/83) (294/83) (21/84) (41/84) (178/84) (205/84) (216/84) (222/84) (234/84) (243/84) (20/85) (C-97/85) (314/85) (385/85) (12/86) (45/86) (61/86) (66/86) (90/86) (305/86 & 160/87) (313/86) (81/87) Denkavit Nederland BV v Hoofdproduktschap voor Akkerbouwprodukten [1984] E.C.R , 352 Rewe-Zentral AG v Direktor de Landwirtschaftskammer Rheinland [1984] E.C.R. 1229; [1985] 2 C.M.L.R , 353, 355 Sermide v Cassa Conguaglio Zucchero [1984] E.C.R Les Rapides Savoyards Sàrl v Directeur General des Douanes et Droits Indirects [1984] E.C.R. 3105; [1985] 3 C.M.L.R , 130 Procureur de la République v Association de défense des brûleurs d'huiles usages (ADBHU) [1985] E.C.R Parti Ecologiste Les Verts v European Parliament; sub nom. Les Verts, Parti Ecologiste v European Parliament [1986] E.C.R. 1339; [1987] 2 C.M.L.R , 269 Commission of the European Communities v France (Franking machines) [1985] E.C.R Pinna v Caisse d'allocations Familiales de la Savoie [1986] E.C.R. 1; [1988] 1 C.M.L.R , 352, 357 Commission of the European Communities v Germany; sub nom. Purity Requirements for Beer, Re [1987] E.C.R. 1227; [1988] 1 C.M.L.R , 618 Commission of the European Communities v Germany; sub nom. Insurance Services, Re [1986] E.C.R. 3755; [1987] 2 C.M.L.R , 341, 620 Commission of the European Communities v France [1988] E.C.R Johnston v Chief Constable of the Royal Ulster Constabulary [1987] Q.B. 129; [1986] 3 W.L.R. 1038; [1986] 3 All E.R. 135; [1986] E.C.R. 1651; [1986] 3 C.M.L.R. 240; [1987] I.C.R. 83; [1986] I.R.L.R. 263; (1987) 84 L.S.G. 188; (1986) 130 S.J , 54, 60 Aid to Meura SA, Re; sub nom. Belgium v Commission of the European Communities [1986] E.C.R. 2263; [1988] 2 C.M.L.R John Walker v Ministeriet for Skatter og Afgifter [1986] E.C.R Mario Roviello v Landesversicherungsanstalt Schwaben [1988] E.C.R. I , 352, 357 Deutsche Levensmittelwerke v Commission of the European Communities [1987] E.C.R Foto-Frost v Hauptzollamt Lübeck-Ost [1987] E.C.R. 4199; [1988] C.M.L.R , 110, 347, 583, 729 SR Industries v Administration des douanes [1986] E.C.R Meryem Demirel v Stadt Schwäbisch Gmu nd [1987] E.C.R. 3719; [1989] 1 C.M.L.R Commission of the European Communities v Council of the European Communities (45/86); sub nom. Generalised Tariff Preferences, Re [1987] E.C.R. 1493; [1988] 2 C.M.L.R United Kingdom v Commission of the European Communities; sub nom. Clawback on Export of Sheep, Re [1988] E.C.R. 431; [1988] 2 C.M.L.R Ahmed Saeed Flugreisen v Zentrale zur Bekampfung Unlauteren Wettbewerbs ev; Silver Line Reiseburo GmbH v Zentrale zur Bekampfung Unlauteren Wettbewerbs ev [1989] E.C.R. 803; [1990] 4 C.M.L.R Criminal Proceedings against Giorgio Zoni [1988] E.C.R. I , 368, 369, 370, Neotype Techmashexport GmbH v Commission and Council [1990] E.C.R. I Lenoir v Caisse d'allocations Familiales des Alpes-Maritimes [1988] E.C.R. 5391; [1990] 1 C.M.L.R R. v HM Treasury Ex p. Daily Mail; R. v Customs and Excise Commissioners Ex p. Daily Mail [1989] Q.B. 446; [1989] 2 W.L.R. 908; [1989] 1 All E.R. 328; [1988] S.T.C. 787; [1988] E.C.R. 5483; [1989] B.C.L.C. 206; [1988] 3 C.M.L.R. 713; (1989) 133 S.J , 82, 83, 84, 85

162 Table of Cases v (133/87 & 150/87) (186/87) (C-279/87) (374/87 & 27/88) (382/87) (2/88 Imm) (C-69/88) (C-70/88) (109/88) (T-1/89 P) (T-51/89) (143/88 & C-92/89) (145/88) (C-177/88) (C-63/89) (C-106/89) (C-128/89) (C-213/89) (C-230/89) (C-234/89) (C-260/89) (C-300/89) (331/88) (C-348/89) (C-358/89) Nashua Corp v Commission of the European Communities; Nashua Corp v Council of Ministers of the European Communities [1990] E.C.R. I-719; [1990] 2 C.M.L.R Cowan v Tresor Public [1989] E.C.R. 195; [1990] 2 C.M.L.R , 711 Tipp-Ex v EC Commission of the European Communities [1990] E.C.R. I Orkem SA (formerly CdF Chimie SA) v Commission of the European Communities; Solvay et Cie SA v Commission of the European Communities [1989] E.C.R. 3283; [1991] 4 C.M.L.R Buet v Ministre Public [1989] E.C.R. 1235; [1993] 3 C.M.L.R Zwartveld, Re [1990] E.C.R. I-3365; [1990] 3 C.M.L.R H Krantz GmbH & Co v Ontvanger der Directe Belastingen [1991] S.T.C. 604; [1990] E.C.R. I-583; [1991] 2 C.M.L.R European Parliament v Council of Ministers of the European Communities [1990] E.C.R. I-2041; [1992] 1 C.M.L.R , 487 Handels- og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening Ex p. Danfoss A/S; sub nom. Union of Clerical and Commercial Employees v Danish Employers Association Ex p. Danfoss A/S [1989] E.C.R. 3199; [1991] 1 C.M.L.R. 8; [1991] I.C.R. 74; [1989] I.R.L.R Rhône Poulenc SA v Commission of the European Communities [1991] E.C.R. II-867 [1991] E.C.R. II , 469, 474 Tetra Pak Rausing SA v Commission of the European Communities [1990] E.C.R. II-309; [1991] 4 C.M.L.R. 334; [1991] F.S.R Zuckerfabrik Süderditmarschen AG v Hauptzollamt Itzehoe; Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn [1991] E.C.R. I-415; [1993] 3 C.M.L.R. 1; (1991) 135 S.J.L.B Torfaen BC v B&Q Plc [1990] 2 Q.B. 19; [1990] 2 W.L.R. 1330; [1990] 1 All E.R. 129; [1989] E.C.R. 3851; [1990] 1 C.M.L.R. 337; [1990] C.O.D. 141; (1990) 134 S.J Dekker v Stichting Vormingscentrum voor Jonge Volwassenen Plus [1990] E.C.R. I-3941; [1992] I.C.R. 325; [1991] I.R.L.R Les Assurances du Credit SA v Council of Ministers of the European Communities; Les Assurances du Credit SA v Commission of the European Communities [1991] E.C.R. I-1799; [1991] 2 C.M.L.R Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] E.C.R. I-4135; [1993] B.C.C. 421; [1992] 1 C.M.L.R , 346 Commission of the European Communities v Italy; sub nom. Imports of Grapefruit, Re [1990] E.C.R. I-3239; [1991] 3 C.M.L.R R. v Secretary of State for Transport Ex p. Factortame Ltd [1990] 2 Lloyd's Rep. 351; [1990] E.C.R. I-2433; [1990] 3 C.M.L.R. 1; (1990) 140 N.L.J , 55, 56, 262 Commission of the European Communities v Greece; sub nom. VAT on Spirits, Re [1991] E.C.R. I-1909; [1993] 1 C.M.L.R Stergios Delimitis v Henninger Bräu [1991] E.C.R. I-935; [1992] 5 C.M.L.R Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis (DEP); Elliniki Radiophonia Tileorassi AE (ERT) v Sotirios Kouvelas [1991] E.C.R. I-2925; [1994] 4 C.M.L.R Commission of the European Communities v Council of the European Communities; sub nom. Titanium Dioxide Directive, Re [1991] E.C.R. I-2867; [1993] 3 C.M.L.R R. v Ministry of Agriculture, Fisheries and Food Ex p. Federation Europeene de la Sante Animale (FEDESA) [1990] E.C.R. I-4023; [1991] 1 C.M.L.R , 373, 374, 383, 742 Mecanarte Metalúrgica da Lagoa Ldª v Chefe do Serviço da Conferência Final da Alfândega do Porto [1991] E.C.R. I , 116, 285 Extramet Industrie SA v Council of the European Communities [1991] E.C.R. I-2501; [1993] 2 C.M.L.R

163 vi Table of Cases (C-1/90 & C-176/90) (C-6/90 & C-9/90) (C-39/90) (C-76/90) (C-87/90, C-88/90 and C89/90) (C-90/90 and 91/90) (C-159/90) (C-208/90) (C-107/91) (C-155/91) (C-159/91 & C-160/91) (C-181/91 & C-248/91) (C-267/91) (C-271/91) (316/91) (C-320/91) (C-12/92) (C-19/92) (T-43/92) (T-77/92) (T-83/92) (C-90/92) (T-96/92 R) (C-127/92) (C-131/92) (C-135/92) (C-137/92 P) (C-199/92 P) Aragonesa de Publicidad Exterior SA v Departmento de Sanidad y Seguridad Social de la Generalitat de Cataluna; Publivia SAE v Departmento de Sanidad y Seguridad Social de la Generalitat de Cataluna [1991] E.C.R. I-4151; [1994] 1 C.M.L.R Francovich v Italy; Bonifacti v Italy [1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66; [1995] I.C.R. 722; [1992] I.R.L.R Denkavit Futtermittel GmbH v Land Baden-Wurttemberg [1991] E.C.R. I-3069; [1994] 1 C.M.L.R , 355 Säger v Dennemeyer & Co Ltd [1991] E.C.R. I-4221; [1993] 3 C.M.L.R Verholen v Sociale Verzekeringsbank Amsterdam [1991] E.C.R. I-3757; [1994] 1 C.M.L.R Jean Neu v Secrétaire d'etat à l'agriculture et à la Viticulture [1991] E.C.R. I Society for the Protection of Unborn Children (Ireland) Ltd (SPUC) v Grogan [1991] E.C.R. I-4685; [1991] 3 C.M.L.R Emmott v Minister for Social Welfare; Emmott v Attorney General [1991] E.C.R. I-4269; [1991] 3 C.M.L.R. 894; [1993] I.C.R. 8; [1991] I.R.L.R , 53 Empresa Nacional de Uranio SA (ENU) v Commission of the European Communities [1993] E.C.R. I Commission of the European Communities v Council of Ministers of the European Communities [1993] E.C.R. I-939; [1993] Env. L.R Poucet v Assurances Generales de France (AGF) et Caisse Mutuelle Regionale du Languedoc-Roussillon; Pistre v Caisse Autonome National de Compensation de l'assurance Veiellesse des Artisans [1993] E.C.R. I European Parliament v Council of Ministers of the European Communities; European Parliament v Commission of the European Communities; sub nom. Aid to Bangladesh, Re [1993] E.C.R. I-3685; [1994] 3 C.M.L.R Criminal Proceedings against Keck; Criminal Proceedings against Mithouard [1993] E.C.R. I-6097; [1995] 1 C.M.L.R , 627, 633 Marshall v Southampton and South West Hampshire AHA [1994] Q.B. 126; [1993] 3 W.L.R. 1054; [1993] 4 All E.R. 586; [1993] E.C.R. I-4367; [1993] 3 C.M.L.R. 293; [1993] I.C.R. 893; [1993] I.R.L.R , 64 European Parliament v Council of Ministers of the European Communities; sub nom. European Development Fund, Re [1994] E.C.R. I-625; [1994] 3 C.M.L.R , 412 Criminal Proceedings against Corbeau [1993] E.C.R. I-2533; [1995] 4 C.M.L.R Criminal Proceedings against Edmond Huygen [1993] E.C.R. I , 130 Kraus v Land Baden-Wuerttemberg [1993] E.C.R. I Dunlop Slazenger International Ltd v Commission of the European Communities [1994] E.C.R. II , 193 Parker Pen Ltd v Commission of the European Communities [1994] E.C.R. II-549; [1995] 5 C.M.L.R , 197 Zunis Holding SA v Commission of the European Communities [1993] E.C.R. II-1169; [1994] 5 C.M.L.R , 511 Dr Tretter GmbH & Co. v Hauptzollamt Stuttgart-Ost [1993] E.C.R. I Comité Central d'entreprise de la Société Générale des Grandes Sources v Commission [1992] E.C.R. II Enderby v Frenchay HA [1994] 1 All E.R. 495; [1993] E.C.R. I-5535; [1994] 1 C.M.L.R. 8; [1994] I.C.R. 112; [1993] I.R.L.R Arnaud v Council of the European Communities [1993] E.C.R. I Fiskano AB v Commission of the European Communities [1994] E.C.R. I-2885; [1995] 3 C.M.L.R Commission of the European Communities v BASF [1994] E.C.R. I Hüls AG v Commission of the European Communities [1999] E.C.R. I-4287; [1999] 5 C.ML.R

164 Table of Cases vii (C-235/92) (C-245/92) (C-275/92) (C-315/92) (C-320/92 P) (C-334/92) (C-393/92) (C-426/92) (C-432/92) (T-3/93) (C-17/93) (C-23/93) (C-51/93) (C-63/93) (C-131/93) (C-135/93) (C-293/93) (C-310/93 P) (C-312/93) (C-334/93) (C-363/93) (C-384/93) (C-417/93) (C-427/93, C-436/93 & C-429/93) (C-430/93 & C-431/93) (T-450/93) Montecatini SpA v Commission of the European Communities [1999] E.C.R. I-4539; [2001] 4 C.M.L.R Chemie Linz GmbH v Commission of the European Communities [1999] E.C.R. I Customs and Excise Commissioners v Schindler [1994] Q.B. 610; [1994] 3 W.L.R. 103; [1994] 2 All E.R. 193; [1994] E.C.R. I-1039; [1995] 1 C.M.L.R , 255, 259, 260 Verband Sozialer Wettbewerb ev v Clinique Laboratories SNC [1994] E.C.R. I , 342 Società Finanziaria Siderurgica Finsider v Commission of the European Communities [1994] E.C.R. I Miret v Fondo de Garantia Salarial [1993] E.C.R. I-6911; [1995] 2 C.M.L.R Gemeente Almelo v Energiebedrijf Ijssellmij NV; sub nom. Commune d'almelo ea v NV Energiebedrijf Ijsselmij; Municipality of Almelo v NV Energibedrijf Ijsselmij [1994] E.C.R. I-1477; [1994] 2 C.E.C Germany v Deutsches Milch-Kontor GmbH [1994] E.C.R. I-2757; [1996] 1 C.M.L.R R. v Ministry of Agriculture, Fisheries and Food Ex p. SP Anastasiou (Pissouri) Ltd; R. v Ministry of Agriculture, Fisheries and Food Ex p. Cypruvex (UK) Ltd [1994] E.C.R. I-3087; [1995] 1 C.M.L.R , 333 Air France v Commission of the European Communities [1994] E.C.R. II , 505, 508 Openbaar Ministerie v van der Veldt [1994] E.C.R. I-3537; [1995] 1 C.M.L.R , 355 TV10 SA v Commissariaat Voor de Media [1994] E.C.R. I-4795; [1995] 3 C.M.L.R. 284; [1995] E.M.L.R Meyhui NV v Schott Ziesel Glaswerke AG [1994] E.C.R. I , 352 McCarthys [1996] E.C.R. I Commission of the European Communities v Germany; sub nom. Crayfish Imports, Re [1994] E.C.R. I-3303; [1995] 2 C.M.L.R Spain v Commission of the European Communities [1995] E.C.R. I Straffesag v Houtwipper [1995] All E.R. (E.C.) 163; [1994] E.C.R. I BPB Industries Plc v Commission of the European Communities; British Gypsum Ltd v Commission of the European Communities [1995] E.C.R. I-865; [1997] 4 C.M.L.R Peterbroeck Van Campenhout & Cie SCS v Belgium [1996] All E.R. (E.C.) 242; [1995] E.C.R. I-4599; [1996] 1 C.M.L.R Bonapharma Arnzeimittel GmbH v Hauptzollamt Krefeld [1995] E.C.R. I-319; [1996] 2 C.M.L.R Rene Lancry SA v Direction Generale des Douanes [1994] E.C.R. I , 350, 351, 357, 359 Alpine Investments BV v Minister van Financien [1995] All E.R. (EC) 543; [1995] E.C.R. I-1141; [1995] 2 B.C.L.C. 214; [1995] 2 C.M.L.R European Parliament v Council of Ministers of the European Communities; sub nom. Continuation of the TACIS Programme, Re [1995] E.C.R. I-1185; [1995] 2 C.M.L.R Bristol Myers Squibb Co v Paranova A/S; Bayer AG v Paranova A/S; CH Boehringer Sohn v Paranova A/S [2003] Ch. 75; [2002] 3 W.L.R. 1746; [1996] E.C.R. I-3457; [1997] 1 C.M.L.R. 1151; [1996] C.E.C. 716; [1996] E.T.M.R. 1; [1997] F.S.R. 102; (1997) 34 B.M.L.R , 346 Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten; Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1996] All E.R. (E.C.) 259; [1995] E.C.R. I-4705; [1996] 1 C.M.L.R. 801; [1996] C.E.C Lisrestal Organização Gestão de Restaurantes Colectivos Ldª v Commission [1994] E.C.R. II , 669

165 viii Table of Cases (C-470/93) (C-479/93) (T-585/93) (C-13/94) (C-25/94) (C-55/94) (C-61/94) (C-68/94 & C-30/95) (C-83/94) (C-120/94) (C-163/94) (C-193/94) (C-194/94) (C-233/94) (C-244/94) (T-260/94) (T-275/94) (T-290/94) (T-305/94) (T-346/94) (T-25/95) (C-32/95 P) (C-68/95) (C-70/95) (T-106/95) Verein Gegen Unwesen in Handel und Gewerbe Koln ev v Mars GmbH [1995] E.C.R. I-1923; [1995] 3 C.M.L.R Francovich v Italy [1995] E.C.R. I-3843; [1997] 2 B.C.L.C. 203; [1996] C.E.C. 441; [1996] I.R.L.R Greenpeace v Commission of the European Communities [1995] E.C.R. II P v S and Cornwall CC; sub nom. P v S (Sex Discrimination) [1996] All E.R. (EC) 397; [1996] E.C.R. I-2143; [1996] 2 C.M.L.R. 247; [1996] C.E.C. 574; [1996] I.C.R. 795; [1996] I.R.L.R. 347; [1996] 2 F.L.R. 347; [1997] 2 F.C.R. 180; [1996] Fam. Law Commission of the European Communities v Council of the European Union [1996] E.C.R. I , 415, 529 Gebhard v Consiglio dell'ordine degli Avvocati e Procuratori di Milano [1996] All E.R. (EC) 189; [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603; [1996] C.E.C. 175; , 79, 84, 351, Commission of the European Communities v Germany; sub nom. International Dairy Agreement, Re [1996] E.C.R. I-3989; [1997] 1 C.M.L.R France v Commission of the European Communities; Societe Commerciale des Potasses et de l'azote (SCPA) v Commission of the European Communities [1998] E.C.R. I-1375; [1998] 4 C.M.L.R Criminal Proceedings against Leifer [1995] E.C.R. I Commission of the European Communities v Hellenic Republic [1996] E.C.R. I-1513; 100 I.L.R Criminal Proceedings against Sanz de Lera [1995] E.C.R. I-4821; [1996] 1 C.M.L.R Criminal Proceedings against Skanavi [1996] All E.R. (EC) 435; [1996] E.C.R. I-929; [1997] R.T.R. 344; [1996] 2 C.M.L.R. 372; [1996] C.E.C , 355 CIA Security International SA v Signalson SA [1996] All E.R. (EC) 557; [1996] E.C.R. I-2201; [1996] 2 C.M.L.R Germany v European Parliament; sub nom. Deposit Guarantee Directive, Re [1997] E.C.R. I-2405; [1997] 3 C.M.L.R Fédération Francaise des Sociétés d'assurance v Ministere de l'agriculture et de la Peche [1995] E.C.R. I-4013; [1996] 4 C.M.L.R. 536; [1996] C.E.C Air Inter SA v Commission of the European Communities [1997] E.C.R. II-997; [1997] 5 C.M.L.R Groupement des Cartes Bancaires (CB) v Commission of the European Communities [1995] All E.R. (E.C.) 717; [1995] E.C.R. II-2169; [1995] 5 C.M.L.R Kaysersberg v Commission of the European Communities [1995] E.C.R. II Limburgse Vinyl Maatschappij NV v Commission of the European Communities; sub nom. PVC Cartel II, Re [1999] E.C.R. II-931; [1999] 5 C.M.L.R France Aviation v Commission of the European Communities [1996] All E.R. (E.C.) 177; [1995] E.C.R. II-2841; [1996] 1 C.M.L.R , 654, 655, 659, , 664, 669 Cimenteries CBR SA v Commission of the European Communities [2000] E.C.R. II-491; [2000] 5 C.M.L.R Commission of the European Communities v Lisrestal Organização Gestão de Restaurantes Colectivos Ldª [1996] E.C.R. I-5393; [1997] 2 C.M.L.R T Port GmbH & Co KG v Bundesanstalt fur Landwirtschaft und Ernahrung [1996] E.C.R. I-6065; [1997] 1 C.M.L.R Sodemare SA v Lombardia [1997] E.C.R. I-3395; [1997] 3 C.M.L.R. 591; [1998] 4 C.M.L.R. 667; [1997] C.E.C Federation Francaise des Societies d'assurance (FFSA) v Commission of the European Communities [1997] E.C.R. II-229; [1997] 2 C.M.L.R

166 Table of Cases ix (C-120/95) (C-124/95) (C-130/95) (C-185/95 P) (C-188/95) (C-267/95 and C-268/95) (C-284/95) (C-321/95 P) (C-337/95) (C-338/95) (C-341/95) (C-355/95 P) (T-16/96) (C-35/96) (T-41/96) (T-42/96) (T-50/96) (C-53/96) (C-56/96) (C-67/96) (C-85/96) (T-102/96) (C-108/96) (C-114/96) (C-129/96) (C-149/96) (C-157/96) Decker v Caisse de Maladie des Employés Privés [1998] E.C.R. I-1831; [1998] 2 C.M.L.R , 345, 542, 543, R. v HM Treasury Ex p. Centro-Com Srl [1997] Q.B. 683; [1997] 3 W.L.R. 239; [1997] All E.R. (EC) 193; [1997] E.C.R. I-81; [1997] 1 C.M.L.R Giloy v Hauptzollamt Frankfurt/M-Ost [1997] E.C.R. I Baustahlgewebe GmbH v Commission of the European Communities [1998] E.C.R. I-8417; [1999] 4 C.M.L.R. 1203; (1999) 18 Tr. L.R Fantask A/S v Industriministeriet (Erhvervsministeriet); sub nom. Fantask A/S v Ministry of Industry and Trade [1998] All E.R. (E.C.) 1; [1997] E.C.R. I-6783; [1998] 1 C.M.L.R. 473; [1998] C.E.C Merck & Co Inc v Primecrown and Beecham Group Plc v Europharm of Worthington Ltd [1996] E.C.R. I-6285; [1986] 1 C.M.L.R Safety Hi-Tech Srl v S&T Srl [1998] E.C.R. I-4301; [1999] 2 C.M.L.R Stichting Greenpeace Council (Greenpeace International) v Commission of the European Communities [1998] All E.R. (E.C.) 620; [1998] E.C.R. I-1651; [1998] 3 C.M.L.R. 1; [1999] Env. L.R Parfums Christian Dior SA v Evora BV [1997] E.C.R. I-6013; [1998] 1 C.M.L.R. 737; [1998] C.E.C. 91; [1998] E.T.M.R. 26; [1998] R.P.C Wiener SI GmbH v Hauptzollamt Emmerich [1997] E.C.R. I-6495; [1998] 1 C.M.L.R Gianni Bettati v Safety Hi-Tech Srl [1998] E.C.R. I , 352, 355 Textilwerke Deggendorg GmbH (TWD) v Commission of the European Communities [1997] E.C.R. I-2549; [1998] 1 C.M.L.R Cityflyer Express Ltd v Commission of the European Communities [1998] E.C.R. II-757; [1998] 2 C.M.L.R Commission of the European Communities v Italy [1988] E.C.R. I-3851; [1998] C.M.L.R Bayer AG v Commission of the European Communities [2001] All E.R. (EC) 1; [2000] E.C.R. II-3383; [2001] 4 C.M.L.R. 4; [2001] I.C.R. 735; (2002) 63 B.M.L.R , 402 Eyckeler & Malt AG v Commission of the European Communities [1998] E.C.R. II-401; [1998] 3 C.M.L.R , 655, 661 Primex Produkte Import-Export GmbH & Co KG v Commission of the European Communities [1998] E.C.R. II-3773; [1999] 1 C.M.L.R , 655 Hermès International v FHT Marketing Choice BV [1998] E.C.R. I-3603; [1998] E.T.M.R. 425; [1998] I.L.Pr. 630; [1999] R.P.C , 419, 527 VT4 Ltd v Vlaamse Gemeenschap [1997] E.C.R. I-3143; [1997] 3 C.M.L.R. 1225; [1997] C.E.C. 1309; [1999] E.M.L.R , 624 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie [1999] E.C.R. I-5751; [2000] 4 C.M.L.R , 235, 755 Martínez Sala v Freistaat Bayern [1998] E.C.R. I , 709 Gencor Ltd v Commission of the European Communities [1999] All E.R. (EC) 289; [1999] E.C.R. II-753; [1999] B.C.C. 877; [1999] 4 C.M.L.R. 971; [1999] C.E.C Criminal Proceedings against MacQuen; sub nom. Criminal Proceedings against MacQueen [2001] E.C.R. I-837; [2002] 1 C.M.L.R Criminal Proceedings against Kieffer; Criminal Proceedings against Thill [1997] E.C.R. I-3629; [1997] 3 C.M.L.R , 356 Inter-Environnement Wallonie ASBL v Region Wallonie; sub nom. Inter-Environnement Wallonie Asbl v Region Wallonne; Inter-Environnement Wallonie Asbl v Region Wallone [1998] All E.R. (E.C.) 155; [1997] E.C.R. I-7411; [1998] 1 C.M.L.R. 1057; [1998] Env. L.R , 598 Portugal v Council of the European Union [1999] E.C.R. I R. v Ministry of Agriculture, Fisheries and Food Ex p. National Farmers' Union [1998] E.C.R. I

167 x Table of Cases (C-158/96) (C-180/96) (C-231/96) (C-326/96) (C-348/96) (C-390/96) (C-124/97) (T-125/97) (C-126/97) (T-186/97) (C-212/97) (T-290/97) (C-292/97) (C-307/97) (C-378/97) (C-414/97) (T-598/97) (C-58/98) (C-67/98) (C-78/98) (T-112/98) (C-205/98) (C-215/98) (C-220/98) Kohll v Union des Caisses de Maladie [1998] E.C.R. I-1931; [1998] 2 C.M.L.R , 433, 542, 543, United Kingdom v Commission of the European Communities [1998] E.C.R. I-2265; [1998] 2 C.M.L.R. 1125; (1998) 17 Tr. L.R , 638 Edilizia Industriale Siderurgica Srl (EDIS) v Ministero delle Finanze [1998] E.C.R. I-4951; [1999] 2 C.M.L.R. 995; [1999] C.E.C Levez v TH Jennings (Harlow Pools) Ltd [1999] All E.R. (EC) 1; [1998] E.C.R. I-7835; [1999] 2 C.M.L.R. 363; [1999] C.E.C. 3; [1999] I.C.R. 521; [1999] I.R.L.R , 57, 60 Criminal Proceedings against Calfa; sub nom. Calfa, Re [1999] All E.R. (EC) 850; [1999] E.C.R. I-11; [1999] 2 C.M.L.R. 1138; [1999] C.E.C. 477; [1999] I.N.L.R. 333; (1999) 96(19) L.S.G Lease Plan Luxembourg SA v Belgium [1998] S.T.C. 628; [1998] E.C.R. I-2553; [1998] 2 C.M.L.R. 583; [1999] C.E.C. 374; [1998] B.T.C. 5404; [1998] B.V.C Markku Juhani Läärä v Kihlakunnansyyttaja (Jyvaskyla) and the Finnish State (Läärä) [1999] E.C.R. I-6067; [2001] 2 C.M.L.R , 255, 256 Coca-Cola Co v Commission of the European Communities [2000] All E.R. (EC) 460; [2000] E.C.R. II-1733; [2000] 5 C.M.L.R Eco Swiss China Time Ltd v Benetton International NV [1999] 2 All E.R. (Comm) 44; [1999] E.C.R. I-3055; [1999] U.K.C.L.R. 183; [2000] 5 C.M.L.R Kaufring AG v Commission of the European Communities [2001] E.C.R. II-1337; [2001] 2 C.M.L.R Centros Ltd v Erhvervs- og Selskabsstyrelsen [2000] Ch. 446; [2000] 2 W.L.R. 1048; [2000] All E.R. (EC) 481; [1999] E.C.R. I-1459; [1999] B.C.C. 983; [2000] 2 B.C.L.C. 68; [1999] 2 C.M.L.R. 551; [2000] C.E.C , 75, 79, 80, , 636 Mehibas Dordtselaan BV v Commission of the European Communities [2000] E.C.R. II-15; [2000] 2 C.M.L.R , 655 Proceedings brought by Kjell Karlsson [2000] E.C.R. I Compagnie de Saint-Gobain, Zweigniederlassung Germany v Finanzamt Aachen-Innenstadt [2000] S.T.C. 854; [1999] E.C.R. I-6161; [2001] 3 C.M.L.R , 82 Criminal Proceedings against Wijsenbeek, Re; sub nom. Wijsenbeek, Re [1999] E.C.R. I-6207; [2001] 2 C.M.L.R. 53; [2000] I.N.L.R Commission of the European Communities v Spain [1999] E.C.R. I-5585; [2001] 2 C.M.L.R British Shoe Corp Footwear Supplies Ltd v Council of the European Union; sub nom. BSC Footwear Supplies v Council of the European Union [2002] All E.R. (EC) 385; [2002] E.C.R. II-1155; [2002] 2 C.M.L.R Criminal Proceedings against Josef Corsten [2000] E.C.R. I Questore di Verona v Zenatti [1999] E.C.R. I-7289; [2000] 1 C.M.L.R , 249, 254, 255, 636 Preston v Wolverhampton Healthcare NHS Trust; Fletcher v Midland Bank Plc [2001] 2 A.C. 415; [2001] 2 W.L.R. 408; [2000] All E.R. (EC) 714; [2000] E.C.R. I-3201; [2000] 2 C.M.L.R. 837; [2000] C.E.C. 587; [2000] I.C.R. 961; [2000] I.R.L.R. 506; [2000] O.P.L.R. 115; [2000] Pens. L.R Mannesmannröhren-Werke AG v Commission of the European Communities [2001] E.C.R. II-729; [2001] 5 C.M.L.R Commission of the European Communities v Austria (Alpine transit tolls)[2000] E.C.R. I Commission of the European Communities v Greece (Batteries recycling) [1999] E.C.R. I Estee Lauder Cosmetics GmbH & Co OHG v Lancaster Group GmbH [2000] All E.R. (EC) 122; [2000] E.C.R. I-117; [2000] 1 C.M.L.R. 515; [2000] C.E.C

168 Table of Cases xi (C-238/98) (C-240/98 C-244/98) (C-246/98) (C-251/98) (C-254/98) (C-300/98 & C-393/98) (C-324/98) (C-368/98) (C-376/98 & C-74/99) (C-379/98) (C-446/98) (C-462/98 P) (C-466/98) (C-3/99) (T-9/99) (T-13/99) (T-13/99 R) (T-23/99) (C-36/99) (T-59/99) (C-120/99) (C-124/99) (C-157/99) (C-169/99) (C-184/99) (C-199/99 P) (T-212/99) Hocsman v Ministre de l'emploi et de la Solidarite [2000] All E.R. (EC) 899; [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025; [2000] C.E.C Océano Grupo Editorial SA v Quintero [2000] E.C.R. I-4941; [2002] C.M.L.R Criminal Proceedings against Berendse-Koenen M.G. en Berendse H.D. Maatschap [2000] E.C.R. I Baars v Inspecteur der Belastingdienst Particulieren/Ondernemingen Gorinchem [2000] E.C.R. I-2787; [2002] 1 C.M.L.R. 49; 2 I.T.L. Rep , 82 Schutzverband gegen Unlauteren Wettbewerb v TK-Heimdienst Sass GmbH [2000] E.C.R. I-151; [2002] 1 C.M.L.R Parfums Christian Dior SA v TUK Consultancy BV; Assco Gerüste GmbH and Rob van Dijke v Wilhelm Layer GmbH & Co [2000] E.C.R. I-11307; [2001] E.T.M.R. 26; [2001] E.C.D.R Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria AG [2000] E.C.R. I Vanbraekel v Alliance Nationale des Mutualites Chrétiennes (ANMC) [2002] E.C.R. I-5363; [2002] E.C.R. I , 432, 433, 434, , 438, 439, 543, 553, 554, 556, 752 Germany v European Parliament; R. v Secretary of State for Health Ex p. Imperial Tobacco Ltd [2000] All E.R. (EC) 769; [2000] E.C.R. I-8419; [2000] 3 C.M.L.R PreussenElektra AG v Schleswag AG [2001] All E.R. (EC) 330; [2001] E.C.R. I-2099; [2001] 2 C.M.L.R. 36; [2001] C.E.C. 217; [2002] Env. L.R Fazenda Pública v Câmara Municipal do Porto [2001] S.T.C. 560; [2000] E.C.R. I-11435; [2001] B.T.C. 5414; [2001] B.V.C. 493; [2000] S.T.I Mediocurso v Commission [2000] E.C.R. I Commission of the European Communities v United Kingdom; sub nom. Open Skies Agreement, Re [2002] E.C.R. I-9427; [2003] 1 C.M.L.R Cidrerie Ruwet SA v Cidre Stassen SA [2000] E.C.R. I-8749; [2000] 3 C.M.L.R , 345 HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbh & Co KG v Commission of the European Communities [2002] E.C.R. II Pfizer Animal Health SA v Council of the European Union [2002] E.C.R. II Pfizer Animal Health SA v Council of the European Union [1999] E.C.R. II-1961; [1999] 3 C.M.L.R , 273, 274 LR AF 1998 A/S (formerly Logstor Ror A/S) v Commission of the European Communities; sub nom. Pre Insulated Pipe Cartel, Re [2002] E.C.R. II-1705; [2002] 5 C.M.L.R , 198 Ideal Tourisme SA v Belgium [2001] S.T.C. 1386; [2000] E.C.R. I-6049; [2001] 3 C.M.L.R. 45; [2000] S.T.I Ventouris Group Enterprises SA v Commission of the European Communities [2003] E.C.R. II-5257; [2005] 5 C.M.L.R , 197 Italian Republic v Council of the European Union [2001] E.C.R. I Carl Borawitz v Landesversicherungsanstalt Westfalen [2000] E.C.R. I Geraets-Smits v Stichting Ziekenfonds VGZ; Peerbooms v Stichting CZ Groep Zorgverzekeringen [2002] Q.B. 409; [2002] 2 W.L.R. 154; [2003] All E.R. (EC) 481; [2001] E.C.R. I-5473; [2002] 2 C.M.L.R. 21; (2001) 62 B.M.L.R , 553, 752 Hans Schwarzkopf GmbH & Co. KG v Zentrale zur Bekämpfung unlauteren Wettbewerbs ev [2001] E.C.R. I , 342, 352 Grzelczyk v Centre Public d'aide Sociale d'ottignies Louvain la Neuve [2003] All E.R. (EC) 385; [2001] E.C.R. I-6193; [2002] 1 C.M.L.R. 19; [2002] I.C.R , 714 Corus UK v Commission of the European Communities [2003] E.C.R. I Intervet International v Commission of the European Communities [2002] E.C.R. II , 275

169 xii Table of Cases (C-238/99 P & C-244/99 P) (C-309/99) (T-319/99) (C-324/99) (T-342/99) (C-381/99) (C-385/99) (C-393/99 & C-394/99) (C-403/99) (C-413/99) (C-453/99) (C-482/99) (C-497/99 P) (C-12/00) (C-50/00 P) (C-60/00) (T-67/00) (T-74/00) (C-76/00 P) (T-102/00) (C-112/00) (C-123/00) Limburgse Vinyl Maatschappij NV (LVM) v Commission of the European Communities; DSM Kunststoffen BV v Commission of the European Communities [2002] E.C.R. I-8375; [2003] 4 C.M.L.R , 194, 473 Wouters v Algemene Raad van de Nederlandse Orde van Advocaten [2002] All E.R. (EC) 193; [2002] E.C.R. I-1577; [2002] 4 C.M.L.R. 27; [2002] C.E.C Federacion Nacional de Empresas de Instrumentacion Cientifica Medica Tecnica y Dental (FENIN) v Commission of the European Communities [2004] All E.R. (EC) 300; [2003] E.C.R. II-357; [2003] 5 C.M.L.R. 1; (2003) 72 B.M.L.R DaimlerChrysler AG v Land Baden-Wurttemberg [2002] Q.B. 1102; [2002] 3 W.L.R. 694; [2001] E.C.R. I-9897; [2002] Env. L.R. D , 359 Airtours Plc v Commission of the European Communities [2002] All E.R. (EC) 783; [2002] E.C.R. II-2585; [2002] U.K.C.L.R. 642; [2002] 5 C.M.L.R Brunnhofer v Bank der Osterreichischen Postsparkasse AG [2001] All E.R. (EC) 693; [2001] E.C.R. I-4961; [2001] 3 C.M.L.R. 9; [2001] I.R.L.R. 571; [2001] Emp. L.R Muller-Faure v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA; Van Riet v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA [2004] Q.B. 1081; [2004] 3 W.L.R. 374; [2005] All E.R. (EC) 62; [2003] E.C.R. I-4509; [2004] 2 C.M.L.R. 33; (2004) 80 B.M.L.R , 552, 752 Institut National d'assurances Sociales pour Travailleurs Independants (INASTI) v Hervein; Institut National d'assurances Sociales pour Travailleurs Independants (INASTI) v Lorthiois [2002] E.C.R. I-2829; [2002] 2 C.M.L.R Italy v Commission of the European Communities [2001] E.C.R. I Baumbast v Secretary of State for the Home Department [2002] E.C.R. I-7091; [2002] 3 C.M.L.R. 23; [2003] I.C.R. 1347; [2003] I.N.L.R , 712, 719 Courage Ltd v Crehan; sub nom. Crehan v Courage Ltd [2002] Q.B. 507; [2001] 3 W.L.R. 1646; [2001] All E.R. (EC) 886; [2001] E.C.R. I-6297; [2002] U.K.C.L.R. 171; [2001] 5 C.M.L.R. 28; [2001] C.E.C. 297; [2002] I.C.R France v Commission of the European Communities; sub nom. Aid to Stardust Marine, Re [2003] All E.R. (EC) 330; [2002] E.C.R. I-4397; [2002] 2 C.M.L.R. 41; [2002] C.E.C Irish Sugar Plc v Commission of the European Communities [2001] E.C.R. I-5333; [2001] 5 C.M.L.R Commission of the European Communities v Spain; sub nom. Marketing of Chocolate, Re [2003] E.C.R. I-459; [2005] 2 C.M.L.R Unión de Pequeños Agricultores (UPA) v Council [2003] Q.B. 893; [2003] 2 W.L.R. 795; [2002] All E.R. (EC) 893; [2002] E.C.R. I-6677; [2002] 3 C.M.L.R , 55, 56, 69, , 507, 513, 581 Carpenter v Secretary of State for the Home Department [2003] Q.B. 416; [2003] 2 W.L.R. 267; [2003] All E.R. (EC) 577; [2002] E.C.R. I-6279; [2002] 2 C.M.L.R. 64; [2003] 2 F.C.R. 711; [2002] I.N.L.R , 718 JFE Engineering Corp v Commission of the European Communities [2004] E.C.R. II-2501; [2005] 4 C.M.L.R Artegodan GmbH v Commission of the European Communities [2002] E.C.R. II-4945; (2003) 72 B.M.L.R Petrotub SA and Republica SA v Council of the European Union [2003] E.C.R. I Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission [2003] E.C.R. II Eugen Schmidberger Internationale Transporte Planzuge v Austria [2003] E.C.R. I-5659; [2003] 2 C.M.L.R Criminal Proceedings against Christina Bellamy and English Shop Wholesale SA [2001] E.C.R. I

