Case Articles / Bases Background/Ruling/Implications

Tobacco Annulment of directive GER: Art. 100a is wrong legal basis -> only in cases where obstacles to exercise of
gravity
LEGAL BASIS (center of

Advertisem 98/43/EC on the
ent approximation of laws
Case 276/98 regulations and administrative
Germany v provisions relating to the
Parliament advertisement of and
sponsorship of tobacco ->
banning of all forms of
advertising and sponsorship
fundamental freedoms & distortion of competition are considerable
-> infringement of art 57(2) plus breach of subsidiarity and proportionality
Center of gravity test: does the directive contribute to removing obstacles to the
internal market-> public health measure nor legal basis -> no, directive cannot be
adopted on basis of this legal basis
59 According to the case- law of the court, the choice of the legal basis for a
measure must be guided by objective factors which are amenable to judicial review,
including, in particular, the aim and the content of the measure

in terms of 114 TFEU: actual or likely obstacles to free movement as a condition for
harmonisation
Forest Annulment of Regulation No Regulations were adopted on basis of 43 EC treaty/ 130s of EC treaty in order so safe
Legal Basis

Protection 307/97 on protection of the the forest and thereby the atmosphere -> PAR: wrong legal basis (should have been
Joined Cases Communitys forest against 130s), b/c concerned with environment and not CAP
C-164/97 and atmospheric pollution & - 13 the choice of a legal basis for a measure must be based on objective factors
C-165/97 Regulation 308/97 on the which are amendable to judicial review. Those factors include, in particular, the aim
Parliament V protection of Communitys and the content of the measure
Council forests against fire - 14 it is necessary, in order to determine the appropriate legal basis, to consider
whether the measures in question relate principally to a particular field of action,
having only incidental effects on other policies, or whether both aspects are equally
essential first -> legal basis is sufficient
Does not fall under article 43 EC but should fall under 130s

directive was annulled b/c council has infringed essential procedural requirements
 Fedesa Preliminary ruling on validity 8 principle of legal certainty requires any measure adopted by the community
Proportionality Test
Case C-331- of EC directive 88/146/EEC institutions to be founded on a rational and objective basis, judicial review must, ,
88 prohibiting the use in livestock be limited to examining whether the measure in question is vitiated by a manifest
Reference for farming of certain substances error or misuse of powers, or whether the authority in question has manifestly
preliminary having a hormonal action exceeded the limits of its discretion.
ruling
13- principle of proportionality as one of the general principles of
community law prohibition of an economic activity is subject to the condition that
the prohibitory measures are appropriate and necessary in order to achieve the
objectives, if there is more than one, the least restrictive measure must be taken, and
the effects caused must not be disproportionate to the aims pursued
Plauman scope of Art. 265, Individual allows an individual to bring action against decisions addressed to another person,
l Concern
Individua

Case 25/62 Concern which are of direct and particular concern of the former.

only when the individual is differentiated from all other persons

Van Gend Annulment of a decision of the different tariffs on a certain good that was not there before, therefore tariff was
new legal order
/autonomy of EU Law/
Direct application

en Loos Nederlandse administratie der
Case 26/62 belastingen concerning the
application of a particular
customs duty to the import of
sth.
higher. Goes against art 12 EEC (prohibition of customs duties)
- does it have direct effect?
direct application: in the sense that nationals of MS may on the basis of this article
lay claim to rights which the National court must protect

based on 12EEC (30 TFEU) EU law constitutes a new legal order of int. law

preliminary ruling imposes obligations as well as rights on individuals

Van Duyn interpretation of art. 48 of EEC Dutch women was refused leave to enter the UK to take up position at scientology
direct effect
Vertical

Case 41/74 and direct 64/221/eec - is art 48 directly applicable:

Yvonne van concerning freedom of discrimination shall be abolished (limitations based on public grounds)
Duyn v Home movement of workers coffers enforceable right on them
Office 12/15 vertical direct effect: confers on individuals the rights which are enforceable by
them in the courts of a MS and which the national courts must protect
-
 Facini Dori preliminary ruling, two people concluded a contract, customer than cancelled her contract claiming
of the treaty
CI: light and wording
Case C- interpretation of council refund under directive: Italy had failed to translate directive after timeframe expired
91/92, Paola directive 85/577/EEc on - unconditional and sufficiently precise
Faccini Dori v protection of consumers in 20 a directive cannot itself impose obligations on individuals
Recreb Srl. respect of contract 25 cannot derive a right directly from a directive against another individual
negotiations 26 interpret that law, in the light of the wording and the purpose of the directive so
as to achieve the result it has in in view
27 states must make goods damage for failure to translate directive if three
conditions are met:
a) purpose of directive must grant rights to individuals, b) content of those rights
must be identifiable, c) causal link bw breach of state obligations and damage
suffered must be there
Marshall preliminary ruling on the 46 if they are unconditional and sufficiently precise, provisions may be relied upon by
effect
Horizontal direct
Vertical and

Case C- interpretation of Directive
152/84 76/207/EC on the
implementation of the
principle of equal treatment
for men and women
an individual against the state where that state fails to implement the directive in
national law
48 a directive itself does not impose obligations on an individual and that a
provision of a directive may not be relied upon as such against a person
 Francovich reference for a preliminary directive is supposed to give employees a minimum level of protection after
State Liability
Case C-6/90 ruling insolvency, however ITA failed to implement directive in time. Plaintiff did not get
and 9/90 payed and brought action against the defendant. francovich then claimed to be
reimbursed by the Italian state

Liability of the State of loss and damage resulting from breach of its obligations under
CL:
35 the principle whereby a state must be liable for loss and damage causes to
individuals as a result of breaches of community law for which the state can be held
responsible is inherent in the system of the treaty
37 MS are obliged to make good loss and damage caused to individuals

conditions:
39 three conditions need to be fulfilled
40 1) result prescribed should entail the grant of rights to citizens 2) possible to
identify the content of those rights on the basis of the provisions of the directive 3)
condition is the exercise of a causal link bw breach of the states obligation and the
loss suffered
Foto-Frost reference for a preliminary firma foto-frost wants annulment of a notice issued by the hauptzollamt for the post-
Community act
Validity of a

Case 314/85 ruling in interpretation of Art. clearance recovery of import duties following a council decision. were first cleared but
177 EEC and art. 5(2) of later should have been taxed. foto frost wanted it annulled, but finanzgericht
regulation 1697/79 on post considered that only possible if act itself unlawful
clearance recovery of import
duties is the finanzgericht competent to declare invalid a Commissions decision:
14 can declare them valid
15 cannot declare them unvalid
17 reserved to CoJEU
CILFIT preliminary ruling on the dispute b/w wool importers and the Italian ministry of health concerning the payment
claire
act
Act Claire,

Case C- interpretation of the third of fixed health inspection levy in respect of wool imported from outside the
283/81 Cilfit paragraph of Art 177 of the community
v Ministry of EEC treaty
Health 16 the application of community law may be so obvious as to leave to scope for any
reasonable doubt as to the manner in which question raised is to be resolved
 Leclerc preliminary ruling on the 25 establishes: a law, intended to assimilate rules applying to imported goods to
, u turns
interpretation
MEE, Strict
Case 229/83 interpretation of art. 3(f) and 5 those applying to domestic goods, actually creating separate rules that hinder trade
of EEC between MS is to be considered as a measure having equivalent effect to QR

Justification under art. 36 does not apply, b/c art 36 must be interpreted strictly, thus
only justifications that are explicitly mentioned can be accepted

26 it cannot be exported for the sole purpose of re-importation (U Turn)

Chen Preliminary ruling on Zhu (Irish) and her mother Chen (chinese) against UK concerning the rejection of
residence
Childs right of reverse

Case C- interpretation of Council
200/02 directive 73/148/EEC on
abolition of restrictions on
movement and residence
within the community with
regard to establishment of
services
Mathod Preliminary ruling on the
Discrimination
applications by the two for a long-term residence permit to reside in the UK
A young child can take advantage of the rights of free movement and residence for
an indefinite period, if some conditions are fulfilled: 1) child is a national of a member
state, 2) child has health insurance 3) care has sufficient resources
-> these are valid even if parent is non Eu citizen; child is entitled to be accompanied
by his/her primary carer, who must therefore be allowed to reside with the child
a national law forced Belgian producers to have a certain product requirement,

