Case C 268/06, Impact

National courts required to apply directly effective provisions of Community law even if not been given express jurisdiction to do so under domestic law.

A 2003 Irish Law on the Protection of Employees transposed Directive 1999/70 into Irish law. In a dispute between a Irish trade union against the government departments which employed them, the referring court asked whether, notwithstanding the absence of any express provision to that effect in the relevant national law, a national court or tribunal which was called upon to decide a case concerning an infringement of the legislation transposing Directive 1999/70 was required by Community law to hold that it also had jurisdiction to hear and determine claims based directly on that directive itself, where such claims related to a period after the deadline for transposing the directive concerned, but before the date of entry into force of the transposing legislation giving it jurisdiction to hear and determine claims based on that legislation.

The Grand Chamber of the Court of Justice first of all reiterated that the freedom to choose the ways and means of ensuring that a directive was implemented did not affect the obligation imposed on all Member States to which the directive was addressed to adopt all the measures necessary to ensure that the directive concerned was fully effective in accordance with the objective which it pursued.

The Member States’ obligation arising from a directive to achieve the result envisaged by Directive 1999/70 and their duty under Art. 10 EC to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation was binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts. It was the responsibility of the national courts in particular to provide the legal protection which individuals derived from the rules of Community law and to ensure that those rules were fully effective. (see, inter alia, Case 14/83, von Colson and Kamann and Case C-432/05 Unibet)

The Court reiterated that the principles of equivalence and effectiveness furthermore required that the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law. (see, of course, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral and subsequent case law).

The Court held that those requirements applied equally to the designation of the courts and tribunals having jurisdiction to hear and determine actions based on Community law. A failure to comply with those requirements at Community level was liable to undermine the principle of effective judicial protection.

The Court found that where individuals intended – as the complainants did in the present case – to rely on the, albeit optional, jurisdiction which the national legislature, when transposing Directive 1999/70, conferred on specialised courts to hear and determine disputes arising from the 2003 Act, the principle of effectiveness required that those individuals should also be able to seek before the same courts the protection of the rights which they could derive directly from the directive itself, if it should emerge from the checks undertook by the referring court that the obligation to divide their action into two separate claims and to bring the claim based directly on the directive before an ordinary court led to procedural complications liable to render excessively difficult the exercise of those rights conferred on the parties by Community law

If the referring court were to find such an infringement of the principle of effectiveness, it would be for that court to interpret the domestic jurisdictional rules in such a way that, wherever possible, they contributed to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under Community law.

The Court furthermore added that the principle that national law must be interpreted in conformity with Community law required national courts to do whatever lay within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question was fully effective and achieving an outcome consistent with the objective pursued by it.

Also, the Court found that in so far as the applicable national law contained a rule that precluded the retrospective application of legislation unless there was a clear and unambiguous indication to the contrary, a national court hearing a claim based on an infringement of a provision of national legislation transposing Directive 1999/70 was required, under Community law, to give that provision retrospective effect to the date by which that directive should have been transposed only if that national legislation included an indication of that nature capable of giving that provision retrospective effect.

Text of judgment

Case C-346/06, Ruffert

National law requiring contract following public tender ensuring compliance with rate of pay in collective agreement infringing Directive 96/71 and Art. 49 EC.

This case concerned the Law of Land Niedersachsen on the award of public contracts (the “Landesvergabegesetz”), which required that following a public tender, the contract awarded should contain a declaration regarding compliance with the collective agreements and, more specifically, with that regarding payment to employees employed on the building site of at least the minimum wage in force at the place where those services were to be performed pursuant to the “Buildings and public works” collective agreement.

The national court essentially asked whether Art. 49 EC precluded an authority of a Member State from adopting a legislative measure requiring the contracting authority to designate as contractors for public works contracts only contractors which, when submitting their tenders, agreed in writing to pay their employees, in return for performance of the services concerned, at least the wage provided for in the collective agreement in force at the place where those services were performed (the so-called “Buildings and public works” collective agreement).

The Court first of all held that it followed from C-60/03 Wolff & Müller and Case C-275/06 Promusicae that compliance with Directive 96/71 should also be examined. The fact that the objective of the Landesvergabegesetz, was not to govern the posting of workers did not have the effect of precluding a situation such as that in the main proceedings from coming within the scope of Directive 96/71.

