EU Administrative Law (Collected Courses of the Academy of European Law) [3 ed.] 0198831641, 9780198831648

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E U A DM I N I ST R AT I V E L AW

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THE COLLECTED COURSES OF THE ACADEMY OF EUROPEAN L AW

Edited by Professor Nehal Bhuta, Professor Claire Kilpatrick, and Professor Joanne Scott Assistant Editor: Anny Bremner Each year the Academy of European Law in Florence, Italy, invites a group of outstanding lecturers to teach at its summer courses on Human Rights law and the European Union. A ‘general course’ is given in each of the two fields by a distinguished scholar or practitioner, who examines the field as a whole through a particular thematic, conceptual, or philosophical lens, or looks at a theme in the context of the overall body of law. In addition, a series of ‘specialized courses’ brings together a group of highly qualified scholars to explore and analyse a specific theme in relation to Human Rights law and EU law. The Academy’s mission, to produce scholarly analyses which are at the cutting edge of the two fields, is achieved through publication of this series, the Collected Courses of the Academy of European Law.

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EU ADMINISTRATIVE LAW Third Edition

PAUL CR A IG St John’s College, Oxford

1

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1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Paul Craig 2018 The moral rights of the author have been asserted First Edition published in 2006 Second Edition published in 2012 Third Edition published in 2018 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2018943465 ISBN 978–0–19–883164–8 (hbk.) ISBN 978–0–19–883165–5 (pbk.) Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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This book is for Anita and Ciaran

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PREFACE It has been six years since the second edition of this book, and the same period between the first and second editions. This has not been by design as such, but more by circumstance. There is, however, no doubt that a new edition of this book is warranted, given the six years that has passed since the previous edition. The intervening period has been difficult for the EU, beset as it has been with the financial crisis, the rule of law crisis, the migration crisis and Brexit. These are important substantive topics on which there is a wealth of literature. Detailed consideration of such topics would, however, venture far beyond the remit of this book, the focus of which is EU Administrative law. My strategy has therefore been to integrate material on such issues, where relevant, into the existing chapters of the book. There have been significant developments in the case law and EU legislation that is directly relevant to the subject matter of this book. So too, in relation to the secondary literature since publication of the second edition in 2012. The body of academic scholarship has grown considerably, and attests to the vibrancy and importance of this intellectual field. The developments in relation to both primary law and scholarly literature have been fully integrated into the existing chapters of the book. The structure of the book was modified as between the first and second editions, but no such change was warranted on this occasion. The divide between the two parts of the book, which has been present from the outset, has been preserved in this edition. Thus, the first part deals with ‘Administration and Law’, the focus being on the different ways in which EU policy is administered, and the role of law and politics therein. The second part is concerned with ‘Law and Administration’, in which the precepts of judicial review are explicated, and set within the broader frame of the workings of the EU. The object is to provide the reader with a clear and informed view of all dimensions of EU Administrative law. Paul Craig April 2018

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CONTENTS Table of Cases Tables of Legislation, Treaties, and Conventions Abbreviations

xi lxxix xciii

PA RT I   A DM I N I ST R AT ION A N D L AW 1 HISTORY AND T YPOLO GY

3

2 CRISIS, REFORM, AND C ONSTITU TIONALIZ ATION

36

3 CENTR ALIZED MANAGEMENT

56

4 SHARED MANAGEMENT

80

5 C OMITOLO GY

111

6 AGENCIES

151

7 OPEN METHOD OF C O ORDINATION

199

8 SO CIAL PARTNERS

238

PA RT I I   L AW A N D A DM I N I ST R AT ION 9 FOUNDATIONS

263

1 0 C OURT S

280

1 1 AC CESS

311

1 2 PRO CESS

348

1 3 TR ANSPARENCY

388

1 4 C OMPETENCE AND SUBSIDIARIT Y

401

1 5 L AW, FACT, AND DISCRETION

436

1 6 RIGHT S

484

1 7 EQUALIT Y

545

1 8 LEGAL CERTAINT Y AND LEGITIMATE EXPECTATIONS

600

1 9 PROPORTIONALIT Y I: EU

642

2 0 PROPORTIONALIT Y II: MEMBER STATES

669

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CONTENTS

2 1 PRECAU TIONARY PRINCIPLE

694

2 2 REMEDIES I: EU

722

2 3 REMEDIES II: MEMBER STATES

758

2 4 THE OMBUDSMAN

795

Index

821

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TABLE OF CASES ALPHABETICAL Aalborg Portland v Commission (C-204–205, 211, 213, 217, 219/00 P) [2004] ECR I-123 . . . 353, 356, 357, 359, 361, 384, 667 Aannemersbedrijf P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (C-72/95) [1996] ECR I-5403 . . . 772 ABB Asea Brown Boveri Ltd v Commission (T-31/99) [2002] ECR II-1881 . . . 364, 626 Abertal and others v Commission (C-213/91 R) [1991] ECR I-5109 . . . 724 Abrahamsson v Fogelqvist (C-407/98) [2000] ECR I-5539 . . . 592 Abrias v Commission (3/83) [1985] ECR 1995 . . . 623 Acciaieriere Ferriere e Fonerie di Modena v High Authority (16/61) [1962] ECR 289 . . . 579 Accorinti v European Central Bank (T­79/13) EU:T:2015:756 . . . 625, 742, 752 Acegas-APS SpA v Commission (T-309/02) [2009] ECR II-1809 . . . 338 Acino AG v European Commission (C-269/13 P) EU:C:2014:255 . . . 699 Adams v Commission (145/83) [1985] ECR 3539 . . . 747 Aden v Council and Commission (T-306/01 R) [2002] ECR II-2387 . . . 723 Administration des douanes v Société anonyme Gondrand Frères and Société anonyme Garancini (169/80) [1981] ECR 1931 . . . 601 Adoui and Cornuaille v Belgian State (115 & 116/81) [1982] ECR 1665 . . . 685 Aer Lingus Ltd v European Commission (T-473/12) EU:T:2015:78 . . . 466 Aerpo and others v Commission (C-119/88) [1990] ECR I-2189 . . . 739, 740 AFCon Management Consultants v Commission (T-160/03) [2005] ECR II-981 . . . 749 Affish BV v Rijksdienst voor de keuring van Vee en Vlees (C-183/95) [1997] ECR I-4315 . . . 629, 638, 647, 655 Afrikanische Frucht-Compagnie GmbH and another v Commission (T-64–65/01) [2004] ECR II-521 . . . 625, 740, 752 Afton Chemical Ltd v Secretary of State for Transport (C-343/09) EU:C:2010:419 . . . 456, 699

AGC Glass Europe v European Commission (C­517/15 P) EU:C:2017:59 . . . 631, 723 AGET Iraklis v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis (C-201/15) EU:C:2016:972 . . . 674, 689 AGM-COS.MET Srl v Suomen valtio and Tarmo Lehtinen (C-470/03) [2007] ECR I-2749 . . . 789 Agrana Zucker und Stark AG v Commission (T-187/99) [2001] ECR II-1587 . . . 364, 370 Agrargenossenschaf Neuzelle eG v Landrat des Landkreises Oder-Spree (C­545/11) EU:C:2013:169 . . . 619 Agrar-Invest-Tatschl GmbH v Commission (T-51/07) [2008] ECR II-2825 . . . 731 Agrarproduktion Staebelow GmbH v Landrat des Landkreises Bad Doberan (C-504/04) [2006] ECR I-679 . . . 647, 648, 698 Agraz, SA and Others v Commission (C-243/05 P) [2006] ECR I-10833 . . . 748 Agroferm A/S v Ministeriet for Fødevarer, Landbrug og Fiskeri (C­568/11) EU:C:2013:40 . . . 640 Ahlström Osakeyhitiö v Commission (C-89, 104, 114, 116, 117, 125–9/85) [1993] ECR I-1307 . . . 474 Ainārs Rēdlihs v Valsts ieņēmumu dienests (C-263/11) EU:C:2012:497 . . . 682 Air France v Commission (T-2/93) [1994] ECR II-323 . . . 639 Air Inter SA v Commission (T-260/94) [1997] ECR II-997 . . . 313, 314, 350, 525 Airey v Ireland (1979–80) 2 EHRR 305 . . . 513 Airtours plc v Commission (T-342/99) [2002] ECR II-2585 . . . 456, 470, 473 AIUFFASS v Commission (T-380/94) [1996] ECR II-2169 . . . 318 AJD Tuna Ltd v Direttur tal-Agrikoltura u s-Sajd and Avukat Generali (C-221/09) [2011] ECR I-1655 . . . 317 Aker Warnow Werft GmbH and Kvaerner ASA v Commission (T-68/05) [2009] ECR II-355 . . . 466 Åklagaren v Hans Åkerberg Fransson (C-617/10) EU:2013:C:105 . . . 495, 503–6, 530 Aktien-Zuckerfabrik Schöppenstedt v Council (5/71) [1971] ECR 975 . . . 737–9

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Akzo Nobel NV v Commission (T-112/05) [2007] ECR II-5049 . . . 733 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie (C-67/96) [1999] ECR I-5751 . . . 260, 582 Albert Heijin BV (94/83) [1984] ECR 3263 . . . 671 Alferink v Commission (T-94/98) [2008] ECR II-1125 . . . 601, 742 Alfons Lütticke GmbH v Commission (4/69) [1971] ECR 325 . . . 747 Algera v Common Assembly (7/56 & 3–7/57) [1957] ECR 39 . . . 608, 610, 614, 617 Alitalia-Linee aeree italiane SpA v Commission (T-301/01) [2008] ECR II-1753 . . . 732 Al-Jubail Fertilizer v Council (C-49/88) [1991] ECR I-3187 . . . 149, 313, 350, 525 Alliance One International, Inc v Commission (T-24/05) EU:T:2010:453 . . . 370 Allonby v Accrington & Rossendale College, Education Lecturing Services, Trading as Protocol Professional and Secretary of State for Education and Employment (C-256/01) [2004] ECR I-873 . . . 678 Allué and Coonan v Università degli Studi di Venezia (33/88) [1989] ECR 1591 . . . 555 Alonso-Pérez v Bundesanstalt für Arbeit (C-394/93) [1995] ECR I-4101 . . . 768 Aloys Schröder v Commission (T-390/94) [1997] ECR II-501 . . . 744 Alpha Steel v Commission (14/81) [1982] ECR 749 . . . 609, 617 Alpharma Inc v Council (T-70/99) [2002] ECR II-3495 . . . 149, 317, 444, 452, 620, 623, 648, 699 Alpine Investments BV v Minister van Financien (C-384/93) [1995] ECR I-1141 . . . 686 Alrosa Company Ltd v Commission (T-170/06) [2007] ECR II-2601 . . . 647 Amann & Söhne GmbH & Co KG and Cousin Filterie SAS v Commission (T-446/05) EU:T:2010:16 . . . 460 Ambulanz Glockner v Landkreis Sudwestpfalz (C-475/99) [2001] ECR I-8089 . . . 582 Amministrazione delle Finanze dello Stato v San Giorgio (199/82) [1983] ECR 3595 . . . 760, 777 Amministrazione delle Finanze dello Stato v Simmenthal SpA (106/77) [1978] ECR 629 . . . 282, 760 Amministrazione delle Finanze dello Stato v Srl Meridionale Industria Salumi (212–217/80) [1981] ECR 2735 . . . 603 Ampafrance SA v Directeur des Services Fiscaux de Maine-et-Loire (C-177 & 181/99) [2000] ECR I-7013 . . . 653

Amylum NV and Tunnel Refineries Ltd v Council and Commission (116 and 124/77) [1979] ECR 3497 . . . 741, 747 Analir v Administracion General del Estado (C-205/99) [2001] ECR I-1271 . . . 675 Andrea Raccanelli v Max-Planck-Gesellschaft zur Förderung der Wissenschaft en eV (C-94/07) [2008] ECR I-5939 . . . 550 Angelo Ferlini v Centre Hospitalier de Luxembourg (C-411/98) [2000] ECR I-8081 . . . 566 Angelopharm GmbH v Freie Hansestadt Hamburg (C-212/91) [1994] ECR I-171 . . . 454, 702 Angonese v Cassa di Risparmio di Bologna (C-281/93) [2000] ECR I-4134 . . . 500 Animal Trading Company (ATC) BV v European Commission (T-333/10) EU:T:2013:451 . . . 456, 698 Anker, Ras and Snoek v Germany (C-47/02) [2003] ECR I-10447 . . . 556 Annibaldi v Sindaco del Commune di Guidonia and Presidente Regione Lazio (C-309/96) [1997] ECR I-7493 . . . 486, 505 Anomar v Estado Portugues (C-6/01) [2003] ECR I-8621 . . . 687 Antillean Rice Mills NV and others v Commission (C-390/95 P) [1999] ECR I-769 . . . 463, 738, 739, 744, 745 Antillean Rice Mills NV v Commission (T-480 and 483/93) [1995] ECR II-2305 . . . 732 Antwerpse Bouwwerken NV v European Commission (T-195/08) [2009] ECR II-4439 . . . 267 APOL and AIPO v Commission (T-61 & 62/00) [2003] ECR II-635 . . . 666 Apothekerkammer des Saarlandes v Saarland and Ministerium für Justiz, Gesundheit und Soziales (C-171 and 172/07) [2009] ECR I-4171 . . . 674 Aprile v Amminstrazione delle Finanze dello Stato (C-229/96) [1998] ECR I-7141 . . . 768, 774 A-Punkt Schmuckhandels GmbH v Claudia Schmidt (C-441/04) [2006] ECR I-2093 . . . 671 Arbeiterwohlfahrt der Stadt Berlin v Bötel (C-360/90) [1992] ECR I-3589 . . . 587, 679 Arcelor SA v European Parliament and Council (T-16/04) 2 March 2010 . . . 338, 347, 540, 738, 742, 744 Archer Daniels Midland Co v Commission (T-59/02) [2006] ECR II-3627 . . . 604 Archer Daniels Midland Company and Archer Daniels Midland Ingredients Ltd v

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TABLE OF CASES Commission (T-224/00) [2003] ECR II-2597 . . . 667, 731 ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (C-418–419/97) [2000] ECR I-4475 . . . 707 Areva v Commission (T-117 & 121/07) [2011] ECR II-633 . . . 352 Arizona Chemical and others v Commission (T-369/03) [2004] ECR II-205 . . . 724 Armement Cooperatif Artisanal Vendeen (ACAV) v Council (T-138/98) [1999] ECR II-1797 . . . 335 Arnold André GmbH & Co KG v Landrat des Kreises Herford (C-434/02) [2004] ECR I-11825 . . . 646 Artegodan GmbH v Commission (T-74, 76, 83–85, 132, 137 & 141/00) [2002] ECR II-4945 . . . 176, 383, 480, 515, 516, 697–9, 704, 705, 720, 721 Asemfo v Transformacion Agraria SA (C-295/05) [2007] ECR I-2999 . . . 287 Asia Motor France SA v Commission (T-7/92) [1993] ECR II-669 . . . 364, 370, 383, 481 Asia Motor France SA v Commission (T-154/98) [2000] ECR II-3453 . . . 364 Asia Motor France SA v Commission (T-387/94) [1996] ECR II-961 . . . 364, 370, 732 Asociasión Espanola de Empresas de la Carne (Asocarne) v Council (C-10/95 P) [1995] ECR I-4149 . . . 318, 333, 335 ASPEC v Commission (T-435/93) [1995] ECR II-1281 . . . 318 Assidoman Kraft Products AB v Commission (T-227/95) [1997] ECR II-1185 . . . 609 Associacao Comercial de Aveiro v Commission (T-81/00) [2002] ECR II-2509 . . . 467 Associacao dos Refinadores de Acucar Portugueses (ARAP) v Commission (C-321/99 P) [2002] ECR I-4287 . . . 621 Association Belge des Consammateurs TestAchats ASBL v Conseil des Ministres (C-236/09) EU:C:2011:100 . . . 490, 583 Association de médiation sociale (AMS) v Union locale des syndicats CGT, Laboubi (C-176/12) EU:C:2014:2 . . . 500, 511, 512, 515, 516 Association Greenpeace France v Ministère de l’Agriculture et de la Pêche (C-6/99) [2000] ECR I-1651 . . . 331, 515, 695, 706 Associazione delle Cantine Sociali Venete v European Ombudsman and Parliament (T-103/99) [2000] ECR II-4165 . . . 817 Associazione Italia Nostra Onlus v Comune di Venezia (C-444/15) EU:C:2016:978 . . . 522

xiii

Asteris AE and Hellenic Republic v Commission (97, 99, 193 & 215/86) [1988] ECR 2181 . . . 732 Asteris v Greece and EEC (106–120/87) [1988] ECR 5515 . . . 754 ASTI v Chambre des employés privés (C-213/90) [1991] ECR I-350 . . . 555 Astipeca SL v Commission (T-180/00) [2002] ECR II-3985 . . . 666 AstraZeneca AB and AstraZeneca plc v European Commission (T-321/05) EU:T:2010:266 . . . 460 Atalanta Amsterdam BV v Produktschap voor Vee en Vlees (240/78) [1979] ECR 2137 . . . 665 ATB v Ministero per le Politiche Agricole (C-402/98) [2000] ECR I-5501 . . . 625, 626 Athanasios Pitsiorlas v Council and ECB (T-3/00 and 337/04) [2007] ECR II-4779 . . . 742, 747, 748 Atlanta AG v Commission (C-104/97 P) [1999] ECR I-6983 . . . 149, 316, 625 Atlanta Fruchthandelgesellschaft mbH v Bundesamt für Ernahrung und Forstwirtschaft (C-465/93) [1995] ECR I-3761 . . . 725 Atlantic Container Line AB v Commission (T-191, 212, 214/98) [2003] ECR II-3275 . . . 364, 636, 731 Atlantic Container Line v Commission (T-395/94 R II) [1995] ECR II-2893 . . . 724 ATRAL SA v Belgium (C-14/02) [2003] ECR I-4431 . . . 670 Atzeni and others v Regione autonoma della Sardegna (C-346 and 529/03) [2006] ECR I-1875 . . . 624 Austria v Council (C-445/00 R) [2001] ECR I-1461 . . . 723, 729 Automec Srl v Commission (T-24/90) [1992] ECR II-2223 . . . 364 Axa Versicherung AG v European Commission (T-677/13) EU:T:2015:473 . . . 394 Azarov v Council (T-215/15) EU:T:2017:479 . . . 369 Azienda Agricola Disarò Antonio v Cooperativa Milka 2000 Soc coop arl (C-34/08) [2009] ECR I-4023 . . . 653 Azienda Agricole Ettore Ribaldi v AIMA (C-480–2, 484, 489, 490–1, 497–9/00) [2004] ECR I-2943 . . . 670 Azienda Agricola Giorgio v AIMA (C-495/00) [2004] ECR I-2993 . . . 605 Azienda Agricola ‘Le Canne’ Srl v Commission (T-241/00) [2002] ECR II-1251 . . . 363, 370

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B & Q plc v Shrewsbury BC [1990] 3 CMLR 535 . . . 691 Bactria Industriehygiene-Service Verwaltungs GMbH v Commission (C-258/02 P) [2003] ECR I-15105 . . . 149, 317, 338, 347, 540 Badeck v Landesanwalt beim Staatsgerichtshof des Landes Hessen (C-158/97) [1999] ECR I-1875 . . . 591 Balázs-Árpád Izsák and Attila Dabis v European Commission (T-529/13) EU:T:2016:282 . . . 417 Banan-Kompaniet AB and Skandinaviska Bananimporten AB v Council and Commission (T-57/00) [2003] ECR II-607 . . . 743, 747 Banchero (C-157/92) [1993] ECR I-1085 . . . 286 Banco de Credito Industrial SA (Banco Exterior de Espana SA) v Ayuntamiento de Valencia (C-387/92) [1994] ECR I-877 . . . 441 Bank Melli Iran v Council (T-390/08) [2009] ECR II-3967 . . . 468 BASF AG and UCB SA v Commission (T-101 and 111/05) [2007] ECR II-4949 . . . 667 BASF AG v Commission (T-79, 84–86, 89, 91–92, 94, 96, 98, 102, 104/89) [1992] ECR II-315 . . . 267 BASF Lacke & Farben AG v Commission (T-175/95) [1999] ECR II-1581 . . . 355 BAT and Reynolds v Commission (142 and 156/84) [1987] ECR 4487 . . . 450 Baumbast and R v Secretary of State for the Home Department (C-413/99) [2002] ECR I-7091 . . . 673 Bavaria NV and Bavaria Italia Srl v Bayerischer Brauerbund eV (C-343/07) [2009] ECR I-5491 . . . 331 Bayer AG v Commission (T-41/96) [2000] ECR II-3383 . . . 442 Bayer CropScience AG and others v Commission (T-75/06) [2008] ECR II-2081 . . . 465 Bayerische HNL Vermehrungsbetriebe GmbH & Co KG v Council and Commission (83, 94/76, 4, 15, 40/77) [1978] ECR 1209 . . . 740, 748 Bayerische Motoren Werke AG v European Commission (T-671/14) EU:T:2017: 599 . . . 466 Beamglow Ltd v European Parliament, Council and Commission (T-383/00) [2005] ECR II-5459 . . . 739, 752 Behn Verpackungsbedarf GmbH v Hauptzollamt Itzehoe (C-80/89) [1990] ECR I-2659 . . . 622, 623 Bela-Mühle Josef Bergman KG v Grows-Farm GmbH & Co KG (114/76) [1977] ECR 1211 . . . 665 Belgian Sewing Thread (BST) NV v European Commission (T-452/05) 28 April 2010 . . . 748

Belgisch Interventieen Restitutiebureau v SGS Belgium NV (C-367/09) [2010] ECR I-1076 . . . 506, 682 Belgium and Forum 187 ASBL v Commission (C-182 and 217/03) [2006] ECR I-5479 . . . 622, 629 Belgium v Commission (C-75/97) [1999] ECR I-3671 . . . 442 Belgium v Commission (C-110/03) [2005] ECR I-2801 . . . 433, 601, 603 Belgium v Commission (Tubemeuse) (C-142/87) [1990] ECR I-959 . . . 361, 666 Belgium v European Commission (T-131/16 R) EU:T:2016:427 . . . 723 Bellio F. lii Srl v Prefettura di Treviso (C-286/02) [2004] ECR I-3465 . . . 710 Berlington Hungary Tanácsadó és Szolgáltató kf v Magyar Állam (C­98/14) EU:C:2015:386 . . . 601, 686 Berlioz Investment Fund SA v Directeur de l’administration des contributions directes (C-682/15) EU:C:2017:373 . . . 506 Bertelsmann AG and Sony Corporation of America v Independent Music Publishers and Labels Association (Impala) (C-413/06 P) [2008] ECR I-4951 . . . 460 Besselink v Commission (T-331/11) EU:T:2013:499 . . . 396 Bettray v Staatssecretaris van Justitie (344/87) [1989] ECR 1621 . . . 550 Beus (5/67) [1968] ECR 83 . . . 371 Bickel & Franz (C-274/96) [1998] ECR I-7637 . . . 565 Bilka-Kaufh aus GmbH v Karin Weber von Hartz (170/84) [1986] ECR 1607 . . . 587, 588, 678 Bi-Metallic Investment Co v State Board of Equalization of Colorado, 239 US 441 (1915) . . . 319 Binder GmbH v Hauptzollamt Stuttgart-West (C-205/94) [1996] ECR I-2871 . . . 371 Birke v Commission (543/79) [1981] ECR 2669 . . . 737 Bleis v Ministère de l’Education Nationale (C-4/91) [1991] ECR I-5627 . . . 555 Bocchi Food Trade International GmbH v Commission (T-30/99) [2001] ECR II-943 . . . 646 Boehringer Ingelheim Vetmedica GmbH and CH Boehringer Sohn v Council and Commission (125 and 152/96) [1999] ECR II-3427 . . . 647, 655 Bogusław Juliusz Dankowski v Dyrektor Izby Skarbowej w Łodzi (C-438/09) 22 December 2010 . . . 681 Bolloré SA and Others v Commission (T-109, 118, 122, 125, 126, 128, 129, 132 & 136/02) [2007] ECR II-947 . . . 358, 360, 636

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TABLE OF CASES Bonifaci and Berto v Istituto Nazionale della Previdenza Sociale (IPNS) (C-94–95/95) [1997] ECR I-3969 . . . 792 Bonn Fleisch Ex- und Import GmbH v Hauptzollamt Hamburg-Jonas (C-1/06) [2007] ECR I-5609 . . . 772 Booker Aquacultur Ltd and Hydro Seafood GSP Ltd v Scottish Ministers (C-20 & 64/00) [2003] ECR I-7411 . . . 520, 661 Borelli SpA v Commission (C-97/91) [1992] ECR I-6313 . . . 320, 332 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland, (App No 45036/98) ECtHR (2005) . . . 495, 497 Bozetti v Invernizzi (179/84) [1985] ECR 2301 . . . 759 BP Supergas v Greece (C-62/93) [1995] ECR I-1883 . . . 769 BPB Industries plc and British Gypsum Ltd v Commission (T-65/89) [1993] ECR II-389 . . . 355 BPB Industries and British Gypsum v Commission (C-310/93 P) [1995] ECR I-865 . . . 354 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration (C-69/10) 28 July 2011 . . . 773 Brasserie du Pêcheur SA v Germany, R v Secretary of State for Transport, ex p Factortame Ltd (C-46 and 48/93) [1996] ECR I-1029 . . . 690, 741, 783–5, 787, 792 Bresle v Prefet de la Région Auvergne and Prefet du Puy-de-Dôme (C-257/95) [1996] ECR I-233 . . . 286 Brey (C-140/12) EU:C:2013:565 . . . 568 Briheche v Ministre de l’Interieur, Ministre de L’Education and Ministre de la Justice (C-319/03) [2004] ECR I-8807 . . . 593, 677 Brinkmann Tabakfabriken GmbH v Skatteministeriet (C-319/96) [1998] ECR I-5255 . . . 786, 789 British Aggregates Association v Commission (C-487/06 P) [2008] ECI I-10515 . . . 728 British Airways plc and British Midland Airways Ltd v Commission (T-371 & 394/94) [1998] ECR II-2405 . . . 363 British Steel plc v Commission (C-1/98 P) [2000] ECR I-10349 . . . 635 British Sugar plc v Commission (C-359/01 P) [2004] ECR I-4933 . . . 667 Brown v Secretary of State for Scotland (197/86) [1988] ECR 3205 . . . 563, 570 Brunnhofer v Bank der Österreichischen Postsparkasse AG (C-381/99) [2001] ECR I-4961 . . . 679

xv

Bruno Gollnisch v European Parliament (T-42/06) [2010] ECR II-1135 . . . 747 BSM Geraets-Smits v Stichting Ziekenfonds VGZ (C-157/99) [2001] ECR I-5473 . . . 675 Buitoni v Forma (122/78) [1979] ECR 677 . . . 665 Bureau Européen des Médias de l’Industrie Musicale (BEMIM) v Commission (T-144/92) [1995] ECR II-147 . . . 364 Bureau Européen des Unions Consommateurs and National Consumer Council v Commission (T-37/92) [1994] ECR II-285 . . . 364 Bürgerausschuss für die Bürgerinitiative Minority SafePack—one million signatures for diversity in Europe v European Commission (T-646/13) EU:T:2017:59 . . . 150 C v Council (T-84/98) [2000] ECR IA-113 . . . 749 Cadman v Health & Safety Executive (C-17/05) [2006] ECR I-9583 . . . 587, 678 Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc) (C-484/08) [2010] ECR I-4785 . . . 287 Calpak SpA and Societa Emiliana Lavorazione Fruita SpA v Commission (789 & 790/79) [1980] ECR 1949 . . . 333 Camar Srl and Tico Srl v Commission (T-79/96, 260/97, 117/98) [2000] ECR II-2193 . . . 744, 745, 748, 749 Campo Ebro and Others v Commission (T-472/93) [1995] ECR II-421 . . . 739 Campus Oil Ltd v Minister for Industry and Energy (72/83) [1984] ECR 2727 . . . 548, 671 Canadian Solar Emea GmbH v Council (T-162/14) EU:T:2017:12 . . . 651 Canal Satélite Digital SL v Administración General del Estado, and Distribuidora de Televisión Digital SA (DTS) (C-390/99) [2002] ECR I-607 . . . 675 Canon Europa NV v European Commission (C-552/14 P) EU:C:2015:804 . . . 345 Carboni e derivati Srl v Ministero dell’Economia e delle Finanze and Riunione Adriatica di Sicurtà SpA (263/06) [2008] ECR I-1077 . . . 650 Cargill BV v Commission (C-248/89) [1991] ECR I-2987 . . . 617 Cargill BV v Produktschap voor Margarine, Vetten en Olien (C-365/89) [1991] ECR I-3045 . . . 617 Carlo Tedeschi v Denkavit Commerciale Srl (5/77) [1977] ECR 1555 . . . 116

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Carlos Garcia Avello v Belgium (C-148/02) [2003] ECR I-11613 . . . 565 Carmen Media Group Ltd v Land SchleswigHolstein (C-46/08) [2010] ECR I-8149 . . . 686 Carpenter v Secretary of State for the Home Department (C-60/00) [2002] ECR I-6279 . . . 586, 674 Carvel and Guardian Newspapers Ltd v Council (T-194/94) [1995] ECR II-2765 . . . 393 Casagrande v Landeshauptstadt München (9/74) [1974] ECR 773 . . . 552 Caturla-Poch v Parliament (C-107/89 R) [1989] ECR 1357 . . . 724 CEMR v Commission (T-46 and 151/98) [2000] ECR II-167 . . . 611, 612, 619, 621 Centre d’exportation du livre français (CELF) and Ministre de la Culture et de la Culture et de la Communication v Société internationale de diffusion et d’édition (SIDE) [2008] ECR I-469 . . . 779 Centre public d’aide sociale de Courcelles v Lebon (316/85) [1987] ECR 2811 . . . 553 Cerafogli v European Central Bank (T-114/13 P) EU:T:2015:67 . . . 313 Cereol Italia v Azienda Agricola Castello (C-104/94) [1995] ECR I-2983 . . . 665 CETM v Commission (T-55/99) [2000] ECR II-3207 . . . 666 CEVA Sante Animale SA and Pharmacia Enterprises SA v Commission (T-344–345/00) [2003] ECR II-229 . . . 468 CFPR v European Commission (C­411/15 P) EU:C:2017:11 . . . 619, 667 Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co Ltd v Council of the European Union (C-376 and 377/15 P) EU:C:2017:269 . . . 463 Chavez-Vilchez (H C) and Others v Raad van bestuur van de Sociale verzekeringsbank (C-133/15) EU:C:2017:35 . . . 573 Cheminova A/S v Commission (T-326/07) [2009] ECR II-2685 . . . 432, 639, 698 Chevron USA Inc v NRDC 467 US 837 (1984) . . . 442 Cholakova v Osmo rayonno upravlenie pri Stolichna direktsia na vatreshnite rab (C-14/13) EU:2013:C:374 . . . 507 Chomel v Commission (T-123/89) [1990] ECR II-131 . . . 608 CIRFS v Commission (C-313/90) [1993] ECR I-1125 . . . 619, 631, 639 Citymo SA v Commission (T-271/04) [2007] ECR II-1375 . . . 621 Claire Staelen v European Ombudsman (T-217/11) EU:T:2015:238 . . . 818

ClientEarth and the International Chemical Secretariat v European Chemicals Agency (ECHA) (T-245/11) EU:T:2015:675 . . . 394, 656 ClientEarth v European Commission (T-111/11) EU:T:2013:482 . . . 395 ClientEarth v European Commission (T-424 and 425/14) EU:T:2015:848 . . . 396 CM Eurologistik GmbH v Hauptzollamt Duisburg (C-283–284/14) EU:C:2016:57 . . . 731 Cobrecaf v Commission (T-514/93) [1995] ECR II-621 . . . 747 Codorniu v Council (C-309/89) [1994] ECR I-1853 . . . 334 Coenen v Social Economische Raad (39/75) [1975] ECR 1547 . . . 674 Cofidis SA v Fredout (C-473/00) [2002] ECR I-10875 . . . 772 Co-Frutta Soc coop v European Commission (T-355 & 446/04) [2010] ECR II-1 . . . 267, 394, 397 Colegio de Ingenieros de Caminos, Canales y Puertos v Administración del Estado (C-330/03) [2006] ECR I-801 . . . 687 Colegio de Oficiales de la Marina Mercante Espanola v Administracion del Estado (C-405/01) [2003] ECR I-10391 . . . 556 Collins v Secretary of State for Work and Pensions (C-138/02) [2004] ECR I-2703 . . . 549, 550, 565, 573 Comafrica SpA and Dole Fresh Fruit Europe Ltd and Co v Commission (T-139/01) [2005] ECR II-409 . . . 338, 748 Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co v Commission (T-198/95, 171/96, 230/97, 174/98, and 225/98) [2001] ECR II-1975 . . . 744, 746 Comateb v Directeur Général des Douanes et Droits Indirects (C-192/95) [1997] ECR I-165 . . . 760, 777, 778 Comet BV v Produktschap voor Siergewassen (45/76) [1976] ECR 2043 . . . 759 Commission and France v Ladbroke Racing Ltd (C-359 & 379/95 P) [1999] ECR I-6265 . . . 364 Commission v Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd (C-7/04 P(R)) [2004] ECR I-8739 . . . 723 Commission v Alrosa Company Ltd (C-441/07 P) EU:C:2010:377; [2010] ECR I-5949 . . . 460 Commission v Artegodan GmbH (C-39/03 P) [2003] ECR I-7885 . . . 177, 480, 703 Commission v AssiDomän Kraft Products AB (C-310/97 P) [1999] ECR I-5363 . . . 733, 737

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TABLE OF CASES Commission v Atlantic Container Line AB (C-149/95 P(R)) [1995] ECR I-2165 . . . 723 Commission v Austria (C-475/98) [2002] ECR I-9797 . . . 409 Commission v Austria (C-147/03) [2005] ECR I-5969 . . . 63 Commission v Austria (C-203/03) [2005] ECR I-935 . . . 677 Commission v Austria (C-28/09) EU:C:2011: 854 . . . 671 Commission v BASF AG (C-137/92 P) [1994] ECR I-2555 . . . 267, 268 Commission v Belgium (149/79) [1980] ECR 3881 . . . 554, 555 Commission v Belgium (C-173/94) [1996] ECR I-3265 . . . 556 Commission v Belgium (C-278/94) [1996] ECR I-4307 . . . 547 Commission v Belgium (35/97) [1998] ECR I-5325 . . . 547 Commission v Belgium (C-355/98) [2000] ECR I-1221 . . . 548 Commission v Belgium (C-471/98) [2002] ECR I-9681 . . . 409 Commission v Belgium (C-217/99) [2000] ECR I-10251 . . . 671 Commission v Camar Srl and Tico Srl (C-312/00 P) [2002] ECR I-11355 . . . 738, 744 Commission v Cantina sociale di Dolianova Soc coop arl (C-51/05 P) [2008] ECR I-5341 . . . 736 Commission v CEVA Santé Animale SA and Pfizer Enterprises Sàrl (C-198/03 P) [2005] ECR I-6357 . . . 742 Commission v Council (22/70) [1971] ECR 263 . . . 266, 408 Commission v Council (81/72) [1973] ECR 575 . . . 730 Commission v Council (45/86) (Tariff Preferences) [1987] ECR 1493 . . . 371, 421, 422 Commission v Council (Generalized Tariff Preferences) (51/87) [1988] ECR 5459 . . . 729 Commission v Council (165/87) [1988] ECR 5545 . . . 421 Commission v Council (16/88) [1989] ECR 3457 . . . 114, 117 Commission v Council (C-122/94) [1996] ECR I-881 . . . 371 Commission v Council (C-209/97) [1999] ECR I-8067 . . . 421 Commission v Council (C-257/01) [2005] ECR I-345 . . . 117, 121 Commission v Council (C-176/03) [2005] ECR I-7879 . . . 405

xvii

Commission v Council (C-27/04) [2004] ECR I-6649 . . . 207 Commission v Council (Convention on the Rights of Broadcasting Organizations) (C-114/12) EU:C:2014:2151 . . . 411 Commission v Denmark (C-467/98) [2002] ECR I-9519 . . . 409 Commission v Denmark (C-192/01) [2003] ECR I-9693 . . . 673, 709 Commission v Département du Loiret and Scott SA (C-295/07 P) [2008] ECI I-9363 . . . 729 Commission v EnBW (C-365/12 P) EU:C:2014:112 . . . 396 Commission v European Central Bank (C-11/00) [2003] ECR I-7147 . . . 651, 652 Commission v European Investment Bank (C-15/00) [2003] ECR I-7281 . . . 651 Commission v European Parliament and Council (C-378/00) [2003] ECR I-937 . . . 119, 121, 730 Commission v European Parliament and Council (C-122/04) [2006] ECR I-2001 . . . 121 Commission v European Parliament and Council (C-427/12) EU:C:2014:170 . . . 141, 142 Commission v European Parliament and Council (C-88/14) EU:C:2015:499 . . . 141, 143, 144, 146 Commission v Finland (C-469/98) [2002] ECR I-9627 . . . 409 Commission v Finland (C-54/05) [2007] ECR I-2473 . . . 548 Commission v France (21/84) [1985] ECR 1356 . . . 548 Commission v France (307/84) [1986] ECR 1725 . . . 556 Commission v France (318/86) [1988] ECR 3559 . . . 586, 589 Commission v France (C-265/95) [1997] ECR I-6959 . . . 517 Commission v France (C-24/00) [2004] ECR I-1277 . . . 673, 709, 710 Commission v France (C-262/02) [2004] ECR I-6569 . . . 685 Commission v France (C-280/02) [2004] ECR I-8573 . . . 707 Commission v France (C-334/02) [2004] ECR I-2229 . . . 670 Commission v France (C-212/03) [2005] ECR I-4213 . . . 673 Commission v France (C-333/08) 28 January 2010 . . . 673, 698, 699, 710 Commission v French Republic (167/73) [1974] ECR 359 . . . 547 Commission v French Republic (68/76) [1977] ECR 515 . . . 548

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Commission v Fresh Marine A/S (C-472/00 P) [2003] ECR I-7541 . . . 738, 742, 744, 817 Commission v Germany (12/74) [1975] ECR 181 . . . 548 Commission v Germany (178/84) [1987] ECR 1227 . . . 671, 684 Commission v Germany (C-5/89) [1990] ECR I-3437 . . . 779 Commission v Germany (C-62/90) [1992] ECR I-2575 . . . 671 Commission v Germany (C-493/99) [2001] ECR I-8163 . . . 674 Commission v Germany (C-103/01) [2003] ECR I-5369 . . . 432 Commission v Germany (C-318/05) [2007] ECR I-6957 . . . 547 Commission v Germany (C-456/05) [2007] ECR I-10517 . . . 674 Commission v Germany (C-141/07) [2008] ECR I-6935 . . . 686 Commission v Germany (C-369/07) [2009] ECR I-7811 . . . 548 Commission v Germany (C-518/07) [2010] ECR I-1885 . . . 432 Commission v Germany (C-142/16) EU:C:2017:301 . . . 707 Commission v Greece (68/88) [1989] ECR 2965 . . . 682, 761 Commission v Greece (C-200/88) [1990] ECR I-4299 . . . 815 Commission v Greece (C-290/94) [1996] ECR I-3285 . . . 556 Commission v Greece (C-140/03) [2005] ECR I-3177 . . . 673 Commission v Greece (C-178/05) [2007] ECR I-4185 . . . 762 Commission v Greece (C-460/08) 10 December 2009 . . . 547 Commission v Hellenic Republic (C-185/96) [1998] ECR I-6601 . . . 547, 553 Commission v Hellenic Republic (C-187/96) [1998] ECR I-1095 . . . 547 Commission v IIC Informations-Industrie Consulting GmbH (T-500/04) [2007] ECR II-1443 . . . 611 Commission v Ireland (113/80) [1981] ECR 1625 . . . 548 Commission v Ireland (249/81) [1982] ECR 4005 . . . 548 Commission v Ireland (45/87) [1988] ECR 4929 . . . 548 Commission v Ireland (C-354/99) [2001] ECR I-7657 . . . 682, 761 Commission v Ireland (C-418/04) [2007] ECR I-10947 . . . 708

Commission v Ireland (C-89/08 P) [2009] ECR I-11245 . . . 350, 352, 353, 370 Commission v Italy (154/85) [1987] ECR 2717 . . . 548 Commission v Italy (225/85) [1987] ECR 2625 . . . 555 Commission v Italy (C-129/00) [2003] ECR I-14637 . . . 778 Commission v Italy (270/02) [2004] ECR I-1559 . . . 671 Commission v Italy (C-260/04) [2007] ECR I-7083 . . . 392 Commission v Italy (C-263/05) [2007] ECR I-11745 . . . 707 Commission v Italy (C-132/06) [2008] ECR I-5457 . . . 506 Commission v Italy (C-304/09) [2010] ECR I-13903 . . . 726 Commission v Italy (C-379/10) EU:C:2011:775 . . . 788 Commission v Jégo-Quéré & Cie SA (C-263/02 P) [2004] ECR I-3425 . . . 149, 317, 318, 332, 338 Commission v Koninklijke FrieslandCampina NV (C-519/07 P) [2009] ECR I-8945 . . . 622, 629 Commission v Lisrestal (C-32/95 P) [1996] ECR I-5373 . . . 312, 314, 350 Commission v Luxembourg (C-111/91) [1993] ECR I-817 . . . 553 Commission v Luxembourg (C-473/93) [1996] ECR I-3207 . . . 554–557 Commission v Luxembourg (C-472/98) [2002] ECR I-9741 . . . 409 Commission v Luxembourg (C-445/03) [2004] ECR I-10191 . . . 674 Commission v Luxembourg (C-319/06) [2008] ECR I-4323 . . . 683 Commission v Malta (C-76/08 R) [2008] ECR I-64 . . . 723 Commission v Netherlands (C-41/02) [2004] ECR I-11375 . . . 672, 709 Commission v Netherlands (C-299/02) [2004] ECR I-9761 . . . 673 Commission v Portugal (C-458/08) 18 Nov 2010 . . . 674 Commission v Schneider Electric SA (C-440/07 P) [2009] ECR I-6413 . . . 738 Commission v Scott SA (C-290/07) 2 September 2010 . . . 465 Commission v Solvay SA (C-287–288/95 P) [2000] ECR I-2391 . . . 268 Commission v Spain (C-45/93) [1994] ECR I-911 . . . 559 Commission v Spain (C-94/08) [2008] ECR I-160 . . . 547

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TABLE OF CASES Commission v Sweden (C-468/98) [2002] ECR I-9575 . . . 409 Commission v Sytraval and Brink’s France (C-367/95 P) [1998] ECR I-1719 . . . 313, 365, 370 Commission v Technische Glaswerke Ilmenau GmbH (C-139/07 P) [2010] ECR I-5885 . . . 354, 395, 656 Commission v Tetra Laval (C-12/03 P) [2005] ECR I-987 . . . 458, 459, 470, 473, 475 Commission v T-Mobile Austria GmbH (C-141/02 P) [2005] ECR I-1283 . . . 368 Commission v UK (61/81) [1982] ECR 2601 . . . 585 Commission v UK (124/81) [1983] ECR 203 . . . 671 Commission v UK (40/82) [1982] ECR 2793 . . . 684 Commission v UK (165/82) [1983] ECR 3431 . . . 589 Commission v UK (207/83) [1985] ECR 1201 . . . 548 Commission v UK (C-383/92) [1994] ECR I-2479 . . . 682, 761 Commission v UK (C-359/97) [2000] ECR I-6355 . . . 762 Commission v UK (C-466/98) [2002] ECR I-9427 . . . 409 Commission v UK (C-508/03) [2006] ECR I-3969 . . . 615 Commission v UK (C-6/04) [2005] ECR I-9017 . . . 708 Commission and European Parliament v Council (C-137/12) EU:C:2013:675 . . . 406 Commune de Mesquer v Total France SA and Total International Ltd (C-188/07) [2008] ECR I-4501 . . . 708 Compagnie d’Approvisionnement de Transport et de Crédit SA et Grands Moulins de Paris SA v Commission (9 & 11/71) [1972] ECR 391 . . . 737, 752 Compagnie Française de l’Azote (COFAZ) SA v Commission (169/84) [1986] ECR 391 . . . 318 Compagnie Industrielle et Agricole du Comté de Loheac v Council and Commission (54–60/76) [1977] ECR 645 . . . 752 Compagnie Interagra SA v Commission (217/81) [1982] ECR 2233 . . . 756 Compagnie Maritime Belge Transports SA and others v Commission (T-24–26 & 28/93) [1996] ECR II-1201 . . . 469 Compass-Datenbank GmbH v Republik Österreich (C-138/11) EU:C:2012:449 . . . 442 Comptoir National Technique Agricole (CNTA) SA v Commission (74/74) [1975] ECR 533 . . . 448, 450, 628, 740, 749

xix

Comunita Montana della Valnerina v Commission (T-340/00) [2003] ECR II-811 . . . 106 Comunità Montana della Valnerina v Commission (C-240/03 P) [2006] ECR I-731 . . . 666 Conegate v Customs and Excise Commissioners (121/85) [1986] ECR 1007 . . . 685 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v Commission (T-427/08) EU:T:2010:517 . . . 364, 460 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v Commission (T-712/14) EU:T:2017:748 . . . 364 Conley King v The Sash Window Workshop Ltd and Richard Dollar (C-214/16) EU:C:2017:439 . . . 512, 516 Connolly v Commission (C-274/99 P) [2001] ECR I-1611 . . . 521, 662 Conserve Italia Soc Coop arl v Commission (C-500/99 P) [2002] ECR I-867 . . . 106, 616, 666 Conserve Italia Soc Coop rl v Commission (T-186/00) [2003] ECR II-719 . . . 666 Conserve Italia Soc Coop rl v Commission (T-305/00) [2003] ECR II-5659 . . . 666 Conserve Italia Soc Coop rl v Commission (T-306/00) [2003] ECR II-5705 . . . 667 Consorzio Cooperative d’Abruzzo v Commission (15/85) [1987] ECR 1005 . . . 615 Consorzio Gruppo di Azioni Locale Murgia Messapica v Commission (T-456/93) [1994] ECR II-361 . . . 619 Costantini v European Commission (T-44/14) EU:T:2016:223 . . . 423 Consten & Grundig v Commission (56 & 58/64) [1966] ECR 299 . . . 362, 450 Coote v Granada Hospitality Ltd (C-185/97) [1998] ECR I-5199 . . . 762 Cordis Obst und Gemuse GrossHandel GmbH v Commission (T-18/99) [2001] ECR II-913 . . . 626, 739, 754, 756, 757 Corporación Dermoestética SA v To Me Group Advertising Media (C-500/06) [2008] ECR I-5785 . . . 687 Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova (C-18/93) [1994] ECR I-1783 . . . 286 Corsten (C-58/98) [2000] ECR I-7919 . . . 674 Corus v UK (C-199/99 P) EU:C:2003:531 . . . 355 Corus UK Ltd v Commission (T-171/99) [2001] ECR II-2967 . . . 729, 753 Costa v ENEL (6/64) [1964] ECR 585 . . . 282