170 Table of Cases xiii (C-129/00) (C-136/00) (T-144/00) (C-159/00) (T-189/00 R) (C-208/00) (C-218/00) (T-220/00) (C-221/00) (C-253/00) (C-280/00) (C-294/00) (T-310/00) (C-317/00 P(R)) (T-342/00 R) (T-344/00 & T-345/00) (T-372/00) (T-374/00) (C-378/00) (C-453/00) (C-457/00) (T-158/00) (C-442/00) (C-469/00) (C-473/00) (C-2/01P & C-3/01P) (C-6/01) (C-56/01) Commission of the European Communities v Italy; sub nom. Law on Recovery of Taxes Levied in Breach of EC Law, Re [2003] E.C.R. I-14637; [2006] 2 C.M.L.R Danner v Finland [2002] S.T.C. 1283; [2002] E.C.R. I-8147; [2002] 3 C.M.L.R. 29; [2003] C.E.C. 156; [2003] O.P.L.R. 293; [2002] Pens. L.R. 469; 5 I.T.L. Rep. 119; [2002] S.T.I Biret International SA v Council of the European Union [2002] E.C.R. II , 383 Sapod Audic v Eco-Emballages [2002] E.C.R. I-5031; [2002] 3 C.M.L.R Invest Import und Export and Invest Commerce v Commission [2000] E.C.R. II , 661, 663 Überseering BV v Nordic Construction Co Baumanagement GmbH [2005] 1 W.L.R. 315; [2002] E.C.R. I-9919; [2005] 1 C.M.L.R , 80, 81, 82 Cisal di Battistello Venanzio & Co SAS v Istituto Nazionale per l'assicurazione contro gli Infortuni sul Lavoro (INAIL) [2002] E.C.R. I-691; [2002] 4 C.M.L.R Cheil Jedang v Commission of the European Communities [2003] E.C.R. II Commission of the European Communities v Austria [2003] E.C.R. I-1007; (2004) 76 B.M.L.R , 358, 360 Antonio Muñoz y Cia SA v Frumar Ltd [2003] Ch. 328; [2003] 3 W.L.R. 58; [2003] All E.R. (EC) 56; [2002] E.C.R. I-7289; [2002] 3 C.M.L.R Altmark Trans and Regierungspräsidium Magdeburg (C-280/00) [2003] E.C.R. I-7747; [2003] C.M.L.R , 242, 565 Deutsche Paracelsusschulen v Gräbner [2002] E.C.R. I MCI Inc v Commission of the European Communities [2004] E.C.R. II-3253; [2004] 5 C.M.L.R Invest Import und Export and Invest Commerce v Commission [2000] E.C.R. I Petrolessence SA v Commission of the European Communities [2001] E.C.R. II-67; [2003] 5 C.M.L.R , 505 CEVA Santé Animale and Pharmacia Enterprises v Commission of the European Communities [2003] E.C.R. II , 275 Campolargo v Commission of the European Communities [2002] E.C.R. II Verband der Freien Rohrwerke ev v Commission of the European Communities [2003] E.C.R. II-2275; [2004] 5 C.M.L.R , 514, 521 Commission of the European Communities v European Parliament [2003] All E.R. (EC) 421; [2003] E.C.R. I Kuhne & Heitz NV v Productschap voor Pluimvee en Eieren [2004] E.C.R. I-837; [2006] 2 C.M.L.R , 584 Belgium v Commission of the European Communities [2003] E.C.R. I Arbeitsgemeinschaft der Offentlich Rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (ARD) v Commission of the European Communities [2003] E.C.R. II-3825; [2004] 5 C.M.L.R Caballero v Fondo de Garantia Salarial (FOGASA) [2002] E.C.R. I-11915; [2003] I.R.L.R Ravil Sàrl v Bellon Import Sàrl [2003] E.C.R. I-5053; [2004] E.T.M.R. 22; (2003) 26(6) I.P.D Cofidis SA v Jean Louis Fredout [2002] E.C.R. I Bayer v Commission; Bundesverband der Arzneimittel Importeure v Bayer [2004] E.C.R. I-23; [2004] C.M.L.R Associação Nacional de Operadores de Máquinas Recreativas (ANOMAR) v Portugal; sub nom. Associação Nacional de Operadores de Máquinas Recreativas (ANOMAR) v Estado Portugues [2003] E.C.R. I-8621; [2004] 1 C.M.L.R Inizan v Caisse Primaire d'assurance Maladie des Hauts de Seine [2003] E.C.R. I-12403; [2006] 1 C.M.L.R , 552, 554, 752

171 xiv Table of Cases (T-66/01) (C-79/01) (C-99/01) (C-108/01) (T-151/01) (C-167/01) (T-168/01) (T-177/01) (C-187/01 & C-385/01) (C-189/01) (C-192/01) (T-198/01) (T-203/01) (C-224/01) (C-236/01) (T-236/01, T-239/01, T-244/01 (T-241/01) (C-243/01) (C-264/01) (T-310/01) (T-315/01) (C-322/01) (C-397/01) (T-306/01) (C-475/01) Imperial Chemical Industries Ltd v European Commission; sub nom. Soda Ash Cartel, Re [2011] 4 C.M.L.R Payroll Data Services (Italy) Srl, Re [2002] E.C.R. I-8923; [2004] 3 C.M.L.R Criminal proceedings against Gottfried Linhart and Hans Biffl [2002] E.C.R. I , 358 Consorzio del Prosciutto di Parma v Asda Stores Ltd [2003] E.C.R. I-5121; [2003] 2 C.M.L.R. 21; [2004] E.T.M.R. 23; (2003) 26(6) I.P.D ; Der Grune Punkt - Duales System Deutschland GmbH v Commission of the European Communities [2007] E.C.R. II-1607; [2007] 5 C.M.L.R. 4; [2007] E.T.M.R Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd [2003] E.C.R. I-10155; [2005] 3 C.M.L.R , 80 GlaxoSmithKline Services Unlimited v Commission of the European Communities [2006] E.C.R. II-2969; [2006] 5 C.M.L.R. 29; [2010] Bus. L.R. D , 398, 402 Jégo-Quéré v Commission of the European Communities [2003] Q.B. 854; [2003] 2 W.L.R. 783; [2002] All E.R. (EC) 932; [2002] E.C.R. II-2365; [2002] 2 C.M.L.R , 506 Criminal Proceedings against Gözutok; Criminal Proceedings against Brugge [2003] E.C.R. I-1345; [2003] 2 C.M.L.R Jippes v Minister van Landbouw, Natuurbeheer en Visserij [2001] E.C.R. I Commission of the European Communities v Denmark; sub nom. Prohibition of Marketing of Enriched Foods, Re [2003] E.C.R. I-9693; [2003] 3 C.M.L.R Technische Glaswerke Ilmenau GmbH v Commission of the European Communities [2004] E.C.R. II-2717; [2004] 3 C.M.L.R Manufacture Francaise des Pneumatiques Michelin v Commission of the European Communities [2003] E.C.R. II-4071; [2004] 4 C.M.L.R Kobler v Austria [2004] Q.B. 848; [2004] 2 W.L.R. 976; [2004] All E.R. (EC) 23; [2003] E.C.R. I-10239; [2003] 3 C.M.L.R , 547, 549, 581 Monsanto Agricoltura Italia SpA v Presidenza del Consiglio dei Ministri [2003] E.C.R. I Tokai Carbon Co Ltd v Commission of the European Communities; SGL Carbon AG v Commission of the European Communities; Nippon Carbon Co Ltd v Commission of the European Communities; Showa Denko KK v Commission of the European Communities (T-245/01); GrafTech International Ltd v Commission of the European Communities (T-246/01); SEC Corp v Commission of the European Communities (T-251/01); Carbide/Graphite Group Inc v Commission of the European Communities (T-252/01) [2004] E.C.R. II-1181; [2004] 5 C.M.L.R Scandinavian Airlines System AB v Commission of the European Communities [2005] E.C.R. II-2917; [2005] 5 C.M.L.R Criminal Proceedings against Gambelli [2003] E.C.R. I-13031; [2006] 1 C.M.L.R , 249, 250, 253, , 259, 260, 262, 642 AOK Bundesverband v Ichthyol Gesellschaft Cordes [2004] E.C.R. I-2493; [2004] 4 C.M.L.R , 233, 235 Schneider Electric SA v Commission of the European Communities [2004] All E.R. (EC) 314; [2002] E.C.R. II-4071; [2003] 4 C.M.L.R Kadi v Council of the European Union [2005] E.C.R. II , 652 Deutscher Apothekerverband ev v 0800 DocMorris NV [2003] E.C.R. I-14887; [2005] 1 C.M.L.R. 46; (2005) 81 B.M.L.R , 618 Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut ev [2004] E.C.R. I-8835; [2005] 1 C.M.L.R. 44; [2005] I.C.R. 1307; [2005] I.R.L.R Yusuf v Council of the European Union [2006] All E.R. (EC) 290; [2005] E.C.R. II-3533; [2005] 3 C.M.L.R Commission of the European Communities v Greece (Ouzo) [2004] E.C.R. I , 357, 358, 359

172 Table of Cases xv (C-491/01) (T-5/02) (C-8/02) (C-9/02) (C-14/02) (T-15/02) (T-17/02) (C-25/02) (C-36/02) (T-38/02) (C-42/02) (T-44/02) (T-49/02) (C-71/02) (C-93/02 P) (T-109/02) (T-114/02) (T-119/02) (C-148/02) (C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P) (T-189/02) (C-200/02) (C-224/02) (T-228/02) R. (on the application of British American Tobacco (Investments) Ltd) v Secretary of State for Health; sub nom. R. v Secretary of State for Health Ex p. British American Tobacco (Investments) Ltd [2003] All E.R. (EC) 604; [2002] E.C.R. I-11453; [2003] 1 C.M.L.R. 14; [2003] C.E.C. 53; [2003] E.T.M.R. CN10; [2003] E.T.M.R. CN Tetra Laval BV v Commission of the European Communities [2003] All E.R. (EC) 762; [2002] E.C.R. II-4381; [2002] 5 C.M.L.R Leichtle v Bundesanstalt fur Arbeit [2004] E.C.R. I-2641; [2006] 3 C.M.L.R De Lasteyrie du Saillant v Ministere de l'economie, des Finances et de l'industrie [2005] S.T.C. 1722; [2004] E.C.R. I-2409; [2004] 3 C.M.L.R. 39; [2006] B.T.C. 105; 6 I.T.L. Rep. 666; [2004] S.T.I ATRAL SA v Belgium [2003] E.C.R. I-4431; [2006] 1 C.M.L.R BASF AG v Commission of the European Communities; sub nom. Vitamins Cartel, Re [2006] E.C.R. II-497; [2006] 5 C.M.L.R , 195, 206, 468 Fred Olsen v Commission of the European Communities [2005] E.C.R. II Katharina Rinke v Ärztekammer Hamburg [2003] E.C.R. I Omega Spielhallen- und Automatenaufstellungs GmbH v Bundesstadt Bonn [2004] E.C.R. I-9609; [2005] 1 C.M.L.R. 5; [2005] C.E.C , 717 Groupe Danone v Commission of the European Communities [2005] E.C.R. II-4407; [2006] 4 C.M.L.R , 194 Proceedings brought by Lindman; sub nom. Lindman v Skatterattelsnamnden [2005] S.T.C. 873; [2003] E.C.R. I-13519; [2004] 1 C.M.L.R. 38; [2003] S.T.I , 256, 263 Dresdner Bank AG v Commission of the European Communities [2007] 4 C.M.L.R Brasserie Nationale SA v Commission of the European Communities; sub nom. Luxembourg Brewers Cartel, Re [2005] E.C.R. II-3033; [2006] 4 C.M.L.R , 462 Herbert Karner Industrie Auktionen GmbH v Troostwijk GmbH [2004] E.C.R. I-3025; [2004] 2 C.M.L.R. 5; [2004] C.E.C. 327; [2005] E.T.M.R , 342 Biret International SA v Council of the European Union [2003] E.C.R. I-10497; [2006] 1 C.M.L.R Bollore SA v Commission of the European Communities [2007] E.C.R. II-947; [2007] 5 C.M.L.R Babyliss SA v Commission of the European Communities [2003] E.C.R. II-1279; [2004] 5 C.M.L.R , 509, 513 Royal Philips Electronics NV v Commission of the European Communities [2003] E.C.R. II-1433; [2003] 5 C.M.L.R , 504, 521 Carlos Garcia Avello v Belgium [2004] All E.R. (EC) 740; [2003] E.C.R. I-11613; [2004] 1 C.M.L.R , 161, 162, 710, 711 Dansk Rørindustri v Commission of the European Communities [2005] E.C.R. I-5425; [2005] C.M.L.R , 197, 460 Ente per le Ville vesuviane v Commission [2007] E.C.R. II Chen v Secretary of State for the Home Department; Zhu v Secretary of State for the Home Department [2005] Q.B. 325; [2004] 3 W.L.R. 1453; [2005] All E.R. (EC) 129; [2004] E.C.R. I-9925; [2004] 3 C.M.L.R. 48; [2004] C.E.C. 503; [2004] Imm. A.R. 754; [2005] I.N.L.R , 712, 713, 714, Pusa v Osuuspankkien Keskinainen Vakuutusyhtio [2004] All E.R. (EC) 797; [2004] S.T.C. 1066; [2004] E.C.R. I-5763; [2004] 2 C.M.L.R. 23; [2004] S.T.I Organisation des Modjahedines du Peuple d'iran v Council of the European Union [2007] All E.R. (EC) 447; [2006] E.C.R. II-4665; [2007] 1 C.M.L.R , 658, 659, 660,

173 xvi Table of Cases (C-239/02) (T-259/02, T-260/02, T-261/02, T-262/02, T-263/02, T-264/02 & T-271/02) (C-262/02) (C-263/02 P) (T-279/02) (T-282/02) (C-299/02) (C-302/02) (C-334/02) (T-346/02) (C-365/02) (C-434/02) (C-442/02) (C-456/02) (C-12/03 P) (T-47/03) (C-53/03) (T-53/03) (T-54/03) (T-71/03) (C-88/03) (C-105/03) (C-131/03 P) Douwe Egberts NV v Westrom Pharma NV [2004] E.C.R. I-7007; [2005] 2 C.M.L.R Raiffeisen Zentralbank Osterreich AG v Commission of the European Communities; Bank Austria Creditanstalt AG v Commission of the European Communities; Anteilsverwaltung BAWAG PSK AG v Commission of the European Communities; Raiffeisenlandesbank Niederosterreich-Wien AG v Commission of the European Communities; BAWAG PSK Bank fur Arbeit und Wirtschaft und Osterreichische Postsparkasse AG v Commission of the European Communities; Erste Bank der Osterreichischen Sparkassen AG v Commission of the European Communities; Osterreichische Volksbanken AG v Commission of the European Communities; sub nom. Austrian Banks Cartel (Lombard Club), Re [2006] E.C.R. II-5169; [2007] 5 C.M.L.R Commission of the European Communities v France [2005] All E.R. (EC) 157; [2004] E.C.R. I-6569; [2004] 3 C.M.L.R Commission v Jégo-Quéré [2005] Q.B. 237; [2005] 2 W.L.R. 179; [2004] All E.R. (EC) 983; [2004] E.C.R. I-3425; [2004] 2 C.M.L.R. 12; [2004] C.E.C , 506 Degussa AG v Commission of the European Communities [2006] E.C.R. II-897; [2008] 5 C.M.L.R , 196 Cementbouw Handel & Industrie BV v Commission of the European Communities [2006] E.C.R. II-319; [2006] 4 C.M.L.R Commission of the European Communities v Netherlands [2004] E.C.R. I Nils Laurin Effing [2005] E.C.R. I-553; [2005] 1 C.M.L.R. 43; [2005] C.E.C. 457; [2005] 1 F.C.R Commission of the European Communities v France; sub nom. Levy to Income on Investments, Re [2007] S.T.C. 54; [2004] E.C.R. I-2229; [2005] 2 C.M.L.R. 24; [2006] 1 C.M.L.R. 44; [2006] B.T.C. 55; 6 I.T.L. Rep. 642; [2004] S.T.I Cableuropa SA v Commission of the European Communities [2003] E.C.R. II-4251; [2004] 5 C.M.L.R Lindfors, Re (C-365/02); sub nom. Lindfors v Finland [2005] All E.R. (EC) 745; [2004] E.C.R. I-7183; [2004] 3 C.M.L.R Arnold André GmbH & Co KG v Landrat des Kreises Herford [2004] E.C.R. I-11825; [2005] 1 C.M.L.R , 352 Caixa Bank France v Ministère de l'économie, des Finances et de l'industrie [2004] E.C.R. I-8961; [2005] 1 C.M.L.R. 2; [2005] C.E.C , 79, 85, 625, 626 Trojani v Centre Public d'aide Sociale de Bruxelles (CPAS) [2004] All E.R. (EC) 1065; [2004] E.C.R. I-7573; [2004] 3 C.M.L.R. 38; [2005] C.E.C Commission of the European Communities v Tetra Laval BV [2005] All E.R. (EC) 1059; [2005] E.C.R. I-987; [2005] 4 C.M.L.R , 472 Jose Maria Sison v Council of the European Union [2007] E.C.R. II-73; [2007] 3 C.M.L.R , 658, 659, 663 Synetairismos Farmakopoion Aitolias & Akarnanias (SYFAIT) v Glaxosmithkline Plc [2005] E.C.R. I-4609; [2005] 5 C.M.L.R , 400, 401, 403 BPB Plc v Commission of the European Communities [2008] E.C.R. II-1333; [2008] 5 C.M.L.R Lafarge SA v Commission of the European Communities [2008] E.C.R. II , 463, 473 Tokai Carbon Co Ltd v Commission of the European Communities [2005] E.C.R. II-10; [2005] 5 C.M.L.R , 194 Portugal v Commission of the European Communities; sub nom. Income Tax Reductions in the Azores, Re [2007] S.T.C. 1032; [2006] E.C.R. I-7115; [2006] 3 C.M.L.R. 45; [2006] S.T.I Criminal Proceedings against Pupino [2006] Q.B. 83; [2005] 3 W.L.R. 1102; [2006] All E.R. (EC) 142; [2005] E.C.R. I-5285; [2005] 2 C.M.L.R. 63; [2006] C.E.C , 526 RJ Reynolds Tobacco Holdings Inc v Commission of the European Communities [2006] E.C.R. I-7795; [2007] 1 C.M.L.R

174 Table of Cases xvii (C-134/03) (C-145/03) (C-173/03) (C-176/03) (C-204/03) (C-205/03 P) (C-209/03) (C-210/03) (C-212/03) (T-217/03) (C-231/03) (T-252/03) (T-252/03 R) (C-265/03) (C-266/03) (T-271/03) (T-289/03) (C-323/03) (T-340/03) (T-350/03) (C-380/03) (T-410/03) Viacom Outdoor Srl v Giotto Immobilier Sarl [2005] E.C.R. I-1167; [2006] 1 C.M.L.R Keller v Instituto Nacional de la Seguridad Social (INSS) [2005] E.C.R. I , 752 Traghetti del Mediterraneo SpA (In Liquidation) v Italy [2006] All E.R. (EC) 983; [2006] E.C.R. I-5177; [2006] 3 C.M.L.R , 584 Commission of the European Communities v Council of the European Union [2006] All E.R. (EC) 1; [2005] E.C.R. I-7879; [2005] 3 C.M.L.R. 20; [2006] Env. L.R Commission of the European Communities v Spain [2006] S.T.C. 1087; [2005] E.C.R. I-8389; [2006] C.E.C. 31; [2009] B.V.C. 875; [2005] S.T.I Federación Española de Empresas de Tecnología Sanitaria (FENIN) v Commission of the European Communities [2006] E.C.R. I-6295; [2006] 5 C.M.L.R , 310, 755 R. (on the application of Bidar) v Ealing LBC [2005] Q.B. 812; [2005] 2 W.L.R. 1078; [2005] All E.R. (EC) 687; [2005] E.C.R. I-2119; [2005] 2 C.M.L.R. 3; [2005] C.E.C. 607; [2005] E.L.R , 709 R. (on the application of Swedish Match AB) v Secretary of State for Health; sub nom. Swedish Match AB v Secretary of State for Health [2004] E.C.R. I-11893; [2005] 1 C.M.L.R , 352, 355, 356, 359 Commission of the European Communities v France (Homeopathy) [2005] E.C.R. I Federation Nationale de la Cooperation Betail et Viande (FNCBV) v Commission of the European Communities [2006] E.C.R. II-4987; [2008] 5 C.M.L.R , 463 Consorzio Aziende Metano (CoNaMe) v Comune di Cingia de Botti [2005] E.C.R. I-7287; [2006] 1 C.M.L.R Federation Nationale de l'industrie et des Commerces en Gros des Viandes (FNICGV) v Commission of the European Communities (Interim Measures) [2004] E.C.R. II-3795; [2005] 4 C.M.L.R Federation Nationale de l'industrie et des Commerces en Gros des Viandes (FNICGV) v Commission of the European Communities [2004] E.C.R. II-315; [2005] 5 C.M.L.R Simutenkov v Ministerio de Educacion y Cultura [2006] All E.R. (EC) 42; [2005] E.C.R. I-2579; [2005] 2 C.M.L.R Commission of the European Communities v Luxembourg [2005] E.C.R. I , 416, 527, 530, , 538 Deutsche Telekom AG v Commission of the European Communities [2008] E.C.R. II-477; [2008] 5 C.M.L.R British United Provident Association Ltd (BUPA) v Commission of the European Communities [2008] E.C.R. II-81; [2009] 2 C.M.L.R , 234 Commission of the European Communities v Spain (Cabotage)[2006] E.C.R. I , 634 France Telecom SA (formerly Wanadoo Interactive SA) v Commission of the European Communities [2008] All E.R. (EC) 677; [2007] E.C.R. II-107; [2007] 4 C.M.L.R Wirtschaftskammer Kärnten and best connect Ampere Strompool v Commission [2006] E.C.R. II , 509 Germany v European Parliament; sub nom. Germany v Council of the European Union; Tobacco Advertising Directive 2003/33, Re [2007] All E.R. (EC) 1016; [2006] E.C.R. I-11573; [2007] 2 C.M.L.R Hoechst GmbH v Commission of the European Communities [2008] E.C.R. II-881; [2008] 5 C.M.L.R , 463

175 xviii Table of Cases (C-411/03) (C-433/03) (C-446/03) (C-451/03) (C-458/03) (C-469/03) (C-470/03) (C-459/03) (C-507/03) (C-511/03) (C-514/03) (C-544/03 & C-545/03) (T-2/04) (T-16/04) (C-23/04 C-25/04) (C-27/04) (T-69/04) (C-94/04 & C-202/04) (C-95/04 P) (T-99/04) (T-116/04) (T-122/04) (C-127/04) (T-127/04) SEVIC Systems AG v Amtsgericht Neuwied [2006] All E.R. (EC) 363; [2005] E.C.R. I-10805; [2006] 2 B.C.L.C. 510; [2006] 1 C.M.L.R. 45; [2006] C.E.C , 72, 74, 75, , 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 91, 94, 95, 96 Commission of the European Communities v Germany [2005] E.C.R. I , 415, 416, 525, , 531, 532, 534 Marks & Spencer Plc v Halsey (Inspector of Taxes) [2006] Ch. 184; [2006] 2 W.L.R. 250; [2006] All E.R. (EC) 255; [2006] S.T.C. 237; [2005] E.C.R. I-10837; [2006] 1 C.M.L.R. 18; [2006] C.E.C. 299; [2006] B.T.C. 318; 8 I.T.L. Rep. 358; [2006] S.T.I Servizi Ausiliari Dottori Commercialisti Srl v Calafiori [2006] E.C.R. I-2941; [2006] 2 C.M.L.R , 623, 636, 637 Parking Brixen GmbH v Gemeinde Brixen [2006] All E.R. (EC) 779; [2005] E.C.R. I-8612; [2006] 1 C.M.L.R. 3; [2006] C.E.C Criminal Proceedings against Miraglia [2005] E.C.R. I-2009; [2005] 2 C.M.L.R AGM-COS.MET Srl v Finland; sub nom. AGM-COS.MET Srl v Suomen Valtio [2007] All E.R. (EC) 1126; [2007] E.C.R. I-2749; [2007] 2 C.M.L.R , 358 Commission of the European Communities v Ireland; sub nom. Dispute over MOX Plant, Re [2006] All E.R. (EC) 1013; [2006] E.C.R. I-4635; [2006] 2 C.M.L.R , 411, 417, 527, Commission of the European Communities v Ireland; sub nom. Irish Post Office Contract, Re [2007] E.C.R. I-9777; [2008] 1 C.M.L.R. 34; [2008] C.E.C Netherlands v Ten Kate Holding Musselkanaal BV (C-511/03) [2005] E.C.R. I-8979; [2006] 1 C.M.L.R Commission of the European Communities v Spain (Private security undertakings) [2006] E.C.R. I , 624, 625, 634, Mobistar SA v Commune de Fleron; Belgacom Mobile SA v Commune de Schaerbeek [2005] E.C.R. I-7723; [2005] 3 C.M.L.R , 631 Cemender Korkmaz Corner House Research and the Kurdish Human Rights Project v Commission [2006] E.C.R. II , 271 Arcelor v European Parliament and Council, judgment of March 2, Sfakianakis AEVE v Greece [2006] E.C.R. I-1265; [2006] 2 C.M.L.R , 130 Commission of the European Communities v Council of the European Union [2004] E.C.R. I , 574 Schunk GmbH v Commission of the European Communities [2008] E.C.R. II-2567; [2009] 4 C.M.L.R , 477, 755 Cipolla v Fazari; Macrino v Meloni [2007] All E.R. (EC) 699; [2006] E.C.R. I-11421; [2007] 4 C.M.L.R , 623, 628, 637, British Airways Plc v Commission of the European Communities [2007] E.C.R. I-2331; [2007] 4 C.M.L.R. 22; [2007] C.E.C , 471 AC-Treuhand AG v Commission of the European Communities [2009] Bus. L.R. 677; [2008] E.C.R. II-1501; [2008] 5 C.M.L.R Wieland-Werke v Commission of the European Communities [2009] E.C.R. II , 198, 461, 463 Outokumpu Oyj v Commission of the European Communities [2009] 5 C.M.L.R O'Byrne v Sanofi Pasteur MSD Ltd (formerly Aventis Pasteur MSD Ltd) [2006] 1 W.L.R. 1606; [2006] All E.R. (EC) 674; [2006] E.C.R. I-1313; [2006] 2 C.M.L.R. 24; [2006] C.E.C. 493; (2006) 91 B.M.L.R KME Germany AG v Commission of the European Communities [2009] E.C.R. II-1167; [2009] 5 C.M.L.R , 463, 473

176 Table of Cases xix (C-144/04) (C-147/04) (C-148/04) (C-150/04) (C-154/04 & C-155/04) (C-168/04) (T-177/04) (T-201/04) (C-212/04) (C-234/04) (C-244/04) (C-249/04) (C-255/04) (C-260/04) (C-289/04 P) (C-290/04) (T-309/04, T-317/04, T-329/04, T-336/04) (C-317/04 & C-318/04) (C-338/04) (C-344/04) (C-345/04) (C-354/04 P) (C-355/04 P) Werner Mangold v Rüdiger Helm [2006] All E.R. (EC) 383; [2005] E.C.R. I-9981; [2006] 1 C.M.L.R. 43; [2006] C.E.C. 372; [2006] I.R.L.R , 59, 68, 69, , 114, 115, 120, 121, 122, 589, 590, 593, 594, 595, 597, 598, 599, 717 De Groot en Slot Allium BV v Ministere de l'economie, des Finances et de l'industrie [2006] E.C.R. I-245; [2009] 1 C.M.L.R Unicredito Italiano SpA v Agenzia delle Entrate [2005] E.C.R. I Commission of the European Communities v Denmark; sub nom. Taxation of Pension Contributions, Re [2007] S.T.C. 1392; [2007] E.C.R. I-1163; [2007] 2 C.M.L.R. 16; [2007] S.T.I , 621, 627, 640 R. (on the application of Alliance for Natural Health) v Secretary of State for Health; R. (on the application of National Association of Health Stores) v Secretary of State for Health [2005] E.C.R. I-6451; [2005] 2 C.M.L.R , 341, 352, 355, Commission of the European Communities v Austria (Posting of 3rd country workers) [2006] E.C.R. I , 627, 636, 642 easyjet Airline Co Ltd v Commission of the European Communities [2006] E.C.R. II-1931; [2006] 5 C.M.L.R , 515, 522 Microsoft Corp v Commission of the European Communities [2007] E.C.R. II-3601; [2007] 5 C.M.L.R , 150, 465, 468, Adeneler v Ellinikos Organismos Galaktos (ELOG) [2007] All E.R. (EC) 82; [2006] E.C.R. I-6057; [2006] 3 C.M.L.R. 30; [2006] I.R.L.R , 59 Kapferer v Schlank & Schick GmbH [2006] E.C.R. I-2585; [2006] 2 C.M.L.R. 19; [2006] I.L.Pr , 548 Commission of the European Communities v Germany; sub nom. Work Visa Regime, Re [2006] E.C.R. I-885; [2006] 2 C.M.L.R , 624, 641 José Allard v Institut national d'assurances sociales pour travailleurs indépendants (INASTI) [2005] E.C.R. I-4535; [2005] 3 C.M.L.R Commission of the European Communities v France; sub nom. Law on Licensing System of Performing Artists Agents, Re [2007] All E.R. (EC) 435; [2006] E.C.R. I-5251; [2006] 3 C.M.L.R , 639, 642, 645 Commission of the European Communities v Italy [2007] E.C.R. I-7083; [2007] 3 C.M.L.R , 248, 252, 639 Showa Denko KK v Commission of the European Communities; sub nom. Graphite Electrodes Cartel Appeal, Re [2006] E.C.R. I-5859; [2006] 5 C.M.L.R , 468 FKP Scorpio Konzertproduktionen GmbH v Finanzamt Hamburg-Eimsbuttel [2007] S.T.C. 1069; [2006] E.C.R. I-9461; [2007] 1 C.M.L.R. 33; [2006] S.T.I , 627, 640 TV 2/Danmark A/S v Commission [2008] E.C.R. II European Parliament v Council of the European Union; European Parliament v Council of the European Union [2007] All E.R. (EC) 278; [2006] E.C.R. I-4721; [2006] 3 C.M.L.R Criminal Proceedings against Placanica [2007] All E.R. (EC) 827; [2007] E.C.R. I-1891; [2007] 2 C.M.L.R , 246, 249, 250, , 254, 255, 256, 258, 260, 261, 262, 620, 625, 634, 639, 642 R. (on the application of International Air Transport Association (IATA)) v Department of Transport [2006] E.C.R. I-403; [2006] 2 C.M.L.R. 20; (2006) 156 N.L.J Centro Equestre da Leziria Grande Lda v Bundesamt fur Finanzen [2007] All E.R. (EC) 680; [2008] S.T.C. 2250; [2007] E.C.R. I-1425; [2007] 2 C.M.L.R. 18; [2007] C.E.C. 564; [2007] S.T.I Gestoras Pro Amnistía v Council of the European Union [2008] All E.R. (EC) 65; [2007] E.C.R. I-1579; [2007] 2 C.M.L.R , 526 Segi v Council [2008] All E.R. (EC) 65; [2007] E.C.R. I-1657; [2007] 2 C.M.L.R

177 xx Table of Cases (C-372/04) (C-374/04) (C-386/04) C-403/04 P) (C-406/04) (C-421/04) (T-425/04, T-444/04, T-450/04, T-456/04) (C-433/04) (C-438/04) (C-436/04) (C-441/04) (C-452/04) (T-464/04) (C-466/04) (C-467/04) (C-490/04) (C-522/04) (C-13/05) (T-20/05) (T-21/05) (T-30/05) (T-36/05) (C-65/05) (C-76/05) R. (on the application of Watts) v Bedford Primary Care Trust [2006] Q.B. 667; [2006] 3 W.L.R. 213; [2006] All E.R. (EC) 835; [2006] E.C.R. I-4325; [2006] 3 C.M.L.R. 5; [2006] C.E.C. 884; (2006) 90 B.M.L.R , 433, 434, 543, , 627, 641, 642, 707, 752 Test Claimants in Class IV of the ACT Group Litigation v Inland Revenue Commissioners [2007] All E.R. (EC) 351; [2007] S.T.C. 404; [2006] E.C.R. I-11673; [2007] 1 C.M.L.R. 36; [2007] C.E.C. 498; [2008] B.T.C. 305; 9 I.T.L. Rep. 360; [2006] S.T.I Centro di Musicologia Walter Stauffer v Finanzamt Munchen fur Korperschaften [2008] S.T.C. 1439; [2006] E.C.R. I-8203; [2009] 2 C.M.L.R. 31; [2009] B.T.C. 651; [2006] S.T.I Sumitomo Metal Industries Ltd v Commission of the European Communities ( [2007] E.C.R. I-729; [2007] 4 C.M.L.R De Cuyper v Office National de l'emploi (ONEM) [2006] All E.R. (EC) 947; [2006] E.C.R. I-6947; [2006] 3 C.M.L.R. 44; [2006] C.E.C. 937; [2007] I.C.R Matratzen Concord AG v Hukla Germany SA [2006] E.C.R. I-2303; [2006] C.E.C. 621; [2006] E.T.M.R , 344, 358 France v Commission of the European Communities [2010] OJ C179/ Commission of the European Communities v Belgium (Withholding obligation) [2006] E.C.R. I , 632, 638 Mobistar v IBPT [2006] E.C.R. I Criminal Proceedings against Van Esbroeck; sub nom. Van Esbroeck v Openbaar Ministerie [2006] E.C.R. I-2333; [2006] 3 C.M.L.R A-Punkt Schmuckhandels GmbH v Schmidt [2006] All E.R. (EC) 1118; [2006] E.C.R. I-2093; [2006] 2 C.M.L.R Fidium Finanz AG v Bundesanstalt fur Finanzdienstleistungsaufsicht [2007] All E.R. (EC) 239; [2006] E.C.R. I-9521; [2007] 1 C.M.L.R Independent Music Publishers & Labels Association (Impala) v Commission of the European Communities [2006] E.C.R. II-2289; [2006] 5 C.M.L.R , 519 Acereda Herrera v Servicio Cantabro de Salud [2006] E.C.R. I-5341; [2006] 3 C.M.L.R. 24; [2006] C.E.C , 752 Criminal Proceedings against Gasparini [2006] E.C.R. I-9199; [2007] 1 C.M.L.R Commission of the European Communities v Germany (Paid leave fund) [2007] E.C.R. I , 625, 634 Commission of the European Communities v Belgium (Occupational pension schemes) [2007] E.C.R. I-5701; [2007] Pens. L.R , 621, 639, 645, 646 Sonia Chacón Navas v Eurest Colectividades SA [2007] All E.R. (EC) 59; [2006] E.C.R. I-6467; [2006] 3 C.M.L.R. 40; [2007] I.C.R. 1; [2006] I.R.L.R , 113, 114, 174, Outokumpu Oyj v European Commission; sub nom. Copper Plumbing Tubes Cartel, Re [2010] 5 C.M.L.R Chalkor AE Epexergasias Metallon v European Commission; sub nom. Copper Plumbing Tubes Cartel, Re [2010] 5 C.M.L.R , 473 William Prym GmbH & Co KG and Prym Consumer GmbH & Co v Commission of the European Communities [2007] E.C.R. II Coats Holdings Ltd v Commission of the European Communities; sub nom. Haberdashery Cartel Appeal, Re [2007] E.C.R. II-110; [2008] 4 C.M.L.R Commission of the European Communities v Greece [2007] All E.R. (EC) 738; [2006] E.C.R. I-10341; [2007] 1 C.M.L.R. 26; [2007] C.E.C , 146, 620 Schwarz v Finanzamt Bergisch Gladbach [2008] All E.R. (EC) 556; [2008] S.T.C. 1357; [2007] E.C.R. I-6849; [2007] 3 C.M.L.R. 47; [2008] C.E.C. 243; [2007] S.T.I , 640, 707, 709

178 Table of Cases xxi (C-91/05) (T-101/05 & T-111/05) (C-110/05) (C-119/05) (C-134/05) (C-142/05) (T-151/05) (T-161/05) (C-168/05) (C-192/05) (C-208/05) (C-222/05) (C-257/05) (C-303/05) (C-305/05) (C-313/05) (C-318/05) (C-328/05 P) (C-341/05) (C-380/05) (C-389/05) (C-393/05) Commission of the European Communities v Council of the European Union; sub nom. Validity of Decision 2004/833, Re [2008] E.C.R. I-3651; [2008] 3 C.M.L.R BASF AG v Commission of the European Communities; UCB SA v Commission of the European Communities; sub nom. Choline Chloride Sector Cartel, Re [2007] E.C.R. II-4949; [2008] 4 C.M.L.R , 195, 197, 206, Commission of the European Communities v Italy; sub nom. Motorcycle Trailers, Re [2009] All E.R. (EC) 796; [2009] E.C.R. I-519; [2009] 2 C.M.L.R , 619, 622, 633 Ministero dell'industria del Commercio e dell'artigianato v Lucchini SpA [2007] E.C.R. I-6199; [2009] 1 C.M.L.R , 450, 547 Commission of the European Communities v Italy; sub nom. Licensing of Debt Collection Services, Re [2007] E.C.R. I-6251; [2007] 3 C.M.L.R , 628, 645 Âklagaren v Mickelsson and Roos [2009] E.C.R. I-4273; [2009] All E.R. (EC) , 619, 633 Nederlandse Vakbond Varkenshouders (NVV) v Commission of the European Communities [2009] E.C.R. II-1219; [2009] 5 C.M.L.R Hoechst GmbH v Commission of the European Communities; sub nom. Monochloroacetic Cartel, Re [2009] E.C.R. II-3555; [2009] 5 C.M.L.R , 463 Mostaza Claro v Centro Movil Milenium SL [2007] Bus. L.R. 60; [2006] E.C.R. I-10421; [2007] 1 C.M.L.R. 22; [2007] C.E.C Tas-Hagen v Raadskamer WUBO van de Pensioen- en Uitkeringsraad [2007] All E.R. (EC) 129; [2006] E.C.R. I-10451; [2007] 1 C.M.L.R. 23; [2007] C.E.C , 710 ITC Innovative Technology Center GmbH v Bundesagentur fur Arbeit [2007] All E.R. (EC) 611; [2007] E.C.R. I-181; [2008] 1 C.M.L.R Van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit [2009] All E.R. (EC) 90; [2007] E.C.R. I-4233; [2007] 3 C.M.L.R , 63 Commission of the European Communities v Austria (Boilers and pressure tanks) [2006] E.C.R. I , 636, 644, 646 Advocaten voor de Wereld VZW v Leden van de Ministerraad [2008] All E.R. (EC) 317; [2007] E.C.R. I-3633; [2007] 3 C.M.L.R. 1; [2008] C.E.C Ordre des Barreaux Francophones et Germanophone v Conseil des Ministres [2007] All E.R. (EC) 953; [2007] E.C.R. I-5305; [2007] 3 C.M.L.R. 28; [2008] C.E.C. 124; [2008] Lloyd's Rep. F.C. 1; [2008] W.T.L.R Brzezínsky v Dyrektor Izby Celnej w Warszawie [2007] E.C.R. I-513; [2007] 2 C.M.L.R. 4; [2007] C.E.C Commission of the European Communities v Germany [2008] All E.R. (EC) 556; [2008] S.T.C. 1357; [2007] E.C.R. I-6957; [2007] S.T.I , 640 SGL Carbon AG v Commission of the European Communities [2007] E.C.R. I-3921; [2007] 5 C.M.L.R Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet; sub nom. Laval v Byggnads [2008] All E.R. (EC) 166; [2007] E.C.R. I-11767; [2008] 2 C.M.L.R. 9; [2008] C.E.C. 438; [2008] I.R.L.R , 223, 225, 631, , 644, 646, 717 Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorita per le Garanzie nelle Comunicazioni [2008] E.C.R. I-349; [2008] 2 C.M.L.R , 618 Commission of the European Communities v France; sub nom. Artificial Insemination Centre for Bovine Animals, Re [2008] E.C.R. I-5337; [2008] 3 C.M.L.R , 621, 623, 639, 647 Commission of the European Communities v Austria; sub nom. Inspection of Organic Produce by Private Bodies, Re [2007] E.C.R. I-10195; [2008] 1 C.M.L.R