Reiterating much of its important Laval judgment of last year, the Court held that the level of protection which must be guaranteed to workers posted to the territory of the host Member State was limited, in principle, to that provided for in Art. 3(1)(1) (a) to (g), of Directive 96/71, unless, pursuant to the law or collective agreements in the Member State of origin, those workers already enjoyed more favourable terms and conditions of employment as regards the matters referred to in that provision.

A Member State was therefore not entitled to impose, pursuant to Directive 96/71, on undertakings established in other Member States, by a measure such as that at issue in the main proceedings, a rate of pay such as that provided for by the “Buildings and public works” collective agreement.

That interpretation of Directive 96/71 was confirmed by reading it in the light of Art. 49 EC, since that directive sought in particular to bring about the freedom to provide services, which was one of the fundamental freedoms guaranteed by the Treaty.

This infringement could, according to the Court, not be justified by the objective of ensuring the protection of workers or the by the objective of ensuring protection for independence in the organisation of working life by trade unions.

Text of judgment

Back to blogging

Becoming father for the second time, finishing my phd thesis, buying and moving to a new house. You could say I have had more important things on my mind lately. However, expect to find a lot of ECJ news on this blog again, starting today!

Enlargement of Schengen area

Today Estonia, the Czech Republic, Lithuania, Hungary, Latvia, Malta, Poland, Slovakia and Slovenia become part of the Schengen area. This means that controls at internal land and sea borders between these countries and the current 15 member states are lifted. See this press release or view the press video above.

New features

I have made some changes to the sidebar. Next to some new icons, it now includes:

• a module with the latest news on the European Court of Justice (via google news)
• a module with the latest press releases from the Court (just those on the cases)
• a module with a newsletter subscription service.
  

The latter module has been there for some time now and has proven to be quite successful; I have already received many subscriptions. Unfortunately, I use an automated service for this (FeedBlitz), which, a few weeks after I had signed up, decided to add small advertisements to the newsletters. Please accept my apologies for this.

Case C‑532/03, Commission v Ireland

Commission cannot start Article 226 EC action on the basis of a mere presumption

The Commission claimed the arrangements under which emergency ambulance services were provided by the Dublin City Council by agreement with the Eastern Regional Health Authority without there having been any prior advertising constituted a breach of Articles 43 EC and 49 EC and of the general principles of Community law (notably those of transparency and equality or non-discrimination).

The Commission was of the view that the award should have been advertised in accordance with Directive 92/50.

The Court however held that it was apparent from the form of order sought that the present action did not concern the application of Directive 92/50, but concerned the question whether there was an infringement Articles 43 EC and 49 EC.

The Court held that, without prejudice to the obligation of the Member States, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consisted in particular, pursuant to Article 211 EC, in ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto were applied (see e.g. Case C‑494/01 Commission v Ireland) in an action for failure to fulfil obligations it was incumbent upon the Commission to prove the allegation that the obligation had not been fulfilled.

It was the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption. (see e.g. Case C‑404/00 Commission v Spain [2003], paragraph 26; and Case C‑135/05 Commission v Italy [2007]).

The Court held that the national legislation empowered both the Authority and the Dublin City Council to carry out emergency ambulance services.

Between 1899 and 1960, the Dublin City Council provided emergency ambulance services in its capacity as a health authority. It subsequently acted in its capacity as a local authority and, under the national legislation concerned, provided those services through its permanent fire brigade service.

Consequently, it had not been demonstrated that there had been an award of a public contract, since it was conceivable that DCC provided emergency ambulance services in the exercise of its own powers derived directly from statute.

The mere fact that, as between two public bodies, funding arrangements existed in respect of such services did not imply that the provision of the services concerned constituted an award of a public contract.

Text of Judgment

Case C-77/05, United Kingdom v Council

Court applies legal basis case established in Titanium Dioxide to Schengen acquis.

In this case, the United Kingdom claimed that the Court should annul Council Regulation 2007/2004 of 26 October 2004, which established the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (the Border Agency Regulation).

The United Kingdom principally held that it was denied the right to take part in the adoption of the Regulation, despite having given notice of its wish to do so pursuant to Article 5(1) of the Schengen Protocol and to Article 3(1) of the Protocol on the position of the United Kingdom and Ireland.

It therefore claimed that the Border Agency Regulation should be annulled on the grounds that the exclusion of the United Kingdom from its adoption entailed the infringement of an essential procedural requirement and/or the infringement of the Treaty, within the meaning of Article 230(2) EC.

The UK government also argued that the Council was wrong to classify Regulation 2007/2004 as a measure developing provisions of the Schengen acquis.