Case 98/86 interpretation of the first
Belgian subparagraph of Art. 3(1) (6)
Butter Case of directive 79/112/eec
relating to the labeling,
presentation and advertising
of foodstuffs
Ruiz Preliminary ruling on the
Right of Residence
however, this law did not apply for imported goods. Puts them at a disadvantage
MEE? NO, does not restrict imports (Para. 7)
does it infringe the non-discrimination principle? No provision in the treaty, nor any
other principle of Union law makes it unlawful for a national legislation in conformity
with union law to apply only to domestically-produced products and not to imported
products (12) -> national legislation can discriminate against national products
Ruiz Zambrano (Columbian) was refused unemployment benefits by beligum, even

Zambrano interpretation of Articles 12
Case C-34/09 EC, 17 EC, 18 EC plus charter
of fundamental rights of the
EU
though he had Belgian children who were entitled to benefits
Directive 2004/38 applies only to Union Citizens who move and reside in a MS other
than the one of which they are nationals, therefore the Directive does no apply to
persons (and their families) who did not move to another MS -> ruiz falls outside the
scope of directive

yet 20 TFEU precludes national measures that would deprive a Union citizen of the
rights resulting from Union Citizenship -> in this case the refusal to grant a right of
residence to the primary carer of a Union citizen would force the (minor) citizen to
leave the Union to accompany their parent, which prevents the Union citizens from
exercising the rights conferred upon them (43-44)
 Dassonville preliminary ruling on the Belgian bought Scottish whiskey in france without certificate of origin which was a
Mees
Case 8/74 interpretation of art 34 and 36 breach of belhian law
TFEU and 101 TFEU
does the request of a certificate of origin, which is easier to obtain for certain
importers rather than others, falls within the scope of art. 43 as a MEE

all trading rules enacted by MS which are capable of hindering, directly or

indirectly, actually or potentially, intra-community trade are to be considered
as MME (5)

direct effect: rule must be sufficiently clear and unconditional

 Danish failure of obligations under Denmark has introduces a system for returning beverages containers that ensures
Mandatory requirements /necessity
Bottles treaty their reuse. The containers must be approved by the National Agency for the
Case C- protection of the environment; non-approved containers may be used for quantities
302/86 , EC v under 3000 hectoliters per year per producer.
Denmark
The Commission claims that this system breaches art 34 TFEU as it represents a (only
selected bottles can be sold), and a quantitative restriction (only 3000 hectoliters per
year).

The Courts analysis: in the absence of harmonization, obstacles to free

movement resulting from differences in national laws must be accepted insofar as
these laws are: i.) Non-discriminatory ii.) Necessary to satisfy mandatory
requirements, iii.) Proportionate to the aim (paragraph 6)

The ECJ recognizes that the protection of the environment is a mandatory

requirement that might limit the application of art 34 TFEU, provided that the
measure is proportionate (paragraphs 9-10).
It is necessary to examine whether the measures are necessary to achieve the
objective of protection of the environment: ii.) Deposit and return system found
necessary to ensure re-use of containers, iii.) Limit to 30 approved containers
necessary because otherwise supermarkets wouldnt participate in the system =
balance of interests, iv.) Limit to 3000 hectoliters found disproportionate to the aim
because, due to the restrictive effect on imports of the reuse system, only limited
quantities of beverages are affected by this provision, an ulterior limitation to the
quantity importable is therefore considered unnecessary. Thus, the restrictive
measure of 3000 hectoliters is breaching art 34 TFEU.

There are four requirements for the application of mandatory requirements: obstacles
to free movement within the union may be necessary in order to satisfy community
law
Absence of common rules (positive harmonization)
Disparities between national laws
No discrimination
Proportionality
- must be judged under European Union law
 Mickelson & Preliminary ruling on the Mickelsson & Roos are sued for using personal watercrafts on waters other than the
Procedural Necessity
Ban on Use
Roos interpretation of 28 EC to 30 general navigable waterways, as set in national regulation; Mickelsson and Roos
Case C- EC and directive 94/25/EC on claim that such regulations breach EU law.
142/05 recreational craft
Answer: if the national regulation limits the possibility of using a product to a degree
to which consumers would decide not to buy that product because the permitted use
is very limited, the national measure is hindering the access of that product in the
domestic market, thus infringing art. 34 TFEU (para 27-28). unless there is a
mandatory requirement or a justification under art 36 TFEU. Either the measure
needs to be proportionate.