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Cotter and McDermott v Minister for Social Welfare and Attorney General (C-377/89) [1991] ECR I-1155 . . . 765 Council v in’t Veld (C-350/12 P) EU:C:2014:2039 . . . 396, 397 Council of the European Union v Access Info Europe (C-280/11 P) EU:C:2013:671 . . . 396 Council of the European Union v Bank Mellat (C-176/13 P) EU:C:2016:96 . . . 356, 462 Council of the European Union v Bank Saderat Iran (C-200/13 P) EU:C:2016:284 . . . 356, 462 Council of the European Union v Hamas (C-79/15 P) EU:C:2017:584 . . . 462 Courage Ltd v Crehan (C-453/99) [2001] ECR I- 6297 . . . 779, 782 Cowan v Le Trésor Public (186/87) [1989] ECR 195 . . . 559 Criminal Proceedings against Bernaldez (C-129/94) [1996] ECR I-1829 . . . 287 Criminal Proceedings against Bordessa, Mellado and Maestre (C-358 and 416/93) [1995] ECR I-361 . . . 675 Criminal Proceedings against Burmanjer, Van der Linden and de Jong (C-20/03) [2005] ECR I-4133 . . . 671 Criminal Proceedings against Carra (C-258/98) [2000] ECR I-4217 . . . 582 Criminal Proceedings against E and F (C-550/09) 29 June 2010 . . . 338, 604 Criminal Proceedings against Grado and Bashir (C-291/96) [1997] ECR I-5531 . . . 505 Criminal Proceedings against John Greenham and Leonard Abel (C-95/01) [2004] ECR I-1333 . . . 515, 709 Criminal Proceedings against Keck and Mithouard (C-267 & 268/91) [1993] ECR I-6097 . . . 438, 692 Criminal Proceedings against Leon Motte (247/84) [1985] ECR 3887 . . . 696 Criminal Proceedings against Linhart and Biffl (C-99/01) [2002] ECR I-9375 . . . 681 Criminal Proceedings against Mac Quen (C-108/96) [2001] ECR I-837 . . . 687 Criminal proceedings against Massimo Orsi and Luciano Baldetti (C-217 and 350/15) EU:C:2017:264 . . . 530 Criminal Proceedings against Max Rombi (C-107/97) [2000] ECR I-3367 . . . 605 Criminal Proceedings against Nunes and de Matos (C-186/98) [1999] ECR I-4883 . . . 682, 761 Criminal Proceedings against Paolo Lirussi and Francesca Bizzaro (175 & 178/98) [1999] ECR I-6881 . . . 695, 737

Criminal Proceedings against Placanica, Palazzese and Sorricchio (C-338, 359–360/04) [2007] ECR I-1891 . . . 683 Criminal Proceedings against Richardt and Les Accessoires Scientifiques SNC (C-367/89) [1991] ECR I-4621 . . . 690 Criminal Proceedings against Saddik (C-458/93) [1995] ECR I-511 . . . 286 Criminal Proceedings against Silvio Berlusconi and others (C-387, 391 & 403/02) [2005] ECR I-3565 . . . 682, 761 Criminal Proceedings against Skanavi and Chryssanthakopoulos (C-193/94) [1996] ECR I-929 . . . 674 Criminal Proceedings against Sunino and Data (C-2/96) [1996] ECR I-1543 . . . 286 Criminal Proceedings against X (C-74/95 and 129/95) [1996] ECR I-6609 . . . 486 Crispoltoni v Fattoria Autonoma Tabachi and Donatab (C-133, 300 & 362/93) [1994] ECR I-4863 . . . 625, 646 CSL Behring GmbH v European Commission and European Medicines Agency (EMA) (T-264/07) EU:T:2010:371 . . . 623 CSR PAMPRYL v Commission (T-114/99) [1999] ECR I-3331 . . . 331 CT Control (Rotterdam) BV and JCT Benelux BV v Commission (C-121–122/91) [1993] ECR I-3873 . . . 732 Czech Republic v European Commission (C-696/15 P) EU:C:2017:595 . . . 133 D and Sweden v Council (C-122 and 125/99 P) [2001] ECR I-4319 . . . 594 D’Hoop v Office National de L’Emploi (C-224/98) [2002] ECR I-6191 . . . 565 Da Costa en Schaake NV, Jacob Meijer NV and Hoechst-Holland NV v Nederlandse Belastingadministratie (28–30/62) [1963] ECR 31 . . . 281, 282 Daewoo Electronics Manufacturing España SA (Demesa) and another v Commission (C-183 and 187/02 P) [2004] ECR I-10609 . . . 624 Dalmine SpA v Commission (C-407/04 P) [2007] ECR I-829 . . . 375, 468 Danfoss A/S and Sauer-Danfoss ApS v Skatteministeriet (C-94/10) EU:C:2011:674 . . . 792 Danielsson v Commission (T-219/95 R) [1995] ECR II-3051 . . . 724 Dano v Jobseeker Leipzig (C-333/13) EU:C:2014:2358 . . . 565, 568 Danqua v Minister for Justice and Equality (C-429/15) EU:C:2016:789 . . . 782

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TABLE OF CASES Dansk Automat Brancheforening v European Commission (T-601/11) EU:T:2014:839 . . . 344 Dansk Rørindustri A/S and others v Commission (C-189, 202, 205, 208, and 213/02 P) [2005] ECR I-5425 . . . 604, 605, 631, 632 Danzer and Danzer v Council (T-47/02) [2006] ECR II-1779 . . . 737 Daouidi v Bootes Plus SL (C-395/15) EU:C:2016:917 . . . 507 Data Delecta Aktiebolag and Forsberg v MSL Dynamics Ltd (C-43/95) [1996] ECR I-4661 . . . 560 De Boer Buizen v Council and Commission (81/86) [1987] ECR 3677 . . . 752 de Peijper (104/75) [1976] ECR 613 . . . 671 De Vos v Bielefeld (C-315/94) [1996] ECR I-1417 . . . 553 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Germany (C-279/09) [2010] ECR I-13; EU:C:2010:811 849 . . . 529, 664, 774 Defrenne v Sabena (149/77) (Defrenne III) [1978] ECR 1365 . . . 485, 583, 584, 589 Defrenne v Société Anonyme Belge de Navigation Aérienne (43/75) [1976] ECR 455 . . . 500, 559, 588 Dekker v Stichting voor Jong Volwassenen (VJV) Plus (C-177/88) [1990] I-ECR 3941 . . . 764 Delacre v Commission (C-350/88) [1990] ECR I-395 . . . 622, 625 Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde (C-650/13) EU:C:2015:648 . . . 522 Demarchi Gino Sas v Ministero della Giustizia (C-177/17) EU:C:2017:656 . . . 507 Demo-Studio Schmidt v Commission (210/81) [1983] ECR 3045 . . . 363 Denise Richez-Parise v Commission (19, 20, 25, 30/69) [1970] ECR 325 . . . 745 Denka International BV v Commission (334/07) [2009] ECR II-4205 . . . 603, 647, 698 Denkavit Futtermittel GmbH v Finanzamt Warendorf (139/77) [1978] ECR 1317 . . . 579, 580 Denkavit International v Bundesamt für Finanzen (C-283, 291 and 292/94) [1996] ECR I-5063 . . . 789 Denkavit International BV v Kamer van Koophandel en Fabrieken voor MiddenGelderland (C-2/94) [1996] ECR I-2827 . . . 769 Denkavit Italiana (61/79) [1980] ECR 1205 . . . 762 Der Grüne Punkt-Duales System Deutschland GmbH v Commission (C-385/07 P) [2009] ECR I-6155 . . . 360

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Dereci (C-256/11) [2011] ECR I-11315 . . . 573 Detti v ECJ (144/82) [1983] ECR 2439 . . . 619 Deufil Gmbh & Co KG v Commission (310/85) [1987] ECR 901 . . . 449 Deuka, Deutsche Kraft futter GmbH, B J Stolp v Einfuhr-und Vorratsstelle für Getreide und Futtermittel (78/74) [1975] ECR 421 . . . 448 Deutsche Milch-Kontor GmbH v Germany (205–215/82) EU:C:1983:233; [1983] ECR 2633 . . . 5, 779 Deutsche Paracelsus Schulen für Naturheilverhafen GmbH v Grabner (C-294/00) [2002] ECR I-6515 . . . 687 Deutsche Post AG v Gesellschaft für Zahlungssyteme mbH and Citicorp Kartenservice GmbH (147–148/97) [2000] ECR I-825 . . . 582 Deutsche Telekom AG v European Commission (C-280/08) [2010] ECR I-9555 . . . 370 Deutsche Telekom AG v European Commission (T-210/15) EU:T:2017:224 . . . 396, 525 Deutsche Telekom v Schröder (C-50/96) [2000] ECR I-743 . . . 762 Di Leonardo Adriano Srl and Dilexport Srl v Ministero del Commercio con l’Estero (C-37 and 38/02) [2004] ECR I-6911 . . . 625 Dieckmann & Hansen GmbH v Commission (T-155/99) [2001] ECR II-3143 . . . 629, 630, 638 Dietz v Commission (126/76) [1977] ECR 2431 . . . 757 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (293 and 594/12) EU:C:2014:238 . . . 514, 657, 663 Dilexport v Amministrazione delle Finanze dello Stato (C-343/96) [1999] ECR I-579 . . . 774, 778 Dillenkofer and others v Federal Republic of Germany (C-178–179, 188–190/94) [1996] ECR I-4845 . . . 789 DIR International Film Srl and others v Commission (T-369/94 & 85/95) [1998] ECR II-357 . . . 169, 631 DIR International Film Srl and others v Commission (C-164/98 P) [2000] ECR I-447 . . . 169, 728 Director, Office of Workers’ Compensation Programs, Department of Labor v Greenwich Collieries Director 114 S Ct 2251 (1994) . . . 470 Distillerie Fratelli Cipriani SpA v Ministero delle Finanze (C-395/00) [2002] ECR I-11877 . . . 312, 350 Dita Danosa v LKB Lizings SIA (C-232/09) 11 November 2010 . . . 550

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Dorsch Consult (T-184/95) [1998] ECR II-667 . . . 747, 752 Dorsch Consult Ingenieurgesellschaf mbH v Council (C-237/98 P) [2000] ECR I-4549 . . . 752 Dounias v Ypourgio Oikonomikon (C-228/98) [2000] ECR I-577 . . . 762 Douwe Egberts NV v Westrom Pharma NV (C-239/02) [2004] ECR I-7007 . . . 671 Dover v European Parliament (T-149/09 R) [2009] ECR II-66 . . . 724 Dow AgroSciences Ltd v European Commission (T-475/07) EU:T:2011:445 . . . 456, 699 Dow Chemical v Commission (T-42/07) 13 July 2011 . . . 35 Draehmpaehl v Urania Immobilienservice (C-180/95) [1997] ECR I-2195 . . . 585 Driessen en Zonen v Minister van Verkeer en Waterstaat (C-13–16/92) [1993] ECR I-4751 . . . 623 Du Pont de Nemours (France) SAS v Commission (T-31/07) EU:T:2013:167 . . . 742 Du Pont de Nemours Italiana SpA v Unita Sanitaria Locale No 2 Di Carrara (C-21/88) [1990] ECR I-889 . . . 548 Dubois et Fils SA v Council and Commission (T-113/96) [1998] ECR II-125 . . . 659 Duff v Minister for Agriculture and Food Ireland and the Attorney General (C-63/93) [1996] ECR I-569 . . . 625 Dumortier Frères SA v Council (64, 113/76, 167, 239/78, 27, 28, 45/79) [1979] ECR 3091 . . . 741, 746 Dunsmuir v New Brunswick [2008] 1 SCR 190 . . . 443 Duravit AG v European Commission (C-609/13 P) EU:C:2017:46 . . . 356 Dutka v Mezőgazdasági és Vidékfejlesztési Hivatal (C-614/12 and 10/13) EU:C:2014:30 . . . 507 Dynamic Medien Vertriebs GmbH v Avides Media AG (C-244/06) [2008] ECR I-505 . . . 686 EAR v Karatzoglou (C-213/06 P) [2007] ECR I-6733 . . . 639 Eau de Cologne and Parfumerie-Fabrik Glockengasse No 4711 KG v Provide Srl (C-150/88) [1989] ECR 3891 . . . 286 Eco Swiss China Time Ltd v Benetton International NV (C-126/97) [1999] ECR I-3055 . . . 772, 774 Edeka v Federal Republic of Germany (245/81) [1982] ECR 2745 . . . 625 Edis v Ministero delle Finanze (C-231/96) [1998] ECR I-4951 . . . 768, 774

Éditions Odile Jacob SAS v European Commission (T-471/11) EU:T:2014:739 . . . 460, 602, 732, 733 Eduardo Vieira Sa, Vieira Argentina SA and Pescanova SA v Commission (T-44, 119, 126/01) [2003] ECR II-1209 . . . 737 EEB and Stichting Natuur en Milieu v Commission (T-236 & 241/04) [2005] ECR II-4945 . . . 338 Efisol SA v Commission (T-336/94) [1996] ECR II-1343 . . . 626, 628, 743 Efler v European Commission (T-754/14) EU:T:2017:32 . . . 150 Einfuhr-und Vorratsstelle für Getreide und Futtermittel v Firma C Mackprang (2/75) [1975] ECR 607 . . . 624 Einfuhr- und Vorrasstelle fur Getreide und Futtermittel v Koster, Berodt & Co (25/70) [1970] 2 ECR 1161 . . . 114, 116 Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit (C-449/08) [2009] ECR I-10241 . . . 625 Elisa María Mostaza Claro v Centro Móvil Milenium SL (C-168/05) [2006] ECR I-10421 . . . 772 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas (C-260/89) [1991] ECR I-2925 . . . 486, 531 Eman and Sevinger v College van burgemeester en wethouders van Den Haag (C-300/04) [2006] ECR I-8055 . . . 792 Embassy Limousines & Services v European Parliament (T-203/96) [1998] ECR II-4239 . . . 621 EMC Development AB v European Commission (T-432/05) EU:T:2010:189 . . . 364 Emerald Meats Ltd v Commission (C-106 and 317/90 and 129/91) [1993] ECR I-209 . . . 331 Emesa Sugar (Free Zone) NV v Aruba (C-17/98) [2000] ECR I-675 . . . 475 Emmott v Minister for Social Welfare (C-208/90) [1991] ECR I-4269 . . . 764 Emsland-Stärke GmbH v Landwirtschaft skammer Hannover (C-94/05) [2006] ECR I-2619 . . . 665 EnBW Kernkraft GmbH v Commission (T-283/02) [2005] ECR II-913 . . . 619, 744 Enderby v Frenchay Health Authority and the Secretary of State for Health (127/92) [1993] ECR 5535 . . . 587, 588 Enso Española SA v Commission (T-348/94) [1998] ECR II-1875 . . . 360 ENU v Commission (T-458 & 523/93) [1995] ECR II-2459 . . . 744

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Table of Cases Enviro Tech Europe Ltd and Enviro Tech International, Inc v European Commission (T-291/04) EU:T:2011:760 . . . 456 Environmental Defense Fund Inc v Ruckelshaus, 439 F2d 584 (DC Cir 1971) . . . 478 ER v Council and Commission (T-138/03) [2006] ECR II-4923 . . . 747, 754, 755, 756 Eridania and others v Council (T-168/95 R) [1995] ECR II-2817 . . . 724 Eridania SpA v Azienda Agricola San Luca di Rumagnoli Viannj (C-289/97) [2000] ECR I-5409 . . . 463 Eridania Zuccherifici Nazionali v Ministre de l’Agriculture et des Forêts (230/78) [1979] ECR 2749 . . . 577, 579 Érsekcsanádi Mezőgazdasági Zrt v Bács-Kiskun Megyei Kormányhivatal (C-56/13) EU:C:2014:352 . . . 507 Erzeugerorganisation Tiefühlgemüse eGen v Agrarmarkt Austria (C­516/16) EU:C:2017:1011 . . . 640 Estabelecimentos Isidore M Oliveira SA v Commission (T-73/95) [1997] ECR II-381 . . . 624 Etablissments Biret et Cie SA v Council (T-210/00) [2002] ECR II-47 . . . 747 Etimine SA v Secretary of State for Work and Pensions (C-15/10) EU:C:2011:50 . . . 456 ‘Eturas’ UAB v Lietuvos Respublikos konkurencijos taryba (C-74/14) EU:C:2016:42 . . . 782 Eugénio Branco Ld v Commission (T-347/03) [2005] ECR II-2555 . . . 624 Euroagri Srl v Commission (T-180/01) [2004] ECR II-369 . . . 610, 611 Europa Way Srl and Persidera SpA v Autorità per le Garanzie nelle Comunicazioni (C­560/15) EU:C:2017:593 . . . 619 European Commission v Federal Republic of Germany (C-426/13 P(R)) EU:C:2013:848 . . . 723 European Commission v Hansestadt Lübeck (C-524/14 P) EU:C:2016:97 . . . 339 European Commission v Kadi (C-584, 593 and 595/10 P) EU:C:2013:518 . . . 312, 350, 356, 462 European Commission v Moravia Gas Storage as (C­596/13 P) EU:C:2015:203 . . . 603 European Commission v Netherlands (C-233/14) EU:C:2016:396 . . . 571 European Commission v UK (C-640/13) EU:C:2014:2457 . . . 776 European Commission v UK (C-308/14) EU:C:2016:436 . . . 568 European Medical Association (EMA) v European Commission (T-116/11) EU:T:2013:634 . . . 753

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European Medicines Agency (EMA) v InterMune UK Ltd (C-390/13 P(R)) EU:C:2013:795 . . . 723 European Night Services v Commission (T-374, 375, 384 and 388/94) [1998] ECR II-3141 . . . 376, 481 European Ombudsman v Frank Lamberts (C-234/02 P) [2004] ECR I-2803 . . . 736, 737, 817, 818 European Ombudsman v Staelen (C-337/15 P) [2017] ECR II-220 . . . 818 European Parliament v Commission (C-156/93) [1995] ECR I-2019 . . . 119, 133 European Parliament v Commission (C-65/13) EU:C:2014:2289 . . . 141, 146 European Parliament v Commission and Council (C-103 and 165/12) EU:C:2014:334 . . . 423 European Parliament and Council v Commission (C-286/14) EU:C:2016:183 . . . 141, 145, 146, 730 European Parliament v Council (302/87) [1988] ECR 5615 . . . 272 European Parliament v Council (C-70/88) [1990] ECR I-2041 . . . 272 European Parliament v Council (C-295/90) [1992] ECR I-4193 . . . 421, 728 European Parliament v Council (Government Procurement) (C-360/93) [1996] ECR I-1195 . . . 728 European Parliament v Council (C-417/93) [1995] ECR I-1185 . . . 119 European Parliament v Council (Road Taxes) (C-21/94) [1995] ECR I-1827 . . . 728, 732 European Parliament v Council (Re the Edicom Decision) (C-271/94) [1996] ECR I-1689 . . . 422 European Parliament v Council (C-41/95) [1995] ECR I-4411 . . . 730 European Parliament v Council (C-259/95) [1997] ECR I-5303 . . . 119 European Parliament v Council (C-392/95) [1997] ECR I-3213 . . . 729 European Parliament v Council (Telematic Networks) (C-22/96) [1998] ECR I-3231 . . . 728 European Parliament v Council (C-93/00) [2001] ECR I-10119 . . . 729 European Parliament v Council (C-436/03) [2006] ECR I-3733 . . . 422 European Parliament v Council (C-133/06) [2008] ECR I-3189 . . . 121 European Parliament v Council (C-166/07) [2009] ECR I-7135 . . . 730 European Parliament v Council (C-363/14) EU:C:2015:579 . . . 133

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European Parliament v Gaspari (C-316/97 P) [1998] ECR I-7597 . . . 370 European Parliament and European Commission v Council (C-124–125/13) EU:C:2015:790 . . . 730 European Training Foundation (ETF) v Pia Landgren (T-404/06 P) [2009] ECR II-2841 . . . 640 European Wire Rope Importers Association (EWRIA) v Commission (T-369/08) [2010] ECR II-6283 . . . 731 EU-Wood-Trading GmbH v SonderabfalManagement-Gesellschaf Rheinland-Pfalz mbh (C-277/02) [2004] ECR I-11957 . . . 686 Evans v Secretary of State for the Environment, Transport and the Regions and the Motor Insurers’ Bureau (C-63/01) [2003] ECR I-14447 . . . 771, 790 Evropaïki Dynamiki-Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission (T-300/07) EU:T:2010:372 . . . 463 Executif Régional Wallon and Glaverbel SA v Commission (62 & 72/87) [1988] ECR 1573 . . . 449 Extramet Industrie SA v Council (C-358/89) [1991] ECR I-2501 . . . 334 Eyckeler & Malt AG v Commission (T-42/96) [1998] ECR II-401 . . . 353, 354, 356 Falck SpA and Accialierie di Bolzano SpA v Commission (C-74 and 75/00) [2002] ECR I-7869 . . . 366, 381, 602, 622 Fantask A/S v Industriministeriet (C-188/95) [1997] ECR I-6783 . . . 768 Fazenda Pública v Camara Municipal do Porto (C-446/98) [2000] ECR I-11435 . . . 772 Federación de Cooperativas Agrarias de la Comunidad Valenciana v Community Plant Variety Office (CPVO) (T-95/06) [2008] ECR II-31 . . . 338 Fédération Charbonnière de Belgique v High Authority (8/55) [1956] ECR 245 . . . 405, 576, 643 Fédération Française des Sociétés d’Assurances (FFSA) v Commission (T-106/95) [1997] ECR II-229 . . . 442 Fédération internationale de football association (FIFA) v European Commission (T-68/08) [2011] ECR II-349 . . . 659 Fédération Nationale d’Agriculture Biologique des Regions de France v Council (C-345/00 P) [2001] ECR I-3811 . . . 274 Fédération Nationale du Commerce Exterieur des Produits Alimentaires v France (C-354/90) [1991] ECR I-5505 . . . 779

Federcoopesca v European Commission (T-312/14) EU:T:2015:472 . . . 344, 346 Ferriere Nord SpA v Commission (T-176/01) [2004] ECR II-3931 . . . 634 Ferriere Nord SpA v Commission (C-49/05 P) [2008] ECR I-68 . . . 634 Ferring SA v Agence Centrale des Organismes de Securité Sociale (ACOSS) (C-53/00) [2001] ECR II-9067 . . . 442 FIAMM v Council and Commission (C-120–121/06 P) [2008] ECR I-6513 . . . 740, 752 Finanmadrid EFC SA v Jesús Vicente Albán Zambrano (C-49/14) EU:C:2016:98 . . . 774 Finanzamt Bergisch Gladbach v HE (C-25/03) [2005] ECR I-3123 . . . 680 Finanzamt Goslar v Brigitte Breitsohl (C-400/98) [2000] ECR I-4321 . . . 603 Finsider v Commission (C-363–4/88) [1992] ECR I-359 . . . 747 Fiorini (neé Cristini) v Société Nationale des Chemins de Fer Français (32/75) [1975] ECR 1085 . . . 552, 690 Firma A Racke v Hauptzollamt Mainz (98/78) [1979] ECR 69 . . . 447, 448, 450, 451, 602 Firma A Racke v Hauptzollamt Mainz (283/83) [1984] ECR 3791 . . . 576 Firma Foto-Frost v Hauptzollamt Lubeck-Ost (314/85) [1987] ECR 4199 . . . 282, 305, 336, 725 Firma Kühlhaus Zentrum AG v Hauptzollamt Hamburg-Harburg (79/77) [1978] ECR 611 . . . 577 Firma Leon Van Parys NV and Pacific Fruit Company NV v Commission (T-160/98) [2002] ECR II-233 . . . 756 Firma Wilhelm Fromme v Bundesanstalt für Landwirtschaftliche Marktordnung (54/81) [1982] ECR 1449 . . . 778 Fiskano v Commission (C-135/92) [1994] ECR I-2885 . . . 314, 352 Flemmer v Council and Commission (C-80–82/99) [2001] ECR I-7211 . . . 605 Flos SpA v Semeraro Casa e Famiglia SpA (C-168/09) EU:C:2011:29 . . . 607 FMC Corp v European Commission (T-197/06) EU:T:2011:282 . . . 356 FMC Foret v Commission (T-191/06) [2011] ECR II-2959 . . . 358 Football Association Premier League Ltd and Others v QC Leisure (C-403 and 429/08) EU:C:2011:631 . . . 675 Forde-Reederie GmbH v Council and Commission (T-170/00) [2002] ECR II-515 . . . 752 Foshan City Nanhai Golden Step Industrial Co, Ltd v Council (T-410/06) 4 March 2010 . . . 313, 350

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Table of Cases Foshan Shunde Yongjian Housewares & Hardware Co Ltd v Council (C-141/08 P) [2009] ECR I-9147 . . . 313, 350 France v Commission (C-301/87) [1990] ECR I-307 . . . 352 France v Commission (Re Pension Funds Communication) (C-57/95) [1997] ECR I-1627 . . . 266 France v Commission (C-235/97) [1998] ECR I-7555 . . . 89 France v Commission (C-456/00) [2002] ECR I-11949 . . . 467 France v Commission (C-393/01) [2003] ECR I-5405 . . . 706 France v Commission (T-257/07 R) [2007] ECR II-4153 . . . 723 France v European Commission (T-344/15) EU:T:2017:250 . . . 397 France, SCPA and EMC v Commission (C-68/94 & 30/95) [1998] ECR I-1375 . . . 470 France Télécom SA v Commission (T-339/04) [2007] ECR II-521 . . . 433 France Télécom SA v Commission (T-340/04) [2007] ECR II-573 . . . 375 France-Aviation v Commission (T-346/94) [1995] ECR II-2841 . . . 353 Franchet and Byk v Commission (T-391/03 & 70/04) [2006] ECR II-2023 . . . 397 François Vainker and Brenda Vainker v European Parliament (T-48/01) [2004] ECR IA-51 . . . 749 Francovich and Bonifaci v Italy (C-6/90 & C-9/90) [1991] ECR I-5357 . . . 218, 274, 541, 782, 783, 792 Freers and Speckmann v Deutsche Bundespost (C-278/93) [1996] ECR I-1165 . . . 587, 679 Freistaat Sachsen v Commission (T-357/02) [2007] ECR II-1261 . . . 602 Freistaat Sachsen and Volkswagen Ag and Volkswagen Sachsen GmbH v Commission (C-57 and 61/00 P) [2003] ECR I-9975 . . . 466 French Republic v Commission (T-240/04) [2007] ECR II-4035 . . . 405, 601 French Republic v European Commission (T-549/13) EU:T:2016:6 . . . 465 Fresh Marine Company SA v Commission (T-178/98) [2000] ECR II-3331 . . . 743, 744, 745, 747 Frico v VIV (424–425/85) [1987] ECR 2755 . . . 619 Friedrich G Barth v Bundesministerium für Wissenschaft und Forschung (C-542/08) 15 April 2010 . . . 774 Front Polisario v Council (T-512/12) EU:T:2015:953 . . . 344

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Frucona Košice as v European Commission (T-103/14) EU:T:2016:15 . . . 728 Fuji Electric Co v Commission (T-132/07) EU:T:2011:344 . . . 519 Fuss v Stadt Halle (C-429/09) 25 November 2010 . . . 785 Fux v Commission (26/68) [1969] ECR 145 . . . 749 Galileo International Technology LLC v Commission (T-279/03) [2006] ECR II-1291 . . . 748, 750 Garage Molenheide BVBA v Belgische Staat (C-286/94, 340 and 401/95, and 47/96) [1997] ECR I-7281 . . . 680 Gauweiler v Deutscher Bundestag (C-62/14) EU:C:2015:400 . . . 645 GE Betz, Inc, formerly BetzDearborn Inc v OHIM (T-107/02) [2004] ECR II-1845 . . . 619 GEA Group AG v European Commission (T-189/10) EU:T:2015:504 . . . 312, 353 Gebroeders van Es Douane Agenten BV v Inspecteur der Invoerrechten en Accijnzen (C-143/93) [1996] ECR I-431 . . . 601 Gebrüder Lorenz GmbH v Germany (120/73) [1973] ECR 1471 . . . 362, 365 Geitling v High Authority (36, 37, 38, & 40/59) [1960] ECR 423 . . . 485 Geitling, Mausegatt and Prasident v High Authority (16–18/59) [1960] ECR 17 . . . 362 Germany v Commission (24/62) [1963] ECR 63 . . . 370, 371 Germany v Commission (34/62) [1963] ECR 131 . . . 576 Germany v Commission (84/82) [1984] ECR 145 . . . 365 Germany v Commission (281, 283–285, 287/85) [1987] ECR 3203 . . . 405 Germany v Commission (C-426/93) [1995] ECR I-3723 . . . 654 Germany v Commission (C-54/95) [1999] ECR I-35 . . . 89 Germany v Commission (C-399/95 R) [1996] ECR I-2441 . . . 723 Germany v Commission (C-301/96) [2003] ECR I-9919 . . . 370 Germany v Commission (C-239/01) [2003] ECR I-10333 . . . 731 Germany v Commission (T-374/04) [2007] ECR II-4431 . . . 631 Germany v Commission (T-74/07) [2009] ECR II-107 . . . 666 Germany v Council (C-280/93) [1994] ECR I-4973 . . . 475, 476, 521, 581, 659 Germany v European Parliament and Council (C-233/94) [1997] ECR I-2405 . . . 404, 431

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Germany v European Parliament and Council (C-376/98) [2000] ECR I-8419 . . . 404, 424, 660 Germany v European Parliament and Council (C-380/03) [2006] ECR I-11573 . . . 405, 645 Germany v European Parliament and Council (C-113/14) EU:C:2016:635 . . . 730 Gestoras Pro Amnistia, Olano and Errasti v Council (C-354/04 P) [2007] ECR I-1579 . . . 268 Geven v Land Nordrhein-Westfalen (C-213/05) [2007] ECR I-6347 . . . 553 Gielen v Staatssecretaris van Financiën (C-440/08) [2010] ECR I-2323 . . . 287 Giuffrida v Council (105/75) [1976] ECR 1395 . . . 469 GlaxoSmithKline Services Unlimited v Commission (T-168/01) [2006] ECR II-2969 . . . 432 GlaxoSmithKline Services Unlimited v Commission (C-501, 513, 515 and 519/06 P) [2009] ECR I-9291 . . . 460 Gonnelli and AIFO v Commission (T-231/02) [2004] ECR II-1051 . . . 338 González y Díez, SA v Commission (T-25/04) [2007] ECR II-3121 . . . 465, 603 Gowan Comércio Internacional e Serviços Lda v Ministero della Salute (C-77/09) [2010] ECR T-13533 . . . 456, 477, 647, 698, 699 Granaria BV v Hoofdprodukschap voor Akkerbouwprodukten (116/76) [1977] ECR 1247 . . . 665 Grant v South-West Trains Ltd (C-249/96) [1998] ECR I-621 . . . 594 Graphischer Maschinenbau GmbH v Commission (T-126/99) [2002] ECR II-2427 . . . 466, 731 Gravier v City of Liège (293/83) [1985] ECR 593 . . . 562, 563 Greater Boston Television Corp v Federal Communications Commission 444 F 2d 841, 850–53 (DC Cir 1970) . . . 478 Greece v Commission (C-259/87) [1990] ECR I-2845 . . . 753 Greece v Commission (C-278/00) [2004] ECR I-3997 . . . 624, 666 Gregorio My v ONP (C-293/03) [2004] ECR I-12013 . . . 286 Grifoni v EAEC (C-308/87) [1994] ECR I-341 . . . 748 Groener v Minister for Education (379/87) [1989] ECR 3967 . . . 548 Groupe Danone v Commission (C-3/06 P) [2007] ECR I-1331 . . . 604, 667

Groupement des Hauts Fourneaux et Acieries Belges v High Authority (8/57) [1957–8] ECR 245 . . . 579 Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority (7 & 9/54) [1955–56] ECR 53 . . . 576 Grundig Italiana SpA v Ministero delle Finanze (C-255/00) [2002] ECR I-8003 . . . 775 Grundstuckgemeinschaft Schloßstraße GbR v Finanzamt Paderborn (C-396/98) [2000] ECR I-4279 . . . 603 GruSa Fleisch GmbH & Co KG v Hauptzollamt Hamburg-Jonas (C-34/92) [1993] ECR I-4147 . . . 602 Grynberg and Hall v Commission (T-534/93) [1994] ECR II-595 . . . 619 Guardian Europe Sàrl v European Union (T-673/15) EU:T:2017:37 . . . 747 Guerin Automobiles v Commission (C-282/95 P) [1997] ECR I-503 . . . 267 Haahr Petroleum v Havn (C-90/94) [1997] ECR I-4085 . . . 768 Haim v Kassenzahnärztliche Vereinigung Nordrhein (C-424/97) [2000] ECR I-5123 . . . 785, 791, 792 Hamcho International v Council of the European Union (T-153/15) EU:T:2016:630 . . . 313 Hameico Stuttgart GmbH v Council and Commission (T-99/98) [2003] ECR II-2195 . . . 737, 748 Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss (109/88) [1989] ECR 3199 . . . 585, 586 Hans-Martin Tillack v Commission (T-193/04) [2006] ECR II-3995 . . . 737, 740 Haralambidis (C-270/13) EU:C:2014:2185 . . . 555 Hartlauer (C-169/07) [2009] ECR I-1721 . . . 674 Hartmann v Freistaat Bayern (C-212/05) [2007] ECR I-6303 . . . 553 Hassan and Ayadi v Council and Commission (C-399 & 403/06) [2009] ECR I-11393 . . . 352 Hauer v Land Rheinland-Pfalz (44/79) [1979] ECR 3727 . . . 485, 660 Hauptzollamt Bremerhaven v Massey-Ferguson (8/73) [1973] ECR 897 . . . 421 Hauptzollamt Koblenz v Kurt und Thomas Etling in GbR (C-230–231/09) EU:C:2011: 271 . . . 605 Hauptzollamt München-Mitte v Technische Universitat München (C-269/90) [1991] ECR I-5469 . . . 314, 363

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Table of Cases Hautala v Council (C-353/99 P) [2001] ECR I-9565 . . . 393, 394, 656 Hayes and Hayes v Kronenberger GmbH (C-323/95) [1997] ECR I-1711 . . . 560 Health Food Manufacturers’ Association and Others v European Commission (T-296/12) EU:T:2015:375 . . . 316 HEG Ltd and Graphite India Ltd v Council (T-462/04) [2008] ECR II-3685 . . . 463 Heineken Brouwerijen BV v Inspecteur der Vennootschapsbelasting (127/83) [1984] ECR 3435 . . . 365 Hellenic Republic v European Commission (T-233/11) EU:T:2015:948 . . . 466 Hellmut Marschall v Land Nordrhein Westfalen (C-409/95) [1997] ECR I-6363 . . . 591 Henri de Compte v EP (C-90/95 P) [1997] ECR I-1999 . . . 608, 609, 616, 618 Henri de Compte v European Parliament (141/84) [1985] ECR 1951 . . . 358 Herbert Smith Freehills LLP v Council of the European Union (T-710/14) EU:T:2016:49 . . . 397 Hercules Chemicals NV v Commission (C-51/92 P) [1999] ECR I-4235 . . . 355, 729 Hernández v Reino de España (Subdelegación del Gobierno de España en Alicante) (C-198/13) EU:C:2014:2055 . . . 507 Herpels v Commission (54/77) [1978] ECR 585 . . . 610, 618 Hijos de Andres Molina SA (HAMSA) v Commission (T-152/99) [2002] ECR II-3049 . . . 439, 442 Hill and Stapleton v Revenue Commissioners (C-243/95) [1998] ECR I-3739 . . . 587 Hirsch, Nicastro and Priesemann v ECB (T-94, 152 & 286/01) [2003] ECR IA-1 . . . 734 Hitachi v Commission (T-112/07) EU:T:2011:3871 . . . 356 HN v Minister for Justice, Equality and Law Reform (C-604/12) EU:C:2014:302 . . . 372 Hoechst GmbH v Commission (T-410/03) [2008] ECR II-881 . . . 357 Hoechst GmbH v Commission (T-161/05) [2009] ECR II-3555 . . . 356 Hoek Loos NV v Commission (T-304/02) [2006] ECR II-1887 . . . 733 Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (75/63) [1964] ECR 177 . . . 549 Hoffman’s Stärkefabriken v Hauptzollamt Bielefeld (2/77) [1977] ECR 1375 . . . 581 Hoffmann-La Roche v Commission (85/76) [1979] ECR 461 . . . 312

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Höfner and Elser v Macrotron GmbH (C-41/90) [1991] ECR I-1979 . . . 582 Holcim (Deutschland) AG v Commission (T-28/03) [2005] ECR II-1357 . . . 731, 753 Holcim (Deutschland) AG v Commission (C-282/05 P) [2007] ECR I-2941 . . . 731, 736, 742 Holcim (Romania) SA v European Commission (T-317/12) EU:T:2014:782 . . . 755 Holland Malt v Commission (T-369/06) [2009] ECR II-3313 . . . 624 Holtz & Willemsen v Council (153/73) [1974] ECR 675 . . . 581, 740 Hoogovens v High Authority (14/61) [1962] ECR 253 . . . 270, 362, 615 Hortiplant SAT v Commission (C-330/01) [2004] ECR I-1763 . . . 106 Hotel Cipriani SpA and Others v Commission (T-254, 270, 277/00) [2008] ECR II-3269 . . . 465 Humanplasma GmbH v Republik Österreich (C-421/09) [2010] ECR I-12869 . . . 683 Humblet v Belgium (6/60) EU:C:1960:48[1960] ECR 559 . . . 5, 759, 764 Hungary v Commission (T-310/06) [2007] ECR II-4619 . . . 465 Hungary v Commission (C-31/13 P) EU:C:2014:70 . . . 267 Hupeden & Co KG v Hauptzollamt HamburgJonas (C-295/94) [1996] ECR I-3375 . . . 665 Hyper Srl v Commission (T-205/99) [2002] ECR II-3141 . . . 356 Icap plc v European Commission (T­180/15) EU:T:2017:795 . . . 601 ICI v Commission (T-36–37/91) [1995] ECR II-1847 . . . 355 ICI v Commission (T-66/01) EU:T:2010:255 . . . 356 IFAW Internationaler Tierschultz-Fonds GmbH v Commission (T-168/02) [2004] ECR II-4135 . . . 397 IFAW Internationaler Tierschutz-Fonds GmbH v European Commission (T-362/08) [2011] ECR II-11 . . . 656 IFAW Internationaler Tierschutz-Fonds GmbH v European Commission (C-135/11 P) EU:C:2012:376 . . . 397 Ijssel-Vliet Combinatie BV v Minister van Economische Zaken (C-311/94) [1996] ECR I-5023 . . . 631 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien (C-208/09) EU:C:2010:806 . . . 686 IMI plc, IMI Kynoch Ltd and Yorkshire Copper Tube v European Commission (T-18/05) [2010] ECR II-1769 . . . 667

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Impact v Minister for Agriculture and Food (C-268/06) [2008] ECR I-2483 . . . 773 Industrie des Poudres Spheriques SA v Commission (T-5/97) [2000] ECR II-3755 . . . 364 Industrie des Poudres Spheriques v Council and Commission (C-458/98 P) [2000] ECR I-8147 . . . 149, 313, 350, 364, 525, 732 Industrie-en Handelsonderneming Vreugdenhil BV v Commission (C-282/90) [1992] ECR I-1937 . . . 741 Innova Privat-Akademie GmbH v Commission (T-273/01) [2003] ECR II-1093 . . . 620 INPS v Bruno, Pettini, Lotti, Mateucci (C-395 & 396/08) [2010] ECR I-5119 . . . 678 Interhotel v Commission (C-291/89) [1991] ECR I-2257 . . . 313, 350 Interhotel-Sociedade Internacional de Hoteis SARL v Commission (T-81/95) [1997] ECR II-1265 . . . 611–13 Intermodal Transports BV v Staatssecretaris van Financien (C-459/03) [2005] ECR I-8151 . . . 281 International Business Machines Corporation v Commission (60/81) [1981] ECR 2639 . . . 267 International Cadmium Association (ICdA) v European Commission (T-456/11) EU:T:2013:594 . . . 456 International Chemical Corporation v Amministrazione delle Finanze dello Stato (66/80) [1981] ECR 1191 . . . 282, 734 International Express Carriers Conference v Commission (T-133 and 204/95) [1998] ECR II-3645 . . . 468 International Express Carriers Conference (IECC) v Commission, La Poste, UK and the Post Office (C-449/98 P) [2001] ECR I-3875 . . . 364 International Fruit Company v Produktschap voor Groenten en Fruit (No 2) (51–54/71) [1971] ECR 1107 . . . 548 International Potash Company v Council (T-87/98) [2000] ECR II-3179 . . . 650, 651 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti (C-438/05) [2007] ECR I-10779 . . . 687–9, 693 Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel (11/70) [1970] ECR 1125 . . . 485, 643 Internationaler Hilfsfonds eV v European Commission (T-300/10) EU:T:2012:247 . . . 394 Interpipe Nikopolsky Seamless Tubes v Council (T-49/06) [2009] ECR II-383 . . . 463

Interporc Im- und Export GmbH v Commission (C-41/00 P) [2003] ECR I-2125 . . . 394, 732 Inuit Tapiriit Kanatami v European Commission (T-526/10) EU:T:2013:215 . . . 647 Inuit Tapiriit Kanatami v Parliament and Council (C-583/11 P) EU:C:2013:625 . . . 343, 347 Inuit Tapiriit Kanatami v European Commission (C-398/13 P) EU:C:2015:535 . . . 495, 530 Inzirillo v Caisse d’Allocations Familiales de l’Arrondissement de Lyon (63/76) [1976] ECR 2057 . . . 553 IPK-München GmbH v Commission (C-199–200/01 P) [2004] ECR I-4627 . . . 732 Ireks-Arkady v Council and Commission (238/78) [1979] ECR 2955 . . . 749, 750 Irish Farmers Association v Minister for Agriculture, Food and Forestry (Ireland) and the Attorney General (C-22/94) [1997] ECR I-1809 . . . 625 Italian Republic v Commission (13/63) [1963] ECR 165 . . . 577 Italy v Commission (C-253/97) [1999] ECR I-7529 . . . 89 Italy v Commission (C-372/97) [2004] ECR I-3679 . . . 666 Italy v Commission (C-99/99) [2000] ECR I-11535 . . . 465 Italy v Commission (C-298/00 P) [2004] ECR I-4087 . . . 622 Italy v Commission (C-91/01) [2004] ECR I-4355 . . . 467, 633 Italy v Council (C-340/98) [2002] ECR I-2663 . . . 625, 627 Italy v Council (C-120/99) [2001] ECR I-7997 . . . 463 Italy and Brandt Italia SpA v Commission (T-239 & 323/04) [2009] ECR II-3265 . . . 779 ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit (C-208/05) [2007] ECR I-181 . . . 674 J van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit (C-222–225/05) [2007] ECR I-4233 . . . 771, 772 Jamal Ouariachi v Commission (T-124/04) [2005] ECR II-4653 . . . 750 JämställdhetsOmbudsmannen v Örebro läns landsting (C-236/98) [2000] ECR I-2189 . . . 587 Jean-Charles Marchiani v European Parliament (C-566/14) EU:C:2016:437 . . . 312, 350, 619 Jean-Claude Martinez, Charles de Gaulle, Front National and Emma Bonino v EP (T-222, 327 and 329/99) [2001] ECR II-2823 . . . 620, 656

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Table of Cases Jean-Paul François v Commission (T-307/01) [2004] ECR II-1669 . . . 732, 749 Jégo-Quéré et Cie SA v Commission (T-177/01) [2002] ECR II-2365 . . . 339 Jenkins v Kingsgate (Clothing Productions) Ltd (96/80) [1981] ECR 911 . . . 587 JFE Engineering Corp v Commission (T-67, 68, 71 and 78/00) [2004] ECR II-2501 . . . 636 Jippes v Minister van Landbouw, Natuurbeheer en Visserij (C-189/01) [2001] ECR I-5689 . . . 647 JingAo Solar Co Ltd v Council of the European Union (T­157/14) EU:T:2017:127 . . . 604, 659 JK Otsa Talu OÜ v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA) (C-241/07) [2009] ECR I-4323 . . . 625 J N v Staatssecretaris van Veiligheid en Justitie (C-601/15 PPU) EU:C:2016:84 . . . 530 Job Centre coop arl (C-55/96) [1997] ECR I-7119 . . . 582 Jobcenter Berlin Neukölln v Nazifa Alimanovic (C-67/14) EU:C:2015:597 . . . 568 Johnson v Chief Adjudication Officer (C-410/92) [1994] ECR I-5483 . . . 768 Johnston v Chief Constable of the Royal Ulster Constabulary (222/84) [1986] ECR 1651 . . . 486, 589, 676, 762 Jörn Petersen v Landesgeschäftsstelle des Arbeitsmarktservice Niederösterreich (C-228/07) [2008] ECR I-6989 . . . 549 Jőrös v Aegon Magyarország Hitel Zrt (C-397/11) EU:C:2013:340 . . . 772 Jose Maria Sison v Council (C-266/05 P) [2007] ECR I-1233 . . . 396, 645 Jose Marti Peix, SA v Commission (T-125/01) [2003] ECR II-865 . . . 731 Josep Peñarroja Fa (C-372–373/09) [2011] ECR I-1785 . . . 674 Julia Abad Pérez v Council of the European Union and Commission (T-304/01) [2006] ECR II-4857 . . . 742, 746, 747 Julius Kind AG v EEC (106/81) [1982] ECR 2885 . . . 579, 740 JZ (C-294/16 PPU) EU:C:2016:610 . . . 530 Kadi v European Commission (T-85/09) [2010] ECR II-5177 . . . 461, 475 Kadi and Al Barakaat International Foundation v Council and Commission (C-402 & C-415/05 P) [2008] ECR I-6351 . . . 350, 353, 461, 536, 657, 659, 730 Kahla/Thüringen Porzellan GmbH v Commission (T-20/03) [2008] ECR II-2305 . . . 465

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Kahla Thüringen Porzellan GmbH v Commission (C-537/08 P) EU:C:2010:769 . . . 619 Kalanke v Freie Hansestadt Bremen (C-450/93) [1995] ECR I-3051 . . . 590, 598 Kalliope Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg (C-15/96) [1998] ECR I-47 . . . 547 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd (C-167/01) [2003] ECR I-10155 . . . 674 Kamino International Logistics BV and Datema Hellmann Worldwide Logistics BV v Staatssecretaris van Financiën (C-129–130/13) EU:C:2014:2041 . . . 313, 353, 361 Kampffmeyer v Commission (5, 7, 13–24/66) [1967] ECR 245 . . . 749, 754, 757 Kampffmeyer v Commission and Council (56–60/74) [1976] ECR 711 . . . 748 Kapniki Michaelidis AE v Idryma Koinonikon Asfaliseon (IKA) (C-441–442/98) [2000] ECR I-7145 . . . 778 Karl Meyer v Commission (T-333/01) [2003] ECR II-117 . . . 747 Karner Industrie-Auktionen GmbH v Troostwijk GmbH (C-71/02) [2004] ECR I-3025 . . . 685 Kaufring AG v Commission (T-186, 187, 190, 192, 210, 211, 216–218, 279–280, 293/97 & 147/99) [2001] ECR II-1337 . . . 353 Kemikalieinspektionen v Toolex Alpha AB (C-473/98) [2000] ECR I-5681 . . . 671, 696 Kempf v Staatssecretaris van Justitie (139/85) [1986] ECR 1741 . . . 549 Kendrion NV v European Union, represented by the Court of Justice of the European Union (T-479/14) EU:T:2017:48 . . . 747 Kenny v Minister for Justice, Equality and Law Reform (C-427/11) EU:C:2013:122 . . . 678 KG in der Firma Hans-Otto Wagner GmbH Agrarhandel v Bundesanstalt für Landwirtschaftliche Marktordnung (8/82) [1983] ECR 371 . . . 576, 577, 579 Khaled Boudjlida v Préfet des Pyrénées-Atlantiques (C-249/13) EU:C:2014:2431 . . . 314, 350 Kingdom of Sweden v Commission (T-229/04) [2007] ECR I-2437 . . . 700 Kiriaki Angelidaki and Others (C-378–380/07) [2009] ECR I-03071 . . . 773 Kirtruna SL and Elisa Vigano v Red Elite de Electrodomésticos SA (C-313/07) [2008] ECR I-7907 . . . 286 Kiselev v Council of the European Union (T-262/15) EU:T:2017:392 . . . 520 Kjell Karlsson (C-292/97) [2000] ECR I-2737 . . . 517, 518