The Court examined whether the second subparagraph of Article 5(1) of the Schengen Protocol must be interpreted as applicable only to proposals and initiatives to build upon an area of the Schengen acquis in which the United Kingdom and/or Ireland had been allowed to take part pursuant to Article 4 of that protocol, or whether those two provisions must, on the contrary, as the United Kingdom submitted, be regarded as independent of each other.

The Court found that the second subparagraph of Article 5(1) of the Schengen Proposal must be understood as applicable only to proposals and initiatives to build upon an area of the Schengen acquis which the United Kingdom and/or Ireland have been authorised to take part in pursuant to Article 4 of that protocol.

The Court held that by refusing to allow the United Kingdom the right to take part in the adoption of Regulation 2007/2004, on the ground that that Member State had not first been authorised to take part in the area of cooperation which formed the context of that regulation, the Council did not misinterpret and misapply this provision of the Schengen Protocol.

The Court furthermore held that in a situation such as that at issue in the present case the classification of a Community act as a proposal or initiative to build upon the Schengen acquis within the meaning of the first subparagraph of Article 5(1) of the Schengen Protocol must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the act (see, by analogy, Case C‑300/89 Commission v Council (‘Titanium dioxide’), paragraph 10; Case C‑176/03, Commission v Council, paragraph 45; and Case C‑440/05, Commission v Council, paragraph 61).

As to the purpose of Regulation 2007/2004, the Court held that it was intended to improve the integrated management of external borders and to facilitate and render more effective the application of the common rules on standards and procedures for the control of those borders.

Furthermore, as to the content of Regulation 2007/2004, the Agency set up by that regulation has the task in particular of coordinating operational cooperation between Member States in the field of management of external borders, assisting Member States in the training of national border guards, and providing Member States, where circumstances required, with increased technical and operational assistance at external borders

The Court therefore concluded that checks on persons at the external borders of the Member States and consequently the effective implementation of the common rules on standards and procedures for those checks must be regarded as constituting elements of the Schengen acquis.

Therefore, the Council was right to classify Regulation 2007/2004 as a measure developing the provisions of the Schengen acquis.

Text of Judgment
See also the judgment in the related case C-137/05, United Kingdom v Council

Lisbon Treaty and other news

Lisbon Treaty
Europe's leaders this morning signed the Lisbon Treaty, as it is now called. Except for Prime Minister Brown, who was delayed and apparently attended a special "one-nation ceremony" at 2pm to put his name under the Treaty as well. The final text is available here. The Commission has welcomed the signature of the Treaty.

Charter of Fundamental Rights
Seven years after it was first signed and proclaimed, the Presidents of the European Parliament, the Council and the Commission met in Strasbourg yesterday to again “solemny proclaim” and sign the Charter (see this press release). They signed the version of the Charter as was incorporated in the Constitution. Or, to be more precise, the Reform Treaty will modify the Charter to resemble the version of the Charter that was integrated in the Constitutional Treaty. See this link.

New Judge at the ECJ
Mr Jean-Jacques Kasel has been appointed as new Judge of the ECJ following the resignation of Mr Romain Schintgen. See this decision (pdf).

Joined Cases T 3/00 AND T 337/04, Pitsiorlas v Council and ECB

Community not liable for PhD candidate not finishing his thesis in time

This was a lengthy case. In short, the Court held that the refusal of the ECB to grant a Greek Phd candidate access to (documents concerning the) Basle/Nyborg Agreement infringed the duty to state reasons.

The Court held that the obligation to give reasons meant that the ECB should have responded to that request for access by stating the reasons why the arguments put forward by the applicant were not such as to enable the ECB to go back on its initial position that the documents at issue were confidential.

The Court found that in the decision of the ECB, the Governing Council did not gave any reason capable of refuting the applicant’s arguments

However, the most remarkable part of this case was the last part, concerning the non-contractual liability of the Community. The applicant argued that the refusal of the Council and ECB to grant him access had disrupted his timetable for writing his thesis.

The applicant submitted that this was still preventing him – three years and four months after the expiry of the deadline set for handing in his thesis (March 31, 2001) – from finishing it and submitting it to the Thessaloniki Faculty of Law.

He argued that had suffered material damage in the form of loss of revenue which he would have received by reasonably and appropriately using the doctorate which he would have obtained, in this case by securing a legal position within an international institution or body such as the ECB or the IMF.