179 xxii Table of Cases (C-402/05 P & C-415/05 P) (C-404/05) (C-411/05) (C-432/05) (C-440/05) (C-438/05) (C-444/05) (T-446/05) (T-448/05) (T-452/05) (T-456/05) (C-465/05) (C-2/06) (C-3/06 P) (C-76/06 P) (C-116/06) (C-119/06) (C-143/06) (T-145/06) (C-147/06 & C-148/06) (T-155/06) (C-162/06) (T-170/06) (C-199/06) Kadi v Council of the European Union; Al Barakaat International Foundation v Council of the European Union [2009] 1 A.C. 1225; [2009] 3 W.L.R. 872; [2010] All E.R. (EC) 1105; [2008] E.C.R. I-6351; [2008] 3 C.M.L.R. 41; [2009] Lloyd's Rep. F.C , 69, 144, 154, , 443, 594, 652 Commission of the European Communities v Germany; sub nom. Inspection of Organic Produce by Private Bodies, Re [2007] E.C.R. I-10239; [2008] 1 C.M.L.R , 636, 645 Felix Palacios de la Villa v Cortefiel Servicios SA [2008] All E.R. (EC) 249; [2007] E.C.R. I-8531; [2008] 1 C.M.L.R. 16; [2009] I.C.R. 1111; [2007] I.R.L.R. 989; [2007] Pens. L.R , 114, 589 Unibet (London) Ltd v Justitiekanslern [2008] All E.R. (EC) 453; [2007] E.C.R. I-2271; [2007] 2 C.M.L.R , 54, 55, 56, 262 Commission of the European Communities v Council of the European Union [2008] All E.R. (EC) 489; [2007] E.C.R. I-9097; [2008] 1 C.M.L.R. 22; [2008] Env. L.R International Transport Workers' Federation v Viking Line ABP [2008] All E.R. (EC) 127; [2007] E.C.R. I-10779; [2008] 1 C.M.L.R. 51; [2008] C.E.C. 332; [2008] I.C.R. 741; [2008] I.R.L.R , 225 Stamatelaki v NPDD Organismos Asfaliseos Eleftheron Epangelmation (OAEE) [2007] E.C.R. I-3185; [2007] 2 C.M.L.R , 621, 752 Amann & Sohne GmbH & Co KG v European Commission [2010] 5 C.M.L.R , 472, 473 Oxley Threads Ltd v European Commission [2010] 5 C.M.L.R Belgian Sewing Thread (BST) NV v European Commission [2010] 5 C.M.L.R Gutermann AG v European Commission [2010] 5 C.M.L.R Commission of the European Communities v Italy; sub nom. Private Security Guards, Re [2007] E.C.R. I-11091; [2008] 2 C.M.L.R , 626, 630, 636, Willy Kempter KG v Hauptzollamt Hamburg-Jonas [2008] E.C.R. I-411; [2008] 2 C.M.L.R Groupe Danone v Commission of the European Communities [2007] E.C.R. I-1331; [2007] 4 C.M.L.R , 471, 473 Britannia Alloys & Chemicals Ltd v Commission of the European Communities [2007] E.C.R. I-4405; [2007] 5 C.M.L.R. 3; [2007] Bus. L.R. D Sari Kiiski v Tampereen Kaupunki [2007] E.C.R. I-7643; [2008] 1 C.M.L.R. 5; [2008] C.E.C Commission of the European Communities v Italy (Healthcare transport) [2007] E.C.R. I Ludwigs-Apotheke Munchen Internationale Apotheke v Juers Pharma Import-Export GmbH [2007] E.C.R. I-9623; [2008] 1 C.M.L.R Omya AG v Commission of the European Communities [2009] E.C.R. II-145; [2009] 4 C.M.L.R SECAP SpA v Comune di Torino; Santorso Soc Coop ARL v Comune di Torino [2008] E.C.R. I-3565; [2008] 2 C.M.L.R , 630 Tomra Systems v Commission of the European Communities September 9, International Mail Spain SL v Administracion del Estado; sub nom. TNT Express Worldwide Spain SL v Administracion del Estado [2007] E.C.R. I-9911; [2008] 4 C.M.L.R. 1; [2008] C.E.C Alrosa Co Ltd v Commission of the European Communities [2007] E.C.R. II-2601; [2007] 5 C.M.L.R , 651, 739, 740, 741 Centre d'exportation du Livre Francais (CELF) v Societe Internationale de Diffusion et d'edition (SIDE) [2008] E.C.R. I-469; [2008] 2 C.M.L.R

180 Table of Cases xxiii (C-202/06 P) (C-205/06) (C-210/06) (C-212/06) (C-220/06) (C-227/06) (C-248/06) (C-250/06) (C-267/06) (C-268/06) (C-275/06) (C-280/06) (C-281/06) (T-282/06) (C-301/06) (C-303/06) (C-319/06) (C-337/06) (C-341/06 P) (C-346/06) (C-347/06) (C-409/06) Cementbouw Handel & Industrie BV v Commission of the European Communities [2007] E.C.R. I-12129; [2008] 4 C.M.L.R Commission of the European Communities v Austria; sub nom. Pre-Accession Investment Agreements, Re [2010] All E.R. (EC) 185; [2009] E.C.R. I-1301; [2009] 2 C.M.L.R Cartesio Oktató és Szolgáltató bt; sub nom. Application Brought by Cartesio Oktato es Szolgaltato bt [2009] Ch. 354; [2009] 3 W.L.R. 777; [2009] Bus. L.R. 1233; [2009] All E.R. (EC) 269; [2008] E.C.R. I-9641; [2009] B.C.C. 232; [2010] 1 B.C.L.C. 523; [2009] 1 C.M.L.R. 50; [2009] C.E.C , 83, 84, 85, , 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 304, 545, Government of the French Community v Flemish Government [2009] All E.R. (EC) 187; [2008] E.C.R. I-1683; [2008] 2 C.M.L.R Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia [2007] E.C.R. I Commission of the European Communities v Belgium [2008] E.C.R. I Commission of the European Communities v Spain (Deduction of R&D costs) [2008] E.C.R. I , 637, 639 United Pan-Europe Communications Belgium SA v Belgium [2007] E.C.R. I-11135; [2008] 2 C.M.L.R. 2; [2008] C.E.C , 622, 623, 630, Tadao Maruko v Versorgungsanstalt der Deutschen Bühnen [2008] All E.R. (EC) 977; [2008] E.C.R. I-1757; [2008] 2 C.M.L.R. 32; [2008] I.R.L.R. 450; [2008] Pens. L.R , 591, 592 Impact v Minister for Agriculture and Food [2009] All E.R. (EC) 306; [2008] E.C.R. I-2483; [2008] 2 C.M.L.R. 47; [2009] C.E.C. 871; [2008] I.R.L.R. 552; [2008] Pens. L.R , 58, 59, 60, Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU [2008] All E.R. (EC) 809; [2008] E.C.R. I-271; [2008] 2 C.M.L.R. 17; [2008] C.E.C. 590; [2008] E.C.D.R. 10; [2008] Info. T.L.R. 47; (2008) 31(6) I.P.D Autorità Garante della Concorrenza e del Mercato v Ente Tabacchi Italiani ETI SpA [2007] E.C.R. I-10893; [2008] 4 C.M.L.R. 11; [2008] C.E.C Jundt v Finanzamt Offenburg [2007] E.C.R. I-12231; [2008] C.E.C. 416; [2008] S.T.I , 644, 646 Sun Chemical Group BV v Commission of the European Communities [2007] E.C.R. II-2149; [2007] 5 C.M.L.R Ireland v European Parliament; sub nom. Validity of Directive 2006/24, Re [2009] All E.R. (EC) 1181; [2009] E.C.R. I-593; [2009] 2 C.M.L.R Coleman v Attridge Law (A Firm) [2008] All E.R. (EC) 1105; [2008] E.C.R. I-5603; [2008] 3 C.M.L.R. 27; [2008] C.E.C. 986; [2008] I.C.R. 1128; [2008] I.R.L.R , 32, 33, 34, , 40, 41 Commission of the European Communities v Luxembourg [2009] All E.R. (EC) 1049; [2008] E.C.R. I-4323; [2009] I.R.L.R , 615, 624, 628, , 647 Bayerischer Rundfunk v GEWA [2007] E.C.R. I Chronopost SA v Union Francaise de l'express (UFEX); La Poste v Union Francaise de l'express (UFEX) [2008] E.C.R. I-4777; [2008] 3 C.M.L.R Dirk Rüffert v Land Niedersachen [2008] All E.R. (EC) 902; [2008] E.C.R. I-1989; [2008] 2 C.M.L.R. 39; [2008] C.E.C. 925; [2008] I.R.L.R , 223 ASM Brescia SpA v Comune di Rodengo Saiano [2008] E.C.R. I-5641; [2008] 3 C.M.L.R , 258, 632 Winner Wetten GmbH v Burgermeisterin der Stadt Bergheim [2011] 1 C.M.L.R , 254, 255, 256, , 264, 642

181 xxiv Table of Cases (C-413/06 P) (C-427/06) (C-445/06) (C-454/06) (C-455/06) (C-468/06) (C-487/06 P) (C-499/06) (C-500/06) (C-501/06 P) (C-510/06 P) (C-518/06) (C-524/06) (C-525/06) (C-13/07) (T-31/07R) (T-37/07 and T-323/07) (C-42/07) (C-45/07) (C-48/07) (C-54/07) (C-55/07 & C-56/07) (C-118/07) Bertelsmann AG v Independent Music Publishers & Labels Association (IMPALA) [2010] All E.R. (EC) 377; [2008] E.C.R. I-4951; [2008] 5 C.M.L.R Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH [2009] All E.R. (EC) 113; [2008] E.C.R. I-7245; [2009] 1 C.M.L.R. 5; [2009] C.E.C. 133; [2008] Pens. L.R , 114, 122, 594, 598 Danske Slagterier v Germany [2010] All E.R. (EC) 74; [2009] E.C.R. I-2119; [2009] 3 C.M.L.R , 53 Pressetext Nachrichtenagentur GmbH v Austria [2008] E.C.R. I-4401; [2008] Bus. L.R. D Heemskerk and Schaap v Productschap Vee en Vlees [2008] E.C.R. I , 548 Sot Lélos kai Sia EE v GlaxoSmithKline AEVE Farmakeftikon Proionton (formerly Glaxowellcome AEVE) [2009] All E.R. (EC) 1; [2008] E.C.R. I-7139; [2008] 5 C.M.L.R. 20; [2009] C.E.C. 98; [2009] E.T.M.R. 4; (2008) 104 B.M.L.R , 400, 401, 402, 403 British Aggregates Association v Commission of the European Communities [2008] E.C.R. I-10505; [2009] 2 C.M.L.R. 10; [2009] Env. L.R Nerkowska v Zaklad Ubezpieczen Spolecznych Oddzial w Koszalinie [2008] All E.R. (EC) 885; [2008] E.C.R. I-3993; [2008] 3 C.M.L.R Corporación Dermoestética v To Me Advertising Media [2008] E.C.R. I-5785; [2008] 3 C.M.L.R , 621, 631, 634, GlaxoSmithKline Services Unlimited v Commission of the European Communities [2009] E.C.R. I-9291; [2010] 4 C.M.L.R. 2; [2010] C.E.C. 885; (2010) 11 B.M.L.R Archer Daniels Midland Co v Commission of the European Communities [2009] E.C.R. I-1843; [2009] 4 C.M.L.R , 461, 463, 469, 470 Commission of the European Communities v Italy [2009] E.C.R. I-3491; [2009] 3 C.M.L.R , 629, 630, 645, 646 Huber v Germany [2009] All E.R. (EC) 239; [2008] E.C.R. I-9705; [2009] 1 C.M.L.R. 49; [2009] C.E.C De Nationale Loterij NV v Cutomer Service Agency BVBA [2009] E.C.R. I , 283 Commission of the European Communities v Council of the European Union, Opinion of A.G. Kokott, March 26, Du Pont v Commission of the European Communities Order of July 19, El Morabit v Council [2009] E.C.R. II Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa Liga Portuguesa de Futebol Profissional v Departamento de Jogos da Santa Casa da Misericordia de Lisboa [2009] E.C.R. I-7633; [2010] 1 C.M.L.R. 1; [2010] C.E.C , 247, 248, 250, , 256, 257, 619, 634, 642 Commission of the European Communities v Greece [2009] 1 Lloyd's Rep. 425; [2009] E.C.R. I-701; [2009] 2 C.M.L.R , 416, 533, 534, Belgium v Les Vergers du Vieux Tauves SA [2008] E.C.R. I-10627; [2009] 2 C.M.L.R Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] All E.R. (EC) 1127; [2008] E.C.R. I-5187; [2008] 3 C.M.L.R. 22; [2008] C.E.C. 1032; [2008] I.C.R. 1390; [2008] I.R.L.R , 38, 39 Michaeler v Amt für sozialen Arbeitsschutz Autonome Provinz Bozen [2008] E.C.R. I Commission of the European Communities v Finland [2010] All E.R. (EC) 558; [2009] E.C.R. I , 417

182 Table of Cases xxv (C-125/07 P, C-137/07 P, C-135/07 P & C-133/07 P) (C-132/07) (T-139/07) (C-141/07) (C-158/07) (T-158/07) (C-169/07) (C-171/07) (C-202/07 P) (C-205/07) (C-222/07) (C-246/07) (T-256/07) (C-260/07) (C-261/07 & C-299/07) (C-290/07 P) (C-303/07) (C-316/07) (C-318/07) (C-322/07 P & C-338/07 P) (C-324/07) (C-330/07) (T-341/07) (T-342/07) Erste Group Bank AG v Commission of the European Communities; Osterreichische Volksbanken AG v Commission of the European Communities; Bank Austria Creditanstalt AG v Commission of the European Communities; Raiffeisen Zentralbank Österreich AG v Commission of the European Communities; sub nom. Erste Bank der Osterreichischen Sparkassen AG v Commission of the European Communities [2009] E.C.R. I-8681; [2010] 5 C.M.L.R , 196, 468, 470 Beecham Group Plc v Andacon NV [2009] E.C.R. I , 283, 284 Pioneer Hi-Bred International v Commission of the European Communities [2009] OJ C267/ , 266, 267, 268, , 272, 273, 274, 275 Commission of the European Communities v Germany; sub nom. Supply of Medicines by Pharmacies to Nearby Hospitals, Re [2008] E.C.R. I-6935; [2008] 3 C.M.L.R Förster v Hoofddirectie van de Informatie Beheer Groe; sub nom. Forster v IB-Groep [2009] All E.R. (EC) 399; [2008] E.C.R. I-8507; [2009] 1 C.M.L.R. 32; [2009] C.E.C. 473; [2009] P.T.S.R. (C.S.) , 708 Cofac v Commission of the European Communities [2009] E.C.R. II Hartlauer Handelsgesellschaft mbh v Wiener Landesregierung [2009] E.C.R. I-1721; [2009] 3 C.M.L.R. 5; [2009] C.E.C Apothekerkammer des Saarlandes v Saarland [2009] All E.R. (EC) 1001; [2009] E.C.R. I-4171; [2009] 3 C.M.L.R France Telecom SA v Commission of the European Communities [2009] E.C.R. I-2369; [2009] 4 C.M.L.R. 25; [2010] C.E.C Criminal Proceedings against Gysbrechts [2009] All E.R. (EC) 711; [2009] 2 All E.R. (Comm) 951; [2008] E.C.R. I-9947; [2009] 2 C.M.L.R. 2; [2009] C.E.C , 352 Union de Televisiones Comerciales Asociadas (UTECA) v Administracion General del Estado [2009] E.C.R. I-1407; [2009] 3 C.M.L.R European Commission v Sweden [2010] All E.R. (EC) 1198; [2010] 3 C.M.L.R , 406, 407, 408, , 411, 412, 413, 414, 415, 416, 417, 418, 525, 536, 537, 538 People's Mojahedin Organization of Iran v Council of the European Union [2009] All E.R. (EC) 1221; [2008] E.C.R. II , 659, 660, 663, 664 Pedro IV Servicios SL v Total Espana SA [2009] E.C.R. I-2437; [2009] 5 C.M.L.R. 1; [2009] C.E.C VTB-VAB NV v Total Belgium NV; Galatea BVBA v Sanoma Magazines Belgium NV [2010] All E.R. (EC) 694; [2009] E.C.R. I-2949; [2009] 3 C.M.L.R Commission of the European Communities v Scott SA [2011] 1 C.M.L.R Proceedings Brought by Aberdeen Property Fininvest Alpha Oy [2009] S.T.C. 1945; [2009] E.C.R. I-5145; [2009] 3 C.M.L.R. 34; [2009] S.T.I Stoss v Wetteraukreis [2011] 1 C.M.L.R , 254, 255, 256, , 259, 260, 261, 262, 263, 264, 642, 645, 646 Hein Persche v Finanzamt Lüdenscheid [2009] P.T.S.R. 915; [2009] All E.R. (EC) 673; [2009] S.T.C. 586; [2009] E.C.R. I-359; [2009] 2 C.M.L.R. 32; [2009] C.E.C. 804; [2009] W.T.L.R. 483; [2009] S.T.I Papierfabrik August Koehler AG v Commission of the European Communities; Bollore SA v Commission of the European Communities; Distribuidora Vizcaina de Papeles SL v Commission of the European Communities; sub nom. Carbonless Paper Cartel, Re [2009] E.C.R. I-7191; [2009] 5 C.M.L.R , 474 Coditel Brabant SA v Commune d'uccle [2008] E.C.R. I-8457; [2009] 1 C.M.L.R. 29; [2009] C.E.C Jobra Vermogensverwaltungs-Gesellschaft mbh v Finanzamt Amstetten Melk Scheibbs [2008] E.C.R. I-9099; [2009] 1 C.M.L.R. 41; [2009] C.E.C Jose Maria Sison v Council (Sison II) [2009] E.C.R. II , 665 Ryanair Holdings Plc v European Commission [2011] 4 C.M.L.R

183 xxvi Table of Cases (T-348/07) (C-349/07) (C-350/07) (C-378/07 C-380/07) (C-385/07 P) (C-388/07) (C-402/07 & C-432/07) (T-411/07) (C-420/07) (C-437/07) (C-441/07 P) (C-460/07) (C-518/07) (C-534/07 P) (C-546/07) (C-550/07 P) (C-555/07) (C-564/07) (C-570/07) (C-12/08) (C-22/08 and C-23/08) (C-40/08) (T-45/08) (C-46/08) Stichting Al Aqsa v Council of the European Union September 9, , 658, 660, 664, 665 Soprope - Organizacoes de Calcado Lda v Fazenda Publica [2008] E.C.R. I-10369; [2009] 2 C.M.L.R Kattner Stahlbau GmbH v Maschinenbau- und Metall- Berufsgenossenschaft [2009] E.C.R. I-1513; [2009] 2 C.M.L.R , 621 Angelidaki v Organismos Nomarkhiaki Aftodiikisi Rethimnis [2009] E.C.R. I-3071; [2009] 3 C.M.L.R , 59 Der Grune Punkt - Duales System Deutschland GmbH v Commission of the European Communities [2009] E.C.R. I-6155; [2009] 5 C.M.L.R R. (on the application of Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform; sub nom. Incorporated Trustees for the National Council on Ageing (Age Concern England) v Secretary of State for Business Enterprise and Reform [2009] All E.R. (EC) 619; [2009] E.C.R. I-1569; [2009] 3 C.M.L.R. 4; [2009] C.E.C. 754; [2009] I.C.R. 1080; [2009] I.R.L.R. 373; [2009] Pens. L.R , 589 Sturgeon v Condor Flugdienst GmbH; Bock v Air France SA [2010] Bus. L.R. 1206; [2010] All E.R. (EC) 660; [2010] 2 All E.R. (Comm) 983; [2010] 1 Lloyd's Rep. 522; [2009] E.C.R. I-10923; [2010] 2 C.M.L.R. 12; [2010] C.E.C Aer Lingus Group plc v European Commission [2011] 4 C.M.L.R Apostolides v Orams; sub nom. Orams v Apostolides [2010] 1 All E.R. (Comm) 950; [2009] E.C.R. I Commission of the European Communities v Italy [2008] E.C.R. I European Commission v Alrosa Co Ltd; sub nom. Commission of the European Communities v Alrosa Co Ltd [2011] All E.R. (EC) 1; [2010] 5 C.M.L.R. 11; [2011] Bus. L.R. D , 469, 737, 738, , 743, 745, 746, 747, 748 Puffer v Unabhangiger Finanzsenat, Aussenstelle Linz [2009] S.T.C. 1693; [2009] E.C.R. I-3251; [2009] 3 C.M.L.R. 19; [2009] B.T.C. 5348; [2009] B.V.C. 347; [2009] S.T.I European Commission v Germany [2010] 3 C.M.L.R , 112, 123 William Prym GmbH & Co KG v Commission of the European Communities [2009] E.C.R. I-7415; [2009] 5 C.M.L.R. 21; [2010] C.E.C , 473 European Commission v Germany; sub nom. Restrictions for Polish Workers, Re [2010] 2 C.M.L.R , 631, 636, 637 Akzo Nobel Chemicals Ltd v European Commission [2010] 5 C.M.L.R. 19; [2011] C.E.C. 253; (2010) 160 N.L.J Seda Kücu kdeveci v Swedex GmbH & Co KG [2010] All E.R. (EC) 867; [2010] 2 C.M.L.R. 33; [2011] C.E.C. 3; [2010] I.R.L.R , 69, 112, 114, , 123, 550, 551, 589, 590, 593, 594, 595, 597, 598, 599 Commission of the European Communities v Austria (Patent attorneys) [2009] E.C.R. I , 626 Blanco Perez v Consejeria de Salud y Servicios Sanitarios; sub nom. Proceedings Brought by Blanco Perez [2010] 3 C.M.L.R. 37; [2011] C.E.C , 618, 631, 632, Mono Car Styling SA v Odemis [2009] E.C.R. I-6653; [2009] 3 C.M.L.R. 47; [2010] C.E.C Vatsouras v Arbeitsgemeinschaft (ARGE) Nurnberg 900 [2009] E.C.R. I , 345 Asturcom Telecomunicaciones SL v Rodriguez Nogueira [2009] E.C.R. I-9579; [2010] 1 C.M.L.R. 29; [2010] C.E.C , 66 Transportes Evaristo Molina v Commission [2008] E.C.R. II Carmen Media Group Ltd v Land Schleswig-Holstein [2011] 1 C.M.L.R , 253, 254, 255, , 258, 259, 263, 264, 624

184 Table of Cases xxvii (T-55/08) (C-58/08) (C-63/08) (C-64/08) (T-68/08) (C-73/08) (C-75/08) (C-88/08) (C-91/08) (C-97/08 P) (C-101/08) (C-103/08) (C-105/08) (C-118/08) (C-127/08) (C-132/08) (C-135/08) (C-137/08) (T-141/08) (C-147/08) (C-153/08) (C-154/08) (C-155/08 & C-157/08) (C-160/08) (C-169/08) UEFA v Commission February 17, Vodafone Ltd v Secretary of State for Business, Enterprise and Regulatory Reform; sub nom. R. (on the application of Vodafone Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform [2010] All E.R. (EC) 741; [2010] 3 C.M.L.R Pontin v T-Comalux [2009] E.C.R. I-10467; [2010] 2 C.M.L.R. 2; [2010] C.E.C , 61 Criminal Proceedings against Engelmann [2011] 1 C.M.L.R , 251, 252, 253, , 260, 263, 634, 637, 639, 642 FIFA v Commission February 17, Nicolas Bressol and Céline Chaverot v Gouvernement de la Communauté française, April 13, , 40 R. (on the application of Mellor) v Secretary of State for Communities and Local Government; sub nom. Mellor v Secretary of State for Communities and Local Government [2010] P.T.S.R. 880; [2009] E.C.R. I-3799; [2010] Env. L.R. 2; [2009] 18 E.G. 84 (C.S.) , 67 David Hütter v Technische Universität Graz [2009] All E.R. (EC) 1129; [2009] E.C.R. I-5325; [2009] 3 C.M.L.R. 35; [2010] C.E.C , 589, 596 Wall AG v La ville de Francfort-sur-le-Main and Frankfurter Entsorgungs- und Service (FES) GmbH April 13, Akzo Nobel NV v Commission of the European Communities; sub nom. Choline Chloride Cartel, Re [2009] E.C.R. I-8237; [2009] 5 C.M.L.R Audiolux SA v Groupe Bruxelles Lambert SA (GBL) [2010] Bus. L.R. 197; [2009] E.C.R. I-9823; [2010] 1 C.M.L.R Gottwald v Bezirkshauptmannschaft Bregenz [2009] E.C.R. I-9117; [2010] 1 C.M.L.R Commission of the European Communities v Portugal (Mortgage interest taxation) June 17, Transportes Urbanos y Servicios Generales SAL v Administracion del Estado [2010] 2 C.M.L.R , 62 Metock v Minister for Justice, Equality and Law Reform [2009] Q.B. 318; [2009] 2 W.L.R. 821; [2009] All E.R. (EC) 40; [2008] E.C.R. I-6241; [2008] 3 C.M.L.R. 39; [2009] C.E.C. 286; [2008] 3 F.C.R. 425; [2009] Imm. A.R. 113; [2009] I.N.L.R , 720 Lidl Magyarország Kereskedelmi bt v Nemzeti Hirkozlesi Hatosag Tanacsa [2009] E.C.R. I-3841; [2009] 3 C.M.L.R Rottmann v Freistaat Bayern [2010] Q.B. 761; [2010] 3 W.L.R. 1166; [2010] All E.R. (EC) 635; [2010] 3 C.M.L.R. 2; [2011] C.E.C , 162, 711, 712, VB Pénzügyi Lízing Zrt. v Ferenc Schneider November 9, E.ON Energie v Commission of the European Communities December 15, Jürgen Römer v Freie und Hansestadt Hamburg May 10, , 591, 592, 594, , 597, 598, 599 Commission of the European Communities v Spain [2009] E.C.R. I-9735; [2010] 1 C.M.L.R , 252, 631, 636, 637 Commission of the European Communities v Spain November 12, X v Staatssecretaris van Financien; Passenheim-van Schoot v Staatssecretaris van Financien [2009] All E.R. (EC) 888; [2009] S.T.C. 2441; [2009] E.C.R. I Commission of the European Communities v Germany (Emergency services) April 29, Presidente del Consiglio dei Ministri v Regione Sardegna [2010] All E.R. (EC) 1037; [2009] E.C.R. I-10821; [2010] 2 C.M.L.R. 8; [2010] C.E.C , 637, 642, 643, 644

185 xxviii Table of Cases (C-174/08) (C-175/08, C-176/08, C-178/08 & C-179/08 (C-203/08) (C-211/08) (C-212/08) (C-219/08) (C-229/08) (C-247/08) (C-258/08) (C-263/08) (C-265/08) (C-280/08 P) (C-314/08) (C-317/08, C-318/08, C-319/08 and C-320/08) (C-340/08) (C-341/08) (C-356/08) (C-358/08) (C-382/08) (C-386/08) (C-399/08 P) (C-406/08) (C-413/08 P) (C-447/08) NCC Construction Danmark A/S v Skatteministeriet [2010] S.T.C. 532; [2009] E.C.R. I-10567; [2010] B.V.C. 1093; [2009] S.T.I Aydin Salahadin Abdulla v Germany; Kamil Hasan v Germany; Ahmed Adem and Hamrin Mosa Rashi v Germany; Dler Jamal v Germany, March 2, Sporting Exchange Ltd (t/a Betfair) v Minister van Justitie [2010] 3 C.M.L.R , 247, 248, 249, , 256, 263 European Commission v Spain; sub nom. Medical Expenses, Re [2011] All E.R. (EC) 285; [2010] 3 C.M.L.R , 432, 434, 435, , 438, 439, 557, 649 Société Zeturf Ltd v Premier ministre, Ministre de l'agriculture et de la Pêche, Ministre de l'intérieur, de l'outre-mer et des Collectivités territoriales, Ministre de l'économie, de l'industrie et de l'emploi June 30, , 632, 639, 641, 642 Commission of the European Communities v Belgium (Posting of 3rd country workers) [2009] E.C.R. I , 644 Colin Wolf v Stadt Frankfurt am Main [2010] All E.R. (EC) 939; [2010] 2 C.M.L.R. 32; [2010] C.E.C. 1029; [2010] I.R.L.R , 596 Gaz de France - Berliner Investissement SA v Bundeszentralamt fur Steuern [2010] S.T.C. 1519; [2009] E.C.R. I-9225; [2010] 1 C.M.L.R. 22; [2010] S.T.I , 354, 356 Ladbrokes Betting & Gaming Ltd v Stichting de Nationale Sporttotalisator [2010] 3 C.M.L.R. 40; [2011] C.E.C , 247, 248, 249, , 258, 260, 262, 263, 264, 634, 642, 646 Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms Kommun genom dess Marknamnd [2009] E.C.R. I-9967; [2010] 1 C.M.L.R. 36; [2010] Env. L.R Federutility v Autorità per l'energia elettrica e il gas April 20, Deutsche Telekom AG v European Commission [2010] 5 C.M.L.R Krzysztof Filipiak v Dyrektor Izby Skarbowej w Poznaniu [2009] E.C.R. I-11049; [2010] C.M.L.R , 262, 626 Alassini v Telecom Italia SpA [2010] 3 C.M.L.R R. (on the application of M) v HM Treasury [2011] All E.R. (EC) 68; [2010] 3 C.M.L.R. 31; [2010] Lloyd's Rep. F.C Domnica Petersen v Berufungsausschuss für Zehnärtze fu r den Bezirk Westfalen-Lippe [2010] All E.R. (EC) 961; [2010] 2 C.M.L.R. 31; [2010] C.E.C. 998; [2010] I.R.L.R. 254; [2010] Pens. L.R , 589, 590, 593, , 598, 599, 642 Commission of the European Communities v Austria (Doctors' compulsory account) [2009] ECR I Aventis Pasteur SA v OB; sub nom. O'Byrne v Aventis Pasteur SA [2010] 1 W.L.R. 1375; [2010] Bus. L.R. 1344; [2010] All E.R. (EC) 522; [2010] 2 C.M.L.R. 16; [2010] C.E.C. 727; (2010) 113 B.M.L.R Neukirchinger v Bezirkshauptmannschaft Grieskirchen [2011] 2 C.M.L.R , 632, 635, 638, Brita GmbH v Hauptzollamt Hamburg-Hafen, February 25, , 125, 126, 130, , 134, 135 European Commission v Deutsche Post AG [2011] 1 C.M.L.R Uniplex (UK) Ltd v NHS Business Services Authority [2010] P.T.S.R. 1377; [2010] 2 C.M.L.R Lafarge SA v European Commission [2010] 5 C.M.L.R Criminal Proceedings against Sjöberg Criminal Proceedings against Gerdin [2011] 1 C.M.L.R , 250, 251, 263,

186 Table of Cases xxix (C-456/08) (C-458/08) (C-499/08) (C-512/08) (C-515/08) (C-564/08 P) (C-565/08) (C-576/08 P & T-284/08) (C-31/09) (C 34/09) (C-36/09 P) (C-45/09) (C-56/09) (T-56/09) (C-57/09 & C-101/09) (T-85/09) (C-90/09 P) (C-92/09 and C-93/09) (C-97/09) (C-104/09) (C-119/09) (C-137/09) (C-151/09) (C-173/09) (C-185/09) (C-189/09) (C-196/09) (C-201/09 and C-216/09) (C-202/09) (C-208/09) (C-211/09) (C-215/09) European Commission v Ireland; sub nom. Failure to Notify Unsuccessful Candidates, Re [2010] P.T.S.R. 1403; [2010] 2 C.M.L.R Commission of the European Communities v Portugal (Building services) November 18, , 624, 641, 644 Ingeniørforeningen i Danmark v Region Syddanmark [2011] 1 C.M.L.R , 594, 595 European Commission v France; sub nom. Law on Medical Treatment Abroad, Re [2011] 1 C.M.L.R , 557 Criminal Proceedings against dos Santos Palhota [2011] 1 C.M.L.R , 625, 634, 644 SGL Carbon AG v Commission of the European Communities [2009] E.C.R. I , 463 European Commission v Italy; sub nom. Mandatory Lawyers' Tariffs, Re [2011] All E.R. (EC) 585; [2011] 3 C.M.L.R , 628, 629, 645 People's Mojahedin Organization of Iran; People's Mojahedin Organization of Iran v Council (OMPI III) [2008] E.C.R. II-3487; [2009] 1 C.ML.R , 659, 662 Nawras Bolbol v Bevándorlási és Állampolgársági Hivatal, June 17, , 136, 137, 138, , 141, 142, 143, 144, 145 Ruiz Zambrano v Office national de l'emploi March 8, , 162, 704, 705, , 711, 712, 713, 714, 715, 716, 717, 718, 719, 720 Transportes Evaristo Molina v Commission November 11, Gisela Rosenbladt v Oellerking Gebäudereinigungsges, October 12, , 594, 596 Zanotti v Agenzia delle Entrate - Ufficio Roma 2 [2011] All E.R. (EC) 239; [2010] 3 C.M.L.R , 635 Saint-Gobain Glass France v Commission of the European Communities [2009] OJ C90/ Germany v B (C-57/09); Germany v D (C-101/09) [2011] Imm. A.R. 190; [2011] I.N.L.R , 644 Kadi v Commission, judgment of September 30, , 664 General Quimica SA v European Commission [2011] All E.R. (EC) 544; [2011] C.E.C Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen November 9, Schmelz v Finanzamt Waldviertel [2011] S.T.C , 352, 356, 616, , 632, 640 Roca Alvarez v Sesa Start Espana ETT SA [2011] All E.R. (EC) 253; [2011] 1 C.M.L.R. 28; (2010) 160 N.L.J , 596 Societe Fiduciaire Nationale d'expertise Comptable v Ministre du Budget, des Comptes Publics et de la Fonction Publique [2011] 3 C.M.L.R Josemans v Burgemeester van Maastricht [2011] 2 C.M.L.R , 632, 642, 643, 709 UGT-FSP, Opinion of AG Sharpston May 6, Elchinov v Natsionalna Zdravnoosiguritelna Kasa [2011] 1 C.M.L.R , 433, 434, 543, , 546, 547, 548, 549, 550, 551, 553, 554, 555, 556, 557, 649 Commission of the European Communities v Sweden February 4, Commission of the European Communities v Austria July 29, Miles v European Schools June 14, , 456 ArcelorMittal v European Commission Commission of the European Communities v Ireland [2009] E.C.R. I Sayn-Wittgenstein v Landeshauptmann von Wien [2011] 2 C.M.L.R. 28; [2011] E.T.M.R Commission of the European Communities v Greece [2009] E.C.R. I Mehiläinen and Terveystalo Healthcare December 22,

187 xxx Table of Cases (C-226/09) (C-245/09) (C-246/09) (C-272/09 P) (C-291/09) (C-338/09) (C-343/09) (C-352/09) (C-372/09) (C-398/09) (C-434/09) (C-447/09) (C-457/09) (T-457/09) (C-490/09) (C-518/09) (T-18/10 R) (T-29/10) (T-33/10) (C-134/10) (C-188/10 & C-189/10) (C-287/10) (C-394/10) (C-40/11) (C-256/11) Commission of the European Communities v Ireland (Interpretation and translation services) November 18, 2010 ECJ Omalet NV v Rijksdienst voor Sociale Zekerheid December 22, Susanne Bulicke v Deutsche Büro Service GmbH, July 8, KME v Commission of the European Communities Francesco Guarnieri & Cie v Aandevelde Eddy VOFApril 7, Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien [2011] 2 C.M.L.R Afton Chemical Ltd v Secretary of State for Transport [2011] 1 C.M.L.R ThyssenKrupp Nirosta GmbH v European Commission March 29, Proceedings Brought by Penarroja Fa [2011] 2 C.M.L.R , 636, 641, 644, 645 Lady & Kid A/S, Direct Nyt ApS, A/S Harald Nyborg Isenkram- og Sportsforretning and KID-Holding A/S v Skatteministeriet McCarthy v Secretary of State for the Home Department [2011] 3 C.M.L.R , 715, 716, 720 Reinhard Prigge, Michael Fromm and Volker Lambach v Deutsche Lufthansa AG May 19, Claude Chartry v Belgium Westfälisch-Lippischer Sparkassen- und Giroverband v Commission [2010] OJ C11/ Commission of the European Communities v Luxembourg (Laboratory analyses) January 27, Commission of the European Communities v Belgium (Estate agents) July 21, , 623, 641 Inuit Tapiriit Kanatami v European Parliament and Council, Order of April 30, Netherlands v Commission of the European Communities [2010] OJ C80/ ING Groep v Commission [2010] OJ C80/ Commission of the European Communities v Belgium (Must-carry status) March 3, Proceedings against Aziz Melki; and Sélim Abdeli, June 22, , 117, 118, 120, , 285, 550, 551, 581 Tankreederei I SA v Directeur de l'administration des Contributions Directes [2011] C.M.L.R , 646 Commission of the European Communities v Luxembourg August 4, Iida v City of Ulm Dereci v Bundesminister für Inneres , 713 European Court of Justice and General Court: Alphabetical List of Cases AC-Treuhand AG v Commission of the European Communities (T-99/04) [2009] Bus. L.R. 677; [2008] E.C.R. II-1501; [2008] 5 C.M.L.R ACF Chemiefarma NV v Commission of the European Communities (Quinine) (41/69) [1970] E.C.R , 192 AGM-COS.MET Srl v Finland (C-470/03); sub nom. AGM-COS.MET Srl v Suomen Valtio (C-470/03) [2007] All E.R. (EC) 1126; [2007] E.C.R. I-2749; [2007] 2 C.M.L.R , 358 AOK Bundesverband v Ichthyol Gesellschaft Cordes (C-264/01) [2004] E.C.R. I-2493; [2004] 4 C.M.L.R , 233, 235 ASM Brescia SpA v Comune di Rodengo Saiano (C-347/06) [2008] E.C.R. I-5641; [2008] 3 C.M.L.R , 25, 632