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Klausner Holz Niedersachsen GmbH v Land Nordrhein-Westfalen (C-505/14) EU:C:2015:742 . . . 774 Klockner v Commission (303 and 312/81) [1983] ECR 1507 . . . 639 KME Germany v Commission (C-272/09) EU:C:2011:63 . . . 360 Knauf Gips KG v European Commission (C-407/08 P) EU:C:2010:389 . . . 356, 519 Köbler v Austria (C-224/01) [2003] ECR I-10239 . . . 787, 789 Kol v Land Berlin (C-285/95) [1997] ECR I-3069 . . . 624 Koldo Gorostiaga Atxalandabaso v European Parliament (C-308/07 P) [2009] ECR I-1059 . . . 360 Kone v Commission (T-151/07) EU:T:2011: 365 . . . 356 Konle v Austria (C-302/97) [1999] ECR I-3099 . . . 791 Kontouli v Council (T-416/04) [2006] ECR II-A-2 897 . . . 609, 616 Kowalska v Freie und Hansestadt Hamburg (33/89) [1990] ECR 2591 . . . 587, 679 Kramer (3, 4 and 6/76) [1976] ECR 1279 . . . 408 Kranemann v Land-Rheinland Westfalen (C-109/04) [2005] ECR I-2421 . . . 549 Kreil v Bundesrepublik Deutschland (C-285/98) [2000] ECR I-69 . . . 589, 676 Kremzow v Austria (C-299/95) [1997] ECR I-2629 . . . 486, 505 Krohn & Co Import-Export GmbH & Co KG v Commission (175/84) [1986] ECR 753 . . . 756 Kruger GmbH & Co KG v Hauptzollamt Hamburg-Jonas (C-334/95) [1997] ECR I-4517 . . . 726 Kuhl v Council (71/72) [1973] ECR 705 . . . 753 Kuijer v Council (T-211/00) [2002] ECR II-485 . . . 394 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department (C-200/02) [2004] ECR I-9925 . . . 680 Kuratorium für Dialyse und Nierentransplantation v Lewark (C-457/93) [1996] ECR I-243 . . . 587, 679 Kusterman v Council and Commission (T-201/94) [2002] ECR II-415 . . . 736 Kutz-Bauer v Freie und Hansestadt Hamburg (C-187/00) [2003] ECR I-2741 . . . 679 KYDEP v Council and Commission (C-146/91) [1994] ECR I-4199 . . . 743 Kyocera Mita Europe BV v European Commission (C-553/14 P) EU:C:2015:805 . . . 344 Kyowa Hakko Kogyo Co Ltd and Kyowa Hakko Europe GmbH v Commission (T-223/00) [2003] ECR II-2553 . . . 619, 636

La Cinq SA v Commission (T-44/90) [1992] ECR II-1 . . . 383, 481 Laara, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v Finland (C-124/97) [1999] ECR I-6067 . . . 522, 686 Laboratoires Pharmaceutiques Bergaderm SA and Goupil v Commission (C-352/98 P) [2000] ECR I-5291 . . . 738, 741, 742, 744, 782, 786 Ladbroke Racing Ltd v Commission (T-67/94) [1998] ECR II-1 . . . 731 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator (C-258/08) [2010] ECR I-4757 . . . 686 Laga v Commission (T-93/95) [1998] ECR II-195 . . . 737 Lagardère SCA and Canal+ SA v Commission (T-251/00) [2002] ECR II-4825 . . . 608, 614, 616, 618 Lahorgue v Ordre des avocats du barreau de Lyon (C-99/16) EU:C:2017:391 . . . 674 Lair (39/86) [1988] ECR 3161 . . . 563, 570 Lamberts v European Ombudsman (T-209/00) [2002] ECR II-2203 . . . 736, 817, 818 Lämmerzahl GmbH v Freie Hansestadt Bremen (C-241/06) [2007] ECR I-8415 . . . 769, 773 Land Nordrehein-Westfalen v Beata Pokrzeptowicz-Meyer (C-162/00) [2002] ECR I-1049 . . . 605 Land Nordrhein-Westfalen v Uecker and Jacquet v Land Nordrhein-Westfalen (C-64 & 65/96) [1997] ECR I-3171 . . . 565 Land Oberösterreich and Republic of Austria v Commission (C-439/454/05 P) [2007] ECR I-7141 . . . 350 Land Rheinland-Pfalz v Alcan Deutschland GmbH (C-24/95) [1997] ECR I-1591 . . . 779 Land-Baden Würtemberg v Tsakouridis (C-145/09) 23 November 2010 . . . 673 Landbrugsministeriet-EF-Direktoratet v Steff Houlberg Export (C-366/95) [1998] ECR I-2661 . . . 779 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Saatssecretaris van Landbouw, Natuurbeheeer en Visserij (C-127/02) [2004] ECR I-7405 . . . 708 Landesamt für Ausbildungsförderung Nordrhein-Westfalen v Lubor Gaal (C-7/94) [1996] ECR I-1031 . . . 552 Landeskreditbank BadenWürttemberg— Förderbank v European Central Bank (T-122/15) EU:T:2017:337 . . . 433 Larsy v INASTI (C-118/00) [2001] ECR I-5063 . . . 790

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Table of Cases Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet (C-341/05) [2007] ECR I-11767 . . . 687, 693 Lawrie-Blum v Land Baden-Württemberg (66/85) [1986] ECR 2121 . . . 549, 555 Ledra Advertising Ltd v European Commission and European Central Bank (C-8–10/15) EU:C:2016:70 . . . 742 Leifer (C-83/94) [1995] ECR I-3231 . . . 690 Lemmerz-Werke v High Authority (111/63) [1965] ECR 677 . . . 608 Lenzing AG v Commission (T-36/99) [2004] ECR II-3597 . . . 439 Leon Van Parys NV v BIRB (C-377/02) [2005] ECR I-1465 . . . 739 Leone v Garde des Sceaux (C-173/13) EU:C:2014:2090 . . . 679 Les Laboratoires Servier v Commission (T-147/00) [2003] ECR II-85 . . . 698, 710 Levez v Jennings Ltd (C-326/96) [1998] ECR I-7835 . . . 769, 775 Levin v Staatssecretaris van Justitie (53/81) [1982] ECR 1035 . . . 549, 550 Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa (C-42/07) [2009] ECR I-7633 . . . 686 Lilly Industries Ltd v Commission (T-120/96) [1998] ECR II-2571 . . . 267 Limburgse Vinyl Maatschappij NV and others v Commission (T-305–7, 313–6, 318, 325, 328–9, and 335/94) [1999] ECR II-931 . . . 729, 733 Limburgse Vinyl Maatschappij v Commission (C-238, 244–245, 247, 250, 252 & 254/99 P) [2002] ECR I-8375 . . . 355, 495, 667 Lisrestal v Commission (T-450/93) [1994] ECR II-1177 . . . 312, 314, 350 Lommers v Minister van Landbouw, Natuurbeheer en Visserij (C-476/99) [2002] ECR I-2891 . . . 677 López Ostra v Spain (1995) 20 EHRR 513 . . . 513 Lord Inglewood v European Parliament (T­229 and 276/11) EU:T:2013:127 . . . 602 Louwage v Commission (148/73) [1974] ECR 81 . . . 631 LRAF 1998 A/S v Commission (T-23/99) [2002] ECR II-1705 . . . 626 Ludwigshafener Walzmuhle Erling KG v Council and Commission (197, 200, 243, 245, 247/80) [1981] ECR 3211 . . . 453, 576 Luhrs v Hauptzollamt Hamburg-Jonas (78/77) [1978] ECR 169 . . . 622 Luisi and Carbone v Ministero del Tesoro (286/82 & 26/83) [1984] ECR 377 . . . 559

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Luxembourg v European Parliament and Council (C-176/09) [2011] EU:C:2011:290 . . . 426, 463 M (C-277/11) EU:C:2012:744 . . . 353 M v Minister for Justice and Equality Ireland and the Attorney General (C-560/14) EU:C:2017:101 . . . 313, 350, 353 M v Ombudsman (T-412/05) [2008] ECR II-197 . . . 818 Maas & Co NV v Bundesanstalt für landwirtschaftliche Marktordnung (21/85) [1986] ECR 3537 . . . 665 Maatschap Toeters and M C Verberk v Productschap Vee en Vlees (C-171/03) [2004] ECR I-10945 . . . 646 Macikowski v Dyrektor Izby Skarbowej w Gdańsku (C-499/13) EU:C:2015:201 . . . 681 Magorrian and Cunningham v Eastern Health and Social Services Board (C-246/96) [1997] ECR I-7153 . . . 767 Malagutti-Vezinhet SA v Commission (T-177/02) [2004] ECR II-827 . . . 699 Manel Camós Grau v Commission (T-309/03) [2006] ECR II-1173 . . . 267 Mangold (C-144/04) [2005] ECR I-9981 . . . 500 Mannesmann AG v High Authority (19/61) [1962] ECR 357 . . . 643 Marcos v Korota SA and Fondo de Garantía Salarial (C-265/13) EU:C:2014:187 . . . 507 Maria Isabel Harmon v Owen Pardue (C-321/16) EU:C:2016:871 . . . 507 Maria Martinez Sala v Freistaat Bayern (C-85/96) [1998] ECR I-2691 . . . 565, 566 Markcx v Belgium (1979–80) 2 EHRR 330 . . . 513 Marks & Spencer plc v Commissioners of Customs & Excise (C-62/00) [2002] ECR I-6325 . . . 605, 666, 775 Marks & Spencer plc v Commissioners of Customs & Excise (C-309/06) [2008] ECR I-2283 . . . 778 Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) [1990] ECR 4135 . . . 690 Marshall v Southampton and South-West Hampshire Area Health Authority (No 2) (C-271/91) [1993] ECR I-4367 . . . 585, 763, 777 Masdar (UK) Ltd v Commission (T-333/03) [2006] ECR II-4377 . . . 744 Masdar (UK) Ltd v Commission (C-47/07 P) [2008] ECR I-9761 . . . 619, 753

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Maso and Gazzetta v INPS (C-373/95) [1997] ECR I-4051 . . . 792 Masterfoods Ltd v HB Ice Cream Ltd (C-344/98) [2000] ECR I-11369 . . . 483 Mathews v Eldridge 424 US 319 (1976) . . . 351 Mattila v Commission (C-353/01 P) [2004] ECR I-1073 . . . 394, 656 Maurin (C-144/95) [1996] ECR I-2909 . . . 486 Maurissen v Commission (193–4/87) [1989] ECR 1045 . . . 65 Maurissen v Court of Auditors (T-23/91) [1992] ECR II-2377 . . . 468 Max Rampion and Marie-Jeanne Godard, née Rampion v Franfinance SA and K par K SAS (C-429/05) [2007] ECR I-8017 . . . 772 max.mobil Telekommunikation Service GmbH v Commission (T-54/99) [2002] ECR II-313 . . . 367, 393 Maxcom Ltd v City Cycle Industries (C-248, 254 and 260/15 P) EU:C:2017:6 . . . 463 Maximillian Schrems v Data Protection Commissioner (C-362/14) EU:C:2015: 650 . . . 514, 657, 658 McCarthy v Home Secretary (C-434/09) EU:C:2011:277 . . . 572 MCI, Inc v Commission (T-310/00) [2004] ECR II-3253 . . . 619 Mediavilla v Commission (C-443/07) [2008] ECR I-10945 . . . 620 Medici Grimm KG v Council (T-7/99) [2000] ECR II-2671 . . . 602, 753 Medici Grimm KG v Council (T-364/03) [2006] ECR II-79 . . . 742 MedioCurso-Etabelecimento de Ensino Particular Ld v Commission (C-462/98 P) [2000] ECR I-7183 . . . 312, 350 Meganck v Commission (36/72) [1973] ECR 527 . . . 753 Mehibas Dordtselaan BV v Commission ECR (T-290/97) [2000] ECR II-15 . . . 314, 361, 619 Meiko-Konservenfabrik v Federal Republic of Germany (224/82) [1983] ECR 2539 . . . 603 Melkunie (97/83) [1984] ECR 2367 . . . 684 Melli Bank plc v Council (T-246 & 332/08) [2009] ECR II-2629 . . . 400 Merci Convenzionali Porto di Genova SpA v Siderurgica Gabrielli SpA (C-179/90) [1991] ECR I-5889 . . . 582 Merck & Co Inc, NV Organon and Glaxo Wellcome plc v Commission (T-60/96) [1997] ECR II-849 . . . 318 Merkur GmbH & Co KG v Commission (43/72) [1973] ECR 1055 . . . 580, 740 Meroni v High Authority (9/56) [1958] ECR 133 . . . 67, 168, 169, 171–4, 192–5, 273, 274

Metallgesellschaft Ltd and Hoechst AG and Hoechst (UK) Ltd v Commissioners of Inland Revenue and HM Attorney General (C-397 & 410/98) [2001] ECR I-1727 . . . 776, 777, 782, 792 Metro-SB-Großmärkte GmbH & Co KG v Commission (26/76) [1977] ECR 1875 . . . 318 Metropole Television SA v Commission (T-206/99) [2001] ECR II-1057 . . . 364, 370 Meyer v Commission (T-72/99) [2000] ECR II-2521 . . . 619 M G and N R v Staatssecretaris van Veiligheid en Justitie (C-383/13 PPU) EU:C:2013:533 . . . 350, 361 Michaud v France (App no 12323/11), judgment, 6 December 2012 . . . 497 Michel S v Fonds National de Reclassement Handicapés (76/72) [1973] ECR 457 . . . 552 Microban International Ltd and Microban (Europe) Ltd v Commission (T-262/10) 25 October 2011 . . . 317 Microsoft Corp v Commission (T-201/04) [2007] ECR II-3601 . . . 460, 724 Miethke v European Parliament (C-25/92 R) [1993] ECR I-473 . . . 267 Milac GmbH v Hauptzollamt Freiburg (8/78) [1978] ECR 1721 . . . 545 Ministère Public v Even and ONPTS (207/78) [1979] ECR 2019 . . . 553 Ministère Public v Muller (304/84) [1986] ECR 1511 . . . 671 Ministère Public against Xavier Mirepoix (54/85) [1986] ECR 1067 . . . 696 Ministero dell’Industria, del Commercio e dell’Artigianato v Lucchini SpA (C-119/05) [2007] ECR I-6199 . . . 725 Ministero della Salute v Codacons (C-132/03) [2005] ECR I-4167 . . . 710 Ministero delle Finanze v Spac (C-260/96) [1998] ECR I-4997 . . . 774 Ministero delle Politiche Agricole e Forestali v Consorzio Produttori Pompelmo Italiano Soc Coop arl (COPPI) (C-271/01) [2004] ECR I-1029 . . . 106 Ministerul Administraţiei şi Internelor-Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa (C-33/07) [2008] ECR I-5157 . . . 673, 683 Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration v Chambre de commerce et d’industrie de l’Indre (C-465/10) EU:C:2011:867 . . . 666 Mitsui & Co Deutschland GmbH v Hauptzollamt Düsseldorf (C-256/07) [2009] ECR I-1951 . . . 603 Moccia Irme v Commission (T-164/96 R) [1996] ECR II-2261 . . . 724

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Table of Cases Moccia Irme v Commission (C-89/97 P(R)) [1997] ECR I-2327 . . . 724 Molkerei Wagenfeld Karl Niemann GmbH & Co KG v Bezirksregierung Hannover (C-14/01) [2003] ECR I-2279 . . . 464 Monin Automobiles v France (C-386/92) [1993] ECR I-2049 . . . 286 Monin Automobiles-Maison du Deux-Roues (C-428/93) [1994] ECR I-1707 . . . 286 Mono Car Styling SA, in liquidation v Dervis Odemis (C-12/08) [2009] ECR I-6653 . . . 773 Monsanto and others (C-58–68/10) 8 September 2011 . . . 710 Monsanto Agricultura Italia SpA v Presidenza del Consiglio dei Ministri (C-236/01) [2003] ECR I-8105 . . . 515, 706, 710 Montan Gesellschaft Voss mbH Stahlhandel and others v Commission (T-163/02 R) [2002] ECR II-3219 . . . 723, 724 Morellato v Unita Sanitaria Locale (USL) n 11 di Pordenone (C-358/95) [1997] ECR I-1431 . . . 670 Motor Vehicle Manufacturers Assn v State Farm Mutual Automobile Insurance Co 463 US 29, 42–43 (1983) . . . 478 MSS v Belgium and Greece (App No 30696/09), judgment of the Grand Chamber, 21 January 2011 . . . 497 MTZ Polyfilms Ltd v Council (T-143/06) [2009] ECR II-4133 . . . 405 Mukarubega v Préfet de police and Préfet de la Seine-Saint-Denis (C-166/13) EU:C:2014:2336 . . . 314, 373 Mulder v Minister van Landbouw en Visserij (120/86) [1988] ECR 2321 . . . 627, 628, 637 Mulder and Heinemann v Council and Commission (C-104/89 and 37/90) [1992] ECR I-3061 . . . 741, 748, 749 Mulligan and others v Minister for Agriculture and Food, Northern Ireland (C-313/99) [2002] ECR I-5719 . . . 670 Muñoz v Frumar (C-253/00) [2002] ECR I-7289 . . . 780 Musik Metronome GmbH v Music Point Hokamp GmbH (C-200/96) [1998] ECR I-1953 . . . 521, 659 Musique Diffusion Française v Commission (100–103/80) [1983] ECR 1825 . . . 353, 359 My Travel Group plc v Commission (T-212/03) [2008] ECR II-1967 . . . 742, 743 N V Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) [1963] ECR . . . 282

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Nachi Europe Gmbh v Hauptzollamt Krefeld (C-239/99) [2001] ECR I-1197 . . . 733 Nachi Fujikoshi Corporation v Council (255/84) [1987] ECR 1861 . . . 650 Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 . . . 638 Nadine Paquay v Société d’architectes Hoet + Minne SPRL (C-460/06) [2007] ECR I-8511 . . . 763 Nancy Delay v Università degli studi di Firenze, Istituto nazionale della previdenza sociale (INPS) (C-276/07) [2008] ECR I-3635 . . . 547 Napoli v Ministero della Giustizia—Dipartimento dell’Amministrazione penitenziaria (C-595/12) EU:C:2014:128 . . . 676 Nashua Corporation v Commission and Council (C-133 & 150/87) [1990] ECR I-719 . . . 267 National Labour Relations Board v Hearst Publications, Inc 322 US 111 (1944) . . . 443 National Power plc and PowerGen plc v British Coal Corporation and Commission (C-151 & 157/97 P(I)) [1997] ECR I-3491 . . . 335 Netherlands and Leeuwarder Papierwarenfabriek v Commission (296 & 318/82) [1985] ECR 809 . . . 370 Netherlands v Commission (11/76) [1979] ECR 245 . . . 88 Netherlands v Commission (C-48 & 66/90) [1992] ECR I-565 . . . 352 Netherlands v Commission (C-278/98) [2001] ECR I-1501 . . . 89 Netherlands v Commission (C-452/00) [2005] ECR I-6645 . . . 468, 647 Netherlands v Commission (C-405/07 P) [2008] ECR I-8301 . . . 369, 456 Netherlands v Council (C-58/94) [1996] ECR I-2169 . . . 393, 630 Netherlands v Council (C-110/97) [2001] ECR I-8763 . . . 625 Netherlands v Council (C-301/97) [2001] ECR I-8853 . . . 468, 475 Netherlands v European Commission (T-261/13 and 86/14) EU:T:2015:671 . . . 146 Netherlands v Parliament and Council (C-377/98) [2001] ECR I-7079 . . . 405, 422, 432, 723 Netto Supermarkt GmbH & Co OHG v Finanzamt Malchin (C-271/06) [2008] ECR I-771 . . . 681 New Valmar BVBA v Global Pharmacies Partner Health Srl (C-15/15) EU:C:2016:464 . . . 671 Nickel Institute v Secretary of State for Work and Pensions (C-14/10) EU:C:2011:503 . . . 456 Nicoli v Eridania SpA (C-87/00) [2004] ECR I-9357 . . . 465

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Nikoloudi v Organismos Tilepikoinonion Ellados AE (C-196/02) [2005] ECR I-1789 . . . 680 Nimz v Freie und Hansestadt Hamburg (184/89) [1991] ECR 297 . . . 587, 679 NMB France SARL v Commission (T-162/94) [1996] ECR II-427 . . . 650 Noël v SCP Brouard Daude (C-333/09) [2009] ECR I-205 . . . 505 Nold v Commission (4/73) [1974] ECR 491 . . . 485 Nolle v Council (T-167/94) [1995] ECR II-2589 . . . 363, 756 Nolle v Hauptzollamt Bremen-Freihafen (C-16/90) [1991] ECR I-5163 . . . 362 Nóra Baczó and János István Vizsnyiczai v Raiffeisen Bank Zrt (C-567/13) EU:C:2015:88 . . . 770 Norbrook Laboratories Ltd v Ministry of Agriculture Fisheries and Food (C-127/95) [1998] ECR I-1531 . . . 785, 790, 792 Northern Ireland Fish Producers’ Association (NIFPO) and Northern Ireland Fishermen’s Federation v Department of Agriculture for Northern Ireland (C-4/96) [1998] ECR I-681 . . . 453, 646 NS v Secretary of State (C-411 and 493/10) EU:C:2011:86 . . . 539 Ntionik Anonymi Etaireia Emporias H/Y and others v Epitropi Kefalaiagoras (C-430/05) [2007] ECR I-5835 . . . 682 Nycomed Danmark ApS v Agence européenne des médicaments (EMEA) (T-52/09 R) [2009] ECR II-43 . . . 723 Océano Grupo Editorial v Rocio Murciano Quintero (C-240–244/98) [2000] ECR I-4491 . . . 772 Odigitria v Council and Commission (T-572/93) [1995] ECR II-2025 . . . 747 O’Dwyer v Council (T-466, 469, 473, 474 and 477/93) [1996] ECR II-2071 . . . 622, 740 Oelmühle Hamburg v Bundesanstalt für Landwirtschaft und Ernährung (C-298/96) [1998] ECR I-4767 . . . 779 Office national de l’Emploi v Ioannidis (C-258/04) [2005] ECR I-8275 . . . 549 Office national de l’Emploi v Joszef Deak (94/84) [1985] ECR 1873 . . . 553 Office national de l’emploi (ONEm) v M (C-284/15) EU:C:2016:220 . . . 522 Office national de l’emploi v Marie-Rose Melchior (C-647/13) EU:C:2014:2301 . . . 512 Officier van Justitie v Koniklijke Kassfabriek Eyssen BV (53/80) [1981] ECR 409 . . . 671 Officier van Justitie v Sandoz BV (174/82) [1983] ECR 2445 . . . 671, 684, 696

O’Flynn v Adjudication Officer (C-237/94) [1996] ECR I-2617 . . . 547, 553 Ogieriakhi v Minister for Justice and Equality (C-244/13) EU:C:2014:2068 . . . 785 Oleifici Italiani (T-54/96) EU:T:1998:204 . . . 5 Oleifici Mediterranei v EEC (26/81) [1982] ECR 3057 . . . 743 Olivieri v Commission and EMEA (T-326/99) [2003] ECR II-6053 . . . 705 Ölmühle Hamburg AG v Hauptzollamt Hamburg-Waltershof (119 and 120/76) [1977] ECR 1269 . . . 665 Olympiaki Aeroporia Ypiresies AE v Commission (T-68/03) [2007] ECR II-2911 . . . 366 Omega Spielhallen- und AutomatenaufstellungsGmbH v Oberburgermeiste der Bundesstadt Bonn (C-36/02) [2004] ECR I-9609 . . . 522, 686 Omya AG v Commission (T-145/06) [2009] ECR II-145 . . . 460 Openbaar Ministerie v Van der Veldt (C-17/93) [1994] ECR I-3537 . . . 670 Ordre des barreaux francophones et germanophone v Conseil des ministres (C-305/05) [2007] ECR I-5305 . . . 520 Ordre des barreaux francophones et germanophone and Others v Conseil des ministers (C-543/14) EU:C:2016:605 . . . 530 Orfanopoulos v Land Baden-Wurttemberg (C-482 & 493/01) [2004] ECR I-5257 . . . 486, 673 Organisation des Modjahedines du peuple d’Iran v Council and UK (T-228/02) [2006] ECR II-4665 . . . 461, 729 Organización de Productores de Túnidos Congelados (OPTUC) v Commission (T-142 and 283/01) [2004] ECR II-329 . . . 622 Orleans v Vlaams Gewest (C-387–388/15) EU:C:2016:583 . . . 707 Österreichische Post AG v European Commission (T-463/14) EU:T:2016:24 . . . 370 Österreichische Postsparkasse AG and Bank für Arbeit und Wirtschaft AG v Commission (T-213–214/01) [2006] ECR II-1601, . . . 619 Österreichische Unilever GmbH v SmithKline Beecham Markenartikel GmbH (C-77/97) [1999] ECR I-431 . . . 681 Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara (C-539/11) EU:C:2013:591 . . . 687 P & O European Ferries (Vizcaya), SA and Diputacion Foral de Vizcaya v Commission (T-116 & 118/01) [2003] ECR II-2957 . . . 779 P v S and Cornwall County Council (C-13/94) [1996] ECR I-2143 . . . 583, 585, 593

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Table of Cases Panellinios Syndesmos Viomichanion Metapoiisis Kapnou v Ypourgos Oikonomias kai Oikonomikon (C-373/11) EU:C:2013:567 . . . 414 Palmisani v INPS (C-261/95) [1997] ECR I-4025 . . . 792 Paoletti v Procura della Repubblica (C-218/15) EU:C:2016:748 . . . 506 Papiers Peints de Belgique v Commission (73/74) [1975] ECR 1491 . . . 371 Pari Pharma GmbH v European Medicines Agency (T-235/15 R) EU:T:2015:587 . . . 723 Parti Ecologiste-‘Les Verts’ v European Parliament (294/83) [1986] ECR 1339 . . . 65, 175, 176 Pasquale Foglia v Mariella Novella (104/79) [1980] ECR 745 . . . 286 Pasquale Foglia v Mariella Novello (No 2) (244/80) [1981] ECR 3045 . . . 286 Pastoors and Trans-Cap GmbH v Belgian State (C-29/95) [1997] ECR I-285 . . . 680 Pauvert v Court of Auditors (228/84) [1985] ECR 1973 . . . 639 Payless v Peterborough CC [1990] 2 CMLR 577 . . . 691 Pedone v N (C-498/12) EU:C:2013:76 . . . 507 People’s Mojahedin Organization of Iran v Council (T-256/07) [2008] ECR II-3019 . . . 461 People’s Mojahedin Organization of Iran v Council (T-284/08) [2008] ECR II-3487 . . . 461 Pesce v Presidenza del Consiglio dei Ministri— Dipartimento della Protezione Civile (C-78–79/16) EU:C:2016:428 . . . 699 Pesqueria Vasco-Montanesa SA (Pevasa) and Compania Internacional de Pesca y Derivados SA (Inpesca) v Commission (C-199 and 200/94) [1995] ECR I-3709 . . . 737 Pesquerias de Bermeo SA and Naviera Laida SA v Commission (C-258 and 259/90) [1992] ECR I-2901 . . . 743 Pesticide Action Network Europe (PAN Europe) v European Commission (T-600/15) EU:T:2016:601 . . . 514 Peter Paul, Sonnen-Lutte and Christel Morkens v Bundesrepublik Deutschland (C-222/02) [2004] ECR I-9425 . . . 784 Peterbroeck, Van Campenhout & Cie v Belgian State (C-312/93) [1995] ECR I-4599 . . . 766, 771 Petrides Co Inc v Commission (C-64/98) [1999] ECR I-5187 . . . 744 Petrie v Commission (T-191/99) [2001] ECR II-3677 . . . 390, 815

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Petrotub and Republica SA v Council (T-33– 34/98) [1999] ECR II-3837 . . . 149, 313, 350, 525, 650 Petrotub SA and Republica SA v Council (C-76/00 P) [2003] ECR I-79 . . . 370 Pfizer Animal Health SA v Council (T-13/99) [2002] ECR II-3305 . . . 149, 193, 317, 334, 368, 383, 444, 452–6, 477, 481, 516, 648, 649, 654, 655, 659, 697, 699, 700, 702, 720, 724 Pflücke v Bundesanstalt für Arbeit (C-125/01) [2003] ECR I-9375 . . . 775 Phil Collins v Imtrat Handelsgesellschaft mbH (C-92/92) [1993] ECR I-5145 . . . 557, 561 Philip Morris Brands SARL v Secretary of State for Health (C-547/14) EU:C:2016:325 . . . 426, 659, 661 Philip Morris Holland BV v Commission (730/79) [1980] ECR 2671 . . . 440, 444, 449, 451 Philip Morris Ltd v European Commission (T-796/14) EU:T:2016:483 . . . 370, 396, 397 Photovost (C-470/12) EU:C:2013:844 . . . 516 Pietsch v Hauptzollamt Hamburg-Waltershof (C-296/94) [1996] ECR I-3409 . . . 665 Pilar Angé Serrano and Others v European Parliament (C-496/08 P) [2010] ECR I-1793 . . . 625 Pillbox 38 (UK) Ltd, trading as Totally Wicked v Secretary of State for Health (C-477/14) EU:C:2016:324 . . . 425, 520, 645, 659, 661, 698, 699 Pinna v Caisse d’allocations familiales de Savoie (41/84) [1986] ECR 1 . . . 734, 735 PJSC Rosnef Oil Co v Her Majesty’s Treasury (C-72/15) EU:C:2017:236 . . . 462, 601, 645 Plantanol GmbH & Co KG v Hauptzollamt Darmstadt (C-201/08) [2009] ECR I-8343 . . . 601, 605 Plattform ‘Arzte fur das Leben’ v Austria (1991) 13 EHRR 204 . . . 513 Plaumann & Co v Commission (25/62) [1963] ECR 95 . . . 333, 347, 737 Poland v European Commission (T­290/12) EU:T:2015:221 . . . 622 Poland v European Parliament and Council (C-358/14) EU:C:2016:323 . . . 426, 432, 434 Pollmeier Malchow GmbH & Co KG v Commission (T-137/02) [2004] ECR II-3541 . . . 439, 632 Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej (C-410/09) 12 May 2011 . . . 602 Pontillo v Donatab (C-372/96) [1998] ECR I-5091 . . . 625 Pool v Council (49/79) [1980] ECR 569 . . . 580

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Table of Cases

Portmeirion Group UK Ltd v Commissioners for Her Majesty’s Revenue & Customs (C-232/14) EU:C:2016:180 . . . 463 Portugal v Commission (C-150/95) [1997] ECR I-5863 . . . 581 Portugal v Commission (C-1159/96) [1998] ECR I-7379 . . . 729 Portugal v Commission (C-365/99) [2001] ECR I-5645 . . . 665 Portugal v Commission (C-246/11 P) EU:C:2013:118 . . . 728 Portugal v Council (C-149/96) [1999] ECR I-8395 . . . 739 Portuguese Republic v Commission (C-240/92) [2004] ECR I-10717 . . . 267 Portuguese Republic v Commission (C-89/96) [1999] ECR I-8377 . . . 728 Portuguese Republic v Commission (C-159/96) [1998] ECR I-7379 . . . 267 Preston v Wolverhampton Healthcare NHS Trust (C-78/98) [2000] ECR I-3201 . . . 767, 775, 776 Primex Produkte Import-Export GmbH & Co KG v Commission (T-50/96) [1998] ECR II-3773 . . . 312, 314, 350, 353, 356 Pringle v Government of Ireland, Ireland and the Attorney General (C-370/12) EU:C:2012:756 . . . 411 Proceedings brought by Robert Pfleger (C-390/12) EU:C:2014:281 . . . 506 Procureur de la République Besançon v Bouhelier (53/76) [1977] ECR 197 . . . 548 Productores de Música de España (Promusicae) v Telefónica de España SAU (C-275/06) [2008] ECR I-271 . . . 465, 486 Professional Air Traffic Controllers Organisation (PATCO) v Federal Labor Relations Authority 685 F.2d 547 (1982) . . . 361 Public Service Alliance of Canada v Attorney General of Canada [1991] 1 SCR 614 . . . 443 Qualcomm Wireless Business Solutions Europe BV v Commission (T-48/04) [2009] ECR II-2029 . . . 460 Queisser Pharma GmbH & Co KG v Bundesrepublik Deutschland (C-282/15) EU:C:2017:26 . . . 671, 699 R and V Haegeman Sprl v Commission (96/71) [1972] ECR 1005 . . . 755 R (on the application of ABNA Ltd and Others) v Secretary of State for Health and Food Standards Agency (C-453/03, 11, 12 and 194/04) [2005] ECR I-10423 . . . 654, 726, 727

R (on the application of Alliance for Natural Health and Nutri-link Ltd) v Secretary of State for Health (C-154–155/04) [2005] ECR I-6451 . . . 169, 400, 432, 709 R (on the application of Bidar) v London Borough of Ealing and Secretary of State for Education (C-209/03) [2005] ECR I-2119 . . . 565, 570, 571 R (on the application of International Air Transport Association and European Low Fares Airline Association) v Department for Transport (C-344/04) [2006] ECR I-403 . . . 645, 650, 725 R (on the application of Intertanko) v Secretary of State for Transport (C-308/06) [2008] ECR I-4057 . . . 601 R (on the application of Omega Air Ltd) v Secretary of State for the Environment, Transport and the Regions (C-27/00) [2002] ECR I-2569 . . . 650 R (on the application of SPCM SA) v Secretary of State for the Environment, Food and Rural Affairs (C-558/07) [2009] ECR I-5783 . . . 645 R (on the application of Teleos plc and Others) v Commissioners of Customs & Excise (C-409/04) [2007] ECR I-7797 . . . 681 R (on the application of Thames Water Utilities Ltd) v South East London Division, Bromley Magistrates’ Court (C-252/05) [2007] ECR I-3883 . . . 707 R (on the application of Unitymark Ltd and North Sea Fishermen’s Organisation) v Department for Environment, Food and Rural Affairs(C-535/03) [2006] ECR I-2689 . . . 647 R (on the application of Vodafone Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform (C-58/08) 8 June 2010 . . . 426, 432, 434, 645 R v Henn and Darby (34/79) [1979] ECR 3795 . . . 685 R v HM Treasury, ex p British Telecommunications plc (C-392/93) [1996] ECR I-1631 . . . 690, 786, 789 R v Immigration Appeal Tribunal, ex p Antonissen (C-292/89) [1991] ECR I-745 . . . 549, 550 R v Intervention Board, ex p ED & F Man (Sugar) Ltd (181/84) [1985] ECR 2889 . . . 665 R v Kent Kirk (63/83) [1984] ECR 2689 . . . 603 R v Minister for Agriculture, Fisheries and Food, ex parte Fedesa (C-331/88) [1990] ECR 4023 . . . 604, 645, 654, 665 R v Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex p

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Table of Cases National Farmers’ Union (C-157/96) [1998] ECR I-2211 . . . 696 R v Ministry of Agriculture, Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714 . . . 606 R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd (C-5/94) [1996] ECR I-2553 . . . 785, 790 R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1 . . . 491 R v Secretary of State for Health, ex p British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd (C-491/01) [2002] ECR I-11453 . . . 405, 432, 520, 645, 652, 660 R v Secretary of State for Health, ex p Richardson (C-137/94) [1995] ECR I-3407 . . . 762 R v Secretary of State for Health, ex p Swedish Match (C-210/03) [2004] ECR I-11893 . . . 405, 645 R v Secretary of State for Social Security, ex p Eunice Sutton (C-66/95) [1997] ECR I-2163 . . . 766, 777 R v Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex p Standley (C-293/97) [1999] ECR I-2603 . . . 521, 659 R v Secretary of State for the Environment, Transport and the Regions, ex p Omega Air Ltd (C-27 & 122/00) [2002] ECR I-2569 . . . 464 R v Secretary of State for the Home Department, ex p Kondova (C-235/99) [2001] ECR I-6427 . . . 485 R v Secretary of State for Transport, ex p Factortame Ltd (C-213/89) [1990] ECR I-2433 . . . 725, 760 R v Secretary of State for Transport, ex p Factortame Ltd (C-221/89) [1991] ECR I-3905 . . . 787 R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603 . . . 491 R, ex p Centro-Com v HM Treasury and Bank of England (C-124/95) [1997] ECR I-81 . . . 671 R, ex parte Synthon BV v Licensing Authority of the Department of Health (C-452/06) [2008] ECR I-7681 . . . 790 R (Zagorski) v Secretary of State for Business, Innovation and Skills [2011] HRLR 6 . . . 503 Radlinger and Radlingerová v Finway as (C-377/14) EU:C:2012:83 . . . 770, 772 Raffaello Visciano v Istituto nazionale della previdenza sociale (INPS) (C-69/08) [2009] ECR I-6741 . . . 773

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Raffinerie Mediterranee (ERG) SpA and others v Ministero dello Sviluppo economic (C-379 & 380/08) EU:C:2010:127 . . . 394, 659 Ragusa v Commission (282/81) [1983] ECR 1245 . . . 631 Rainer Typke v European Commission (T-214/13) EU:T:2015:448 . . . 395 Ramondin SA and others v Commission (C-186 & 188/02 P) [2004] ECR I-10653 . . . 468 Randa Chart v European External Action Service (T-138/14) EU:T:2015:981 . . . 373 Raulin v Minister van Onderwijs en Wetenschappen (C-357/89) [1992] ECR I-1027 . . . 549 Razzouk and Beydoun v Commission (75 & 117/82) [1984] ECR 1509 . . . 583, 585 Rechberger v Austria (C-140/97) [1999] ECR I-3499 . . . 789 Recheio-Cash and Carry SA v Fazenda Publica/ Registo Nacional de Pessoas Colectivas and Ministerio Publico (C-30/02) [2004] ECR I-6051 . . . 774 Rechsnungshof v Österreichischer Rundfunk and others (C-465/00, 138 & 139/01) [2003] ECR I-4989 . . . 485 Regione Autonoma della Sardegna v Commission (T-171/02) [2005] ECR II-2123 . . . 624 Regione autonoma della Sardegna v European Commission (T-219/14) EU:T:2017:266 . . . 466 Regione Autonoma Friuli-Venezia Giulia v Commission (T-288/97) [2001] ECR II-1169 . . . 466, 666 Reina v Landeskreditbank Baden-Württemberg (65/81) [1982] ECR 33 . . . 553 Reisdorf v Finanzamt Köln-West (C-85/95) [1996] ECR I-6257 . . . 287 Reiseburo Broede v Gerd Sandker (C-3/95) [1996] ECR I-6511 . . . 686 Remia BV and Nutricia BV v Commission (42/84) [1985] ECR 2545 . . . 381, 450 Renckens v Commission (27/68 R) [1969] ECR 274 . . . 723 Rendón Marín v Administración del Estado (C-165/14) EU:C:2016:675 . . . 573 RENV II Ireland and Aughinish Alumina Ltd v European Commission (T­50 and 69/06) EU:T:2016:22 . . . 619 Republik Österreich v Martin Huber (C-336/00) [2002] ECR I-7699 . . . 779 Reti Televisive Italiane SpA (RTI) v Ministero delle Poste e Telecommunicazione (C-320, 328, 329, 337, 338 & 339/94) [1996] ECR I-6471 . . . 286

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Table of Cases

Rewe-Handelsgesellschaft Nord mbH v Hauptzollamt Kiel (158/80) [1981] ECR 1805 . . . 759 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein (120/78) [1979] ECR 649 . . . 671 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland (33/76) [1976] ECR 1989 . . . 759 Rewe-Zentralfinanz v Landwirtschaftskammer (4/75) [1975] ECR 843 . . . 548 Rey Soda v Cassa Conguaglio Zucchero (23/75) [1975] ECR 1279 . . . 116 RFU v Consolidated Information Services [2012] UKSC 55 . . . 503 Rica Foods (Free Zone) NV and Free Trade Foods NV v Commission (T-332 & 350/00) [2002] ECR II-4755 . . . 468 Rica Foods (Free Zone) NV v Commission (C-41/03 P) [2005] ECR I-6875 . . . 475, 647 Ricosmos BV v Commission (T-53/02) [2005] ECR II-3173 . . . 356 Rinke v Arztekammer Hamburg (C-25/02) [2003] ECR I-8349 . . . 485, 583 Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH (171/88) [1989] ECR 2743 . . . 587, 679 Ritter-Coulais v Finanzamt Gemersheim (C-152/03) [2006] ECR I-1711 . . . 286 Robins and Others v Secretary of State for Work and Pensions (C-278/05) [2007] ECR I-1053 . . . 790 Roby Profumi Srl v Comune di Parma (C-257/06) [2008] ECR I-189 . . . 681 Roca Álvarez (C-104/09) EU:C:2010:561 . . . 593 Roman Angonese v Cassa di Riparmio di Bolzano SpA (C-281/98) [2000] ECR I-4139 . . . 558 Romano v Institut national d’assurance maladieinvalidité (98/80) EU:C:1981:104 . . . 169–71 Roquette Frères SA v Directeur général de la concurrence and Commission (C-94/00) [2002] ECR I-9011 . . . 495 Roquette Frères SA v Direction des Services Fiscaux du Pas-de-Calais (C-88/99) [2000] ECR I-10465 . . . 768, 774 Roquette Frères SA v Hauptzollamt Geldern (C-228/92) [1994] ECR I-1445 . . . 729, 734 Roquette Frères v Commission (26/74) [1976] ECR 677 . . . 748, 754, 764 Roquette Freres v Commission (20/88) [1989] ECR 1553 . . . 756 Roquette Freres v Council (138/79) [1980] ECR 3333 . . . 453 Rosalba Alassini v Telecom Italia SpA (C-317–320/08) [2010] ECR I-2213 . . . 773 Rosengren v Riksåklagaren (C-170/04) [2007] ECR I-4071 . . . 671

Rothmans v Commission (T-188/97) [1999] ECR II-2463 . . . 120, 394 Royal Copenhagen, Specialarbejderforbundet i Danmark v Dansk Industri (C-400/93) [1995] ECR I-1275 . . . 585 Royal Scandinavian Casino Århus I/S v European Commission (C-541/14 P) EU:C:2016:302 . . . 344 Royal Scholten-Honig v Intervention Board for Agricultural Produce (103 & 145/77) [1978] ECR 2037 . . . 578 Ruckdeschel v Hauptzollamt Hambourg-St Annen (117/76 and 16/77) [1977] ECR 1753 . . . 270, 545 Rudy Grzelczyk v Centre Public D’Aide Sociale d’Ottignes-Louvain-la-Neuve (CPAS) (C-184/99) [2001] ECR I-6193 . . . 550, 565, 568–70, 574 Ruiz Zambrano v ONEM (34/09) [2011] ECR I-1177 . . . 565 Rummler (237/85) [1986] ECR 2101 . . . 585 Rütgers Germany GmbH v European Chemicals Agency (ECHA) (T-96/10) EU:T:2013:109 . . . 267 Rutili v Ministre de l’Intérieur (36/75) [1975] ECR 1219 . . . 673 RV Union Française de l’Express (Ufex), DHL International, Service CRIE and May Courier v Commission (T-77/95) [2000] ECR II-2167 . . . 364 Ryanair Holdings plc v Commission (T-342/07) EU:T:2010:280 . . . 460 SA Biovilac NV v EEC (59/83) [1984] ECR 4057 . . . 441, 747, 752 SA Cimenteries CBR (T-10–12, 15/92) [1992] ECR II-2667 . . . 267 SA Hercules Chemicals NV v Commission (T-7/89) [1991] ECR II-1711 . . . 355, 361, 483, 619 SA Roquette Frères v France (145/79) [1980] ECR 2917 . . . 734 Sabou v Finanční ředitelství pro hlavní město Prahu (C-276/12) EU:C:2013:678 . . . 312, 350 Safa Nicu Sepahan Co v Council (C-45/15 P) EU:C:2017:402 . . . 748 Safalero Srl v Prefetto di Genova (C-13/01) [2003] ECR I-8679 . . . 780 Sagulo, Brenca, and Bakhouche (8/77) [1977] ECR 1495 . . . 761 Saint v Council (T-554/93) [1997] ECR II-563 . . . 267 Saint Louis Sucre v Directeur général des douanes et droits indirects (C-96/15) EU:C:2016:450 . . . 465

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Table of Cases Salgoil v Italian Ministry for Foreign Trade (13/68) [1973] ECR 453 . . . 759 Salumi v Amministrazione delle Finanze (66, 127 and 128/79) [1980] ECR 1237 . . . 762 Salzgitter AG v Commission (T-308/00) [2004] ECR II-1933 . . . 465 Salzgitter Mannesmann GmbH v Commission (C-411/04 P) [2007] ECR I-959 . . . 375 Santex SpA v Unita Socio Sanitaria Locale n.42 di Pavia, Sca Molnlycke SpA, Artsana SpA and Fater SpA (C-327/00) [2003] ECR I-1877 . . . 769, 771 Santogal M-Comércio e Reparação de Automóveis Lda v Autoridade Tributária e Aduaneira (C­26/16) EU:C:2017:453 . . . 610 Sayag v Leduc (5/68) [1968] ECR 395 . . . 751 Sayag v Leduc (9/69) [1969] ECR 329 . . . 750 SCAC v Associazione dei Produttori Ortofrutticoli (C-56/94) [1995] ECR I-1769 . . . 581 Scan Office Design SA v Commission (T-40/01) [2002] ECR II-5043 . . . 747 Schenker AG v European Commission (T-534/11) EU:T:2014:854 . . . 394 Schmidberger Internationale Transporte und Planzuge v Austria (C-112/00) [2003] ECR I-5659 . . . 517, 518, 521, 662, 663, 684, 685 Schneider Electric SA v Commission (T-310/01) [2002] ECR II-4071 . . . 733 Schneider Electric SA v Commission (T-351/03) [2007] ECR II-2237 . . . 360 Schnitzer (C-215/01) [2003] ECR I-14847 . . . 674 Scholz v Universitaria di Cagliari (C-419/92) [1994] ECR I-505 . . . 547 Schräder HS Kraft futter GmbH & Co KG v Hauptzollamt Gronau (265/87) [1989] ECR 2237 . . . 521, 645, 659 Schulte v Council and Commission (T-261/94) [2002] ECR II-441 . . . 736, 747 Schwarz v Bürgermeister der Landeshauptstadt Salzburg (C-366/04) [2005] ECR I-10139 . . . 671 SCK and FNK v Commission (C-268/96 R) [1996] ECR I-4971 . . . 723 Secretary of State for the Home Department v CS (C-304/14) EU:C:2016:674 . . . 573 Seymour-Smith and Perez (C-167/97) [1999] ECR I-623 . . . 587 Sgaravatti Mediterranea Srl v Commission (T-199/99) [2002] ECR II-3731 . . . 106, 467, 624, 666 Sgarlata and others v Commission (40/64) [1965] ECR 215 . . . 485 SGEEM and Etroy v EIB (C-370/89) [1992] ECR I-6211 . . . 736

