C-195/08 PPU, Rinau

Today was the hearing of the first case using the new urgent preliminary ruling procedure in the area of FSJ. The case was lodged only five weeks ago.

Today, the first case (C-195/08 PPU) was heard in which the new urgent preliminary ruling procedure in the area of freedom, security and justice is being used (hence the suffix). This procedure was introduced by Council Decision 2008/79 (pdf) of December 20, 2007, which, as is well known, ended a long discussion on whether such procedure should be introduced.

The Brussels European Council of 4-5 November 2004 decided that “thought should be given to creating a solution for the speedy and appropriate handling of requests for preliminary rulings concerning the area of freedom, security and justice, where appropriate, by amending the Statutes of the Court”. This finally resulted in amendments to the Rules of Procedure (pdf) of the Court of Justice, inter alia introducing a new Article 104b (see this link (pdf) for the text of the amendments). The new urgent procedure is applicable as from March 1, 2008 (see this press release of the Court of Justice (pdf)).

Of course, as is well known, Article 104a already provides for an urgent preliminary ruling procedure, but as Lenaerts has pointed out last December in the Common Market Law Review: “ this accelerated procedure has been considered inadequate for the present purposes because, among other things, it has not been found to cut down sufficiently the duration of the proceedings and its acceleration is achieved at the expense of all the other cases pending before the Court, thereby explaining why it has been used by the Court only on a very exceptional basis” (link, pp 1654-1656 (access kluwerlawonline required, pdf)).

The lenght of the preliminary ruling procedure is of course a returning point of criticism and concern. The Lisbon Treaty will add to Article 234 EC that when a preliminary question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act "with the minimum of delay". (new Art. 267(4) TFEU)

ECJBlog on mobile phone

Having received a number of requests of readers asking for a mobile version of this weblog, I just created: http://ecjblog.mofuse.mobi/. If you are using an iPhone, go to http://ecjblog.mofuse.mobi/iphone

Case C-458/06, Gourmet Classic

>> Court has jurisdiction in Art. 234 cases even if all parties agree on interpretation of Community law provision.

The Gourmet Classic case, which was delivered this morning, prima facie seemed just an ordinary Art. 234 EC case. The Regeringsrätten (The Swedish Supreme Administrative Court) asked the Court whether the alcohol in cooking wine must be regarded as ethyl alcohol within the meaning of Art. 20 of Directive 92/83. However, as AG Bot pointed out in his Opinion to this case: “a particular feature of this case is that in the main proceedings all parties agree that the alcohol contained in cooking wine must be regarded as ethyl alcohol within the meaning of that provision.”

The Court of Justice therefore was faced with the question whether a dispute actually existed and hence had jurisdiction to give a ruling on the question referred.

The AG found that the Court lacked jurisdiction to give a ruling in this case, arguing that “to accept that the Court has jurisdiction in a case such as that before me is to distort the objective pursued by Art. 234 EC and disregard the conditions for bringing an action before the Court under that Article to the effect that there must be of a dispute and that the question referred for a preliminary ruling must be justified by the need to resolve a genuine controversy.”

Nevertheless, the Court found that it did have jurisdiction. It held that Article 234 EC aimed to avoid divergences in the interpretation of Community law which the national courts had to apply and aimed to ensure that, in all circumstances, that law had the same effect in all Member States (see Case 166/73 Rheinmühlen-Düsseldorf [1974]
). The Court reiterated that the procedure provided for in Art. 234 EC was an instrument of cooperation between the Court of Justice and the national courts. In the context of that cooperation, it was for the national court or tribunal, which alone had direct knowledge of the facts of the main proceedings and which must assume responsibility for the subsequent judicial decision, to assess, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submitted to the Court. Where questions submitted by national courts concerned the interpretation of a provision of Community law, the Court of Justice was, in principle, obliged to give a ruling (see inter alia Joined cases C-297/88 and C-197/89 Dzodzi [1990], Case C-83/91 Meilicke [1992] and Case C-412/93 Leclerc-Siplec [1995]).

The Court admitted that while “the spirit of cooperation” which must prevail in the exercise of the functions assigned by Art. 234 EC to the national courts, on the one hand, and the Community judicature, on the other, required the Court of Justice to have regard to the particular responsibilities of the national court, it implied at the same time that the national court, in the use which it made of the possibilities offered by that Article, must have regard to the particular function entrusted to the Court of Justice in this field, which was to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions.



