1. What is direct effect and what are its implications?

Direct effect consists of the possibility to enforce a EU provision by an individual in a court of a member
state. It may be vertical, when the EU legislation can be enforced against the state or an emanation of
the state, such as a national company, or horizontal, when it may be enforced against another
individual, between private citizens. EU treaty provisions, regulations and decisions are capable of both
vertical and horizontal direct effect. Instead, directives can generally only have vertical direct effect. For
a directive to have direct effect, there is a further requirement that the time limit for implementation by
member states has expired.
There are some conditions that has to be fulfilled in order for a provision to have DE: firstly, the
provision must be intended to grant a right; then it must be Clear (which means it has to be not
ambiguous or obscure); Unconditional, so there must be no conditions attached to the provision; and
finally, sufficiently precise, it needs to ascertain the right. All these terms make the provision self-
executive.

2. When does a provision of EU law have direct effect?

Direct effect is the ability for a provision of EU law to be relied upon (invoked) directly in front of a national
court, without the need of transposition into national law (bypassing the transposition, the member states).
Why does the EU need direct effect?
• To grant effective application of EU rights.
• To grant national courts the possibility to enforce EU law without any national transposition act.
CONDITIONS FOR DIRECT EFFECT:
st
1 : the type of EU norm.
Direct effect doesn’t apply every time, but only if certain conditions are met. The first condition is what
type of EU norm we are dealing with.
A. The legal sources are:
 Treaties: has direct effect if it is intended to provide a right and it is clear,
unconditional and sufficiently precise (self-executing). Can be relied upon in vertical
cases and in horizontal cases.
 Regulations: they are directly applicable and can have VDE (Vertical direct effect) and
HDE.
 Decisions: binding on the people they address to and enjoy direct effect if the
conditions are met (sufficiently clear, precise and unconditional).
 Directives: norms have direct effect, but only if
1- time limit must have expired
2- The MS has not transposed the Directive or has not implemented it correctly
3- Provision must be sufficiently clear, precise and unconditional
4- The situation where the directive is invoked must be vertical
 Charter: can have VDE, HDE too but is contested.
B. Which are the characteristics these norms need to have in order to gain a direct effect? The EU
provision must be:
 Intended to grant a right
 It must be clear, unconditional and sufficiently precise, so as to be able to ascertain right.
nd
2 : the situation in which EU law is invoked.
It is not always possible for an individual to invoke direct effect, it depends on the situation where the EU
norm is invoked (If EU law is invoked against the member states = Vertical Direct Effect or if EU law is
invoked against a private party = Horizontal Direct Effect)
There are also general principles of EU law, the pillars of EU law authority and effective application.
Their origin comes from the judgements of the court of justice; The member states have accepted
these principles in practice, but they never openly accepted them in the treaties (nevertheless they
are fully enacted in everyday life of individuals in Europe).
 3. Discuss the advantages and disadvantages of giving horizontal direct effect to Directives.
The union have given direct effect to Directives, only in the case of horizontal situations. The
principal aim is to not permit to a MS to take advantage of its own failure to transpose the Directive into
national law. In vertical situations, the direct effect could guarantee the right given by the Directive, and at
the same punish the MS.
If Directives had direct effects even if horizontal situation surely every citizen would be more protected in
every situation: they could claim for their rights, thanks to the Directive, against the State but also against
every other citizen.
On the other side, permitting the direct applicability of Directives even in horizontal situation, would be
dangerous for the citizens, who could always be accused to have act unlawfully, based on Eu law. If it was
so, every eu citizen would have the obligation to be aware and to be perfectly informed about UE Directives,
and they could be punished for their unknowledge of a non-national law. Citizens could un Directive in a
direct way even if not transposed in the national law and in every situation (both vertical and horizontal),
and in this way it would come less the main difference between Regulations and Directives.

Problem question 1
The Italian Data Protection Authority (Garante della Privacy) imposed on ItaPhone, an internet service
provider and telephone company, a €100.000 fine for placing cookies (not only necessary cookies, but also
performance and targeting cooking) in the device of the users of its website without providing them with
any information whatsoever. ItaPhone’s lawyers seek judicial review of the fine. In their submission they
acknowledge the existence of the art. 5(3) of the e-privacy directive, but they claim that the obligations
therein do not apply to them since the directive does not have direct effect and the Italian government has
not enacted any implementing legislation or regulation yet.
You are the judge and you must decide whether the imposition of the fine is lawful or not.
E-Privacy Directive, art. 5(3) Member States shall ensure that the use of electronic communications
networks to store information or to gain access to information stored in the terminal equipment of a
subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear
and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the
processing, and is offered the right to refuse such processing by the data controller. This shall not prevent
any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a
communication over an electronic communications network, or as strictly necessary in order to provide an
information society service explicitly requested by the subscriber or user.

SCALETTA DA SEGUIRE:
1. Type of law -> directive -> direct effect or not?
2. clearness, precision and unconditionality
3. vertical and horizontal
4. has the time limit expired?
5. was the EU law correctly transposed?

The directive is an act addressed to EU countries and must be transposed by them into their national laws.
ART. 288, 3° co, TFEUstates that “A directive shall be binding, as to the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national authorities the choice of form and
methods”.
1. Member States have discretion as to how the directive is to be implemented. The fact that the Member
States can choose the means of achieving the result required by a directive does not preclude direct effect,
where the content of the individual right can be determined with sufficient precision from the directive.
So, we have to be aware that not all the EU norms have direct effect, but only the norms that meet certain
criteria. Consequently, in this case, the obligation imposed is clear, precise and legally complete as in: “the
use of electronic communications networks to store information or to gain access to information stored in
the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user
concerned is provided with clear and comprehensive information”.
2. When it comes to directives is crucial to understand if the case is about vertical or horizontal situations.
As such, vertical direct effect is of consequence in relations between individuals and the country and this
means that individuals can invoke a European provision in relation to the country; horizontal direct effect is
consequential in relations between individuals and this means that ad individual can invoke a European
provision in relation to another individual.
However, considering that directives have direct effect (for the criteria of clearness, precision
and unconditionality) the situation can only be vertical, like in this case.

3. The general principle is that the direct effect of a directive operates from the deadline specified for its
implementation. The result of Van Duyn, Ratti, and subsequent case law is that although art. 288 does not
declare directives to be directly applicable, so that they do not automatically become part of national law
upon adoption, they may produce “similar effects” to regulations after the time limit for their
implementation as expired if the State has not properly implemented them. The deadline of the E-Privacy
Directive is stated on 30th oct 2003, but we do not know when the case happened. Nevertheless, even if
the deadline passed without any implementation from the MS, it is in any case applicable because of its
clearness, precision and unconditionality.

4. Referring to the correct transposition of the directive we have to know if the directive was correctly
implemented within the expire limit or not. So, the fine is lawful in both cases but if the implementation has
not occurred within the expire limit there should also be a fine for Italy for having breached EU law.

Tutorial answer:
1- Type of act? Directive
2- Transpositions? No. Expired time? Yes
3- Vertical or horizontal situation? Why? Vertical, what body? The State
Suggestion: make reference to another case law + principle of DE in the Van Gen L. Case
a. The conditions of clearness, ecc.
b. This a special case: an invert vertical situation
4- Estoppel argument  Case law: Ratti  not possible to state to argue with a directive that it did
not implement.
5- Conclusion: On bases we said the fine is unlawful.
6- Solution: Judge should do a consistent interpretation (indirect effect)  MS maybe have a similar
provision, that could have a different interpretation, but the judge shall interprets the provision
close to Eu law.