188 Table of Cases xxxi ATRAL SA v Belgium (C-14/02) [2003] E.C.R. I-4431; [2006] 1 C.M.L.R A-Punkt Schmuckhandels GmbH v Schmidt (C-441/04) [2006] All E.R. (EC) 1118; [2006] E.C.R. I-2093; [2006] 2 C.M.L.R Acereda Herrera v Servicio Cantabro de Salud (C-466/04) [2006] E.C.R. I-5341; [2006] 3 C.M.L.R. 24; [2006] C.E.C , 752 Adeneler v Ellinikos Organismos Galaktos (ELOG) (C-212/04) [2007] All E.R. (EC) 82; [2006] E.C.R. I-6057; [2006] 3 C.M.L.R. 30; [2006] I.R.L.R , 59 Advocaten voor de Wereld VZW v Leden van de Ministerraad (C-303/05) [2008] All E.R. (EC) 317; [2007] E.C.R. I-3633; [2007] 3 C.M.L.R. 1; [2008] C.E.C Aer Lingus Group plc v European Commission (T-411/07) [2011] 4 C.M.L.R Afton Chemical Ltd v Secretary of State for Transport (C-343/09) [2011] 1 C.M.L.R Ahmed Saeed Flugreisen v Zentrale zur Bekampfung Unlauteren Wettbewerbs ev (66/86); Silver Line Reiseburo GmbH v Zentrale zur Bekampfung Unlauteren Wettbewerbs ev (66/86) [1989] E.C.R. 803; [1990] 4 C.M.L.R Aid to Meura SA, Re (234/84); sub nom. Belgium v Commission of the European Communities (234/84) [1986] E.C.R. 2263; [1988] 2 C.M.L.R Air France v Commission of the European Communities (T-3/93) [1994] E.C.R. II , 505, 508 Air Inter SA v Commission of the European Communities (T-260/94) [1997] E.C.R. II-997; [1997] 5 C.M.L.R Airtours Plc v Commission of the European Communities (T-342/99) [2002] All E.R. (EC) 783; [2002] E.C.R. II-2585; [2002] U.K.C.L.R. 642; [2002] 5 C.M.L.R Âklagaren v Mickelsson and Roos (C-142/05) [2009] E.C.R. I-4273; [2009] All E.R. (EC) , 619, 633 Akzo Nobel Chemicals Ltd v European Commission (C-550/07 P) [2010] 5 C.M.L.R. 19; [2011] C.E.C. 253; (2010) 160 N.L.J Akzo Nobel NV v Commission of the European Communities (C-97/08 P); sub nom. Choline Chloride Cartel, Re (C-97/08 P) [2009] E.C.R. I-8237; [2009] 5 C.M.L.R Alassini v Telecom Italia SpA (C-317/08, C-318/08, C-319/08 and C-320/08) [2010] 3 C.M.L.R Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie (C-67/96) [1999] E.C.R. I-5751; [2000] 4 C.M.L.R , 235, 755 Albert Ruckdeschel & Co v Hauptzollamt Hamburg-St Annen (117/76); Diamalt AG v Hauptzollamt Itzehoe (16/77) [1977] E.C.R. 1753; [1979] 2 C.M.L.R Alliance for National Health and Nutri-link v Secretary of State for Health and the National Association of Health Stores Health Food Manufacturers Ltd v the Secretary of State for Health and the National Assembly for Wales (C-154/04 and C-155/04). See R. (on the application of Alliance for Natural Health) v Secretary of State for Health (C-154/04) Alpine Investments BV v Minister van Financien (C-384/93) [1995] All E.R. (EC) 543; [1995] E.C.R. I-1141; [1995] 2 B.C.L.C. 214; [1995] 2 C.M.L.R Alrosa Co Ltd v Commission of the European Communities (T-170/06) [2007] E.C.R. II-2601; [2007] 5 C.M.L.R , 651, 739, 740, 741 Altmark Trans and Regierungspräsidium Magdeburg (C-280/00) [2003] E.C.R. I-7747; [2003] C.M.L.R , 242, 565 Amann & Sohne GmbH & Co KG v European Commission (T-446/05) [2010] 5 C.M.L.R , 472, 473 Amministrazione delle Finanze dello Stato v Simmenthal SpA (106/77); sub nom. Italian Tax and Revenue Administration v SA Simmenthal, Monza (Italy) (106/77) [1978] E.C.R. 629; [1978] 3 C.M.L.R , 117, 262, 365, 581 Andersen (C-499/08). See Ingeniorforeningen i Danmark v Region Syddanmark (C-499/08) Angelidaki v Organismos Nomarkhiaki Aftodiikisi Rethimnis (C-378/07 C-380/07) [2009] E.C.R. I-3071; [2009] 3 C.M.L.R , 59 Antonio Muñoz y Cia SA v Frumar Ltd (C-253/00) [2003] Ch. 328; [2003] 3 W.L.R. 58; [2003] All E.R. (EC) 56; [2002] E.C.R. I-7289; [2002] 3 C.M.L.R Apostolides v Orams (C-420/07); sub nom. Orams v Apostolides (C-420/07) [2010] 1 All E.R. (Comm) 950; [2009] E.C.R. I Apothekerkammer des Saarlandes v Saarland (C-171/07) [2009] All E.R. (EC) 1001; [2009] E.C.R. I-4171; [2009] 3 C.M.L.R Aragonesa de Publicidad Exterior SA v Departmento de Sanidad y Seguridad Social de la Generalitat de Cataluna (C-1/90); Publivia SAE v Departmento de Sanidad y Seguridad Social de la Generalitat de Cataluna (C-176/90) [1991] E.C.R. I-4151; [1994] 1 C.M.L.R Arbeitsgemeinschaft der Offentlich Rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (ARD) v Commission of the European Communities (T-158/00) [2003] E.C.R. II-3825; [2004] 5 C.M.L.R

189 xxxii Table of Cases Arcelor v European Parliament and Council (T-16/04), judgment of March 2, ArcelorMittal v European Commission (C-201/09 and C-216/09) Archer Daniels Midland Co v Commission of the European Communities (C-510/06 P) [2009] E.C.R. I-1843; [2009] 4 C.M.L.R , 461, 463, 469, 470 Arnaud v Council of the European Communities (C-131/92) [1993] E.C.R. I Arnold André GmbH & Co KG v Landrat des Kreises Herford (C-434/02) [2004] E.C.R. I-11825; [2005] 1 C.M.L.R , 352 Artegodan GmbH v Commission of the European Communities (T-74/00) [2002] E.C.R. II-4945; (2003) 72 B.M.L.R Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia (C-220/06) [2007] E.C.R. I Associação Nacional de Operadores de Máquinas Recreativas (ANOMAR) v Portugal (C-6/01); sub nom. Associação Nacional de Operadores de Máquinas Recreativas (ANOMAR) v Estado Portugues (C-6/01) [2003] E.C.R. I-8621; [2004] 1 C.M.L.R Asturcom Telecomunicaciones SL v Rodriguez Nogueira (C-40/08) [2009] E.C.R. I-9579; [2010] 1 C.M.L.R. 29; [2010] C.E.C , 66 Audiolux SA v Groupe Bruxelles Lambert SA (GBL) (C-101/08) [2010] Bus. L.R. 197; [2009] E.C.R. I-9823; [2010] 1 C.M.L.R Autorità Garante della Concorrenza e del Mercato v Ente Tabacchi Italiani ETI SpA (C-280/06) [2007] E.C.R. I-10893; [2008] 4 C.M.L.R. 11; [2008] C.E.C Aventis Pasteur SA v OB (C-358/08); sub nom. O'Byrne v Aventis Pasteur SA (C-358/08) [2010] 1 W.L.R. 1375; [2010] Bus. L.R. 1344; [2010] All E.R. (EC) 522; [2010] 2 C.M.L.R. 16; [2010] C.E.C. 727; (2010) 113 B.M.L.R Aydin Salahadin Abdulla v Germany (C-175/08); Kamil Hasan v Germany (C-176/08); Ahmed Adem and Hamrin Mosa Rashi v Germany (C-178/08); Dler Jamal v Germany (C-179/08) March 2, BASF AG v Commission of the European Communities (T-101/05); UCB SA v Commission of the European Communities (T-111/05); sub nom. Choline Chloride Sector Cartel, Re (T-101/05) [2007] E.C.R. II-4949; [2008] 4 C.M.L.R , 195, 197, 206, BASF AG v Commission of the European Communities (T-15/02); sub nom. Vitamins Cartel, Re (T-15/02) [2006] E.C.R. II-497; [2006] 5 C.M.L.R , 195, 206, 468 BPB Industries Plc v Commission of the European Communities (C-310/93 P); British Gypsum Ltd v Commission of the European Communities (C-310/93 P) [1995] E.C.R. I-865; [1997] 4 C.M.L.R BPB Plc v Commission of the European Communities (T-53/03) [2008] E.C.R. II-1333; [2008] 5 C.M.L.R Baars v Inspecteur der Belastingdienst Particulieren/Ondernemingen Gorinchem (C-251/98) [2000] E.C.R. I-2787; [2002] 1 C.M.L.R. 49; 2 I.T.L. Rep , 82 Babyliss SA v Commission of the European Communities (T-114/02) [2003] E.C.R. II-1279; [2004] 5 C.M.L.R , 509, 513 Baumbast v Secretary of State for the Home Department (C-413/99) [2002] E.C.R. I-7091; [2002] 3 C.M.L.R. 23; [2003] I.C.R. 1347; [2003] I.N.L.R , 712, 719 Baustahlgewebe GmbH v Commission of the European Communities (C-185/95 P) [1998] E.C.R. I-8417; [1999] 4 C.M.L.R. 1203; (1999) 18 Tr. L.R Bayer AG v Commission of the European Communities (T-41/96) [2001] All E.R. (EC) 1; [2000] E.C.R. II-3383; [2001] 4 C.M.L.R. 4; [2001] I.C.R. 735; (2002) 63 B.M.L.R , 402 Bayer v Commission; Bundesverband der Arzneimittel Importeure v Bayer (C-2/01P and C-3/01P) [2004] E.C.R. I-23; [2004] C.M.L.R Bayerischer Rundfunk v GEWA (C-337/06) [2007] E.C.R. I Beecham Group Plc v Andacon NV (C-132/07) [2009] E.C.R. I , 283, 284 Belgian Sewing Thread (BST) NV v European Commission (T-452/05) [2010] 5 C.M.L.R Belgium v Commission of the European Communities (234/84). See Aid to Meura SA, Re (C34/84) Belgium v Commission of the European Communities (C-457/00) [2003] E.C.R. I Belgium v Les Vergers du Vieux Tauves SA (C-48/07) [2008] E.C.R. I-10627; [2009] 2 C.M.L.R Bertelsmann AG v Independent Music Publishers & Labels Association (IMPALA) (C-413/06 P) [2010] All E.R. (EC) 377; [2008] E.C.R. I-4951; [2008] 5 C.M.L.R Biret International SA v Council of the European Union (C-93/02 P) [2003] E.C.R. I-10497; [2006] 1 C.M.L.R

190 Table of Cases xxxiii Biret International SA v Council of the European Union (T-144/00) [2002] E.C.R. II , 383 Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH (C-427/06) [2009] All E.R. (EC) 113; [2008] E.C.R. I-7245; [2009] 1 C.M.L.R. 5; [2009] C.E.C. 133; [2008] Pens. L.R , 114, 122, 594, 598 Blanco Perez v Consejeria de Salud y Servicios Sanitarios (C-570/07); sub nom. Proceedings Brought by Blanco Perez (C-570/07) [2010] 3 C.M.L.R. 37; [2011] C.E.C , 618, 631, 632, Boehringer Mannheim GmbH v Commission of the European Communities (45/69) [1970] E.C.R , 192 Boehringer Mannheim GmbH v Commission of the European Communities (7/72) [1972] E.C.R. 1281; [1973] C.M.L.R Bollore SA v Commission of the European Communities (T-109/02) [2007] E.C.R. II-947; [2007] 5 C.M.L.R Bonapharma Arnzeimittel GmbH v Hauptzollamt Krefeld (C-334/93) [1995] E.C.R. I-319; [1996] 2 C.M.L.R Brasserie Nationale SA v Commission of the European Communities (T-49/02); sub nom. Luxembourg Brewers Cartel, Re (T-49/02) [2005] E.C.R. II-3033; [2006] 4 C.M.L.R , 462 Bristol Myers Squibb Co v Paranova A/S (C-427/93); Bayer AG v Paranova A/S (C-436/93); CH Boehringer Sohn v Paranova A/S (C-429/93) [2003] Ch. 75; [2002] 3 W.L.R. 1746; [1996] E.C.R. I-3457; [1997] 1 C.M.L.R. 1151; [1996] C.E.C. 716; [1996] E.T.M.R. 1; [1997] F.S.R. 102; (1997) 34 B.M.L.R , 346 British Aggregates Association v Commission of the European Communities (C-487/06 P) [2008] E.C.R. I-10505; [2009] 2 C.M.L.R. 10; [2009] Env. L.R Brita GmbH v Hauptzollamt Hamburg-Hafen (C-386/08) February 25, , 125, 126, 130, , 134, 135 Britannia Alloys & Chemicals Ltd v Commission of the European Communities (C-76/06 P) [2007] E.C.R. I-4405; [2007] 5 C.M.L.R. 3; [2007] Bus. L.R. D British Airways Plc v Commission of the European Communities (C-95/04 P) [2007] E.C.R. I-2331; [2007] 4 C.M.L.R. 22; [2007] C.E.C , 471 British Shoe Corp Footwear Supplies Ltd v Council of the European Union (T-598/97); sub nom. BSC Footwear Supplies v Council of the European Union (T-598/97) [2002] All E.R. (EC) 385; [2002] E.C.R. II-1155; [2002] 2 C.M.L.R British United Provident Association Ltd (BUPA) v Commission of the European Communities (T-289/03) [2008] E.C.R. II-81; [2009] 2 C.M.L.R , 234 Brunnhofer v Bank der Osterreichischen Postsparkasse AG (C-381/99) [2001] All E.R. (EC) 693; [2001] E.C.R. I-4961; [2001] 3 C.M.L.R. 9; [2001] I.R.L.R. 571; [2001] Emp. L.R Brzezínsky v Dyrektor Izby Celnej w Warszawie (C-313/05) [2007] E.C.R. I-513; [2007] 2 C.M.L.R. 4; [2007] C.E.C , 594 Buchler & Co v Commission of the European Communities (44/69) [1970] E.C.R , 192 Buet v Ministre Public (382/87) [1989] E.C.R. 1235; [1993] 3 C.M.L.R Bundesrepublik Deutschland v B and D (C-57/09 and C-101/09). See Germany v B (C-57/09) CEVA Santé Animale and Pharmacia Enterprises v Commission of the European Communities (T-344/00 and T-345/00) [2003] E.C.R. II , 275 CIA Security International SA v Signalson SA (C-194/94) [1996] All E.R. (EC) 557; [1996] E.C.R. I-2201; [1996] 2 C.M.L.R CILFIT Srl v Ministero della Sanita (283/81); sub nom. CILFIT Srl v Ministro della Sanita (283/81) [1982] E.C.R. 3415; [1983] 1 C.M.L.R , 563, 583 Caballero v Fondo de Garantia Salarial (FOGASA) (C-442/00) [2002] E.C.R. I-11915; [2003] I.R.L.R Cableuropa SA v Commission of the European Communities (T-346/02) [2003] E.C.R. II-4251; [2004] 5 C.M.L.R Caixa Bank France v Ministère de l'économie, des Finances et de l'industrie (C-442/02) [2004] E.C.R. I-8961; [2005] 1 C.M.L.R. 2; [2005] C.E.C , 79, 85, 625, 626 Campolargo v Commission of the European Communities (T-372/00) [2002] E.C.R. II Carl Borawitz v Landesversicherungsanstalt Westfalen (C-124/99) [2000] E.C.R. I Carlos Garcia Avello v Belgium (C-148/02) [2004] All E.R. (EC) 740; [2003] E.C.R. I-11613; [2004] 1 C.M.L.R , 161, 162, 710, 711 Carmen Media Group Ltd v Land Schleswig-Holstein (C-46/08) [2011] 1 C.M.L.R , 253, 254, 255, , 258, 259, 263, 264, 624 Carpenter v Secretary of State for the Home Department (C-60/00) [2003] Q.B. 416; [2003] 2 W.L.R. 267; [2003] All E.R. (EC) 577; [2002] E.C.R. I-6279; [2002] 2 C.M.L.R. 64; [2003] 2 F.C.R. 711; [2002] I.N.L.R , 718

191 xxxiv Table of Cases Cartesio Oktató és Szolgáltató bt (C-210/06); sub nom. Application Brought by Cartesio Oktato es Szolgaltato bt (C-210/06) [2009] Ch. 354; [2009] 3 W.L.R. 777; [2009] Bus. L.R. 1233; [2009] All E.R. (EC) 269; [2008] E.C.R. I-9641; [2009] B.C.C. 232; [2010] 1 B.C.L.C. 523; [2009] 1 C.M.L.R. 50; [2009] C.E.C , 83, 84, 85, , 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 304, 545, Carmen Media Group Ltd v Land Schleswig-Holstein (C-46/08) [2011] 1 C.M.L.R , 253, 254, 255, , 258, 259, 263, 264 Cemender Korkmaz Corner House Research and the Kurdish Human Rights Project v Commission (T-2/04) [2006] E.C.R. II , 271 Cementbouw Handel & Industrie BV v Commission of the European Communities (C-202/06 P) [2007] E.C.R. I-12129; [2008] 4 C.M.L.R Cementbouw Handel & Industrie BV v Commission of the European Communities (T-282/02) [2006] E.C.R. II-319; [2006] 4 C.M.L.R Centre d'exportation du Livre Francais (CELF) v Societe Internationale de Diffusion et d'edition (SIDE) (C-199/06) [2008] E.C.R. I-469; [2008] 2 C.M.L.R Centro di Musicologia Walter Stauffer v Finanzamt Munchen fur Korperschaften (C-386/04) [2008] S.T.C. 1439; [2006] E.C.R. I-8203; [2009] 2 C.M.L.R. 31; [2009] B.T.C. 651; [2006] S.T.I Centro Equestre da Leziria Grande Lda v Bundesamt fur Finanzen (C-345/04) [2007] All E.R. (EC) 680; [2008] S.T.C. 2250; [2007] E.C.R. I-1425; [2007] 2 C.M.L.R. 18; [2007] C.E.C. 564; [2007] S.T.I Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorita per le Garanzie nelle Comunicazioni (C-380/05) [2008] E.C.R. I-349; [2008] 2 C.M.L.R , 618 Centros Ltd v Erhvervs- og Selskabsstyrelsen (C-212/97) [2000] Ch. 446; [2000] 2 W.L.R. 1048; [2000] All E.R. (EC) 481; [1999] E.C.R. I-1459; [1999] B.C.C. 983; [2000] 2 B.C.L.C. 68; [1999] 2 C.M.L.R. 551; [2000] C.E.C , 75, 79, 80, , 636 Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (C-54/07) [2008] All E.R. (EC) 1127; [2008] E.C.R. I-5187; [2008] 3 C.M.L.R. 22; [2008] C.E.C. 1032; [2008] I.C.R. 1390; [2008] I.R.L.R , 38, 39 Chalkor AE Epexergasias Metallon v European Commission (T-21/05); sub nom. Copper Plumbing Tubes Cartel, Re (T-21/05) [2010] 5 C.M.L.R , 473 Cheil Jedang v Commission of the European Communities (T-220/00) [2003] E.C.R. II Chemial Farmaceutici SpA v DAF SpA (140/79) [1981] E.C.R. 1; [1981] 3 C.M.L.R , 639 Chemie Linz GmbH v Commission of the European Communities (C-245/92) [1999] E.C.R. I Chen v Secretary of State for the Home Department (C-200/02); Zhu v Secretary of State for the Home Department (C-200/02) [2005] Q.B. 325; [2004] 3 W.L.R. 1453; [2005] All E.R. (EC) 129; [2004] E.C.R. I-9925; [2004] 3 C.M.L.R. 48; [2004] C.E.C. 503; [2004] Imm. A.R. 754; [2005] I.N.L.R , 712, 713, 714, Chronopost SA v Union Francaise de l'express (UFEX) (C-341/06 P); La Poste v Union Francaise de l'express (UFEX) (C-342/06 P) [2008] E.C.R. I-4777; [2008] 3 C.M.L.R Cidrerie Ruwet SA v Cidre Stassen SA (C-3/99) [2000] E.C.R. I-8749; [2000] 3 C.M.L.R , 345 Cimenteries CBR SA v Commission of the European Communities (T-25/95) [2000] E.C.R. II-491; [2000] 5 C.M.L.R Cipolla v Fazari (C-94/04); Macrino v Meloni (C-202/04) [2007] All E.R. (EC) 699; [2006] E.C.R. I-11421; [2007] 4 C.M.L.R , 623, 628, 637, Cisal di Battistello Venanzio & Co SAS v Istituto Nazionale per l'assicurazione contro gli Infortuni sul Lavoro (INAIL) (C-218/00) [2002] E.C.R. I-691; [2002] 4 C.M.L.R Cityflyer Express Ltd v Commission of the European Communities (T-16/96) [1998] E.C.R. II-757; [1998] 2 C.M.L.R Claude Chartry v Belgium (C-457/09) Coats Holdings Ltd v Commission of the European Communities (T-36/05); sub nom. Haberdashery Cartel Appeal, Re (T-36/05) [2007] E.C.R. II-110; [2008] 4 C.M.L.R Coca-Cola Co v Commission of the European Communities (T-125/97) [2000] All E.R. (EC) 460; [2000] E.C.R. II-1733; [2000] 5 C.M.L.R Coditel Brabant SA v Commune d'uccle (C-324/07) [2008] E.C.R. I-8457; [2009] 1 C.M.L.R. 29; [2009] C.E.C

192 Table of Cases xxxv Cofac v Commission of the European Communities (T-158/07) [2009] E.C.R. II Cofidis SA v Jean Louis Fredout (C-473/00) [2002] E.C.R. I Coleman v Attridge Law (A Firm) (C-303/06) [2008] All E.R. (EC) 1105; [2008] E.C.R. I-5603; [2008] 3 C.M.L.R. 27; [2008] C.E.C. 986; [2008] I.C.R. 1128; [2008] I.R.L.R , 32, 33, 34, , 40, 41 Colin Wolf v Stadt Frankfurt am Main (C-229/08) [2010] All E.R. (EC) 939; [2010] 2 C.M.L.R. 32; [2010] C.E.C. 1029; [2010] I.R.L.R , 596 Comet BV v Produktschap voor Siergewassen (45/76) [1976] E.C.R , 548 Comité Central d'entreprise de la Société Générale des Grandes Sources v Commission (T-96/92 R) [1992] E.C.R. II Commission of the European Communities v Austria (C-221/00) [2003] E.C.R. I-1007; (2004) 76 B.M.L.R , 358, 360 Commission of the European Communities v Austria (C-205/06); sub nom. Pre-Accession Investment Agreements, Re (C-205/06) [2010] All E.R. (EC) 185; [2009] E.C.R. I-1301; [2009] 2 C.M.L.R Commission of the European Communities v Austria (C-393/05); sub nom. Inspection of Organic Produce by Private Bodies, Re (C-393/05) [2007] E.C.R. I-10195; [2008] 1 C.M.L.R , 636, 645 Commission of the European Communities v Austria (C-189/09) July 29, Commission of the European Communities v Austria (Alpine transit tolls) (C-205/98) [2000] E.C.R. I Commission of the European Communities v Austria (Boilers and pressure tanks) (C-257/05) [2006] E.C.R. I , 636, 644, 646 Commission of the European Communities v Austria (Doctors' compulsory account) (C-356/08) [2009] ECR I Commission of the European Communities v Austria (Patent attorneys) (C-564/07) [2009] E.C.R. I , 626 Commission of the European Communities v Austria (Posting of 3rd country workers) (C-168/04) [2006] E.C.R. I , 627, 636, 642 Commission of the European Communities v BASF (C-137/92 P) [1994] E.C.R. I Commission of the European Communities v Belgium (C-227/06) [2008] E.C.R. I Commission of the European Communities v Belgium (Estate agents) (C-518/09) July 21, , 623, 641 Commission of the European Communities v Belgium (Must-carry status) (C-134/10) March 3, Commission of the European Communities v Belgium (Occupational pension schemes) (C-522/04) [2007] E.C.R. I-5701; [2007] Pens. L.R , 621, 639, 645, 646 Commission of the European Communities v Belgium (Posting of 3rd country workers) (C-219/08) [2009] E.C.R. I , 644 Commission of the European Communities v Belgium (Withholding obligation) (C-433/04) [2006] E.C.R. I , 632, 638 Commission of the European Communities v Council of Ministers of the European Communities (C-155/91) [1993] E.C.R. I-939; [1993] Env. L.R Commission of the European Communities v Council of Ministers (218/82); sub nom. Reexport of Caribbean Rum, Re (218/82) [1983] E.C.R. 4063; [1984] 2 C.M.L.R Commission of the European Communities v Council of the European Communities (22/70); sub nom. European Road Transport Agreement, Re (22/70) [1971] E.C.R. 263; [1971] C.M.L.R , 412, 416, 417, Commission of the European Communities v Council of the European Communities (45/86); sub nom. Generalised Tariff Preferences, Re (45/86) [1987] E.C.R. 1493; [1988] 2 C.M.L.R Commission of the European Communities v Council of the European Communities (C-300/89); sub nom. Titanium Dioxide Directive, Re (C-300/89) [1991] E.C.R. I-2867; [1993] 3 C.M.L.R Commission of the European Communities v Council of the European Union (C-25/94) [1996] E.C.R. I , 415, 529 Commission of the European Communities v Council of the European Union (C-176/03) [2006] All E.R. (EC) 1; [2005] E.C.R. I-7879; [2005] 3 C.M.L.R. 20; [2006] Env. L.R Commission of the European Communities v Council of the European Union (C-27/04) [2004] E.C.R. I , 574 Commission of the European Communities v Council of the European Union (C-440/05) [2008] All E.R. (EC) 489; [2007] E.C.R. I-9097; [2008] 1 C.M.L.R. 22; [2008] Env. L.R Commission of the European Communities v Council of the European Union (C-13/07) Opinion of AG Kokott, March 26,

193 xxxvi Table of Cases Commission of the European Communities v Council of the European Union (C-91/05); sub nom. Validity of Decision 2004/833, Re (C-91/05) [2008] E.C.R. I-3651; [2008] 3 C.M.L.R Commission of the European Communities v Denmark (C-192/01); sub nom. Prohibition of Marketing of Enriched Foods, Re (C-192/01) [2003] E.C.R. I-9693; [2003] 3 C.M.L.R Commission of the European Communities v Denmark (C-150/04); sub nom. Taxation of Pension Contributions, Re (C-150/04) [2007] S.T.C. 1392; [2007] E.C.R. I-1163; [2007] 2 C.M.L.R. 16; [2007] S.T.I , 621, 627, 640 Commission of the European Communities v European Parliament (C-378/00) [2003] All E.R. (EC) 421; [2003] E.C.R. I Commission of the European Communities v Finland (C-118/07) [2010] All E.R. (EC) 558; [2009] E.C.R. I , 417 Commission of the European Communities v France (216/84) [1988] E.C.R Commission of the European Communities v France (C-262/02) [2005] All E.R. (EC) 157; [2004] E.C.R. I-6569; [2004] 3 C.M.L.R Commission of the European Communities v France (C-334/02); sub nom. Levy to Income on Investments, Re (C-334/02) [2007] S.T.C. 54; [2004] E.C.R. I-2229; [2005] 2 C.M.L.R. 24; [2006] 1 C.M.L.R. 44; [2006] B.T.C. 55; 6 I.T.L. Rep. 642; [2004] S.T.I Commission of the European Communities v France (C-255/04); sub nom. Law on Licensing System of Performing Artists Agents, Re (C-255/04) [2007] All E.R. (EC) 435; [2006] E.C.R. I-5251; [2006] 3 C.M.L.R , 639, 642, 645 Commission of the European Communities v France (C-389/05); sub nom. Artificial Insemination Centre for Bovine Animals, Re (C-389/05) [2008] E.C.R. I-5337; [2008] 3 C.M.L.R , 621, 623, 639, 647 Commission of the European Communities v France (Franking machines) (21/84) [1985] E.C.R Commission of the European Communities v France (Homeopathy) (C-212/03) [2005] E.C.R. I Commission of the European Communities v Germany (178/84); sub nom. Purity Requirements for Beer, Re (178/84) [1987] E.C.R. 1227; [1988] 1 C.M.L.R , 618 Commission of the European Communities v Germany (205/84); sub nom. Insurance Services, Re (205/84) [1986] E.C.R. 3755; [1987] 2 C.M.L.R , 341, 620 Commission of the European Communities v Germany (C-131/93); sub nom. Crayfish Imports, Re [1994] E.C.R. I-3303; [1995] 2 C.M.L.R Commission of the European Communities v Germany (C-61/94); sub nom. International Dairy Agreement, Re (C-61/94) [1996] E.C.R. I-3989; [1997] 1 C.M.L.R Commission of the European Communities v Germany (C-433/03) [2005] E.C.R. I , 415, 416, 525, , 531, 532, 534 Commission of the European Communities v Germany (C-244/04); sub nom. Work Visa Regime, Re (C-244/04) [2006] E.C.R. I-885; [2006] 2 C.M.L.R , 624, 641 Commission of the European Communities v Germany (C-318/05) [2008] All E.R. (EC) 556; [2008] S.T.C. 1357; [2007] E.C.R. I-6957; [2007] S.T.I , 640 Commission of the European Communities v Germany (C-404/05); sub nom. Inspection of Organic Produce by Private Bodies, Re (C-404/05) [2007] E.C.R. I-10239; [2008] 1 C.M.L.R , 636, 645 Commission of the European Communities v Germany (Emergency services) (C-160/08) April 29, Commission of the European Communities v Germany (Paid leave fund) (C-490/04) [2007] E.C.R. I , 625, 634 Commission of the European Communities v Germany (C-141/07); sub nom. Supply of Medicines by Pharmacies to Nearby Hospitals, Re (C-141/07) [2008] E.C.R. I-6935; [2008] 3 C.M.L.R Commission of the European Communities v Greece (C-230/89); sub nom. VAT on Spirits, Re [1991] E.C.R. I-1909; [1993] 1 C.M.L.R Commission of the European Communities v Greece (C-65/05) [2007] All E.R. (EC) 738; [2006] E.C.R. I-10341; [2007] 1 C.M.L.R. 26; [2007] C.E.C , 146, 620 Commission of the European Communities v Greece (C-45/07) [2009] 1 Lloyd's Rep. 425; [2009] E.C.R. I-701; [2009] 2 C.M.L.R , 416, 533, 534, Commission of the European Communities v Greece (C-211/09) [2009] E.C.R. I Commission of the European Communities v Greece (Batteries recycling) (C-215/98) [1999] E.C.R. I Commission of the European Communities v Greece (Ouzo) (C-475/01) [2004] E.C.R. I , 357, 358, 359 Commission of the European Communities v Hellenic Republic (C-120/94) [1996] E.C.R. I-1513; 100 I.L.R

194 Table of Cases xxxvii Commission of the European Communities v Ireland (C-459/03); sub nom. Dispute over MOX Plant, Re (C-459/03) [2006] All E.R. (EC) 1013; [2006] E.C.R. I-4635; [2006] 2 C.M.L.R , 411, 417, 527, Commission of the European Communities v Ireland (C-507/03); sub nom. Irish Post Office Contract, Re (C-507/03) [2007] E.C.R. I-9777; [2008] 1 C.M.L.R. 34; [2008] C.E.C Commission of the European Communities v Ireland (C-202/09) [2009] E.C.R. I Commission of the European Communities v Ireland (Interpretation and translation services) (C-226/09) November 18, 2010 ECJ Commission of the European Communities v Italy (24/68); sub nom. Statistical Levy, Re (24/68) [1969] E.C.R. 193; [1971] C.M.L.R Commission of the European Communities v Italy (C-128/89); sub nom. Imports of Grapefruit, Re (C-128/89) [1990] E.C.R. I-3239; [1991] 3 C.M.L.R Commission of the European Communities v Italy (C-35/96) [1988] E.C.R. I-3851; [1998] C.M.L.R Commission of the European Communities v Italy (C-129/00); sub nom. Law on Recovery of Taxes Levied in Breach of EC Law, Re (C-129/00) [2003] E.C.R. I-14637; [2006] 2 C.M.L.R Commission of the European Communities v Italy (C-260/04) [2007] E.C.R. I-7083; [2007] 3 C.M.L.R , 248, 252, 639 Commission of the European Communities v Italy (C-110/05); sub nom. Motorcycle Trailers, Re (C-110/05) [2009] All E.R. (EC) 796; [2009] E.C.R. I-519; [2009] 2 C.M.L.R , 619, 622, 633 Commission of the European Communities v Italy (C-134/05); sub nom. Licensing of Debt Collection Services, Re (C-134/05) [2007] E.C.R. I-6251; [2007] 3 C.M.L.R , 628, 645 Commission of the European Communities v Italy (C-465/05); sub nom. Private Security Guards, Re (C-465/05) [2007] E.C.R. I-11091; [2008] 2 C.M.L.R , 626, 630, 636, Commission of the European Communities v Italy (C-518/06) [2009] E.C.R. I-3491; [2009] 3 C.M.L.R , 629, 630, 645, 646 Commission of the European Communities v Italy (C-437/07) [2008] E.C.R. I Commission of the European Communities v Italy (Healthcare transport) (C-119/06) [2007] E.C.R. I Commission of the European Communities v Jégo-Quéré (C-263/02 P) [2005] Q.B. 237; [2005] 2 W.L.R. 179; [2004] All E.R. (EC) 983; [2004] E.C.R. I-3425; [2004] 2 C.M.L.R. 12; [2004] C.E.C , 506 Commission of the European Communities v Lisrestal Organização Gestão de Restaurantes Colectivos Ldª (C-32/95 P) [1996] E.C.R. I-5393; [1997] 2 C.M.L.R Commission of the European Communities v Luxembourg (C-266/03) [2005] E.C.R. I , 416, 527, 530, , 538 Commission of the European Communities v Luxembourg (C-319/06) [2009] All E.R. (EC) 1049; [2008] E.C.R. I-4323; [2009] I.R.L.R , 615, 624, 628, , 647 Commission of the European Communities v Luxembourg (C-394/10) August 4, Commission of the European Communities v Luxembourg (Laboratory analyses) (C-490/09) January 27, Commission of the European Communities v Netherlands (C-299/02) [2004] E.C.R. I Commission of the European Communities v Portugal (Building services) (C-458/08) November 18, , 624, 641, 644 Commission of the European Communities v Portugal (Mortgage interest taxation) (C-105/08) June 17, Commission of the European Communities v Scott SA (C-290/07 P) [2011] 1 C.M.L.R Commission of the European Communities v Spain (C-414/97) [1999] E.C.R. I-5585; [2001] 2 C.M.L.R Commission of the European Communities v Spain (C-12/00); sub nom. Marketing of Chocolate, Re (C-12/00) [2003] E.C.R. I-459; [2005] 2 C.M.L.R Commission of the European Communities v Spain (C-204/03) [2006] S.T.C. 1087; [2005] E.C.R. I-8389; [2006] C.E.C. 31; [2009] B.V.C. 875; [2005] S.T.I Commission of the European Communities v Spain (C-153/08) [2009] E.C.R. I-9735; [2010] 1 C.M.L.R , 252, 631, 636, 637 Commission of the European Communities v Spain (C-154/08) November 12, Commission of the European Communities v Spain (Cabotage) (C-323/03) [2006] E.C.R. I , 634 Commission of the European Communities v Spain (Deduction of R&D costs) (C-248/06) [2008] E.C.R. I , 637, 639

195 xxxviii Table of Cases Commission of the European Communities v Spain (Private security undertakings) (C-514/03) [2006] E.C.R. I , 624, 625, 634, Commission of the European Communities v Sweden (C-185/09) February 4, Commission of the European Communities v Tetra Laval BV (C-12/03 P) [2005] All E.R. (EC) 1059; [2005] E.C.R. I-987; [2005] 4 C.M.L.R , 472 Commission of the European Communities v United Kingdom (170/78). See Excise Duties on Wine, Re (170/78) Commission of the European Communities v United Kingdom (804/79) [1981] E.C.R. I Commission of the European Communities v United Kingdom (C-466/98); sub nom. Open Skies Agreement, Re (C-466/98) [2002] E.C.R. I-9427; [2003] 1 C.M.L.R Commission of the European Economic Community v Belgium (90/63); sub nom. Import of Milk Products, Re (90/63) [1964] E.C.R. 625; [1965] C.M.L.R Compagnie de Saint-Gobain, Zweigniederlassung Germany v Finanzamt Aachen-Innenstadt (C-307/97) [2000] S.T.C. 854; [1999] E.C.R. I-6161; [2001] 3 C.M.L.R , 82 Consorzio Aziende Metano (CoNaMe) v Comune di Cingia de Botti (C-231/03) [2005] E.C.R. I-7287; [2006] 1 C.M.L.R Consorzio del Prosciutto di Parma v Asda Stores Ltd (C-108/01) [2003] E.C.R. I-5121; [2003] 2 C.M.L.R. 21; [2004] E.T.M.R. 23; (2003) 26(6) I.P.D ; Corporación Dermoestética v To Me Advertising Media (C-500/06) [2008] E.C.R. I-5785; [2008] 3 C.M.L.R , 621, 631, 634, Corus UK v Commission of the European Communities (C-199/99 P) [2003] E.C.R. I Costa v Ente Nazionale per l'energia Elettrica (ENEL) (6/64) [1964] E.C.R. 585; [1964] C.M.L.R Courage Ltd v Crehan (C-453/99); sub nom. Crehan v Courage Ltd (C-453/99) [2002] Q.B. 507; [2001] 3 W.L.R. 1646; [2001] All E.R. (EC) 886; [2001] E.C.R. I-6297; [2002] U.K.C.L.R. 171; [2001] 5 C.M.L.R. 28; [2001] C.E.C. 297; [2002] I.C.R Cowan v Tresor Public (186/87) [1989] E.C.R. 195; [1990] 2 C.M.L.R. 613; , 711 Criminal Proceedings against Berendse-Koenen MG en Berendse H.D. Maatschap (C-246/98) [2000] E.C.R. I Criminal Proceedings against Calfa (C-348/96); sub nom. Calfa, Re (C-348/96) [1999] All E.R. (EC) 850; [1999] E.C.R. I-11; [1999] 2 C.M.L.R. 1138; [1999] C.E.C. 477; [1999] I.N.L.R. 333; (1999) 96(19) L.S.G Criminal Proceedings against Christina Bellamy and English Shop Wholesale SA (C-123/00) [2001] E.C.R. I Criminal Proceedings against Corbeau (C-320/91) [1993] E.C.R. I-2533; [1995] 4 C.M.L.R Criminal Proceedings against dos Santos Palhota (C-515/08) [2011] 1 C.M.L.R , 625, 634, 644 Criminal Proceedings against Edmond Huygen (C-12/92) [1993] E.C.R. I , 130 Criminal Proceedings against Engelmann (C-64/08) [2011] 1 C.M.L.R , 251, 252, 253, , 260, 263, 634, 637, 639, 642 Criminal Proceedings against Gambelli (C-243/01) [2003] E.C.R. I-13031; [2006] 1 C.M.L.R , 249, 250, 253, , 259, 260, 262, 642 Criminal Proceedings against Gasparini (C-467/04) [2006] E.C.R. I-9199; [2007] 1 C.M.L.R Criminal Proceedings against Giorgio Zoni (90/86) [1988] E.C.R. I , 368, 369, 370, Criminal proceedings against Gottfried Linhart and Hans Biffl (C-99/01) [2002] E.C.R. I , 358 Criminal Proceedings against Gözutok (C-187/01); Criminal Proceedings against Brugge (C-385/01) [2003] E.C.R. I-1345; [2003] 2 C.M.L.R Criminal Proceedings against Gysbrechts (C-205/07) [2009] All E.R. (EC) 711; [2009] 2 All E.R. (Comm) 951; [2008] E.C.R. I-9947; [2009] 2 C.M.L.R. 2; [2009] C.E.C , 352 Criminal Proceedings against Josef Corsten (C-58/98) [2000] E.C.R. I Criminal Proceedings against Keck (C-267/91); Criminal Proceedings against Mithouard (C-268/91) [1993] E.C.R. I-6097; [1995] 1 C.M.L.R , 627, 633 Criminal Proceedings against Kieffer (C-114/96); Criminal Proceedings against Thill (C-114/96) [1997] E.C.R. I-3629; [1997] 3 C.M.L.R , 356 Criminal Proceedings against Leifer (C-83/94) [1995] E.C.R. I