Main idea: limited possibility to use a product is equivalent to a MEEQR

 Italian failure to fulfill obligations The Courts analysis: the prohibition on the use of a product in the territory of
Burden of Proof
Any other measure
Scooter a Member State has an influence on the behaviour of consumers, which
Trailers
Case C- affects the access of that product to the market of the Member State, thus
110/05 hindering imports breach of art 34 TFEU
Commission
v Italy Unless there is a justification mentioned in art 36 TFEU, or the need to meet
an imperative requirement.
The Italian justification in this case is road safety, which is recognized by the
ECJ as a mandatory requirement.
However, the measure ne to be proportionate:
Appropriateness: The ban on trailers is found appropriate to achieve the
objective of road safety
Necessity: in the field of road safety Member States have discretion to
decide the level of protection (paragraph 65)
Least burdensome measure: although there are probably less
burdensome measures than a complete ban, Member States need to be
allowed discretion as to how to achieve road safety and cannot be denied the
possibility to do so through simple and easy-to-understand rules (a ban),
which can be easily supervised by the competent authorities (paragraph 67)
= balance of interests

Main idea: MEEQR and discretion of Member States to achieve an

objective
 Raulin preliminary ruling of articles
Worker Student
Restrictions
Case C- 7,48, 128 of the EEC treaty
357/89 and of Reg 1612/68 on
freedom of movement of
workers
Antonissen preliminary ruling on the
workers - unemployment
Free Movement of
Case C- interpretation of the provisions
292/89 of community law governing
the free movement of workers
as regards the scope of the
right of residence of nationals
of MS seeking employment in
another MS
He came to the NL and started working, applied for stufie but was rejected: no
residence permit, therefore he cannot be treated as national.
argument: employment gives her worker status
Answer: 1. The concept of worker:
The concept of worker must not be interpreted restrictively
To be regarded as a worker, a person needs to perform effective and
genuine activities, excluding activities of such small scale as to be
marginal and ancillary
On-call workers fall within the scope of art 45 TFEU
2. Students, rights and residence:
Students from another Member State have right to the same
treatement as nationals in relation to enrollment fees and other costs
of access to the course
A student admitted to a vocational training enjoys right of residence in
the Member State where the training takes place; such right can be
limited to the duration of the study and for the purpose of studying.
Main idea: concept of worker and rights of students
he moved to the UK, got arrested for selling of drugs -> later deported back to
Belgium. He claimed that he has the right to stay. UK: nope, more than 6 months
not worker anymore
Answer: the list of rights in art 45(3) TFEU is non-exhaustive, nationals of a Member
State also have the right to move freely within the Union and stay within the territory
of another Member State with the purpose of seeking employment (paragraph 13).
This right can be subject to temporal limitations: six months, unless the person
provides evidence that he or she is continuing to seek employment and has genuine
chances of being engaged.
Main idea: Time limit to employment seeking in another Member State
 Cristini preliminary ruling on the
Direct Discrimination
Case 32/75 interpretation on Articles on
free movement of workers
OFlynn preliminary ruling on the
Indirect discrimination
do reduction cards issued for workers constitute a social advantage? was refused to
Italian national in france -> only for French people
Answer: a worker who is a national of a Member State may not, in another Member
State, be treated differently from national workers by reason of his nationality =
discrimination
Social and tax advantages are included in the equal treatment even if they are
not attached to the contract of employment
If a worker has acquired the right to remain in a Member State, his/her family
residing with him/her shall be entitled to remain in the Member State after the
his/her death.
Main idea: Direct discrimination
concerning the UK refusal of a funeral payment under the social fund, only of the

Case C- interpretation of freedom of funeral in UK.

237/94 workers in the EU
Answer: all forms of covert discrimination are contrary to the equal treatment rule, as
presented in art 45 TFEU.
A national law must be regarded as indirectly discriminatory if, although it is
applicable irrespective of nationality, it is intrinsically liable to affect migrant workers
more than national workers, and if there is a risk that it will place the former at a
disadvantage (paragraph 20), unless the regulation is objectively justified and
proportional.