Francovich liability (V/H situations):

There are “medici specializzandi” that according to a directive they should be played for they job. But Italy
did not implement the law.
Any time there is a lack of implementation by state is possible to assume that there is a serious breach.
The directive grant rights to specializzandi.
- Receive the payment thanks direct effect = 20 000
- Because the lack implementation of Italy they lost = damage and lost 100 000 = Francovich liability
+ payment of damages

Problem question 2
The EU has adopted the Directive 987/2020 (fictional) on the equal treatment of persons with disability
regarding access to essential services, such as postal services, transportation etc. The Directive contains the
following provisions:
- Art. 2: Any discriminatory action or measure against persons with disability is prohibited.
- Art. 3: Essential services providers shall take appropriate measures to enable a person with a
disability to have access to the services provided, unless such measures would impose a disproportionate
burden on the service provider.
Joanna suffers from a severe visual disability, and she needs to read through the Braille alphabet/audio
support when purchasing services through automatic devices, such as vending machines.
In Austria, where she resides, the operator of the railway and train services has adopted a decision whereby
all tickets should be sold only through vending machines, in order to make the purchase more rapid and
cost-efficient. However, these machines do not have audio/tactile support for visually impaired persons. The
only other way to purchase tickets is through a paying telephone service.
Joanna is therefore severely affected by this decision as she will face additional hurdles when trying to buy a
train ticket. The Austrian Government has not implemented the directive yet. Advise Joanna on her rights
under EU law.

The problem is that this directive has effect in Austria

1) The first question is: what type of legal act is this? Directive, binding as to result to be achieved and
leaves choice of form and method to member states.
2) There are 4 conditions to verify if the directive has a direct effect: clear, unconditional and sufficiently
precise.
Article 2: yes, it is
Article 3: “appropriate measures”, “disproportionate burden” are quite imprecise, require some
implementation: what measures and how much dipropionate the burden need to be?  not direct effect
3) We also need to know if it is a horizontal situation or vertical situation: vertical because there are a
private (Joanna) against the state (public transport services)
7) Which are the rights: She’s in a vertical situation so she normally can claim her right, but in this case, also
Austria during the time for implementation cannot take this of decisions that is to sold only through vending
machines because these machines do not have audio/tactile support for visually impaired persons and it is
detrimental to the achievement of the objective of the EU law that is to guarantee an equal treatment of
persons with disability regarding access to essential services.
She can claim her rights in front of the eu court because Austria Government has infringed the prohibition
of undermining the aim of the directive.
There is an evident violation of article 2 based on the disclination suffered by Joanna who has only one
more expensive way to buy tickets.

Article 3 requires that each member state takes measures in order to ensure that people with disability
have access to those kinds of services, therefore it hasn’t, per se, direct effect. The decision adopted by the
Austrian operator of the railway is in contrast with what established by article 3. The problem here is that,
first, Joanna, in order to preserve her right, has to sue a private party (here the vertical direct effect doesn’t
work) and, secondly, she has to refer to an article that doesn’t even fit with the logic of vertical direct effect.
This does not mean that Joanna hasn’t the possibility to defend her position: indeed, the right of access to
essential services is one of those enacted by the charter of fundamental rights and, as we have seen in
many different decisions of the Court, general principles have horizontal direct effect. Furthermore, the
directive, in its article 3, seems to be the document in which this general principle is specified. In
conclusion, even of the directive has not been implemented yet, Joanna will have her fundamental right
defended, because of the application of the horizontal direct effect of the general principle whose right is
specified in article 3 of the directive.

Tutorial answer:
1- Type of act? Directive
2- Transpositions? No.
3- Vertical or horizontal situation? Why? Vertical, what body? The State
a. We can consider that is a public company (marshall broad interpretation)  Vertical
situation = DE
b. Private company? H situation  prefer not chose this path
Suggestion: make reference to another case law + principle of DE
 4- Expired time?
a. Yes, we assume e then the logical consequences.
b. No, but we have the jurisprudence of fundamental rights (use Mangold case)
5- Direct effect only for:
a. Art.2 that respects the conditions. = precise, unconditional and clear + V.G case -> She can
go before national court. Sufficiently clear, precise and unconditional.
b. On the other had art. 3 does not respect all the conditions, there is not unconditionality =
No DE
i. But there is a way to help: Francovich Damages
6- Estoppel argument? No
7- Conclusion: Joanna can rely on the directive for article 2 in front of NATIONAL COURT, then can ask
for Francovich for article 3 (right, serious breach, casual link between the right and the serious
breach).

NB:
Mangold case is possible to invoke only if the directive is not expired. Otherwise is possible to invoke DE.

1. When are Member Sates liable for breach of EU law? Discuss the conditions for state liability and
relevant case law. Do you find any link with the doctrine of direct effect?

In 1991, in Francovich vs Italy case, the Court for the first time fully addressed (affrontò pienamente) the
question of State liability for breach of Community law.
It ruled that it is a European principle, inherent in the system of the EC Treaty, so it established that the
Member States are obliged to make good (risarcire) loss and damage caused to individuals by breaches of
Community law for which they can be held (ritenuto) responsible.
The ECJ drew three conditions under which there MSs may be responsible:

i. The result prescribed by the directive should entail the granting of rights to individuals
ii. The contents of those rights must be identified on the basis of directive
iii. The existence of a causal link between the breach of the State's obligation and the loss and damage
suffered by the injured parties (parti lese).

The principle stated by the Court is that, not only Member States but also their citizens are subject to the
Community legal order, and according to that they have rights and obligations descending from it. ECJ,
thanks to this sentence, reinforced application of the principle of direct effectiveness and of the principle of
primacy of Community law (i.e. supremacy).
One of the most important points which the Francovich judgment differs from previous case law is that the
responsibility of the State is determined no longer (non più) by national law but by Community law, leaving
only the procedural aspects to the national legal systems (paragraphs 41 and 42 of the judgment).
* Francovich vs Italy (1991) was a case inherent to a breach of EU law by Italy. It had not transposed in time
a directive on the protection of employees in the event of the insolvency of their employer - Directive
80/987/EEC.
NB. Violations of EU law by different organs of the state will engage liability; the state is responsible for acts
of public law bodies or others to which the state has delegated the performance of its responsibilities
(Dillenkoffer and others v. Federal Republic of Germany).
In the 1996 Brasserie/Factortame judgment the Court has significantly developed its case law about
principle of state liability, establishing:

i. The rule of law infringed must have been intended to confer rights on individuals
ii. A manifest and serious breach is present
iii. There must be a direct causal link between the breach of the obligation resting on the State and the
damage sustained by the injured parties.
Substantial different is in relation to the second point; it means that a breach must be clarity and precision
about the rule infringed (violazione manifesta e grave).
To conclude, “latest”case Palmisani e Maso (1997) underlined how the national judge is responsible about
reparations and procedurals to be followed: they declare damages and quantify them in relation to
concrete case.

2) What is the principle of supremacy? Which is the relationship with the principle of direct effect?

THE PRINCIPLE OF SUPREMACY

A declaration on Primacy of EU law was included in the Lisbon Treaty, but the principle of Supremacy has
never been explicitly included in a Treaty. However, the court mentioned it in:

 - Van Gen den Loos: because the court stated that the EU constituted a new legal order
 - Costa: here the court made several arguments

o When Member states entered the EU, they agreed on a transfer of part of their sovereignty, and the new
legal order created, started to be part of the domestic systems (the court however didn’t check if the
different constitutions allowed for this limitation of sovereignty).

o Then the court said that the aims of the EU could not be reached without the principle of supremacy “the
obligations undertaken under the Treaty establishing the Community would not be unconditional, but
merely contingent, if they could be called into question by subsequent legislative acts of the signatories”.

o Moreover, if national law could prevail, you would have 28 different applications of the law, leading to
discrimination among Member states.

o Art. 288 TFEU provides that regulations are directly applicable (and therefore superior with respect to
national law). However, this argument of the court is weaker, because art. 288 provides only for acts
directly binding, while the principle of supremacy that the court wanted to assess referred to all legislative
acts.