196 Table of Cases xxxix Criminal Proceedings against MacQuen; sub nom. Criminal Proceedings against MacQueen (C-108/96) [2001] E.C.R. I-837; [2002] 1 C.M.L.R Criminal Proceedings against Miraglia (C-469/03) [2005] E.C.R. I-2009; [2005] 2 C.M.L.R Criminal Proceedings against Placanica (C-338/04) [2007] All E.R. (EC) 827; [2007] E.C.R. I-1891; [2007] 2 C.M.L.R , 246, 249, 250, , 254, 255, 256, 258, 260, 261, 262, 620, 625, 634, 639, 642 Criminal Proceedings against Pupino (C-105/03) [2006] Q.B. 83; [2005] 3 W.L.R. 1102; [2006] All E.R. (EC) 142; [2005] E.C.R. I-5285; [2005] 2 C.M.L.R. 63; [2006] C.E.C , 526 Criminal Proceedings against Sanz de Lera (C-163/94) [1995] E.C.R. I-4821; [1996] 1 C.M.L.R Criminal Proceedings against Sjöberg (C-447/08); Criminal Proceedings against Gerdin (C-448/08) [2011] 1 C.M.L.R , 250, 251, 263, Criminal Proceedings against Skanavi (C-193/94) [1996] All E.R. (EC) 435; [1996] E.C.R. I-929; [1997] R.T.R. 344; [1996] 2 C.M.L.R. 372; [1996] C.E.C , 355 Criminal Proceedings against Van Esbroeck (C-436/04); sub nom. Van Esbroeck v Openbaar Ministerie (C-436/04) [2006] E.C.R. I-2333; [2006] 3 C.M.L.R Criminal Proceedings against Wijsenbeek, Re (C-378/97); sub nom. Wijsenbeek, Re (C-378/97) [1999] E.C.R. I-6207; [2001] 2 C.M.L.R. 53; [2000] I.N.L.R Customs and Excise Commissioners v Schindler (C-275/92) [1994] Q.B. 610; [1994] 3 W.L.R. 103; [1994] 2 All E.R. 193; [1994] E.C.R. I-1039; [1995] 1 C.M.L.R , 255, 259, 260 DaimlerChrysler AG v Land Baden-Wurttemberg (C-324/99) [2002] Q.B. 1102; [2002] 3 W.L.R. 694; [2001] E.C.R. I-9897; [2002] Env. L.R. D , 359 Danner v Finland (C-136/00) [2002] S.T.C. 1283; [2002] E.C.R. I-8147; [2002] 3 C.M.L.R. 29; [2003] C.E.C. 156; [2003] O.P.L.R. 293; [2002] Pens. L.R. 469; 5 I.T.L. Rep. 119; [2002] S.T.I Dansk Rørindustri v Commission of the European Communities (C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P) [2005] E.C.R. I-5425; [2005] C.M.L.R , 197, 460 Danske Slagterier v Germany (C-445/06) [2010] All E.R. (EC) 74; [2009] E.C.R. I-2119; [2009] 3 C.M.L.R , 53 David Hütter v Technische Universität Graz (C-88/08) [2009] All E.R. (EC) 1129; [2009] E.C.R. I-5325; [2009] 3 C.M.L.R. 35; [2010] C.E.C , 589, 596 De Cuyper v Office National de l'emploi (ONEM) (C-406/04) [2006] All E.R. (EC) 947; [2006] E.C.R. I-6947; [2006] 3 C.M.L.R. 44; [2006] C.E.C. 937; [2007] I.C.R De Groot en Slot Allium BV v Ministere de l'economie, des Finances et de l'industrie (C-147/04) [2006] E.C.R. I-245; [2009] 1 C.M.L.R De Lasteyrie du Saillant v Ministere de l'economie, des Finances et de l'industrie (C-9/02) [2005] S.T.C. 1722; [2004] E.C.R. I-2409; [2004] 3 C.M.L.R. 39; [2006] B.T.C. 105; 6 I.T.L. Rep. 666; [2004] S.T.I De Nationale Loterij NV v Cutomer Service Agency BVBA (C-525/06) [2009] E.C.R. I , 283 Decker v Caisse de Maladie des Employés Privés (C-120/95) [1998] E.C.R. I-1831; [1998] 2 C.M.L.R , 345, 542, 543, Defrenne v SA Belge de Navigation Aerienne (SABENA) (149/77); sub nom. Defrenne v SA Belge d'exploitation de la Navigation Aerienne (SABENA) (149/77) [1978] E.C.R. 1365; [1978] 3 C.M.L.R Degussa AG v Commission of the European Communities (T-279/02) [2006] E.C.R. II-897; [2008] 5 C.M.L.R , 196 Dekker v Stichting Vormingscentrum voor Jonge Volwassenen Plus (C-177/88) [1990] E.C.R. I-3941; [1992] I.C.R. 325; [1991] I.R.L.R Denkavit Futtermittel GmbH v Land Baden-Wurttemberg (C-39/90) [1991] E.C.R. I-3069; [1994] 1 C.M.L.R , 355 Denkavit Loire SARL v France (Customs Authorities) (132/78) [1979] E.C.R. 1923; [1979] 3 C.M.L.R Denkavit Nederland BV v Hoofdproduktschap voor Akkerbouwprodukten (15/83) [1984] E.C.R , 352 Der Grune Punkt - Duales System Deutschland GmbH v Commission of the European Communities (C-385/07 P) [2009] E.C.R. I-6155; [2009] 5 C.M.L.R Der Grune Punkt - Duales System Deutschland GmbH v Commission of the European Communities (T-151/01) [2007] E.C.R. II-1607; [2007] 5 C.M.L.R. 4; [2007] E.T.M.R Dereci v Bundesminister für Inneres (C-256/11) , 713 Deutsche Levensmittelwerke v Commission of the European Communities (C-97/85) [1987] E.C.R Deutsche Paracelsusschulen v Gräbner (C-294/00) [2002] E.C.R. I

197 xl Table of Cases Deutsche Telekom AG v Commission of the European Communities (T-271/03) [2008] E.C.R. II-477; [2008] 5 C.M.L.R Deutsche Telekom AG v European Commission (C-280/08 P) [2010] 5 C.M.L.R Deutscher Apothekerverband ev v 0800 DocMorris NV (C-322/01) [2003] E.C.R. I-14887; [2005] 1 C.M.L.R. 46; (2005) 81 B.M.L.R , 618 Dirk Rüffert v Land Niedersachen (C-346/06) [2008] All E.R. (EC) 902; [2008] E.C.R. I-1989; [2008] 2 C.M.L.R. 39; [2008] C.E.C. 925; [2008] I.R.L.R , 223 Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms Kommun genom dess Marknamnd (C-263/08) [2009] E.C.R. I-9967; [2010] 1 C.M.L.R. 36; [2010] Env. L.R Domnica Petersen v Berufungsausschuss für Zehnärtze für den Bezirk Westfalen-Lippe (C-341/08) [2010] All E.R. (EC) 961; [2010] 2 C.M.L.R. 31; [2010] C.E.C. 998; [2010] I.R.L.R. 254; [2010] Pens. L.R , 589, 590, 593, , 598, 599, 642 Douwe Egberts NV v Westrom Pharma NV (C-239/02) [2004] E.C.R. I-7007; [2005] 2 C.M.L.R Dr Tretter GmbH & Co. v Hauptzollamt Stuttgart-Ost (C-90/92) [1993] E.C.R. I Dresdner Bank AG v Commission of the European Communities (T-44/02) [2007] 4 C.M.L.R Du Pont v Commission of the European Communities (T-31/07R) Order of July 19, Dunlop Slazenger International Ltd v Commission of the European Communities (T-43/92) [1994] E.C.R. II , 193 E.ON Energie v Commission of the European Communities (T-141/08) December 15, easyjet Airline Co Ltd v Commission of the European Communities (T-177/04) [2006] E.C.R. II-1931; [2006] 5 C.M.L.R , 515, 522 Eco Swiss China Time Ltd v Benetton International NV (C-126/97) [1999] 2 All E.R. (Comm) 44; [1999] E.C.R. I-3055; [1999] U.K.C.L.R. 183; [2000] 5 C.M.L.R Edilizia Industriale Siderurgica Srl (EDIS) v Ministero delle Finanze (C-231/96) [1998] E.C.R. I-4951; [1999] 2 C.M.L.R. 995; [1999] C.E.C Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Köster, Berodt & Co (25/70). See Internationale Handelsgesellschaft mbh v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel (11/70) El Morabit v Council (T-37/07 and T-323/07) [2009] E.C.R. II Elchinov v Natsionalna Zdravnoosiguritelna Kasa (C-173/09) [2011] 1 C.M.L.R , 433, 434, 543, , 546, 547, 548, 549, 550, 551, 553, 554, 555, 556, 557, 649 Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis (DEP) (C-260/89); Elliniki Radiophonia Tileorassi AE (ERT) v Sotirios Kouvelas [1991] E.C.R. I-2925; [1994] 4 C.M.L.R Emmott v Minister for Social Welfare (C-208/90); Emmott v Attorney General (C-208/90) [1991] E.C.R. I-4269; [1991] 3 C.M.L.R. 894; [1993] I.C.R. 8; [1991] I.R.L.R , 53 Empresa Nacional de Uranio SA (ENU) v Commission of the European Communities (C-107/91) [1993] E.C.R. I Enderby v Frenchay HA (C-127/92) [1994] 1 All E.R. 495; [1993] E.C.R. I-5535; [1994] 1 C.M.L.R. 8; [1994] I.C.R. 112; [1993] I.R.L.R Ente per le Ville vesuviane v Commission (T-189/02) [2007] E.C.R. II Erste Group Bank AG v Commission of the European Communities (C-125/07 P); Osterreichische Volksbanken AG v Commission of the European Communities (C-137/07 P); Bank Austria Creditanstalt AG v Commission of the European Communities (C-135/07 P); Raiffeisen Zentralbank Österreich AG v Commission of the European Communities (C-133/07 P); sub nom. Erste Bank der Osterreichischen Sparkassen AG v Commission of the European Communities (C-125/07 P) [2009] E.C.R. I-8681; [2010] 5 C.M.L.R , 196, 468, 470 Estee Lauder Cosmetics GmbH & Co OHG v Lancaster Group GmbH (C-220/98) [2000] All E.R. (EC) 122; [2000] E.C.R. I-117; [2000] 1 C.M.L.R. 515; [2000] C.E.C Etablissements Consten Sarl v Commission of the European Economic Community (56/64); Grundig-Verkaufs GmbH v Commission of the European Economic Community (58/64) [1966] E.C.R. 299; [1966] C.M.L.R , 317, 616 Eugen Schmidberger Internationale Transporte Planzuge v Austria (C-112/00) [2003] E.C.R. I-5659; [2003] 2 C.M.L.R European Commission v Alrosa Co Ltd (C-441/07 P); sub nom. Commission of the European Communities v Alrosa Co Ltd (C-441/07) [2011] All E.R. (EC) 1; [2010] 5 C.M.L.R. 11; [2011] Bus. L.R. D , 469, 737, 738, , 743, 745, 746, 747, 748 European Commission v Deutsche Post AG (C-399/08 P) [2011] 1 C.M.L.R

198 Table of Cases xli European Commission v France (C-512/08); sub nom. Law on Medical Treatment Abroad, Re (C-512/08) [2011] 1 C.M.L.R , 557 European Commission v Germany (C-518/07) [2010] 3 C.M.L.R , 112, 123 European Commission v Germany (C-546/07); sub nom. Restrictions for Polish Workers, Re (C-546/07) [2010] 2 C.M.L.R , 631, 636, 637 European Commission v Ireland (C-456/08); sub nom. Failure to Notify Unsuccessful Candidates, Re (C-456/08) [2010] P.T.S.R. 1403; [2010] 2 C.M.L.R European Commission v Italy (C-565/08); sub nom. Mandatory Lawyers' Tariffs, Re (C-565/08) [2011] All E.R. (EC) 585; [2011] 3 C.M.L.R , 628, 629, 645 European Commission v Spain (C-211/08); sub nom. Medical Expenses, Re (C-211/08) [2011] All E.R. (EC) 285; [2010] 3 C.M.L.R , 432, 434, 435, , 438, 439, 557, 649 European Commission v Sweden (C-246/07) [2010] All E.R. (EC) 1198; [2010] 3 C.M.L.R , 406, 407, 408, , 411, 412, 413, 414, 415, 416, 417, 418, 525, 536, 537, 538 European Parliament v Council of Ministers of the European Communities (C-70/88) [1990] E.C.R. I-2041; [1992] 1 C.M.L.R , 487 European Parliament v Council of Ministers of the European Communities (C-181/91 and C-248/91); European Parliament v Commission of the European Communities; sub nom. Aid to Bangladesh, Re [1993] E.C.R. I-3685; [1994] 3 C.M.L.R European Parliament v Council of Ministers of the European Communities (316/91); sub nom. European Development Fund, Re (316/91) [1994] E.C.R. I-625; [1994] 3 C.M.L.R , 412 European Parliament v Council of Ministers of the European Communities (C-417/93); sub nom. Continuation of the TACIS Programme, Re [1995] E.C.R. I-1185; [1995] 2 C.M.L.R European Parliament v Council of the European Union (C-317/04); European Parliament v Council of the European Union (C-318/04) [2007] All E.R. (EC) 278; [2006] E.C.R. I-4721; [2006] 3 C.M.L.R Europemballage Corp v Commission of the European Communities (6/72) [1973] E.C.R. 215; [1973] C.M.L.R , 610 Excise Duties on Wine, Re (170/78); sub nom. Commission of the European Communities v United Kingdom (170/78) [1980] E.C.R. 417; [1980] 1 C.M.L.R , 618 Extramet Industrie SA v Council of the European Communities (C-358/89) [1991] E.C.R. I-2501; [1993] 2 C.M.L.R Eyckeler & Malt AG v Commission of the European Communities (T-42/96) [1998] E.C.R. II-401; [1998] 3 C.M.L.R , 655, 661 FIFA v Commission (T-68/08) February 17, FKP Scorpio Konzertproduktionen GmbH v Finanzamt Hamburg-Eimsbuttel (C-290/04) [2007] S.T.C. 1069; [2006] E.C.R. I-9461; [2007] 1 C.M.L.R. 33; [2006] S.T.I , 627, 640 Fantask A/S v Industriministeriet (Erhvervsministeriet) (C-188/95); sub nom. Fantask A/S v Ministry of Industry and Trade (C-188/95) [1998] All E.R. (E.C.) 1; [1997] E.C.R. I-6783; [1998] 1 C.M.L.R. 473; [1998] C.E.C Fazenda Pública v Câmara Municipal do Porto (C-446/98) [2001] S.T.C. 560; [2000] E.C.R. I-11435; [2001] B.T.C. 5414; [2001] B.V.C. 493; [2000] S.T.I Federación Española de Empresas de Tecnología Sanitaria (FENIN) v Commission of the European Communities (C-205/03 P) [2006] E.C.R. I-6295; [2006] 5 C.M.L.R , 310, 755 Federacion Nacional de Empresas de Instrumentacion Cientifica Medica Tecnica y Dental (FENIN) v Commission of the European Communities (T-319/99) [2004] All E.R. (EC) 300; [2003] E.C.R. II-357; [2003] 5 C.M.L.R. 1; (2003) 72 B.M.L.R Fédération Charbonnière Belgique v High Authority (8/55) [1955] E.C.R Fédération Francaise des Sociétés d'assurance v Ministere de l'agriculture et de la Peche (C-244/94) [1995] E.C.R. I-4013; [1996] 4 C.M.L.R. 536; [1996] C.E.C Federation Francaise des Societies d'assurance (FFSA) v Commission of the European Communities (T-106/95) [1997] E.C.R. II-229; [1997] 2 C.M.L.R Federation Nationale de la Cooperation Betail et Viande (FNCBV) v Commission of the European Communities (T-217/03) [2006] E.C.R. II-4987; [2008] 5 C.M.L.R , 463 Federation Nationale de l'industrie et des Commerces en Gros des Viandes (FNICGV) v Commission of the European Communities (T-252/03 R) [2004] E.C.R. II-315; [2005] 5 C.M.L.R

199 xlii Table of Cases Federation Nationale de l'industrie et des Commerces en Gros des Viandes (FNICGV) v Commission of the European Communities (Interim Measures) (T-252/03) [2004] E.C.R. II-3795; [2005] 4 C.M.L.R Federutility v Autorità per l'energia elettrica e il gas (C-265/08) April 20, Felix Palacios de la Villa v Cortefiel Servicios SA (C-411/05) [2008] All E.R. (EC) 249; [2007] E.C.R. I-8531; [2008] 1 C.M.L.R. 16; [2009] I.C.R. 1111; [2007] I.R.L.R. 989; [2007] Pens. L.R , 114, 589 Fidium Finanz AG v Bundesanstalt fur Finanzdienstleistungsaufsicht (C-452/04) [2007] All E.R. (EC) 239; [2006] E.C.R. I-9521; [2007] 1 C.M.L.R Fishing Net Mesh Sizes, Re (141/78); sub nom. France (Commission of the European Communities intervening) v United Kingdom (141/78) [1979] E.C.R. 2923; [1980] 1 C.M.L.R Firma A Racke v Hauptzollamt Mainz (136/77) [1978] E.C.R. 1245; [1978] 3 C.M.L.R Fiskano AB v Commission of the European Communities (C-135/92) [1994] E.C.R. I-2885; [1995] 3 C.M.L.R Förster v Hoofddirectie van de Informatie Beheer Groep (C-158/07); sub nom. Forster v IB-Groep (C-158/07) [2009] All E.R. (EC) 399; [2008] E.C.R. I-8507; [2009] 1 C.M.L.R. 32; [2009] C.E.C. 473; [2009] P.T.S.R. (C.S.) , 708 Foto-Frost v Hauptzollamt Lübeck-Ost (314/85) [1987] E.C.R. 4199; [1988] C.M.L.R , 110, 347, 583, 729 France v Commission of the European Communities (C-482/99); sub nom. Aid to Stardust Marine, Re (C-482/99) [2003] All E.R. (EC) 330; [2002] E.C.R. I-4397; [2002] 2 C.M.L.R. 41; [2002] C.E.C France v Commission of the European Communities (C-68/94); Societe Commerciale des Potasses et de l'azote (SCPA) v Commission of the European Communities (C-30/95) [1998] E.C.R. I-1375; [1998] 4 C.M.L.R France v Commission of the European Communities (T-425/04, T-444/04, T-450/04, T-456/04) [2010] OJ C179/ France v United Kingdom (141/78). See Fishing Net Mesh Sizes, Re (141/78) France Aviation v Commission of the European Communities (T-346/94) [1996] All E.R. (E.C.) 177; [1995] E.C.R. II-2841; [1996] 1 C.M.L.R , 654, 655, 659, , 664, 669 France Telecom SA (formerly Wanadoo Interactive SA) v Commission of the European Communities (T-340/03) [2008] All E.R. (EC) 677; [2007] E.C.R. II-107; [2007] 4 C.M.L.R France Telecom SA v Commission of the European Communities (C-202/07 P) [2009] E.C.R. I-2369; [2009] 4 C.M.L.R. 25; [2010] C.E.C Francesco Guarnieri & Cie v Aandevelde Eddy VOF (C-291/09) April 7, Francovich v Italy (C-6/90); Bonifacti v Italy (C-9/90) [1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66; [1995] I.C.R. 722; [1992] I.R.L.R Francovich v Italy (C-479/93) [1995] E.C.R. I-3843; [1997] 2 B.C.L.C. 203; [1996] C.E.C. 441; [1996] I.R.L.R Fred Olsen v Commission of the European Communities (T-17/02) [2005] E.C.R. II Frilli v Belgium (1/72) [1972] E.C.R. 457; [1973] C.M.L.R GB-INNO-BM NV v Vereniging van de Kleinhandelaars in Tabak (13/77) [1977] E.C.R. 2115; [1978] 1 C.M.L.R Garcia Avello v Belgium (C-148/02). See Carlos Garcia Avello v Belgium (C-148/02) Gaston Schul BV, Douane Expediteur BV v Inspecteur der Invoerrechten en Accijnzen (15/81); sub nom. Gaston Schul BV v Inspector of Customs and Excise, Rossendaal, Netherlands (15/81) [1982] E.C.R. 1409; [1982] 3 C.M.L.R , 346 Gaz de France - Berliner Investissement SA v Bundeszentralamt fur Steuern (C-247/08) [2010] S.T.C. 1519; [2009] E.C.R. I-9225; [2010] 1 C.M.L.R. 22; [2010] S.T.I , 354, 356 Gebhard v Consiglio dell'ordine degli Avvocati e Procuratori di Milano (C-55/94) [1996] All E.R. (EC) 189; [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603; [1996] C.E.C. 175; , 79, 84, 351, Gemeente Almelo v Energiebedrijf Ijssellmij NV (C-393/92); sub nom. Commune d'almelo ea v NV Energiebedrijf Ijsselmij (C-393/92); Municipality of Almelo v NV Energibedrijf Ijsselmij (C-393/92) [1994] E.C.R. I-1477; [1994] 2 C.E.C Gencor Ltd v Commission of the European Communities (T-102/96) [1999] All E.R. (EC) 289; [1999] E.C.R. II-753; [1999] B.C.C. 877; [1999] 4 C.M.L.R. 971; [1999] C.E.C General Quimica SA v European Commission (C-90/09 P) [2011] All E.R. (EC) 544; [2011] C.E.C Geraets-Smits v Stichting Ziekenfonds VGZ (C-157/99); Peerbooms v Stichting CZ Groep Zorgverzekeringen (C-157/99) [2002] Q.B. 409; [2002] 2 W.L.R. 154; [2003] All E.R. (EC) 481; [2001] E.C.R. I-5473; [2002] 2 C.M.L.R. 21; (2001) 62 B.M.L.R , 553, 752

200 Table of Cases xliii Germany v B (C-57/09); Germany v D (C-101/09) [2011] Imm. A.R. 190; [2011] I.N.L.R , 664 Germany v Deutsches Milch-Kontor GmbH (C-426/92) [1994] E.C.R. I-2757; [1996] 1 C.M.L.R Germany v European Parliament (C-233/94); sub nom. Deposit Guarantee Directive, Re (C-233/94) [1997] E.C.R. I-2405; [1997] 3 C.M.L.R Germany v European Parliament (C-376/98); R. v Secretary of State for Health Ex p. Imperial Tobacco Ltd (C-74/99) [2000] All E.R. (EC) 769; [2000] E.C.R. I-8419; [2000] 3 C.M.L.R Germany v European Parliament (C-380/03); sub nom. Germany v Council of the European Union (C-380/03); Tobacco Advertising Directive 2003/33, Re (C-380/03) [2007] All E.R. (EC) 1016; [2006] E.C.R. I-11573; [2007] 2 C.M.L.R Gestoras Pro Amnistía v Council of the European Union (C-354/04 P) [2008] All E.R. (EC) 65; [2007] E.C.R. I-1579; [2007] 2 C.M.L.R , 526 Gianni Bettati v Safety Hi-Tech Srl (C-341/95) [1998] E.C.R. I , 352, 355 Giloy v Hauptzollamt Frankfurt/M-Ost (C-130/95) [1997] E.C.R. I Gisela Rosenbladt v Oellerking Gebäudereinigungsges (C-45/09) October 12, , 594, 596 GlaxoSmithKline Services Unlimited v Commission of the European Communities (T-168/01) [2006] E.C.R. II-2969; [2006] 5 C.M.L.R. 29; [2010] Bus. L.R. D , 398, 402 GlaxoSmithKline Services Unlimited v Commission of the European Communities (C-501/06 P) [2009] E.C.R. I-9291; [2010] 4 C.M.L.R. 2; [2010] C.E.C. 885; (2010) 11 B.M.L.R Gottwald v Bezirkshauptmannschaft Bregenz (C-103/08) [2009] E.C.R. I-9117; [2010] 1 C.M.L.R Government of the French Community v Flemish Government (C-212/06) [2009] All E.R. (EC) 187; [2008] E.C.R. I-1683; [2008] 2 C.M.L.R Granaria BV v Hoofdproduktschap voor Akkerbouwprodukten (101/78) [1979] E.C.R. 623; [1979] 3 C.M.L.R , 348 Greenpeace v Commission of the European Communities (T-585/93) [1995] E.C.R. II Groupe Danone v Commission of the European Communities (C-3/06 P) [2007] E.C.R. I-1331; [2007] 4 C.M.L.R , 471, 473 Groupe Danone v Commission of the European Communities (T-38/02) [2005] E.C.R. II-4407; [2006] 4 C.M.L.R , 194 Groupement des Cartes Bancaires (CB) v Commission of the European Communities (T-275/94) [1995] All E.R. (E.C.) 717; [1995] E.C.R. II-2169; [1995] 5 C.M.L.R Grzelczyk v Centre Public d'aide Sociale d'ottignies Louvain la Neuve (C-184/99) [2003] All E.R. (EC) 385; [2001] E.C.R. I-6193; [2002] 1 C.M.L.R. 19; [2002] I.C.R , 714 Gutermann AG v European Commission (T-456/05) [2010] 5 C.M.L.R H Krantz GmbH & Co v Ontvanger der Directe Belastingen (C-69/88) [1991] S.T.C. 604; [1990] E.C.R. I-583; [1991] 2 C.M.L.R HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbh & Co KG v Commission of the European Communities (T-9/99) [2002] E.C.R. II Handels- og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening Ex p. Danfoss A/S (109/88); sub nom. Union of Clerical and Commercial Employees v Danish Employers Association Ex p. Danfoss A/S (109/88) [1989] E.C.R. 3199; [1991] 1 C.M.L.R. 8; [1991] I.C.R. 74; [1989] I.R.L.R Hans Schwarzkopf GmbH & Co. KG v Zentrale zur Bekämpfung unlauteren Wettbewerbs ev (C-169/99) [2001] E.C.R. I , 342, 352 Hartlauer Handelsgesellschaft mbh v Wiener Landesregierung (C-169/07) [2009] E.C.R. I-1721; [2009] 3 C.M.L.R. 5; [2009] C.E.C Heemskerk and Schaap v Productschap Vee en Vlees (C-455/06) [2008] E.C.R. I , 548 Hein Persche v Finanzamt Lüdenscheid (C-318/07) [2009] P.T.S.R. 915; [2009] All E.R. (EC) 673; [2009] S.T.C. 586; [2009] E.C.R. I-359; [2009] 2 C.M.L.R. 32; [2009] C.E.C. 804; [2009] W.T.L.R. 483; [2009] S.T.I Herbert Karner Industrie Auktionen GmbH v Troostwijk GmbH (C-71/02) [2004] E.C.R. I-3025; [2004] 2 C.M.L.R. 5; [2004] C.E.C. 327; [2005] E.T.M.R , 342 Hermès International v FHT Marketing Choice BV (C-53/96) [1998] E.C.R. I-3603; [1998] E.T.M.R. 425; [1998] I.L.Pr. 630; [1999] R.P.C , 419, 527 Hocsman v Ministre de l'emploi et de la Solidarite (C-238/98) [2000] All E.R. (EC) 899; [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025; [2000] C.E.C Hoechst GmbH v Commission of the European Communities (T-161/05); sub nom. Monochloroacetic Cartel, Re (T-161/05) [2009] E.C.R. II-3555; [2009] 5 C.M.L.R , 463

201 xliv Table of Cases Hoechst GmbH v Commission of the European Communities (T-410/03) [2008] E.C.R. II-881; [2008] 5 C.M.L.R , 463 Huber v Germany (C-524/06) [2009] All E.R. (EC) 239; [2008] E.C.R. I-9705; [2009] 1 C.M.L.R. 49; [2009] C.E.C Hughes de Lasteyrie du Saillant v Ministère de l'économie, des Finances et de l'industrie (C-9/02). See De Lasteyrie du Saillant v Ministere de l'economie, des Finances et de l'industrie (C-9/02) Hüls AG v Commission of the European Communities (C-199/92 P) [1999] E.C.R. I-4287; [1999] 5 C.ML.R IBM Corp v Commission of the European Communities (60/81); sub nom. International Business Machines Corp v Commission of the European Communities (60/81) [1981] E.C.R. 2639; [1981] 3 C.M.L.R ING Groep v Commission (T-33/10) [2010] OJ C80/ ITC Innovative Technology Center GmbH v Bundesagentur fur Arbeit (C-208/05) [2007] All E.R. (EC) 611; [2007] E.C.R. I-181; [2008] 1 C.M.L.R Iannelli & Volpi SpA v Ditta Paolo Meroni (74/76); Firma Steinike und Weinlig v Bundesamt fur Ernahrung und Forstwirtschaft (78/76) [1977] E.C.R. 595; [1977] E.C.R. 557; [1977] 2 C.M.L.R Ideal Tourisme SA v Belgium (C-36/99) [2001] S.T.C. 1386; [2000] E.C.R. I-6049; [2001] 3 C.M.L.R. 45; [2000] S.T.I Iida v City of Ulm (C-40/11) Impact v Minister for Agriculture and Food (C-268/06) [2009] All E.R. (EC) 306; [2008] E.C.R. I-2483; [2008] 2 C.M.L.R. 47; [2009] C.E.C. 871; [2008] I.R.L.R. 552; [2008] Pens. L.R , 58, 59, 60, Imperial Chemical Industries Ltd v European Commission (T-66/01); sub nom. Soda Ash Cartel, Re (T-66/01) [2011] 4 C.M.L.R Independent Music Publishers & Labels Association (Impala) v Commission of the European Communities (T-464/04) [2006] E.C.R. II-2289; [2006] 5 C.M.L.R , 519 Ingeniørforeningen i Danmark v Region Syddanmark (C-499/08) [2011] 1 C.M.L.R , 594, 595 Inizan v Caisse Primaire d'assurance Maladie des Hauts de Seine (C-56/01) [2003] E.C.R. I-12403; [2006] 1 C.M.L.R , 552, 554, 752 Institut National d'assurances Sociales pour Travailleurs Independants (INASTI) v Hervein (C-393/99); Institut National d'assurances Sociales pour Travailleurs Independants (INASTI) v Lorthiois (C-394/99) [2002] E.C.R. I-2829; [2002] 2 C.M.L.R Inter-Environnement Wallonie ASBL v Region Wallonie (C-129/96); sub nom. Inter-Environnement Wallonie Asbl v Region Wallonne (C-129/96); Inter-Environnement Wallonie Asbl v Region Wallone (C-129/96) [1998] All E.R. (E.C.) 155; [1997] E.C.R. I-7411; [1998] 1 C.M.L.R. 1057; [1998] Env. L.R , 598 Interfood GmbH v Hauptzollamt Hamburg-Ericus (92/71) [1972] E.C.R. 231; [1973] C.M.L.R International Fruit Co NV v Produktschap voor Groenten en Fruit (No.1) (41/70); sub nom. International Fruit Co NV v Commission of the European Communities (41/70) [1971] E.C.R. 411; [1975] 2 C.M.L.R International Fruit Co NV v Produktschap voor Groenten en Fruit (No.3) (21/72) [1972] E.C.R. 1219; [1975] 2 C.M.L.R , 452 International Mail Spain SL v Administracion del Estado (C-162/06); sub nom. TNT Express Worldwide Spain SL v Administracion del Estado (C-162/06) [2007] E.C.R. I-9911; [2008] 4 C.M.L.R. 1; [2008] C.E.C International Transport Workers' Federation v Viking Line ABP (C-438/05) [2008] All E.R. (EC) 127; [2007] E.C.R. I-10779; [2008] 1 C.M.L.R. 51; [2008] C.E.C. 332; [2008] I.C.R. 741; [2008] I.R.L.R , 225 Internationale Handelsgesellschaft mbh v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel (11/70); Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Köster, Berodt & Co (25/70); Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Gunther Henck (26/70); Firma Ottoscheer v Einfuhr und Vorratsstelle fur Getreide und Futtermittel (30/70) [1970] E.C.R. 1125; [1972] C.M.L.R , 441, 717, 744 Intervet International v Commission of the European Communities (T-212/99) [2002] E.C.R. II , 275 Inuit Tapiriit Kanatami v European Parliament and Council (T-18/10 R), Order of April 30, Invest Import und Export and Invest Commerce v Commission (C-317/00 P(R)) [2000] E.C.R. I Invest Import und Export and Invest Commerce v Commission (T-189/00 R) [2000] E.C.R. II , 661, 663 Ireland v European Parliament (C-301/06); sub nom. Validity of Directive 2006/24, Re (C-301/06) [2009] All E.R. (EC) 1181; [2009] E.C.R. I-593; [2009] 2 C.M.L.R Irish Sugar Plc v Commission of the European Communities (C-497/99 P) [2001] E.C.R. I-5333; [2001] 5 C.M.L.R Italian Republic v Council of the European Union (C-120/99) [2001] E.C.R. I

202 Table of Cases xlv Italy v Commission of the European Communities (C-403/99) [2001] E.C.R. I Italy v Sacchi (155/73) [1974] E.C.R. 409; [1974] 2 C.M.L.R Jean Neu v Secrétaire d'etat à l'agriculture et à la Viticulture (C-90/90 and 91/90) [1991] E.C.R. I JFE Engineering Corp v Commission of the European Communities (T-67/00) [2004] E.C.R. II-2501; [2005] 4 C.M.L.R Jégo-Quéré v Commission of the European Communities (T-177/01) [2003] Q.B. 854; [2003] 2 W.L.R. 783; [2002] All E.R. (EC) 932; [2002] E.C.R. II-2365; [2002] 2 C.M.L.R , 506 Jippes v Minister van Landbouw, Natuurbeheer en Visserij (C-189/01) [2001] E.C.R. I Jobra Vermogensverwaltungs-Gesellschaft mbh v Finanzamt Amstetten Melk Scheibbs (C-330/07) [2008] E.C.R. I-9099; [2009] 1 C.M.L.R. 41; [2009] C.E.C John Walker v Ministeriet for Skatter og Afgifter (243/84) [1986] E.C.R Johnston v Chief Constable of the Royal Ulster Constabulary (222/84) [1987] Q.B. 129; [1986] 3 W.L.R. 1038; [1986] 3 All E.R. 135; [1986] E.C.R. 1651; [1986] 3 C.M.L.R. 240; [1987] I.C.R. 83; [1986] I.R.L.R. 263; (1987) 84 L.S.G. 188; (1986) 130 S.J , 54, 60 José Allard v Institut national d'assurances sociales pour travailleurs indépendants (INASTI) (C-249/04) [2005] E.C.R. I-4535; [2005] 3 C.M.L.R Jose Maria Sison v Council (Sison II) (T-341/07) [2009] E.C.R. II , 665 Jose Maria Sison v Council of the European Union (T-47/03) [2007] E.C.R. II-73; [2007] 3 C.M.L.R , 658, 659, 663 Josemans v Burgemeester van Maastricht (C-137/09) [2011] 2 C.M.L.R , 632, 642, 643, 709 Jundt v Finanzamt Offenburg (C-281/06) [2007] E.C.R. I-12231; [2008] C.E.C. 416; [2008] S.T.I , 644, 646 Jürgen Römer v Freie und Hansestadt Hamburg (C-147/08) May 10, , 591, 592, 594, , 597, 598, 599 KME v Commission of the European Communities (C-272/09 P) KME Germany AG v Commission of the European Communities (T-127/04) [2009] E.C.R. II-1167; [2009] 5 C.M.L.R , 463, 473 Kadi v Commission of the European Communities (T-85/09) September 30, , 664 Kadi v Council of the European Union (C-402/05 P); Al Barakaat International Foundation v Council of the European Union (C-415/05 P) [2009] 1 A.C. 1225; [2009] 3 W.L.R. 872; [2010] All E.R. (EC) 1105; [2008] E.C.R. I-6351; [2008] 3 C.M.L.R. 41; [2009] Lloyd's Rep. F.C , 69, 144, 154, , 443, 594, 652 Kadi v Council of the European Union (T-315/01) [2005] E.C.R. II , 652 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd (C-167/01) [2003] E.C.R. I-10155; [2005] 3 C.M.L.R , 80 Kapferer v Schlank & Schick GmbH (C-234/04) [2006] E.C.R. I-2585; [2006] 2 C.M.L.R. 19; [2006] I.L.Pr , 548 Katharina Rinke v Ärztekammer Hamburg (C-25/02) [2003] E.C.R. I Kattner Stahlbau GmbH v Maschinenbau- und Metall- Berufsgenossenschaft (C-350/07) [2009] E.C.R. I-1513; [2009] 2 C.M.L.R , 621 Kaufring AG v Commission of the European Communities (T-186/97) [2001] E.C.R. II-1337; [2001] 2 C.M.L.R Kaysersberg v Commission of the European Communities (T-290/94) [1995] E.C.R. II Keller v Instituto Nacional de la Seguridad Social (INSS) (C-145/03) [2005] E.C.R. I , 752 Kind KG v European Economic Community (106/81) [1982] E.C.R Kobler v Austria (C-224/01) [2004] Q.B. 848; [2004] 2 W.L.R. 976; [2004] All E.R. (EC) 23; [2003] E.C.R. I-10239; [2003] 3 C.M.L.R , 547, 549, 581 Kohll v Union des Caisses de Maladie (C-158/96) [1998] E.C.R. I-1931; [1998] 2 C.M.L.R , 433, 542, 543, Kraus v Land Baden-Wuerttemberg (C-19/92) [1993] E.C.R. I Krzysztof Filipiak v Dyrektor Izby Skarbowej w Poznaniu (C-314/08) [2009] E.C.R. I-11049; [2010] C.M.L.R , 262, 626 Kuhne & Heitz NV v Productschap voor Pluimvee en Eieren (C-453/00) [2004] E.C.R. I-837; [2006] 2 C.M.L.R , 584 LR AF 1998 A/S (formerly Logstor Ror A/S) v Commission of the European Communities (T-23/99); sub nom. Pre Insulated Pipe Cartel, Re (T-23/99) [2002] E.C.R. II-1705; [2002] 5 C.M.L.R , 198

203 xlvi Table of Cases Ladbrokes Betting & Gaming Ltd v Stichting de Nationale Sporttotalisator (C-258/08) [2010] 3 C.M.L.R. 40; [2011] C.E.C , 247, 248, 249, , 258, 260, 262, 263, 264, 634, 642, 646 Lady & Kid A/S, Direct Nyt ApS, A/S Harald Nyborg Isenkram- og Sportsforretning and KID-Holding A/S v Skatteministeriet (C-398/09) Lafarge SA v Commission of the European Communities (T-54/03) [2008] E.C.R. II , 463, 473 Lafarge SA v European Commission (C-413/08 P) [2010] 5 C.M.L.R Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet (C-341/05); sub nom. Laval v Byggnads (C-341/05) [2008] All E.R. (EC) 166; [2007] E.C.R. I-11767; [2008] 2 C.M.L.R. 9; [2008] C.E.C. 438; [2008] I.R.L.R , 223, 225, 631, , 644, 646, 717 Lease Plan Luxembourg SA v Belgium (C-390/96) [1998] S.T.C. 628; [1998] E.C.R. I-2553; [1998] 2 C.M.L.R. 583; [1999] C.E.C. 374; [1998] B.T.C. 5404; [1998] B.V.C Leichtle v Bundesanstalt fur Arbeit (C-8/02) [2004] E.C.R. I-2641; [2006] 3 C.M.L.R Lenoir v Caisse d'allocations Familiales des Alpes-Maritimes (313/86) [1988] E.C.R. 5391; [1990] 1 C.M.L.R Les Assurances du Credit SA v Council of Ministers of the European Communities (C-63/89); Les Assurances du Credit SA v Commission of the European Communities [1991] E.C.R. I-1799; [1991] 2 C.M.L.R Les Rapides Savoyards Sàrl v Directeur General des Douanes et Droits Indirects (218/83) [1984] E.C.R. 3105; [1985] 3 C.M.L.R , 130 Les Verts v Parliament (294/83). See Parti Ecologiste Les Verts v European Parliament (294/83) Levez v TH Jennings (Harlow Pools) Ltd (C-326/96) [1999] All E.R. (EC) 1; [1998] E.C.R. I-7835; [1999] 2 C.M.L.R. 363; [1999] C.E.C. 3; [1999] I.C.R. 521; [1999] I.R.L.R , 57, 60 Lidl Magyarország Kereskedelmi bt v Nemzeti Hirkozlesi Hatosag Tanacsa (C-132/08) [2009] E.C.R. I-3841; [2009] 3 C.M.L.R Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa Liga Portuguesa de Futebol Profissional v Departamento de Jogos da Santa Casa da Misericordia de Lisboa (C-42/07) [2009] E.C.R. I-7633; [2010] 1 C.M.L.R. 1; [2010] C.E.C , 45, 247, 248, , 255, 256, 257, 619, 634, 642 Limburgse Vinyl Maatschappij NV v Commission of the European Communities (T-305/94); sub nom. PVC Cartel II (T-305/94), Re [1999] E.C.R. II-931; [1999] 5 C.M.L.R Limburgse Vinyl Maatschappij NV (LVM) v Commission of the European Communities (C-238/99 P); DSM Kunststoffen BV v Commission of the European Communities (C-244/99 P) [2002] E.C.R. I-8375; [2003] 4 C.M.L.R , 194, 473 Lindfors, Re (C-365/02); sub nom. Lindfors v Finland (C-365/02) [2005] All E.R. (EC) 745; [2004] E.C.R. I-7183; [2004] 3 C.M.L.R Lisrestal Organização Gestão de Restaurantes Colectivos Ldª v Commission (T-450/93) [1994] E.C.R. II , 669 Ludwigs-Apotheke Munchen Internationale Apotheke v Juers Pharma Import-Export GmbH (C-143/06) [2007] E.C.R. I-9623; [2008] 1 C.M.L.R Luisi v Ministero del Tesoro (286/82) [1984] E.C.R. 377; [1985] 3 C.M.L.R , 707 Luxembourg v European Parliament (230/81) [1983] E.C.R. 255; [1983] 2 C.M.L.R MCI Inc v Commission of the European Communities (T-310/00) [2004] E.C.R. II-3253; [2004] 5 C.M.L.R McCarthy v Secretary of State for the Home Department (C-434/09) [2011] 3 C.M.L.R , 715, 716, 720 McCarthys (C-63/93) [1996] E.C.R. I Mannesmann AG v High Authority (19/61) [1962] E.C.R Mannesmannröhren-Werke AG v Commission of the European Communities (T-112/98) [2001] E.C.R. II-729; [2001] 5 C.M.L.R Manufacture Francaise des Pneumatiques Michelin v Commission of the European Communities (T-203/01) [2003] E.C.R. II-4071; [2004] 4 C.M.L.R Mario Roviello v Landesversicherungsanstalt Schwaben (20/85) [1988] E.C.R. I , 352, 357 Markku Juhani Läärä v Kihlakunnansyyttaja (Jyvaskyla) and the Finnish State (Läärä) (C-124/97) [1999] E.C.R. I-6067; [2001] 2 C.M.L.R , 255, 256 Marks & Spencer Plc v Halsey (Inspector of Taxes) (C-446/03) [2006] Ch. 184; [2006] 2 W.L.R. 250; [2006] All E.R. (EC) 255; [2006] S.T.C. 237; [2005] E.C.R. I-10837; [2006] 1 C.M.L.R. 18; [2006] C.E.C. 299; [2006] B.T.C. 318; 8 I.T.L. Rep. 358; [2006] S.T.I