The applicant claimed, second, that the delay of approximately three and a half years in finishing his thesis caused him “very serious non‑material damage consisting in:

– a significant prolongation of his anxieties concerning the completion of his thesis;

– the delay to his career and financial advancement;

– the impossibility of applying for job opportunities in Greece and, in particular, abroad, for which a doctorate was necessary;

– the postponement of a career in an academic environment which required a doctorate, the resulting uncertainty and the worsening of his situation, in view also of his age;

– the need to update his thesis repeatedly as a result of constant developments in the EMU and the resulting loss of time and fatigue;

– the psychological pressure suffered to this day concerning the completion of his thesis, the negative and ironic comments made about him and which continued to be made, and the obligation to have to give an explanation every time he was asked when his thesis would be completed;

– the loss of time and energy brought about by the proceedings before the Court of First Instance and the Court of Justice;

– the psychological strain caused by the length of the proceedings, the outcome of which was fundamental for his future.”

He argued that, in those circumstances, he should be awarded the sum of EUR 90 000 by way of compensation for the non‑material damage which he had suffered.

The Court of First Instance simply summed up the well known criteria for non-contractual liability (the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of).

The Court held that it was apparent from the applicant’s written submissions that the alleged loss of opportunity and potential earnings were themselves the consequence of an initial event, namely the failure to complete the thesis before the submission date and the subsequent failure to qualify for a doctorate in law.

That initial event could not be considered to be the direct cause of the alleged loss of opportunity or loss of potential earnings, in so far as the applicant did not establish that possession of a doctorate was a necessary precondition for obtaining a position with one of the bodies to which he referred.

Nor did the failure to complete and submitted the thesis before the deadline of March 31, 2001 appeared to be the direct consequence of the contested decisions refusing access.

Moreover, if loss of opportunity was capable of constituting reparable damage that damage must none the less be actual and certain if compensation was to be possible.

The Court held that the applicant had not established that the opportunity of which he was deprived, namely of gaining a position within the ECB or another body and of benefiting from the related financial advantages, was actual and certain in the sense that he would otherwise had had every chance of obtaining such a position, or at least a serious chance of doing so.

The Court concluded that the conditions which must be met in order for extra‑contractual liability to be incurred, concerning the existence of actual and certain damage and a direct causal link between that damage and the allegedly unlawful conduct of the defendants, were not in fact met and that the action for damages brought by the applicant must therefore be dismissed.

Text of Judgment

For more information on the Basle/Nyborg Agreement, see this document (in pdf).

C-393/05, Commission v. Austria

This judgment is largely similar to that in C-404/05, Commission v. Germany, also delivered November 29, 2007. These cases had a shared Opinion of Advocate General Sharpston.

Case C-393/05 concerned an Austrian requirement that every private inspection body in the field of organic production of agricultural products having a registered office in and approved in another Member State that it must also maintain a registered office or place of business in Austria in order to be allowed to carry out business activities in Austria (the German case involved a similar requirement).

The Commission sought a declaration from the Court of Justice that this requirement was contrary to Art. 49 EC.

Austria inter alia alleged that the exercise of official authority, within the meaning of Art. 55 EC, justified a restriction on the freedom to provide services.

The Court reiterated that all measures which prohibited, impeded or rendered less attractive the exercise of the freedom to provide services must be regarded as restrictions of that freedom (see C-452/04, Fidium Finanz).

It found that the Austrian requirement ran directly contrary to the freedom to provide services, since it rendered impossible, in Austria, the provision of the services in question by private bodies established only in other Member States (see C-355/98, Commission v Belgium).

The Court furthermore held that, since it provided for a derogation from the fundamental rule of freedom to provide services, Art. 55 EC, read in conjunction with Art. 45(1) EC, must be interpreted in a manner which limited its scope to what was strictly necessary to safeguard the interests which it allowed the Member States to protect.

Derogation under those Articles must be restricted to activities which, in themselves, were directly and specifically connected with the exercise of official authority which excluded from being regarded as connected with the exercise of official authority, within the meaning of that derogation, functions that were merely auxiliary and preparatory vis-à-vis an entity which effectively exercised official authority by taking the final decision. (see e.g. C-451/03, Servizi Ausiliari Dottori Commercialisti and C-42/92, Thijssen).

The auxiliary and preparatory role devolved on the private bodies could not be regarded as being directly and specifically connected with the exercise of official authority, within the meaning of Art. 55 EC, read in conjunction with Art. 45(1) EC.

Text of Judgment