AMBIT OF APPLICABILITY
If there is an EU RULE, the national law can never be incompatible with that rule.
The principle of Supremacy is the principle according to which EU LAW always takes precedence over
conflicting national law and this is regardless of anything:

 - it does not matter whether the national law has been adopted before or after the EU law
 - it does not matter what is the highest level that the normal national law has in the domestic legal
system,

which basically means that EU law takes precedence even over national constitutional law.

Please note that this is the view of the Court of Justice of the European Union. The view of the
national Constitutional Courts is not so definite, so many national constitutional courts have carved
an order of constitutional law which they believe is untouchable, even by the EU LAW.
We have dialogue and conflicts on this and we will see it briefly in relation to fundamental rights
between national courts and the Court of Justice, but so far this dialogue has worked pretty well.

SUPREMACY VS DIRECT EFFECT

There is a very close relationship between supremacy and direct effect because whether it is true
that EU law always takes precedence, in order to activate the EU Law in front of a court, you need
 DIRECT EFFECT.
You can’t activate EU Law as an individual unless there is some sort of Direct effect that allows you
to go in front of a judge.
N.B. This does not mean that EU law which is not directly effective might not have an impact in
national law (remember Francovich damages).

Supremacy and direct effect are really closely linked and having one without the other would be
totally meaningless because if you had supremacy but you didn't have the possibility of individuals
to enforce EU law, then you would not do much with the principle of Supremacy and likewise if you
had direct effect but you didn't have the principle according to which EU Law takes precedence
over national law, again it would not be very useful. These two principles of direct effect and
supremacy have allowed a diffuse scrutiny of compliance of national law with EU Law.

3) What are the mechanisms to ensure compliance by Member States with EU law?

MS compliance with eu law is guarded by 4 classes of subject: citizens, national courts, other MS and the
commission. They ensure the enforcement of eu law in 3 principal way:

- general principal such as direct effect, duty of constant interpretation and supremacy. This guarantee a
diffuse scrutiny of MS compliance with eu law from both individuals and national courts

- mechanism to push towards compliance such us the State liability that result in the adjudication of
Francovich damages. As far as I m concerned this is the most effective one because it is actionable by
individuals and result in a conviction to restore the damaged agent that will feel just like a sanction to not
compliant MS

4) What is the infringement procedure? Which are its different stages?

The infringement procedure may be seen as the main tool the Commission has to test whether the
Member States acts are in line with EU law. One of the Commission most important duties is to monitor the
Member States’ compliance with EU law. We find this power in Art. 17 TEU which says: “The Commission
shall oversee the application of Union law under the control of the Court of Justice of the European Union”.
The Commission is the one that detects, finds out if there’s a violation of the EU law and starts the
infringement procedure. Yet also the Court of justice is involved if the Member State refuses to comply with
what the Commission said, as the latter can go before the Court of Justice.

There are 4 stages in the infringement procedure:

1. Pre-contentious stage: where the Commission tries to solve the matter in a friendly manner and gives the
Member State the opportunity to reach an informal solution. The first thing the Commission does is to send
a communication and to open a channel of dialogue with the concerned Member State, like saying “Italy
you forgot to transpose this directive, maybe you can do it by 2 months, and if you (Italy) will do it by 2
months I (the Commission itself) will do nothing” this is the kind of informal communication they have.
2. Formal notification: if after the time set by the Commission there’s no notification by the Member State
about the compliance with EU law/ transposition of the provision. Then the Commission will send to the
Member State a formal notification about the failure to transpose a notification. This is a letter asking the
Member State to answer/comply with the EU law by normally 2 months (but this deadline can be shorter,
like in Commission’s “Brexit” proceedings against the UK).
3. Reasoned opinion: If the Member State doesn’t comply, the Commission issues what is called “reasoned
opinion” where it sets out clearly all the grounds of the infringement and gives a deadline for the Member
State to remedy alleged breach.
4. Referral: if again, after the deadline, the Member State refuses to comply with the EU law and with what
the Commission suggested, then the matter is referred to the Court of Justice by using this reasoned
opinion. It becomes the starting point of the proceedings before the Court of Justice. The Court will read
the reasoned opinion and all the files from the Commission, it will listen to the Member State’s reasons on
why did they decided to act that way and then the Court will give an answer

5) What is the preliminary reference, which are its functions and how does it work?

The preliminary reference procedure is used when a national court or tribunal refers a question of EU law
to the European Court of Justice (ECJ) for a preliminary ruling so as to enable the national court, on
receiving that ruling, to decide the case before it. Questions of EU law will arise in cases before the courts
of different Member States. The function of the preliminary reference procedure is to ensure uniform
interpretation and validity of EU law across all the Member States.The procedure is laid down in Article 267
TFEU: ‘Where such a question is raised before any court or tribunal of a Member State, that court may, if it
considers that a decision on the question is necessary to enable it to give judgment, require the Court of
Justice to give a ruling thereon.’ The Court of Justice of the European Union shall have jurisdiction to give
preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union
While lower courts have discretion as to whether to make references to the ECJ, Article 267 TFEU excludes
such discretion in the case of final courts of appeal.

How it work:
National court or tribunal stays the proceedings and refer a preliminary ruling request to the CJEU (If
admissible) Parties are invited to send written submissions.
The Commission and eventually other Member States intervene (no other third-party interventions are
admitted!)
Oral hearing in Luxembourg (in most cases)
Opinion of the Advocate General (in most cases)
The CJEU issues its ruling.
EU and MS institutions (Courts/public authorities) shall interpret EU law in light of these rulings. It’s a
legally authoritative interpretation
A question raised is admissible unless it has established that it is irrelevant or that the Community provision
in question has already been interpreted by the Court or that the correct application of Community law is
so obvious as to leave no scope for any reasonable doubt.
The ECJ characterises the preliminary reference procedure as based on cooperation between national
courts and the ECJ. However, it is the ECJ that controls this cooperation and sets its terms. Despite the
uniform requirements of Article 267 TFEU, the number of references made by national labour courts in
different Member States varies considerably.The technique adopted by the Court is problematic. The ECJ
aims to lay down EU law principles, but leaves the application of these principles to national courts. The
boundaries are often unclear. A principle may be defined in terms that leave little or no discretion to
national courts. Despite these difficulties, the preliminary reference procedure has become the most
frequently used channel of access to the ECJ.