The Court pointed out that the purpose of the procedure before the Regeringsrätten was to review the legality of an opinion which, once it became definitive, bound the tax authorities and served as the basis for the assessment to tax if and to the extent to which the person who applied for the opinion continued with the action envisaged in his application. In those circumstances, the Regeringsrätten must be held to be carrying out a judicial function. The fact that all parties confirmed the preliminary opinion of the Skatterättsnämnden did not affect the judicial nature of the main proceedings.

The Court of Justice argued that Regeringsrätten asked the Court of Justice a question concerning the interpretation of a provision of Community law, namely the first indent of Art. 20 of Directive 92/83, and it considered that a preliminary ruling on that point was necessary in order to review the legality of the preliminary opinion of the Skatterättsnämnden. The Court was therefore not being asked to deliver an advisory opinion on a hypothetical question.

Moreover, since there was no judicial remedy under national law against the decisions of the Regeringsrätten, that court was obliged, under Art. 234(3) EC, to bring the matter before the Court of Justice. Consequently, it was only by referring a question to the Court for a preliminary ruling that the objective pursued by that provision could be attained, that was to ensure the proper application and uniform interpretation of Community law in all the Member States and to prevent a body of national case-law that was not in accordance with the rules of Community law from coming into existence in the Member State concerned.

The Court thus found that it had jurisdiction to reply to the question posed by the Regeringsrätten. In short, it concluded that the alcohol contained in cooking wine was, if it had an alcoholic strength exceeding 1.2% by volume, to be classified as ethyl alcohol as referred to in the first indent of Art. 20 of Council Directive 92/83.

Text of Judgment

Preliminary references

Already some time ago, Rene Barents, who has been Head of Research and Documentation for the ECJ since 2000, sent me this document (table of contents, both pdf)) on preliminary references under Art. 234 EC. An interesting read, highly recommended. Apologies to all ECJBlog readers for not posting it any sooner.

Case C-308/06, Intertanko

>> Not possible to rely on Marpol 73/78 or UNCLOS

The European Community acceded to the United Nations Convention on the Law of the Sea (“UNCLOS”) in 1998. The Community has not (yet) acceded to the Marpol 73/78 agreement which established rules to combat pollution of the marine environment. The Community has, however, adopted Directive 2005/35 on ship-source pollution and on the introduction of penalties for infringements. The claimants in this case, a group of organisations within the maritime shipping industry representing substantial proportions of that industry, argued that Articles 4 and 5 of this Directive, which laid down criminal liability for discharge violations, were incompatible with UNCLOS and Marpol 73/78. They argued in particular that by laying down that liability was to be incurred for serious negligence, since, under the directive, serious negligence was sufficient, whereas Marpol 73/78 provided for at least recklessness and knowledge that damage would probably result. Claimants also argued that the standard of liability of serious negligence was incompatible with the principle of legal certainty.

The Court of Justice disagreed. It pointed out that Art. 300(7) EC stated that agreements concluded by the Community had primacy over secondary Community legislation. (see Case C-61/94 Commission v Germany [1996] and Case C-311/04 Algemene Scheeps Agentuur Dordrecht [2006]).

It followed that where the invalidity of secondary Community legislation was pleaded before a national court, the Court of Justice reviewed, pursuant to Art. 234 EC, the validity of the Community measure concerned in the light of all the rules of international law, subject to two conditions. First, the Community must be bound by those rules. Second, the Court could examine the validity of Community legislation in the light of an international treaty only where the nature and the broad logic of the latter did not preclude this and, in addition, the treaty’s provisions appeared, as regards their content, to be unconditional and sufficiently precise.

The Community had not assumed, under the EC Treaty, the powers previously exercised by the Member States in the field to which Marpol 73/78 applied, nor that, consequently, its provisions had the effect of binding the Community. Although all the Member States of the Community were parties to Marpol 73/78, in the absence of a full transfer of the powers previously exercised by the Member States to the Community, the latter could not, simply because all those States were parties to Marpol 73/78, be bound by the rules set out therein, which it had not itself approved.