204 Table of Cases xlvii Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) [1990] E.C.R. I-4135; [1993] B.C.C. 421; [1992] 1 C.M.L.R , 346 Marshall v Southampton and South West Hampshire AHA (C-271/91) [1994] Q.B. 126; [1993] 3 W.L.R. 1054; [1993] 4 All E.R. 586; [1993] E.C.R. I-4367; [1993] 3 C.M.L.R. 293; [1993] I.C.R. 893; [1993] I.R.L.R , 64 Martínez Sala v Freistaat Bayern (C-85/96) [1998] E.C.R. I , 709 Matratzen Concord AG v Hukla Germany SA (C-421/04) [2006] E.C.R. I-2303; [2006] C.E.C. 621; [2006] E.T.M.R , 344, 358 Mecanarte Metalúrgica da Lagoa Ldª v Chefe do Serviço da Conferência Final da Alfândega do Porto (C-348/89) [1991] E.C.R. I , 116, 285 Mediocurso v Commission (C-462/98 P) [2000] E.C.R. I Mehibas Dordtselaan BV v Commission of the European Communities (T-290/97) [2000] E.C.R. II-15; [2000] 2 C.M.L.R , 655 Mehiläinen and Terveystalo Healthcare (C-215/09) December 22, Merck & Co Inc v Primecrown and Beecham Group Plc v Europharm of Worthington Ltd (C-267/95 and C-268/95) [1996] E.C.R. I-6285; [1986] 1 C.M.L.R Meroni & Co v High Authority (9/56) [1957] E.C.R , 605 Meryem Demirel v Stadt Schwäbisch Gmund (12/86) [1987] E.C.R. 3719; [1989] 1 C.M.L.R Metock v Minister for Justice, Equality and Law Reform (C-127/08) [2009] Q.B. 318; [2009] 2 W.L.R. 821; [2009] All E.R. (EC) 40; [2008] E.C.R. I-6241; [2008] 3 C.M.L.R. 39; [2009] C.E.C. 286; [2008] 3 F.C.R. 425; [2009] Imm. A.R. 113; [2009] I.N.L.R , 720 Metro SB-Grossmarkte GmbH & Co KG v Commission of the European Communities (26/76); sub nom. Verband des SB-Grosshandels ev v Commission of the European Communities (26/76) [1977] E.C.R. 1875; [1978] 2 C.M.L.R. 1; [1978] F.S.R Meyhui NV v Schott Ziesel Glaswerke AG (C-51/93) [1994] E.C.R. I , 352 Michaeler v Amt für sozialen Arbeitsschutz Autonome Provinz Bozen (C-55/07 and C-56/07) [2008] E.C.R. I Microsoft Corp v Commission of the European Communities (T-201/04) [2007] E.C.R. II-3601; [2007] 5 C.M.L.R , 150, 465, 468, Miles v European Schools (C-196/09) June 14, , 456 Ministere Public and Chambre Syndicale des Agents Artistiques et Impresarii de Belgique Asbl v van Wesemael and Poupaert (110/78); Ministere Public, Chambre Syndicale des Agents Artistiques et Impresarii de Belgique Asbl v Follachio and Leduc (111/78) [1979] E.C.R. 35; [1979] 3 C.M.L.R Ministerie van Landbouw, Natuurbeheer en Visserij) v Ten Kate Holding Musselkanaal BV (C-511/03). See Netherlands v Ten Kate Holding Musselkanaal BV (C-511/03) Ministero dell'industria del Commercio e dell'artigianato v Lucchini SpA (C-119/05) [2007] E.C.R. I-6199; [2009] 1 C.M.L.R , 450, 547 Miret v Fondo de Garantia Salarial (C-334/92) [1993] E.C.R. I-6911; [1995] 2 C.M.L.R Mobistar SA v Commune de Fleron (C-544/03); Belgacom Mobile SA v Commune de Schaerbeek (C-545/03) [2005] E.C.R. I-7723; [2005] 3 C.M.L.R , 631 Mobistar v IBPT (C-438/04) [2006] E.C.R. I Mono Car Styling SA v Odemis (C-12/08) [2009] E.C.R. I-6653; [2009] 3 C.M.L.R. 47; [2010] C.E.C Monsanto Agricoltura Italia SpA v Presidenza del Consiglio dei Ministri (C-236/01) [2003] E.C.R. I Montecatini SpA v Commission of the European Communities (C-235/92) [1999] E.C.R. I-4539; [2001] 4 C.M.L.R Mostaza Claro v Centro Movil Milenium SL (C-168/05) [2007] Bus. L.R. 60; [2006] E.C.R. I-10421; [2007] 1 C.M.L.R. 22; [2007] C.E.C Muller-Faure v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA (C-385/99); Van Riet v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA (C-385/99) [2004] Q.B. 1081; [2004] 3 W.L.R. 374; [2005] All E.R. (EC) 62; [2003] E.C.R. I-4509; [2004] 2 C.M.L.R. 33; (2004) 80 B.M.L.R , 552, 752 Musique Diffusion Francaise SA v Commission of the European Communities (100/80); Pioneer High Fidelity (GB) Ltd v Commission of the European Communities (103/80); Pioneer Electronic (Europe) NV v Commission of the European Communities (102/80); C Melchers & Co v Commission of the European Communities (101/80) [1983] E.C.R. 1825; [1983] 3 C.M.L.R , 187, 189, 190,

205 xlviii Table of Cases NCC Construction Danmark A/S v Skatteministeriet (C-174/08) [2010] S.T.C. 532; [2009] E.C.R. I-10567; [2010] B.V.C. 1093; [2009] S.T.I NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) [1963] E.C.R. 1; [1963] C.M.L.R , 646 Nashua Corp v Commission of the European Communities (133/87); Nashua Corp v Council of Ministers of the European Communities (150/87) [1990] E.C.R. I-719; [1990] 2 C.M.L.R Nawras Bolbol v Bevándorlási és Állampolgársági Hivatal (C-31/09) June 17, , 136, 137, 138, , 141, 142, 143, 144, 145 Nederlandse Vakbond Varkenshouders (NVV) v Commission of the European Communities (T-151/05) [2009] E.C.R. II-1219; [2009] 5 C.M.L.R Neotype Techmashexport GmbH v Commission and Council (305/86 and 160/87) [1990] E.C.R. I Nerkowska v Zaklad Ubezpieczen Spolecznych Oddzial w Koszalinie (C-499/06) [2008] All E.R. (EC) 885; [2008] E.C.R. I-3993; [2008] 3 C.M.L.R Netherlands v Commission of the European Communities (T-29/10) [2010] OJ C80/ Netherlands v Ten Kate Holding Musselkanaal BV (C-511/03) [2005] E.C.R. I-8979; [2006] 1 C.M.L.R Neukirchinger v Bezirkshauptmannschaft Grieskirchen (C-382/08) [2011] 2 C.M.L.R , 632, 635, 638, Nicolas Bressol and Céline Chaverot v Gouvernement de la Communauté française (C-73/08) April 13, , 40 Nils Laurin Effing (C-302/02) [2005] E.C.R. I-553; [2005] 1 C.M.L.R. 43; [2005] C.E.C. 457; [2005] 1 F.C.R Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG & Co KG (102/81) [1982] E.C.R. 1095; [1982] Com. L.R O'Byrne v Sanofi Pasteur MSD Ltd (formerly Aventis Pasteur MSD Ltd) (C-127/04) [2006] 1 W.L.R. 1606; [2006] All E.R. (EC) 674; [2006] E.C.R. I-1313; [2006] 2 C.M.L.R. 24; [2006] C.E.C. 493; (2006) 91 B.M.L.R Océano Grupo Editorial SA v Quintero (C-240/98 C-244/98) [2000] E.C.R. I-4941; [2002] C.M.L.R Omalet NV v Rijksdienst voor Sociale Zekerheid (C-245/09) December 22, Omega Spielhallen- und Automatenaufstellungs GmbH v Bundesstadt Bonn (C-36/02) [2004] E.C.R. I-9609; [2005] 1 C.M.L.R. 5; [2005] C.E.C , 717 Omya AG v Commission of the European Communities (T-145/06) [2009] E.C.R. II-145; [2009] 4 C.M.L.R Openbaar Ministerie v van der Veldt (C-17/93) [1994] E.C.R. I-3537; [1995] 1 C.M.L.R , 355 Organisation des Modjahedines du Peuple d'iran v Council of the European Union (T-228/02) [2007] All E.R. (EC) 447; [2006] E.C.R. II-4665; [2007] 1 C.M.L.R , 658, 659, 660, Ordre des Barreaux Francophones et Germanophone v Conseil des Ministres (C-305/05) [2007] All E.R. (EC) 953; [2007] E.C.R. I-5305; [2007] 3 C.M.L.R. 28; [2008] C.E.C. 124; [2008] Lloyd's Rep. F.C. 1; [2008] W.T.L.R Orkem SA (formerly CdF Chimie SA) v Commission of the European Communities (374/87); Solvay et Cie SA v Commission of the European Communities (27/88) [1989] E.C.R. 3283; [1991] 4 C.M.L.R Outokumpu Oyj v Commission of the European Communities (T-122/04) [2009] 5 C.M.L.R Outokumpu Oyj v European Commission (T-20/05); sub nom. Copper Plumbing Tubes Cartel, Re (T-20/05) [2010] 5 C.M.L.R Oxley Threads Ltd v European Commission (T-448/05) [2010] 5 C.M.L.R PB Groenveld BV v Produktschap voor Vee en Vlees (15/79) [1979] E.C.R. 3409; [1981] 1 C.M.L.R P v S and Cornwall CC (C-13/94); sub nom. P v S (Sex Discrimination) (C-13/94) [1996] All E.R. (EC) 397; [1996] E.C.R. I-2143; [1996] 2 C.M.L.R. 247; [1996] C.E.C. 574; [1996] I.C.R. 795; [1996] I.R.L.R. 347; [1996] 2 F.L.R. 347; [1997] 2 F.C.R. 180; [1996] Fam. Law Papierfabrik August Koehler AG v Commission of the European Communities (C-322/07 P); Bollore SA v Commission of the European Communities (C-327/07 P); Distribuidora Vizcaina de Papeles SL v Commission of the European Communities (C-338/07 P); sub nom. Carbonless Paper Cartel, Re (C-322/07 P) [2009] E.C.R. I-7191; [2009] 5 C.M.L.R , 474 Parfums Christian Dior SA v Evora BV (C-337/95) [1997] E.C.R. I-6013; [1998] 1 C.M.L.R. 737; [1998] C.E.C. 91; [1998] E.T.M.R. 26; [1998] R.P.C Parfums Christian Dior SA v TUK Consultancy BV (C-300/98); Assco Gerüste GmbH and Rob van Dijke v Wilhelm Layer GmbH & Co (C-393/98) [2000] E.C.R. I-11307; [2001] E.T.M.R. 26; [2001] E.C.D.R Parker Pen Ltd v Commission of the European Communities (T-77/92) [1994] E.C.R. II-549; [1995] 5 C.M.L.R , 197

206 Table of Cases xlix Parking Brixen GmbH v Gemeinde Brixen (C-458/03) [2006] All E.R. (EC) 779; [2005] E.C.R. I-8612; [2006] 1 C.M.L.R. 3; [2006] C.E.C Parti Ecologiste Les Verts v European Parliament (294/83); sub nom. Les Verts, Parti Ecologiste v European Parliament (294/83) [1986] E.C.R. 1339; [1987] 2 C.M.L.R , 269 Payroll Data Services (Italy) Srl, Re (C-79/01) [2002] E.C.R. I-8923; [2004] 3 C.M.L.R Pedro IV Servicios SL v Total Espana SA (C-260/07) [2009] E.C.R. I-2437; [2009] 5 C.M.L.R. 1; [2009] C.E.C People's Mojahedin Organization of Iran (C-576/08 P); People's Mojahedin Organization of Iran v Council (OMPI III) (T-284/08) [2008] E.C.R. II-3487; [2009] 1 C.ML.R , 659, 662 People's Mojahedin Organization of Iran v Council of the European Union (T-256/07) [2009] All E.R. (EC) 1221; [2008] E.C.R. II , 659, 660, 663, 664 Peterbroeck Van Campenhout & Cie SCS v Belgium (C-312/93) [1996] All E.R. (E.C.) 242; [1995] E.C.R. I-4599; [1996] 1 C.M.L.R Petrolessence SA v Commission of the European Communities (T-342/00 R) [2001] E.C.R. II-67; [2003] 5 C.M.L.R , 505 Petrotub SA and Republica SA v Council of the European Union (C-76/00 P) [2003] E.C.R. I Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut ev (C-397/01) [2004] E.C.R. I-8835; [2005] 1 C.M.L.R. 44; [2005] I.C.R. 1307; [2005] I.R.L.R Pfizer Animal Health SA v Council of the European Union (T-13/99 R) [1999] E.C.R. II-1961; [1999] 3 C.M.L.R , 273, 274 Pfizer Animal Health SA v Council of the European Union (T-13/99) [2002] E.C.R. II Pinna v Caisse d'allocations Familiales de la Savoie (41/84) [1986] E.C.R. 1; [1988] 1 C.M.L.R , 352, 357 Pioneer Hi-Bred International v Commission of the European Communities (T-139/07) [2009] OJ C267/ , 266, 267, 268, , 272, 273, 274, 275 Piraiki-Patraiki Cotton Industry AE v Commission of the European Communities (11/82) [1985] E.C.R. 207; [1985] 2 C.M.L.R. 461; [1985] 2 C.M.L.R Plaumann & Co v Commission of the European Economic Community (25/62) [1963] E.C.R. 95; [1964] C.M.L.R , 506, 507, 508 Pontin v T-Comalux (C-63/08) [2009] E.C.R. I-10467; [2010] 2 C.M.L.R. 2; [2010] C.E.C , 61 Portugal v Commission of the European Communities (C-88/03); sub nom. Income Tax Reductions in the Azores, Re (C-88/03) [2007] S.T.C. 1032; [2006] E.C.R. I-7115; [2006] 3 C.M.L.R. 45; [2006] S.T.I Portugal v Council of the European Union (C-149/96) [1999] E.C.R. I Poucet v Assurances Generales de France (AGF) et Caisse Mutuelle Regionale du Languedoc-Roussillon (C-159/91); Pistre v Caisse Autonome National de Compensation de l'assurance Veiellesse des Artisans (C-160/91) [1993] E.C.R. I Presidente del Consiglio dei Ministri v Regione Sardegna (C-169/08) [2010] All E.R. (EC) 1037; [2009] E.C.R. I-10821; [2010] 2 C.M.L.R. 8; [2010] C.E.C , 637, 642, 643, 644 Pressetext Nachrichtenagentur GmbH v Austria (C-454/06) [2008] E.C.R. I-4401; [2008] Bus. L.R. D Preston v Wolverhampton Healthcare NHS Trust; Fletcher v Midland Bank Plc (C-78/98) [2001] 2 A.C. 415; [2001] 2 W.L.R. 408; [2000] All E.R. (EC) 714; [2000] E.C.R. I-3201; [2000] 2 C.M.L.R. 837; [2000] C.E.C. 587; [2000] I.C.R. 961; [2000] I.R.L.R. 506; [2000] O.P.L.R. 115; [2000] Pens. L.R PreussenElektra AG v Schleswag AG (C-379/98) [2001] All E.R. (EC) 330; [2001] E.C.R. I-2099; [2001] 2 C.M.L.R. 36; [2001] C.E.C. 217; [2002] Env. L.R Primex Produkte Import-Export GmbH & Co KG v Commission of the European Communities (T-50/96) [1998] E.C.R. II-3773; [1999] 1 C.M.L.R , 655 Proceedings against Aziz Melki (C-188/10); Sélim Abdeli (C-189/10) June 22, , 117, 118, 120, , 285, 550, 551, 581 Proceedings brought by Aberdeen Property Fininvest Alpha Oy (C-303/07) [2009] S.T.C. 1945; [2009] E.C.R. I-5145; [2009] 3 C.M.L.R. 34; [2009] S.T.I Proceedings brought by Kjell Karlsson (C-292/97) [2000] E.C.R. I Proceedings brought by Lindman (C-42/02); sub nom. Lindman v Skatterattelsnamnden (C-42/02) [2005] S.T.C. 873; [2003] E.C.R. I-13519; [2004] 1 C.M.L.R. 38; [2003] S.T.I , 256, 263 Proceedings Brought by Penarroja Fa (C-372/09) [2011] 2 C.M.L.R , 636, 641, 644, 645 Procureur de la Republique (Administration des Douanes Francaises Intervening) v Michelangelo, Rivoira and Giovanni Rivoira & Figli SNC (179/78) [1979] E.C.R. 1147; [1979] 3 C.M.L.R

207 l Table of Cases Procureur de la République v Association de défense des brûleurs d'huiles usages (ADBHU) (240/83) [1985] E.C.R Procureur du Roi v Dassonville (8/74); sub nom. Dassonville v Commission of the European Communities (8/74) [1974] E.C.R. 837; [1974] 2 C.M.L.R. 436; [1975] F.S.R , 422, 618, 619 Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU (C-275/06) [2008] All E.R. (EC) 809; [2008] E.C.R. I-271; [2008] 2 C.M.L.R. 17; [2008] C.E.C. 590; [2008] E.C.D.R. 10; [2008] Info. T.L.R. 47; (2008) 31(6) I.P.D Prym v Commission of the European Communities (Needles) (C-534/07 P). See William Prym GmbH & Co KG v Commission of the European Communities (C-534/07 P) Pubblico Ministero v Ratti (148/78) [1979] E.C.R. 1629; [1980] 1 C.M.L.R Puffer v Unabhangiger Finanzsenat, Aussenstelle Linz (C-460/07) [2009] S.T.C. 1693; [2009] E.C.R. I-3251; [2009] 3 C.M.L.R. 19; [2009] B.T.C. 5348; [2009] B.V.C. 347; [2009] S.T.I Pusa v Osuuspankkien Keskinainen Vakuutusyhtio (C-224/02) [2004] All E.R. (EC) 797; [2004] S.T.C. 1066; [2004] E.C.R. I-5763; [2004] 2 C.M.L.R. 23; [2004] S.T.I Questore di Verona v Zenatti (C-67/98) [1999] E.C.R. I-7289; [2000] 1 C.M.L.R , 249, 254, 255, 636 R. v HM Treasury Ex p. Centro-Com Srl (C-124/95) [1997] Q.B. 683; [1997] 3 W.L.R. 239; [1997] All E.R. (EC) 193; [1997] E.C.R. I-81; [1997] 1 C.M.L.R R. v HM Treasury Ex p. Daily Mail (81/87); R. v Customs and Excise Commissioners Ex p. Daily Mail (81/87) [1989] Q.B. 446; [1989] 2 W.L.R. 908; [1989] 1 All E.R. 328; [1988] S.T.C. 787; [1988] E.C.R. 5483; [1989] B.C.L.C. 206; [1988] 3 C.M.L.R. 713; (1989) 133 S.J , 82, 83, 84, 85 R. v Ministry of Agriculture, Fisheries and Food Ex p. Federation Europeene de la Sante Animale (FEDESA) (331/88) [1990] E.C.R. I-4023; [1991] 1 C.M.L.R , 373, 374, 383, 742 R. v Ministry of Agriculture, Fisheries and Food Ex p. National Farmers' Union (C-157/96) [1998] E.C.R. I R. v Ministry of Agriculture, Fisheries and Food Ex p. SP Anastasiou (Pissouri) Ltd (C-432/92); R. v Ministry of Agriculture, Fisheries and Food Ex p. Cypruvex (UK) Ltd (C-432/92) [1994] E.C.R. I-3087; [1995] 1 C.M.L.R , 333 R. v Secretary of State for Transport Ex p. Factortame Ltd (C-213/89) [1990] 2 Lloyd's Rep. 351; [1990] E.C.R. I-2433; [1990] 3 C.M.L.R. 1; (1990) 140 N.L.J , 56, 55, 262 R. (on the application of Alliance for Natural Health) v Secretary of State for Health (C-154/04); R. (on the application of National Association of Health Stores) v Secretary of State for Health (C-155/04) [2005] E.C.R. I-6451; [2005] 2 C.M.L.R , 341, 352, 355, R. (on the application of Bidar) v Ealing LBC (C-209/03) [2005] Q.B. 812; [2005] 2 W.L.R. 1078; [2005] All E.R. (EC) 687; [2005] E.C.R. I-2119; [2005] 2 C.M.L.R. 3; [2005] C.E.C. 607; [2005] E.L.R , 709 R. (on the application of British American Tobacco (Investments) Ltd) v Secretary of State for Health (C-491/01); sub nom. R. v Secretary of State for Health Ex p. British American Tobacco (Investments) Ltd (C-491/01) [2003] All E.R. (EC) 604; [2002] E.C.R. I-11453; [2003] 1 C.M.L.R. 14; [2003] C.E.C. 53; [2003] E.T.M.R. CN10; [2003] E.T.M.R. CN R. (on the application of Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform (C-388/07); sub nom. Incorporated Trustees for the National Council on Ageing (Age Concern England) v Secretary of State for Business Enterprise and Reform [2009] All E.R. (EC) 619; [2009] E.C.R. I-1569; [2009] 3 C.M.L.R. 4; [2009] C.E.C. 754; [2009] I.C.R. 1080; [2009] I.R.L.R. 373; [2009] Pens. L.R , 589 R. (on the application of International Air Transport Association (IATA)) v Department of Transport (C-344/04) [2006] E.C.R. I-403; [2006] 2 C.M.L.R. 20; (2006) 156 N.L.J R. (on the application of M) v HM Treasury (C-340/08) [2011] All E.R. (EC) 68; [2010] 3 C.M.L.R. 31; [2010] Lloyd's Rep. F.C R. (on the application of Mellor) v Secretary of State for Communities and Local Government (C-75/08); sub nom. Mellor v Secretary of State for Communities and Local Government (C-75/08) [2010] P.T.S.R. 880; [2009] E.C.R. I-3799; [2010] Env. L.R. 2; [2009] 18 E.G. 84 (C.S.) , 67 R. (on the application of Watts) v Bedford Primary Care Trust (C-372/04) [2006] Q.B. 667; [2006] 3 W.L.R. 213; [2006] All E.R. (EC) 835; [2006] E.C.R. I-4325; [2006] 3 C.M.L.R. 5; [2006] C.E.C. 884; (2006) 90 B.M.L.R , 433, 434, 543, , 627, 641, 642, 707, 752 R. (on the application of Swedish Match AB) v Secretary of State for Health (C-210/03); sub nom. Swedish Match AB v Secretary of State for Health (C-210/03) [2004] E.C.R. I-11893; [2005] 1 C.M.L.R , 352, 355, 356, 359

208 Table of Cases li RJ Reynolds Tobacco Holdings Inc v Commission of the European Communities (C-131/03 P) [2006] E.C.R. I-7795; [2007] 1 C.M.L.R Raiffeisen Zentralbank Osterreich AG v Commission of the European Communities (T-259/02); Bank Austria Creditanstalt AG v Commission of the European Communities (T-260/02); Anteilsverwaltung BAWAG PSK AG v Commission of the European Communities (T-261/02); Raiffeisenlandesbank Niederosterreich-Wien AG v Commission of the European Communities (T-262/02); BAWAG PSK Bank fur Arbeit und Wirtschaft und Osterreichische Postsparkasse AG v Commission of the European Communities (T-263/02); Erste Bank der Osterreichischen Sparkassen AG v Commission of the European Communities (T-264/02); Osterreichische Volksbanken AG v Commission of the European Communities (T-271/02); sub nom. Austrian Banks Cartel (Lombard Club), Re (T-259/02) [2006] E.C.R. II-5169; [2007] 5 C.M.L.R Ravil Sàrl v Bellon Import Sàrl (C-469/00) [2003] E.C.R. I-5053; [2004] E.T.M.R. 22; (2003) 26(6) I.P.D Rene Lancry SA v Direction Generale des Douanes (C-363/93) [1994] E.C.R. I , 350, 351, 357, 359 Reinhard Prigge, Michael Fromm and Volker Lambach v Deutsche Lufthansa AG (C-447/09) May 19, Rewe-Zentral AG v Direktor de Landwirtschaftskammer Rheinland (37/83) [1984] E.C.R. 1229; [1985] 2 C.M.L.R , 353, 355 Rewe-Zentral AG v Hauptzollamt Kehl (10/73) [1973] E.C.R Rewe Zentralfinanz eg v Landwirtschaftskammer fur das Saarland (33/76) [1976] E.C.R. 1989; [1977] 1 C.M.L.R , 543, 548 Rewe-Handelsgesellschaft Nord mbh v Hauptzollamt Kiel (158/80); Rewe Markt Steffen v Hauptzollamt Kiel [1981] E.C.R. 1805; [1982] 1 C.M.L.R Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (120/78) [1979] E.C.R. 649; [1979] 3 C.M.L.R , 262, 367, 421, , 634, 635 Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (166/73) [1974] E.C.R. 33; [1974] 1 C.M.L.R , 278, 543, 545, , 550, 551 Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (146/73) [1974] E.C.R Rhône Poulenc SA v Commission of the European Communities (T-1/89) [1991] E.C.R. II , 469, 474 Robert Bosch GmbH v Kleding Verkoopbedrijf de Geus en Uitdenbogerd (13/61); sub nom. Kledingverkoopbedrijf de Geus en Uitdenbogerd v Robert Bosch GmbH (13/61) [1962] E.C.R. 45; [1962] C.M.L.R , 317, 551 Roca Alvarez v Sesa Start Espana ETT SA (C-104/09) [2011] All E.R. (EC) 253; [2011] 1 C.M.L.R. 28; (2010) 160 N.L.J , 596 Romano v Institut National d'assurance Maladie-Invalidite (INAMI) (98/80) [1981] E.C.R. 1241; [1983] 2 C.M.L.R Rottmann v Freistaat Bayern (C-135/08) [2010] Q.B. 761; [2010] 3 W.L.R. 1166; [2010] All E.R. (EC) 635; [2010] 3 C.M.L.R. 2; [2011] C.E.C , 162, 711, 712, Royal Philips Electronics NV v Commission of the European Communities (T-119/02) [2003] E.C.R. II-1433; [2003] 5 C.M.L.R , 504, 521 Ruiz Zambrano v Office national de l'emploi (C-34/09) March 8, , 162, 704, 705, , 711, 712, 713, 714, 715, 716, 717, 718, 719, 720 Ryanair Holdings Plc v European Commission (T-342/07) [2011] 4 C.M.L.R SECAP SpA v Comune di Torino (C-147/06); Santorso Soc Coop ARL v Comune di Torino (C-148/06) [2008] E.C.R. I-3565; [2008] 2 C.M.L.R , 630 SEVIC Systems AG v Amtsgericht Neuwied (C-411/03) [2006] All E.R. (EC) 363; [2005] E.C.R. I-10805; [2006] 2 B.C.L.C. 510; [2006] 1 C.M.L.R. 45; [2006] C.E.C , 72, 74, 75, , 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 91, 94, 95, 96 SGL Carbon AG v Commission of the European Communities (C-328/05 P) [2007] E.C.R. I-3921; [2007] 5 C.M.L.R SGL Carbon AG v Commission of the European Communities (C-564/08 P) [2009] E.C.R. I , 463 SR Industries v Administration des douanes (385/85) [1986] E.C.R Sadolin & Homblad A/S v Commission of the European Communities (17/74); sub nom. Transocean Marine Paint Association v Commission of the European Communities (17/74) [1974] E.C.R. 1063; [1974] 2 C.M.L.R Säger v Dennemeyer & Co Ltd (C-76/90) [1991] E.C.R. I-4221; [1993] 3 C.M.L.R Safety Hi-Tech Srl v S&T Srl (C-284/95) [1998] E.C.R. I-4301; [1999] 2 C.M.L.R Saint-Gobain Glass France v Commission of the European Communities (T-56/09) [2009] OJ C90/

209 lii Table of Cases St Nikolaus Brennerei und Likofabrik, Gustav Kniepfmelde GmbH v Hamptzollamt Krefeld (337/82) [1984] E.C.R. 1051; [1985] 3 C.M.L.R Sapod Audic v Eco-Emballages (C-159/00) [2002] E.C.R. I-5031; [2002] 3 C.M.L.R Sari Kiiski v Tampereen Kaupunki (C-116/06) [2007] E.C.R. I-7643; [2008] 1 C.M.L.R. 5; [2008] C.E.C Sayn-Wittgenstein v Landeshauptmann von Wien (C-208/09) [2011] 2 C.M.L.R. 28; [2011] E.T.M.R Scandinavian Airlines System AB v Commission of the European Communities (T-241/01) [2005] E.C.R. II-2917; [2005] 5 C.M.L.R Schmelz v Finanzamt Waldviertel (C-97/09) [2011] S.T.C , 352, 356, 616, , 632, 640 Schneider Electric SA v Commission of the European Communities (T-310/01) [2004] All E.R. (EC) 314; [2002] E.C.R. II-4071; [2003] 4 C.M.L.R Schunk GmbH v Commission of the European Communities (T-69/04) [2008] E.C.R. II-2567; [2009] 4 C.M.L.R , 477, 755 Schutzverband gegen Unlauteren Wettbewerb v TK-Heimdienst Sass GmbH (C-254/98) [2000] E.C.R. I-151; [2002] 1 C.M.L.R Schwarz v Finanzamt Bergisch Gladbach (C-76/05) [2008] All E.R. (EC) 556; [2008] S.T.C. 1357; [2007] E.C.R. I-6849; [2007] 3 C.M.L.R. 47; [2008] C.E.C. 243; [2007] S.T.I , 640, 707, 709 Seda Kücükdeveci v Swedex GmbH & Co KG (C-555/07) [2010] All E.R. (EC) 867; [2010] 2 C.M.L.R. 33; [2011] C.E.C. 3; [2010] I.R.L.R , 69, 112, 114, , 123, 550, 551, 589, 590, 593, 594, 595, 597, 598, 599 Segi v Council (C-355/04 P) [2008] All E.R. (EC) 65; [2007] E.C.R. I-1657; [2007] 2 C.M.L.R Sermide v Cassa Conguaglio Zucchero (106/83) [1984] E.C.R Servizi Ausiliari Dottori Commercialisti Srl v Calafiori (C-451/03) [2006] E.C.R. I-2941; [2006] 2 C.M.L.R , 623, 636, 637 Sfakianakis AEVE v Greece (C-23/04 C-25/04) [2006] E.C.R. I-1265; [2006] 2 C.M.L.R , 130 Showa Denko KK v Commission of the European Communities (C-289/04 P); sub nom. Graphite Electrodes Cartel Appeal, Re (C-289/04 P) [2006] E.C.R. I-5859; [2006] 5 C.M.L.R , 468 Simutenkov v Ministerio de Educacion y Cultura (C-265/03) [2006] All E.R. (EC) 42; [2005] E.C.R. I-2579; [2005] 2 C.M.L.R Sociaal Fonds voor de Diamantarbeiders, Antwerp v SA Ch Brachfeld & Sons, Antwerp (2/69); Sociaal Fonds voor de Diamantarbeiders, Antwerp v Chougol Diamond Co, Antwerp (3/69) [1969] E.C.R. 211; [1969] C.M.L.R , 350 Società Finanziaria Siderurgica Finsider v Commission of the European Communities (C-320/92 P) [1994] E.C.R. I Societe Fiduciaire Nationale d'expertise Comptable v Ministre du Budget, des Comptes Publics et de la Fonction Publique (C-119/09) [2011] 3 C.M.L.R Société Les Commissionnaires Réunis Sàrl v Receveur des Douanes (80/77); Les Fils de Henri Ramel v Receveur des Douanes (81/77) [1978] E.C.R , 350, 351, 357 Société Technique Minière v Maschinenbau Ulm GmbH (56/65) [1966] E.C.R. 235; [1966] C.M.L.R Société Zeturf Ltd v Premier ministre, Ministre de l'agriculture et de la Pêche, Ministre de l'intérieur, de l'outre-mer et des Collectivités territoriales, Ministre de l'économie, de l'industrie et de l'emploi (C-212/08) June 30, , 632, 639, 641, 642 Society for the Protection of Unborn Children (Ireland) Ltd (SPUC) v Grogan (C-159/90) [1991] E.C.R. I-4685; [1991] 3 C.M.L.R Sodemare SA v Lombardia (C-70/95) [1997] E.C.R. I-3395; [1997] 3 C.M.L.R. 591; [1998] 4 C.M.L.R. 667; [1997] C.E.C Sonia Chacón Navas v Eurest Colectividades SA (C-13/05) [2007] All E.R. (EC) 59; [2006] E.C.R. I-6467; [2006] 3 C.M.L.R. 40; [2007] I.C.R. 1; [2006] I.R.L.R , 113, 114, 174, 175 Soprope - Organizacoes de Calcado Lda v Fazenda Publica (C-349/07) [2008] E.C.R. I-10369; [2009] 2 C.M.L.R Sot Lélos kai Sia EE v GlaxoSmithKline AEVE Farmakeftikon Proionton (formerly Glaxowellcome AEVE) (C-468/06) [2009] All E.R. (EC) 1; [2008] E.C.R. I-7139; [2008] 5 C.M.L.R. 20; [2009] C.E.C. 98; [2009] E.T.M.R. 4; (2008) 104 B.M.L.R , 400, 401, 402, 403 Spain v Commission of the European Communities (C-135/93) [1995] E.C.R. I Sporting Exchange Ltd (t/a Betfair) v Minister van Justitie (C-203/08) [2010] 3 C.M.L.R , 247, 248, 249, , 256, 263

210 Table of Cases liii Stamatelaki v NPDD Organismos Asfaliseos Eleftheron Epangelmation (OAEE) (C-444/05) [2007] E.C.R. I-3185; [2007] 2 C.M.L.R , 621, 752 Stauder v City of Ulm (29/69) [1969] E.C.R. 419; [1970] C.M.L.R Stergios Delimitis v Henninger Bräu (C-234/89) [1991] E.C.R. I-935; [1992] 5 C.M.L.R Stichting Al Aqsa v Council of the European Union (T-348/07) September 9, , 658, 660, 664, 665 Stichting Greenpeace Council (Greenpeace International) v Commission of the European Communities (C-321/95 P) [1998] All E.R. (E.C.) 620; [1998] E.C.R. I-1651; [1998] 3 C.M.L.R. 1; [1999] Env. L.R Stoss v Wetteraukreis (C-316/07) [2011] 1 C.M.L.R , 254, 255, 256, , 259, 260, 261, 262, 263, 264, 642, 645, 646 Straffesag v Houtwipper (C-293/93) [1995] All E.R. (E.C.) 163; [1994] E.C.R. I Sturgeon v Condor Flugdienst GmbH (C-402/07); Bock v Air France SA (C-432/07) [2010] Bus. L.R. 1206; [2010] All E.R. (EC) 660; [2010] 2 All E.R. (Comm) 983; [2010] 1 Lloyd's Rep. 522; [2009] E.C.R. I-10923; [2010] 2 C.M.L.R. 12; [2010] C.E.C Sumitomo Metal Industries Ltd v Commission of the European Communities (C-403/04 P) [2007] E.C.R. I-729; [2007] 4 C.M.L.R Sun Chemical Group BV v Commission of the European Communities (T-282/06) [2007] E.C.R. II-2149; [2007] 5 C.M.L.R Susanne Bulicke v Deutsche Büro Service GmbH (C-246/09) July 8, Synetairismos Farmakopoion Aitolias & Akarnanias (SYFAIT) v Glaxosmithkline Plc (C-53/03) [2005] E.C.R. I-4609; [2005] 5 C.M.L.R , 400, 401, 403 T Port GmbH & Co KG v Bundesanstalt fur Landwirtschaft und Ernahrung (C-68/95) [1996] E.C.R. I-6065; [1997] 1 C.M.L.R TV 2/Danmark A/S v Commission (T-309/04, T-317/04, T-329/04, T-336/04) [2008] E.C.R. II TV10 SA v Commissariaat Voor de Media (C-23/93) [1994] E.C.R. I-4795; [1995] 3 C.M.L.R. 284; [1995] E.M.L.R Tadao Maruko v Versorgungsanstalt der Deutschen Bühnen (C-267/06) [2008] All E.R. (EC) 977; [2008] E.C.R. I-1757; [2008] 2 C.M.L.R. 32; [2008] I.R.L.R. 450; [2008] Pens. L.R , 591, 592 Tankreederei I SA v Directeur de l'administration des Contributions Directes (C-287/10) [2011] C.M.L.R , 646 Tas-Hagen v Raadskamer WUBO van de Pensioen- en Uitkeringsraad (C-192/05) [2007] All E.R. (EC) 129; [2006] E.C.R. I-10451; [2007] 1 C.M.L.R. 23; [2007] C.E.C , 710 Technische Glaswerke Ilmenau GmbH v Commission of the European Communities (T-198/01) [2004] E.C.R. II-2717; [2004] 3 C.M.L.R Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria AG (C-324/98) [2000] E.C.R. I Test Claimants in Class IV of the ACT Group Litigation v Inland Revenue Commissioners (C-374/04) [2007] All E.R. (EC) 351; [2007] S.T.C. 404; [2006] E.C.R. I-11673; [2007] 1 C.M.L.R. 36; [2007] C.E.C. 498; [2008] B.T.C. 305; 9 I.T.L. Rep. 360; [2006] S.T.I Tetra Laval BV v Commission of the European Communities (T-5/02) [2003] All E.R. (EC) 762; [2002] E.C.R. II-4381; [2002] 5 C.M.L.R Tetra Pak Rausing SA v Commission of the European Communities (T-51/89) [1990] E.C.R. II-309; [1991] 4 C.M.L.R. 334; [1991] F.S.R Textilwerke Deggendorg GmbH (TWD) v Commission of the European Communities (C-355/95 P) [1997] E.C.R. I-2549; [1998] 1 C.M.L.R ThyssenKrupp Nirosta GmbH v European Commission (C-352/09) March 29, Tipp-Ex v EC Commission of the European Communities (C-279/87) [1990] E.C.R. I Tokai Carbon Co Ltd v Commission of the European Communities (T-236/01); SGL Carbon AG v Commission of the European Communities (T-239/01); Nippon Carbon Co Ltd v Commission of the European Communities (T-244/01); Showa Denko KK v Commission of the European Communities (T-245/01); GrafTech International Ltd v Commission of the European Communities (T-246/01); SEC Corp v Commission of the European Communities (T-251/01); Carbide/Graphite Group Inc v Commission of the European Communities (T-252/01) [2004] E.C.R. II-1181; [2004] 5 C.M.L.R Tokai Carbon Co Ltd v Commission of the European Communities (T-71/03) [2005] E.C.R. II-10; [2005] 5 C.M.L.R , 194 Tomra Systems v Commission of the European Communities (T-155/06) September 9, Torfaen BC v B&Q Plc (145/88) [1990] 2 Q.B. 19; [1990] 2 W.L.R. 1330; [1990] 1 All E.R. 129; [1989] E.C.R. 3851; [1990] 1 C.M.L.R. 337; [1990] C.O.D. 141; (1990) 134 S.J