PROBLEM QUESTIONS
Though not mandatory, we suggest you develop your answer according to the following technique

 Issue – explain the main issue/problem in one sentence

 Rule – identify the applicable rules
 Application – apply rule to the case
 Conclusion – state your conclusion
 CASE:

o Isabel is a part-time secretary at the University of Freiburg. Upon completion of her fifth year of
o service, she asks to be classified in a higher salary grade. However, her employer refuses this
reclassification request based on a provision of the Collective Agreement for University Employees
(fictitious), which states that only full-time workers can advance to the next salary grade after five
years of service.
o Isabel believes that this clause of the collective agreement is contrary to Article 157 TFEU (equal
pay for men and women workers) and that she is victim of unlawful indirect discrimination. She
contends that 90% of part-time workers at Freiburg University are women, whereas only 20% of
full- time workers at the same institution are women.
o Sued before the competent Labour Court, Freiburg University fails to provide an objective
justification for the difference in treatment between part-time and full-time workers. It also
submits that Article 157 TFEU is not applicable to the case, as labour conditions are regulated by
collective contracts which are an expression of bargaining autonomy enjoyed by social parties.
o Advise Isabel as to her rights under EU law

ANSWER

• Issue – explain the main issue/problem in one sentence = understand if the case of Isabel is
suitable to article 157 (gender discrimination).

o IT’S NOT DIRECT DISCRIMINATION BECAUSE IS NOT “WOMEN ARE NOT ELIGIBLE FOR A RAISE”

o IT’S INDIRECT DISCRIMINATION BECAUSE IT’S “PART-TIME WORKERS ARE NOT ELIGIBLE”  90%
OF THE PART-TIME WORKERS ARE WOMEN  SO THERE IS INDIRECT DISCRIMINATION

 Rule – identify the applicable rules  ART. 157 TFUE (equal pay for men and women
workers)
 Application – apply rule to the case  IT’S DIRECTLY APPLICABLE BECAUSE IT’S A TREATY
(V AND L?). SO THERE IS A BREACH OF EU LAW.
 Conclusion – state your conclusion 2 ALTERNATIVE CONCLUSION:
 VAN GEND EN LOOS = DIRECT APPLICABILITY OF TREATIES IN FRONT OF NATIONAL
COURT THAT CAN APPLY ART. 157 TFUE.
 INFRINGMENT PROCEDURE PROPOSED BY INDIVIDUAL (ISABEL). BECAUSE UNIVERSITY IS
A PUBLIC BODY (= EMANATION OF THE STATE )

Direct applicability, on the other hand, refers to whether a piece of EU legislation becomes part of a
Member State’s national law without the need for any implementing legislation. EU Treaties and
Regulations are directly applicable, as they come into force without any action on the part of Member
States. Contrastingly, EU Directives are not directly applicable, as Member States must implement national
legislation, before a prescribed deadline, in order to give effect to them. DIRECT APPLICABILITY: THERE IS
NO NEED FOR STATE IMPLEMENTATION – WHEN AN ACT IS ADOPTED IT BECOMES PART OF NATIONAL LAW
• A REGULATION IS ALWAYS DIRECTLY APPLICABLE BUT HASN’T ALWAYS DIRECT EFFECT

Tutorial answer:
 - There is a collective agreement -> it has a general application.
- The problem is if:
o We have a national provision vs eu provision, which one prevails?  there is a supremacy
principle, EU law prevails, stablished in Costa case (made reference to the cases!!!)
o Is this situation falling under 157 TFEU?
- The discrimination:
o Direct
o Indirect  seem that there is not discrimination but the data said the contrary. There are 2
categories of people.
 Full time worker = can progresses in their career
 Part time worker = cannot progresses
But it is a gender discrimination? Apparently is neutral, but we can add something
thanks the case data, where the 90% of part time workers are woman. Also, an
important thing, is that the company fails to provide a justification for this
difference in data.
NB: the discrimination must be justified otherwise is illegal (colleague with corona
virus example, if he has the virus he can miss to the tutorial and does not the point
because he has a justification)
- Conclusions: She can invoke art. 157 TFEU (defrenne) so the judge must disapply (not means is
permanent remove) the national law (collective agreement) all before national court. And receive
the increase etc.

I. Facts
II. Conflict  supremacy
III. Art.157 TFEU (defrenne
IV. Direct effect (right, clar, precise and uncondition)
V. Conclusion: Joanna can invoke the provision of the treaty which prevail and this provision
establishing … is indirect discrimination

PROBLEM 2
To comply with its environmental protection objective, the EU has adopted Directive 31/2023 (fictious)
which requires Member States to ban single use food wraps that are not biodegradable.
The Directive also demands to the Commission the adoption of a regulation specifying what substances are
considered biodegradable. The Commission therefore has adopted Regulation 123/2023 (fictious) which
includes a list of substances that are permissible under the Directive for use in food wraps.
3 ORDINI DI OPPOSIZIONE :

- The Republic of Croatia, which opposed the Directive during the negotiations within the Council, considers
that the Directive is too strict and moreover the goal of plastic reduction could have been achieved at
national level and wants to challenge the Directive. (SUBSIDIARITY)
1. DIRETTIVA TROPPO SEVERA
2. UE HA FATTO UNA COSA CHE POTEVA ESSERE FATTA A LIVELLO NAZIONALE
IT’S A SHARED COMPETENCE (ENVIRONMENT) : lo stato membro può intervenire solo se l’UE non è già
intervenuta. Dato che l’UE è già intervuta, la Croazia non può più intervenire.
Anche per il principio di sussidiarietà non può lamentare nulla perché la cosa è meglio realizzata a livello
europeo : inquinamento diminuisce di più

- NoPlast is an NGO whose goal is to raise awareness and to advocate for the reduction in the production
and use of non-biodegradable plastic. It considers that the Commission Regulation is too lenient, includes
too many substances which are not actually biodegradable and therefore does not respect the state-of-the-
art scientific evidence about biodegradable materials and would like to challenge the Commission
Regulation.
1. DIRETTIVA TROPPO BLANDA
Grounds per cui può essere challenged un atto europeo sono
- grounds of lack of competence,
- infringement of an essential procedural requirement,
- infringement of the Treaties or of any rule of law relating to their application, or misuse of
powers.
to challenge an EU act we have to see aso the standing = il diritto di agire in giudizio. It’s a juridic person so
in order to challenge an act

CANNOT FOR ANNULMENT BUT FOR THE THIRD METHOD OF PARAGRAFO 4

 REGULATORY ACT SI (IS NOT ADOPTED BY LEGISLATIVE PROCEDURE) LO SAPPIAMO IN INUIT E JASMIN
 NO DISCRETION BECAUSE IS A LIST

REGULATION VS REGULATORY ACT

REGULATION CAN BE FROM
- EP + COUNCIL
- COMMISSION (DELEGATED OR IMPLEMENTING ACT)

GROUND OF ANNULMENTE: INFRIGMENT OF TREATIES (THOSE RELATED TO ENVIRONMENT PROTECTION)

- direct concern

A measure will be of direct concern where:

• It directly affects the legal situation of the applicant: the act produces effects on the
individuals who want to challenge it
 It leaves no discretion to the addressees of the measure, who are entrusted with its
implementation, which is automatic (no intermediate rules)
 The author of the act is an institution of the EU (it’s an EUact)

The European Environment Agency (EEA), a European agency with legal personality which has the
role of issuing non-binding opinions and providing support information on environmental
questions, claims that the Commission Regulation violates the Directive which required the
Commission to ask an opinion from the EEA on the draft Regulation and to rely on data provided by
the EEA itself in order to identify the list of permissible substances, while the Commission asked for
an opinion from the EEA only two days before the adoption of the Regulation.

1. IL REGOLAMENTO VIOLA UN’ALTRA DIRETTIVA CHE IMPONE ALLA COMMISSIONE DI

CHIEDERE UN’OPINIONE A NOI AGENZIA. MA LA COMMISSIONE HA CHIESTO L’OPINIONE
DUE GIORNI PRIMA DI ADOTTARLA QUINDI TROPPO TARDI

NON PRIVILEGED APPLICANT  NO SEMI PRIVILEDED !!!!

DIRECT CONCERN

OPINION CAN BE NOT ESSENTIAL BUT WE HAVE TO INFLUENCE AND HAVE IMMAGINATION.