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Shandong Reipu Biochemicals Co Ltd v Council (T-413/03) [2006] ECR II-2243 . . . 369 Shanghai Excell M&E Enterprise Co Ltd and Shanghai Adeptech Precision Co Ltd v Council (T-299/05) [2009] ECR II-573 . . . 463 SIC-Sociedade Independente de Comunicação SA v Commission (T-297–298/01) [2004] ECR II-743 . . . 732 Sideradria SpA v Commission (67/84) [1985] ECR 3983 . . . 624 Siemens v Commission (T-459/93) [1995] ECR II-1675 . . . 364 Siemens AG Österreich and others v Commission (T-122–124/07) [2011] ECR II-793 . . . 358, 636 Silos e Mangimi Martini SpA v Ministero delle Finanze (C-228/99) [2001] ECR I-8401 . . . 735 Simon v High Authority (15/60) [1961] ECR 115 . . . 618 Siragusa v Regione Sicilia—Soprintendenza Beni Culturali e Ambientali di Palermo (C-206/13) EU:C:2014:126 . . . 507 Sirdar v Army Board (C-273/97) [1999] ECR I-7403 . . . 589, 676 Skoma-Lux sro v Celní ředitelství Olomouc (C-161/06) [2007] ECR I-10841 . . . 602, 603 Skov Æg v Bilka Lavprisvarehus A/S and Bilka Lavprisvarehus A/S v Jette Mikkelsen and Michael Due Nielsen (C-402/03) [2006] ECR I-199 . . . 762 Slovak Republic and Hungary v Council of the European Union (C-643 and 647/15) EU:C:2017:63 . . . 463 Smanor v Commission (T-182/97) [1998] ECR II-271 . . . 815 SNF SA v Commission (T-213/02) [2004] ECR II-3047 . . . 338 SNUPAT v High Authority (42 and 49/59) [1961] ECR 53 . . . 608, 610, 614 Sociedade Agrícola e Imobiliária da Quinta de S Paio Lda v Instituto da Segurança Social IP (C-258/13) EU:C:2013:810 . . . 506, 507 Société Arcelor Atlantique et Lorraine and Others v Premier ministre and others (C-127/07) [2008] ECR I-9895 . . . 577 Société Bautiaa v Directeur des Services Fiscaux des Landes (C-197 & 252/94) [1996] ECR I-505 . . . 762 Société Coopérative ‘Providence Agricole de la Champagne’ v Office National Interprofessionnel des Céréales (ONIC) (4/79) [1980] ECR 2823 . . . 734, 735 Société de Produits de Maïs v Administration des Douanes (112/83) [1985] ECR 719 . . . 734

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Société des Grands Moulins des Antilles v Commission (99/74) [1975] ECR 1531 . . . 756 Société des plantations de Mbanga SA (SPM) v Commission (T-447/05) [2007] ECR II-1 . . . 732 Société Française de Transports Gondrand Frères SA v Commission (T-104/02) [2004] ECR II-3211 . . . 731 Société internationale de diffusion et d’édition SA (SIDE) v Commission (T-348/04) [2008] ECR II-625 . . . 623 Societé La Technique Minière (LTM) v Maschinenbau Ulm GmbH (56/65) [1966] ECR 235 . . . 362 Société nationale interprofessionelle de la tomate (Sonito) v Commission (87/89) [1990] ECR I-198 . . . 815 Société Neptune Distribution v Ministre de l’Économie et des Finances (C-157/14) EU:C:2015:823 . . . 645, 699 Société pour l’Exportation des Sucres SA v Commission (132/77) [1978] ECR 1061 . . . 747 Sociétés des Fonderies de Pont-á-Mousson v High Authority (14/59) [1959] ECR 215 . . . 576 Sofiane Fahas v Council (T-49/07) 7 December 2010 . . . 468 Sofrimport Sàrl v Commission (C-152/88) [1990] ECR I-2477 . . . 628, 629 Sogelma-Societá generale lavori manutenzioni appalti Srl v European Agency for Reconstruction (AER) (T-411/06) [2008] ECR II-2771 . . . 65, 175 Solgar Vitamin’s France v Ministre de l’Économie, des Finances et de l’Emploi (C-446/08) [2010] ECR I-3973 . . . 709 Solvay Pharmaceuticals BV v Council (T-392/02) [2003] ECR II-4555 . . . 698, 699, 720 Solvay SA v Commission (T-30–32/91) [1995] ECR II-1775 . . . 355, 361 Solvay SA v Commission (T-58/01) [2009] ECR II-4781 . . . 356 Solvay SA v Commission (T-186/06) EU:T:2011:276 . . . 356 Somalfruit SpA and Camar SpA v Ministero delle Finanze and Ministero del Commercio con l’Estero (C-369/95) [1997] ECR I-6619 . . . 465 Sonasa-Sociedade de Seguranca Ld v Commission (T-126/97) [1999] ECR II-2793 . . . 611, 624 Sophie in ’t Veld v European Commission (T-301/10) EU:T:2013:135 . . . 394 Sopropé-Organizações de Calçado Lda v Fazenda Pública (C-349/07) [2008] ECR I-10369 . . . 312, 350, 353

Sosnowska v Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu (C-25/07) [2008] ECR I-5129 . . . 681 Sotgiu v Deutsche Bundespost (152/73) [1974] ECR 153 . . . 547, 553 SpA Alois Lageder v Amministrazione delle Finanze dello Stato (C-31–41/91) [1993] ECR I-1761 . . . 605, 640 SpA Ferriere San Carlo v Commission (344/85) [1987] ECR 4435 . . . 632 SpA Fragd v Amminstrazione delle Finanze, Decision 232, 21 April 1989 (1989) 72 RD . . . 531 SpA Granital v Amminsitazione delle Finanze, Decision 170, 8 June 1984 . . . 531 Spagl v Hauptzollamt Rosenheim (C-189/89) [1990] ECR I-4539 . . . 629, 637, 638 Spain v Commission (169/95) [1997] ECR I-135 . . . 666 Spain v Commission (C-415/96) [1998] ECR I-6993 . . . 729 Spain v Commission (C-351/98) [2002] ECR I-8031 . . . 633 Spain v Commission (C-113/00) [2002] ECR I-7601 . . . 466 Spain v Commission (C-304/01) [2004] ECR I-7655 . . . 464 Spain v Commission (C-310/04) [2006] ECR I-7285 . . . 625, 648 Spain v Commission (T-402/06) EU:T:2013:445 . . . 392 Spain v Commission (T-461/13) EU:T:2015:89 . . . 433 Spain v Council (C-350/92) [1995] ECR I-1985 . . . 422 Spain v Council (C-342/03) [2005] ECR I-1975 . . . 622 Spain v Council (C-147/13) EU:C:2015:299 . . . 169 Spain v Council of the European Union (C-128/15) EU:C:2017:3 . . . 463 Spain v Eurojust (C-160/03) [2005] ECR I-2077 . . . 176 Spain v European Commission (T-204/11) EU:T:2015:91 . . . 456 Spain v European Commission (T-260/11) EU:T:2014:555 . . . 313, 350 Spain v European Parliament and the Council (C-146/13) EU:C:2015:298 . . . 169 Spain v Lenzing (C-525/04 P) [2007] ECR I-9947 . . . 456, 465 Spain and Finland v European Parliament and Council (C-184 and 223/02) [2004] ECR I-7789 . . . 520, 661

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Table of Cases Spain and Italy v Council (C-247 and 295/11) EU:C:2013:240 . . . 406 Specht v Land Berlin and Bundesrepublik Deutschland (C-501–506 and 540–541/12) EU:C:2014:2005 . . . 787 Spitta & Co v Hauptzollamt Frankfurt/Main-Ost (127/78) [1979] ECR 171 . . . 622 Sporting Exchange Ltd v Minister van Justitie (C-203/08) 3 June 2010 . . . 392 SPUC v Grogan (C-159/90) [1991] ECR I-4685 . . . 521 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (283/81) [1982] ECR 3415 . . . 281, 282 Staatssecretaris van Financiën v Sony Supply Chain Solutions (Europe) BV (C-153/10) EU:C:2011:224 . . . 640 Stadtsportverband Neuss eV v Commission (T-137/01) [2003] ECR II-3103 . . . 611 Stahlwerke Peine-Salzgitter AG v Commission (C-220/91 P) [1993] ECR I-2393 . . . 741 Star Fruit v Commission (247/87) [1989] ECR I-291 . . . 815 Statul român v Tamara Văraru (C-496/14) EU:C:2015:312 . . . 507 Steadman v SEC 450 US 91 (1981) . . . 470, 471 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen (C-338/91) [1993] ECR I-5475 . . . 767 Stefano Melloni v Ministerio Fiscal (C-399/11) EU:C:2013:107 . . . 532–4 Steymann v Staatssecretaris van Justitie (196/87) [1988] ECR 6159 . . . 438, 549 Stichting Al-Aqsa v Council (T-348/07) [2010] ECR II-45759 . . . 732 Stichting ‘Goed Wonen’ v Staatssecretaris van Financiën (C-376/02) [2005] ECR I-3445 . . . 602 Stichting Greenpeace Council (Greenpeace International) v Commission (T-583/93) [1995] ECR II-2205 . . . 318 Stichting Greenpeace Nederland and PAN Europe v European Commission (T-545/11) EU:T:2013:523 . . . 397 Stichting ROM-projecten v Staatssecretaris van Economische Zaken (C-158/06) [2007] ECR I-5103 . . . 601, 779 Stichting Sigarettenindustrie v Commission (240–242, 261–262, 268–269/82) [1985] ECR 3831 . . . 381 Stichting Woonlinie and Others v European Commission (C-414/15 P) EU:C:2017: 215 . . . 466 Stichting Woonpunt v European Commission (C-132/12 P) EU:C:2014:100 . . . 344

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Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuuren Voedselkwaliktiet (C-138/05) [2006] ECR I-8339 . . . 287 Stockholm Lindöpark Aktiebolag v Sweden (C-150/99) [2001] ECR I-493 . . . 790 Stoke City Council v B & Q plc [1990] 3 CMLR 31 . . . 691 Stoke-on-Trent CC v B & Q plc (C-306/88, 304/90 and 169/91) [1992] ECR I-6457 . . . 692 Stölting v Hauptzollamt Hamburg-Jonas (138/78) [1979] ECR 713 . . . 645 Stork v High Authority (1/58) [1959] ECR 17 . . . 485 Strack v Commission (C-127/13 P) EU:C:2014:2250 . . . 394, 656 Sucrimex SA and Westzucker GmbH v Commission (133/79) [1980] ECR 1299 . . . 756 Südzucker Mannheim/Ochsenfurt AG v Hauptzollamt Mannheim (C-161/96) [1998] ECR I-281 . . . 665 Sumitomo Chemical (UK) plc v Commission (T-78/04) [2004] ECR II-2049 . . . 723, 724 Sumitomo Metal Industries Ltd v Commission (C-403 & 405/04 P) [2007] ECR I-729 . . . 376 Sun Chemical Group BV, Siegwerk Druckfarben AG and Flint Group Germany GmbH v Commission (T-282/06) [2007] ECR II-2149 . . . 460 Sungro SA v Council and Commission (T-252, 271–272/07) [2010] ECR II-55 . . . 746 Surgicare—Unidades de Saúde SA v Fazenda Pública (C-662/13) EU:C:2015:89 . . . 770 Susanne Bulicke v Deutsche Büro Service GmbH (C-246/09) [2010] ECR I-7003 . . . 775 Svenska Journalistforbundet v Council (T-174/95) [1998] ECR II-2289 . . . 394 Sviluppo Italia Basilicata SpA v European Commission (C-414/08 P) 25 March 2010 . . . 619 Sweden v API and Commission (C-514, 528, 532/07) [2010] ECR I-8533 . . . 397 Sweden v Commission (C-64/05 P) [2007] ECR II-11389 . . . 331, 397, 433, 656 Sweden v Commission and My Travel Group plc (C-506/08 P) 21 July 2011 . . . 396, 397 Sweden v European Commission (C-562/14 P) EU:C:2017:356 . . . 396 Sweden and Turco v Council (C-39 & 52/05 P) [2008] ECR I-4723 . . . 397, 398 Syndicat Français de l’Express International (SFEI) v Commission (C-39/93 P) [1994] ECR I-2681 . . . 267 Syndicat Français de l’Express International (SFEI) v La Poste (C-39/94) [1996] ECR I-3547 . . . 441

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Systran SA and Systran Luxembourg SA v European Commission (T-19/07) EU:T:2010:526 . . . 373 Sytraval and Brink’s France v Commission (T-95/94) [1995] ECR II-2651 . . . 365, 366, 381, 382 T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission (T-279/11) EU:T:2013:299 . . . 338–9 T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission (C-456/13 P) EU:C:2015:284 . . . 345–7 T Port & Co KG v Commission (T-52/99) [2001] ECR II-981 . . . 468 T Port GmbH & Co KG v Bundesanstalt für Landwirtschaft und Ernahrung (C-68/95) [1996] ECR I-6065 . . . 510 T Port GmbH & Co KG v Commission (T-1/99) [2001] ECR II-465 . . . 749 T V/2 Danmark A/S and Others v Commission (T-309, 317, 329, 336/04) [2008] ECR II-2935 . . . 365, 369 Tarakhel v Switzerland, judgment of the Grand Chamber (App No 29217/12), 4 November 2014 . . . 497 Technion—Israel Institute of Technology v European Commission (T-480/11) EU:T:2015:272 . . . 396 Technische Glaswerke Ilmenau GmbH v Commission (T-198/01) [2004] ECR II-2717 . . . 366, 368, 381, 467, 723 Technische Glaswerke Ilmenau GmbH v Commission (C-404/04 P) [2007] ECR I-1 . . . 366 Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson (C-203 and 698/15) EU:C:2016:970 . . . 520, 528 Tele2 Telecommunication GmbH v TelekomControl-Kommission (C-426/05) [2008] ECR I-685 . . . 771 Telefónica SA v Commission (C-274/12 P) EU:C:2013:852 . . . 344–6 Telefónica SA and Telefónica de España SAU v European Commission (C-295/12 P) EU:C:2014:2062 . . . 460, 495 Telemarsicabruzzo SpA v Circostel, Ministero delle Poste e Telecommunicazioni and Ministerio della Difesa (C-320–322/90) [1993] ECR I-393 . . . 286 Territorio Histórico de Álava-Diputación Foral de Álava v Commission (T-127, 129 & 148/99) [2002] ECR II-1275 . . . 442 Territorio Histórico de Álava-Diputación Foral de Álava and Comunidad autónoma del País

Vasco-Gobierno Vasco and Others v Commission (T-227–229, 265, 266 & 270/01) [2009] ECR II-3029 . . . 365, 468 Test Claimants in the CFC and Dividend Group Litigation (C-201/05) [2008] ECR I-2875 . . . 778 Test Claimants in the FII Group Litigation (C-446/04) [2006] ECR I-11753 . . . 777, 790 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue (C-35/11) EU:C:2012:707 . . . 777 Test Claimants in the Franked Investment Income Group Litigation v Commissioners of Inland Revenue (C­362/12) EU:C:2013: 834 . . . 600 Test Claimants in the Thin Cap Group Litigation v Commissioners of Inland Revenue (C-524/04) [2007] ECR I-2107 . . . 777, 786 Tetra Laval BV v Commission (T-5/02) [2002] ECR II-4381 . . . 355, 457, 458, 470, 472 Texaco A/S v Havn (C-114–115/95) [1997] ECR I-4263 . . . 768 Thessalonikis v Commission (T-196/01) [2003] ECR II-3987 . . . 106, 732 Thyssen AG v Commission (188/82) [1983] ECR 3721 . . . 639 ThyssenKrupp Acciai Speciali Terni SpA v Commission (T-62/08) EU:T:2010:268 . . . 366 ThyssenKrupp Gmbh and another v Commission (C-65 and 73/02 P) [2005] ECR I-6773 . . . 624 Tideland Signal Ltd v Commission (T-211/02) [2002] ECR II-3781 . . . 367, 373, 667, 732, 733 Tilly-Sabco v European Commission (T-397/13) EU:T:2016:8 . . . 345, 346 Timex Corporation v Council and Commission (264/82) [1985] ECR 849 . . . 731 TNT Traco SpA v Poste Italiane SpA (C-340/99) [2001] ECR I-4109 . . . 582 Toepfer v Commission (106 & 107/63) [1965] ECR 405 . . . 755 Tomana v Council of the European Union and European Commission (T-190/12) EU:T:2015:222 . . . 314 Tomana v Council of the European Union and European Commission (C-330/15 P) EU:C:2016:60 . . . 462 Tomášová v Slovenská republika (C-168/15) EU:C:2016:602 . . . 788 Tomra Systems ASA and Others v Commission (T-155/06) EU:T:2010:370 . . . 460 Torfaen BC v B & Q plc (145/88) [1989] ECR 3851 . . . 691, 693 Traghetti del Mediterraneo SpA v Repubblica italiana (C-173/03) [2006] ECR I-5177 . . . 788 Tralli v ECB (C-301/02 P) [2005] ECR I-4071 . . . 169

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Table of Cases Transocean Marine Paint v Commission (17/74) [1974] ECR 1063 . . . 312 Transportes Urbanos y Servicios Generales SAL v Administración del Estado (C-118/08) [2010] ECR I-635 . . . 792 Tremblay v Commission (T-5/93) [1995] ECR II-185 . . . 371 Trojani v Centre Public D’Aide Sociale de Bruxelles (CPAS) (C-456/02) [2004] ECR I-7573 . . . 549, 550, 565, 567 Trubowest Handel GmbH and Viktor Makarov v Council and Commission (C-419/08 P) 18 March 2010 . . . 747 Turco v Council (T-84/03) [2004] ECR II-4061 . . . 397, 398 TWD Textilwerke Deggendorf GmbH v Commission (T-244 and 486/93) [1995] ECR II-2265 . . . 468 UNECTEF v Heylens (222/86) [1987] ECR 4097 . . . 762 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern (C-432/05) [2007] ECR I-2271 . . . 725, 726, 760, 771, 772 Unicredito Italiano SpA v Agenzia delle Entrate, Ufficio Genova 1 (C-148/04) [2005] ECR I-11137 . . . 666 Unifrex v Commission and Council (281/82) [1984] ECR 1969 . . . 580, 756 Unifruit Hellas EPE v Commission (T-489/93) [1994] ECR II-1201 . . . 619, 622 Union de Pequeños Agricultores v Council (C-50/00 P) [2002] ECR I-6677 . . . 332, 336, 337, 339–41 Union des Employes de Service, Local 298 v Bibeault [1988] 2 SCR 1048 . . . 443 Union Européene de l’Artisanat et des Petites et Moyennes Enterprises (UEAPME) v Council (T-135/96) [1998] ECR II-2335 . . . 149, 248, 256, 260, 317 Union Malt v Commission (44–51/77) [1978] ECR 57 . . . 743 Union Royale Belge des Sociétés de Football Association and others v Bosman (C-415/93) [1995] ECR I-4921 . . . 559 Uniplex (UK) Ltd v NHS Business Services Authority (C-406/08) [2010] ECR I-817 . . . 775 Unita Socio-Sanitaria Locale No 47 di Biella (USSL) v Istituto Nazionale per l’Assicurazione contro gli Infortuni sul Lavoro (INAIL) (C-134/95) [1997] ECR I-195 . . . 286 United Kingdom v Commission (C-180/96) [1998] ECR I-2265 . . . 267, 441, 695, 696 United Kingdom v Council (C-84/94) [1996] ECR I-5755 . . . 371, 404, 432

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United Kingdom v Council (C-150/94) [1998] ECR I-7235 . . . 475 United Kingdom v Council and Parliament (C-270/12) EU:C:2014:18 . . . 163, 170, 176, 405, 423 United Phosphorous v Commission (T-95/09 R) [2009] ECR II-47 . . . 723 United States v Mead Corporation 533 US 218 (2001) . . . 442 Upjohn v the Licensing Authority (C-120/97) [1999] ECR I-223 . . . 762, 782 Ursula Elsen v Bundesversicherungsanstalt (C-135/99) [2000] ECR I-10409 . . . 566 Ursula Voß v Land Berlin (C-300/06) [2007] ECR I-10573 . . . 678 Usha Martin v Council (T-119/06) [2010] ECR II-4335 . . . 651 Valsts ieņēmumu dienests v ‘LS Customs Services’ SIA (C-46/16) EU:C:2017:839 . . . 372 Valsts ieņēmumu dienests v ‘Veloserviss’ SIA (C-427/14) EU:C:2015:803 . . . 600 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid (33/74) [1974] ECR 1299 . . . 558, 674 Van den Bergh en Jurgens and Van Dijk Food Products v Commission (265/85) [1987] ECR 1155 . . . 619, 622, 752 Van den Bergh Foods Ltd v Commission (T-65/98) [2003] ECR II-4653 . . . 433, 619 Van Duyn v Home Office (41/74) [1974] ECR 1337 . . . 282, 685 Van Landewyck SARL v Commission (209–215, 218/78) [1980] ECR 3125 . . . 359 Van Schijndel & Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten (C-430–431/93) [1995] ECR I-4705 . . . 766, 771 VBVB and VBBB v Commission (43, 63/82) [1985] ECR 19 . . . 355 Vela Srl and Tecnagrind SL v Commission (T-141–142, 150–151/99) [2002] ECR II-4547 . . . 611 Ventouris Group Enterprises SA v Commission (T-59/99) [2003] ECR II-5257 . . . 667 Venturini v ASL Varese (C-159–162/12) EU:C:2013:79 . . . 687 Verein fur Konsumenteninformation v Commission (T-2/03) [2005] ECR II-1121 . . . 395, 396, 656 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag (C-368/95) [1997] ECR I-368 . . . 486, 521, 531, 692, 693 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Gemeente Rotterdam v

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Minister van Sociale Zaken en Werkgelegenheid (C-383–385/06) [2008] ECR I-1561 . . . 106 Vereniging van Exporteurs in Levende Varkens v Commission (T-481 & 484/93) [1995] ECR II-2941 . . . 729, 739, 743 Vereniging voor Energie, Milieu en Water and others v Directeur van de Dienstuitvoering en toezicht energie (C-17/03) [2005] ECR I-4983 . . . 625 Verholen v Sociale Verzekeringsbank (C-87–89/90) [1991] ECR I-3757 . . . 762 Verli-Wallace v Commission (159/82) [1983] ECR 2711 . . . 608 Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto (C-299/14) EU:C:2016:114 . . . 568 Viamex Agrar Handels GmbH and ZuchtviehKontor GmbH (ZVK) v Hauptzollamt Hamburg-Jonas (C-37 and 58/06) [2008] ECR I-69 . . . 647, 665 ‘Vilniaus energija’ UAB v Lietuvos metrologijos inspekcijos Vilniaus apskrities skyrius (C-423/13) EU:C:2014:218 . . . 675 Vinal SpA v Orbat SpA (46/80) [1981] ECR 77 . . . 286 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA (C-295–298/04) [2006] ECR I-6619 . . . 763, 774, 775, 779, 782 VIP Car Solutions SARL v European Parliament (T-89/07) [2009] ECR II-1403 . . . 731 Visa Europe Ltd and Visa International Service v European Commission (T-461/07) EU:T:2011:181 . . . 352, 373 Vischim Srl v Commission (T-420/05) [2009] ECR II-3841 . . . 433 Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission (T-102/00) [2003] ECR II-2433 . . . 312, 314, 350 Vlaamse Gewest v Commission (T-214/95) [1998] ECR II-717 . . . 631 Vlaamse Televisie Maatschappij NV v Commission (T-266/97) [1999] ECR II-2329 . . . 352 Vloeberghs v High Authority (9 & 12/60) [1961] ECR 197 . . . 747 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen (C-92 & 93/09) EU:C:2010:662 . . . 400, 490, 520, 529, 583, 664, 734 Volkswagen AG v Commission (T-62/98) [2000] ECR II-2707 . . . 364 Von Colson and Kamann v Land NordrheinWestfalen (14/83) [1984] ECR 1891 . . . 761 von Wolffersdorff v Standesamt der Stadt Karlsruhe (C-438/14) EU:C:2016:401 . . . 686

W Faust v Commission (52/81) [1982] ECR 3745 . . . 625 Wachauf v Germany (5/88) [1989] ECR 2609 . . . 486, 517 Walrave and Koch (36/74) [1974] ECR 1405 . . . 559 Walter Rau Lebensmittelwerke v De Smedt PvbA (261/81) [1982] ECR 3961 . . . 286, 671 Weber’s Wine World Handels-GmbH v Abgabenberufungskommission Wien (C-147/01) [2003] ECR I-11365 . . . 778 WebMindLicenses kft (C-419/14) EU:C:2015: 832 . . . 519, 520 Weidacher v Bundesminister für Land- und Forstwirtschaft (C-179/00) [2002] ECR I-501 . . . 625 Wellingborough BC v Payless [1990] 1 CMLR 773 . . . 691 Werner (C-70/94) [1995] ECR I-3189 . . . 690 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission (T-228 & 233/99) [2003] ECR II-435 . . . 365, 367 Westzucker GmbH v Einfuhr-und Vorratsstelle für Zucker (57/72) [1973] ECR 321 . . . 440, 445–51 Wienand Meilicke v ADV/ORGA FA Meyer AG (C-83/91) [1992] ECR I-4871 . . . 286 Willame v Commission (110/63) [1965] ECR 649 . . . 753 William Cook plc v Commission (C-198/91) [1993] ECR I-2486 . . . 365 Williams v Court of Auditors (T-33/91) [1992] ECR II-2499 . . . 631 Willy Gerekens and Association Agricole pour la Promotion de la Commercialisation Laitière Procola v Luxembourg (C-459/02) [2004] ECR I-7315 . . . 602, 604 Willy Kempter KG v Hauptzollamt HamburgJonas (2/06) [2008] ECR I-411 . . . 774 Windpark Groothusen GmbH & Co Betriebs KG v Commission (C-48/96 P) [1998] ECR I-2873 . . . 312, 468 Wirtschaftsvereinigung Stahl and others v Commission (T-244/94) [1997] ECR II-1963 . . . 468 Wolfgang und Dr Wilfried Rey Grundstücksgemeinschaf GbR v Finanzamt Krefeld (C­332/14) EU:C:2016:417 . . . 600 Wollast v EEC (18/63) [1964] ECR 85 . . . 753 Woodcock District Council v Bakers of Nailsea (C-27/95) [1997] ECR I-1847 . . . 453 Worms v High Authority (18/60) [1962] ECR 195 . . . 737 Wuidart v Laiterie coopérative eupenoise société coopérative (267–285/88) [1990] ECR I-435 . . . 580

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Table of Cases Wunsche Handelsgesellschaft, Re Dec of 22 October 1986 [1987] 3 CMLR 225 . . . 531 Württembergische MilchverwertungSüdmilch-AG v Salvatore Ugliola (15/69) [1970] ECR 363 . . . 547, 553 WWF European Policy Programme v Council (T-264/04) [2007] ECR II-911 . . . 397 WWF UK (World Wide Fund for Nature) v Commission (T-105/95) [1997] ECR II-313 . . . 393, 394 X-Steuerberatungsgesellschaf (C-324/14) EU:C:2015:827 . . . 601 X (Minors) v Bedfordshire CC [1995] 2 AC 633 . . . 744 X and Y v Netherlands (1986) 8 EHRR 235 . . . 513 Yanukovych v Council of the European Union (T-346/14) EU:T:2016:497 . . . 313 Yanukovych v Council of the European Union (T-348/14) EU:T:2016:508 . . . 468 Yingli Energy (China) Co Ltd v Council of the European Union (T­160/14) EU:T:2017: 125 . . . 604 Ymeraga (C-87/12) EU:C:2013:291 . . . 573 Young, James and Webster v United Kingdom (1982) 4 EHRR 38 . . . 513 Zardi v Consorzio Agrario Provinciale di Ferrara (C-8/89) [1990] ECR I-2515 . . . 646 Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol (C-468/08) 22 April 2010 . . . 678 Zoofachhandel Züpke GmbH v European Commission (T-817/14) EU:T:2016:157 . . . 369 Zuckerfabrik Suderdithmaschen AG v Hauptzollamt Itzehoe (C-143/88 & 92/89) [1991] ECR I-415 . . . 282, 725 Zunis Holding SA, Finan Srl and Massinvest SA v Commission (C-480/93) [1996] ECR I-1 . . . 267 Zurstrassen v Administration des Contributions Directes (C-87/99) [2000] ECR I-3337 . . . 548

NUMERICAL GENERAL COURT

T-7/89 SA Hercules Chemicals NV v Commission [1991] ECR II-1711 . . . 355, 361, 483, 619 T-65/89 BPB Industries plc and British Gypsum Ltd v Commission [1993] ECR II-389 . . . 355 T-79, 84–86, 89, 91–92, 94, 96, 98, 102, 104/89 BASF AG v Commission [1992] ECR II-315 . . . 267 T-123/89 Chomel v Commission [1990] ECR II-131 . . . 608

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T-24/90 Automec Srl v Commission [1992] ECR II-2223 . . . 364 T-44/90 La Cinq SA v Commission [1992] ECR II-1 . . . 383, 481 T-23/91 Maurissen v Court of Auditors [1992] ECR II-2377 . . . 468 T-30–32/91 Solvay SA v Commission [1995] ECR II-1775 . . . 355, 361 T-33/91 Williams v Court of Auditors [1992] ECR II-2499 . . . 631 T-36–37/91 ICI v Commission [1995] ECR II-1847 . . . 355 T-7/92 Asia Motor France SA v Commission [1993] ECR II-669 . . . 364, 370, 383, 481 T-10–12, 15/92 SA Cimenteries CBR [1992] ECR II-2667 . . . 267 T-37/92 Bureau Européen des Unions Consommateurs and National Consumer Council v Commission [1994] ECR II-285 . . . 364 T-144/92 Bureau Européen des Médias de l’Industrie Musicale (BEMIM) v Commission [1995] ECR II-147 . . . 364 T-2/93 Air France v Commission [1994] ECR II-323 . . . 639 T-5/93 Tremblay v Commission [1995] ECR II-185 . . . 371 T-24–26 & 28/93 Compagnie Maritime Belge Transports SA and others v Commission [1996] ECR II-1201 . . . 469 T-244 and 486/93 TWD Textilwerke Deggendorf GmbH v Commission [1995] ECR II-2265 . . . 430 T-435/93 ASPEC v Commission [1995] ECR II-1281 . . . 318 T-450/93 Lisrestal v Commission [1994] ECR II-1177 . . . 312, 314, 350 T-456/93 Consorzio Gruppo di Azioni Locale Murgia Messapica v Commission [1994] ECR II-361 . . . 619 T-458 & 523/93 ENU v Commission [1995] ECR II-2459 . . . 744 T-459/93 Siemens v Commission [1995] ECR II-1675 . . . 364 T-466, 469, 473, 474 and 477/93 O’Dwyer v Council [1996] ECR II-2071 . . . 622, 740 T-472/93 Campo Ebro and Others v Commission [1995] ECR II-421 . . . 739 T-480 and 483/93 Antillean Rice Mills NV v Commission [1995] ECR II-2305 . . . 732 T-481 & 484/93 Vereniging van Exporteurs in Levende Varkens v Commission [1995] ECR II-2941 . . . 729, 739, 743 T-489/93 Unifruit Hellas EPE v Commission [1994] ECR II-1201 . . . 619, 622

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T-514/93 Cobrecaf v Commission [1995] ECR II-621 . . . 747 T-534/93 Grynberg and Hall v Commission [1994] ECR II-595 . . . 619 T-554/93 Saint v Council [1997] ECR II-563 . . . 267 T-572/93 Odigitria v Council and Commission [1995] ECR II-2025 . . . 747 T-583/93 Stichting Greenpeace Council (Greenpeace International) v Commission [1995] ECR II-2205 . . . 318 T-67/94 Ladbroke Racing Ltd v Commission [1998] ECR II-1 . . . 731 T-95/94 Sytraval and Brink’s France v Commission [1995] ECR II-2651 . . . 365, 366, 381, 382 T-162/94 NMB France SARL v Commission [1996] ECR II-427 . . . 650 T-167/94 Nolle v Council [1995] ECR II-2589 . . . 363, 756 T-194/94 Carvel and Guardian Newspapers Ltd v Council [1995] ECR II-2765 . . . 393 T-201/94 Kusterman v Council and Commission [2002] ECR II-415 . . . 736 T-244/94 Wirtschaftsvereinigung Stahl and others v Commission [1997] ECR II-1963 . . . 468 T-260/94 Air Inter SA v Commission [1997] ECR II-997 . . . 313, 314, 350, 525 T-261/94 Schulte v Council and Commission [2002] ECR II-441 . . . 736, 747 T-305–7, 313–6, 318, 325, 328–9, and 335/94 Limburgse Vinyl Maatschappij NV and others v Commission [1999] ECR II-931 . . . 729, 733 T-336/94 Efisol SA v Commission [1996] ECR II-1343 . . . 626, 628, 743 T-346/94 France-Aviation v Commission [1995] ECR II-2841 . . . 353 T-348/94 Enso Espanola SA v Commission [1998] ECR II-1875 . . . 360 T-369/94 & 85/95 DIR International Film Srl and others v Commission [1998] ECR II-357 . . . 169, 631 T-371 & 394/94 British Airways plc and British Midland Airways Ltd v Commission [1998] ECR II-2405 . . . 363 T-374, 375, 384 and 388/94 European Night Services v Commission [1998] ECR II-3141 . . . 376, 481 T-380/94 AIUFFASS v Commission [1996] ECR II-2169 . . . 318 T-387/94 Asia Motor France SA v Commission [1996] ECR II-961 . . . 364, 370, 732 T-390/94 Aloys Schröder v Commission [1997] ECR II-501 . . . 744 T-395/94 R II Atlantic Container Line v Commission [1995] ECR II-2893 . . . 724

T-73/95 Estabelecimentos Isidore M Oliveira SA v Commission [1997] ECR II-381 . . . 624 T-77/95 RV Union Française de l’Express (Ufex), DHL International, Service CRIE and May Courier v Commission [2000] ECR II-2167 . . . 364 T-81/95 Interhotel-Sociedade Internacional de Hoteis SARL v Commission [1997] ECR II-1265 . . . 611–13 T-93/95 Laga v Commission [1998] ECR II-195 . . . 737 T-105/95 WWF UK (World Wide Fund for Nature) v Commission [1997] ECR II-313 . . . 393, 394 T-106/95 Fédération Française des Sociétés d’Assurances (FFSA) v Commission [1997] ECR II-229 . . . 442 T-133 and 204/95 International Express Carriers Conference v Commission [1998] ECR II-3645 . . . 468 T-168/95 R Eridania and others v Council [1995] ECR II-2817 . . . 724 T-174/95 Svenska Journalistforbundet v Council [1998] ECR II-2289 . . . 394 T-175/95 BASF Lacke & Farben AG v Commission [1999] ECR II-1581 . . . 355 T-184/95 Dorsch Consult [1998] ECR II-667 . . . 747, 752 T-198/95, 171/96, 230/97, 174/98, and 225/98 Comafrica SpA and Dole Fresh Fruit Europa Ltd & Co v Commission [2001] ECR II-1975 . . . 744, 746 T-214/95 Vlaamse Gewest v Commission [1998] ECR II-717 . . . 631 T-219/95 R Danielsson v Commission [1995] ECR II-3051 . . . 724 T-227/95 Assidoman Kraft Products AB v Commission [1997] ECR II-1185 . . . 609 T-41/96 Bayer AG v Commission [2000] ECR II-3383 . . . 442 T-42/96 Eyckeler & Malt AG v Commission [1998] ECR II-401 . . . 353, 354, 356 T-50/96 Primex Produkte Import-Export GmbH & Co KG v Commission [1998] ECR II-3773 . . . 312, 314, 350, 353, 356 T-54/96 Oleifici Italiani EU:T:1998:204 . . . 5 T-60/96 Merck & Co Inc, NV Organon and Glaxo Wellcome plc v Commission [1997] ECR II-849 . . . 318 T-79/96, 260/97, 117/98 Camar Srl and Tico Srl v Commission [2000] ECR II-2193 . . . 744, 745, 748, 749 T-113/96 Dubois et Fils SA v Council and Commission [1998] ECR II-125 . . . 659 T-120/96 Lilly Industries Ltd v Commission [1998] ECR II-2571 . . . 267

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Table of Cases T-135/96 Union Européene de l’Artisanat et des Petites et Moyennes Enterprises (UEAPME) v Council [1998] ECR II-2335 . . . 149, 248, 256, 260, 317 T-164/96 R Moccia Irme v Commission [1996] ECR II-2261 . . . 724 T-203/96 Embassy Limousines & Services v European Parliament [1998] ECR II-4239 . . . 621 T-5/97 Industrie des Poudres Spheriques SA v Commission [2000] ECR II-3755 . . . 364 T-126/97 Sonasa-Sociedade de Seguranca Ld v Commission [1999] ECR II-2793 . . . 611, 624 T-182/97 Smanor v Commission [1998] ECR II-271 . . . 815 T-186, 187, 190, 192, 210, 211, 216–218, 279–280, 293/97 & 147/99 Kaufring AG v Commission [2001] ECR II-1337 . . . 353, 659 T-188/97 Rothmans v Commission [1999] ECR II-2463 . . . 120, 394 T-266/97 Vlaamse Televisie Maatschappij NV v Commission [1999] ECR II-2329 . . . 352 T-288/97 Regione Autonoma Friuli-Venezia Giulia v Commission [2001] ECR II-1169 . . . 466, 666 T-290/97 Mehibas Dordtselaan BV v Commission ECR [2000] ECR II-15 . . . 314, 361, 619 T-33–34/98 Petrotub and Republica SA v Council [1999] ECR II-3837 . . . 149, 313, 350, 525, 650 T-46 and 151/98 CEMR v Commission [2000] ECR II-167 . . . 611, 612, 619, 621 T-62/98 V olkswagen AG v Commission [2000] ECR II-2707 . . . 364 T-65/98 Van den Bergh Foods Ltd v Commission [2003] ECR II-4653 . . . 433, 619 T-84/98 C v Council [2000] ECR IA-113 . . . 749 T-87/98 International Potash Company v Council [2000] ECR II-3179 . . . 650, 651 T-94/98 Alferink v Commission [2008] ECR II-1125 . . . 601, 742 T-99/98 Hameico Stuttgart GmbH v Council and Commission [2003] ECR II-2195 . . . 737, 748 T-138/98 Armement Cooperatif Artisanal Vendéen (ACAV) v Council [1999] ECR II-1797 . . . 335 T-154/98 Asia Motor France SA v Commission [2000] ECR II-3453 . . . 364 T-160/98 Firma Leon Van Parys NV and Pacific Fruit Company NV v Commission [2002] ECR II-233 . . . 756 T-178/98 Fresh Marine Company SA v Commission [2000] ECR II-3331 . . . 743, 744, 745, 747

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T-191, 212, 214/98 Atlantic Container Line AB v Commission [2003] ECR II-3275 . . . 364, 636, 731 T-1/99 T Port GmbH & Co KG v Commission [2001] ECR II-465 . . . 749 T-7/99 Medici Grimm KG v Council [2000] ECR II-2671 . . . 602, 753 T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305 . . . 149, 193, 317, 334, 368, 383, 444, 452–6, 477, 481, 516, 648, 649, 654, 655, 659, 697, 699, 700, 702, 720, 724 T-18/99 Cordis Obst und Gemuse GrossHandel GmbH v Commission [2001] ECR II-913 . . . 626, 739, 754, 756, 757 T-23/99 LRAF 1998 A/S v Commission [2002] ECR II-1705 . . . 626 T-30/99 Bocchi Food Trade International GmbH v Commission [2001] ECR II-943 . . . 646 T-31/99 ABB Asea Brown Boveri Ltd v Commission [2002] ECR II-1881 . . . 364, 626 T-36/99 Lenzing AG v Commission [2004] ECR II-3597 . . . 439 T-52/99 T Port & Co KG v Commission [2001] ECR II-981 . . . 468 T-54/99 max.mobil Telekommunikation Service GmbH v Commission [2002] ECR II-313 . . . 367, 393 T-55/99 CETM v Commission [2000] ECR II-3207 . . . 666 T-59/99 Ventouris Group Enterprises SA v Commission [2003] ECR II-5257 . . . 667 T-70/99 Alpharma Inc v Council [2002] ECR II-3495 . . . 149, 317, 444, 452, 620, 623, 648, 699 T-72/99 Meyer v Commission [2000] ECR II-2521 . . . 619 T-103/99 Associazione delle Cantine Sociali Venete v European Ombudsman and Parliament [2000] ECR II-4165 . . . 817 T-114/99 CSR PAMPRYL v Commission [1999] ECR I-3331 . . . 331 T-126/99 Graphischer Maschinenbau GmbH v Commission [2002] ECR II-2427 . . . 466, 731 T-127, 129 and 148/99 Territorio Histórico de Álava-Diputación Foral de Álava v Commission [2002] ECR II-1275 . . . 442 T-141–142, 150–151/99 Vela Srl and Tecnagrind SL v Commission [2002] ECR II-4547 . . . 611 T-152/99 Hijos de Andres Molina SA (HAMSA) v Commission [2002] ECR II-3049 . . . 439, 442 T-155/99 Dieckmann & Hansen GmbH v Commission [2001] ECR II-3143 . . . 629, 630, 638 T-171/99 Corus UK Ltd v Commission [2001] ECR II-2967 . . . 729, 753

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T-187/99 Agrana Zucker und Stark AG v Commission [2001] ECR II-1587 . . . 364, 370 T-191/99 Petrie v Commission [2001] ECR II-3677 . . . 390, 815 T-199/99 Sgaravatti Mediterranea Srl v Commission [2002] ECR II-3731 . . . 106, 467, 624, 666 T-205/99 Hyper Srl v Commission [2002] ECR II-3141 . . . 356 T-206/99 Metropole Television SA v Commission [2001] ECR II-1057 . . . 364, 370 T-222, 327 & 329/99 Jean-Claude Martinez, Charles de Gaulle, Front National and Emma Bonino v EP [2001] ECR II-2823 . . . 620, 656 T-228 and 233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II-435 . . . 365, 367 T-326/99 Olivieri v Commission and EMEA [2003] ECR II-6053 . . . 705 T-342/99 Airtours plc v Commission [2002] ECR II-2585 . . . 456, 470, 473 T-3/00 and 337/04 Athanasios Pitsiorlas v Council and ECB [2007] ECR II-4779 . . . 742, 747, 748 T-57/00 Banan-Kompaniet AB and Skandinaviska Bananimporten AB v Council and Commission [2003] ECR II-607 . . . 743, 747 T-61 & 62/00 APOL and AIPO v Commission [2003] ECR II-635 . . . 666 T-67, 68, 71 & 78/00 JFE Engineering Corp v Commission [2004] ECR II-2501 . . . 636 T-74, 76, 83–85, 132, 137 & 141/00 Artegodan GmbH v Commission [2002] ECR II-4945 . . . 176, 383, 394, 480, 515, 516, 697–9, 704, 705, 720, 721 T-81/00 Associacao Comercial de Aveiro v Commission [2002] ECR II-2509 . . . 467 T-102/00 Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission [2003] ECR II-2433 . . . 312, 314, 350 T-147/00 Les Laboratoires Servier v Commission [2003] ECR II-85 . . . 698, 710 T-170/00 Forde-Reederie GmbH v Council and Commission [2002] ECR II-515 . . . 752 T-180/00 Astipeca SL v Commission [2002] ECR II-3985 . . . 666 T-186/00 Conserve Italia Soc Coop rl v Commission [2003] ECR II-719 . . . 666 T-209/00 Lamberts v Commission [2002] ECR II-2203 . . . 736, 817, 818 T-210/00 Etablissments Biret et Cie SA v Council [2002] ECR II-47 . . . 747 T-211/00 Kuijer v Council [2002] ECR II-485 . . . 394

T-223/00 Kyowa Hakko Kogyo Co Ltd and Kyowa Hakko Europe GmbH v Commission [2003] ECR II-2553 . . . 619, 636 T-224/00 Archer Daniels Midland Company and Archer Daniels Midland Ingredients Ltd v Commission [2003] ECR II-2597 . . . 667, 731 T-241/00 Azienda Agricola ‘Le Canne’ Srl v Commission [2002] ECR II-1251 . . . 363, 370 T-251/00 Lagardère SCA and Canal+ SA v Commission [2002] ECR II-4825 . . . 608, 614, 616, 618 T-254, 270, 277/00 Hotel Cipriani SpA and Others v Commission [2008] ECR II-3269 . . . 465 T-305/00 Conserve Italia Soc Coop rl v Commission [2003] ECR II-5659 . . . 666 T-306/00 Conserve Italia Soc Coop rl v Commission [2003] ECR II-5705 . . . 667 T-308/00 Salzgitter AG v Commission [2004] ECR II-1933 . . . 465 T-310/00 MCI, Inc v Commission [2004] ECR II-3253 . . . 619 T-332 & 350/00 Rica Foods (Free Zone) NV and Free Trade Foods NV v Commission [2002] ECR II-4755 . . . 468 T-340/00 Communita Montana della Valnerina v Commission [2003] ECR II-811 . . . 106 T-344–345/00 CEVA Sante Animale SA and Pharmacia Enterprises SA v Commission [2003] ECR II-229 . . . 468 T-383/00 Beamglow Ltd v European Parliament, Council and Commission [2005] ECR II-5459 . . . 739, 752 T-40/01 Scan Office Design SA v Commission [2002] ECR II-5043 . . . 747 T-44, 119, 126/01 Eduardo Vieira Sa, Vieira Argentina SA and Pescanova SA v Commission [2003] ECR II-1209 . . . 737 T-48/01 François Vainker and Brenda Vainker v European Parliament [2004] ECR IA-51 . . . 749 T-58/01 Solvay SA v Commission [2009] ECR II-4781 . . . 356 T-64–65/01 Afrikanische Frucht-Compagnie GmbH and another v Commission [2004] ECR II-521 . . . 625, 740, 752 T-66/01 ICI v Commission EU:T:2010: 255 . . . 356 T-94, 152 & 286/01 Hirsch, Nicastro and Priesemann v ECB [2003] ECR IA-1 . . . 734 T-116 & 118/01 P & O European Ferries (Vizcaya), SA and Diputacion Foral de Vizcaya v Commission [2003] ECR II-2957 . . . 779 T-125/01 Jose Marti Peix, SA v Commission [2003] ECR II-865 . . . 731