Main idea: Indirect discrimination

 Keck & preliminary ruling sale at loss
Product requirements
Mithouard
Case C- Answer: there is an increased tendency of traders to invoke art 34 TFEU to challenge
267/91 and any rule that limits their commercial freedom, therefore the ECJ reviews the
Case C- Dassonville formula
268/91 The application of national provisions to foreign products, or the
prohibition of certain selling arrangements does not hinder trade
between Member States if these provisions apply to all relevant
traders operating in the national territory. (paragraph 16)
A non-discriminatory selling arrangement does not constitute a
measure having equivalent effect to a quantitative restriction, thus
it falls outside the scope of art 34 TFEU.

Main idea: selling arrangements

Familiapres interpretation of Art 30 EC German Newspaper sold magazines on Austria which contained prices for the winners
Press diversity

s of the crossword puzzle which was prohibited under Austrian Law.

Case C-
368/95 can a seller sell something in another MS which is allower in the home state but
prohibited in the other MS?

Issue: Austria banned the offer to consumers of free gifts linked to the sale of a good
or the supply of a service. It was intended to ban prizes for solving quizzes on
newspapers.
Answer: Although the ban is a selling arrangement, it has consequences on the actual
content of a product and producers in other Member States would need to alter their
product in order to enter the Austrian market therefore, the ban constitutes a
measure having equivalent effect.
However, Austria states that such ban aims at the protection of press diversity, which
constitutes an overriding principle; the ECJ recognizes that protection of press
diversity is a mandatory requirement, since it is meant to safeguard freedom of
expression. Therefore, the Austrian measure is justified.

Main idea: Proportionality

 Cassis de Interpretation of Art. 30 and Import of French drink was not allowed because it did not fall within the necessary
Mandatory requirement
Dijon 37 of EEC category(too little alcholo)
Case 120/78
Created the broad and open-ended category of justifications for restrictions of free
movement of goods, calles mandatory requirements:

reason to justify a restriction on free movement (eg. tax evation/consumer

protection/unfair competition) in addition to treaty provisions
- open ended list (MS can add lists and court then reviews them)
- can only be used to justify indistinctly applicable and indirect discriminatory
measures

Answer: the ECJ recognizes that there exist mandatory requirements that can justify
obstacles to free movement resulting from disparities between national laws
(paragraph 8).
However, mandatory requirements are subject to the proportionality test:
1. Mandatory requirement = protection of public health:
o Measure: fixing minimum percentage of alcohol to prevent consumers
from becoming addicted
o Proportionality test: the measure is not appropriate, since consumers
already have access to low percentage alcoholic beverages to which
they could get addicted. (paragraph 11) not proportionate
2. Mandatory requirement: consumer protection
o Measure: fixing minimum percentage of alcohol for heavy drinks so
that when consumers buy a heavy drink they receive the alcohol
percentage they expect.
o Proportionality test: the measure is not necessary, as there are less
burdensome measures, such as labelling. not proportionate

Main idea: mutual recognition and non-appropriate measures

Omega interpretation of Art 49 to 55 Omega operated a laser drome licence, there was opposition and it was shut down
Rights
ntal
Fundame

C-36/02 EC on freedom to provide because it hurt the fundamental right of the germans, human dignity
services + 28-30 on free
movement of goods Germany can prohibit the hall, because it needs to protects its fundamental freedom
 Viking interpretation of article 43 EC finish company moving to another MS to fall under weaker working regulations
provisions
effect treaty
Horizontal direct
Case C-
438/05 question: does the treaty intends to prohbiti trade union action where it is aimed at
preventing an employer from exercising his right at est. for economic reason

58 does not prevent rights being conferred to individual who has an interest in
compliance with the interests thus laid down

66 artcile 43 ec is capable of conferring rights on a private undertaking which may be

relied on against a trade union or an association of trade UNions
Onuekwere interpretation of art 16 (2) & Was refused permanent residency, cause went to jail too many times
CRD
under
residency prelimnary rulings

(3) of CRD
23 need to reside with the family member, must be accompanied
32 imprisonment interrupts stay in other MS

Elchinov Bulgarian National had cancer behind his eye, Bulgarias treatment would have
athurotisation
reimbursement

removed his eye, therefore his doctor advised him to do laster treatment in Berlin,
ask for permission which was to slow, he went anyways, wanted to be reimbursed
(very high costs), However, Bulgaria said it cannot reimburse because the treatment
is not offered in Bulgaria