SUBJECT : ANNULMENT OF EU ACTS (QUESTION 8-9)  ART 263 TFEU

CROATIA:
1. TYPE OF ACT: DIRECTIVE
2. TIME: 2 MONTHS ARE NOT EXPIRE
3. STANDING  PRIVILEGED APPLICANTS (MS AND THREE INSTITUTIONS)1
4. GROUND OF ANNULMENTS

Tutorial answer
Action of annulment: memorize article 263 TFEU
1. Check type of act:
- Legal binding acts
NB: Opinion = no review legality
2. Time limit: 2 months from the enactment
3. Type of applicant
- Privilege
- Semi privilege
- Non privilege
4. Ground for annulment: plaumnan test – Greenpeace case  environment

263 TFEU paragraph 4: not privilege

- Addressed: ex. Decision to google
- Direct + individual concern = plauman test
- Regulatory act (not legislative act)  only prove direct concern.

Direct concern: an act that affects directly a person.  I can ask the review of the act.
Indirect concern: act than other law/provision of MS that affects a person.  I can only ask the review of
MS’s law.

TERZO TUTORIAL
1. Which are the sources of fundamental rights in the EU?

FUNDAMENTAL RIGHTS

1
SEMI PRIVILIGED: BCE, COURT OF AUDITORS AND COMM REGIONS.
 When not codified in the Treaties were nonetheless recognized as GENERAL PRINCIPLES of Union Law
by the ECJ (derive from the ECJ case law)
 they were codified in the Charter of Fundamental Rights (charter of Nice) and acquired formal legal
effect in 2009 with the Treaty of Lisbon.

2. When does the EU Charter of fundamental rights apply?

The Charter is an instrument is supposed to apply primarily to the EU institutions but the Court started
applying the Charter also towards Member States when implementing EU law, establishing a principle
that: the discretion left to Member States (agents of the EU) had to be exercised having regard to EU
fundamental rights
3. Which types of residence rights does the Directive 2004/38 grant to Union citizens and what are the
conditions thereof?
Three types of residence (INCREMENTAL APPROACH):
o Short-term ( 3 months) – art 6
o Medium-term ( 3 moths and  5 years) – art 7
o Permanent (after 5 years) – art 16

SHORT TERM RESIDENCE  No conditions to reside (except valid ID/passport as for entry)
– ART 6  Residence can be terminated only if they become
( 3 months) ‘unreasonable burden’ (art. 14.1)
e.g. tourist but not limited  BUT expulsion cannot be an automatic consequence of
to it recourse to social assistance.
 Jobseekers covered by this in first 3 months.

But host MS has very limited duties to short term residents: No

obligation to grant social assistance (art.24.2)
MEDIUM TERM RESIDENCE Conditions to be covered by Article 7 Citizenship Dir.:
– ART 7 1. workers or self-employed persons in the host Member State –
( 3 moths and  5 years) economically active;
2. have sufficient resources for themselves and their family
members not to become a burden on the social assistance
system of the host Member State – economically
independent2
3. Or student/ vocational training (lighter burden of proof) with
comprehensive sickness insurance cover in the host Member
State and sufficient means to support themselves during the
stay.
4. Family members of the above

No other conditions beside economic activity – full rights

including welfare.
PERMANENT RESIDENCE  Residence pursuant to national law does not count towards 5

2
BALANCE BETWEEN RIGHT TO FREE MOVEMENT AND (REAL OR PERCEIVED) NEED TO PROTEC NATIONAL WELFARE
STATE.
HOW TO QUANTIFY SUFFICIENT RESOURCES? Article 8(4): Member States may not lay down a fixed amount which they
regard as ‘sufficient resources’, but they must take into account the personal situation of the person concerned. In all
cases this amount shall not be higher than the threshold below which nationals of the host Member State become
eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension
paid by the host Member State.
 – ART 16 years unless UC I also satisfying Art. 7 criteria (economic
(after 5 years of lawful activity/independence) (Case C-424/10 Ziolkowski)
residence)  Once status gained residence is unconditional  i.e. no
requirements needed, the EU citizen is assumed to be fully
assimilated in host society
 It can be lost through absences of 2 years or more
(consecutive)
 It applies also to protected family members
 Economically active citizens might acquire permanent
residence earlier than 5 years in given cases (see Art 17, e.g.
retirement etc.)

4. Which are the rights granted to Union citizens and their family members by Directive2004/38/EC?

Family members are entitled to join their EU relative/citizen, named as “the principal”, in
order to permit the exercise of his/her rights under freedom and dignity, which require that
the same right might be granted to their family members, irrespective of nationality.
PROTECTED FAMILY MEMBERS of migrant UC (ec. active or ec. independent) when exercising right
to reside pursuant to Dir 2004/38, or returning to home country thereafter.
 Spouse if married even if HS does not have same sex marriage. (EU often more generous than
domestic law)
Case C-673/16 Coman  “spouse” gender neutral. Same sex spouse is “spouse” even if host
MS (or in this case MS where citizen is returning) does not recognise same sex marriage
 Registered partner if recognised under national law oh host MS.
 Descendants (i.e children) under 21 or dependant, protected also if non-biological, or if only of
the partner.
 Dependant relatives in ascending line (i.e. parents /grandparents). = ascendant of UC or of
spouse/partner protected if dependent. But student are not allowed to bring ascendant.

The Court of Justice stated that EU citizens derive these rights directly from their EU
citizenship status, whereas their family members have only derived residence rights which
are dependent on the principal having exercised his freedom of movement.
Family members of UE principal are entitled to the same rights that the union citizens have.
These rights are again not autonomous but derived. Generally, if the EU principal leaves the country, then
the family member loses the rights; but art. 12 of the Citizenship Directive says that in case of death or
departure, the family member retains residence rights if:
 He or she is a child in education (also university) or the parent who has custody. The right of the child to
education prevails, in this case the MS cannot also expel the parent who has the custody of the child.
 His/her spouse is dead, and he/she already spent 1 year in the MS.
 Upon divorce, if marriage lasted 3 years of which 1 in the host state, or the spouse suffered domestic
violence.

5. What is the meaning of Union citizenship? Cosmetic or innovative?

COSMETIC  DANO AND SEL SUFFFICIENT TRAP: the Court ruled that economically inactive citizens
without sufficient resources (according to the conditions set in the directive 38/2004) fall outside the
scope of the Treaties, and do not enjoy the rights connected to equal treatment.
BUT ALSO MCCARHTIE, DERECI who limited the application of Zambrano.
INNOVATIVE  MARTINEZ SALA, ZAMBRANO (ARTICLE 20), TJEBBES AND ROTTMAN

Definition of EU citizenship is an innovation in the Treaties.

 European Union citizenship is additional to national citizenship, and affords EU citizens with rights,
freedom and legal protections available under EU law.
Citizens have the right to vote in and run as a candidate in elections in the state where they live, while
also voting for European elections and participating in a European Citizens' Initiative.

6. Do you think that Union citizenship strikes a fair balance between transnational solidarity and the
protection of the financial sustainability of national welfare systems?

I think that union citizenship strikes a fair balance between transnational solidarity and the
protection of the financial sustainability of national welfare systems, because with article 18
and 21 of the TFEU it grants to Union citizens the right to move and reside freely and the
right to be treated equally to nationals.
However, these rights are not absolutes, but they are subjected to limitations and conditions provided
by secondary legislation and treaties.
 One of these limitations and conditions was that Union citizens shouldn’t become an unreasonable
burden on MS finances. So, these rights have to be balanced against the interests of national MSs.
 Also the Directive 2004/38, that codifies the Court of Justice case law, tries to find a compromise
between these two principles, specifying some conditions for free movement and equal treatment
rights. In fact, it grants to Union citizens and their family members the right to reside in any MS and
the right to equal treatment, but it adopts the incremental approach, so these rights depend on the
length of the stay, to prevent the welfare system from being exploited and abused by Union citizens
that travel around. So, for example, we find a way to protect MSs finances and MSs welfare state
from what has been called benefit tourism under article 6. In fact, it established that Union citizens
have the right to freely move around or to reside in another country for whatever reason; however,
once they are in the host member state, they are not entitled to any social benefit in the first 3
months.
The COJ is very much aware that the member states are concerned about the possibility that
a lot of union citizens come to their member States and ask for social benefits. Therefore,
there is always the idea that free movement of union citizens can be limited by the member
States and that there are interests that can be posed before these rights.