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Table of Cases T-137/01 Stadtsportverband Neuss eV v Commission [2003] ECR II-3103 . . . 611 T-139/01 Comafrica SpA and Dole Fresh Fruit Europe Ltd and Co v Commission [2005] ECR II-409 . . . 338, 748 T-142 and 283/01 Organización de Productores de Túnidos Congelados (OPTUC) v Commission [2004] ECR II-329 . . . 622 T-168/01 GlaxoSmithKline Services Unlimited v Commission [2006] ECR II-2969 . . . 432 T-176/01 Ferriere Nord SpA v Commission [2004] ECR II-3931 . . . 634 T-177/01 Jégo-Quéré et Cie SA v Commission [2002] ECR II-2365 . . . 339 T-180/01 Euroagri Srl v Commission [2004] ECR II-369 . . . 610, 611 T-196/01 Thessalonikis v Commission [2003] ECR II-3987 . . . 106, 732 T-198/01 Technische Glaswerke Ilmenau GmbH v Commission [2004] ECR II-2717 . . . 366, 368, 381, 467, 723 T-213–214/01 Österreichische Postsparkasse AG and Bank für Arbeit und Wirtschaft AG v Commission [2006] ECR II-1601, . . . 619 T-227–229, 265, 266 and 270/01 Territorio Histórico de Álava-Diputación Foral de Álava and Comunidad autónoma del País VascoGobierno Vasco and Others v Commission [2009] ECR II-3029 . . . 365, 468 T-273/01 Innova Privat-Akademie GmbH v Commission [2003] ECR II-1093 . . . 620 T-297–298/01 SIC-Sociedade Independente de Comunicação SA v Commission [2004] ECR II-743 . . . 732 T-301/01 Alitalia-Linee aeree italiane SpA v Commission [2008] ECR II-1753 . . . 732 T-304/01 Julia Abad Pérez v Council of the European Union and Commission [2006] ECR II-4857 . . . 742, 746, 747 T-306/01 R Aden v Council and Commission [2002] ECR II-2387 . . . 723 T-307/01 Jean-Paul François v Commission [2004] ECR II-1669 . . . 732, 749 T-310/01 Schneider Electric SA v Commission [2002] ECR II-4071 . . . 733 T-333/01 Karl Meyer v Commission [2003] ECR II-117 . . . 747 T-5/02 Tetra Laval BV v Commission [2002] ECR II-4381 . . . 355, 457, 458, 470, 472 T-47/02 Danzer and Danzer v Council [2006] ECR II-1779 . . . 737 T-53/02 Ricosmos BV v Commission [2005] ECR II-3173 . . . 356 T-59/02 Archer Daniels Midland Co v Commission [2006] ECR II-3627 . . . 604

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T-104/02 Société Française de Transports Gondrand Frères SA v Commission [2004] ECR II-3211 . . . 731 T-107/02 G E Betz, Inc, formerly BetzDearborn Inc v OHIM [2004] ECR II-1845 . . . 619 T-109, 118, 122, 125, 126, 128, 129, 132 and 136/02 Bolloré SA and Others v Commission [2007] ECR II-947 . . . 358, 360, 636 T-137/02 Pollmeier Malchow GmbH & Co KG v Commission [2004] ECR II-3541 . . . 439, 632 T-163/02 R Montan Gesellschaft Voss mbH Stahlhandel and others v Commission [2002] ECR II-3219 . . . 723, 724 T-168/02 IFAW Internationaler TierschultzFonds GmbH v Commission [2004] ECR II-4135 . . . 397 T-171/02 Regione Autonoma della Sardegna v Commission [2005] ECR II-2123 . . . 624 T-177/02 Malagutti-Vezinhet SA v Commission [2004] ECR II-827 . . . 699 T-211/02 Tideland Signal Ltd v Commission [2002] ECR II-3781 . . . 367, 373, 667, 732, 733 T-213/02 SNF SA v Commission [2004] ECR II-3047 . . . 338, 626, 631 T-228/02 Organisation des Modjahedines du peuple d’Iran v Council and UK [2006] ECR II-4665 . . . 461, 729 T-231/02 Gonnelli and AIFO v Commission [2004] ECR II-1051 . . . 338 T-283/02 EnBW Kernkraft GmbH v Commission [2005] ECR II-913 . . . 619, 744 T-304/02 Hoek Loos NV v Commission [2006] ECR II-1887 . . . 733 T-309/02 Acegas-APS SpA v Commission [2009] ECR II-1809 . . . 338 T-357/02 Freistaat Sachsen v Commission [2007] ECR II-1261 . . . 602 T-392/02 Solvay Pharmaceuticals BV v Council [2003] ECR II-4555 . . . 698, 699, 720 T-2/03 Verein fur Konsumenteninformation v Commission [2005] ECR II-1121 . . . 395, 396, 656 T-20/03 Kahla/Thüringen Porzellan GmbH v Commission [2008] ECR II-2305 . . . 465 T-28/03 Holcim (Deutschland) AG v Commission [2005] ECR II-1357 . . . 731, 753 T-68/03 Olympiaki Aeroporia Ypiresies AE v Commission [2007] ECR II-2911 . . . 366 T-84/03 Turco v Council [2004] ECR II-4061 . . . 397, 398 T-138/03 ÉR v Council and Commission [2006] ECR II-4923 . . . 747, 754, 755, 756 T-160/03 AFCon Management Consultants v Commission [2005] ECR II-981 . . . 749

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T-212/03 My Travel Group plc v Commission [2008] ECR II-1967 . . . 742, 743 T-279/03 Galileo International Technology LLC v Commission [2006] ECR II-1291 . . . 748, 750 T-309/03 Manel Camós Grau v Commission [2006] ECR II-1173 . . . 267 T-333/03 Masdar (UK) Ltd v Commission [2006] ECR II-4377 . . . 744 T-347/03 Eugénio Branco Ld v Commission [2005] ECR II-2555 . . . 624 T-351/03 Schneider Electric SA v Commission [2007] ECR II-2237 . . . 360 T-355 & 446/04 Co-Frutta Soc coop v European Commission [2010] ECR II-1 . . . 267, 394, 397 T-364/03 Medici Grimm KG v Council [2006] ECR II-79 . . . 742 T-369/03Arizona Chemical and others v Commission [2004] ECR II-205 . . . 724 T-391/03 & 70/04 Franchet and Byk v Commission [2006] ECR II-2023 . . . 397 T-410/03 Hoechst GmbH v Commission [2008] ECR II-881 . . . 357 T-413/03 Shandong Reipu Biochemicals Co Ltd v Council [2006] ECR II-2243 . . . 369 T-16/04 Arcelor SA v European Parliament and Council, 2 March 2010 . . . 338, 347, 540, 738, 742, 744 T-25/04 González y Díez, SA v Commission [2007] ECR II-3121 . . . 465, 603 T-48/04 Qualcomm Wireless Business Solutions Europe BV v Commission [2009] ECR II-2029 . . . 460 T-78/04 Sumitomo Chemical (UK) plc v Commission [2004] ECR II-2049 . . . 723, 724 T-124/04 Jamal Ouariachi v Commission [2005] ECR II-4653 . . . 750 T-193/04 Hans-Martin Tillack v Commission [2006] ECR II-3995 . . . 737, 740 T-201/04 Microsoft Corp v Commission [2007] ECR II-3601 . . . 460, 724 T-229/04 Kingdom of Sweden v Commission [2007] ECR I-2437 . . . 700 T-236 & 241/04 EEB and Stichting Natuur en Milieu v Commission [2005] ECR II-4945 . . . 338 T-239 & 323/04 Italy and Brandt Italia SpA v Commission [2009] ECR II-3265 . . . 779 T-240/04 French Republic v Commission [2007] ECR II-4035 . . . 405, 601 T-264/04 WWF European Policy Programme v Council [2007] ECR II-911 . . . 397 T-271/04 Citymo SA v Commission [2007] ECR II-1375 . . . 621 T-291/04 Enviro Tech Europe Ltd and Enviro Tech International, Inc v European Commission, EU:T:2011:760 . . . 456

T-309, 317, 329, 336/04 T V/2 Danmark A/S and Others v Commission [2008] ECR II-2935 . . . 365, 369 T-335 & 446/04 Co-Frutta Soc coop v European Commission, 19 January 2010 . . . 249 T-339/04 France Télécom SA v Commission [2007] ECR II-521 . . . 433 T-340/04 France Télécom SA v Commission [2007] ECR II-573 . . . 375 T-348/04 Société internationale de diffusion et d’édition SA (SIDE) v Commission [2008] ECR II-625 . . . 603 T-374/04 Germany v Commission [2007] ECR II-4431 . . . 631 T-416/04 Kontouli v Council [2006] ECR II-A-2 897 . . . 609, 616 T-462/04 HEG Ltd and Graphite India Ltd v Council [2008] ECR II-3685 . . . 463 T-500/04 Commission v IIC InformationsIndustrie Consulting GmbH [2007] ECR II-1443 . . . 611 T-18/05 IMI plc, IMI Kynoch Ltd and Yorkshire Copper Tube v European Commission [2010] ECR II-1769 . . . 667 T-24/05 Alliance One International, Inc v Commission EU:T:2010:453 . . . 370 T-68/05 Aker Warnow Werft GmbH and Kvaerner ASA v Commission [2009] ECR II-355 . . . 466 T-101 and 111/05 BASF AG and UCB SA v Commission [2007] ECR II-4949 . . . 667 T-112/05 Akzo Nobel NV v Commission [2007] ECR II-5049 . . . 733 T-161/05 Hoechst GmbH v Commission [2009] ECR II-3555 . . . 356 T-299/05 Shanghai Excell M&E Enterprise Co Ltd and Shanghai Adeptech Precision Co Ltd v Council [2009] ECR II-573 . . . 463 T-321/05 AstraZeneca AB and AstraZeneca plc v European Commission EU:T:2010:266 . . . 460 T-412/05 M v Ombudsman [2008] ECR II-197 . . . 818 T-420/05 Vischim Srl v Commission [2009] ECR II-3841 . . . 433 T-432/05 EMC Development AB v European Commission,EU:T:2010:189 . . . 364 T-446/05 Amann & Söhne GmbH & Co KG and Cousin Filterie SAS v Commission EU:T:2010:16 . . . 460 T-447/05 Société des plantations de Mbanga SA (SPM) v Commission [2007] ECR II-1 . . . 732 T-452/05 Belgian Sewing Thread (BST) NV v European Commission, 28 April 2010 . . . 748 T-42/06 Bruno Gollnisch v European Parliament [2010] ECR II-1135 . . . 747

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Table of Cases T-49/06 Interpipe Nikopolsky Seamless Tubes v Council [2009] ECR II-383 . . . 463 T-50 and 69/06 RENV II Ireland and Aughinish Alumina Ltd v European Commission EU:T:2016:22 . . . 619 T-75/06 Bayer CropScience AG and others v Commission [2008] ECR II-2081 . . . 465 T-95/06 Federación de Cooperativas Agrarias de la Comunidad Valenciana v Community Plant Variety Office (CPVO) [2008] ECR II-31 . . . 338 T-119/06 Usha Martin v Council [2010] ECR II-4335 . . . 651 T-143/06 MTZ Polyfilms Ltd v Council [2009] ECR II-4133 . . . 405 T-145/06 Omya AG v Commission [2009] ECR II-145 . . . 460 T-155/06 Tomra Systems ASA and Others v Commission EU:T:2010:370 . . . 460 T-170/06 Alrosa Company Ltd v Commission [2007] ECR II-2601 . . . 647 T-186/06 Solvay SA v Commission EU:T:2011:276 . . . 356 T-191/06 FMC Foret v Commission [2011] ECR II-2959 . . . 358 T-197/06 FMC Corp v European Commission EU:T:2011:282 . . . 356 T-282/06 Sun Chemical Group BV, Siegwerk Druckfarben AG and Flint Group Germany GmbH v Commission [2007] ECR II-2149 . . . 460 T-310/06 Hungary v Commission [2007] ECR II-4619 . . . 465 T-369/06 Holland Malt v Commission [2009] ECR II-3313 . . . 624 T-402/06 Spain v Commission EU:T:2013: 445 . . . 392 T-404/06 P European Training Foundation (ETF) v Pia Landgren [2009] ECR II-2841 . . . 640 T-410/06 Foshan City Nanhai Golden Step Industrial Co, Ltd v Council, 4 March 2010 . . . 313, 350 T-411/06 Sogelma-Societá generale lavori manutenzioni appalti Srl v European Agency for Reconstruction (AER) [2008] ECR II-2771 . . . 65, 175 T-19/07 Systran SA and Systran Luxembourg SA v European Commission EU:T:2010: 526 . . . 373 T-31/07 Du Pont de Nemours (France) SAS v Commission EU:T:2013:167 . . . 742 T-42/07 Dow Chemical v Commission, 13 July 2011 . . . 352 T-49/07 Sofiane Fahas v Council, 7 December 2010 . . . 468

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T-51/07 Agrar-Invest-Tatschl GmbH v Commission [2008] ECR II-2825 . . . 731 T-74/07 Germany v Commission [2009] ECR II-107 . . . 666 T-89/07 VIP Car Solutions SARL v European Parliament [2009] ECR II-1403 . . . 731 T-112/07 Hitachi v Commission EU:T:2011: 3871 . . . 356 T-117 & 121/07 Areva v Commission [2011] ECR II-633 . . . 352 T-122–124/07 Siemens AG Österreich and others v Commission [2011] ECR II-793 . . . 358, 636 T-132/07 Fuji Electric Co v Commission EU:T:2011:344 . . . 519 T-151/07 Kone v Commission EU:T:2011:365 . . . 356 T-252, 271–272/07 Sungro SA v Council and Commission [2010] ECR II-55 . . . 746 T-256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3019 . . . 461 T-257/07 R France v Commission [2007] ECR II-4153 . . . 723 T-264/07 CSL Behring GmbH v European Commission and European Medicines Agency (EMA) EU:T:2010:371 . . . 623 T-300/07 Evropaïki Dynamiki-Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission EU:T:2010: 372 . . . 463 T-326/07 Cheminova A/S v Commission [2009] ECR II-2685 . . . 432, 639, 698 T-342/07 Ryanair Holdings plc v Commission EU:T:2010:280 . . . 460 T-348/07 Stichting Al-Aqsa v Council [2010] ECR II-4575 . . . 732 T-461/07 Visa Europe Ltd and Visa International Service v European Commission EU:T:2011:181 . . . 352, 373 T-475/07 Dow AgroSciences Ltd v European Commission EU:T:2011:445 . . . 456, 699 T-62/08 ThyssenKrupp Acciai Speciali Terni SpA v Commission EU:T:2010:268 . . . 366 T-68/08 Fédération internationale de football association (FIFA) v European Commission [2011] ECR II-349 . . . 659 T-195/08 Antwerpse Bouwwerken NV v European Commission [2009] ECR II-4439 . . . 267 T-246 & 332/08 Melli Bank plc v Council [2009] ECR II-2629 . . . 400 T-284/08 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3487 . . . 461 T-362/08 IFAW Internationaler Tierschutz-Fonds GmbH v European Commission [2011] ECR II-11 . . . 656

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Table of Cases

T-369/08 European Wire Rope Importers Association (EWRIA) v Commission [2010] ECR II-6283 . . . 731 T-390/08 Bank Melli Iran v Council [2009] ECR II-3967 . . . 468 T-427/08 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v Commission EU:T:2010:517 . . . 364, 460 T-52/09 R Nycomed Danmark ApS v Agence européenne des médicaments (EMEA) [2009] ECR II-43 . . . 723 T-85/09 Kadi v European Commission [2010] ECR II-5177 . . . 461, 475 T-95/09 R United Phosphorous v Commission [2009] ECR II-47 . . . 723 T-149/09 R Dover v European Parliament [2009] ECR II-66 . . . 724 T-96/10 Rütgers Germany GmbH v European Chemicals Agency (ECHA) EU:T:2013: 109 . . . 267 T-189/10 GEA Group AG v European Commission EU:T:2015:504 . . . 312, 353 T-262/10 Microban International Ltd and Microban (Europe) Ltd v Commission, 25 October 2011 . . . 317 T-300/10 Internationaler Hilfsfonds eV v European Commission EU:T:2012:247 . . . 394 T-301/10 Sophie in ’t Veld v European Commission EU:T:2013:135 . . . 394 T-333/10 Animal Trading Company (ATC) BV v European Commission EU:T:2013:451 . . . 456, 698 T-526/10 Inuit Tapiriit Kanatami v European Commission EU:T:2013:215 . . . 647 T-111/11 ClientEarth v European Commission EU:T:2013:482 . . . 395 T-116/11 European Medical Association (EMA) v European Commission EU:T:2013:634 . . . 753 T-204/11 Spain v European Commission EU:T:2015:91 . . . 456 T-217/11 Claire Staelen v European Ombudsman EU:T:2015:238 . . . 818 T-229 and 276/11 Lord Inglewood v European Parliament EU:T:2013:127 . . . 602 T-233/11 Hellenic Republic v European Commission EU:T:2015:948 . . . 466 T-245/11 ClientEarth and the International Chemical Secretariat v European Chemicals Agency (ECHA) EU:T:2015:675 . . . 394, 656 T-260/11 Spain v European Commission EU:T:2014:555 . . . 313, 350 T-279/11 T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission EU:T:2013:299 . . . 338–9

T-331/11 Besselink v Commission EU:T:2013:499 . . . 396 T-456/11 International Cadmium Association (ICdA) v European Commission EU:T:2013:594 . . . 456 T-471/11 Éditions Odile Jacob SAS v European Commission EU:T:2014:739 . . . 460, 602, 732, 733 T-480/11 Technion—Israel Institute of Technology v European Commission EU:T:2015:272 . . . 396 T-534/11 Schenker AG v European Commission EU:T:2014:854 . . . 394 T-545/11 Stichting Greenpeace Nederland and PAN Europe v European Commission EU:T:2013:523 . . . 397 T-601/11 Dansk Automat Brancheforening v European Commission EU:T:2014:839 . . . 344 T-190/12 Tomana v Council of the European Union and European Commission EU:T:2015:222 . . . 314 T-290/12 Poland v European Commission EU:T:2015:221 . . . 622 T-296/12 The Health Food Manufacturers’ Association and Others v European Commission EU:T:2015:375 . . . 316 T-317/12 Holcim (Romania) SA v European Commission EU:T:2014:782 . . . 755 T-473/12 Aer Lingus Ltd v European Commission EU:T:2015:78 . . . 466 T-512/12 Front Polisario v Council EU:T:2015:953 . . . 344 T-79/13 Accorinti v European Central Bank EU:T:2015:756 . . . 625, 742, 752 T-114/13 P Cerafogli v European Central Bank EU:T:2015:67 . . . 313 T-214/13 Rainer Typke v European Commission EU:T:2015:448 . . . 395 T-261/13 and 86/14 Netherlands v European Commission EU:T:2015:671 . . . 146, 817 T-397/13 Tilly-Sabco v European Commission EU:T:2016:8 . . . 345, 346 T-461/13 Spain v Commission EU:T:2015: 89 . . . 433 T-529/13 Balázs-Árpád Izsák and Attila Dabis v European Commission EU:T:2016:282 . . . 417 T-549/13 French Republic v European Commission EU:T:2016:6 . . . 465 T-646/13 Bürgerausschuss für die Bürgerinitiative Minority SafePack—one million signatures for diversity in Europe v European Commission EU:T:2017:59 . . . 150 T-677/13 Axa Versicherung AG v European Commission EU:T:2015:473 . . . 394, 656

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Table of Cases T-44/14 Costantini v European Commission EU:T:2016:223 . . . 423 T-103/14 Frucona Košice as v European Commission EU:T:2016:15 . . . 728 T-138/14 Randa Chart v European External Action Service EU:T:2015:981 . . . 373 T-157/14 JingAo Solar Co Ltd v Council of the European Union EU:T:2017:127 . . . 604, 659 T-160/14 Yingli Energy (China) Co Ltd v Council of the European Union EU:T:2017:125 . . . 604 T-162/14 Canadian Solar Emea GmbH v Council EU:T:2017:12 . . . 651 T-219/14 Regione autonoma della Sardegna v European Commission EU:T:2017:266 . . . 466 T-312/14 Federcoopesca v European Commission EU:T:2015:472 . . . 344, 346 T-346/14 Yanukovych v Council of the European Union EU:T:2016:497 . . . 313 T-348/14 Yanukovych v Council of the European Union EU:T:2016:508 . . . 468 T-424 and 425/14 ClientEarth v European Commission EU:T:2015:848 . . . 396 T-463/14 Österreichische Post AG v European Commission EU:T:2016:24 . . . 370 T-479/14 Kendrion NV v European Union, represented by the Court of Justice of the European Union, EU:T:2017:48 . . . 747 T-671/14 Bayerische Motoren Werke AG v European Commission EU:T:2017:599 . . . 466 T-710/14 Herbert Smith Freehills LLP v Council of the European Union EU:T:2016:49 . . . 397 T-712/14 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v Commission EU:T:2017:748 . . . 364 T-754/14 Efler v European Commission EU:T:2017:323 . . . 150 T-796/14 Philip Morris Ltd v European Commission EU:T:2016:483 . . . 370, 396, 397 T-817/14 Zoofachhandel Züpke GmbH v European Commission EU:T:2016:157 . . . 369 T-122/15 Landeskreditbank BadenWürttemberg—Förderbank v European Central Bank, EU:T:2017:337 . . . 433 T-153/15 Hamcho International v Council of the European Union EU:T:2016:630 . . . 313 T-180/15 Icap plc v European Commission EU:T:2017:795 . . . 601 T-210/15 Deutsche Telekom AG v European Commission EU:T:2017:224 . . . 396, 525 T-215/15 Azarov v Council EU:T:2017: 479 . . . 369 T-235/15 R Pari Pharma GmbH v European Medicines Agency EU:T:2015:587 . . . 723 T-262/15 Kiselev v Council of the European Union EU:T:2017:392 . . . 520

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T-344/15 France v European Commission EU:T:2017:250 . . . 397 T-600/15 Pesticide Action Network Europe (PAN Europe) v European Commission EU:T:2016:601 . . . 514 T-673/15 Guardian Europe Sàrl v European Union EU:T:2017:37 . . . 747 T-131/16 R Belgium v European Commission EU:T:2016:427 . . . 723 NUMERICAL COURT OF JUSTICE

7 & 9/54 Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority [1955–6] ECR 53 . . . 576 8/55 Fédération Charbonnière de Belgique v High Authority [1956] ECR 245 . . . 405, 576, 643 7/56 & 3–7/57 Algera v Common Assembly [1957] ECR 39 . . . 608, 612, 613, 617 9/56 Meroni v High Authority [1958] ECR 133 . . . 67, 168, 169, 171–4, 192–5, 273, 274 8/57 Groupement des Hauts Fourneaux et Acieries Belges v High Authority [1957–8] ECR 245 . . . 579 1/58 Stork v High Authority [1959] ECR 17 . . . 485 14/59 Sociétés des Fonderies de Pont-á-Mousson v High Authority [1959] ECR 215 . . . 576 16–18/59 Geitling, Mausegatt and Prasident v High Authority [1960] ECR 17 . . . 362 36, 37, 38, & 40/59 Geitling v High Authority [1960] ECR 423 . . . 485 42 and 49/59 SNUPAT v High Authority [1961] ECR 53 . . . 608, 610, 614 6/60 Humblet v Belgium EU:C:1960:48 . . . 6, 759, 764 9 & 12/60 Vloeberghs v High Authority [1961] ECR 197 . . . 747 15/60 Simon v High Authority [1961] ECR 115 . . . 618 18/60 Worms v High Authority [1962] ECR 195 . . . 737 14/61 Hoogovens v High Authority [1962] ECR 253 . . . 270, 362, 615 16/61 Acciaieriere Ferriere e Fonerie di Modena v High Authority [1962] ECR 289 . . . 579 19/61 Mannesmann AG v High Authority [1962] ECR 357 . . . 643 24/62 Germany v Commission [1963] ECR 63 . . . 370, 371 25/62 Plaumann & Co v Commission [1963] ECR 95 . . . 333, 347, 737

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26/62 N V Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR . . . 282 28–30/62 Da Costa en Schaake NV, Jacob Meijer NV and Hoechst-Holland NV v Nederlandse Belastingadministratie [1963] ECR 31 . . . 281, 282 34/62 Germany v Commission [1963] ECR 131 . . . 576 13/63 Italian Republic v Commission [1963] ECR 165 . . . 577 18/63 Wollast v EEC [1964] ECR 85 . . . 753 75/63 Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten [1964] ECR 177 . . . 549 106 & 107/63 Toepfer v Commission [1965] ECR 405 . . . 755 110/63 Willame v Commission [1965] ECR 649 . . . 753 111/63 Lemmerz-Werke v High Authority [1965] ECR 677 . . . 608 6/64 Costa v ENEL [1964] ECR 585 . . . 282 40/64 Sgarlata and others v Commission [1965] ECR 215 . . . 485 56 & 58/64 Consten & Grundig v Commission [1966] 299 . . . 362, 450 56/65 Société La Technique Minière (LTM) v Maschinenbau Ulm GmbH [1966] ECR 235 . . . 362 5, 7, 13–24/66 Kampffmeyer v Commission [1967] ECR 245 . . . 749, 754, 757 5/67 Beus [1968] ECR 83 . . . 371 5/68 Sayag v Leduc [1968] ECR 395 . . . 751 13/68 Salgoil v Italian Ministry for Foreign Trade [1973] ECR 453 . . . 759 26/68 Fux v Commission [1969] ECR 145 . . . 749 27/68 R Renckens v Commission [1969] ECR 274 . . . 723 4/69 Alfons Lütticke GmbH v Commission [1971] ECR 325 . . . 747 9/69 Sayag v Leduc [1969] ECR 329 . . . 750 15/69 Württembergische MilchverwertungSüdmilch-AG v Salvatore Ugliola [1970] ECR 363 . . . 547, 553 19, 20, 25, 30/69 Denise Richez-Parise v Commission [1970] ECR 325 . . . 745 11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125 . . . 485, 643 22/70 Commission v Council [1971] ECR 263 . . . 266, 408 25/70 Einfuhr- und Vorrasstelle fur Getreide und Futtermittel v Koster, Berodt & Co [1970] 2 ECR 1161 . . . 114, 116

5/71 Aktien-Zuckerfabrik Schöppenstedt v Council [1971] ECR 975 . . . 737, 738, 739 9 & 11/71 Compagnie d’Approvisionnement de Transport et de Crédit SA et Grands Moulins de Paris SA v Commission [1972] ECR 391 . . . 737, 752 51–54/71 International Fruit Company v Produktschap voor Groenten en Fruit (No 2) [1971] ECR 1107 . . . 548 96/71 R and V Haegeman Sprl v Commission [1972] ECR 1005 . . . 755 36/72 Meganck v Commission [1973] ECR 527 . . . 753 43/72 Merkur GmbH & Co KG v Commission [1973] ECR 1055 . . . 580, 740 57/72 Westzucker GmbH v Einfuhr-und Vorratsstelle für Zucker [1973] ECR 321 . . . 440, 445–51 71/72 Kuhl v Council [1973] ECR 705 . . . 753 76/72 Michel S v Fonds National de Reclassement Handicapés [1973] ECR 457 . . . 552 81/72 Commission v Council [1973] ECR 575 . . . 730 4/73 Nold v Commission [1974] ECR 491 . . . 485 8/73 Hauptzollamt Bremerhaven v MasseyFerguson [1973] ECR 897 . . . 421 120/73 Gebrüder Lorenz GmbH v Germany [1973] ECR 1471 . . . 362, 365 148/73 Louwage v Commission [1974] ECR 81 . . . 631 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153 . . . 547, 553 153/73 Holtz & Willemsen v Council [1974] ECR 675 . . . 581, 740 167/73 Commission v French Republic [1974] ECR 359 . . . 547 9/74 Casagrande v Landeshauptstadt München [1974] ECR 773 . . . 552 12/74 Commission v Germany [1975] ECR 181 . . . 548 17/74 Transocean Marine Paint v Commission [1974] ECR 1063 . . . 312 26/74 Roquette Frères v Commission [1976] ECR 677 . . . 748, 754, 764 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299 . . . 558, 674 36/74 Walrave and Koch [1974] ECR 1405 . . . 559 41/74 Van Duyn v Home Office [1974] ECR 1337 . . . 282, 685 56–60/74 Kampffmeyer v Commission and Council [1976] ECR 711 . . . 748 73/74 Papiers Peints de Belgique v Commission [1975] ECR 1491 . . . 371

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Table of Cases 74/74 Comptoir National Technique Agricole (CNTA) SA v Commission [1975] ECR 533 . . . 448, 450, 628, 740, 749 78/74 Deuka, Deutsche Kraft futter GmbH, B J Stolp v Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1975] ECR 421 . . . 448 99/74 Société des Grands Moulins des Antilles v Commission [1975] ECR 1531 . . . 756 2/75 Einfuhr-und Vorratsstelle für Getreide und Futtermittel v Firma C Mackprang [1975] ECR 607 . . . 624 4/75 Rewe-Zentralfinanz v Landwirtschaft skammer [1975] ECR 843 . . . 548 23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279 . . . 116 32/75 Fiorini (neé Cristini) v Société Nationale des Chemins de Fer Français [1975] ECR 1085 . . . 552, 690 36/75 Rutili v Ministre de l’Intérieur [1975] ECR 1219 . . . 673 39/75 Coenen v Social Economische Raad [1975] ECR 1547 . . . 674 43/75 Defrenne v Société Anonyme Belge de Navigation Aérienne [1976] ECR 455 . . . 500, 559, 588 104/75 de Peijper [1976] ECR 613 . . . 671 105/75 Giuffrida v Council [1976] ECR 1395 . . . 469 3, 4 and 6/76 Kramer [1976] ECR 1279 . . . 408 11/76 Netherlands v Commission [1979] ECR 245 . . . 88 26/76 Metro-SB-Großmärkte GmbH & Co KG v Commission [1977] ECR 1875 . . . 318 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989 . . . 759 45/76 Comet BV v Produktschap voor Siergewassen [1976] ECR 2043 . . . 759 53/76 Procureur de la République Besançon v Bouhelier [1977] ECR 197 . . . 548 54–60/76 Compagnie Industrielle et Agricole du Comté de Loheac v Council and Commission [1977] ECR 645 . . . 752 63/76 Inzirillo v Caisse d’Allocations Familiales de l’Arrondissement de Lyon [1976] ECR 2057 . . . 553 64, 113/76, 167, 239/78, 27, 28, 45/79 Dumortier Frères SA v Council [1979] ECR 3091 . . . 741, 746 68/76 Commission v French Republic [1977] ECR 515 . . . 548 83, 94/76, 4, 15 and 40/77 Bayerische HNL Vermehrungsbetriebe GmbH & Co KG v Council and Commission [1978] ECR 1209 . . . 741, 748

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85/76 Hoffmann-La Roche v Commission [1979] ECR 461 . . . 312 114/76 Bela-Mühle Josef Bergman KG v Grows-Farm GmbH & Co KG [1977] ECR 1211 . . . 665 116/76 Granaria BV v Hoofdprodukschap voor Akkerbouwprodukten [1977] ECR 1247 . . . 665 117/76 and 16/77 Ruckdeschel v Hauptzollamt Hambourg-St Annen [1977] ECR 1753 . . . 270, 545 119 and 120/76 Ölmühle Hamburg AG v Hauptzollamt Hamburg-Waltershof [1977] ECR 1269 . . . 665 126/76 Dietz v Commission [1977] ECR 2431 . . . 757 2/77 Hoffman’s Stärkefabriken v Hauptzollamt Bielefeld [1977] ECR 1375 . . . 581 5/77 Carlo Tedeschi v Denkavit Commerciale Srl [1977] ECR 1555 . . . 116 8/77 Sagulo, Brenca, and Bakhouche [1977] ECR 1495 . . . 761 44–51/77 Union Malt v Commission [1978] ECR 57 . . . 743 54/77 Herpels v Commission [1978] ECR 585 . . . 610, 618 78/77 Luhrs v Hauptzollamt Hamburg-Jonas [1978] ECR 169 . . . 622 79/77 Firma Kühlhaus Zentrum AG v Hauptzollamt Hamburg-Harburg [1978] ECR 611 . . . 577 103 & 145/77 Royal Scholten-Honig v Intervention Board for Agricultural Produce [1978] ECR 2037 . . . 578 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629 . . . 282, 760 116 and 124/77 Amylum NV and Tunnel Refineries Ltd v Council and Commission [1979] ECR 3497 . . . 741, 747 132/77 Société pour l’Exportation des Sucres SA v Commission [1978] ECR 1061 . . . 747 139/77 Denkavit Futtermittel GmbH v Finanzamt Warendorf [1978] ECR 1317 . . . 579, 580 149/77 Defrenne v Sabena (Defrenne III) [1978] ECR 1365 . . . 485, 583, 584, 589 8/78 Milac GmbH v Hauptzollamt Freiburg [1978] ECR 1721 . . . 545 98/78 Firma A Racke v Hauptzollamt Mainz [1979] ECR 69 . . . 447, 448, 450, 451, 602 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 . . . 67 122/78 Buitoni v Forma [1979] ECR 677 . . . 665

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127/78 Spitta & Co v Hauptzollamt Frankfurt/ Main-Ost [1979] ECR 171 . . . 622 138/78 Stölting v Hauptzollamt Hamburg-Jonas [1979] ECR 713 . . . 645 207/78 Ministère Public v Even and ONPTS [1979] ECR 2019 . . . 553 209–215, 218/78 Van Landewyck SARL v Commission [1980] ECR 3125 . . . 359 230/78 Eridania Zuccherifici Nazionali v Ministre de l’Agriculture et des Forêts [1979] ECR 2749 . . . 577, 579 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955 . . . 749, 750 240/78 Atalanta Amsterdam BV v Produktschap voor Vee en Vlees [1979] ECR 2137 . . . 665 4/79 Société Coopérative ‘Providence Agricole de la Champagne’ v Office National Interprofessionnel des Céréales (ONIC) [1980] ECR 2823 . . . 734, 735 34/79 R v Henn and Darby [1979] ECR 3795 . . . 685 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727 . . . 485, 660 49/79 Pool v Council [1980] ECR 569 . . . 580 61/79 Denkavit Italiana [1980] ECR 1205 . . . 762 66, 127 and 128/79 Salumi v Amministrazione delle Finanze [1980] ECR 1237 . . . 762 104/79 Pasquale Foglia v Mariella Novella [1980] ECR 745 . . . 286 133/79 Sucrimex SA and Westzucker GmbH v Commission [1980] ECR 1299 . . . 756 138/79 Roquette Frères v Council [1980] ECR 3333 . . . 453 145/79 SA Roquette Frères v France [1980] ECR 2917 . . . 734 149/79 Commission v Belgium [1980] ECR 3881 . . . 554, 555 543/79 Birke v Commission [1981] ECR 2669 . . . 737 730/79 Philip Morris Holland BV v Commission [1980] ECR 2671 . . . 440, 444, 449, 451 789 and 790/79 Calpak SpA and Societa Emiliana Lavorazione Fruita SpA v Commission [1980] ECR 1949 . . . 333 46/80 Vinal SpA v Orbat SpA [1981] ECR 77 . . . 286 53/80 Officier van Justitie v Koniklijke Kassfabriek Eyssen BV [1981] ECR 409 . . . 671 66/80 International Chemical Corporation v Amministrazione delle Finanze dello Stato [1981] ECR 1191 . . . 282, 734 96/80 Jenkins v Kingsgate (Clothing Productions) Ltd [1981] ECR 911 . . . 587 98/80 Romano v Institut national d’assurance maladie-invalidité EU:C:1981:104 . . . 169–71

100–103/80 Musique Diffusion Française v Commission [1983] ECR 1825 . . . 353, 359 113/80 Commission v Ireland [1981] ECR 1625 . . . 548 158/80 Rewe-Handelsgesellschaft Nord mbH v Hauptzollamt Kiel [1981] ECR 1805 . . . 759 169/80 Administration des douanes v Société anonyme Gondrand Frères and Société anonyme Garancini [1981] ECR 1931 . . . 601 197, 200, 243, 245, 247/80 Ludwigshafener Walzmuhle Erling KG v Council and Commission [1981] ECR 3211 . . . 453, 576 212–217/80 Amministrazione delle Finanze dello Stato v Srl Meridionale Industria Salumi [1981] ECR 2735 . . . 603 244/80 Pasquale Foglia v Mariella Novello (No 2) [1981] ECR 3045 . . . 286 14/81 Alpha Steel v Commission [1982] ECR 749 . . . 609, 617 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057 . . . 743 52/81 W Faust v Commission [1982] ECR 3745 . . . 625 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035 . . . 549, 550 54/81 Firma Wilhelm Fromme v Bundesanstalt für Landwirtschaftliche Marktordnung [1982] ECR 1449 . . . 778 60/81 International Business Machines Corporation v Commission [1981] ECR 2639 . . . 267 61/81 Commission v UK [1982] ECR 2601 . . . 585 65/81 Reina v Landeskreditbank BadenWürttemberg [1982] ECR 33 . . . 553 106/81 Julius Kind AG v EEC [1982] ECR 2885 . . . 579, 740 115 and 116/81 Adoui and Cornuaille v Belgian State [1982] ECR 1665 . . . 685 124/81 Commission v UK [1983] ECR 203 . . . 671 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045 . . . 363 217/81 Compagnie Interagra SA v Commission [1982] ECR 2233 . . . 756 245/81 Edeka v Federal Republic of Germany [1982] ECR 2745 . . . 625 249/81 Commission v Ireland [1982] ECR 4005 . . . 548 261/81 Walter Rau Lebensmittelwerke v De Smedt PvbA [1982] ECR 3961 . . . 286, 671 282/81 Ragusa v Commission [1983] ECR 1245 . . . 631 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415 . . . 281, 282

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Table of Cases 303 and 312/81 Klockner v Commission [1983] ECR 1507 . . . 639 8/82 KG in der Firma Hans-Otto Wagner GmbH Agrarhandel v Bundesanstalt für Landwirtschaftliche Marktordnung [1983] ECR 371 . . . 576, 577, 579 40/82 Commission v UK [1982] ECR 2793 . . . 684 43, 63/82 VBVB and VBBB v Commission [1985] ECR 19 . . . 355 75 & 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509 . . . 583, 585 84/82 Germany v Commission [1984] ECR 145 . . . 365 144/82 Detti v ECJ [1983] ECR 2439 . . . 619 159/82 Verli-Wallace v Commission [1983] ECR 2711 . . . 608 165/82 Commission v UK [1983] ECR 3431 . . . 589 174/82 Officier van Justitie v Sandoz BV [1983] ECR 2445 . . . 671, 684, 696 188/82 Thyssen AG v Commission [1983] ECR 3721 . . . 639 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595 . . . 760, 777 205–215/82 Deutsche Milch-Kontor GmbH v Germany EU:C:1983:233; [1983] ECR 2633 . . . 5, 779 224/82 Meiko-Konservenfabrik v Federal Republic of Germany [1983] ECR 2539 . . . 603 240–242, 261–262, 268–269/82 Stichting Sigarettenindustrie v Commission [1985] ECR 3831 . . . 381 264/82 Timex Corporation v Council and Commission [1985] ECR 849 . . . 731 281/82 Unifrex v Commission and Council [1984] ECR 1969 . . . 580, 756 286/82 & 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377 . . . 559 296 & 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809 . . . 370 3/83 Abrias v Commission [1985] ECR 1995 . . . 623 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 . . . 761 59/83 SA Biovilac NV v EEC [1984] ECR 4057 . . . 441, 747, 752 63/83 R v Kent Kirk [1984] ECR 2689 . . . 603 72/83 Campus Oil Ltd v Minister for Industry and Energy [1984] ECR 2727 . . . 548, 671 94/83 Albert Heijin BV [1984] ECR 3263 . . . 671 97/83 Melkunie [1984] ECR 2367 . . . 684

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112/83 Société de Produits de Maïs v Administration des Douanes [1985] ECR 719 . . . 734 127/83 Heineken Brouwerijen BV v Inspecteur der Vennootschapsbelasting [1984] ECR 3435 . . . 365 145/83 Adams v Commission [1985] ECR 3539 . . . 747 207/83 Commission v United Kingdom [1985] ECR 1201 . . . 548 283/83 Firma A Racke v Hauptzollamt Mainz [1984] ECR 3791 . . . 576 293/83 Gravier v City of Liège [1985] ECR 593 . . . 562, 563 294/83 Parti Ecologiste-‘Les Verts’ v European Parliament [1986] ECR 1339 . . . 65, 175, 176 21/84 Commission v France [1985] ECR 1356 . . . 548 41/84 Pinna v Caisse d’allocations familiales de Savoie [1986] ECR 1 . . . 734, 735 42/84 Remia BV and Nutricia BV v Commission [1985] ECR 2545 . . . 381, 450 67/84 Sideradria SpA v Commission [1985] ECR 3983 . . . 624 94/84 Office national de l’Emploi v Joszef Deak [1985] ECR 1873 . . . 553 141/84 Henri de Compte v European Parliament [1985] ECR 1951 . . . 358 142 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487 . . . 450 169/84 Compagnie Française de l’Azote (COFAZ) SA v Commission [1986] ECR 391 . . . 318 170/84 Bilka-Kaufh aus GmbH v Karin Weber von Hartz [1986] ECR 1607 . . . 587, 588, 678 175/84 Krohn & Co Import-Export GmbH & Co KG v Commission [1986] ECR 753 . . . 756 178/84 Commission v Germany [1987] ECR 1227 . . . 671, 684 179/84 Bozetti v Invernizzi [1985] ECR 2301 . . . 759 181/84 R v Intervention Board, ex p ED & F Man (Sugar) Ltd [1985] ECR 2889 . . . 665 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 . . . 486, 589, 676, 762 228/84 Pauvert v Court of Auditors [1985] ECR 1973 . . . 639 247/84 Criminal Proceedings against Leon Motte [1985] ECR 3887 . . . 696 255/84 Nachi Fujikoshi Corporation v Council [1987] ECR 1861 . . . 650 304/84 Ministère Public v Muller [1986] ECR 1511 . . . 671 307/84 Commission v France [1986] ECR 1725 . . . 556

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Table of Cases

15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005 . . . 615 21/85 Maas & Co NV v Bundesanstalt für landwirtschaftliche Marktordnung [1986] ECR 3537 . . . 665 54/85 Ministère Public against Xavier Mirepoix [1986] ECR 1067 . . . 696 66/85 Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121 . . . 549, 555 89, 104, 114, 116, 117, 125–9/85 Ahlström Osakeyhitiö v Commission [1993] ECR I-1307 . . . 474 121/85 Conegate v Customs and Excise Commissioners [1986] ECR 1007 . . . 685 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741 . . . 549 154/85 Commission v Italy [1987] ECR 2717 . . . 548 225/85 Commission v Italy [1987] ECR 2625 . . . 555 237/85 Rummler [1986] ECR 2101 . . . 585 265/85 Van den Bergh en Jurgens and Van Dijk Food Products v Commission [1987] ECR 1155 . . . 619, 622, 752 281, 283–285, 287/85 Germany v Commission [1987] ECR 3203 . . . 405 310/85 Deufil Gmbh & Co KG v Commission [1987] ECR 901 . . . 449 314/85 Firma Foto-Frost v Hauptzollamt Lubeck-Ost [1987] ECR 4199 . . . 282, 305, 336, 725 316/85 Centre public d’aide sociale de Courcelles v Lebon [1987] ECR 2811 . . . 553 344/85 SpA Ferriere San Carlo v Commission [1987] ECR 4435 . . . 632 424–425/85 Frico v VIV [1987] ECR 2755 . . . 619 39/86 Lair [1988] ECR 3161 . . . 563, 570 45/86 Commission v Council (Tariff Preferences) [1987] ECR 1493 . . . 371, 421, 422 81/86 De Boer Buizen v Council and Commission [1987] ECR 3677 . . . 752 97, 99, 193 and 215/86 Asteris AE and Hellenic Republic v Commission [1988] ECR 2181 . . . 732 120/86 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321 . . . 627, 628, 637 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205 . . . 563, 570 222/86 UNECTEF v Heylens [1987] ECR 4097 . . . 762 318/86 Commission v France [1988] ECR 3559 . . . 586, 589 45/87 Commission v Ireland [1988] ECR 4929 . . . 548 51/87 Commission v Council (Generalized Tariff Preferences) [1988] ECR 5459 . . . 729

62 & 72/87 Executif Régional Wallon and Glaverbel SA v Commission [1988] ECR 1573 . . . 449 106–120/87 Asteris v Greece and EEC [1988] ECR 5515 . . . 754 133 & 150/87 Nashua Corporation v Commission and Council [1990] ECR I-719 . . . 267 142/87 Belgium v Commission (Tubemeuse) [1990] ECR I-959 . . . 361, 666 165/87 Commission v Council [1988] ECR 5545 . . . 421 186/87 Cowan v Le Trésor Public [1989] ECR 195 . . . 559 193–4/87 Maurissen v Commission [1989] ECR 1045 . . . 65 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159 . . . 438, 549 247/87 Star Fruit v Commission [1989] ECR I-291 . . . 815 259/87 Greece v Commission [1990] ECR I-2845 . . . 753 265/87 Schräder HS Kraft futter GmbH & Co KG v Hauptzollamt Gronau [1989] ECR 2237 . . . 521, 645, 659 301/87 France v Commission [1990] ECR I-307 . . . 352 302/87 European Parliament v Council [1988] ECR 5615 . . . 272 308/87 Grifoni v EAEC [1994] ECR I-341 . . . 748 344/87 Bettray v Staatssecretaris van Justitie [1989] ECR 1621 . . . 550 379/87 Groener v Minister for Education [1989] ECR 3967 . . . 548 5/88 Wachauf v Germany [1989] ECR 2609 . . . 486, 517 16/88 Commission v Council [1989] ECR 3457 . . . 114, 117 20/88 Roquette Frères v Commission [1989] ECR 1553 . . . 756 21/88 Du Pont de Nemours Italiana SpA v Unita Sanitaria Locale No 2 Di Carrara [1990] ECR I-889 . . . 548 33/88 Allué and Coonan v Università degli Studi di Venezia [1989] ECR 1591 . . . 555 49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187 . . . 149, 313, 350, 525 68/88 Commission v Greece [1989] ECR 2965 . . . 682, 761 70/88 European Parliament v Council [1990] ECR I-2041 . . . 272 109/88 Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECR 3199 . . . 585, 586