211 liv Table of Cases Traghetti del Mediterraneo SpA (In Liquidation) v Italy (C-173/03) [2006] All E.R. (EC) 983; [2006] E.C.R. I-5177; [2006] 3 C.M.L.R , 584 Transportes Evaristo Molina v Commission (C-36/09 P) November 11, Transportes Evaristo Molina v Commission (T-45/08) [2008] E.C.R. II Transportes Urbanos y Servicios Generales SAL v Administracion del Estado (C-118/08) [2010] 2 C.M.L.R , 62 Trojani v Centre Public d'aide Sociale de Bruxelles (CPAS) (C-456/02) [2004] All E.R. (EC) 1065; [2004] E.C.R. I-7573; [2004] 3 C.M.L.R. 38; [2005] C.E.C Ventouris Group Enterprises SA v Commission of the European Communities (T-59/99) [2003] E.C.R. II-5257; [2005] 5 C.M.L.R , 197 UEFA v Commission (T-55/08) February 17, UGT-FSP (C-151/09) Opinion of AG Sharpston May 6, Überseering BV v Nordic Construction Co Baumanagement GmbH (C-208/00) [2005] 1 W.L.R. 315; [2002] E.C.R. I-9919; [2005] 1 C.M.L.R , 80, 81, 82 Unibet (London) Ltd v Justitiekanslern (C-432/05) [2008] All E.R. (EC) 453; [2007] E.C.R. I-2271; [2007] 2 C.M.L.R , 54, 55, 56, 262 Unicredito Italiano SpA v Agenzia delle Entrate (C-148/04) [2005] E.C.R. I Unión de Pequeños Agricultores (UPA) v Council (C-50/00 P) [2003] Q.B. 893; [2003] 2 W.L.R. 795; [2002] All E.R. (EC) 893; [2002] E.C.R. I-6677; [2002] 3 C.M.L.R , 55, 56, 69, , 507, 513, 581 Uniplex (UK) Ltd v NHS Business Services Authority (C-406/08) [2010] P.T.S.R. 1377; [2010] 2 C.M.L.R Union de Televisiones Comerciales Asociadas (UTECA) v Administracion General del Estado (C-222/07) [2009] E.C.R. I-1407; [2009] 3 C.M.L.R United Brands Co v Commission of the European Communities (27/76) [1978] E.C.R. 207; [1978] 1 C.M.L.R United Kingdom v Commission of the European Communities (61/86); sub nom. Clawback on Export of Sheep, Re (61/86) [1988] E.C.R. 431; [1988] 2 C.M.L.R United Kingdom v Commission of the European Communities (C-180/96) [1998] E.C.R. I-2265; [1998] 2 C.M.L.R. 1125; (1998) 17 Tr. L.R , 638 United Pan-Europe Communications Belgium SA v Belgium (C-250/06) [2007] E.C.R. I-11135; [2008] 2 C.M.L.R. 2; [2008] C.E.C , 622, 623, 630, VB Pénzügyi Lízing Zrt. v Ferenc Schneider (C-137/08) November 9, VT4 Ltd v Vlaamse Gemeenschap (C-56/96) [1997] E.C.R. I-3143; [1997] 3 C.M.L.R. 1225; [1997] C.E.C. 1309; [1999] E.M.L.R , 624 VTB-VAB NV v Total Belgium NV (C-261/07); Galatea BVBA v Sanoma Magazines Belgium NV (C-299/07) [2010] All E.R. (EC) 694; [2009] E.C.R. I-2949; [2009] 3 C.M.L.R Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid (33/74) [1974] E.C.R. 1299; [1975] 1 C.M.L.R , 619, 634 Van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit (C-222/05) [2009] All E.R. (EC) 90; [2007] E.C.R. I-4233; [2007] 3 C.M.L.R , 63 Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten (C-430/93); Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten (C-431/93) [1996] All E.R. (E.C.) 259; [1995] E.C.R. I-4705; [1996] 1 C.M.L.R. 801; [1996] C.E.C Vanbraekel v Alliance Nationale des Mutualites Chrétiennes (ANMC) (C-368/98) [2002] E.C.R. I-5363; [2002] E.C.R. I , 432, 433, 434, , 438, 439, 543, 553, 554, 556, 752 Vatsouras v Arbeitsgemeinschaft (ARGE) Nurnberg 900 (C-22/08 and C-23/08) [2009] E.C.R. I , 345 Verband der Freien Rohrwerke ev v Commission of the European Communities (T-374/00) [2003] E.C.R. II-2275; [2004] 5 C.M.L.R , 514, 521 Verband Sozialer Wettbewerb ev v Clinique Laboratories SNC (C-315/92) [1994] E.C.R. I , 342 Verein Gegen Unwesen in Handel und Gewerbe Koln ev v Mars GmbH (C-470/93) [1995] E.C.R. I-1923; [1995] 3 C.M.L.R Verholen v Sociale Verzekeringsbank Amsterdam (C-87/90, C-88/90 and C-89/90) [1991] E.C.R. I-3757; [1994] 1 C.M.L.R Viacom Outdoor Srl v Giotto Immobilier Sarl (C-134/03) [2005] E.C.R. I-1167; [2006] 1 C.M.L.R

212 Table of Cases lv Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission (T-102/00) [2003] E.C.R. II Vodafone Ltd v Secretary of State for Business, Enterprise and Regulatory Reform (C-58/08); sub nom. R. (on the application of Vodafone Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform (C-58/08) [2010] All E.R. (EC) 741; [2010] 3 C.M.L.R Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen (C-92/09 and C-93/09) November 9, Von Colson v Land Nordrhein-Westfahlen (C-14/83); Harz v Deutsche Tradax GmbH (C-79/83) [1984] E.C.R. 1891; [1986] 2 C.M.L.R Wall AG v La ville de Francfort-sur-le-Main and Frankfurter Entsorgungs- und Service (FES) GmbH (C-91/08) April 13, Werner Mangold v Rüdiger Helm (C-144/04) [2006] All E.R. (EC) 383; [2005] E.C.R. I-9981; [2006] 1 C.M.L.R. 43; [2006] C.E.C. 372; [2006] I.R.L.R , 59, 68, 69, , 114, 115, 120, 121, 122, 589, 590, 593, 594, 595, 597, 598, 599, 717 Westfälisch-Lippischer Sparkassen- und Giroverband v Commission (T-457/09) [2010] OJ C11/ Wieland-Werke v Commission of the European Communities (T-116/04) [2009] E.C.R. II , 198, 461, 463 Wiener SI GmbH v Hauptzollamt Emmerich (C-338/95) [1997] E.C.R. I-6495; [1998] 1 C.M.L.R William Prym GmbH & Co KG and Prym Consumer GmbH & Co v Commission of the European Communities (T-30/05) [2007] E.C.R. II William Prym GmbH & Co KG v Commission of the European Communities (C-534/07 P) [2009] E.C.R. I-7415; [2009] 5 C.M.L.R. 21; [2010] C.E.C , 473 Willy Kempter KG v Hauptzollamt Hamburg-Jonas (C-2/06) [2008] E.C.R. I-411; [2008] 2 C.M.L.R Winner Wetten GmbH v Burgermeisterin der Stadt Bergheim (C-409/06) [2011] 1 C.M.L.R , 254, 255, 256, , 264, 642 Wirtschaftskammer Kärnten and best connect Ampere Strompool v Commission (T-350/03) [2006] E.C.R. II , 509 Wouters v Algemene Raad van de Nederlandse Orde van Advocaten (C-309/99) [2002] All E.R. (EC) 193; [2002] E.C.R. I-1577; [2002] 4 C.M.L.R. 27; [2002] C.E.C X v Staatssecretaris van Financien (C-155/08); Passenheim-van Schoot v Staatssecretaris van Financien (C-157/08) [2009] All E.R. (EC) 888; [2009] S.T.C. 2441; [2009] E.C.R. I Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien (C-338/09) [2011] 2 C.M.L.R Yusuf v Council of the European Union (T-306/01) [2006] All E.R. (EC) 290; [2005] E.C.R. II-3533; [2005] 3 C.M.L.R Zanotti v Agenzia delle Entrate - Ufficio Roma 2 (C-56/09) [2011] All E.R. (EC) 239; [2010] 3 C.M.L.R , 635 Zuckerfabrik Süderditmarschen AG v Hauptzollamt Itzehoe (143/88); Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn (C-92/89) [1991] E.C.R. I-415; [1993] 3 C.M.L.R. 1; (1991) 135 S.J.L.B Zunis Holding SA v Commission of the European Communities (T-83/92) [1993] E.C.R. II-1169; [1994] 5 C.M.L.R , 511 Zwartveld, Re (2/88 Imm) [1990] E.C.R. I-3365; [1990] 3 C.M.L.R European Court of Human Rights Airey v Ireland (A/32) ( ) 2 E.H.R.R. 305 EctHR Albert v Belgium (A/58); Le Compte v Belgium (A/58) (1983) 5 E.H.R.R. 533 ECtHR Behrami v France (Admissibility) (71412/01); Saramati v France (Admissibility) (78166/01), 22 B.H.R.C. 477; (2007) 45 E.H.R.R. SE Bendenoun v France (A/284) (1994) 18 E.H.R.R. 54 ECtHR , 203 Benham v United Kingdom (19380/92) (1996) 22 E.H.R.R. 293 ECtHR Bryan v United Kingdom (A/335-A); sub nom. Bryan v United Kingdom (19178/91) (1996) 21 E.H.R.R. 342; [1996] 1 P.L.R. 47; [1996] 2 E.G.L.R. 123; [1996] 28 E.G. 137 ECtHR Buckley v United Kingdom (20348/92) (1997) 23 E.H.R.R. 101; [1997] 2 P.L.R. 10; [1996] J.P.L ECtHR Compagnie des gaz de pétrole Primagaz v France (29613/08) December 21, 2010 ECtHR

213 lvi Table of Cases Crompton v United Kingdom (42509/05) (2010) 50 E.H.R.R. 36 ECtHR Cyprus v Turkey (25781/94) (2002) 35 E.H.R.R. 30; 11 B.H.R.C. 45 ECtHR DH v Czech Republic (57325/00) (2006) 43 E.H.R.R. 41; [2006] E.L.R. 121 ECtHR DH v Czech Republic (57325/00) (2008) 47 E.H.R.R. 3; 23 B.H.R.C. 526; [2008] E.L.R. 17 ECtHR Dubus SA v France (5242/04) June 11, 2009 ECtHR Engel v Netherlands (A/22) ( ) 1 E.H.R.R. 647 ECtHR Findlay v the United Kingdom (22107/93) (1997) 24 E.H.R.R. 221 ECtHR Glor v Switzerland (App. No.13444/04) April 30, 2009 ECtHR Janosevic v Sweden (34619/97) (2004) 38 E.H.R.R. 22 ECtHR , 204 Jussila v Finland (73053/01) [2009] S.T.C. 29; (2007) 45 E.H.R.R. 39; 9 I.T.L. Rep. 662 ECtHR , 203, 204 Klass v Germany (A/28) ( ) 2 E.H.R.R. 214 ECtHR , 725, 729, 730 Kyprianou v Cyprus (73797/01) (2007) 44 E.H.R.R. 27 ECtHR Le Compte v Belgium (A/43); Van Leuven v Belgium (A/43); De Meyere v Belgium (A/43) [1982] E.C.C. 240; (1982) 4 E.H.R.R. 1 ECtHR Loizidou v Turkey (15318/89) (1997) 23 E.H.R.R. 513 ECtHR Loizidou v Turkey (Preliminary Objections) (A/310) (1995) 20 E.H.R.R. 99 ECtHR Obermeier v Austria (A/179); sub nom. Obermeier v Austria (11761/85) (1991) 13 E.H.R.R. 290 ECtHR Öztürk v Germany (A/73) (1984) 6 E.H.R.R. 409 ECtHR Popescu v Romania (49234/99 and 71525/01) June 26, 2007 EctHR Ravon v France (18497/03) February 21, 2008 ECtHR Salgueiro Da Silva Mouta v Portugal (App. No.33290/96) (2001) 31 E.H.R.R. 47 ECtHR Saunders v United Kingdom (19187/91); sub nom. Saunders v United Kingdom (43/1994/490/572) [1997] B.C.C. 872; [1998] 1 B.C.L.C. 362; (1997) 23 E.H.R.R. 313; 2 B.H.R.C. 358; ECtHR Savino v Italy (17214/05, 20329/05, 42113/04) April 28, 2009 ECtHR Schmautzer v Austria (A/328-A) (1996) 21 E.H.R.R. 511 ECtHR Silvester's Horeca Service v Belgium (47650/99) March 4, 2004 ECtHR Société Stenuit v France (A/232-A) (1992) 14 E.H.R.R. 509 ECtHR Tsfayo v United Kingdom (2009) 48 E.H.R.R. 457 ECtHR Opinions 1/91 Draft Treaty on a European Economic Area (No.1), Re (Opinion 1/91); sub nom. Draft Agreement relating to the Creation of a European Economic Area, Re (Opinion 1/91) [1991] E.C.R. I-6079; [1992] 1 C.M.L.R , 580 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] E.C.R. I /91 ILO Convention 170 on Chemicals at Work, Re (Opinion 2/91); sub nom. ILO (International Labour Organisation) Convention No.170, Re (Opinion 2/91) [1993] E.C.R. I-1061; [1993] 3 C.M.L.R. 800; [1994] I.R.L.R , 418, 528, 529, 533 1/92 Draft Treaty on a European Economic Area (No.2), Re (Opinion 1/92); sub nom. Draft Agreement relating to the Creation of a European Economic Area (Opinion 1/92) [1992] E.C.R. I-2821; [1992] 2 C.M.L.R , 582

214 Table of Cases lvii 1/00 Draft Agreement on a European Common Aviation Area, Re (Opinion 1/00); sub nom. Proposed Agreement between the European Community and non-member States on the Establishment of a European Common Aviation Area (Opinion 1/00) [2002] E.C.R. I-3493; [2002] 2 C.M.L.R , 580 2/00 Cartagena Protocol on Biosafety, Re (Opinion 2/00); sub nom. Commission of the European Communities, Re (Cartagena Protocol) (2/00) [2001] E.C.R. I-9713; [2002] 1 C.M.L.R. 28; [2002] Env. L.R /03 New Lugano Convention (Opinion 1/03) [2006] E.C.R. I , 414, 418, 536 1/09 Opinion delivered pursuant to Article 218(11) TFEU - Draft agreement - Creation of a unified patent litigation system - European and Community Patents Court - Compatibility of the draft agreement with the Treaties March 8, , 320, 551, 577, , 580, 581, 582, 583, 586, 587 National Cases Austria Decision of December 9, 1997 in case 16 Ok 9/ Belgium Decision of March 5, 1999 of the Cour d appel de Bruxelles, No.322/ Bulgaria Decision of November 12, Cyprus Supreme Court of Cyprus, Judgment of November 7, 2005, App. No.294/2005 [2007] 3 C.M.L.R Czech Republic Decision Pl. ÚS 19/08 of the Czech Constitutional Court (Lisbon) Judgment of the Czech Constitutional Court of May 3, 2006, Pl U S 66/04 [2007] 3 C.M.L.R Denmark Lady & Kid [2010] Ugeskrift for Retsvæsen 1389 H , 285, 286, 287, 288 Pro Display v HK Danmark [2010] Ugeskrift for Retsvæsen 2125 H , 285, 287 Ugeskrift for Retsvæsen, Ø, H, H and Ø) , 287

215 lviii Table of Cases France Cohn-Bendit case (CE, Ass., 22 décembre 1978, Ministre de l intérieur c. D. Cohn-Bendit, Rec. Leb, 1978, p.524) Decision No DC May 12, Decision No May 14, 2010 of the Conseil d Etat Germany 2 BvR 987/10 BVerG, May 7, BvR 1099/10 BVerG, June 9, Bundesverwaltungsgericht, January 28, 1997, 1 C 17/94 [1997] Neue Zeitschrift für Verwaltungsrecht BVerfG, 1 BvR 256/08, 1 BvR 263/08 & 1 BvR 586/08 Vorratsdatenspeicherung (Data Protection) March 2, , 120 BVerfG, 1 BvR 1054/01, judgment of March 28, , 261, 262 BVerfG, 1 BvR 2677/04, Order of August 2, BVerfG, 2 BvR 2134/92 & 2159/92 Brunner v European Union Treaty (Maastricht) [1994] 1 C.M.L.R , 115 BVerfG, 2 BvR 197/83 Application of Wünsche Handelsgesellschaft, Re (Solange II) [1987] 3 C.M.L.R , 122 BVerfG, 2 BvR 2134/92 & 2159/92, Brunner v European Union Treaty (Maastricht) [1994] 1 C.M.L.R BVerfG, 2 BvR 2236/04 Constitutionality of German Law Implementing the Framewok Decision on a European Arrest Warrant, Re (European Arrest Warrant) [2006] 1 C.M.L.R , 120 BVerfG, 2 BvL 1/97 Banana Market Regulation, Re (Banana Market) BVerfG, 2 BvR 2661/06 Honeywell Bremsbelag GmbH July 6, , 119, 120, 121, BVerfG, 2 BvE 2/08, Gauweiler Die Linke v Act of Approval of the Lisbon Treaty June 30, , 110, 115, 119, , 122, 489, 490, 731 BVerfGE 115, , 261, 262 Decision of June 4, 1991 (Bverg I C 42.88) (1992) 4(3) I.J.R.L. 387 Case Decision of July 18, 2005 (2 BvR 2236/04) [2006] 1 C.M.L.R Decision of March 2, 2010, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/ Europäische Grundrechte-Zeitschrift 1; [1987] 3 C.M.L.R 225; (1988) 25 C.M.L. Rev German Data Retention Judgment, June 30, Internationale Handelsgesellschaft von Einfuhr- und Vorratsstelle fur Getreide und Futtermittel (Solange I), decision of May 29, 1974, BVerfGE 37, 271 [1974] C.M.L.R Order of May 29, 1974 (Solange I) 37 BVerfGE Order of October 22, 1986 (Solange II), 73 BVerfGE Order of October 12, 1993 (Maastricht) 89 BVerfGE Order of June 30, 2009 (Lisbon), 123 BVerfGE Wunsche Handelsgesellschaft (Solange II), decision of October 22, 1986, BVerfGE 73, 339, 2 BvR 197/ Greece Decision 318/V/2006 of September 1, 2006 of the Hellenic Competition Commission Polymeles Protodikeio Athinon (Athens Multi-Member Court of First Instance), Judgment No.519/ Polymeles Protodikeio Athinon, Judgment No.5857/2003, confirmed by the Efeteio Athinon (Athens Court of Appeal), Judgment No.2883/2004 and by the Areios Pagos (Supreme Civil Court), Judgment No.1332/ Ireland Cahill v Sutton [1980] I.R Campus Oil v Minister for Industry and Energy [1983] I.R Digital Rights Ireland May 5, , 730 Office of the King s Prosecutor v Cando Armas [2007] 2 C.M.L.R Minister for Justice & Law Reform v Robert Aaron Anderson [2006] IEHC The Irish Penal Reform Trust Ltd [2005] IEHC

216 Table of Cases lix Italy Case No.7636, decision of May 24, 2002, Foro italiano 2002, I, col Corte cost., sent. 137/1971, Bottiglieri and Caruso, in Giurisprudenza Costituzionale, 1971, , 365, 366, 382 Corte cost., sent. 20/1980, Moja, in Giurisprudenza Costituzionale, 1980, , 366, 373, 382 Pepi and Catto, Corte cost., sent. 443/1997 in Giurisprudenza Costituzionale, 1997, sent. 50/1957, Nonna and others, in Giurisprudenza Costituzionale, 1957, sent. 232/1975, ICIC, in Giurisprudenza Costituzionale, 1975, sent. 97/1969, Segalini, in Giurisprudenza Costituzionale, 1969, Netherlands Betfair (No /1/H3-A), March Decision of the Amsterdam District Court (Kantongerecht) 29 January 2007, EA (2007) 2 E.C.F.R. 308, Ladbrokes v Lotto, Dutch Supreme Court, judgment of February 18, 2005 (No.C03/306HR) Poland Judgment K 18/04 of the Polish Constitutional Court Judgment of April 27, 2005, No.P 1/05 [2006] 1 C.M.L.R Romania Decision 1258 of October 8, 2009 on the objection of unconstitutionality of the provisions of Law 298/2008 on the retention of data generated or processed by the providers of publicly available electronic communications services or public communications networks, which also amends Law 506/2004 on the processing of personal data and privacy protection in the electronic communications sector, Official Gazette No.798 of November 3, Spain Declaration 1/2004 of the Spanish Constitutional Court United Kingdom A v HM Treasury; HM Treasury v Al-Ghabra; R. (on the application of Youssef) v HM Treasury; sub nom. HM Treasury v Ahmed [2010] UKSC 2; [2010] 2 A.C. 534; [2010] 2 W.L.R. 378; [2010] 4 All E.R. 745; [2010] H.R.L.R. 15; [2010] U.K.H.R.R. 204; [2010] Lloyd s Rep. F.C. 217; (2010) 154(4) S.J.L.B American Cyanamid Co v Ethicon Ltd (No.1) [1975] A.C. 396; [1975] 2 W.L.R. 316; [1975] 1 All E.R. 504; [1975] F.S.R. 101; [1975] R.P.C. 513; (1975) 119 S.J. 136 HL Applin v Race Relations Board [1973] Q.B. 815; [1973] 2 W.L.R. 895; [1973] 2 All E.R. 1190; (1973) 117 S.J. 417 CA (Civ Div) Archibald v Fife Council [2004] UKHL 32; [2004] 4 All E.R. 303; 2004 S.C. (H.L.) 117; 2004 S.L.T. 942; 2004 S.C.L.R. 971; [2004] I.C.R. 954; [2004] I.R.L.R. 651; (2005) 82 B.M.L.R. 185; (2004) 101(31) L.S.G. 25; (2004) 148 S.J.L.B. 826; 2004 G.W.D Argos Ltd v Office of Fair Trading (Penalties) [2005] CAT 13; [2005] Comp. A.R Attridge Law (A Firm) v Coleman [2007] 2 C.M.L.R. 24; [2007] I.C.R. 654; [2007] I.R.L.R. 88 UKEAT Attridge Law LLP v Coleman. See EBR Attridge Law LLP (formerly Attridge Law) v Coleman Bleuse v MBT Transport Ltd [2008] I.C.R. 488; [2008] I.R.L.R. 264 EAT Cheltenham BC v Laird [2009] EWHC 1253 (QB); [2009] I.R.L.R , 43, 44 Duncombe v Department for Education and Skills; sub nom. Duncombe v Secretary of State for Children, Schools and Families; Secretary of State for Children, Schools and Families v Fletcher [2009] EWCA Civ 1355; [2010] 4 All E.R. 335; [2010] 2 C.M.L.R. 14; [2010] I.C.R. 815; [2010] I.R.L.R Duncombe v Department for Education and Skills; sub nom. Duncombe v Secretary of State for Children, Schools and Families; Secretary of State for Children, Schools and Families v Fletcher [2009] EWCA Civ 1355; [2010] 4 All E.R. 335; [2010] 2 C.M.L.R. 14; [2010] I.C.R. 815; [2010] I.R.L.R

217 lx Table of Cases EBR Attridge Law LLP (formerly Attridge Law) v Coleman [2010] 1 C.M.L.R. 28; [2010] I.C.R. 242; [2010] I.R.L.R. 10; (2009) 153(42) S.J.L.B El-Ali v Secretary of State for the Home Department; Daraz v Secretary of State for the Home Department [2002] EWCA Civ 1103; [2003] 1 W.L.R. 95; [2003] Imm. A.R. 179; [2002] I.N.L.R. 468; (2002) 99(39) L.S.G Keane v Investigo (Appeal No.UKEAT/0389/09/SM_ December 11, 2009 EAT , 40 Lawson v Serco Ltd; Botham v Ministry of Defence; Crofts v Veta Ltd; sub nom. Serco Ltd v Lawson [2006] UKHL 3; [2006] 1 All E.R. 823; [2006] I.C.R. 250; [2006] I.R.L.R. 289; (2006) 103(6) L.S.G. 36; (2006) 156 N.L.J. 184; (2006) 150 S.J.L.B Lewisham LBC v Malcolm. See Malcolm v Lewisham LBC Malcolm v Lewisham LBC; sub nom. Lewisham LBC v Malcolm [2008] UKHL 43; [2008] 1 A.C. 1399; [2008] 3 W.L.R. 194; [2008] 4 All E.R. 525; [2008] I.R.L.R. 700; [2008] H.L.R. 41; [2008] B.L.G.R. 549; (2008) 11 C.C.L. Rep. 573; (2008) 102 B.M.L.R. 170; [2008] 2 P. & C.R. 18; [2008] L. & T.R. 29; [2008] 26 E.G. 117 (C.S.); (2008) 105(26) L.S.G. 23; (2008) 152(26) S.J.L.B. 29; [2008] N.P.C , 40 Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading (No.4) [2002] CAT 1; [2002] Comp. A.R. 13; [2002] E.C.C. 13; (2002) 64 B.M.L.R , 206 National Grid Plc v Gas and Electricity Markets Authority [2009] CAT 14; [2009] Comp. A.R National Grid Plc v Gas and Electricity Markets Authority [2010] EWCA Civ 114; [2010] U.K.C.L.R R. v Secretary of State for Transport Ex p. Factortame Ltd (No.2) [1991] 1 A.C. 603; [1990] 3 W.L.R. 818; [1991] 1 All E.R. 70; [1991] 1 Lloyd s Rep. 10; [1990] 3 C.M.L.R. 375; (1991) 3 Admin. L.R. 333; (1990) 140 N.L.J. 1457; (1990) 134 S.J HL R. (on the application of Federation of Technological Industries) v Customs and Excise Commissioners; sub nom. Customs and Excise Commissioners v Federation of Technological Industries [2004] EWCA Civ 1020; [2004] S.T.C. 1424; [2004] 3 C.M.L.R. 41; [2005] Eu. L.R. 110; [2004] B.T.C. 5623; [2004] B.V.C. 682; [2004] S.T.I. 1763; (2004) 101(36) L.S.G. 35; (2004) 148 S.J.L.B R. (on the application of A) v Secretary of State for the Home Department [2002] EWCA Civ 1008; [2002] 3 C.M.L.R. 14; [2002] Eu. L.R R. (on the application of Kibris Turk Hava Yollari) v Secretary of State for Transport [2010] EWCA Civ 1093; [2011] 1 Lloyd s Rep Race Relations Board v Applin. See Applin v Race Relations Board Richardson v Mellish, 130 E.R. 294; (1824) 2 Bing. 229; [1824] All E.R. Rep. 258 CCP Saini v All Saints Haque Centre [2009] 1 C.M.L.R. 38; [2009] I.R.L.R Sepia Logistics Ltd (formerly Double Quick Supplyline Ltd) v Office of Fair Trading [2007] CAT 13; [2007] Comp. A.R Showboat Entertainment Centre Ltd v Owens [1984] 1 W.L.R. 384; [1984] 1 All E.R. 836; [1984] I.C.R. 65; [1984] I.R.L.R. 7; (1983) 80 L.S.G. 3002; (1984) 134 N.L.J. 37; (1984) 128 S.J. 152 EAT Stephen English v Thomas Sanderson Ltd [2008] EWCA Civ 1421; [2009] 2 All E.R. 468; [2009] 2 C.M.L.R. 18; [2009] I.C.R. 543; [2009] I.R.L.R. 206; (2009) 153(1) S.J.L.B Umbro Holdings Ltd v Office of Fair Trading (Judgment on Penalty) [2005] CAT 22; [2005] Comp. A.R Zarczynska v Levy [1979] 1 W.L.R. 125; [1979] 1 All E.R. 814; [1979] I.C.R. 184; [1978] I.R.L.R. 532; (1978) 122 S.J. 776 EAT United States of America Daubert v Merrell Dow, 509 U.S. 579 (1993) General Dynamics, 415 U.S. 486 (1974) Medellin v Dretke, 544 U.S. 660 (2005) Schwinn, 388 U.S. 365 (1967) Sylvania, 433 U.S. 36 (1977) White Motor, 372 U.S. 253 (1963)

218 Table of Legislation Treaties and Conventions Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters [2005] OJ L124/ Agreement establishing an Association between the European Community and its Member States, and the Republic of Chile [2002] OJ L352/3 Annex III art Agreement on the Application of Sanitary and Phytosanitary Measures art art.5(5) (7) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) , 528 Agreement on Trade-Related Investment Measures (TRIM) Charter of the United Nations Charter of Fundamental Rights [2000] OJ C364/ , 200, 589, 716 art , 726, 729 art , 729 art art , 161, 597 (1) , 595 art art art , 238, 239 art art art , 201, 45 (2) (3) art art.49(3) art art.51(1) , 717 art , 726 (3) Community Customs Code art art Constitutional Treaty , 98, 99, 483 art.i-29(1) art.iii-270(2) Protocol No.2 to the Treaty establishing a Constitution for Europe Convention defining the Statute of the European Schools Convention of Montevideo on the Rights and Duties of States, 165 L.N.T.S Convention No.170 of the International Labour Organization , 533 Convention on the Reduction of Stateless Persons [1961] U.N.T.S Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms art art art art lxi

219 lxii Table of Legislation Protocol Dublin Convention EC Cyprus Association Agreement of EC Switzerland FTA Protocol art.3(3) art.4(3) EC Treaty , 72, 77, 78, , 156, 199, 231, 283, 323, 428, 444, 725 Pt 3 Title XIX art art.3(1)(g) , 231, 232, 233 (i) (j) art art art , 232, 233 art , 343, 348, 631 art , 167, 170, 181, art (2) , 622 art , 229, 237, 239 art art art , 622 art , 356, 359, 626 art , 352, 359, 626 art , 364, 422 art , 353 art , 343 (2) art art art art art , 431, 432, 433, 434 art art art , 461 (1) , 232 (3) art , 314, 461, 749 art.86(2) , 233, 640 art.87(1) art , 357, 358, 618, , 639 art , 346, 421, 726, art art art.130r art.130y art art art.163(1)

220 Table of Legislation lxiii (2) art art , 622 art art , 195, 476 art , 502, 503, 689 (4) art art art art art art Economic Partnership Agreement between the Cariforum States, and the European Community and its Member States [2008] OJ L289/ EEA Agreement art art art art EU Israel Euro-Mediterranean Agreement [2006] OJ L20/1 Protocol 4 art Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, and the State of Israel (EC Israel Association Agreement) [2000] OJ L147/ , 125, 128, 134 Euro-Mediterranean Interim Association Agreement on Trade and Cooperation between the European Community and the Palestine Liberation Organization (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip (EC PLO Agreement) [1997] OJ L187/ , 125, 127, 128, art Protocol 3 art art (1) art European Coal and Steel Community (ECSC) art art , 477 European Convention on Human Rights and Fundamental Freedoms (ECHR) , 200, 202, 206, , 479, 711 art.2(5) art , 204, 207, 458, (1) , 203, 204, 205, 206 (2) art art , 726, 727, 728, 730 (2) art European Convention on Nationality [1997] E.T.S art European Economic Area Agreement [2005] OJ L321/1 Protocol 4 art European Patent Convention (EPC) , 576 art art art European Schools' Convention

221 lxiv Table of Legislation art , 456 art Final Act of Helsinki General Agreement on Tariffs and Trade (GATT) , 309 art art.xxiv , 132, 134 (5) , 132 (b) (8) , 132 General Agreement on Trade in Services (GATS) , 309, 528 Geneva Convention relating to the Status of Refugees , 136, 139 art.1a , 138 art.1c art.1d , 137, 138, 140, , 143 art.1e art.1f Havana Charter 1948 Ch.V International Convention for the Regulation of Whaling Kyoto Convention on the Simplification and Harmonisation of Customs Procedures North American Free Trade Agreement (NAFTA) art.1120(1)(a) Protocol to the 1979 United Nations Convention on Long-range Transboundary Air Pollution , 416 art art.14(1) (3) Schengen Implementing Convention 1990 art Single European Act , 499 Statute of the European System of Central Banks and of the ECB art art.3(1) art.12(1) art.18(1) art , 567 Stockholm Convention on Persistent Organic Pollutants , 405, 407, 413, 417 art art.8(1) (2) (4) (5) (9) art.19(6) art.21(1) art.22(3)(b) (b) (c) (4) , 409 art.23(2) art.25(2) (4) art.26(1) Annex A , 406, 408, 409, 414 Annex B Annex C Treaty establishing the European Atomic Energy Community (Euratom) Treaty of Amsterdam , 136, 156, 170, 229 Protocol art

222 Table of Legislation lxv Treaty of Lisbon , 99, 100, 154, , 228, 231, 237, 239, 293, 294, 295, 301, 321, 337, 420, 441, 444, , 482, 483, 488, 495, 497, 499, 549, 571, 653, 661 Preamble art art.6(1) Protocol No , 480, 481, 486, , 492, 493 Preamble art art art Protocol No , 481, 482, 483, , 486, 487, 488, 489, 490, 491, 496, 499 art.7(3) art art Treaty on European Community (TEC) art , 406, 408, 410, , 526 art art.133(5) , 293, 298 (6) , 297, 298, 299 (7) art (4) , 412 arts art (1) art , 413 art art.181a(3) art , 408 art.300(1) , 408 art Treaty on European Union 1992 (Treaty of Maastricht, EU Treaty, TEU) , 182, 319, 444, 725 Title VI art.1(3) art , 693, 694, 695, 731 (5) , 337 art , 228, 562 (1) (2) (3) (5) , 452, 693, 703 art.4(1) (2) , 736 (3) , 54, 59, 232, , 405, 408, 417, 526, 534, 535, 536, 537, 538, 562, 658, 731, 749 art , 729 (1) , 736 (2) , 542 (3) , 100, 101, 484 art (1) , 115, 153, 200, , 729

223 lxvi Table of Legislation (2) , 726, 729 art , 689, 690, 691, , 696, 697, 698, 700, 701, 702, 703 (1) (2) , 692, 703 art.10(1) (2) , 490 art.11(4) art , 490, 492 (b) art.16(4) , 682 (5) , 682 art , 479 (1) , 55, 56, 68 art.24(1) (3) art.28(3) (5) art art art art , 539 art art art , 728, 729 art , 581 (6) art art Protocol No.1 art art Protocol No , 105, 107 art art first sentence art , 102, 103 art , 100, 102 (1) (2) (3) , 103 (a) (b) art.26(2) art.27(1) (7) Declaration No.3 on art.8 of the Treaty on European Union [2010] OJ C83/ , 702 Declaration No Treaty on the Functioning of the European Union (TFEU) , 291, 339, 340, 319 Pt Pt 3 Title V Ch , 423 Ch , 423 Title XX Pt Title V Ch art.2(4) art.3a

224 Table of Legislation lxvii art.4(2)(e) (2) , 411 (3) (4) art , 497, 498 (1) (2) (3) art , 498 art art , 228, 229, 233, , 241, 243, 310 art , 726 art , 339, 343, 455, , 711, 716 art , 170, 179, 180, , 597, 598, 705, 706 art , 705, 706, 708, , 713, 714, 715, 716, 718, 719, 720, 721 art , 340, 343, 705, , 709, 710, 711, 716 arts , 729 art art art art (2) , 616, 622 art , 349, 350, 351, art , 339, 351, 353, , 359, 364, 367, 382, 421, 422, 622, 626 arts , 345, 368 art , 358, 359, 626 art , 345, 353, 355 art , 343, 351, 353, 455 art , 74, 75, 76, 78 81, 84, 85, 86, 87, 223, 245, 259, 261, 339, 343, 351 art art , 636, 637 art , 80, 355, 634, , 640 (1) art , 76, 78, 81, 84 85, 86, 87, 95, 96 art , 246, 248, 249, , 261, 339, 343, 431, 432, 433, 434, 435, 437, 438, 544, 552, 553, , 619, 621, 622, 623, 624, 626, 627, 629, 630, 631, 632, 633, 644, 646 art , 636, 640, 707, 709 art , 339, 351 art art.67(3) , 424, 428, 429 art (3) art art art.81(3)

225 lxviii Table of Legislation art.82(1) (2) , 427, 428 art (2) (3) art , 151, 152, 313, , 317, 386, 395, 396, 397, 401, 402, 403, 461, 469, 470, 505, 611 (1) , 227, 232, 316, , 398, 474, 609, 610, 611, 738, 739, 741, 742, 743, 747, 749, 751 (3) , 315, 316, 397, , 610, 611, 616 arts art , 149, 150, 152, , 233, 314, 386, 395, 397, 398, 400, 401, 402, 403, 404, 461, 464, , 471, 505, 511, 609, 610, 611, 612, 738, 739, 740, 741, 742, 743, , 755, 756 (b) art art art.106(1) , 233 (2) , 229, 230, 232, , 240, 241, 242, 243, 640, 641 art (1) , 227, 233, 241 (3)(b) , 7, 8, 9, 10 11, 24, 25 art.108(2) (3) , 747 art , 357, 358, 618, , 639 art , 402, 421, 555, , 728 art art art art , 569 art (2) , 559, 560, 563, , 569, 570, 574 art , 558, 561, 566, art art , 560, 561, 562, , 575 (1) , 564 art , 563, 569 art (1) art , 570, 575 (1)(a) (3) art , 569 art.153(4) art , 592, 598, 599 art (3)

226 Table of Legislation lxix art (1) (7) art art.179(1) (2) art , 412 (4) , 412 arts art (1) art , 418 art art , 299, 300, 301 (1) , 294 (2) , 298, 300 (3) (4) , 294, 298 (a) (b) , 298 (5) (6) , 296, 297, 299 art.209(2) art art.212(3) (4) art (3) art.216(1) , 696 art , 692, 693, 697, , 703 (11) art (2) (3) , 408 (6)(a) , 301 (8) , 408 (11) , 579, 580 art art art.238(3) , 682 art art , 478 (1) art , 405, 408, 579, , 623, 733 art art , 467, 468, 472, , 476, 477, 478 art , 586 art , 70, 190, 269, , 467, 468, 472, 477, 502, 503, 512, 535 (2) (4) , 512, 513, 638 art , 267, 268, 269, , 535

227 lxx Table of Legislation (2) (3) art , 277, 279, 280, , 283, 284, 285, 286, 288, 429, 455, 456, 545, 548, 549, 550, 551, , 583, 584, 617, 729, 729 (3) , 584 art (2) art art art art , 59, 339 art , 677 art , 672, 673, 674, , 684 art , 671, 672, 673, , 677, 683, 684, 686 (2) art , 402 (1) art.296(2) art , 681 arts art , 578, 580 art , 296, 417 art Treaty setting up the Benelux Court art UN Convention on the Rights of Persons with Disabilities (UNCRPD) adopted by the General Assembly , 163, 164, 169 Recital (2) art art , 177 (1)(e) (5) art art.4(1)(a) art (3) art United Nations Convention on Long-Range Transboundary Air Pollution United Nations Convention on the Rights of Persons with Disabilities , 47 art Universal Declaration of Human Rights art Vienna Convention on the Law of Treaties art , 125, 126, 29, art WTO Agreement (Final Act) art.x(3) (4) WTO Agreement on Rules of Origin art

228 Table of Legislation lxxi Regulations Reg.17/62 First Regulation implementing Articles 85 and 86 of the Treaty, as amended [1962] OJ 13/ , 187, 189, 201, 476 art.15(2) , 187, 196 art , 475, 476 Reg.1612/68 on freedom of movement for workers within the Community [1968] OJ L257/2 art.3(1) Reg.816/70 laying down additional provisions for the common organisation of the market in wine [1980] OJ L99/1 art.31(2) Reg.974/71 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States [1971] OJ L106/ Reg.1408/71 on the application of social security schemes to employed persons and their families moving within the Community [1971] OJ L149/ , 345, 353, 432, , 552, 555 art art , 553, 554, 55 (1)(a) , 434, 435, 436, , 648 (c) , 544 (2) , 544, 553, 554 art , 433, 434, 436, 438 Reg.1837/80 on the common organization of the market in sheepmeat and goatmeat [1980] OJ L183/1 art Reg.2950/83 on the implementation of Decision 83/516 on the tasks of the European Social Fund [1983] OJ L289/ Reg.2377/90 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin [1990] OJ L224/ Reg.2454/93 laying down provisions for the implementation of Regulation 2913/92 establishing the Community Customs Code [1993] OJ L253/1 art art (3) (5) arts art.906a Annexes Reg.3604/93 specifying definitions for the application of the prohibition of privileged access referred to in Articles 104 and 104b(1) of the Treaty [1993] OJ 332/ , 568 art.3(2) art.4(2) Reg.384/96 on protection against dumped imports from countries not members of the European Community [1996] OJ L56/ Reg.12/97 amending Commission Regulation 2454/93 [1997] OJ L9/ Reg.258/97 concerning novel foods and novel food ingredients [1997] OJ L43/