PROBLEM QUESTIONS
1) In January 2021, Maria, a German citizen moved to Poland to work there. Since 2016 Maria has been
married to Clara, a Colombian citizen who moved to Poland with her and found stable work there. In
2023, the following events unfold:
o After having filed for amicable divorce in May 2022, the couple officially divorced in May 2023.

The marriage lasted more than 3 years and there is no evidence of the residence of couple in the MS or
elsewhere.

o In June, Maria participated in a peaceful manifestation for the upcoming Polish elections. Stopped
by the police, she received an order to immediately leave the country.

 Issue: whether an EU citizen can be ordered by the police to leave the country with an
immediate expulsion order.
 Rule: art. 21 TFEU + directive 38/2004.  According to these, different people in EU law have
different rights. Firstly, we have to understand whether she is economically active or
economically independent (this must always be our starting point): whereas an economically
active person is entitled to full equal treatment (and, if that were the case, Maria could not be
denied the grant), an economically inactive might not.
 Application: Maria has the right to reside according to medium term residence and she’s an
economically active. A citizen can be expelled only for security safety reasons, but their
requirements cannot be recognized in this case because she took part in a peaceful
 manifestation. Moreover, for an expulsion are required preliminary steps such as notice, so an
immediate order to leave the country is certainly against EU law. Then it’s also necessary to
assess whether the measure took by the police is proportionate and this is not verified. In fact,
claimant doesn’t represent a genuine and sufficiently serious threat to one of the fundamental
interests of the society, so her expulsion wouldn’t be justified. Moreover, it could be considered
highly disproportionate. The immediate expulsion clearly violates the directive art. 35-27-30-28.
 Conclusion: Maria should invoke her right to reside freely according to art. 21 TFEU in front of a
national judge.

o Clara received an expulsion order because she is no longer married to a Union citizen and therefore
is no longer legally resident in Poland.
 Issue: whether an TC citizen can be expelled after divorcing from a EU citizen ⇾ whether Clara
falls within the category of “family members” stated in the Treaty.
 Rule: spouse is family member, but after divorce they lose their derivated rights. However
divorced partner retires his/her right to reside if marriage lasted at least 3 years. Art. 13
directive.
 Application: Clara, even if legally divorced from Maria, can enjoy the right to reside because her
marriage lasted at least 3 years. Problem of same sex couple. COMAN CASE for “spouse” is
gender neutral.
 Conclusion: Clara should invoke her derivated rights if she wants to enjoy them.

RISPOSTA:
1. Legal issue: legality of expulsion
2. Rules: MARIA (art 7 medium term, art 15, art 27, art 28, art 30, art 31, art 21 tfeu, art 13
directive par.4)
3. Application of rules
• Directive
• Type of residence  medium term  economically active
4. Public security and divorce (Directive of same sex couple)

2) Manuel, a Spanish activist, moved to the Netherlands to volunteer in several environmental

philanthropic initiatives. After 4 years of living in Amsterdam, he applied for income support, a benefit
available to those with a right to reside in the Netherlands. However, his application is denied by the
Dutch authorities, who claim that he has no right to reside in the country.
Advise Manuel as to his rights under EU law.

 Issue: has Manuel the right to have income support?

 Manuel falls within the category of non-economically active person according to Directive 2004/38.
DIRECTIVE 2004/38 (CITIZENSHIP DIRECTIVE)
 Repeals a number of previous instruments and codifies case law
 Details who is intitled to reside in another MS different from that of nationality
 Provides for rights of equal treatment and family reunification
 Details who can be ‘kicked out’ of MS

 Rule: the directive states that right conferred by medium term residence and conditional because it
is necessary being economically active, having sufficient resources and a comprehensive health
insurance so to not constitutes an unreasonable burden to host MS. Broad interpretation of art. 18
(Right to non-discrimination) and 21 TFEU (Right to move and reside freely within the EU territory)
in Sala (established the principle of equal treatment for lawfully resident union citizens) and Trojani,
but stricter one in Dano case. Grezlync.. Baumbast (ARTICLE 21 TFEU has direct effect and can be
relied upon by migrant Union citizens who have a right to be treated proportianately
proportionality but black latter from Dano (changed the interpretation of eu citizenship provisions
 (despite not explicitly overruling baumbast): if conditions of the directive are not met, treaty
provisions do not apply)
 Application: by not being economically active he shouldn’t enjoy the right to reside. If the judge
follows a broad interpretation as in Sala, he should be entitled to equal treatment and not being
discriminated upon nationality. In conclusion, he should enjoy income support just as nationals can
only until he becomes an unreasonable burden.
 Differently, if the judge adopts a stricter view, Manuel couldn’t rely on equal treatment and right of
not discrimination because he’s economically inactive and his period of residence is longer than 3
months but shorter than 5 years.
 Conclusion: Manuel should invoke his rights hoping in a broader interpretation of the judge.
 Different conclusion according to the reasoning: Grzel can be applied, manuel is actively
participating in social life (volunteering), he can reside until he’s not an unreasonable burden
(other condition is be lawful resident) Otherwise, if we apply Dano he shouldn’t reside.

Art 24  equal treatment

Right to stay
Right to social benefit
The conclusion depend on the cases are we referring one
Dano  after the crisis the countries were jealous.

3) Agata is a Canadian national living in Hungary with her 7-year-old Hungarian son. When she applied
for the renewal of her residence permit, the Hungarian authorities rejected her application and asked
her to leave the country.
Issue: how can we grant the right of residence to a not EU citizen
Here, Art. 20 TFEU is relevant, since we are in a purely internal situation, whereas the Directive does
not apply, it applies only when the people transfer from one Eu MS to other.
Also, we have to consider Ruiz Zambrano: if the children were forced to go away, then their rights
would be limited, because they would not be able to benefit from Union citizenship. Of course, this
does not entirely deprive the Member States of its discretion: the principle simply implies that, when
the State deprives the citizen of the substance of their Union citizenship rights, the decision has to be
justified and proportionate (also, assuring compliance to Fundamental Rights, including the one to
private and family life). In practice, this imposes limits to the possibility to deport third-country.
national parents of Union citizens. the State must also be aware of children’s best interest.

We cannot applied the directive in this case because they never exercise the free movement (we can use
only use art 20)

b) Enrique, a Brazilian citizen, resides in Spain with his daughter Caroline who holds Spanish nationality by
birth. Enrique is the primary carer of Caroline, who needs constant assistance and care. When Caroline
reaches the age of 18, Spanish authorities deny Enrique’s permit to stay in the country, arguing that Caroline
has now reached the age of majority and, therefore, her father is no longer eligible for legal residence in
Spain. Advise Agata and Enrique as to their rights under EU law.
Cannot be applied the directive but only article 20
Zambrano doctrine cannot applied but as we can see the case …. Vs belgius: permit the use of Zambrano so
we can applied art 20
For eu law  if the person reach the major age the parent should leave the country but in this case is
special because have she need assistance and care, and depends by her father. Not apply Zambrano but KA
case that applies between adults.
TUTORIAL 4  TUTTE LE RISPOSTE A QUESTE DOMANDE NEL FILE TUTORIAL 4 CHE HO CONDIVISO SUL
GRUPPO
1. How did the CJEU's definition of ‘measures having an equivalent effect’ (MEE) impact integration in the
internal market?
2. What is mutual recognition? What is its rationale?
3. Who is a ‘worker’ and a ‘jobseeker’ according to EU law and case law? What are their respective rights?
4. ‘The notion of restriction to the freedom to provide services is too broad and any rule regulating the
provision of services can be caught’. Critically discuss this statement with references to the case law
5. ‘Market access is the overarching principle for EU free movement law’. Criticallydiscuss this statement
with examples from the case law.