The Court argued that the fact that all Member States were parties to Marpol 73/78 was, however, liable to have consequences for the interpretation of, first, UNCLOS and, second, the provisions of secondary law which fell within the field of application of Marpol 73/78. However, UNCLOS did not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag State. The Court argued that the nature and the broad logic of UNCLOS prevented the Court from being able to assess the validity of a Community measure in the light of that Convention. Consequently, the validity of Directive 2005/35 could not be assessed either in the light of Marpol 73/78 or in the light of UNCLOS.

Reiterating its judgment in Advocaten voor de Wereld (see this post), the Court furthermore held that in obliging the Member States to regard certain conduct as infringements and to punish it, Art. 4 of Directive 2005/35, read in conjunction with Art. 8 thereof, must also observe the principle of the legality of criminal offences and penalties (nullum crimen, nulla poena sine lege), which was one of the general legal principles underlying the constitutional traditions common to the Member States and was a specific expression of the general principle of legal certainty.

The Court held that the principle of the legality of criminal offences and penalties implied that Community rules must define clearly offences and the penalties which they attracted. This requirement was satisfied where the individual could know from the wording of the relevant provision and, if needed be, with the assistance of the courts’ interpretation of it, what acts and omissions would make him criminally liable.

The Court concluded that Art. 4 of Directive 2005/35, read in conjunction with Art. 8 thereof, did not infringe the general principle of legal certainty in so far as it required the Member States to punish ship-source discharges of polluting substances committed by “serious negligence’, without defining that concept. Examination had revealed nothing capable of affecting the validity of Art. 4 of Directive 2005/35 in the light of the general principle of legal certainty.

Text of judgment

See Intertanko's website for an official statement on the ruling.

Case C-499/06, Nerkowska

>> Residence requirement for disability pension granted to civilian victims of war or repression infringing Art. 18 EC

Ms Nerkowska , who had Polish nationality, was born on in 1946 in the territory of present-day Belarus. In 1951, Ms Nerkowska was deported to the former USSR. She lived there under difficult conditions until January 1957, when she returned to Poland. In 1985, she left Poland and settled permanently in Germany. In October 2000, Ms Nerkowska submitted an application to obtain a disability pension for the damage her health had suffered while she was a deportee. The competent authority decided that she was entitled to a pension as a result of partial incapacity for work linked to her stay in places of isolation, but payment of this benefit was suspended on the ground that she did not reside in Polish territory. After the accession of Poland, Ms Nerkowska submitted a fresh application for payment. The competent authority refused to pay, on the ground that she did not have a place of residence in the territory of Poland. Ms Nerkowska appealed. The national court asked whether Art. 18(1) EC was to be interpreted as precluding legislation of a Member State under which it refused to pay one of its nationals a benefit granted to civilian victims of war or repression although it had been acknowledged by a decision of the competent authority that that national was entitled to such a benefit, on the sole ground that the national was habitually resident in the territory of another Member State and not in that of the Member State in question.

Reiterating its Tas-Hagen and Tas judgment of two years ago, the Court held that under Art. 17(1) EC, every person holding the nationality of a Member State was a citizen of the Union. In addition, Art. 17(2) EC attributed to citizens of the Union the rights conferred and duties imposed by the EC Treaty, including those mentioned in Art. 18(1) EC. As a Polish national, Ms Nerkowska enjoyed the status of citizen of the Union established by Art. 17(1) EC and might therefore rely where relevant on the rights conferred on those having that status, such as the rights to move freely and to reside freely laid down in Art. 18(1) EC. As Community law now stood, a benefit which was intended to compensate civilian victims of war or repression for physical or mental harm which they had suffered, fell within the competence of the Member States. However, Member States must exercise that competence in accordance with Community law, in particular with the Treaty provisions concerning the freedom accorded to every citizen of the Union to move and reside freely within the territory of the Member States. (Case C-192/05 Tas-Hagen et Tas [2006]).

The Court furthermore held that Citizenship of the Union was not intended to extend the scope ratione materiae of the Treaty to internal situations which had no link with Community law. However, situations which fell within the scope ratione materiae of Community law included those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the freedom, as conferred by Art. 18 EC, to move and reside within the territory of the Member States. (See Joined Cases C-64/96 and C‑65/96 Uecker and Jacquet [1997] and Case C-148/02 Garcia Avello [2003]).