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Table of Cases 119/88 Aerpo and Others v Commission [1990] ECR I-2189 . . . 739, 740 143/88 & 92/89 Zuckerfabrik Suderdithmaschen AG v Hauptzollamt Itzehoe [1991] ECR I-415 . . . 282, 725 145/88 Torfaen BC v B & Q plc [1989] ECR 3851 . . . 691, 693 150/88 Eau de Cologne and Parfumerie-Fabrik Glockengasse No 4711 KG v Provide Srl [1989] ECR 3891 . . . 286 152/88 Sofrimport Sàrl v Commission [1990] ECR I-2477 . . . 628, 629 171/88 Rinner-Kühn v FWW SpezialGebäudereinigung GmbH [1989] ECR 2743 . . . 587, 679 177/88 Dekker v Stichting voor Jong Volwassenen (VJV) Plus [1990] I-ECR 3941 . . . 764 C-200/88 Commission v Greece [1990] ECR I-4299 . . . 815 267–285/88 Wuidart v Laiterie coopérative eupenoise société coopérative [1990] ECR I-435 . . . 580 306/88, 304/90 and 169/91 Stoke-on-Trent CC v B & Q plc [1992] ECR I-6457 . . . 692 331/88 R v Minister for Agriculture, Fisheries and Food, ex parte Fedesa [1990] ECR 4023 . . . 604, 645, 654, 665 350/88 Delacre v Commission [1990] ECR I-395 . . . 622, 625 363–4/88 Finsider v Commission [1992] ECR I-359 . . . 747 C-5/89 Commission v Germany [1990] ECR I-3437 . . . 779 C-8/89 Zardi v Consorzio Agrario Provinciale di Ferrara [1990] ECR I-2515 . . . 646 C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR 2591 . . . 587, 679 C-80/89 Behn Verpackungsbedarf GmbH v Hauptzollamt Itzehoe [1990] ECR I-2659 . . . 622, 623 87/89 Société nationale interprofessionelle de la tomate (Sonito) v Commission [1990] ECR I-198 . . . 815 C-104/89 and 37/90 Mulder and Heinemann v Council and Commission [1992] ECR I-3061 . . . 741, 748, 749 C-106/89 Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR 4135 . . . 690 C-107/89 R Caturla-Poch v Parliament [1989] ECR 1357 . . . 724 C-177 and 181/99 Ampafrance SA v Directeur des Services Fiscaux de Maine-et-Loire [2000] ECR I-7013 . . . 653

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C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR 297 . . . 587, 679 C-189/89 Spagl v Hauptzollamt Rosenheim [1990] ECR I-4539 . . . 629, 637, 638 C-213/89 R v Secretary of State for Transport, ex p Factortame Ltd [1990] ECR I-2433 . . . 725, 760 C-221/89 R v Secretary of State for Transport, ex p Factortame Ltd [1991] ECR I-3905 . . . 787 C-248/89 Cargill BV v Commission [1991] ECR I-2987 . . . 617 C-260/89 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas [1991] ECR I-2925 . . . 486, 531 C-291/89 Interhotel v Commission [1991] ECR I-2257 . . . 313, 350 C-292/89 R v Immigration Appeal Tribunal, ex p Antonissen [1991] ECR I-745 . . . 549, 550 C-309/89 Codorniu v Council [1994] ECR I-1853 . . . 334 C-357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027 . . . 549 C-358/89 Extramet Industrie SA v Council [1991] ECR I-2501 . . . 334 C-365/89 Cargill BV v Produktschap voor Margarine, Vetten en Olien [1991] ECR I-3045 . . . 617 C-367/89 Criminal Proceedings against Richardt and Les Accessoires Scientifiques SNC [1991] ECR I-4621 . . . 690 C-370/89 SGEEM and Etroy v EIB [1992] ECR I-6211 . . . 736 C-377/89 Cotter and McDermott v Minister for Social Welfare and Attorney General [1991] ECR I-1155 . . . 765 C-6/90 & C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357 . . . 218, 274, 541, 782, 783, 792 C-16/90 Nolle v Hauptzollamt Bremen-Freihafen [1991] ECR I-5163 . . . 362 C-41/90 Höfner and Elser v Macrotron GmbH [1991] ECR I-1979 . . . 582 C-48 & 66/90 Netherlands v Commission [1992] ECR I-565 . . . 352 C-62/90 Commission v Germany [1992] ECR I-2575 . . . 671 C-87–89/90 Verholen v Sociale Verzekeringsbank [1991] ECR I-3757 . . . 762 C-106 and 317/90 and 129/91 Emerald Meats Ltd v Commission [1993] ECR I-209 . . . 331 C-159/90 SPUC v Grogan [1991] ECR I-4685 . . . 521 C-179/90 Merci Convenzionali Porto di Genova SpA v Siderurgica Gabrielli SpA [1991] ECR I-5889 . . . 582

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C-208/90 Emmott v Minister for Social Welfare [1991] ECR I-4269 . . . 764 C-213/90 ASTI v Chambre des employés privés [1991] ECR I-350 . . . 555 C-258 and 259/90 Pesquerias de Bermeo SA and Naviera Laida SA v Commission [1992] ECR I-2901 . . . 743 C-269/90 Hauptzollamt München-Mitte v Technische Universitat München [1991] ECR I-5469 . . . 314, 363 C-282/90 Industrie-en Handelsonderneming Vreugdenhil BV v Commission [1992] ECR I-1937 . . . 741 C-295/90 European Parliament v Council [1992] ECR I-4193 . . . 421, 728 C-313/90 CIRFS v Commission [1993] ECR I-1125 . . . 619, 631, 639 C-320–322/90 Telemarsicabruzzo SpA v Circostel, Ministero delle Poste e Telecommunicazioni and Ministerio della Difesa [1993] ECR I-393 . . . 286 C-354/90 Fédération Nationale du Commerce Exterieur des Produits Alimentaires v France [1991] ECR I-5505 . . . 779 C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Bötel [1992] ECR I-3589 . . . 587, 679 C-4/91 Bleis v Ministère de l’Education Nationale [1991] ECR I-5627 . . . 555 C-31–41/91 SpA Alois Lageder v Amministrazione delle Finanze dello Stato [1993] ECR I-1761 . . . 605, 640 C-83/91 Wienand Meilicke v ADV/ORGA FA Meyer AG [1992] ECR I-4871 . . . 286 C-97/91 Borelli SpA v Commission [1992] ECR I-6313 . . . 320, 332 C-111/91 Commission v Luxembourg [1993] ECR I-817 . . . 553 C-121–122/91 CT Control (Rotterdam) BV and JCT Benelux BV v Commission [1993] ECR I-3873 . . . 732 C-146/91 KYDEP v Council and Commission [1994] ECR I-4199 . . . 743 C-198/91 William Cook plc v Commission [1993] ECR I-2486 . . . 365 C-212/91 Angelopharm GmbH v Freie Hansestadt Hamburg [1994] ECR I-171 . . . 454, 702 C-213/91 R Abertal and others v Commission [1991] ECR I-5109 . . . 724 C-220/91 P Stahlwerke Peine-Salzgitter AG v Commission [1993] ECR I-2393 . . . 741 C-267 & 268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097 . . . 438, 692 C-271/91 Marshall v Southampton and South-West Hampshire Area Health Authority (No 2) [1993] ECR I-4367 . . . 585, 763, 777

C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475 . . . 767 C-13–16/92 Driessen en Zonen v Minister van Verkeer en Waterstaat [1993] ECR I-4751 . . . 623 C-25/92 R Miethke v European Parliament [1993] ECR I-473 . . . 267 C-34/92 GruSa Fleisch GmbH & Co KG v Hauptzollamt Hamburg-Jonas [1993] ECR I-4147 . . . 602 C-51/92 P Hercules Chemicals NV v Commission [1999] ECR I-4235 . . . 355, 729 C-92/92 Phil Collins v Imtrat Handelsgesellschaft mbH [1993] ECR I-5145 . . . 557, 561 C-127/92 Enderby v Frenchay Health Authority and the Secretary of State for Health [1993] ECR 5535 . . . 587, 588 C-135/92 Fiskano v Commission [1994] ECR I-2885 . . . 314, 352 C-137/92 P Commission v BASF AG [1994] ECR I-2555 . . . 267, 268 C-157/92 Banchero [1993] ECR I-1085 . . . 286 C-228/92 Roquette Frères SA v Hauptzollamt Geldern [1994] ECR I-1445 . . . 729, 734 C-240/92 Portuguese Republic v Commission [2004] ECR I-10717 . . . 267 C-350/92 Spain v Council [1995] ECR I-1985 . . . 422 C-383/92 Commission v UK [1994] ECR I-2479 . . . 682, 761 C-386/92 Monin Automobiles v France [1993] ECR I-2049 . . . 286 C-387/92 Banco de Credito Industrial SA (Banco Exterior de España SA) v Ayuntamiento de Valencia [1994] ECR I-877 . . . 441 C-410/92 Johnson v Chief Adjudication Officer [1994] ECR I-5483 . . . 768 C-419/92 Scholz v Universitaria di Cagliari [1994] ECR I-505 . . . 547 C-17/93 Openbaar Ministerie v Van der Veldt [1994] ECR I-3537 . . . 670 C-18/93 Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783 . . . 286 C-39/93 P Syndicat Français de l’Express International (SFEI) v Commission [1994] ECR I-2681 . . . 267 C-45/93 Commission v Spain [1994] ECR I-911 . . . 559 C-46 and 48/93 Brasserie du Pêcheur SA v Germany, R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029 . . . 690, 741, 783–5, 787, 792

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Table of Cases C-62/93 BP Supergas v Greece [1995] ECR I-1883 . . . 769 C-63/93 Duff v Minister for Agriculture and Food Ireland and the Attorney General [1996] ECR I-569 . . . 625 C-133, 300 & 362/93 Crispoltoni v Fattoria Autonoma Tabachi and Donatab [1994] ECR I-4863 . . . 625, 646 C-143/93 Gebroeders van Es Douane Agenten BV v Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431 . . . 601 C-156/93 European Parliament v Commission [1995] ECR I-2019 . . . 119, 133 C-278/93 Freers and Speckmann v Deutsche Bundespost [1996] ECR I-1165 . . . 587, 679 C-280/93 Germany v Council [1994] ECR I-4973 . . . 475, 476, 521, 581, 659 C-281/93 Angonese v Cassa di Risparmio di Bologna [2000] ECR I-4134 . . . 500 C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865 . . . 354 C-312/93 Peterbroeck, Van Campenhout & Cie v Belgian State [1995] ECR I-4599 . . . 766, 771 C-358 and 416/93 Criminal Proceedings against Bordessa, Mellado and Maestre [1995] ECR I-361 . . . 675 C-360/93 European Parliament v Council (Government Procurement) [1996] ECR I-1195 . . . 728 C-384/93 Alpine Investments BV v Minister van Financien [1995] ECR I-1141 . . . 686 C-392/93 R v HM Treasury, ex p British Telecommunications plc [1996] ECR I-1631 . . . 690, 786, 789 C-394/93 Alonso-Pérez v Bundesanstalt für Arbeit [1995] ECR I-4101 . . . 768 C-400/93 Royal Copenhagen, Specialarbejderforbundet i Danmark v Dansk Industri [1995] ECR I-1275 . . . 585 C-415/93 Union Royale Belge des Sociétés de Football Association and others v Bosman [1995] ECR I-4921 . . . 559 C-417/93 European Parliament v Council [1995] ECR I-1185 . . . 119 C-426/93 Germany v Commission [1995] ECR I-3723 . . . 654 C-428/93 Monin Automobiles-Maison du Deux-Roues [1994] ECR I-1707 . . . 286 C-430–431/93 Van Schijndel & Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705 . . . 766, 771 C-450/93 Kalanke v Freie Hansestadt Bremen [1995] ECR I-3051 . . . 590, 598 C-457/93 Kuratorium für Dialyse und Nierentransplantation v Lewark [1996] ECR I-243 . . . 587, 679

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C-458/93 Criminal Proceedings against Saddik [1995] ECR I-511 . . . 286 C-465/93 Atlanta Fruchthandelgesellschaft mbH v Bundesamt fur Ernahrung und Forstwirtschaft [1995] ECR I-3761 . . . 725 C-473/93 Commission v Luxembourg [1996] ECR I-3207 . . . 554–7 C-480/93 Zunis Holding SA, Finan Srl and Massinvest SA v Commission [1996] ECR I-1 . . . 267 C-2/94 Denkavit International BV v Kamer van Koophandel en Fabrieken voor MiddenGelderland [1996] ECR I-2827 . . . 769 C-5/94 R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd [1996] ECR I-2553 . . . 785, 790 C-7/94 Landesamt für Ausbildungsförderung Nordrhein-Westfalen v Lubor Gaal [1996] ECR I-1031 . . . 552 C-13/94 P v S and Cornwall County Council [1996] ECR I-2143 . . . 583, 585, 593 C-21/94 European Parliament v Council (Road Taxes) [1995] ECR I-1827 . . . 728, 732 C-22/94 Irish Farmers Association v Minister for Agriculture, Food and Forestry (Ireland) and the Attorney General [1997] ECR I-1809 . . . 625 C-39/94 Syndicat Français de l’Express International (SFEI) v La Poste [1996] ECR I-3547 . . . 441 C-56/94 SCAC v Associazione dei Produttori Ortofrutticoli [1995] ECR I-1769 . . . 581 C-58/94 Netherlands v Council [1996] ECR I-2169 . . . 393, 630 C-68/94 and 30/95 France, SCPA and EMC v Commission [1998] ECR I-1375 . . . 470 C-70/94 Werner [1995] ECR I-3189 . . . 690 C-83/94 Leifer [1995] ECR I-3231 . . . 690 C-84/94 United Kingdom v Council [1996] ECR I-5755 . . . 371, 404, 432 C-90/94 Haahr Petroleum v Havn [1997] ECR I-4085 . . . 768 C-104/94 Cereol Italia v Azienda Agricola Castello [1995] ECR I-2983 . . . 665 C-122/94 Commission v Council [1996] ECR I-881 . . . 371 C-129/94 Criminal Proceedings against Bernaldez [1996] ECR I-1829 . . . 287 C-137/94 R v Secretary of State for Health, ex p Richardson [1995] ECR I-3407 . . . 762 C-150/94 UK v Council [1998] ECR I-7235 . . . 475 C-173/94 Commission v Belgium [1996] ECR I-3265 . . . 556 C-178–179, 188–190/94 Dillenkofer and others v Federal Republic of Germany [1996] ECR I-4845 . . . 789

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C-193/94 Criminal Proceedings against Skanavi and Chryssanthakopoulos [1996] ECR I-929 . . . 674 C-197 & 252/94 Société Bautiaa v Directeur des Services Fiscaux des Landes [1996] ECR I-505 . . . 762 C-199 and 200/94 Pesqueria Vasco-Montanesa SA (Pevasa) and Compania Internacional de Pescay Derivados SA (Inpesca) v Commission [1995] ECR I-3709 . . . 737 C-205/94 Binder GmbH v Hauptzollamt Stuttgart-West [1996] ECR I-2871 . . . 371 C-233/94 Germany v European Parliament and Council [1997] ECR I-2405 . . . 404, 431 C-237/94 O’Flynn v Adjudication Officer [1996] ECR I-2617 . . . 547, 553 C-271/94 European Parliament v Council (Re the Edicom Decision) [1996] ECR I-1689 . . . 422 C-278/94 Commission v Belgium [1996] ECR I-4307 . . . 547 C-283, 291 and 292/94 Denkavit International v Bundesamt für Finanzen [1996] ECR I-5063 . . . 789 C-286/94, 340 and 401/95, and 47/96 Garage Molenheide BVBA v Belgische Staat [1997] ECR I-7281 . . . 680 C-290/94 Commission v Greece [1996] ECR I-3285 . . . 556 C-295/94 Hupeden & Co KG v Hauptzollamt Hamburg-Jonas [1996] ECR I-3375 . . . 665 C-296/94 Pietsch v Hauptzollamt HamburgWaltershof [1996] ECR I-3409 . . . 665 C-311/94 Ijssel-Vliet Combinatie BV v Minister van Economische Zaken [1996] ECR I-5023 . . . 631 C-315/94 De Vos v Bielefeld [1996] ECR I-1417 . . . 553 C-320, 328, 329, 337, 338 & 339/94 Reti Televisive Italiane SpA (RTI) v Ministero delle Poste e Telecommunicazione [1996] ECR I-6471 . . . 286 C-3/95 Reiseburo Broede v Gerd Sandker [1996] ECR I-6511 . . . 686 C-10/95 P Asociasión Española de Empresas de la Carne (Asocarne) v Council [1995] ECR I-4149 . . . 318, 333, 335 C-24/95 Land Rheinland-Pfalz v Alcan Deutschland GmbH [1997] ECR I-1591 . . . 779 C-27/95 Woodcock District Council v Bakers of Nailsea [1997] ECR I-1847 . . . 453 C-29/95 Pastoors and Trans-Cap GmbH v Belgian State [1997] ECR I-285 . . . 680 C-32/95 P Commission v Lisrestal [1996] ECR I-5373 . . . 312, 314, 350

C-41/95 European Parliament v Council [1995] ECR I-4411 . . . 730 C-43/95 Data Delecta Aktiebolag and Forsberg v MSL Dynamics Ltd [1996] ECR I-4661 . . . 560 C-54/95 Germany v Commission [1999] ECR I-35 . . . 89 C-57/95 France v Commission (Re Pension Funds Communication) [1997] ECR I-1627 . . . 266 C-66/95 R v Secretary of State for Social Security, ex p Eunice Sutton [1997] ECR I-2163 . . . 766, 777 C-68/95 T Port GmbH & Co KG v Bundesanstalt fur Landwirtschaft und Ernahrung [1996] ECR I-6065 . . . 510 C-72/95 Aannemersbedrijf P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403 . . . 772 C-74/95 and 129/95 Criminal Proceedings against X [1996] ECR I-6609 . . . 486 C-85/95 Reisdorf v Finanzamt Koln-West [1996] ECR I-6257 . . . 287 C-90/95 P Henri de Compte v EP [1997] ECR I-1999 . . . 608, 609, 616, 618 C-94–95/95 Bonifaci and Berto v Istituto Nazionale della Previdenza Sociale (IPNS) [1997] ECR I-3969 . . . 792 C-114–115/95 Texaco A/S v Havn [1997] ECR I-4263 . . . 768 C-124/95 R, ex p Centro-Com v HM Treasury and Bank of England [1997] ECR I-81 . . . 671 C-127/95 Norbrook Laboratories Ltd v Ministry of Agriculture Fisheries and Food [1998] ECR I-1531 . . . 785, 790, 792 C-134/95 Unita Socio-Sanitaria Locale No 47 di Biella (USSL) v Istituto Nazionale per l’Assicurazione contro gli Infortuni sul Lavoro (INAIL) [1997] ECR I-195 . . . 286 C-144/95 Maurin [1996] ECR I-2909 . . . 486 C-149/95 P(R) Commission v Atlantic Container Line AB [1995] ECR I-2165 . . . 723 C-150/95 Portugal v Commission [1997] ECR I-5863 . . . 581 C-169/95 Spain v Commission [1997] ECR I-135 . . . 666 C-180/95 Draehmpaehl v Urania Immobilienservice [1997] ECR I-2195 . . . 585 C-183/95 Affish BV v Rijksdienst voor de keuring van Vee en Vlees [1997] ECR I-4315 . . . 629, 638, 647, 655 C-188/95 Fantask A/S v Industriministeriet [1997] ECR I-6783 . . . 768 C-192/95 Comateb v Directeur Général des Douanes et Droits Indirects [1997] ECR I-165 . . . 760, 777, 778

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Table of Cases C-243/95 Hill and Stapleton v Revenue Commissioners [1998] ECR I-3739 . . . 587 C-257/95 Bresle v Prefet de la Région Auvergne and Prefet du Puy-de-Dôme [1996] ECR I-233 . . . 286 C-259/95 European Parliament v Council [1997] ECR I-5303 . . . 119 C-261/95 Palmisani v INPS [1997] ECR I-4025 . . . 792 C-265/95 Commission v France [1997] ECR I-6959 . . . 517 C-282/95 P Guerin Automobiles v Commission [1997] ECR I-503 . . . 267 C-285/95 Kol v Land Berlin [1997] ECR I-3069 . . . 624 C-287–288/95 P Commission v Solvay SA [2000] ECR I-2391 . . . 268 C-299/95 Kremzow v Austria [1997] ECR I-2629 . . . 486, 505 C-323/95 Hayes and Hayes v Kronenberger GmbH [1997] ECR I-1711 . . . 560 C-334/95 Kruger GmbH & Co KG v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517 . . . 726 C-358/95 Morellato v Unita Sanitaria Locale (USL) n 11 di Pordenone [1997] ECR I-1431 . . . 670 C-359 & 379/95 P Commission and France v Ladbroke Racing Ltd [1999] ECR I-6265 . . . 364 C-366/95 Landbrugsministeriet-EF-Direktoratet v Steff -Houlberg Export [1998] ECR I-2661 . . . 779 C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719 . . . 313, 365, 370 C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-368 . . . 486, 521, 531, 692, 693 C-369/95 Somalfruit SpA and Camar SpA v Ministero delle Finanze and Ministero del Commercio con l’Estero [1997] ECR I-6619 . . . 465 C-373/95 Maso and Gazzetta v INPS [1997] ECR I-4051 . . . 792 C-390/95 P Antillean Rice Mills NV and others v Commission [1999] ECR I-769 . . . 463, 738, 739, 744, 745 C-392/95 European Parliament v Council [1997] ECR I-3213 . . . 729 C-399/95 R Germany v Commission [1996] ECR I-2441 . . . 723 C-409/95 Hellmut Marschall v Land Nordrhein Westfalen [1997] ECR I-6363 . . . 591 C-2/96 Criminal Proceedings against Sunino and Data [1996] ECR I-1543 . . . 286

lxiii

C-4/96 Northern Ireland Fish Producers’ Association (NIFPO) and Northern Ireland Fishermen’s Federation v Department of Agriculture for Northern Ireland [1998] ECR I-681 . . . 453, 646 C-15/96 Kalliope Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg [1998] ECR I-47 . . . 547 C-22/96 European Parliament v Council (Telematic Networks) [1998] ECR I-3231 . . . 728 C-48/96 P Windpark Groothusen GmbH & Co Betriebs KG v Commission [1998] ECR I-2873 . . . 312, 468 C-50/96 Deutsche Telekom v Schröder [2000] ECR I-743 . . . 762 C-55/96 Job Centre coop arl [1997] ECR I-7119 . . . 582 C-64 & 65/96 Land Nordrhein-Westfalen v Uecker and Jacquet v Land NordrheinWestfalen [1997] ECR I-3171 . . . 565 C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-5751 . . . 260, 582 C-85/96 Maria Martinez Sala v Freistaat Bayern [1998] ECR I-2691 . . . 565, 566 C-89/96 Portuguese Republic v Commission [1999] ECR I-8377 . . . 728 C-108/96 Criminal Proceedings against Mac Quen [2001] ECR I-837 . . . 687 C-125 & 152/96 Boehringer Ingelheim Vetmedica GmbH and CH Boehringer Sohn v Council and Commission [1999] ECR II-3427 . . . 647, 655 C-149/96 Portugal v Council [1999] ECR I-8395 . . . 739 C-157/96 R v Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex p National Farmers’ Union [1998] ECR I-2211 . . . 696 C-159/96 Portuguese Republic v Commission [1998] ECR I-7379 . . . 267 C-161/96 Südzucker Mannheim/Ochsenfurt AG v Hauptzollamt Mannheim [1998] ECR I-281 . . . 665 C-180/96 United Kingdom v Commission [1998] ECR I-2265 . . . 267, 441, 695, 696 C-185/96 Commission v Hellenic Republic [1998] ECR I-6601 . . . 547, 553 C-187/96 Commission v Hellenic Republic [1998] ECR I-1095 . . . 547 C-200/96 Musik Metronome GmbH v Music Point Hokamp GmbH [1998] ECR I-1953 . . . 521, 659 C-229/96 Aprile v Amminstrazione delle Finanze dello Stato [1998] ECR I-7141 . . . 768, 774

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C-231/96 Edis v Ministero delle Finanze [1998] ECR I-4951 . . . 768, 774 C-246/96 Magorrian and Cunningham v Eastern Health and Social Services Board [1997] ECR I-7153 . . . 767 C-249/96 Grant v South-West Trains Ltd [1998] ECR I-621 . . . 594 C-260/96 Ministero delle Finanze v Spac [1998] ECR I-4997 . . . 774 C-268/96 R SCK and FNK v Commission [1996] ECR I-4971 . . . 723 C-274/96 Bickel & Franz [1998] ECR I-7637 . . . 565 C-291/96 Criminal Proceedings against Grado and Bashir [1997] ECR I-5531 . . . 505 C-298/96 Oelmühle Hamburg v Bundesanstalt für Landwirtschaft und Ernährung [1998] ECR I-4767 . . . 779 C-301/96 Germany v Commission [2003] ECR I-9919 . . . 370 C-309/96 Annibaldi v Sindaco del Commune di Guidonia and Presidente Regione Lazio [1997] ECR I-7493 . . . 486, 505 C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriet [1998] ECR I-5255 . . . 786, 789 C-326/96 Levez v Jennings Ltd [1998] ECR I-7835 . . . 769, 775 C-343/96 Dilexport v Amministrazione delle Finanze dello Stato [1999] ECR I-579 . . . 774, 778 C-372/96 Pontillo v Donatab [1998] ECR I-5091 . . . 625 C-415/96 Spain v Commission [1998] ECR I-6993 . . . 729 C-1159/96 Portugal v Commission [1998] ECR I-7379 . . . 729 C-35/97 Commission v Belgium [1998] ECR I-5325 . . . 547 C-75/97 Belgium v Commission [1999] ECR I-3671 . . . 442 C-77/97 Österreichische Unilever GmbH v SmithKline Beecham Markenartikel GmbH [1999] ECR I-431 . . . 682 C-89/97 P(R) Moccia Irme v Commission [1997] ECR I-2327 . . . 724 C-104/97 P Atlanta AG v Commission [1999] ECR I-6983 . . . 149, 316, 625 C-107/97 Criminal Proceedings against Max Rombi [2000] ECR I-3367 . . . 605 C-110/97 Netherlands v Council [2001] ECR I-8763 . . . 625 C-120/97 Upjohn v the Licensing Authority [1999] ECR I-223 . . . 762, 782 C-124/97 Laara, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v Finland [1999] ECR I-6067 . . . 522, 686

C-126/97 Eco Swiss China Time Ltd v Benetton International NV [1999] ECR I-3055 . . . 772, 774 C-140/97 Rechberger v Austria [1999] ECR I-3499 . . . 789 C-147–148/97 Deutsche Post AG v Gesellschaft fur Zahlungssyteme mbH and Citicorp Kartenservice GmbH [2000] ECR I-825 . . . 582 C-151 & 157/97 P(I) National Power plc and PowerGen plc v British Coal Corporation and Commission [1997] ECR I-3491 . . . 335 C-158/97 Badeck v Landesanwalt beim Staatsgerichtshof des Landes Hessen [1999] ECR I-1875 . . . 591 C-167/97 Seymour-Smith and Perez [1999] ECR I-623 . . . 587 C-185/97 Coote v Granada Hospitality Ltd [1998] ECR I-5199 . . . 762 C-209/97 Commission v Council [1999] ECR I-8067 . . . 421 C-235/97 France v Commission [1998] ECR I-7555 . . . 89 C-253/97 Italy v Commission [1999] ECR I-7529 . . . 89 C-273/97 Sirdar v Army Board [1999] ECR I-7403 . . . 589, 676 C-289/97 Eridania SpA v Azienda Agricola San Luca di Rumagnoli Viannj [2000] ECR I-5409 . . . 463 C-292/97 Kjell Karlsson [2000] ECR I-2737 . . . 517, 518 C-293/97 R v Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex p Standley [1999] ECR I-2603 . . . 521, 659 C-301/97 Netherlands v Council [2001] ECR I-8853 . . . 468, 475 C-302/97 Konle v Austria [1999] ECR I-3099 . . . 791 C-310/97 P Commission v AssiDomän Kraft Products AB [1999] ECR I-5363 . . . 733, 737 C-316/97 P European Parliament v Gaspari [1998] ECR I-7597 . . . 370 C-359/97 Commission v UK [2000] ECR I-6355 . . . 762 C-372/97 Italy v Commission [2004] ECR I-3679 . . . 666 C-418–419/97 ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [2000] ECR I-4475 . . . 707 C-424/97 Haim v Kassenzahnärztliche Vereinigung Nordrhein [2000] ECR I-5123 . . . 785, 791, 792

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Table of Cases C-1/98 P British Steel plc v Commission [2000] ECR I-10349 . . . 635 C-17/98 Emesa Sugar (Free Zone) NV v Aruba [2000] ECR I-675 . . . 475 C-58/98 Corsten [2000] ECR I-7919 . . . 674 C-64/98 Petrides Co Inc v Commission [1999] ECR I-5187 . . . 744 C-78/98 Preston v Wolverhampton Healthcare NHS Trust [2000] ECR I-3201 . . . 767, 775, 776 C-164/98 P DIR International Film Srl and others v Commission [2000] ECR I-447 . . . 169, 728 C-175 & 178/98 Criminal Proceedings against Paolo Lirussi and Francesca Bizzaro [1999] ECR I-6881 . . . 695, 737 C-186/98 Criminal Proceedings against Nunes and de Matos [1999] ECR I-4883 . . . 682, 761 C-224/98 D’Hoop v Office National de L’Emploi [2002] ECR I-6191 . . . 565 C-228/98 Dounias v Ypourgio Oikonomikon [2000] ECR I-577 . . . 762 C-236/98 JämställdhetsOmbudsmannen v Örebro läns landsting [2000] ECR I-2189 . . . 587 C-237/98 P Dorsch Consult Ingenieurgesellschaf mbH v Council [2000] ECR I-4549 . . . 752 C-240–244/98 Océano Grupo Editorial v Rocio Murciano Quintero [2000] ECR I-4491 . . . 772 C-258/98 Criminal Proceedings against Carra [2000] ECR I-4217 . . . 582 C-278/98 Netherlands v Commission [2001] ECR I-1501 . . . 89 C-281/98 Roman Angonese v Cassa di Riparmio di Bolzano SpA [2000] ECR I-4139 . . . 558 C-285/98 Kreil v Bundesrepublik Deutschland [2000] ECR I-69 . . . 589, 676 C-340/98 Italy v Council [2002] ECR I-2663 . . . 625, 627 C-344/98 Masterfoods Ltd v HB Ice Cream Ltd [2000] ECR I-11369 . . . 483 C-351/98 Spain v Commission [2002] ECR I-8031 . . . 633 C-352/98 P Laboratoires Pharmaceutiques Bergaderm SA and Goupil v Commission [2000] ECR I-5291 . . . 738, 741, 742, 744, 782, 786 C-355/98 Commission v Belgium [2000] ECR I-1221 . . . 548 C-376/98 Germany v European Parliament and Council [2000] ECR I-8419 . . . 404, 424, 660 C-377/98 Netherlands v Parliament and Council [2001] ECR I-7079 . . . 405, 422, 432, 723 C-396/98 Grundstuckgemeinschaft Schloßstraße GbR v Finanzamt Paderborn [2000] ECR I-4279 . . . 603

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C-397 & 410/98 Metallgesellschaft Ltd and Hoechst AG and Hoechst (UK) Ltd v Commissioners of Inland Revenue and HM Attorney General [2001] ECR I-1727 . . . 776, 777, 782, 792 C-400/98 Finanzamt Goslar v Brigitte Breitsohl [2000] ECR I-4321 . . . 603 C-402/98 ATB v Ministero per le Politiche Agricole [2000] ECR I-5501 . . . 625, 626 C-407/98 Abrahamsson v Fogelqvist [2000] ECR I-5539 . . . 592 C-411/98 Angelo Ferlini v Centre Hospitalier de Luxembourg [2000] ECR I-8081 . . . 566 C-441–442/98 Kapniki Michaelidis AE v Idryma Koinonikon Asfaliseon (IKA) [2000] ECR I-7145 . . . 778 C-446/98 Fazenda Pública v Camara Municipal do Porto [2000] ECR I-11435 . . . 772 C-449/98 P International Express Carriers Conference (IECC) v Commission, La Poste, UK and the Post Office [2001] ECR I-3875 . . . 364 C-458/98 P Industrie des Poudres Spheriques v Council and Commission [2000] ECR I-8147 . . . 149, 313, 350, 525, 732 C-462/98 P MedioCurso-Etabelecimento de Ensino Particular Ld v Commission [2000] ECR I-7183 . . . 312, 350 C-466/98 Commission v United Kingdom [2002] ECR I-9427 . . . 409 C-467/98 Commission v Denmark [2002] ECR I-9519 . . . 409 C-468/98 Commission v Sweden [2002] ECR I-9575 . . . 409 C-469/98 Commission v Finland [2002] ECR I-9627 . . . 409 C-471/98 Commission v Belgium [2002] ECR I-9681 . . . 409 C-472/98 Commission v Luxembourg [2002] ECR I-9741 . . . 409 C-473/98 Kemikalieinspektionen v Toolex Alpha AB [2000] ECR I-5681 . . . 671, 696 C-475/98 Commission v Austria [2002] ECR I-9797 . . . 409 C-6/99 Association Greenpeace France v Ministère de l’Agriculture et de la Pêche [2000] ECR I-1651 . . . 331, 515, 695, 706 C-80–82/99 Flemmer v Council and Commission [2001] ECR I-7211 . . . 605 C-87/99 Zurstrassen v Administration des Contributions Directes [2000] ECR I-3337 . . . 548 C-88/99 Roquette Frères SA v Direction des Services Fiscaux du Pas-de-Calais [2000] ECR I-10465 . . . 768, 774

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C-99/99 Italy v Commission [2000] ECR I-11535 . . . 465 C-120/99 Italy v Council [2001] ECR I-7997 . . . 463 C-122 & 125/99 P D and Sweden v Council [2001] ECR I-4319 . . . 594 C-135/99 Ursula Elsen v Bundesversicherungsanstalt [2000] ECR I-10409 . . . 566 C-150/99 Stockholm Lindöpark Aktiebolag v Sweden [2001] ECR I-493 . . . 790 C-157/99 BSM Geraets-Smits v Stichting Ziekenfonds VGZ [2001] ECR I-5473 . . . 675 C-184/99 Rudy Grzelczyk v Centre Public D’Aide Sociale d’Ottignes-Louvain-la-Neuve (CPAS) [2001] ECR I-6193 . . . 550, 565, 568–70, 574 C-199/99 P Corus v UK EU:C:2003:531 . . . 355 C-205/99 Analir v Administracion General del Estado [2001] ECR I-1271 . . . 675 C-217/99 Commission v Belgium [2000] ECR I-10251 . . . 61 C-228/99 Silos e Mangimi Martini SpA v Ministero delle Finanze [2001] ECR I-8401 . . . 735 C-235/99 R v Secretary of State for the Home Department, ex p Kondova [2001] ECR I-6427 . . . 485 C-238, 244–245, 247, 250, 252 & 254/99 P Limburgse Vinyl Maatschappij v Commission [2002] ECR I-8375 . . . 355, 495, 667 C-239/99 Nachi Europe Gmbh v Hauptzollamt Krefeld [2001] ECR I-1197 . . . 733 C-274/99 P Connolly v Commission [2001] ECR I-1611 . . . 521, 662 C-313/99 Mulligan and others v Minister for Agriculture and Food, Northern Ireland [2002] ECR I-5719 . . . 670 C-321/99 P Associacao dos Refinadores de Acucar Portugueses (ARAP) v Commission [2002] ECR I-4287 . . . 621 C-340/99 TNT Traco SpA v Poste Italiane SpA [2001] ECR I-4109 . . . 582 C-353/99 P Hautala v Council [2001] ECR I-9565 . . . 393, 394, 656 C-354/99 Commission v Ireland [2001] ECR I-7657 . . . 682, 761 C-365/99 Portugal v Commission [2001] ECR I-5645 . . . 665 C-381/99 Brunnhofer v Bank der Österreichischen Postsparkasse AG [2001] ECR I-4961 . . . 679 C-390/99 Canal Satélite Digital SL v Administración General del Estado, and Distribuidora de Televisión Digital SA (DTS) [2002] ECR I-607 . . . 675 C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091 . . . 673

C-453/99 Courage Ltd v Crehan [2001] ECR I- 6297 . . . 779, 782 C-475/99 Ambulanz Glockner v Landkreis Sudwestpfalz [2001] ECR I-8089 . . . 582 C-476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visserij [2002] ECR I-2891 . . . 677 C-493/99 Commission v Germany [2001] ECR I-8163 . . . 674 C-500/99 P Conserve Italia Soc Coop arl v Commission [2002] ECR I-867 . . . 106, 616, 666 C-11/00 Commission v European Central Bank [2003] ECR I-7147 . . . 651, 652 C-15/00 Commission v European Investment Bank [2003] ECR I-7281 . . . 651 C-20 & 64/00 Booker Aquacultur Ltd and Hydro Seafood GSP Ltd v Scottish Ministers [2003] ECR I-7411 . . . 520, 661 C-24/00 Commission v France [2004] ECR I-1277 . . . 673, 709, 710 C-27 & 122/00 R v Secretary of State for the Environment, Transport and the Regions, ex p Omega Air Ltd [2002] ECR I-2569 . . . 464, 650 C-41/00 P Interporc Im- und Export GmbH v Commission [2003] ECR I-2125 . . . 732 C-50/00 P Union de Pequeños Agricultores v Council [2002] ECR I-6677 . . . 332, 336, 337, 339–41 C-53/00 Ferring SA v Agence Centrale des Organismes de Securité Sociale (ACOSS) [2001] ECR II-9067 . . . 442 C-57 and 61/00 P Freistaat Sachsen and Volkswagen Ag and Volkswagen Sachsen GmbH v Commission [2003] ECR I-9975 . . . 466 C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279 . . . 486, 674 C-62/00 Marks & Spencer plc v Commissioners of Customs & Excise [2002] ECR I-6325 . . . 605, 666, 775 C-74 and 75/00 Falck SpA and Accialierie di Bolzano SpA v Commission [2002] ECR I-7869 . . . 366, 381, 602, 622 C-76/00 P Petrotub SA and Republica SA v Council [2003] ECR I-79 . . . 370 C-87/00 Nicoli v Eridania SpA [2004] ECR I-9357 . . . 465 C-93/00 European Parliament v Council [2001] ECR I-10119 . . . 729 C-94/00 Roquette Frères SA v Directeur général de la concurrence and Commission [2002] ECR I-9011 . . . 495 C-112/00 Schmidberger Internationale Transporte und Planzuge v Austria [2003] ECR I-5659 . . . 517, 518, 521, 662, 663, 684, 685

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Table of Cases C-113/00 Spain v Commission [2002] ECR I-7601 . . . 466 C-118/00 Larsy v INASTI [2001] ECR I-5063 . . . 790 C-129/00 Commission v Italy [2003] ECR I-14637 . . . 778 C-162/00 Land Nordrhein-Westfalen v Beata Pokrzeptowicz-Meyer [2002] ECR I-1049 . . . 605 C-179/00 Weidacher v Bundesminister für Land- und Forstwirtschaft [2002] ECR I-501 . . . 625 C-187/00 Kutz-Bauer v Freie und Hansestadt Hamburg [2003] ECR I-2741 . . . 679 C-204–205, 211, 213, 217, 219/00 P Aalborg Portland v Commission [2004] ECR I-123 . . . 353, 356, 357, 359, 361, 384, 667 C-253/00 Muñoz v Frumar [2002] ECR I-7289 . . . 780 C-255/00 Grundig Italiana SpA v Ministero delle Finanze [2002] ECR I-8003 . . . 775 C-278/00 Greece v Commission [2004] ECR I-3997 . . . 624, 666 C-294/00 Deutsche Paracelsus Schulen für Naturheilverhafen GmbH v Grabner [2002] ECR I-6515 . . . 687 C-298/00 P Italy v Commission [2004] ECR I-4087 . . . 622 C-312/00 P Commission v Camar Srl and Tico Srl [2002] ECR I-11355 . . . 738, 744 C-327/00 Santex SpA v Unita Socio Sanitaria Locale n.42 di Pavia, Sca Molnlycke SpA, Artsana SpA and Fater SpA [2003] ECR I-1877 . . . 769, 771 C-336/00 Republik Österreich v Martin Huber [2002] ECR I-7699 . . . 779 C-345/00 P Federation Nationale d’Agriculture Biologique des Régions de France v Council [2001] ECR I-3811 . . . 274 C-378/00 Commission v European Parliament and Council [2003] ECR I-937 . . . 119, 121, 730 C-395/00 Distillerie Fratelli Cipriani SpA v Ministero delle Finanze [2002] ECR I-11877 . . . 312, 350 C-442/00 Caballero v Fondo de Garantia Salarial (Fogasa) [2002] ECR I-11915 . . . 463, 465 C-445/00 R Austria v Council [2001] ECR I-1461 . . . 723, 729 C-452/00 Netherlands v Commission [2005] ECR I-6645 . . . 468, 647 C-456/00 France v Commission [2002] ECR I-11949 . . . 467 C-465/00, 138 & 139/01 Rechsnungshof v Österreichischer Rundfunk and others [2003] ECR I-4989 . . . 485

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C-472/00 P Commission v Fresh Marine A/S [2003] ECR I-7541 . . . 738, 742, 744, 817 C-473/00 Cofidis SA v Fredout [2002] ECR I-10875 . . . 772 C-480–2, 484, 489, 490–1, 497–9/00 Azienda Agricole Ettore Ribaldi v AIMA [2004] ECR I-2943 . . . 670 C-495/00 Azienda Agricola Giorgio v AIMA [2004] ECR I-2993 . . . 605 C-6/01 Anomar v Estado Portugues [2003] ECR I-8621 . . . 687 C-13/01 Safalero Srl v Prefetto di Genova [2003] ECR I-8679 . . . 780 C-14/01 Molkerei Wagenfeld Karl Niemann GmbH & Co KG v Bezirksregierung Hannover [2003] ECR I-2279 . . . 464 C-63/01 Evans v Secretary of State for the Environment, Transport and the Regions and the Motor Insurers’ Bureau [2003] ECR I-14447 . . . 771, 790 C-91/01 Italy v Commission [2004] ECR I-4355 . . . 467, 633 C-95/01 Criminal Proceedings against John Greenham and Leonard Abel [2004] ECR I-1333 . . . 515, 709 C-99/01 Criminal Proceedings against Linhart and Biffl [2002] ECR I-9375 . . . 681 C-103/01 Commission v Germany [2003] ECR I-5369 . . . 432 C-125/01 Pflücke v Bundesanstalt für Arbeit [2003] ECR I-9375 . . . 775 C-147/01 Weber’s Wine World Handels-GmbH v Abgabenberufungskommission Wien [2003] ECR I-11365 . . . 778 C-167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd [2003] ECR I-10155 . . . 674 C-189/01 Jippes v Minister van Landbouw, Natuurbeheer en Visserij [2001] ECR I-5689 . . . 647 C-192/01 Commission v Denmark [2003] ECR I-9693 . . . 673, 709 C-199–200/01 P IPK-München GmbH v Commission [2004] ECR I-4627 . . . 732 C-215/01 Schnitzer [2003] ECR I-14847 . . . 674 C-224/01 Köbler v Austria [2003] ECR I-10239 . . . 787, 789 C-236/01 Monsanto Agricultura Italia SpA v Presidenza del Consiglio dei Ministri [2003] ECR I-8105 . . . 515, 706, 710 C-239/01 Germany v Commission [2003] ECR I-10333 . . . 731 C-256/01 Allonby v Accrington & Rossendale College, Education Lecturing Services, Trading as Protocol Professional and Secretary

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of State for Education and Employment [2004] ECR I-873 . . . 678 C-257/01 Commission v Council [2005] ECR I-345 . . . 117, 121 C-271/01 Ministero delle Politiche Agricole e Forestali v Consorzio Produttori Pompelmo Italiano Soc Coop arl (COPPI) [2004] ECR I-1029 . . . 106 C-304/01 Spain v Commission [2004] ECR I-7655 . . . 464 C-330/01 Hortiplant SAT v Commission [2004] ECR I-1763 . . . 106 C-353/01 P Mattila v Commission [2004] ECR I-1073 . . . 394, 656 C-359/01 P British Sugar plc v Commission [2004] ECR I-4933 . . . 667 C-393/01 France v Commission [2003] ECR I-5405 . . . 706 C-405/01 Colegio de Oficiales de la Marina Mercante Española v Administración del Estado [2003] ECR I-10391 . . . 556 C-482 & 493/01 Orfanopoulos v Land BadenWurttemberg [2004] ECR I-5257 . . . 486, 673 C-491/01 R v Secretary of State for Health, ex p British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453 . . . 405, 432, 520, 645, 652, 660 C-14/02 ATRAL SA v Belgium [2003] ECR I-4431 . . . 670 C-25/02 Rinke v Arztekammer Hamburg [2003] ECR I-8349 . . . 485, 583 C-30/02 Recheio-Cash and Carry SA v Fazenda Publica/Registo Nacional de Pessoas Colectivas and Ministerio Publico [2004] ECR I-6051 . . . 774 C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeiste der Bundesstadt Bonn [2004] ECR I-9609 . . . 522, 686 C-37 and 38/02 Di Leonardo Adriano Srl and Dilexport Srl v Ministero del Commercio con l’Estero [2004] ECR I-6911 . . . 625 C-41/02 Commission v Netherlands [2004] ECR I-11375 . . . 672, 709 C-47/02 Anker, Ras and Snoek v Germany [2003] ECR I-10447 . . . 556 C-65 and 73/02 P ThyssenKrupp Gmbh and another v Commission [2005] ECR I-6773 . . . 624 C-71/02 Karner Industrie-Auktionen GmbH v Troostwijk GmbH [2004] ECR I-3025 . . . 685 C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Saatssecretaris van Landbouw, Natuurbeheeer en Visserij [2004] ECR I-7405 . . . 708

C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR I-2703 . . . 549, 550, 565, 573 C-141/02 P Commission v T-Mobile Austria GmbH [2005] ECR I-1283 . . . 368 C-148/02 Carlos Garcia Avello v Belgium [2003] ECR I-11613 . . . 565 C-183 and 187/02 P Daewoo Electronics Manufacturing España SA (Demesa) and another v Commission [2004] ECR I-10609 . . . 624 C-184 and 223/02 Spain and Finland v European Parliament and Council [2004] ECR I-7789 . . . 520, 661 C-186 & 188/02 P Ramondin SA and others v Commission [2004] ECR I-10653 . . . 468 C-189, 202, 205, 208, and 213/02 P Dansk Rørindustri A/S and others v Commission [2005] ECR I-5425 . . . 604, 605, 626, 631, 632 C-196/02 Nikoloudi v Organismos Tilepikoinonion Ellados AE [2005] ECR I-1789 . . . 680 C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department [2004] ECR I-9925 . . . 680 C-222/02 Peter Paul, Sonnen-Lutte and Christel Morkens v Bundesrepublik Deutschland [2004] ECR I-9425 . . . 784 C-234/02 P European Ombudsman v Frank Lamberts [2004] ECR I-2803 . . . 736, 737, 817, 818 C-239/02 Douwe Egberts NV v Westrom Pharma NV [2004] ECR I-7007 . . . 671 C-258/02 P Bactria Industriehygiene-Service Verwaltungs GMbH v Commission [2003] ECR I-15105 . . . 149, 317, 338, 347, 540 C-262/02 Commission v France [2004] ECR I-6569 . . . 685 C-263/02 P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425 . . . 149, 317, 318, 332, 338 C-270/02 Commission v Italy [2004] ECR I-1559 . . . 671 C-277/02 EU-Wood-Trading GmbH v Sonderabfal- Management-Gesellschaf Rheinland-Pfalz mbh [2004] ECR I-11957 . . . 686 C-280/02 Commission v France [2004] ECR I-8573 . . . 707 C-286/02 Bellio F. lii Srl v Prefettura di Treviso [2004] ECR I-3465 . . . 710 C-299/02 Commission v Netherlands [2004] ECR I-9761 . . . 673 C-301/02 P Tralli v ECB [2005] ECR I-4071 . . . 169 C-334/02 Commission v France [2004] ECR I-2229 . . . 670