Revision questions
I. Does the European Union have a democratic deficit? Is the current institutional balance part of the
problem according to you?
II. What strategies did the CJEU use to remedy the lack of direct effect of Directives in horizontal
situations?
III. 'The Treaties provide for a complete system of legal remedies that ensure access to justice for every
individual'. Critically discuss this statement with examples from the case law

PQ 1
1. Free movement of good = field
2. Type of measure:
a. 30 TFEU
b. 34 TFEU
3. Discriminatory?
4. Justification
a. 36 TFEU
b. Mandatory requirements: proportion + necessity

Bellezza s.r.l. is an Italian company that produces cosmetics and wishes to export them throughout the EU.
Bellezza’s products contain 15% natural ingredients, and their packaging is single-use and made with 50%
recycled plastic materials. Bellezza s.r.l. is willing to export its goods to Germany, Spain, and Portugal,
however:
a) Germany has adopted a law imposing that imported products containing natural ingredients must
be inspected. German law also requires the payment of an inspection fee, which is calculated according to
the value of the product.

INSPECTION + INSPECTION FEE

we must analyze the charge under Art. 28/30, and the inspection per se under Art. 34
ART. 28 TFEU prohibits: CUSTOMS DUTIES
CHARGES HAVING EQUIVALENT EFFECT AS CUSTOM
ART. 30 TFEU prohibits:
DUTIES

Inspection MHEE
 measures having equivalent effect under art 34 tfeu
 Art. 34 TFEU must apply, but the measure can be justified both by Art. 36 TFEU and by mandatory
requirements.
Art. 36 “transit justified on grounds of public morality, public policy or public security; the protection of
health and life of humans, animals or plants;. Such prohibitions or restrictions shall not, however, constitute
a means of arbitrary discrimination or a disguised restriction on trade between Member States.”

Inspection fee CHEE

 FORD CASE ESPANA: THE CHARGE MUST REFLECT THE COST OF THE SPECIFIC SERVICE (AND NOT OF THE
TRADED PRODUCT ON WHICH THE INSPECTION IS IMPOSED)
 IS NOT AN EXCEPTION OF ART 30 TFUE SO IT’S A CHARGE HAVING EQUIVALENT EFFECT AS
CUSTOM DUTIE. + Statistical Levy case

 this measure is not justified.

b) Spain enacted a law imposing that only products containing at least 75% natural ingredients can be
sold in specific sections of stores called “Green, organic and bio corners”. Spain affirms this law aims at
avoiding “greenwashing”.

Art. 34 TFEU. MHEE

It’s a rule concerning selling arrangements (i.e., regulating the way a product is sold, such as those
concerning advertising and marketing)
 the Court recognized that certain rules about selling arrangements place an equal burden on anyone,
both on importers and on domestic traders. Hence, provided that: those rules are applied to all
relevant traders, and they are not discriminatory.
 Dansville
 In this case is not a MHEE does not follow under 34!!! But we need to see that if, the fato, the
measure creates discrimination indirectly (in this case we do not have enough data to say this)

NB: Indeed, the Court recognized that certain rules about selling arrangements place an equal burden on
anyone, both on importers and on domestic traders. Hence, provided that:
 Those rules are applied to all relevant traders, and
 They are not discriminatory (either directly, in law, or indirectly, in practice)94, then:
the application of such rules to the sale of products from another Member State meeting the requirements
laid down by that State [do] not prevent their access to the market or to impede access any more than it
impedes the access of domestic products. Such rules therefore fall outside the scope of Art. 34 [and so, they
are not considered as MHEE].

c) To spread consumer awareness about plastic consumption, Portugal has introduced a law that
requires producers to place a label on products not entirely packed with recycled plastic materials. The label
must be written in Portuguese and big red letters and specify the product’s origin as well as the percentage,
if any, of recycled plastic materials used in the packaging.
You are the lawyer of Bellezza s.r.l. and you should provide legal advice to your client on the issues

Art. 34 TFEU MHEE

rules concerning product requirements
 do hinder intra-community trade, as they place a “double-burden” on traders, and therefore they
always have to be justified: they must pursue a legitimate interest and must be necessary and
proportionate to the attainment of that aim.
Label origin Does not have a legitimate interest! For wine could be admissible but for
cosmetic no girl
Label amount of plastic Pursue a legitimate interest (protection of environment) but with black
letters without origin, etc..
Big red letters Not proportionality (is not necessary)
Written in Portuguese Not proportion  because are numbers

SCHEMA DA SEGUIRE PER LA RISOLUZIONE:

1. TYPE OF MEASURE
2. RULES
3. DISCRIMINATION
4. JUSTIFICATION
PQ2
Fulvia is an Italian computer technician with an Information Technology (IT) degree and over 5 years of work
experience. In January 2023, she moves to seek a job in Belgium together with her Italian partner, Maurizio,
who wants to teach Italian there. While awaiting responses from several job applications, Fulvia applied for
social assistance as she could no longer provide for herself. In November 2023, the following events
unfolded:
a) Fulvia’s job application as an IT technician at the Belgian Ministry of Economy and Innovation is
rejected because the job offer was restricted to only Belgian nationals. According to the Belgian
Ministry, the job would require developing AI tools, as well as dealing with sensitive information related
to national security.
according to Art. 45 TFEU, rules that distinguish on grounds of nationality are allowed only in relation to
employment in public service. So, when it comes to employment in public services, Member States can
reserve some posts to their nationals, provided that:
o the post involves the exercise of public law powers
o and there is a duty to protect the general interest of the State.
These requirements presuppose the existence of a special relationship of allegiance to the State.
But if we consider commission vs Belgium case, this exception applies on in a few cases = Fulvia made a
technical job and we should interpret the exception in a narrow way.
We should consider less restrictive measures as sign an NDA etc.
b) Maurizio’s first job application to a public high school in Flanders (a Dutch-speaking area) is rejected
because all teachers are required to be fluent in Dutch and French. While fluent in French, Maurizio has
only a basic knowledge of Dutch.
A second application to a public school in Brussels is also turned down, this time because Maurizio has
not produced a French language proficiency certificate.
First job application it is justified by reasons of public interest. Linguistic requisite is functional
for the job
Second job application The rule is not discriminatory because all foreign language teachers must
hold a valid language proficiency certificate. the certificate is only to ensure
the knowledge of the language.