The Court held that a situation in which the exercise by Ms Nerkowska of a freedom accorded by Community law had an impact on her right to the payment of a benefit under national legislation could not be considered to be a purely internal matter with no link to Community law. It furthermore argued that national legislation which placed certain of the nationals of the Member State concerned at a disadvantage simply because they had exercised their freedom to move and to reside in another Member State was a restriction on the freedoms conferred by Art. 18(1) EC on every citizen of the Union.

Such restriction could be justified, under Community law, only if it was based on objective considerations of public interest independent of the nationality of the persons concerned and was proportionate to the legitimate objective of the national provisions. Although both the wish to ensure that there was a connection between the society of the Member State concerned and the recipient of a benefit and the necessity to verify that the recipient continued to satisfy the conditions for the grant of that benefit constituted objective considerations of public interest which were capable of justifying the fact that the conditions for the grant or payment of the benefit might affect the freedom of movement of the citizens of that Member State.

Nevertheles, while the restriction found was capable of being justified by objective considerations of public interest, that restriction must also not be disproportionate in the light of the objective pursued. A residence condition such as that at issue in the main proceedings went beyond what was necessary to achieve the objective of verifying that the recipient of a benefit continued to satisfy the conditions for grant of the benefit and, therefore, it failed to comply with the principle of proportionality. The requirement of residence throughout the period of payment of the benefit concerned went beyond what was necessary to ensure that such a connection existed.

Text of judgment

Voting for US president as EU citizen

If you are a EU citizen who wants to vote for the next President of the United States, you might want to check out this site. A French version is also available.

Case C-91/05, Commission v Council

>> Council infringing Art. 47 EU by adopting Decision 2004/833 on basis of Title V of the EU Treaty

The Commission of the European Communities asked the Court to annul Decision 2004/833 implementing Joint Action 2002/589 with a view to a European Union contribution to ECOWAS in the framework of the Moratorium on Small Arms and Light Weapons and to declare inapplicable, because of its illegality, Title II of Joint Action 2002/589 on the European Union’s contribution to combating the destabilising accumulation and spread of small arms and light weapons and repealing Action 1999/34.

The Grand Chamber of the Court of Justice held that it followed from Art. 46(f) EU that the provisions of the EC Treaty concerning the powers of the Court and the exercise of those powers were applicable to Art. 47 EU. Under Art. 47 EU, none of the provisions of the EC Treaty was to be affected by a provision of the Treaty on European Union. The Court held that it had jurisdiction to consider the action for annulment brought by the Commission under Art. 230 EC and, in that context, to consider the pleas invoked in accordance with Art. 241 EC in so far as they alleged an infringement of Art. 47 EU.

The Court held that a measure having legal effects adopted under Title V of the EU Treaty affected the provisions of the EC Treaty within the meaning of Art. 47 EU whenever it could have been adopted on the basis of the EC Treaty, it being unnecessary to examine whether the measure prevented or limited the exercise by the Community of its competences. The Court reiterated that if it was established that the provisions of a measure adopted under Titles V or VI of the EU Treaty, on account of both their aim and their content, had as their main purpose the implementation of a policy conferred by the EC Treaty on the Community, and if they could properly have been adopted on the basis of the EC Treaty, those provisions infringed Art. 47 EU. (see Case C-176/03 Commission v Council [2005] and Case C-440/05 Commission v Council [2007]).

If examination of a measure revealed that it pursued a twofold aim or that it had a twofold component and if one of those was identifiable as the main one, whereas the other was merely incidental, the measure must be based on a single legal basis, namely that required by the main aim or component. With regard to a measure which simultaneously pursued a number of objectives or which had several components, without one being incidental to the other, such a measure would have to be founded, exceptionally, on the various corresponding legal bases. However, under Art. 47 EU, such a solution was impossible with regard to a measure which pursued a number of objectives or which had several components falling, respectively, within development cooperation policy and within the CFSP, and where neither one of those components was incidental to the other. Taking account of its aim and its content, the contested decision contained two components, neither of which could be considered to be incidental to the other, one falling within Community development cooperation policy and the other within the CFSP.

The Council therefore had infringed Art. 47 EU by adopting the contested decision on the basis of Title V of the EU Treaty, even though it also fell within development cooperation policy. The contested decision must therefore be annulled. As the decision must be annulled because of its own defects, the Court held that it was not necessary to examine the plea as to the alleged illegality of the contested joint action.

Text of Judgment

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