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Table of Cases C-376/02 Stichting ‘Goed Wonen’ v Staatssecretaris van Financiën [2005] ECR I-3445 . . . 602 C-377/02 Leon Van Parys NV v BIRB [2005] ECR I-1465 . . . 739 C-387, 391 and 403/02 Criminal Proceedings against Silvio Berlusconi and others [2005] ECR I-3565 . . . 682, 761 C-434/02 Arnold André GmbH & Co KG v Landrat des Kreises Herford [2004] ECR I-11825 . . . 646 C-456/02 Trojani v Centre Public D’Aide Sociale de Bruxelles (CPAS) [2004] ECR I-7573 . . . 549, 550, 565, 567 C-459/02 Willy Gerekens and Association Agricole pour la Promotion de la Commercialisation Laitière Procola v Luxembourg [2004] ECR I-7315 . . . 602, 604 C-12/03 P Commission v Tetra Laval [2005] ECR I-987 . . . 458, 459, 470, 473, 475 C-17/03 Vereniging voor Energie, Milieu en Water and others v Directeur van de Dienstuitvoering en toezicht energie [2005] ECR I-4983 . . . 625 C-20/03 Criminal Proceedings against Burmanjer, Van der Linden and de Jong [2005] ECR I-4133 . . . 671 C-25/03 Finanzamt Bergisch Gladbach v HE [2005] ECR I-3123 . . . 680 C-39/03 P Commission v Artegodan GmbH [2003] ECR I-7885 . . . 177, 480, 703 C-41/03 P Rica Foods (Free Zone) NV v Commission [2005] ECR I-6875 . . . 475, 647 C-110/03 Belgium v Commission [2005] ECR I-2801 . . . 433, 601, 603 C-132/03 Ministero della Salute v Codacons [2005] ECR I-4167 . . . 710 C-140/03 Commission v Greece [2005] ECR I-3177 . . . 673 C-147/03 Commission v Austria [2005] ECR I-5969 . . . 673 C-152/03 Ritter-Coulais v Finanzamt Gemersheim [2006] ECR I-1711 . . . 286 C-160/03 Spain v Eurojust [2005] ECR I-2077 . . . 176 C-171/03 Maatschap Toeters and M C Verberk v Productschap Vee en Vlees [2004] ECR I-10945 . . . 646 C-173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-5177 . . . 788 C-176/03 Commission v Council [2005] ECR I-7879 . . . 405 C-182 and 217/03 Belgium and Forum 187 ASBL v Commission [2006] ECR I-5479 . . . 622, 629

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C-198/03 P Commission v CEVA Santé Animale SA and Pfizer Enterprises Sàrl [2005] ECR I-6357 . . . 742 C-203/03 Commission v Austria [2005] ECR I-935 . . . 677 C-209/03 R (on the application of Bidar) v London Borough of Ealing and Secretary of State for Education [2005] ECR I-2119 . . . 565, 570, 571 C-210/03 R v Secretary of State for Health, ex p Swedish Match [2004] ECR I-11893 . . . 405, 645 C-212/03 Commission v France [2005] ECR I-4213 . . . 673 C-240/03 P Comunità Montana della Valnerina v Commission [2006] ECR I-731 . . . 666 C-293/03 Gregorio My v ONP [2004] ECR I-12013 . . . 286 C-319/03 Briheche v Ministre de l’Interieur, Ministre de L’Education and Ministre de la Justice [2004] ECR I-8807 . . . 593, 677 C-330/03 Colegio de Ingenieros de Caminos, Canales y Puertos v Administración del Estado [2006] ECR I-801 . . . 687 C-342/03 Spain v Council [2005] ECR I-1975 . . . 622 C-346 and 529/03 Atzeni and others v Regione autonoma della Sardegna [2006] ECR I-1875 . . . 624 C-380/03 Germany v European Parliament and Council [2006] ECR I-11573 . . . 405, 645 C-402/03 Skov Æg v Bilka Lavprisvarehus A/S and Bilka Lavprisvarehus A/S v Jette Mikkelsen and Michael Due Nielsen [2006] ECR I-199 . . . 762 C-436/03 European Parliament v Council [2006] ECR I-3733 . . . 422 C-445/03 Commission v Luxembourg [2004] ECR I-10191 . . . 674 C-453/03, 11, 12 and 194/04 R (on the application of ABNA Ltd and Others) v Secretary of State for Health and Food Standards Agency [2005] ECR I-10423 . . . 654, 726, 727 C-459/03 Intermodal Transports BV v Staatssecretaris van Financien [2005] ECR I-8151 . . . 281 C-470/03 AGM-COS.MET Srl v Suomen valtio and Tarmo Lehtinen [2007] ECR I-2749 . . . 789 C-508/03 Commission v UK [2006] ECR I-3969 . . . 615 C-535/03 R (on the application of Unitymark Ltd and North Sea Fishermen’s Organisation) v Department for Environment, Food and Rural Affairs [2006] ECR I-2689 . . . 647 C-6/04 Commission v UK [2005] ECR I-9017 . . . 708

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C-7/04 P(R) Commission v Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd [2004] ECR I-8739 . . . 723 C-27/04 Commission v Council [2004] ECR I-6649 . . . 207 C-109/04 Kranemann v Land-Rheinland Westfalen [2005] ECR I-2421 . . . 549 C-122/04 Commission v European Parliament and Council [2006] ECR I-2001 . . . 121 C-144/04 Mangold [2005] ECR I-9981 . . . 500 C-148/04 Unicredito Italiano SpA v Agenzia delle Entrate, Ufficio Genova 1 [2005] ECR I-11137 . . . 666 C-154–155/04 R (on the application of Alliance for Natural Health and Nutri-link Ltd) v Secretary of State for Health [2005] ECR I-6451 . . . 169, 400, 432, 709 C-170/04 Rosengren v Riksåklagaren [2007] ECR I-4071 . . . 671 C-258/04 Office national de l’emploi v Ioannidis [2005] ECR I-8275 . . . 549 C-260/04 Commission v Italy [2007] ECR I-7083 . . . 392 C-295–298/04 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA [2006] ECR I-6619 . . . 763, 774, 775, 779, 782 C-300/04 Eman and Sevinger v College van burgemeester en wethouders van Den Haag [2006] ECR I-8055 . . . 792 C-310/04 Spain v Commission [2006] ECR I-7285 . . . 625, 648 C-338, 359–360/04 Criminal Proceedings against Placanica, Palazzese and Sorricchio [2007] ECR I-1891 . . . 683 C-344/04 R (on the application of International Air Transport Association and European Low Fares Airline Association) v Department for Transport [2006] ECR I-403 . . . 645, 650, 725 C-354/04 P Gestoras Pro Amnistia, Olano and Errasti v Council [2007] ECR I-1579 . . . 268 C-366/04 Schwarz v Bürgermeister der Landeshauptstadt Salzburg [2005] ECR I-10139 . . . 671 C-403 & 405/04 P Sumitomo Metal Industries Ltd v Commission [2007] ECR I-729 . . . 376 C-404/04 P Technische Glaswerke Ilmenau GmbH v Commission [2007] ECR I-1 . . . 366 C-407/04 P Dalmine SpA v Commission [2007] ECR I-829 . . . 366, 375, 468 C-409/04 R (on the application of Teleos plc and others) v Commissioners of Customs & Excise [2007] ECR I-7797 . . . 681 C-411/04 P Salzgitter Mannesmann GmbH v Commission [2007] ECR I-959 . . . 375

C-418/04 Commission v Ireland [2007] ECR I-10947 . . . 708 C-441/04 A-Punkt Schmuckhandels GmbH v Claudia Schmidt [2006] ECR I-2093 . . . 671 C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753 . . . 777, 790 C-504/04 Agrarproduktion Staebelow GmbH v Landrat des Landkreises Bad Doberan [2006] ECR I-679 . . . 647, 648, 698 C-524/04 Test Claimants in the Thin Cap Group Litigation v Commissioners of Inland Revenue [2007] ECR I-2107 . . . 777, 786 C-525/04 P Spain v Lenzing [2007] ECR I-9947 . . . 456, 465 C-17/05 Cadman v Health & Safety Executive [2006] ECR I-9583 . . . 587, 678 C-39 & 52/05 P Sweden and Turco v Council [2008] ECR I-4723 . . . 397, 398 C-49/05 P Ferriere Nord SpA v Commission [2008] ECR I-68 . . . 632 C-51/05 P Commission v Cantina sociale di Dolianova Soc coop arl [2008] ECR I-5341 . . . 736 C-54/05 Commission v Finland [2007] ECR I-2473 . . . 548 C-64/05 P Sweden v Commission [2007] ECR II-11389 . . . 331, 397, 433, 656 C-94/05 Emsland-Stärke GmbH v Landwirtschaft skammer Hannover [2006] ECR I-2619 . . . 665 C-119/05 Ministero dell’Industria, del Commercio e dell’Artigianato v Lucchini SpA [2007] ECR I-6199 . . . 725 C-138/05 Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliktiet [2006] ECR I-8339 . . . 287 C-168/05 Elisa María Mostaza Claro v Centro Móvil Milenium SL [2006] ECR I-10421 . . . 772 C-178/05 Commission v Greece [2007] ECR I-4185 . . . 762 C-201/05 Test Claimants in the CFC and Dividend Group Litigation [2008] ECR I-2875 . . . 778 C-208/05 ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit [2007] ECR I-181 . . . 674 C-212/05 Hartmann v Freistaat Bayern [2007] ECR I-6303 . . . 553 C-213/05 Geven v Land Nordrhein-Westfalen [2007] ECR I-6347 . . . 553 C-222–225/05 J van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit [2007] ECR I-4233 . . . 771, 772 C-243/05 P Agraz, SA and Others v Commission [2006] ECR I-10833 . . . 748

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Table of Cases C-252/05 R (on the application of Thames Water Utilities Ltd) v South East London Division, Bromley Magistrates’ Court [2007] ECR I-3883 . . . 707 C-263/05 Commission v Italy [2007] ECR I-11745 . . . 707 C-266/05 P Jose Maria Sison v Council [2007] ECR I-1233 . . . 396, 645 C-278/05 Robins and Others v Secretary of State for Work and Pensions [2007] ECR I-1053 . . . 790 C-282/05 P Holcim (Deutschland) AG v Commission [2007] ECR I-2941 . . . 731, 736, 742 C-295/05 Asemfo v Transformación Agraria SA [2007] ECR I-2999 . . . 287 C-305/05 Ordre des barreaux francophones et germanophone v Conseil des ministres [2007] ECR I-5305 . . . 520 C-318/05 Commission v Germany [2007] ECR I-6957 . . . 547 C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767 . . . 687, 693 C-402 & C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351 . . . 350, 353, 461, 536, 657, 659, 730 C-426/05 Tele2 Telecommunication GmbH v Telekom-Control-Kommission [2008] ECR I-685 . . . 771 C-429/05 Max Rampion and Marie-Jeanne Godard, née Rampion v Franfinance SA and K par K SAS [2007] ECR I-8017 . . . 772 C-430/05 Ntionik Anonymi Etaireia Emporias H/Y and others v Epitropi Kefalaiagoras [2007] ECR I-5835 . . . 682 C-432/05 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern [2007] ECR I-2271 . . . 725, 726, 760, 771, 772 C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 . . . 687–9, 693 C-439 & 454/05 P Land Oberösterreich and Republic of Austria v Commission [2007] ECR I-7141 . . . 350 C-456/05 Commission v Germany [2007] ECR I-10517 . . . 674 C-1/06 Bonn Fleisch Ex- und Import GmbH v Hauptzollamt Hamburg-Jonas [2007] ECR I-5609 . . . 772 C-2/06 Willy Kempter KG v Hauptzollamt Hamburg-Jonas [2008] ECR I-411 . . . 774 C-3/06 P Groupe Danone v Commission [2007] ECR I-1331 . . . 604, 667

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C-37 and 58/06 Viamex Agrar Handels GmbH and Zuchtvieh-Kontor GmbH (ZVK) v Hauptzollamt Hamburg-Jonas [2008] ECR I-69 . . . 607, 665 C-120–121/06 P FIAMM v Council and Commission [2008] ECR I-6513 . . . 740, 752 C-132/06 Commission v Italy [2008] ECR I-5457 . . . 506 C-133/06 European Parliament v Council [2008] ECR I-3189 . . . 121 C-158/06 Stichting ROM-projecten v Staatssecretaris van Economische Zaken [2007] ECR I-5103 . . . 601, 779 C-161/06 Skoma-Luxsro v Celní ředitelství Olomouc [2007] ECR I-10841 . . . 602, 603 C-199/06 Centre d’exportation du livre français (CELF) and Ministre de la Culture et de la Communication v Société internationale de diffusion et d’édition (SIDE) [2008] ECR I-469 . . . 779 C-213/06 P EAR v Karatzoglou [2007] ECR I-6733 . . . 639 C-241/06 Lämmerzahl GmbH v Freie Hansestadt Bremen [2007] ECR I-8415 . . . 769, 773 C-244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] ECR I-505 . . . 686 C-257/06 Roby Profumi Srl v Comune di Parma [2008] ECR I-189 . . . 681 C-263/06 Carboni e derivati Srl v Ministero dell’Economia e delle Finanze and Riunione Adriatica di Sicurtà SpA [2008] ECR I-1077 . . . 650 C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483 . . . 773 C-271/06 Netto Supermarkt GmbH & Co OHG v Finanzamt Malchin [2008] ECR I-771 . . . 681 C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU [2008] ECR I-271 . . . 486 C-300/06 Ursula Voß v Land Berlin [2007] ECR I-10573 . . . 678 C-308/06 R (on the application of Intertanko) v Secretary of State for Transport [2008] ECR I-4057 . . . 601 C-309/06 Marks & Spencer plc v Commissioners of Customs & Excise [2008] ECR I-2283 . . . 778 C-319/06 Commission v Luxembourg [2008] ECR I-4323 . . . 683 C-383–385/06 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid [2008] ECR I-1561 . . . 106 C-399 & 403/06 Hassan and Ayadi v Council and Commission [2009] ECR I-11393 . . . 352

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C-413/06 P Bertelsmann AG and Sony Corporation of America v Independent Music Publishers and Labels Association (Impala) [2008] ECR I-4951 . . . 460 C-452/06 R, ex parte Synthon BV v Licensing Authority of the Department of Health [2008] ECR I-7681 . . . 790 C-460/06 Nadine Paquay v Société d’architectes Hoet + Minne SPRL [2007] ECR I-8511 . . . 763 C-487/06 P British Aggregates Association v Commission [2008] ECI I-10515 . . . 728 C-500/06 Corporación Dermoestética SA v To Me Group Advertising Media [2008] ECR I-5785 . . . 687 C-501, 513, 515 & 519/06 P GlaxoSmithKline Services Unlimited v Commission [2009] ECR I-9291 . . . 460 C-25/07 Sosnowska v Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu [2008] ECR I-5129 . . . 681 C-33/07 Ministerul Administraţiei şi Internelor-Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa [2008] ECR I-5157 . . . 673, 683 C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa [2009] ECR I-7633 . . . 686 C-47/07 P Masdar (UK) Ltd v Commission [2008] ECR I-9761 . . . 619, 753 C-94/07 Andrea Raccanelli v Max-PlanckGesellschaft zur Förderung der Wissenschaft en eV [2008] ECR I-5939 . . . 550 C-127/07 Société Arcelor Atlantique et Lorraine and Others v Premier ministre and others [2008] ECR I-9895 . . . 577 C-139/07 P Commission v Technische Glaswerke Ilmenau GmbH [2010] ECR I-5885 . . . 354, 395, 656 C-141/07 Commission v Germany [2008] ECR I-6935 . . . 686 C-166/07 European Parliament v Council [2009] ECR I-7135 . . . 730 C-169/07 Hartlauer [2009] ECR I-1721 . . . 674 C-171 and 172/07 Apothekerkammer des Saarlandes v Saarland and Ministerium für Justiz, Gesundheit und Soziales [2009] ECR I-4171 . . . 674 C-188/07 Commune de Mesquer v Total France SA and Total International Ltd [2008] ECR I-4501 . . . 708 C-228/07 Jörn Petersen v Landesgeschäftsstelle des Arbeitsmarktservice Niederösterreich [2008] ECR I-6989 . . . 549

C-241/07 JK Otsa Talu OÜ v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA) [2009] ECR I-4323 . . . 625 C-256/07 Mitsui & Co Deutschland GmbH v Hauptzollamt Düsseldorf [2009] ECR I-1951 . . . 603 C-276/07 Nancy Delay v Università degli studi di Firenze, Istituto nazionale della previdenza sociale (INPS) [2008] ECR I-3635 . . . 547 C-290/07 Commission v Scott SA, 2 September 2010 . . . 465 C-295/07 P Commission v Département du Loiret and Scott SA [2008] ECI I-9363 . . . 729 C-308/07 P Koldo Gorostiaga Atxalandabaso v European Parliament [2009] ECR I-1059 . . . 360 C-313/07 Kirtruna SL and Elisa Vigano v Red Elite de Electrodomésticos SA [2008] ECR I-7907 . . . 286 C-334/07 Denka International BV v Commission [2009] ECR II-4205 . . . 603, 647, 698 C-343/07 Bavaria NV and Bavaria Italia Srl v Bayerischer Brauerbund eV [2009] ECR I-5491 . . . 331 C-349/07 Sopropé-Organizações de Calçado Lda v Fazenda Pública [2008] ECR I-10369 . . . 312, 350, 353 C-369/07 Commission v Germany [2009] ECR I-7811 . . . 548 C-378–380/07 Kiriaki Angelidaki and Others [2009] ECR I-03071 . . . 773 C-385/07 P Der Grüne Punkt-Duales System Deutschland GmbH v Commission [2009] ECR I-6155 . . . 360 C-405/07 P Netherlands v Commission [2008] ECR I-8301 . . . 369, 456 C-440/07 P Commission v Schneider Electric SA [2009] ECR I-6413 . . . 738 C-441/07 P Commission v Alrosa Company Ltd EU:C:2010:377 [2010] ECR I-5949 . . . 460 C-443/07 Mediavilla v Commission [2008] ECR I-10945 . . . 620 C-514, 528, 532/07 Sweden v API and Commission [2010] ECR I-8533 . . . 397 C-518/07 Commission v Germany [2010] ECR I-1885 . . . 432 C-519/07 P Commission v Koninklijke FrieslandCampina NV [2009] ECR I-8945 . . . 622, 629 C-558/07 R (on the application of SPCM SA) v Secretary of State for the Environment, Food and Rural Affairs [2009] ECR I-5783 . . . 645 C-12/08 Mono Car Styling SA, in liquidation v Dervis Odemis [2009] ECR I-6653 . . . 773

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Table of Cases C-34/08 Azienda Agricola Disarò Antonio v Cooperativa Milka 2000 Soc coop arl [2009] ECR I-4023 . . . 653 C-46/08 Carmen Media Group Ltd v Land Schleswig-Holstein [2010] ECR I-8149 . . . 686 C-58/08 R (on the application of Vodafone Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform, 8 June 2010 . . . 426, 432, 434, 645 C-69/08 Raffaello Visciano v Istituto nazionale della previdenza sociale (INPS) [2009] ECR I-6741 . . . 773 C-76/08 R Commission v Malta [2008] ECR I-64 . . . 723 C-89/08 P Commission v Ireland [2009] ECR I-11245 . . . 350, 352, 353, 370 C-94/08 Commission v Spain [2008] ECR I-160 . . . 547 C-118/08 Transportes Urbanos y Servicios Generales SAL v Administración del Estado [2010] ECR I-635 . . . 792 C-141/08 P Foshan Shunde Yongjian Housewares & Hardware Co Ltd v Council [2009] ECR I-9147 . . . 313, 350 C-201/08 Plantanol GmbH & Co KG v Hauptzollamt Darmstadt [2009] ECR I-8343 . . . 601, 605 C-203/08 Sporting Exchange Ltd v Minister van Justitie, 3 June 2010 . . . 392 C-258/08 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator [2010] ECR I-47573 . . . 686 C-280/08 Deutsche Telekom AG v European Commission [2010] ECR I-9555 . . . 370 C-317–320/08 Rosalba Alassini v Telecom Italia SpA [2010] ECR I-2213 . . . 773 C-333/08 Commission v France, 28 January 2010 . . . 673, 698, 699, 710 C-379 & 380/08 Raffinerie Mediterranee (ERG) SpA and others v Ministero dello Sviluppo economico EU:C:2010:127 . . . 394, 659 C-395 & 396/08 INPS v Bruno, Pettini, Lotti, Mateucci [2010] ECR I-5119 . . . 678 C-403 and 429/08 Football Association Premier League Ltd and Others v QC Leisure EU:C:2011:631 . . . 675 C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority [2010] ECR I-817 . . . 775 C-407/08 P Knauf Gips KG v European Commission EU:C:2010:389 . . . 356, 519 C-414/08 P Sviluppo Italia Basilicata SpA v European Commission, 25 March 2010 . . . 619 C-419/08 P Trubowest Handel GmbH and Viktor Makarov v Council and Commission, 18 March 2010 . . . 747

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C-440/08 Gielen v Staatssecretaris van Financiën [2010] ECR I-2323 . . . 287 C-446/08 Solgar Vitamin’s France v Ministre de l’Économie, des Finances et de l’Emploi [2010] ECR I-3973 . . . 709 C-449/08 Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit [2009] ECR I-10241 . . . 625 C-458/08 Commission v Portugal, 18 Nov 2010 . . . 674 C-460/08 Commission v Greece, 10 December 2009 . . . 547 C-468/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol, 22 April 2010 . . . 678 C-484/08 Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc) . . . [2010] ECR I-4785 . . . 287 C-496/08 P Pilar Angé Serrano and Others v European Parliament [2010] ECR I-1793 . . . 625 C-506/08 P Sweden v Commission and My Travel Group plc EU:C:2010:769 . . . 396, 397 C-537/08 P Kahla Thüringen Porzellan GmbH v Commission, 16 December 2010 . . . 619 C-542/08 Friedrich G Barth v Bundesministerium für Wissenschaft und Forschung, 15 April 2010 . . . 774 C-28/09 Commission v Austria EU:C:2011: 854 . . . 671 C- 34/09 Ruiz Zambrano v ONEM [2011] ECR I-1177 . . . 565 C-77/09 Gowan Comércio Internacional e Serviços Lda v Ministero della Salute [2010] ECR T-13533 . . . 456, 477, 647, 698, 699 C-92 & 93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land HessenEU:C:2010:662 . . . 400, 490, 520, 529, 583, 664, 734 C-104/09 Roca Álvarez EU:C:2010:561 . . . 593 C-145/09 Land-Baden Würtemberg v Tsakouridis, 23 November 2010 . . . 673 C-168/09 Flos SpA v Semeraro Casa e Famiglia SpA EU:C:2011:29 . . . 607 C-176/09 Luxembourg v European Parliament and Council [2011] ECR I-3727 . . . 426, 463 C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien EU:C:2010: 806 . . . 686 C-221/09 AJD Tuna Ltd v Direttur talAgrikoltura u s-Sajd and Avukat Generali [2011] ECR I-1655 . . . 317

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Table of Cases

C-230–231/09 Hauptzollamt Koblenz v Kurt und Thomas Etling in GbR EU:C:2011:271 . . . 605 C-232/09 Dita Danosa v LKB Lizings SIA, 11 November 2010 . . . 550 C-236/09 Association Belge des Consammateurs Test-Achats ASBL v Conseil des Ministres EU:C:2011:100 . . . 490, 583, 734 C-246/09 Susanne Bulicke v Deutsche Büro Service GmbH [2010] ECR I-7003 . . . 775 C-272/09 KME Germany v Commission EU:C:2011:63 . . . 360 C-279/09 DEB v Bundesrepublik Deutschland [2010] ECR I-1384; EU:C:2010:811 9 . . . 529, 664, 774 C-304/09 Commission v Italy [2010] ECR I-13903 . . . 726 C-333/09 Noël v SCP Brouard Daude [2009] ECR I-205 . . . 505 C-343/09 Afton Chemical Ltd v Secretary of State for Transport EU:C:2010:419 . . . 456, 699 C-367/09 Belgisch Interventieen Restitutiebureau v SGS Belgium NV [2010] ECR I-1076 . . . 506, 682 C-372–373/09 Josep Peñarroja Fa [2011] ECR I-1785 . . . 674 C-410/09 Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, 12 May 2011 . . . 602 C-421/09 Humanplasma GmbH v Republik Österreich [2010] ECR I-12869 . . . 683 C-429/09 Fuss v Stadt Halle, 25 November 2010 . . . 785 C-434/09 McCarthy v Home Secretary EU:C:2011:277 . . . 572 C-438/09 Bogusław Juliusz Dankowski v Dyrektor Izby Skarbowej w Łodzi, 22 December 2010 . . . 681 C-550/09 Criminal proceedings against E and F, 29 June 2010 . . . 338, 604 C-14/10 Nickel Institute v Secretary of State for Work and Pensions EU:C:2011:503 . . . 456 C-15/10 Etimine SA v Secretary of State for Work and Pensions EU:C:2011:50 . . . 456 C-58–68/10 Monsanto and others, 8 September 2011 . . . 710 C-69/10 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration, 28 July 2011 . . . 773 C-94/10 Danfoss A/S and Sauer-Danfoss ApS v Skatteministeriet EU:C:2011:674 . . . 792 C-153/10 Staatssecretaris van Financiën v Sony Supply Chain Solutions (Europe) BV EU:C:2011:224 . . . 640 C-379/10 Commission v Italy EU:C:2011: 775 . . . 788

C-411 and 493/10 NS v Secretary of State EU:C:2011:86 . . . 539 C-465/10 Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration v Chambre de commerce et d’industrie de l’Indre EU:C:2011:867 . . . 666 C-584, 593 and 595/10 P European Commission v Kadi EU:C:2013:518 . . . 312, 350, 356, 462 C-617/10 Åklagaren v Hans Åkerberg Fransson EU:2013:C:105 . . . 495, 503–6, 530 C-35/11 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue EU:C:2012:707 . . . 777 C-135/11 P IFAW Internationaler TierschutzFonds GmbH v European Commission EU:C:2012:376 . . . 397 C-138/11 Compass-Datenbank GmbH v Republik Österreich EU:C:2012:449 . . . 442 C-246/11 P Portugal v Commission EU:C:2013:118 . . . 728 C-247 and 295/11 Spain and Italy v Council EU:C:2013:240 . . . 406 C-256/11 Dereci [2011] ECR I-11315 . . . 573 C-263/11 Ainārs Rēdlihs v Valsts ieņēmumu dienests EU:C:2012:497 . . . 682 C-277/11 M EU:C:2012:744 . . . 353 C-280/11 P Council of the European Union v Access Info Europe EU:C:2013:671 . . . 396 C-373/11 Panellinios Syndesmos Viomichanion Metapoiisis Kapnou v Ypourgos Oikonomias kai Oikonomikon EU:C:2013:567 . . . 414 C-397/11 Jőrös v Aegon Magyarország Hitel Zrt EU:C:2013:340 . . . 772 C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107 . . . 532–4 C-427/11 Kenny v Minister for Justice, Equality and Law Reform EU:C:2013:122 . . . 678 C-539/11 Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara EU:C:2013:591 . . . 687 C-545/11 Agrargenossenschaf Neuzelle eG v Landrat des Landkreises Oder-Spree EU:C:2013:169 . . . 619 C-568/11 Agroferm A/S v Ministeriet for Fødevarer, Landbrug og Fiskeri EU:C:2013: 40 . . . 640 C-583/11 P Inuit Tapiriit Kanatami v Parliament and Council EU:C:2013:625 . . . 343, 347 C-87/12 Ymeraga EU:C:2013:291 . . . 573 C-103 and 165/12 European Parliament v Commission and Council EU:C:2014:334 . . . 423 C-114/12 Commission v Council (Convention on the Rights of Broadcasting Organizations) EU:C:2014:2151 . . . 411

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Table of Cases C-132/12 P Stichting Woonpunt v European Commission EU:C:2014:100 . . . 344 C-137/12 Commission and European Parliament v Council EU:C:2013:675 . . . 406 C-140/12 Brey EU:C:2013:565 . . . 568 C-159–162/12 Venturini v ASL Varese EU:C:2013:79 . . . 687 C-176/12 Association de médiation sociale (AMS) v Union locale des syndicats CGT, Laboubi EU:C:2014:2 . . . 500, 511, 512, 515, 516 C-270/12 United Kingdom v Council and Parliament EU:C:2014:18 . . . 163, 170, 176, 405, 423 C-274/12 P Telefónica SA v Commission EU:C:2013:852 . . . 344–6 C-276/12 Sabou v Finanční ředitelství pro hlavní město Prahu EU:C:2013:678 . . . 312, 350 C-293 and 594/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources EU:C:2014:238 . . . 514, 657, 663 C-295/12 P Telefónica SA and Telefónica de España SAU v European Commission EU:C:2014:2062 . . . 460, 495 C-350/12 P Council v in’t Veld EU:C:2014:2039 . . . 396, 397 C-362/12 Test Claimants in the Franked Investment Income Group Litigation v Commissioners of Inland Revenue EU:C:2013:834 . . . 600 C-365/12 P Commission v EnBW EU:C:2014:112 . . . 396 C-370/12 Pringle v Government of Ireland, Ireland and the Attorney General EU:C:2012:756 . . . 411 C-390/12 Proceedings brought by Robert Pfleger EU:C:2014:281 . . . 506 C-427/12 Commission v European Parliament and Council EU:C:2014:170 . . . 141, 142 C-470/12 Photovost EU:C:2013:844 . . . 516 C-498/12 Pedone v N EU:C:2013:76 . . . 507 C-501–506 and 540–541/12 Specht v Land Berlin and Bundesrepublik Deutschland EU:C:2014:2005 . . . 787 C-595/12 Napoli v Ministero della Giustizia— Dipartimento dell’Amministrazione penitenziaria EU:C:2014:128 . . . 676 C-604/12 HN v Minister for Justice, Equality and Law Reform EU:C:2014:302 . . . 372 C-614/12 and 10/13 Dutka v Mezőgazdasági és Vidékfejlesztési Hivatal EU:C:2014:30 . . . 507 C-14/13 Cholakova v Osmo rayonno upravlenie pri Stolichna direktsia na vatreshnite rab EU:2013:C:374 . . . 507

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C-31/13 P Hungary v Commission EU:C:2014:70 . . . 267 C-56/13 Érsekcsanádi Mezőgazdasági Zrt v Bács-Kiskun Megyei Kormányhivatal EU:C:2014:352 . . . 507 C-65/13 European Parliament v Commission EU:C:2014:2289 . . . 141, 146 C-124–125/13 European Parliament and European Commission v Council EU:C:2015:790 . . . 730 C-127/13 P Strack v Commission EU:C:2014:2250 . . . 394, 656 C-129–130/13 Kamino International Logistics BV and Datema Hellmann Worldwide Logistics BV v Staatssecretaris van Financiën EU:C:2014:2041 . . . 313, 353, 361 C-146/13 Spain v European Parliament and the Council EU:C:2015:298 . . . 169 C-147/13 Spain v Council EU:C:2015: 299 . . . 169 C-166/13 Mukarubega v Préfet de police and Préfet de la Seine-Saint-Denis EU:C:2014:2336 . . . 314, 373 C-173/13 Leone v Garde des Sceaux EU:C:2014:2090 . . . 679 C-176/13 P Council of the European Union v Bank Mellat EU:C:2016:96 . . . 356, 462 C-198/13 Hernández v Reino de España (Subdelegación del Gobierno de España en Alicante) EU:C:2014:2055 . . . 507 C-200/13 P Council of the European Union v Bank Saderat Iran EU:C:2016:284 . . . 356, 462 C-206/13 Siragusa v Regione Sicilia— Soprintendenza Beni Culturali e Ambientali di Palermo EU:C:2014:126 . . . 507 C-244/13 Ogieriakhi v Minister for Justice and Equality EU:C:2014:2068 . . . 785 C-249/13 Khaled Boudjlida v Préfet des PyrénéesAtlantiques EU:C:2014:2431 . . . 314, 350 C-258/13 Sociedade Agrícola e Imobiliária da Quinta de S Paio Lda v Instituto da Segurança Social IP EU:C:2013:810 . . . 506, 507 C-265/13 Marcos v Korota SA and Fondo de Garantía Salarial EU:C:2014:187 . . . 507 C-269/13 P Acino AG v European Commission EU:C:2014:255 . . . 699 C-270/13 Haralambidis EU:C:2014:2185 . . . 555 C-333/13 Dano v Jobseeker Leipzig EU:C:2014:2358 . . . 565, 568 C-383/13 PPU, M G and N R v Staatssecretaris van Veiligheid en Justitie EU:C:2013:533 . . . 350, 361 C-390/13 P(R) European Medicines Agency (EMA) v InterMune UK Ltd EU:C:2013:795 . . . 723

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Table of Cases

C-398/13 P Inuit Tapiriit Kanatami v European Commission EU:C:2015:535 . . . 495, 530 C-423/13 ‘Vilniaus energija’ UAB v Lietuvos metrologijos inspekcijos Vilniaus apskrities skyrius EU:C:2014:218 . . . 675 C-426/13 P(R) European Commission v Federal Republic of Germany EU:C:2013:848 . . . 723 C-456/13 P T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission EU:C:2015:284 . . . 345–7 C-499/13 Macikowski v Dyrektor Izby Skarbowej w Gdańsku EU:C:2015:201 . . . 681 C-567/13 Nóra Baczó and János István Vizsnyiczai v Raiffeisen Bank Zrt EU:C:2015:88 . . . 770 C-596/13 P European Commission v Moravia Gas Storage as EU:C:2015:203 . . . 603 C-609/13 P Duravit AG v European Commission EU:C:2017:46 . . . 356 C-640/13 European Commission v UK EU:C:2014:2457 . . . 776 C-647/13 Office national de l’emploi v MarieRose Melchior EU:C:2014:2301 . . . 512 C-650/13 Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde EU:C:2015:648 . . . 522 C-662/13 Surgicare—Unidades de Saúde SA v Fazenda Pública EU:C:2015:89 . . . 770 C-49/14 Finanmadrid EFC SA v Jesús Vicente Albán Zambrano EU:C:2016:98 . . . 774 C-62/14 Gauweiler v Deutscher Bundestag EU:C:2015:400 . . . 645 C-67/14 Jobcenter Berlin Neukölln v Nazifa Alimanovic EU:C:2015:597 . . . 568 C-74/14 ‘Eturas’ UAB v Lietuvos Respublikos konkurencijos taryba EU:C:2016:4 . . . 782 C-88/14 European Commission v European Parliament v Council EU:C:2015:499 . . . 141, 143, 144, 146 C-98/14 Berlington Hungary Tanácsadó és Szolgáltató kf v Magyar Állam EU:C:2015: 386 . . . 601, 686 C-113/14 Germany v European Parliament and Council EU:C:2016:635 . . . 730 C-157/14 Société Neptune Distribution v Ministre de l’Économie et des Finances EU:C:2015:823 . . . 645, 699 C-165/14 Rendón Marín v Administración del Estado EU:C:2016:675 . . . 573 C-232/14 Portmeirion Group UK Ltd v Commissioners for Her Majesty’s Revenue & Customs EU:C:2016:180 . . . 463 C-233/14 European Commission v Netherlands EU:C:2016:396 . . . 571 C-283–284/14 CM Eurologistik GmbH v Hauptzollamt Duisburg EU:C:2016:57 . . . 731

C-286/14 European Parliament and Council v Commission EU:C:2016:183 . . . 141, 145, 146, 730 C-299/14 Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto EU:C:2016:114 . . . 568 C-304/14 Secretary of State for the Home Department v CS EU:C:2016:674 . . . 573 C-308/14 European Commission v UK EU:C:2016:436 . . . 568 C-324/14 X-Steuerberatungsgesellschaf EU:C:2015:827 . . . 601 C-332/14 Wolfgang und Dr Wilfried Rey Grundstücksgemeinschaf GbR v Finanzamt Krefeld EU:C:2016:417 . . . 600 C-358/14 Poland v European Parliament and Council EU:C:2016:323 . . . 426, 432, 434 C-362/14 Maximillian Schrems v Data Protection Commissioner EU:C:2015:650 . . . 514, 657, 658 C-363/14 European Parliament v Council EU:C:2015:579 . . . 133 C-377/14 Radlinger and Radlingerová v Finway as EU:C:2012:83 . . . 770, 772 C-419/14 WebMindLicenses kft EU:C:2015:832 . . . 519, 520 C-427/14 Valsts ieņēmumu dienests v ‘Veloserviss’ SIA EU:C:2015:803 . . . 600 C-438/14 von Wolffersdorff v Standesamt der Stadt Karlsruhe EU:C:2016:401 . . . 686 C-477/14 Pillbox 38 (UK) Ltd, trading as Totally Wicked v Secretary of State for Health EU:C:2016:324 . . . 425, 520, 645, 659, 661, 698, 699 C-496/14 Statul român v Tamara Văraru EU:C:2015:312 . . . 507 C-505/14 Klausner Holz Niedersachsen GmbH v Land Nordrhein-Westfalen EU:C:2015:742 . . . 774 C-524/14 P European Commission v Hansestadt Lübeck EU:C:2016:97 . . . 339 C-541/14 P Royal Scandinavian Casino Århus I/S v European Commission EU:C:2016:302 . . . 344 C-543/14 Ordre des barreaux francophones et germanophone and Others v Conseil des ministers EU:C:2016:605 . . . 530 C-547/14 Philip Morris Brands SARL v Secretary of State for Health EU:C:2016:325 . . . 426, 659, 661 C-552/14 P Canon Europa NV v European Commission EU:C:2015:804 . . . 345 C-553/14 P Kyocera Mita Europe BV v European Commission EU:C:2015:805 . . . 344 C-560/14 M v Minister for Justice and Equality Ireland and the Attorney General EU:C:2017:101 . . . 313, 350, 353

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Table of Cases C-562/14 P Sweden v European Commission EU:C:2017:356 . . . 396 C-566/14 Jean-Charles Marchiani v European Parliament EU:C:2016:437 . . . 312, 350, 619 C-8–10/15 Ledra Advertising Ltd v European Commission and European Central Bank EU:C:2016:70 . . . 742 C-15/15 New Valmar BVBA v Global Pharmacies Partner Health Srl EU:C:2016:464 . . . 671 C-45/15 P Safa Nicu Sepahan Co v Council EU:C:2017:402 . . . 748 C-72/15 PJSC Rosnef Oil Co v Her Majesty’s Treasury EU:C:2017:236 . . . 462, 601, 645 C-79/15 P Council of the European Union v Hamas EU:C:2017:584 . . . 462 C-96/15 Saint Louis Sucre v Directeur général des douanes et droits indirects EU:C:2016:450 . . . 465 C-128/15 Spain v Council of the European Union EU:C:2017:3 . . . 463 C-133/15 H C Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank EU:C:2017:35 . . . 573 C-168/15 Tomášová v Slovenská republika EU:C:2016:602 . . . 788 C-201/15 AGET Iraklis v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis EU:C:2016:972 . . . 674, 689 C-203 and 698/15 Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson EU:C:2016:970 . . . 520, 528 C-217 and 350/15 Criminal proceedings against Massimo Orsi and Luciano Baldetti EU:C:2017:264 . . . 530 C-218/15 Paoletti v Procura della Repubblica EU:C:2016:748 . . . 506 C-248, 254 and 260/15 P Maxcom Ltd v City Cycle Industries EU:C:2017:6 . . . 463 C-282/15 Queisser Pharma GmbH & Co KG v Bundesrepublik Deutschland EU:C:2017: 26 . . . 671, 699 C-284/15 Office national de l’emploi (ONEm) v M EU:C:2016:220 . . . 522 C-330/15 P Tomana v Council of the European Union and European Commission EU:C:2016:601 . . . 462 C-337/15 P European Ombudsman v Staelen [2017] ECR II-220 . . . 818 C-376 and 377/15 P Changshu City Standard Parts Factory and Ningbo Jinding Fastener

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Co Ltd v Council of the European Union EU:C:2017:269 . . . 463 C-387–388/15 Orleans v Vlaams Gewest EU:C:2016:583 . . . 707 C-395/15 Daouidi v Bootes Plus SL EU:C:2016:917 . . . 507 C-411/15 P CFPR v European Commission EU:C:2017:11 . . . 619, 667 C-414/15 P Stichting Woonlinie and Others v European Commission EU:C:2017:215 . . . 466 C-429/15 Danqua v Minister for Justice and Equality EU:C:2016:789 . . . 782 C-444/15 Associazione Italia Nostra Onlus v Comune di Venezia EU:C:2016:978 . . . 522 C-517/15 P AGC Glass Europe v European Commission EU:C:2017:59 . . . 631, 723 C-560/15 Europa Way Srl and Persidera SpA v Autorità per le Garanzie nelle Comunicazioni EU:C:2017:593 . . . 619 C-601/15 PPU J N v Staatssecretaris van Veiligheid en Justitie EU:C:2016:84 . . . 530 C-643 and 647/15 Slovak Republic and Hungary v Council of the European Union EU:C:2017:63 . . . 463 C-682/15 Berlioz Investment Fund SA v Directeur de l’administration des contributions directes EU:C:2017:373 . . . 506 C-696/15 P Czech Republic v European Commission EU:C:2017:595 . . . 133 C-26/16 Santogal M-Comércio e Reparação de Automóveis Lda v Autoridade Tributária e Aduaneira EU:C:2017:453 . . . 610 C-46/16 Valsts ieņēmumu dienests v ‘LS Customs Services’ SIA, EU:C:2017:839 . . . 372 C-78–79/16 Pesce v Presidenza del Consiglio dei Ministri—Dipartimento della Protezione Civile EU:C:2016:428 . . . 699 C-99/16 Lahorgue v Ordre des avocats du barreau de Lyon EU:C:2017:391 . . . 674 C-142/16 Commission v Germany EU:C:2017:301 . . . 707 C-214/16 Conley King v The Sash Window Workshop Ltd and Richard Dollar EU:C:2017:439 . . . 512, 516 C-294/16 PPU JZ EU:C:2016:610 . . . 530 C-321/16 Maria Isabel Harmon v Owen Pardue EU:C:2016:871 . . . 507 C-516/16 Erzeugerorganisation Tiefühlgemüse eGen v Agrarmarkt Austria EU:C:2017:1011 . . . 640 C-177/17 Demarchi Gino Sas v Ministero della Giustizia EU:C:2017:656 . . . 507

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TABLES OF LEGISL ATION, TREATIES, AND CONVENTIONS Amsterdam Treaty . . . . . . . . . . . . . . . . 19–21, 239 Charter of Fundamental Rights of the European Union . . . . . . . . . . . . . . . . . . 484–9, 497–544 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 537, 538 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 537, 538 Arts 1–5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . 497, 537, 538 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 Art 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . 498, 514, 658 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514, 658 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498, 529 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498, 509 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . 523, 524 Art 12(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498 Art 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 14(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 15(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Arts 16–54 . . . . . . . . . . . . . . . . . . . . . . . . . . . 498 Art 21(1) . . . . . . . . . . . . . . . . . . . . 498, 523, 524 Art 23 . . . . . . . . . . . . . . . . . . . . . . . 499, 523, 524 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Art 27 . . . . . . . . . . . . . . . . . . . . . . . 500, 512, 516 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513 Arts 29–31 . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Art 31(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524 Art 31(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523, 524 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512, 523 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 41 . . . . . . . . . . . 346, 372, 373, 526, 527, 540 Art 41(1) . . . . . . . . . . . . . . . . 367, 373, 526, 527 Art 41(2) . . . . 313, 346, 350, 354, 373, 526, 540 Art 41(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526 Art 41(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522, 525 Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522

Art 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 45(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 47 . . . . . . . 346, 360, 367, 373, 533, 540, 541 Art 47(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 47(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 48(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503–5 Art 51(1) . . . . . . . . . . . . . . . . . . 499, 501–4, 508 Art 51(2) . . . . . . . . . . . . 490, 509, 510, 523, 525 Art 52(1) . . . . . . . . . . . . . . . . . . . . . 518–22, 664 Art 52(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 522–7 Art 52(3) . . . . . . . . . . . . 495, 519, 522, 528, 530 Art 52(5) . . . . . . . . . . . . . . . . . . . . 511, 515, 516 Art 52(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530 Art 53 . . . . . . . . . . . . . . . . . . . . . . . 531, 533, 535 Convention of Human Rights and Biomedicine . . . . . . . . . . . . . . . . . . . . . . . . 510 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523 EC Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426, 427 Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517, 672 Art 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 Art 81(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 81(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 Art 95 . . . . . . . . . . . . . . . . . . . 401, 404, 405, 421 Art 95(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 635 Art 137(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art 137(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art 138(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art 139(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art 139(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Art 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art 155 . . . . . . . . . . . . . . . . . . . . . . 4, 5, 114, 117 Art 173 . . . . . . . . . . . . . . . . . . . . . . 272, 273, 332 Art 174(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696 Art 174(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696

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Art 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370 Art 202 . . . . . . . . . . . . . . . . . . . . . . 120, 138, 142 Art 208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Art 230 . . . . . . . . . . . . . . 65, 309, 334, 336, 337, 339, 340, 342, 460 Art 230(1) . . . . . . . . . . . . . . . . . . . . . . . . . 65, 175 Art 230(4) . . . . . . . . . . . . . . . . . . . 333, 335, 339 Art 231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728 Art 232 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340 Art 234 . . . . . . . . . . . . . . 334, 335, 336, 339, 342 Art 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 Art 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 Art 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380 Art 255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392 Art 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340 Art 308 . . . . . . . . . . . . . . . . . . . . . 27, 401, 421–2 ECSC Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576 Art 3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 195, 576 Art 4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576 Art 60(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576 Art 70(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576 Art 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469 EEC Treaty Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Art 39(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Art 43(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Art 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 24 Art 85(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Art 85(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Art 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 24 Art 100a (now Art 114 TFEU) . . . . . . . . . . . . 10 Art 119 . . . . . . . . . . . . . . . . . . . . . . . . . . 587, 588 Art 130a (now Art 174 TFEU) . . . . . . . . . . . . 11 Art 130r–130t . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Art 145 . . . . . . . . . . . . . . . . . . . . . . . . 10, 117–20 Art 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 114 Art 155 . . . . . . . . . . . . . . . . . . . . . . . . 4, 117, 170 Art 173 . . . . . . . . . . . . . . . . . . 170, 272, 273, 330 Art 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 European Convention on Human Rights and Fundamental Freedoms 1950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492, 493 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 Art 6(1) . . . . . . . . . . . . . . . . . . . . . 359, 360, 496 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492 Lisbon Treaty 2007 . . . . . . . . . . . . . . . . . . . . . . . . 27