229 lxxii Table of Legislation Reg.1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies [1997] OJ L209/ , 563 Reg.1467/97 of on speeding up and clarifying the implementation of the excessive deficit procedure [1997] OJ L209/ , Reg.659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (Procedural Regulation) [1999] OJ L83/ , 747 art.4(4) art.7(4) (6) Reg.2790/1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices [1999] OJ L336/ Reg.1059/2000 amending Regulation (EC) No.723/2000 amending Regulation (EC) No.1294/1999 concerning a freeze of funds and a ban on investment in relation to the Federal Republic of Yugoslavia [2000] OJ L119/1 art.8(4) Reg.2659/2000 on the application of Article 81(3) of the Treaty to categories of research and development agreements [2000] OJ L304/ Reg.44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation) [2001] OJ L12/ , 723 Reg.2157/2001 on the Statute for a European company (SE) [2001] OJ L294/ , 87, 89, 90, 92 art.2(1) (1) (4) art.3(1) art art , 90 art , 92 art (5) (14) , 91 (19) art art , 92 art art art.24(2) art Reg.2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism [2001] OJ L344/ art.2(3) Reg.178/2002 of the European Parliament and of the Council of January 28, 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L31/ art.6(3) art.9(2) (3) art.11(3) art.12(1) (3) art.22(6) , 666 (8) Reg.881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting

230 Table of Legislation lxxiii the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan [2002] OJ L139/ Reg.2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy [2002] OJ L358/59 art Reg.1/2003 on the implementation of the rules on competition laid down in arts 81 (now 101) and 82 (now 102) of the Treaty [2003] OJ L1/ , 186, 187, 201, , 473, 505, 738, 739, 740, 748, 751 Preamble , 749 Recital (13) , 738, 745, 749, 750 Recital (22) Recital (33) , 476 art (1) art art.5(2) art , 737, 738, 742, , 750, 751 (1) art , 737, 738, 740, , 743, 745, 746, 747, 750, 751 (1) (2) art art art art art (2) , 460 (a) (c) (5) art.24(1)(c) (4) art.27(2) (4) art , 459, 467, 473, , 477, 478, 479 art Reg.745/2003 amending Council Regulation (EC) No.2580/2001 on specific measures directed against certain persons and entities with a view to combating terrorism [2003] OJ L106/ Reg.1335/2003 amending Regulation (EEC) No.2454/93 laying down provisions for the implementation of Council Regulation (EEC) No.2913/92 establishing the Community Customs Code [2003] OJ L187/ Reg.139/2004 on the control of concentrations between undertakings (Merger Regulation/ ECMR) [2004] OJ L24/ , 503, 511, 520, 747 art , 609 (1)(b) art.6(2) art art.18(4) , 520 Reg.773/2004 relating to the conduct of proceedings by the Commission pursuant to arts 101 and 102 TFEU [2004] OJ L123/ art art

231 lxxiv Table of Legislation Reg.802/2004 implementing Council Regulation (EC) No.139/2004 on the control of concentrations between undertakings [2004] OJ L133/ art.11(c) art Reg.850/2004 on persistent organic pollutants and amending Directive 79/117/EEC [2004] OJ L158/ art.1(1) Annex I Reg.883/2004 on the coordination of social security systems [2004] OJ L166/ , 544, 555, 556 art , 435, 438 art , 555 (2) art , Reg.396/2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin and amending Council Directive 91/414/EEC [2005] OJ L70/1 art.6(1) art.7(2) art.8(1) art.9(1) art art.11(2) art art.14(1) , 667 (3) Reg.1207/2005 amending Council Regulation (EC) No.2580/2001 on specific measures directed against certain persons and entities with a view to combating terrorism [2005] OJ L197/ Reg.1290/2005 on the financing of the common agricultural policy [2005] OJ L209/ Reg.1957/2005 amending Council Regulation (EC) No.2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism [2005] OJ L314/ Reg.509/2006 on agricultural products and foodstuffs as traditional specialities guaranteed [2006] OJ L93/1 art Reg.510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs [2006] OJ L93/ , 668 art.4(1) art (1) (5) art.6(1) art.7(1) (2) (3) (4) (5) , 669 Reg.1461/2006 amending Council Regulation (EC) No.2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism [2006] OJ L272/ Reg.1791/2006 adapting certain Regulations and Decisions in the fields of free movement of goods, freedom of movement of persons, company law, competition policy, agriculture (including veterinary and phytosanitary legislation), transport policy, taxation, statistics, energy, environment, cooperation in the fields of justice and home affairs, customs union, external relations, common foreign and security policy and institutions, by reason of the accession of Bulgaria and Romania [2006] OJ L363/ Reg.1998/2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid [2006] OJ L379/ Reg.708/2007 concerning use of alien and locally absent species in aquaculture [2007] OJ L168/ art

232 Table of Legislation lxxv Reg.1437/2007 amending Regulation (EC) No.1290/2005 on the financing of the common agricultural policy [2007] OJ L322/ Reg. 1528/2007 applying the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements [2007] OJ L348/ Reg.259/2008 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) [2008] OJ L76/ art.42(8b) Reg.622/2008 amending Regulation 773/2004, as regards the conduct of settlement procedures in cartel cases [2008] OJ L171/ art.10a(4) Reg.800/2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty [2008] OJ L214/ Reg.1137/2008 adapting a number of instruments subject to the procedure laid down in Article 251 of the Treaty to Council Decision 1999/468/EC, with regard to the regulatory procedure with scrutiny - Adaptation to the regulatory procedure with scrutiny Part One [2008] OJ L311/ Reg.219/09 adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC with regard to the regulatory procedure with scrutiny - Adaptation to the regulatory procedure with scrutiny - Part Two [2009] OJ L87/ Reg.479/2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community [2009] OJ L145/ Reg.596/2009 adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC with regard to the regulatory procedure with scrutiny - Adaptation to the regulatory procedure with scrutiny - Part Four [2009] OJ L188/ Reg.1107/2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC [2009] OJ L309/ art.7(1) (2) (5) art art.12(1) (2) art.13(1) Reg.1211/2009/EC establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office [2009] OJ L337/ Reg.330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices [2010] OJ L102/ Reg.407/2010 establishing a European financial stabilisation mechanism [2010] OJ L 118/ , 560, 574 Recital (3) Recital (4) Reg.182/2011 of the European Parliament and of the Council of February 16, 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (Comitology Regulation) [2011] OJ L55/ , 671, 674, 675, , 678, 681, 683, 684, 687 Recital (20) art , 678 (1) (2) , 679 (a) (b) (3)

233 lxxvi Table of Legislation art (3) (4) (5) (7) art , 681 (1) (2) art , 681 (1) , 682 (2) (3) , 685 (4) , 681, 685 (5) art.6(3) , 685 (4) (5) art (2) (5) art , 681, 684 (1) (2) (3) (4) (5) art.9(2) art , 685 (1) , 683 (2) (3) , 683 (4) (5) art , 683, 684 art , 684 art , 684, 685 (1)(b) (c) Reg.757/2010 amending Regulation (EC) No.850/2004 of the European Parliament and of the Council on persistent organic pollutants as regards Annexes I and III [2010] OJ L223/ Directives Dir. 64/221/EEC on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health [ ] OJ Sp. Ed , 64 art Dir.75/117/EEC relating to the application of the principle of equal pay for men and women [1975] OJ L45/19 art

234 Table of Legislation lxxvii Dir. 76/207/EEC on equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions [1976] OJ L39/ , 59 art.2(7) , 61 art , 64 Dir.77/93/EEC on protective measures against the introduction into the Member States of harmful organisms of plants or plant products [1977] OJ L26/20 art.4(2)(a) Dir.78/855/EEC Third Council Directive based on Article 54 (3) (g) of the Treaty concerning mergers of public limited liability companies [1978] OJ L295/ , 86, 92, 94, 95 Dir.79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [1979] OJ L6/24 art Dir.81/602/EEC concerning the prohibition of certain substances having a hormonal action and of any substances having a thyrostatic action [1981] OJ L222/ Dir.82/891/EEC Sixth Council Directive based on Article 54(3)(g) of the Treaty, concerning the division of public limited liability companies [1982] OJ L378/ , 83, 84 art.2(1) art Dir.85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/ art.10a , 68 Dir.85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products [1985] OJ L210/ Dir.86/278/EEC on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture (Sewage Sludge Directive) [1986] OJ L181/ Dir.88/146/EEC prohibiting the use in livestock farming of certain substances having a hormonal action [1988] OJ L70/ Dir.89/104/EEC to approximate the laws of the Member States relating to trade marks [1989] OJ L40/1 art.3(1)(b) (c) art Dir.89/105/EEC relating to the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of national health insurance systems [1989] OJ L40/ Dir.89/665/EEC on the co-ordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [1989] OJ L395/30 art.1(1) , 65 Dir.90/220/EEC on the deliberate release into the environment of genetically modified organisms [1990] OJ L117/ art.13(3) (6) , 275 art.16(2) art.20(2) art art Dir.90/364/EEC on the right of residence [1990] OJ L180/ art.1(1) Dir.90/366/EEC on the right of residence for students [1990] OJ L180/

235 lxxviii Table of Legislation Dir.90/365/EEC on the right of residence for employees and self-employed persons who have ceased their occupational activity [1990] OJ L180/ Dir.90/434/EEC on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (Merger Taxation Directive) [1990] OJ L225/ , 87, 354 Dir.90/435/EEC on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States [1990] OJ L225/ , 354 art.2(a) Dir.91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources (Nitrates Directive) [1991] OJ L375/ Dir.92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors [1992] OJ L76/ Dir.92/83/EEC on the harmonization of the structures of excise duties on alcohol and alcoholic beverages [1992] OJ L316/21 art Dir. 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding [1992] OJ L348/ , 61 art Dir.93/13/EEC on unfair terms in consumer contracts [1993] OJ L95/ , 66 art (1) art.7(1) Dir.95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Data Protection Directive) [1995] OJ L281/ , 723, 724, 725, art.13(1) art Dir.96/22/EC concerning the prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of ß-agonists, and repealing Directives 81/602/EEC, 88/146/EEC and 88/299/EEC [1996] OJ L125/ Dir.96/36/EC on the Framework Agreement on Parental Leave [1996] OJ L Dir.96/71/EC concerning the posting of workers in the framework of the provision of services (Posted Workers Directive) [1996] OJ L18/ , 615 art.3(7) (10) Dir.97/66 concerning the processing of personal data and the protection of privacy in the telecommunications sector [1998] OJ L24/ Dir.97/67 on common rules for the development of the internal market of Community postal services and the improvement of quality of service [1998] OJ L15/4 art , 238 art Dir.97/80/EC on the burden of proof in cases of discrimination based on sex [1998] OJ L14/6 Recital Dir.97/81/EC concerning the Framework Agreement on Part-time Work [1997] OJ L Dir.1999/70/EC concerning the framework agreement on fixed term work concluded by ETUC, UNICE and CEEP [1999] OJ L175/ , 58, 212 Dir.2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on e-commerce) [2000] OJ L178/1 art.1(5)(d) Dir.2000/36 relating to cocoa and chocolate products intended for human consumption [2000] OJ L197/19

236 Table of Legislation lxxix art Dir.2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (Racial Equality Directive) [2000] OJ L180/ , 37, 163, 164, , 168, 169, 182, 214, 589, 593 Recital (18) Ch.II art , 168 (2) (3) , 168 (4) (5) art art Dir.2000/60/EC establishing a framework for Community action in the field of water policy (Water Framework Directive) [2000] OJ L327/ Dir.2000/78/EC establishing a general framework for equal treatment in employment and occupation (Framework Directive/Equal Treatment Directive) [2000] OJ L303/ , 32, 35, 163, , 172, 173, 175, 176, 179, 180, 183, 214, 589, 590, 591, 592, 593, , 597, 598, 599 Ch.II art art.2(b) , 35 (ii) art.3(3) art art , 175, 176 art (1) art , 592 art art Dir.2001/18/EC on the deliberate release into the environment of genetically modified organisms [2001] OJ L106/ Recital (7) Recital (13) Recital (18) Recital (23) Recital (62) art art.14(2) (3) art.15(1) (2) (3) (4) art , 267, 268, 269, 270 (1) , 268, 272 art.19(1) , 271 (2) , 271 art art , 272 art.30(2) Dir.2001/37/EC on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products [2001] OJ L194/26 art

237 lxxx Table of Legislation Dir.2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/ Dir.2002/21/EC on a common regulatory framework for electronic communications networks and services (Framework Directive) [2002] OJ L108/33 art art Dir. 2002/22/EC on universal service and users' rights relating to electronic communications network and services (Universal Service Directive) [2002] OJ L108/51 art , 238 art.8(2) Dir.2002/58/EC on the conclusion of an Additional Protocol laying down the trade arrangements for fish and fishery products to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Lithuania, of the other part [2002] OJ L23/ , 724, 726, 727 art art.8(1) (2) (3) (4) art art (1) (3) Dir.2002/73/EC amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [2002] OJ L269/ Dir.2003/9/EC laying down minimum standards for the reception of asylum seekers [2003] OJ L31/ Dir.2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337 and 96/61 [2003] OJ L156/ Dir.2003/54 concerning common rules for the internal market in electricity and repealing Directive 96/92 [2003] OJ L176/37 art , 238 art Dir.2003/74/EC amending Council Directive 96/22/EC concerning the prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of beta-agonists [2003] OJ L262/ Premable (3) (10) Dir.2003/123/EC amending Directive 90/435/EEC on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States [2004] OJ L7/ Dir.2004/17 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (Utilities Directive) [2004] OJ L134/ art Dir.2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (Public Sector Directive) [2004] OJ L134/ art.1(4) art Dir.2004/25/EC on takeover bids (13th Company Law Directive on Takeover Bids) [2002] OJ L142/ , 90, 91 Dir.2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/ , 135, 136, 162, , 714, 715, 717, 720 art.2(c) art art.3(1) art.7(1)(b)

238 Table of Legislation lxxxi art.12(1)(a) , 137, 138, 139, art.24(2) Dir.2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services (Gender Goods and Services Directive) [2004] OJ L373/ , 165, 590, Dir.2005/19/EC amending Directive 90/434/EEC 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States [2005] OJ L58/ Dir.2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/ , 590, 593 Dir.2005/56/EC on cross-border mergers of limited liability companies (10th Company Law Directive on Cross-Border Mergers) [2005] OJ L310/ , 74, 86, 87, 88 91, 92, 93, 93, 94, 95, 96, 97 Recital (10) art art.4(1)(b) art Dir.2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/ Dir.2006/24 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks (Data Retention Directive) [2006] OJ L105/ , 120, 722, 723, , 730, 731, 732, 733, 734, 735, 736 art art art art Dir.2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/ Title III Ch.I art art Dir.2006/122/EC amending for the 30th time Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations [2006] OJ L372/ Dir.2006/123/EC on services in the internal market [2006] OJ L376/ , 343, 615 art.2(2)(a) (h) art.24(1) Dir.2007/66/EC amending Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts [2007] OJ L335/ Dir.2009/14/EC amending Directive 94/19/EC on deposit-guarantee schemes as regards the coverage level and the payout delay [2009] OJ L68/ Dir.2009/28/EC on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L140/ Dir.2009/81/EC on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC [2009] OJ L216/76 Title IV Dir.2011/24/EU on the application of patients' rights in cross-border healthcare (Patients Rights Directive PRD) [2011] OJ L88/ , 544, 555 Recital (10)

239 lxxxii Table of Legislation Recital (30) Recital (31) , 557 Recital (34) art.1(a) (e) art.4(4) art.7(4) , 433, 439 art.8(2) (3) , 557 (5) art Decisions Case IV/ Quinine [1969] OJ L192/ Decision 73/322 relating to proceedings under Article 85 of the EEC Treaty (Case IV/ Deutsche Philips GmbH) [1973] OJ L293/ Decision 79/68/EEC elating to a proceeding under Article 85 of the EEC Treaty (Case IV Kawasaki) [1979] OJ L16/ Decision 80/256/EEC relating to a proceeding under Article 85 of the EEC Treaty (Case IV Pioneer Hi-Fi Equipment) [1980] OJ L60/ , 187 Commission Decision 88/167 concerning Law 1386/1983 by which the Greek Government grants aid to Greek industry [1988] OJ L76/ Decision 89/688 concerning the dock dues in the French overseas departments [1989] OJ L399/ Decision 91/532/EEC relating to a proceeding under Article 85 of the EEC Treaty (Case IV/ Viho/Toshiba) [1991] OJ L287/ Case IV/ Adalat [1996] OJ L201/ Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred [1999] OJ L184/ , 672 art , 268 (2) (3) , 268 (4) , 268 (6) , 268, 269 art Decision 98/292 concerning the placing on the market of genetically modified maize (Zea mays L. line Bt-11) [1998] OJ L131/ Decision 98/293/EC concerning the placing on the market of genetically modified maize (Zea mays L. T25), pursuant to Council Directive 90/220/EEC [1998] OJ L131/ art.5(2) (6)

240 Table of Legislation lxxxiii Council Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission [1999] OJ L184/ , 678, 684 Decision 2/2000 of the EC Mexico Joint Council: Provisional Application of the Partnership Agreement [2000] OJ L245/1 Annex III art Commission Decision (N/ 56/01) Council Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings [2001] OJ L82/ Decision 2001/791 Glaxo Wellcome [2001] OJ L302/ , 397 Council Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States [2002] OJ L190/ Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States Statements made by certain Member States on the adoption of the Framework Decision [2002] OJ L190/ , 427 Repsol case (COMP/38.348) Decision 2003/2/EC relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (COMP/E-1/ Vitamins) [2003] OJ L6/ Decision 2004/259 concerning the conclusion, on behalf of the Community, of the Protocol to the 1979 Convention on Long Range Transboundary Air Pollution on Persistent Organic Pollutants [2004] OJ L81/ Council Decision 2004/496 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection [2004] OJ L183/ Commission Decision 2005/670 (Case COMP/A /B2 Coca Cola) relating to a proceeding pursuant to art.82 of the EC Treaty and art.54 of the EEA Agreement [2005] OJ L253/ Decision 3/2005 of EC Switzerland Joint Committee amending Protocol 3 to the Agreement concerning the definition of the concept of originating products and methods of administrative co-operation [2006] OJ L45/ Decision 136/2005 of the EEA Joint Committee amending Protocol 4 to the Agreement on Rules of Origin [2005] OJ L321/ Decision 2/2005 of the EU Israel Association Council, amending Protocol 4 to the Euro-Mediterranean Agreement, concerning the definition of the concept of originating products and methods of administrative co-operation [2006] OJ L20/ Decision 2005/322 on the request presented by the United Kingdom pursuant to art.9 of Regulation 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy [2005] OJ L104/ Decision 2005/370 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L124/ Decision 2005/842 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest [2005] OJ L312/ Decision 8541/ Decision 2006/507 concerning the conclusion, on behalf of the European Community, of the Stockholm Convention on Persistent Organic Pollutants [2006] OJ L209/ Decision 2006/512 amending Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission [2006] OJ L200/ Decision 2007/445/EC implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decisions 2006/379/EC and 2006/1008/EC [2007] OJ L169/ Decision 2007/868 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/445/EC [2007] OJ L340/ Decision C(2007)3038 final (State Aid C 50/2006 BAWAG-PSK) [2008] OJ L83/ , 8, 12

241 lxxxiv Table of Legislation Decision relating to a proceeding pursuant to Article 82 of the EC Treaty and Article 54 of the EEA Agreement against Microsoft Corporation (Case COMP/ Microsoft) [2007] OJ L32/ Comitology Decision (2008/2096(INI)) [2010] OJ C8E/ Council Framework Decision 2008/909JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [2008] OJ L Council Framework Decision 2008/978/JHA on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [2008] OJ L Decision C(2008)4138 (State Aid NN 36/2008 Roskilde bank) [2008] OJ C238/ Decision C(2008)5735 (State Aid NN 44/2008 Hypo Real Estate) [2008] OJ C293/ , 13, 14, 23 Decision C(2008)6498 (State Aid NN 39/2008 Liquidation of Roskilde bank) [2009] OJ C12/ Decision C(2008)6936 final (State Aid N 528/08 ING) [2008] OJ C328/ Decision C(2008)7387 final (State Aid N 574/2008 State guarantees for Fortis Bank) [2009] OJ C38/ Decision C(2008)7388 final (State Aid NN 49/2008 Dexia , 6 Decision C(2008)7734 final (State Aid N 569/08 Aegon) [2009] OJ C9/ , 15, 20 Decision C(2008)8476 final (State Aid N 611/2008 SNS Reaal) [2009] OJ C247/ , 15 Decision C(2008)8820 final (State Aid N 602/2008 KBC) [2009] OJ C109/ , 12, 13, 15 Decision C(2008)8987 final (State Aid N 639/2008 IKB) [2009] OJ C63/ Commission Decision of December 14, 2009 (State Aid N 422/2009 and N 621/2009 Royal Bank of Scotland (RBS) , 21, 24 Decision 1/2009 of the EC PLO Joint Committee of June 24, 2009 amending Protocol 3 to the Euro-Mediterranean Interim Association Agreement concerning the definition of the concept of originating products and methods of administrative cooperation [2009] OJ L298/ Decision C(2009)990 final (State Aid NN 57/2008 Ethias) [2009] OJ C176/ , 12, 13 Decision C(2009)1960 final (State Aid C 9/2009 (ex. NN 49/2008) Dexia) [2009] OJ C181/ , 13 Decision C(2009)2349 final (State Aid N 149/2009 Bank of Ireland) [2009] OJ C234/ , 15 Decision C(2009)2852 final (State Aid C 11/2009 Fortis Bank Nederland) [2009] OJ C124/ Decision C(2009)3708 final (N244/2009 Commerzbank) [2009] OJ C147/ , 24 Decision C(2009)3828 final (State Aid N 241/2009 Allied Irish Bank) [2009] OJ C233/ , 15 Decision C(2009)3907 final (State Aid N 255/2009, N274/2009 Fortis Bank, Fortis Bank Luxemburg and Fortis Holding) [2009] OJ C178/ , 6, 12, 14, Decision C(2009)4691 final (State Aid N 214/2009 Hypo Tirol Bank) [2009] OJ C270/ , 14 Decision C(2009)5260 final (State Aid C 17/2009 LBBW) [2010] OJ L188/ Decision C(2009)5461 final (State Aid N 379/2009 and NN 16/2009 Dutch Guarantee Scheme) [2009] OJ C186/ Decision C(2009)5802 final (State Aid NN 40/2009 Landes-Hypothekenbank Steiermark Aktiengesellschaft) [2009] OJ C206/ Decision C(2009)8271 final (State Aid C 29/2009 HSH Nordbank) [2009] OJ C281/ Decision C(2009)8967 (State Aid C 15/2009 Restructuring aid for Hypo Real Estate) [2010] OJ C300/ Decision C(2009)8980 final (State Aid C 18/2009 KBC) [2009] OJ C216/ Decision C(2009)8980 final (State Aid C 18/2009 KBC) [2010] OJ C188/ , 20, 24 Decision C(2009)9000 final (State Aid C 10/2009 (ex N 138/2009) ING) [2009] OJ C158/ , 12, 13, 16, 17 18, 19, 20, 22 Decision C(2009)9087 final (State Aid N 428/2009 Lloyds Banking Group (LBG)) [2009] OJ C46/ , 24 Decision C(2009)10112 final (State Aid N 422/2009 Royal Bank of Scotland) [2010] OJ C119/ Decision C(2009)10521 final (State Aid N 640/2009 Emergency support for Bawag-PSK) [2010] OJ C55/ Decision C(2009)10672 final (State Aid C 16/2009 and N 698/2009 BayernLB) [2010] OJ C85/ Decision C(2009)10715 final (State Aid C 40/2009 (ex N 555/2009) WestLB) [2010] OJ C66/ , 16 Decision relating to a proceeding under Article 82 of the EC Treaty and Article 54 of the EEA Agreement (Case COMP/ Intel) [2009] OJ C227/ Decision 2010/48 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/ , 164 Decision 2010/281/EU establishing a securities markets programme [2010] OJ L124/

242 Table of Legislation lxxxv Recital (2) , 567 Recital (3) Recital (4) art art Decision 2010/427 establishing the organisation and functioning of the European External Action Service OJ [2020] L201/ art Decision C(2010)498 final (State Aid N 371/2009 SNS Reaal) [2010] OJ C93/ , 17 Decision C(2010)1180 final (State Aid C 9/2009 Dexia) , 18 Decision C(2010)2235 final (State Aid NN12/2010 and C11/2010 Anglo Irish Bank) [2010] OJ C214/ Decision C(2010)3249 final (State Aid N 256/2009 Ethias) [2010] OJ C252/ , 18, 24 Decision C(2010)4196 final (State Aid N 249/2010 WestLB) [2010] OJ C230/ Decision C(2010)4487 final (State Aid N 261/2010 BAWAG PSK) [2010] OJ C250/ Decision C(2010)5740 final (State Aid N 372/2009 Aegon) [2010] OJ C290/ Decision K(2008)8839 final (State Aid N 615/2008 Bayern LB) [2009] OJ C80/ , 18 Decision of July 15, 2010 (N 546/2009 Bank of Ireland) , 21 Decision of July 20, 2010 (State Aid C 33/2009 Banco Privado Português) Decision of September 24, Decision amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the Euro [2010] OJ L91/ art Decision 2011/167 authorising enhanced cooperation in the area of the creation of unitary patent protection [2011] OJ L76/ Table of National Legislation Austria Belgium Criminal Code Federal Act on Games of Chance 1989 (Glücksspielgesetz) (1) (2) Motor Vehicles Act Code of Administrative Procedure art Constitution art Nationality Act art art

243 lxxxvi Table of Legislation Bulgaria Constitution Art Art Regulation 40 Art Bulgaria Health Act art.141(3) Denmark Act on Court Procedure s.226(1) Constitution art Law 286 of April 24, 1996 on the Use of Health Information on the Labour Market France Code de procédure civile art Constitution art art art Order No of November 7, 1958 on the organic law governing the Conseil Constitutionnel Ch.IIa Decree dated June 15, 2000 Predictive Medicine, Genetic Identification and Genetic Research Organic Law No of December 10, 2009 on the application of art.61-1 of the Constitution Germany Act on Racing Bets and Lotteries (Rennwett- und Lotteriegesetz) 1(1) (1) Basic Law art.6(1) art.23(1) art.38(1) Constitution (Grundgesetz) art (1) art.12(1) art.23(1) art.115(2) Criminal Code (Strafgesetzbuch) Regulation on Gambling Machines (Verordnung über Spielgeräte und andere Spiele mit Gewinnmöglichkeit) Sports Betting Act Nordrhein-Westfalen (Sportwettengesetz NRW) of May 3, 1955 art.1(1)

244 Table of Legislation lxxxvii Greece Ireland State Treaty on Games of Chance (Staatsvertrag zum Glücksspielwesen in Deutschland) , 257, 260, , (1) (2) (4) (1) (2) (6) State Treaty on Lotteries , (1) (2) Trade and Industry Code (Gewerbeordnung) Market Decree 7/2009 art Constitution art art art Criminal Justice (Terrorist Offences) Act s.63(1) , 730 Italy Latvia Constitution art Decree-Law 326/2003 Art Law April 24, 1998, n.128 art.48(1) Regulation February 9, 2001, n Luxembourg Malta Regulation of Cabinet of Ministers of the Republic of Latvia No.803 of October 25, Constitution art , 365, 366, 370 art.83bis Medicines Act Price Act of 1992 art.3(1)

245 lxxxviii Table of Legislation Netherlands Portugal Medicines Pricing Act of January 25, 1996 (Wet Geneesmiddelenprijzen) art.2(2) Decree-Law 134/ Law 12/2005 of January 26, 2005 on personal genetic information and health information art Decree-Law 65/ Romania Law 506/ Law 298/ , 731 Spain Sweden Switzerland Law 29/2006 art art Constitution art Criminal Code (Brottsbalk) Ch.16, a Ch.23, 4(1) (2) Lotterilag 38(1) (2) (1) (2) (1) Constitution art United Kingdom Statutes 1950 Arbitration Act (c.27) s Race Relations Act (c.74) s.1(1)(a) Disability Discrimination Act (c.50) , 32, 38 s

246 Table of Legislation lxxxix s.4(1) s.5(1) s.6(1)(b) s.11(1) s.12(1) s.13(1) s.14(1) s.15(1) s.15b s.15c s.18(2) s.19(1) s.21b(1) s.21d s.21e s.29(2) s.30(3) s.32(1)(a) s.49a Employment Rights Act (c.18) s.94(1) Disability Discrimination Act (c.13) , 38 s s s s , 38 (2)(b) (iii) (3) Employment Act (c.22) s Companies Act (c.46) Equality Act (c.15) , 32, 36, 38, 43 Pt s , 38 s (1) (2) , 38 s , 38 s s s , 43 (6)(b) Sch Pt 5(21) Statutory Instruments 2002 Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (SI 2002/2034)

247 xc Table of Legislation United States Constitution s.4 of the 14th Amendment Genetic Discrimination Information Act Sherman Act s Disabilities Act , 44 s.1211(d)(2)(a) (B) (C)

248 Cumulative Index This index has been prepared using Sweet & Maxwell s Legal Taxonomy. Abuse of dominant position commitments enforcement, Actions for annulment Commission Competition Decisions jurisdiction of European Court of Justice, Administrative law right to be heard composite administrative procedures, Appeals references to European Court jurisdiction of national appellate courts, Association agreements European neighbourhood policy Eastern Partnership, preferential rules of origin territorial scope of EC-Israel free trade agreement, Associative discrimination disability discrimination judicial decision-making, Asylum seekers Palestine interpretation of Minimum Standards Directive, Austria gambling state monopolies, Bilateral trade agreements EC-Israel association agreement preferential rules of origin, Bulgaria patients rights cross-border access to health care, Burden of proof freedom to provide services proportionality of restrictive measures, Cartels leniency programmes fines, Citizenship EU nationals third country national parents, , fundamental rights rights of free movement contrasted with residence, Civil partnerships equal treatment supplementary state retirement pension, Comitology see Committee procedures Commitments abuse of dominant position enforcement, proportionality right to be heard, Committee procedures European Commission remedies for failure to act, implementing acts analysis of Regulation 182/2011, Common commercial policy exclusive competence reforms introduced by the Lisbon Treaty, Common policies state recognition formulation of new EU guidelines,

249 Cumulative Index Community patents jurisdiction role of national courts, Competence common commercial policy reforms introduced by the Lisbon Treaty, Complaints Board for European Schools references to European Court, external relations sincere co-operation, national courts review of validity of EU Acts, Competition law enforcement proportionality of commitment decisions, review of fines imposed by European Commission, services of general economic interest legal basis, Competition policy fines scope of European Commission competence, Computer crime EU institutions EU internal security strategy, 1 2 Constitutional rights privacy data retention by electronic communications service providers, Constitutionality German legislation approving Lisbon Treaty competence of national court to review, Consumer protection food products EU regulation and legal pluralism, Court of Justice of the European Union jurisdiction review of fines imposed by European Commission, , Criminal investigations data retention privacy, Cross-border mergers freedom of establishment interaction between EU legislation and case law, Customs duty repayments right to be heard in composite administrative procedures, Data protection harmonisation of EU legislation retention of traffic data by electronic communications service providers, Data retention criminal investigations traffic data held by electronic communications service providers, Default sovereign debt risk to internal market, Direct and individual concern mergers locus standi of third parties, Direct discrimination sexual orientation discrimination supplementary state retirement pension, Directives equal treatment assessment of proposals, Disability discrimination Directives assessment of proposals, extension of rights economic rationality, Disclosure disability discrimination indirectly discriminatory disclosure duties, Discrimination associative discrimination proportionality of equality measures, freedom to provide services analysis of recent case law on art.56 TFEU, indirect discrimination duty of disclosure, 26 50

250 Cumulative Index reverse discrimination regarding free movement EU citizens, sexual orientation discrimination supplementary state retirement pension, Domestic remedies principle of effectiveness compatibility, Economic and monetary policy legal basis financial measures to reduce sovereign debt, Economic conditions sovereign debt risk to internal market, Economics and law mergers locus standi of third parties, Electronic communications services data retention privacy, Equal treatment civil partnerships supplementary state retirement pension, disabled persons economic rationality, proposed directives, EU institutions EU internal security strategy, 1 2 EU legislative process committee procedures analysis of Regulation 182/2011, remedies for Commission s failure to act, subordinate legislation, subsidiarity advisory role of national parliaments, monitoring role of national parliaments, EU nationals rights of entry and residence children of third country nationals, , European Commission committee procedures remedies for failure to act, competition policy power to impose fines, grant of state aid to financial institutions legal basis, 3 25 European companies freedom of establishment cross-border mergers, European Court of Justice internal market role in legal integration, jurisdiction unified patent litigation system, , statutory interpretation secondary legislation on freedom of movement, European Free Trade Association European neighbourhood policy application of Art.8 TEU, European governance relationship with EU law, subsidiarity role of national parliaments, European neighbourhood policy Eastern Partnership association agreements, legal basis analysis of Art.8 TEU, European Parliament common commercial policy legislative powers, Eurozone default on sovereign debt risk to internal market, Exclusive competence common commercial policy reforms introduced by the Lisbon Treaty, External relations European neighbourhood policy analysis of Art.8 TEU, EU-Russia Strategic Partnership,

251 Cumulative Index sincere co-operation Member State duty to refrain from acting, Failure to act European Commission committee procedures, Financial institutions state aid legal basis for review of legality, 3 25 Fines judicial review European Commission decisions, proportionality infringement of competition law, Food products consumer protection EU regulation and legal pluralism, Foreign investment common commercial policy reforms introduced by the Lisbon Treaty, Free movement of persons rights of entry and residence relationship between EU citizens and third country nationals, Free trade areas Israel territorial scope, Freedom of establishment cross-border gambling exclusive licensing, cross-border mergers interaction between EU legislation and case law, Freedom of movement subordinate legislation statutory interpretation, Freedom to provide services cross-border gambling exclusive licensing, health care reimbursement of medical expenses, , proportionality analysis of recent case law on art.56 TFEU, Freezing of funds individual counter-terrorism measures right to be heard in composite administrative procedures, Fundamental rights citizenship rights of free movement contrasted with residence, third country national parents of EU citizens, privacy data retention by electronic communications service providers, right to be heard third parties affected by commitment decisions, services of general economic interest public service obligations, Gambling cross-border gambling state monopolies, Germany gambling state monopolies, sexual orientation discrimination state pension rights of civil partners, Guidelines state recognition European Union, Harmonisation subordinate legislation data retention, freedom of movement, Health care cross-border access patients rights, reimbursement of medical expenses, Independence Baltic States state recognition, Indirect discrimination disability discrimination duty of disclosure, 26 50

252 Cumulative Index Internal market cross-border mergers procedural framework for market integration, economic conditions risks caused by sovereign default, legal integration role of European Court of Justice, International law international environmental law duty of loyal co-operation, state recognition EU guidelines, Israel bilateral EU trade agreements preferential rules of origin, Judicial co-operation European Court of Justice role in legal integration, Judicial review Commission Competition Decisions jurisdiction of European Court of Justice, fines in competition cases powers of European Commission, Jurisdiction appeals preliminary reference procedure, Court of Justice of the European Union review of fines imposed by European Commission, , European Court of Justice complaints by teachers at European Schools, unified patent litigation procedure, , Legal basis European neighbourhood policy analysis of Art.8 TEU, financial measures default on Member State sovereign debt, services of general economic interest changes introduced by Lisbon Treaty, state aid review of European Commission s assessment, 3 25 Legislative competence national parliaments role in EU decision-making, Legislatures subsidiarity advisory role of national parliaments, Legitimacy European Parliament subsidiarity monitoring by national parliaments, Licensing cross-border gambling public interest, Locus standi merger decisions third parties, Loyal co-operation see Sincere co-operation Medical expenses reimbursement cross-border access to health care, Medical treatment cross-border access patients rights, Member States sovereign debt legal basis for financial measures, Mergers cross-border mergers freedom of establishment, locus standi third parties, Monopolies cross-border gambling public interest, National competition authorities enforcement commitments, National courts references to European Court jurisdiction regarding Community patents, jurisdiction to appeal,

253 Cumulative Index jurisdiction to refer, procedural autonomy, right to effective remedy duty to raise points of EU law, supremacy of EU law competence to review validity of EU Acts, National security computer crime and terrorism EU internal security strategy, 1 2 Netherlands gambling state monopolies, Occupied Palestinian Territories bilateral free trade agreements interpretation of preferential rules of origin, Palestine refugees minimum standards for qualification, Parallel imports pharmaceuticals legitimacy of trade restrictions, Parliament subsidiarity role of national parliaments in EU decision-making, Patents unified patent litigation system jurisdiction of European Court of Justice, jurisdiction of national courts, Patients rights cross-border access to health care reimbursement of medical expenses, , Pharmaceuticals parallel imports legitimacy of trade restrictions, Police co-operation European Court of Justice role in legal integration, Preliminary rulings supremacy of EU law, Pricing pharmaceuticals parallel trade, Principle of conferral national courts competence to review validity of EU Acts, Principle of effectiveness domestic remedies compatibility, Privacy data retention electronic communications services, Proportionality commitments right to be heard, fines infringement of competition law, freedom to provide services analysis of recent case law on art.56 TFEU, Public electronic communications services data retention privacy, Public interest cross-border gambling state monopolies, Race discrimination Directives proposals, References to European Court appeals jurisdiction of national appellate courts, jurisdiction Complaints Board for European Schools, unified patent litigation procedure, , Refugees Palestine minimum standards for qualification, Reimbursement medical expenses cross-border access to health care,

254 Cumulative Index Remedies failure to act comitology cases, Remote gambling monopolies regulation on public interest grounds, Res judicata national courts references to European Court, Rescue aid financial institutions review of European Commission s assessment, 3 25 Reverse discrimination EU citizens rights of entry and residence of third country nationals, Right to be heard administrative decision-making composite administrative procedures, third parties commitments, Right to effective judicial protection see Right to effective remedy Right to effective remedy national procedural autonomy effect on jurisdiction of ECJ, Rights of entry and residence free movement of persons EU citizenship, third country nationals child dependants born in EU, , Rules of origin bilateral free trade agreements territorial scope of EC-Israel association agreement, Russia external relations EU-Russia Strategic Partnership, Schools European Schools competence of Complaints Board, Services of general economic interest legal basis changes introduced by Lisbon Treaty, Sexual orientation discrimination civil partnerships supplementary state retirement pension, Shared competence international environmental law loyal co-operation, Sincere co-operation external relations Member State duty to refrain from acting, international environmental law shared competence, Single market see Internal market Sovereign debt default risk to internal market, Member States legal basis for financial measures, Spain failure to fulfil obligations cross-border access to health care, State aid financial institutions legal basis for review of legality, 3 25 State recognition EU guidelines, Subordinate legislation EU legislative process analysis of Regulation 182/2011, freedom of movement statutory interpretation, Subsidiarity EU legislative process advisory role of national parliaments, role of national parliaments, Supremacy of EU law national courts competence to review validity of EU Acts, procedural autonomy,

255 Cumulative Index Sweden gambling state monopolies, shared competence failure to fulfil obligations, Teachers European Schools jurisdiction over salary disputes, Terrorism individual counter-terrorism measures right to be heard in composite administrative procedures, Third country nationals rights of entry and residence child dependants born in EU, , Third parties locus standi merger decisions, right to be heard commitments, Treaty interpretation international trade territorial scope of EC-Israel association agreement, TRIPs common commercial policy reforms introduced by the Lisbon Treaty, Ultra vires acts principle of conferral capacity of national courts to review EU Acts, Work permits third country nationals parents of children born in EU, ,

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