OBJECTIVE: LEGITIMATE
PROPORTIONALITY: NO
 indirect discrimination

 NB: In this respect, it is strictly necessary that the linguistic requisite is functional to the job
the non- national is applying for, otherwise it is an indirect discrimination. Long story short,
indirect discrimination can be justified by imperative reasons of public interest and must
always comply with fundamental rights

c) Fulvia’s social assistance request is not granted, because she is considered an economically inactive
citizen who does not qualify for welfare benefits.
Article 14 directive  Directive 2004/38, jobseekers can reside unconditionally for the first three
months and for a longer period if they demonstrate that they have a genuine chance to find a job
she is a medium resident job seeker with a huge chance to be employed (5 years of experience, degree,
she is applying for job)
Collins Alimanovic
she is not a burden She is a burden (Alimanovic extended the Dano
YES benefits that facilitates access to test also to jobseekers)
employment, if they have a genuine link with the Jobseekers, similarly to purely inactive citizens,
host State’s job market shall prove to legally reside under the conditions
set by the directive (need enough resources)
PQ 3
Carmen, a Spanish citizen, is a fully qualified lawyer in Spain. She is a very successful professional,
specializing in corporate law and mergers and acquisitions (M&A). She wishes to expand her business and
set up a branch of her law firm in Italy. However:
a) Italy enacted a law that requires lawyers qualified in other Member States to pass the Italian bar
exam if they want to practice litigation in courts permanently (including an 18-month
apprenticeship). Italy justifies this rule by saying that a litigation lawyer must know Italian law. Italy
does not recognize the bar exams of other States. Alternatively, a lawyer qualified in another State
can only provide legal advice but cannot practice in Courts.
In case of establishment:
restriction of Carmen’s right to establishment: national measures liable to hinder or make less
attractive the exercise of Fundamental Freedoms must fulfil four conditions:
must be applied in a non-discriminatory
manner
justified by imperative requirements
comply with the principle of necessity and I don’t think is proportionate
proportionality

automatic exclusion of foreign persons not possessing the qualifications required by national rules
for the exercise of a profession is not admissible.

 There is a legitimate aim, but the problem is the proportionality:

Therefore, Member States have to make a comparison between the specialized knowledge and
abilities possessed by the EU citizen, as certified in his/her diploma or certificate, and the
qualifications and knowledge required by national rules. Hence, the non-possession of a
diploma or of a professional qualification was found to be a barrier and need a proportionate
justification.

In addition, the Court pushed negative integration in the field of equivalence of

qualifications between Member States. Eventually, Member States harmonized their
legislation on the subject (as part of, instead, a positive integration), towards a mutual
recognition of higher education diplomas.

To object to the justification of Italy in M&A field applies mainly international and not Italian
law applies. Therefore, the knowledge she possesses are more than sufficient.

 in addition, be a lawyer is not an exercise of official authority (Reyners case)

b) As Carmen’s clients are international corporations, she often flies to Paris to provide her legal
services. However, France requires lawyers who are fully qualified in other States to be registered in
a “Bulletin” that requires the payment of a 20.000,00 Euro fee per person. France argues that
registration is needed to guarantee public control of legal services.

 DIRECTLY DISCRIMINATORY

In case of service: Art. 56 TFEU restrictions on freedom to provide services within the
Union shall be prohibited applies: i.e., when the economic activity is exercised in another
Member State on a temporary basis

 We consider the requirement of registered in a “Bulletin” is legitimate

 As per usual, we have the right to move in order to provide or receive services. It is also
worth mentioning that Directive 2004/38 (the Citizens Rights Directive) regulates the right
to move and reside in another Member State for recipients of services, as we have said
talking about citizenship: they can indeed stay in the host Member State for up to 3
months.

Secondly, we have a right not to be discriminated on grounds of nationality. As usual, this

is the most important aspect of the material scope of Free Movement of services. Direct
discrimination can be justified only by Treaty derogations: public policy, public security and
public health. Moreover, the Treaty provides for another exception: i.e., when the service
constitutes the exercise of official authority. (art. 51). Otherwise, direct discrimination
always prohibited.

 In this case there is a public interest “public control of legal services” but I think that it
not falls under public policy, public security and public health.

 in any case the discrimination must comply the proportionality test needs to be
satisfied: national rules must be necessary, proportionate and complying with
Fundamental Rights  but in this case there is not proportionate, the fee is too high.

ESAME

FOCUS ESAME

CONCETTI CHIAVE PRIMA PARTE

DIRECT EFFECT: INVOKE DIRECLTY BEFORE NATIONAL COURT

 NO BEFORE ECJ
 NO MATTER IMPLEMENTATION

SUPREMACY

STATE LIABILITY  ALWAYS APPLICABLE REGARDLESS OF DIRECT EFFECT!

TYPE OF ACT: THE MOST PROBLEMATIC IS THE DIRECTIVE

- BINDING FOR THE AIM

- COULD BE INVOKE BY IDNIVIDUAL? YES, BUT NOT ALWAYS. LACK OF DIRECT EFFECT OF DIRECTIVE IN
HORIZONTAL SITUATION!!! WE DISCUSS ABOUT THE STRATEGIES THE ECJ FOUND IN ORDER TO
CIRCUMVENT (DUTY OF CONSISTENT INTERPRETATION, FRANCOVICH LIABILITY, BROAD
INTERPRETATION OF NATIONAL STATE, GENERAL PRINCIPLES OF THE UE EG. MANDOLD, THE
CHARTER)

ESSAY QUESTION OF INSTITUTIONAL LAW

EXAMPLE: WITHIN THE EU THERE IS A TENSION BETWEEN INTERGOVERNMENTAL AND SUPRANATIONAL

APPROACHES. DISCUSS HOW THIS TENSION IS REFLECTED WITH THE COMPOSITION OF THE COMMISSION

o WHAT VISIONS OF THE EU THEY REFLECT

 o IS IT A SUPRANATIONAL OR INTERGOVERMENTAL INSITITUTION?
o COMMISSION COMPOSITION? WHAT IS THE APPOINTEMENT PROCEDURE OF THE COMMISIO?
HOW IS THE PRESIDENT ELECTED? AND THE HIGH REPRESENTATIVE OF FOREIGN AFFAIRS?
o RECENT EXAMPLES OF TENSIONS BBETWEEN IG AN SN? EG. SPITZENKANDIDAT
o CRISITISIM/CORTCOMINF OF THIS APPROACH? EG. TECHNOCRATIC UNION.

QUESTION 2: CONTITUTIONAL LAW

THE COURT JUSTICE JUDGMENT IN THE PLAUMANN CREATED A FORMIDABLE BARRIER STANDING FOR
PRIVATE PARTIES. DISCUSS THIS STATEMENT IN THE LIGHT OF THE CASE LAW.

SECONDA PARTE  DA FARE DUE DI TRE

PROBLEM QUESTION OF SUBSTANTIVE LAW:

DO YOU THINK CITIZENSHIP IS COSMETIC OR INNOVATIVE? EXPLAIN YPUR ANSWER WITH REFERENCE TO
THE CASE LAW

 COSMETIC: DID NOT INTRODUCE NEW RIGHTS FOR CITIZENS. DANO. ALIMANOVIC
 INNOVATIVE: BAUMBAST, SING, ZAMBRANO (FOLLOWED BY MC CARTHY, DERECI). CEBBS, JW,
ROTTMAN

AT THE BEGINNING THE INNOVATIVE ASPECT WAS THE RIGHT OF THE INDIVIDUAL TO CLAIM
CITIZENSHIP RIGHTS ALSO IN PURELY INDIVIDUAL SITUATION!!!

THE STATE HAS TO JUSTIFY THE REASONS OF WITHDRAWAL.

ESSAY OF SUBSTANTIVE LAW:

THE COURT OF JUSTICE REALIZED THE INTERNAL MARKET AT THE EXPENSE OF MEMBER STATES
REGULATORY POWERS AND LOCAL TRADITIONS. DO YOU AGREE? RESPOND WITH EXAMPLE FROM THE
CASE LAW.

 ARTICLE 34 (DASSONVILLE MHEE)

 MUTUAL RECOGNITION (CASSIS)  BLUE CHEESE
 KECK

PROBLEM QUESTION – GOODS