Court: the Bulgarian legislation is very unclear and provides for other operations on
the eyeball, it is therefore a very open category, therefore the experiences should be
covered

lower court has right to refer to EU law in appeal to a higher court decision
 Dusseldorp Interpretation of art 34, 68, Dusseldorp wanted to export waste to GER, objected by gov, they complained, dutch
Economic nature of measures
90, 130 plus directive on wast provided euqaly good, court ruled against decision

Issue: Dusseldorp wants to export waste (oil filters) to Germany; however, the Dutch
ministry refused to allow this export and stated that the waste should be processed
by a national firm.
Question: whether the Dutch Long-Term Plan for the Disposal of Dangerous Waste,
which includes a prohibition on the export of waste unless the processing abroad is
superior to that of the Netherlands, breaches art.35 TFEU. The Netherlands justify this
restriction as a mandatory requirement for the protection of the environment: if the
Dutch national company doesnt have enough material to process, it will have to use
less environmentally friendly fuel or more expensive environmentally friendly fuel.
(paragraph 43)
Answer: aims of a purely economic nature cannot justify barriers to free movement
(paragraph 44). The Dutch justification of the measure under art 36 (protection of
health and life of humans) is not acceptable, as the waste was not dangerous, thus
such measure would not be proportional.

Main idea: economic interests are not mandatory requirements

 Sydhavens Copenhagens municipality made an exclusive contract with only three undertakings,
exclusive
obstacle to export
which only allowed them in particular to treat building waste out of the municipality
excluding all other firms

court: MS can give exclusive right ti special undertakings on the grounds of

environmental protection to ensure the proper functioning of a general economic
interest, by that excluding other companies, even though ut gives those undertakings
a dominant position if those companies do not abuse their power, by that ensuring
the proper functioning of that specific interest
From the other summary
Issue: the municipality of Copenhagen rejected the request for approval of the firm
Sydhavnens to process construction waste produced in Copenhagen and affirmed
that this operation should be undertaken only by a specific plant or a limited number
of authorized undertakings.
According to Sydhavnens, qualified intermediaries are not allowed to export, which
constitutes a breach of art 35 TFEU.
Answer: In this case, a justification based on art 36 TFEU would be acceptable only if
the waste was dangerous for the life and health of humans, animals or plants;
however, the waste in question is non-hazardous, which rules out also the possibility
for a mandatory requirement of protection of the environment.
On competition: a Member State breaches competition rules only if the undertaking it
provides exclusive rights to is led to abuse its dominant position; it is therefore
necessary to assess whether the exclusive right is necessary for the company to be
able to perform the task.

Main idea: proportionality and competition

 Hartlauer German division of Austrian firm wants to establish and outpatient dental clinic in
Consistent and systematic manner
Austria but is denied the necessary authorization on the ground that it in the
designated areas this field of helath is covered sufficiently
court: generally justifiable on the reason of planning of public health measures
if it is applied in a systematic and consistent manner, However, in this case
this is not the case

clinic in Austria, check if we need that clinic, need to assess the balance if right of
free establishment & austrias right to not overspent itself: How? by the question of
means -> accepted right ti check affordability p. 55

Issue: Austrian legislation requires a health institution to obtain administrative

authorization before being set up in Austria. Such a measure deters or even prevents
undertakings from other Member States from setting up their activity in Austria;
therefore it breaches art 49 TFEU.
Question: is protection of public health an appropriate justification?
Answer: the objective of the measure is to maintain high-quality medical service; the
national legislation would be appropriate only if it genuinely reflected a concern to
attain the objective in a consistent and systematic manner. However, Austrian
legislation is not consistent because it does not apply to new group practices
(meaning they dont have to obtain the authorization) even though their services are
comparable to those of new independent output dental clinics.

Main idea: proportionality and non-appropriateness

lands interpretation of point K of company wanted approval from Sweden for windfarm in Finnland (energy only went
on
Harmonisati
Absence of

Vindkraft second paragraph of art. 2 &
art. 3(3) of dir 2009/28/EC on
promotion of the use of energy
from renewable sources plus
art 34 TFEU
to Sweden frm there), but was rejected cause not in Sweden, alleged infringement if
Art. 34
measure was approved: should be possible for foreign firms to obtain conditions
under fair terms -> fee was the issue