Maastricht Treaty 1992 . . . . . . . . . . . . 14–15, 389 Art K.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 Art K.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Art K.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 New York Convention on the Rights of the Child 1989 . . . . . . . . . . . . . . . . . . . . . . 509 Nice Treaty 2000 . . . . . . . . . . . . . . . . . . . 19, 21, 291 Single European Act 1986 (SEA) . . . . . . . . 10–12, 93, 117, 402, 486 Statute of the Court of Justice Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 Art 50(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290, 291 Arts 56–62 . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Treaty on European Union TEU Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . 234, 518, 519 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 518, 519 Art 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 275 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402 Art 5(3)–(4) . . . . . . . . . . . . . . . . . . . . . . 427, 432 Art 5(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 643 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . 373, 537, 812 Art 6(1) . . . . . . . . . . . . . . . . . . . . . 486, 490, 503 Art 6(2) . . . . . . . . . . . . . . . . . . . . . 486, 492, 493 Art 6(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 493, 495 Art 10(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 11 . . . . . . . . . . . . . . . . . . . . . . . 149, 322, 329 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 11(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 736 Art 16(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 16(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 16(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 19 . . . . . . . . . . . . . . . . . . . . . . . 263, 292, 526 Art 19(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 Treaty on the Functioning of the European Union TFEU Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403–4 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 413, 420 Art 2(5) . . . . . . . . . . . . . . . . . . . . . 415, 417, 418 Art 2(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415

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TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412, 420 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 Art 3(2) . . . . . . . . . . . . . 406, 407, 408, 410, 411 Art 4 . . . . . . . . . . . . . . . . . . . . 412, 413, 417, 420 Art 4(3) . . . . . . . . . . . . . . . . . . . . . 340, 413, 414 Art 4(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 413, 414 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . 413, 418, 419 Art 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . 412, 416, 420 Art 12 . . . . . . . . . . . . . . . . . . . . . . . 573, 697, 706 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264, 556 Art 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . 184, 391 Art 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 15(3) . . . . . . . . . . . . . . . . 354, 391, 392, 525 Art 18 . . . . . . . . . . . . . . . . . . . . 264, 557–74, 581 Art 19 . . . . . . . . . . . . . . . . . 269, 270, 523, 594–7 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564–74 Art 20(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 566 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564–75 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Art 34 . . . . . . . . . . . . . . . 675, 691, 692, 696, 710 Art 35(3) . . . . . . . . . . . . . . . . . . . . . . . . . 518, 519 Art 36 . . . . . . . . . . . . . . . . . . . 518, 519, 670, 696 Art 39 . . . . . . . . . . . 440, 441, 576, 577, 580, 645 Art 39(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287, 440 Art 40(2) . . . . . . . . . . . . . . . . . . . . . . 576–8, 740 Art 45 . . . . . . . . . . . 547, 549–554, 557, 558, 575 Art 45(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 Art 45(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670 Art 45(4) . . . . . . . . . . . . . . . . . . . . . . . . . 552, 553 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 688 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670, 776 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 559 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670 Art 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670 Arts 67–89 . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 101 . . . . . . . . . . . . . . . . . . . . . . . . . . 375, 378 Art 101(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 Art 101(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 Art 102 . . . . . . . . . . . . . . . . . . . . . . 375, 378, 460 Art 104(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Art 106 . . . . . . . . . . . . . . . . . . 352, 367, 368, 582 Art 106(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352 Art 106(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368 Art 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666 Art 107(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437 Art 107(3)(a) . . . . . . . . . . . . . . . . 437, 440, 449 Art 107(3)(b) . . . . . . . . . . . . . . . . . . . . . 466, 467 Art 107(3)(c) . . . . . . . . . . . . . . . . . . . . . 449, 466 Art 108 . . . . . . . . . . . . . . . . . . . . . . 365, 378, 624 Art 108(2) . . . . . . . . . . . . . . . . . . . . . 29, 291, 365 Art 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 Art 114 . . . . . . 10, 404, 418, 421, 424, 426, 435 Art 114(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369

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Art 121 . . . . . . . . . . . . . . . . . . . . . . 202, 204, 217 Art 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 Art 126(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Art 126(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Art 126(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Art 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 146(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 147 . . . . . . . . . . . . . . . . . . . . . . . . . . 211, 416 Art 148 . . . . . . . . . . . . . . . . . . 202, 211, 217, 321 Art 148(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Art 150 . . . . . . . . . . . . . . . . . . . . . . . . . . 212, 321 Art 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Art 153 . . . . . . . . . . . . . . . . . . . . . . . . . . 242, 416 Art 153(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 Art 153(2) . . . . . . . . . . . . . . . 214, 215, 240, 241 Art 153(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 Art 153(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 583 Art 154 . . . . . . . . . . . . . . . . . . 241, 249, 251, 260 Art 154(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 Art 155 . . . . . . . . . . . . . . . . . . . . 241, 251–6, 510 Art 155(2) . . . . . . . . . . . . . . . . . . . . . . . . 246, 258 Art 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 157 . . . . . . . . . . . . . . 264, 499, 559, 581–94, 678, 679 Art 157(4) . . . . . . . . . . . . . . . . . . . 589, 592, 593 Art 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Art 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 166 . . . . . . . . . . . . . . . . . . . . . . . . . . 417, 562 Art 167 . . . . . . . . . . . . . . . . . . . . . . . . . . 416, 417 Art 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 Art 168(1) . . . . . . . . . . . . . . . . . . . . . . . . 697, 706 Art 168(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 Art 168(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 Art 169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 697 Art 173 . . . . . . . . . . . . . . . . . . . . . . . . . . 416, 417 Art 173(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 91 Art 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Art 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Art 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Art 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art 191 . . . . . . . . . . . . . . . . . . . . . . . . . . 695, 696 Art 191(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 706 Art 194(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 195(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 196(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Art 197(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Art 207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Art 209(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 Art 212(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 Art 216 . . . . . . . . . . . . . . . . . . . . . . 407, 408, 411 Art 227 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800 Art 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801

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Art 228(1) . . . . . . . . . . . . . . . . . . . . . . . . 801, 802 Arts 251–281 . . . . . . . . . . . . . . . . . . . . . . . . . 309 Art 252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Art 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 Art 255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Art 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Art 256(1) . . . . . . . . . . . . . . . . . . . . . . . . 290, 292 Art 256(3) . . . . . . . . . . . . . . . 293, 294, 295, 296 Art 258 . . . . . . . . . . . . . . . . . . 104, 282, 710, 807 Art 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 667 Art 263 . . . 65, 66, 88, 171, 175, 267, 281–3, 290, 293, 340, 368, 428, 431, 458, 526, 728, 758 Art 263(1) . . . 171, 176, 194, 263, 264, 266, 283 Art 263(2) . . . . . . . . . . . 194, 265, 269, 270, 401 Art 263(4) . . . . . . . . . . . . . 268, 309, 342–4, 346, 347, 368, 540, 541 Art 263(5) . . . . . . . . . . . . . . . . . . . . . . . . 176, 283 Art 263(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Art 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . 728–36 Art 265 . . . . . . . . . . . . . . 171, 264, 281, 282, 290 Art 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . 728–36 Art 267 . . . . . . . . . . . . 171, 264, 282, 283, 286, 287, 293, 301, 305, 306, 339, 340, 344, 445, 476, 539, 540, 690, 710, 758 Art 267(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Art 268 . . . . . . . . . . . . . . . . . . . . . . . . . . 290, 754 Art 270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Art 272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Art 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 754 Art 275 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Art 278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 Art 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 Art 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Art 289 . . . . . . . . . . . . . . . . . . . . . . 128, 343, 739 Art 290 . . . . . . . . 128, 129, 131–3, 137–45, 147, 165, 171, 172, 191, 197, 343 Art 290(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Art 290(2) . . . . . . . . . . . . . . . . . . . . . . . . 132, 133 Art 290(3) . . . . . . . . . . . . . . . . . . . . . . . . 128, 343 Art 291 . . . . . . . . 6, 128, 129, 131, 134, 137–45, 171, 172, 291, 343 Art 291(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Art 291(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Art 293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 Art 296 . . . . . . . . . . . . . . . . . . . . . . 370, 371, 380 Art 298 . . . . . . . . . . . . . . . 28, 351, 384, 385, 819 Art 325 . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 652 Art 340 . . . . . . . . . . . . . . . . . . . . . . 281, 755, 784 Art 340(2) . . . . . . . 174, 736, 737, 740, 751, 784 Art 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751 Art 344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494 Art 346 . . . . . . . . . . . . . . . . . . . . . . . . . . 518, 519

Art 352 . . . . . . . . . . . . . . . . 277, 384, 421–4, 435 Art 352(1)–(4) . . . . . . . . . . . . . . . . . . . . . . . . 423 Protocol 1 on the Role of National Parliaments in the European Union . . . . 428 Protocol 2 on the Application of the Principles of Subsidiarity and Proportionality . . . . . . . . . . . . . . . . . . . 427–8 Protocol 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494 Protocol 12 on the Excessive Deficit Procedure, Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

SECONDARY LEGISLATION Regulations Reg 17/62/EEC [1962] OJ L13/204 First Regulation implementing Articles 85 & 86 of the Treaty Art 9(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Arts 10–14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Reg 19/62/EEC [1962] OJ 30/933 on the progressive establishment of a common organisation of the market in cereals Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 115 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 115 Reg 172/67/EEC [1967] OJ 130/2602 on general rules governing the denaturing of wheat and rye of bread making quality . . . . . . . 448 Reg 1009/67EEC [1967] OJ L308/1 on the common organisation of the market in sugar Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 Art 9(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 Art 9(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 Reg 644/68 [1968] OJ L122/3 amending 172/67/ EEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448 Reg 768/68/EEC [1968] OJ L143/12 establishing the general rules for the denaturation of sugar used for animal feed, Art 2 . . . . . . 446 Reg 802/68/EEC [1968] OJ L148/1 on the common definition of the concept of the origin of goods . . . . . . . . . . . . . . . . . . . . . . . . 9 Arts 12–14 . . . . . . . . . . . . . . . . . . . . . . . . . 8, 116 Reg 1612/68 [1968] OJ L257/2 on freedom of movement for workers within the Community [1968] OJ L257/2 . . . . 551, 569 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 Arts 2–4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 Art 7(2)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552

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TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS Reg 729/70/EEC [1970] OJ L94/13 on the financing of the Common Agricultural Policy Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 83 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 83 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 84 Art 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 84, 88 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 84 Reg 974/71/EEC [1971] OJ L106/1 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States . . . . . . . . . . . . . . . . . . . . . . . . . . 447, 450 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 Reg 2707/72/EEC [1972] OJ L291/3 laying down the conditions for applying protective measures for fruit and vegetables . . . . . . 628 Reg 337/75/EEC [1975] OJ L39/1 establishing a European Centre for the Development of Vocational Training . . . . . . . . . . . . . . 13, 156 Reg 1365/75/EEC [1975] OJ L139/1 on the creation of a European Foundation for the Improvement of Living and Working Conditions . . . . . . . . . . . . . . . . . . . . . . 13, 156 Reg 1697/79/EEC [1979] OJ L197/1 on the post­clearance recovery of import duties or export duties which have not been required of the person liable for payment of goods entered for a customs procedure involving the obligation to pay such duties, Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 623 Reg 2052/88/EEC [1988] OJ L185/9 on the tasks of the structural funds and their effectiveness and on co-ordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments . . 11, 30 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 94 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Reg 4253/88/EEC [1988] OJ L374/1 laying down provisions for implementing Regulation (EEC) 2052/88 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94, 102 Art 21(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . 102 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Art 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Art 24(2) . . . . . . . . . . . . . . . . . . . . 102, 106, 107

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Reg 1210/90/EEC [1990] OJ L120/1 on the establishment of the European Environment Agency and the European Environment Information and Observation Network, Art 4 . . . . . . . . . . . . . . . . . . . 13, 17, 156, 737 Reg 1360/90/EEC [1990] OJ L131/1 establishing a European Training Foundation . . . . . . . . . . . . . . . . . . . . . . 17, 156 Reg 2913/92/EEC [1992] OJ L302/1 establishing the Community Customs Code . . . . . . . . . 7 Reg 302/93/EEC [1993] OJ L36/1 on the establishment of a European Centre for Drugs and Drug Addiction . . . . . . . . 17, 156 Reg 2081/93/EEC [1993] OJ L193/5 amending Regulation 2052/88, Art 1 . . . . . . . . . . . . . 93 Reg 2082/93/EEC [1993] OJ L193/20 amending Regulation 4253/88 Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 95, 102 Art 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Reg 2309/93/EEC [1993] OJ L214/1 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products . . . . . . . . . . . . 17, 31, 156 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 165 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Reg 2454/93/EEC [1993] OJ L253/1 laying down provisions for the implementation of Council Regulation (EEC) 2913/92 . . . . . . 7 Reg 40/94/EC [1994] OJ L11/1 on the Community Trademark . . . . . . . . . . . 17, 156 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Art 22(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Art 22(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Art 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Reg 1164/94/EC [1994] OJ L130/1 establishing a Cohesion Fund Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Reg 1681/94/EC [1994] OJ L178/43 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the structural policies and the organization of information systems in this field . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Reg 2062/94/EC [1994] OJ L216/1 establishing a European Agency for Safety and Health at Work . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 156 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 166, 185 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Reg 2100/94/EC [1994] OJ L227/1 on Community Plant Variety Rights . . . . 17, 156

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Reg 2965/94/EC [1994] OJ L314/1 setting up a Translation Centre for Bodies of the European Union . . . . . . . . . . . . . . . . 17, 156 Reg 1287/95/EC [1995] OJ L125/1 amending Regulation (EEC) 729/70 on the financing of the common agricultural policy [1995] OJ L125/1 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Reg 1663/95/EC [1995] OJ L158/6 laying down detailed rules for the application of Council Regulation (EEC) 729/70 regarding the clearance of accounts of the EAGGF Guarantee Section . . . . . . . . . . . . . . . . . . . 85 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 85 Reg 2988/95/EC [1995] OJ L312/1 on the protection of the European Communities’ financial interests . . . . . . . . . . . . . . . . . . . 104 Reg 258/97/EC [1997] OJ L43/1 concerning novel food and novel food ingredients, Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . 706, 710 Reg 515/97/EC [1997] OJ L82/1 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters . . . . . . . . . . . . . . . . . . . 33 Reg 1035/97/EC [1997] OJ L151/1 establishing a European Monitoring Centre on Racism and Xenophobia . . . . . . . . . . . . . . . . . 17, 157 Reg 1466/97/EC [1997] OJ L209/1 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies . . . . . . 208 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 Reg 1467/97/EC [1997] OJ L209/6 on speeding up and clarifying the implementation of the excessive deficit procedure Recital (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Arts 3–6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Arts 11–14 . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Reg 2064/97/EC [1997] OJ L290/1 establishing detailed arrangements for the implementation of Council Regulation (EEC) 4253/88 regards the financial control by Member States of operations co-financed by the Structural Funds . . . . . . . . . . . . . . . . 103, 107 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Art 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Reg 659/1999/EC [1999] OJ L83/1 laying down detailed rules for the application of Article 93 of the Treaty . . . . . . . . . . . . . . . . . . . . . . 28 Reg 1258/1999/EC [1999] OJ L160/103 on the financing of the common agricultural policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Art 7(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Reg 1260/99 [1999] OJ L161/1 laying down general provisions on the Structural Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 95, 101 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Art 7(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Art 11(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Arts 13–19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Art 15(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 18(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 39(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Reg 2454/1999 [1999] OJ L299/1 setting up of a European Agency for Reconstruction . . . . . . . . . . . . . . . . . . 17, 157 Reg 1049/2001/EC [2001] OJ L145/43 regarding public access to European Parliament, Council and Commission documents . . . 51, 184, 390, 392, 394–99, 525 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395 Art 4(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Art 4(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398 Art 4(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Reg 178/2002/EC [2002] OJ L31/1 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety . . . . . . . . . . . . . 157, 717 Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717 Recital 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717 Recital 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717 Recital 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717 Recital 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 718 Recital 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 718 Art 3(10)–(13) . . . . . . . . . . . . . . . . . . . . . . . . 717 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717, 718 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717, 718 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 718 Art 22(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Art 25(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

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TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 26(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 38(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 38(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Reg 1406/2002/EC [2002] OJ L208/1 establishing a European Maritime Safety Agency . . . . . . . . . . . . . . . . . . . . . . . . 157, 185 Art 2(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 10(2)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Reg 1592/2002/EC [2002] OJ L240/1 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Art 38(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Reg 1605/2002 [2002] OJ L248/1 on the Financial Regulation applicable to the General Budget of the European Communities . . . . . . . . . . 22, 28, 53, 56, 188 Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Art 54(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Art 54(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 56(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Reg 2342/2002 [2002] OJ L357/1 laying down detailed rules for the implementation of Council Regulation 1605/2002 . . . . . . . . . 58 Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Reg 2343/2002/EC [2002] OJ L357/72 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) 1605/2002 . . . 188 Reg 1/2003/EC [2003] OJ L1/1on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty . . . 25, 375 Arts 5–7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 378 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377

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Art 27(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 27(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 27(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Reg 58/2003/EC [2003] OJ 2003 L11/1 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes . . . . . . . . . . 26, 29, 62, 161, 737 Recital 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Recital 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Arts 2–5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Arts 8–11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Arts 12–16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Art 16(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Art 22(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Reg 139/2004 [2005] OJ 325/7 . . . . . . . . . . . . . 355 Reg 448/2004/EC [2004] OJ L72/66 on the eligibility of expenditure of operations co-financed by the Structural Funds . . . 108 Reg 460/2004/EC [2004] OJ L77/1 establishing the European Network and Information Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Reg 723/2004/EC [2004] OJ L124/1 amending the Staff Regulations of the officials of the European Communities and the Conditions of Employment of other servants of the European Communities . . . . . . . . . . . . . . . 53 Reg 726/2004 [2004] OJ L136/1 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency . . . . . . . . . . . 156 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 64(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 65(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 66(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Reg 773/2004 [2004] OJ L123/18 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Art 10(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360 Art 14(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376

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Reg 851/2004/EC [2004] OJ L142/1 establishing a European Centre for Disease Prevention and Control . . . . . . . . . . . . . . . . . . . . . . . . 157 Arts 5–10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Art 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Arts 19–20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Reg 881/2004 [2004] OJ L164/1 establishing a European Railway Safety Agency . . . . . . 157 Reg 1653/2004/EC [2004] OJ L297/6 on a standard financial regulation for the executive agencies pursuant to Council Regulation (EC) 58/2003 . . . . . . . . . . . . . . 65 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Reg 2006/2004/EC [2004] OJ L364/1 on cooperation between national authorities responsible for the enforcement of consumer protection laws . . . . . . . . . . 17, 34 Reg 2007/2004/EC [2004] OJ L349/1 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union . . . . . . . . . . . . . . . . . . . . 157 Reg 2230/2004/EC [2004] OJ L379/64 laying down detailed rules for the implementation of EP and Council Regulation (EC) 178/2002 with regard to the networking of organisations operating in the Fields within the EFSA’s Mission . . . . . . . . . . . . . . . . . . 184 Reg 768/2005/EC [2005] OJ L128/1 establishing a Common Fisheries Control Agency . . . . 157 Art 23(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Reg 1055/2005/EC [2005] OJ L174/1 amending Regulation 1466/97 . . . . . . . . . . . . . . . . . . 207 Reg 1056/2005/EC [2005] OJ L174/5 amending Regulation 1467/97 . . . . . . . . . . . . . . . . . . 207 Reg 1112/2005/EC [2005] OJ L184/5 establishing a European agency for safety and health at work . . . . . . . . . . . . . . . . . . . . . . . . . . 166, 185 Art 1(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Reg 1290/2005/EC [2005] OJ L209/1 on the financing of the common agricultural policy . . . . . . . . . . . . . . . . . . . . . . 84 repealed Arts 2–4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Reg 1083/2006/EC [2006] OJ L210/25 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Arts 9–17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Art 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Art 11(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 15(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Arts 25–27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 32(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 97, 101 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 39(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Arts 85–88 . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Arts 91–92 . . . . . . . . . . . . . . . . . . . . . . . 103, 105 Art 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Art 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Reg 1907/2006/EC [2006] OJ L396/1 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Reg 1995/2006 [2006] OJ L390/1 amending Regulation 1605/2002 . . . . . . . . . . . . . . 22, 56 Reg 168/2007/EC [2007] OJ L53/1 establishing a European Union Agency for Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Art 27(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Reg 219/2007/EC [2007] OJ L64/1 . . . . . . . . . . 23 Reg 478/2007 [2007] OJ L111/13 amending Regulation 1605/2002 . . . . . . . . . . . . . . . . . 58 Reg 216/2008 [2008] OJ L79/1 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency . . . . . . . . . . . . . . . . . . . 157, 180, 326 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Art 33(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Arts 40–51 . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Reg 73/2009/EC [2009] OJ L30/16 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation 1782/2003/EC . . . . . . . . . . . . . . . . . . . . . . . 83 Reg 207/2009/EC [2009] OJ L78/1 on the Community trade mark (codified version) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Reg 401/2009/EC [2009] OJ L126/13 on the European Environment Agency and the

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TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS European Environment Information and Observation Network (Codified Version) . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Reg 713/2009/EC [2009] OJ L211/1 establishing an Agency for the Cooperation of Energy Regulators . . . . . . . . . . . . . . . . . . . . . . . . . 157 Reg No 1092/2010/EU [2010] OJ L331/1 on European Union macro-prudential oversight of the financial system and Establishing a European Systemic Risk Board . . . . . . . . . 158 Reg 1093/2010/EU [2010] OJ L331/12 establishing a European Supervisory Authority (European Banking Authority) 131, 158, 208 Recital (23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Art 1(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 10 . . . . . . . . . . . . . . . . . . . . . . . 169, 187, 191 Art 10(1)(3) . . . . . . . . . . . . . . . . . . . . . . 191, 194 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 17(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 18(3)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 19(3)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 40(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Arts 40–49 . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Art 43(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 45(2) . . . . . . . . . . . . . . . . . . . . . . . . . 180, 181 Art 81(1)(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Reg 1094/2010/EU [2010] OJ L331/48 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) . . . . . . . . 131, 158, 208 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Reg 1095/2010/EU establishing a European Supervisory Authority (European Securities and Markets Authority) . . . . . 131, 158, 208 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 45(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Reg 182/2011/EU [2011] OJ L55/13 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 3(2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 5(1)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

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Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Reg 492/2011/EU OJ L141/1 on freedom of movement of workers in the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Reg 1173/2011/EU [2011] OJ L306/1 on the effective enforcement of budgetary surveillance in the euro area . . . . . . . . . . 208 Reg 1174/2011/EU [2011] OJ L306/8 on enforcement measures to correct macroeconomic imbalances in the euro area . . . . . 209 Reg 1175/2011/EU [2011] OJ L306/12 amending Regulation (EC) No 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies . 208 Reg 1176/2011/EU [2011] OJ L306/25 on the prevention and correction of macroeconomic imbalances . . . . . . . . . . . . . . . . . . . 209 Reg 1177/2011/EU [2011] OJ L306/33 amending Regulation (EC) No 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure . . . . . . . . . . . . 208 Reg 236/2012 [2012] OJ L86/1 on short selling and certain aspects of credit default swap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 172 Reg 528/2012/EU Art 80(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Reg 966/2012/EU [2012] OJ L298/1 Financial Regulation 2012 (repealing Reg 1605/2002) . . . . . . . . . . . . . . . . . . . 53, 56, 58, 188 Art 58(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . 58, 62 Art 58(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . 58, 74 Art 58(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 64 Arts 58–63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Art 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 60 Art 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Art 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Art 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Art 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Arts 71–75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Arts 84–86 . . . . . . . . . . . . . . . . . . . . . . . . . 61, 62 Arts 87–89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Arts 98–100 . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Arts 101–114 . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Reg 472/2013/EU [2013] OJ L140/1 on the strengthening of economic and budgetary surveillance of Member States experiencing or threatened with serious difficulties with respect to their fnancial stability in the euro area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

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Reg 473/2013/EU [2013] OJ L140/11 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area . . . . . . . . 209 Reg 526/2013/EU [2013] OJ L165/41 concerning the European Union Agency for Network and Information Security (ENISA) . . . . 157 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Reg 1271/2013/EU [2013] OJ L328/42 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 . . . . . . . . . . . . . . . . . . . . . . . . 188 Arts 5–28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 189 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Art 44(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Arts 44–46 . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Art 45(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Art 46(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Arts 82–84 . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Arts 107–111 . . . . . . . . . . . . . . . . . . . . . . . . . 189 Art 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Reg 1303/2013/EU [2013] OJ L347/320 on common provisions on the European Regional Development Fund . . . . . . . . . . . 97 Arts 9–10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Arts 14–18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Arts 26–30 . . . . . . . . . . . . . . . . . . . . . . . . 98, 101 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Arts 72–74 . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Art 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Art 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Arts 110–111 . . . . . . . . . . . . . . . . . . . . . . . . . 104 Art 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Arts 122–127 . . . . . . . . . . . . . . . . . . . . . . . . . 104 Arts 142–143 . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Reg 1306/2013/EU [2013] OJ L347/549 on financing, management and monitoring of the common agricultural policy . . . . . . . . 84 Reg 1307/2013/EU rules for direct payments to farmers [2013] OJ L347/608 . . . . . . . . . . . 83

Reg 2015/1589/EU [2015] OJ L248/9 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union . . . . . . . . . . . . . . . 396 Recital (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Recital (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 24(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380 Reg 2015/2219/EU [2015] OJ L319/1 on the European Union Agency for Law Enforcement Training (CEPOL) . . . . . . . 158 Reg 2015/2422/EU [2015] OJ L341/14 amending Protocol No 3 on the Statute of the Court of Justice of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Reg 2016/794/EU [2016] OJ L135/53 on the European Union Agency for Law Enforcement Cooperation (Europol) . . . 158 Reg 2016/796/EU [2016] OJ L138/1 on the European Union Agency for Railways . . 157 Art 52(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 54(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Reg 2016/1192/EU [2016] OJ L200/137 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants . . . . . . 298 Reg 2016/1624/EU [2016] OJ L251/1 on the European Border and Coast Guard . . . . 157 Reg 2017/1001/EU [2017] OJ L154/1 on the European Union trade mark . . . . . . . . . . 156 Arts 66–73 . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Directives Dir 65/65/EEC [1965] OJ L22/369 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products, Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704 Dir 75/117/EEC [1975] OJ L45/19 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585 Dir 76/207/EEC [1976] OJ L39/40 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training

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TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS and promotion, and working conditions . . . . . . . . . 589, 590, 675, 762, 767 Art 2(2)–(4) . . . . . . . . . . . . . . . . . . . . . . 676, 677 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . 590–3, 677 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 677 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764 Dir 76/778/EEC [1976] OJ L262/169 on the approximation of the laws of the Member States relating to cosmetic products . . . . 681 Dir 79/7/EEC [1979] OJ L6/24 on the progressive implementation of the principle of equal treatment for men and women in matters of social security . . . . . . . . . . . . . . . . . . . . . . 765 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Dir 80/987/EEC [1980] OJ L283/23 on the approximation of the laws of the Member States relating to protection of employees in the event of the insolvency of their employer . . . . . . . . . . . . . . . . . . . . . . . . . . . 775 Dir 90/364/EEC [1990] OJ L180/26 on the right of residence . . . . . . . . . . . . . . . . . . . . . . . . 567 Dir 91/271/EEC [1991] OJ L135/40 concerning urban waste-water treatment . . . . . . . . . . 707 Dir 92/43/EEC [1992] OJ L206/7 on the conservation of natural habitats and of wild fauna and flora, Art 6(3) . . . . . . . . . 708, 709 Dir 93/13/EEC [1993] OJ L95/29 on unfair terms in consumer contracts, Art 10 . . . . . . 16, 772 Dir 93/36/EEC [1993] OJ L199/1 coordinating procedures for the award of public supply contracts [1993] OJ L199/1 . . . . . . . . . . . 769 Dir 93/96/EEC [1993] OJ L317/59 on the right of residence for students . . . . . . . . . . . . . . . . 569 Dir 96/34/EC [1996] OJ L145/4 on the Framework Agreement on Parental Leave . . . . . . . . . . . . . . . . . . . . . . . 20, 242, 248 Dir 96/61/EC [1996] OJ L257/26 concerning integrated pollution prevention and control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Art 15a . . . . . . . . . . . . . . . . . . . . . . . . . . . 323, 328 Dir 97/80/EC [1998] OJ L14/6 on the burden of proof in cases of discrimination based on sex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587 Dir 97/81/EC [1998] OJ L14/9 annex framework agreement on part-time work . . . . . . 20, 242 Dir 98/500/EC [1998] OJ L225/27 on the establishment of Sectoral Dialogue Committees promoting the Dialogue between the social partners at European level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 Dir 1999/44/EC [1999] OJ L171/12 on certain aspects of the sale of consumer goods and associated guarantees, Art 11 . . . . . . . . . . 16

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Dir 1999/70/EC [1999] OJ L175/43 concerning the Framework Agreement on Fixed-Time Work . . . . . . . . . . . . . . . . . . . . . . . 20, 242, 773 Dir 2000/31/EC [2000] OJ L178/1 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, Arts 16–20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Dir 2000/43/EC [2000] OJ L180/22 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Arts 2–5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Arts 9–13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Dir 2000/78/EC [2000] OJ L303/16 establishing a general framework for equal treatment in employment and occupation . . . . . . . . . . 595 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Dir 2000/79/EC [2000] OJ L302/57 concerning the European Agreement on the organisation of working time of mobile workers in civil aviation concluded by the AEA, the ETF, the ECA, the ERA and the IACA . . 243 Dir 2001/83/EC [2001] OJ L311/67 on the Community code relating to medicinal products for human use, Art 28 . . . . . . . . 31 Dir 2002/21/EC [2002] OJ L108/33 Framework Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Dir 2002/22/EC [2002] OJ L108/51 Universal Service Directive . . . . . . . . . . . . . . . . . . . . . 24 Dir 2002/73/EC [2002] OJ L269/15 amending Council Directive 76/207/EEC . . . . . . . . 764 Dir 2003/35/EC [2003] OJ L156/17 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Art 4(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 Dir 2004/38/EC [2004] OJ L158/77 Citizenship Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568

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Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Dir 2005/29/EC [2005] OJ L149/22 concerning unfair business-to-consumer commercial practices in the internal market, Arts 11–13 . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Dir 2006/54/EC [2006] OJ L204/23 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) . . . . . . . . . . . . . . 585, 678 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589, 593 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589 Dir 2008/1/EC [2008] OJ L24/8 concerning integrated pollution prevention and control (Codified Version) . . . . . . . . . . . . . . . . . . 323 Dir 2008/48/EC [2008] OJ L133/66 on credit agreements for consumers, Arts 22–24 . . 16 Dir 2008/50/EC [2008] OJ L152/1 Air Quality Directive Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 25(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Dir 2009/13/EC [2009] OJ L124/30 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC . . . . . . . . . . . . . . . . . . . . . . . . 242 Dir 2009/72/EC [2009] OJ L211/55 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC . . . . . . . . . . . . . . . . . . . . . . . . . 31 Dir 2009/140 [2009] OJ L337/37 amending Directive 2002/21/EC . . . . . . . . . . . . . . . . 323 Dir 2010/32/EU [2010] OJ L134/66 implementing the Framework Agreement on prevention from sharp injuries in the hospital and healthcare sector concluded by HOSPEEM and EPSU . . . . . . . . . . . . . 243 Dir 2011/85/EU [2011] OJ L306/41 on requirements for budgetary frameworks of the Member States . . . . . . . . . . . . . . . . . . . . . . 208 Decisions

Dec 87/373/EEC [1987] OJ L197/33 laying down the procedures for the exercise of implementing powers conferred on the Commission . . . . . . . . . . . . . . . . . . . . . 10, 118 Dec 88/591/ECSC [1988] OJ L319/1 establishing a Court of First Instance of the European Communities . . . . . . . . . . . . . . . . . . . . . . . 281

Dec 89/46/EEC [1989] OJ L17/53 on an action programme for European Tourism Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Dec 92/421/EEC [1992] OJ L231/26 on a Community action plan to assist tourism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Dec 93/350/ECSC [1993] OJ L144/21 amending Council Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities . . . . . . . . . . . . . . . . . . . . . . . 281 Dec 93/731/EC [1993] OJ L340/43 on public access to Council documents . . . . . . . . . 390 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656 Dec 94/90/EC [1994] OJ L46/58 on public access to Commission documents . . . . . . . . . . . 390 Dec 94/149/ECSC [1994] OJ L66/29 amending Council Decision 93/350 . . . . . . . . . . . . . 281 Dec 94/442/EC [1994] OJ L182/45 setting up a conciliation procedure in the context of the clearance of accounts of the EAGGF Guarantee Section . . . . . . . . . . . . . . . . . . . . 88 Dec 94/819/EC [1994] OJ L340/8 establishing an action programme for the implementation of a European Community vocational training policy . . . . . . . . . . . . . . . . . . . . . . . 40 Dec 1999/24/EC [1999] OJ L7/28 adopting a multi-annual programme of technological actions promoting the clean and efficient use of solid fuels . . . . . . . . . . . . . . . . . . . . . 68 Dec 99/468/EC [1999] OJ L184/23 laying down the procedures for the exercise of implementing powers conferred on the Commission . . . . . . . . . . . . . . . 120, 121, 127 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 5(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 5a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 7(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Dec 2000/820/JHA [2000] OJ L336/1 establishing a European Police College (Cepol) . . . . . 158 Dec 2001/470/EC [2001] OJ L174/25 establishing a European Judicial Network in civil and commercial matters . . . . . . . . . . . . . . . . . . 34 Dec 2001/937/EC [2001] OJ L345/94 amending its Rules of Procedure . . . . . . . . . . . . . . . . 392 Dec 2002/187/JHA [2002] OJ L63/1 setting up Eurojust with a view to reinforcing the fight against serious crime . . . . . . . . . . . . . . . . 159 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Dec 2002/682/EC [2002] OJ L230/7 adopting the Council’s Rules of Procedure . . . . . . . . . . 392

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TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS Dec 2003/174/EC [2003] OJ L70/31establishing a Tripartite Social Summit for Growth and Employment . . . . . . . . . . . . . . . . . . . . . . . 244 Dec 2003/578/EC [2003] OJ L197/13 on guidelines for the employment policies of the Member States . . . . . . . . . . . . . . . . . . . 212 Dec 2003/1230/EC [2003] OJ L176/29 . 68, 70, 71 Dec 2003/2317/EC [2003] OJ L345/1 establishing a programme for the enhancement of quality in higher education and the promotion of inter-cultural understanding through co-operation with third countries (Erasmus Mundus) (2004 to 2008) . . . . . . 73 Dec 2003/2318/EC [2003] OJ L345/9 adopting a multi-annual Programme (2004 to 2006) for the effective integration of information and communication technologies (ICT) in education and training systems in Europe Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72–3 Dec 2004/20/EC [2004] OJ L5/85 setting up an Executive Agency to manage Community action in the feld of energy . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 71 Arts 3–5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Arts 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Arts 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Dec 2004/100/EC [2004] OJ L30/6 establishing a Community action programme to promote active European citizenship . . . . . . . . . . . . 72 Dec 2004/407/EC [2004] OJ L132/5 amending Articles 51 and 54 of the Protocol of the Statute of the Court of Justice . . . . . . . . . 290 Dec 2004/2241/EC [2004] OJ L390/6 on a single Community framework for the transparency of qualifications (Europass) . . . . . . 389 Dec 2005/56/EC [2005] OJ L24/35 setting up the Education, Audiovisual and Culture Executive Agency for the management of Community action in the fields of education, audiovisual and culture in application of Council Regulation (EC) 58/2003 . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 71

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Dec 2006/512/EC [2006] OJ L200/11 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers by the Commission . . . . . . . . . . . 121 Dec 2006/1982/EC [2006] OJ L412/1 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities . . . . . . . . . . . . . . . . . . . . . . . . 15 Dec 2007/1350/EC [2007] OJ L301/3 establishing a second programme of Community action in the field of health Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Dec 2008/1298/EC [2008] OJ L340/83 establishing the Erasmus Mundus 2009–2013 action programme for the enhancement of quality in higher education and the promotion of intercultural understanding through cooperation with third countries . . . . . . . 73 Dec 2009/336/EC [2009] OJ L101/26 setting up the Education, Audiovisual and Culture Executive Agency for the management of Community action in the fields of education, audiovisual and culture . . . . . . 71 Dec 2009/371/JHA OJ 121/37 establishing a European Police Office (Europol) . . . . . . 158 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Arts 10–13 . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Dec 2013/776/EU [2013] OJ L343/46 . . . . . . . . 71 Dec 2014/401/CFSP [2014] OJ L188/73 on the European Union Satellite Centre . . . . . . 158 Dec 2015/773/EU [2015] OJ L121/16 establishing the Social Protection Committee and repealing Decision 2004/689/EC . . . . . . 215 Dec 2016/1859/EU [2016] OJ L284/27 on the Tripartite Social Summit for Growth and Employment and repealing Decision 2003/174/EC . . . . . . . . . . . . . . . . . . . . . . . 244

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ABBREVIATIONS AAR Annual Activity Report ABM activity-based management ACER Agency for Cooperation of Energy Regulators ACT advance corporation tax AFSJ Area of Freedom, Security and Justice AMP Annual Management Plan APA Administrative Procedure Act 1946 (US) BEPG broad economic policy guideline BoA board of appeal CAP Common Agricultural Policy CdT Translation Centre for Bodies of the European Union Cedefop European Centre for the Development of Vocational Training CEEP European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest CEN European Committee for Standardization CENELEC European Committee for Electrotechnical Standardization CF Cohesion Fund CFCA Community Fisheries Control Agency CFI Court of First Instance CFSP Common Foreign and Security Policy CHAFEA Executive Agency for Consumers, Health, Education and Food CJEU Court of Justice of the European Union CPMP Committee for Proprietary Medicinal Products CPVO Community Plant Variety Office CRD comment response document CSF Community Support Framework CT Constitutional Treaty DG Directorate-General EACEA Education, Audiovisual and Culture Executive Agency EACI Executive Agency for Competitiveness and Innovation EAFRD European Agricultural Fund for Rural Development EAGF European Agricultural Guarantee Fund EAGGF European Agricultural Guidance and Guarantee Fund EAHC Executive Agency for Health and Consumers EAR European Agency for Reconstruction EASA European Aviation Safety Agency EASME Executive Agency for Small and Medium-Sized Enterprises EAW European Arrest Warrant EBA European Banking Authority EC European Community ECB European Central Bank

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ECC-Net European Consumer Centres Network ECDC European Centre for Disease Prevention and Control ECHA European Chemicals Agency ECHO European Community Humanitarian Assistance Office ECHR European Convention on Human Rights ECJ European Court of Justice ECOFIN Economic and Financial Affairs Council ECOSOC European Economic and Social Committee ECSC European Coal and Steel Community ECtHR European Court of Human Rights EDA European Defence Agency EEA European Environment Agency EEC European Economic Community EES European Employment Strategy EFSA European Food Safety Authority EG employment guidelines Eionet European Environment Information and Observation Network EIOPA European Insurance and Occupational Pensions Authority EMA European Medicines Agency EMCDDA European Monitoring Centre for Drugs and Drug Addiction EMEA European Medicines Evaluation Agency EMSA European Maritime Safety Authority EMU Economic and Monetary Union ENISA European Network and Information Security Agency EPC European Political Community ERA European Railway Agency ERCEA European Research Council Executive Agency ERDF European Regional Development Fund ESA European Supervisory Authority ESF European Social Fund ESM European Stability Mechanism ESMA European Securities and Markets Authority ESRB European Systemic Risk Board ETF European Training Foundation ETUC European Trade Union Confederation EU European Union EUISS European Institute for Security Studies EUMC European Monitoring Centre for Racism and Xenophobia EU-OSHA European Agency for Health and Safety at Work Eurofound European Foundation for the Improvement of Living and Working Conditions EUSC European Union Satellite Centre FP7 7th multi-annual programme FRA European Union Agency for Fundamental Rights Frontex European Border and Coast Guard Agency GATT General Agreement on Tariffs and Trade

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ABBREVIATIONS GC GDP IGC IIWG IPM INEA JHA MCA MEP MTO NAP NCA NGO NSRF OFT OHIM OLAF OMC OSHA PJCC REA SCAN SEA SGP SRM TAO TEU TFEU TFRA TSCG UCLAF UEAPME UNICE WTO

General Court gross domestic product Intergovernmental Conference inter-institutional working group Interactive Policy Making Executive Agency for Innovation and Networks Justice and Home Affairs monetary compensation amount Member of the European Parliament medium-term budgetary objective national action plan national competition authority non-governmental organization National Strategic Reference Framework Office of Fair Trading Office for Harmonization in the Internal Market European Anti-Fraud Office Open Method of Coordination European Agency for Safety and Health at Work Police and Judicial Cooperation in Criminal Matters Research Executive Agency Scientific Committee for Animal Nutrition Single European Act 1986 Stability and Growth Pact Single Resolution Mechanism technical assistance office Treaty on European Union Treaty on the Functioning of the European Union Task Force for Administrative Reform Treaty on Stability, Coordination and Governance Unité de coordination de lutte anti-fraude European Association of Craft, Small and Medium-Sized Enterprises Union of Industrial and Employers’ Confederations of Europe World Trade Organization

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PART I

ADMINISTRATION AND LAW

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1 History and Typology 1 Introduction This book is concerned with EU administrative law, which includes analysis of the main forms of administration through which policy is delivered, as well as the ­principles of judicial review. This is the rationale for the heading ‘Administration and Law’, which covers Chapters 1–8. The starting point in each chapter is to understand the particular form of EU administration, and appreciate the relevant political and legal issues. The chapters thereafter deal with ‘Law and Administration’, where the ­primary focus is on the principles of judicial review as they are applied to EU administration and national administration when it falls within the ambit of EU law. It is fitting, therefore, to begin with an understanding of the history and typology of EU administration. There is a rich and growing body of literature dealing with the nature of EU administration.1 The present analysis starts by considering the evolution 1  S Cassese, ‘Il sistema amministrativo europeo e la sua evoluzione’ (1991) Rivista Trimestrale di Diritto Pubblico 769; C Franchini, ‘L’impatto dell’integrazione comunitaria sulle relazioni al vertice dell’amministrazione. Poteri governativi e poteri amministrativi’ (1991) Rivista Trimestrale di Diritto Pubblico 775; E SchmidtAßmann, ‘Verwaltungskooperation und Verwaltungskooperationsrecht in der Europäischen Gemeinschaft’ (1996) Europarecht 270; S Cassese, ‘La signoria comunitaria sul diritto amministrativo’ (2002) Rivista Italiana di Diritto Pubblico Comunitario 291; E Chiti and C Franchini, L’Integrazione Amministrativa Europea (Il Mulino, 2003); C Franchini, ‘I principi applicabili ai procedimenti amministrativi europei’ (2003) Rivista Italiana di Diritto Pubblico Comunitario 1037; S Cassese, ‘Diritto amministrativo europeo e diritto amministrativo nazionale: signoria o integrazione?’ (2004) Rivista Italiana di Diritto Pubblico Comunitario 1135; S Cassese, ‘European Administrative Proceedings’ (2004) 68 LCP 21; E Chiti, ‘Forms of European Administrative Action’ (2004) 68 LCP 37; G della Cananea, ‘The European Union’s Mixed Administrative Proceedings’ (2004) 68 LCP 197; C Franchini, ‘European Principles Governing National Administrative Proceedings’ (2004) 68 LCP 183; E Chiti, ‘Administrative Proceedings involving European Agencies’ (2004) 68 LCP 219; M Egeberg (ed), Multilevel Union Administration: The Transformation of Executive Politics in Europe (Palgrave Macmillan, 2006); S Cassese, ‘Diritto amministrativo comunitario e diritti amministrativi nazionali’ in M Chiti and G Greco (eds), Tratatto di diritto amministrativo europeo (Giuffrè, 2007) Vol I, 1–13; H Hofmann and A Türk, ‘The Development of Integrated Administration in the EU and its Consequences’ (2007) 13 ELJ 253; G della Cananea (ed), Diritto amministrativo europeo: principi e istituti (Giuffrè, 2nd edn, 2008); D Curtin and M Egeberg (eds), Towards a New Executive Order in Europe? (2008) 31(4) West European Politics; D Curtin, Executive Power of the European Union: Law, Practices, and the Living Constitution (Oxford University Press, 2009); G della Cananea, Diritto amministrativo europeo: principi ed istituti (Giuffrè, 3rd edn, 2011); H Hofmann, G Rowe, and A Türk, Administrative Law and Policy of the European Union (Oxford University Press, 2011); C Harlow, ‘Three Phases in the Evolution of EU Administrative Law’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 2nd edn, 2011); E Schmidt-Aßmann, ‘Introduction: European

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of EU administration. The focus then shifts to typology, and the features that distinguish different types of EU administration. It would be impossible within this chapter to chart the administrative regime for all areas of EU law. Nor would such an exercise be especially fruitful. The objective is rather to analyse the evolution of EU administration by considering the principal stages of its development.2 The ensuing analysis takes as its ‘staging posts’ the original Rome Treaty and later Treaty amendments, and considers the evolution of EU administration in each of these periods.

2  The Rome Treaty and the Early Years: The Origins of Centralized and Shared Administration and Comitology It is axiomatic that Community law had to be implemented and applied. This obvious fact was not lost on the founders of the Rome Treaty, but it nonetheless contained relatively little detail as to how this was to be accomplished. The primary Treaty, and regulations made thereunder in the early years of the EEC, laid the foundations for the pattern of Community centralized and shared administration that developed t­ hereafter.

(A)  The Rome Treaty In terms of the primary Treaty, the first indent of Article 155 EEC instructed the Commission to ensure that the provisions of the Treaty and the measures taken by the  institutions pursuant thereto were applied, while the third indent accorded the Commission its own power of decision in the manner provided for in the Treaty. Article 155 EEC thus accorded the primary responsibility for the application and implementation of EEC law to the Commission, while providing little in the way of detail as to how this should be done. It is important to stress the breadth of Article 155 EEC, more especially the first indent. It is arguable that the Treaty could have been interpreted to vest the Commission Composite Administration and the Role of European Administrative Law’ in O Jansen and B SchöndorfHaubold (eds), The European Composite Administration (Intersentia, 2011) Ch 1; R Seerden (ed), Administrative Law of the European Union, its Member States and the United States (Intersentia, 2012); C Harlow and R Rawlings, Process and Procedure in EU Administration (Hart, 2014); J-B Auby and J Dutheil de la Rochère (eds), Traité de droit administratif européen (Bruylant, 2nd edn, 2014); P Birkinshaw, European Public Law (Wolters Kluwer, 2nd edn, 2014); M Chiti (ed), Diritto Amministrativo Europeo (Giuffrè, 2013); L de Lucia and B Marchetti (eds), L’amministrazione europea e le sue regole (Il Mulino, 2015); C Harlow, P Leino, and G della Cananea (eds), Research Handbook on EU Administrative Law (Edward Elgar, 2017); Symposium of articles in (2017) 2 Rivista Italiana di Diritto Pubblico Communitario; S Alonso de Leon, Composite Administrative Procedures in the European Union (Iustel, 2017). 2  See in particular, Chiti and Franchini, L’Integrazione Amministrativa Europea (n 1).

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with power to engage directly in the administration of Community policy within the Member States, through the establishment of Community agencies in each Member State to implement Community regulations. This was more especially so given that the operative part of Article 155 included implementation of measures adopted by the Community institutions, thereby vesting the Commission with the power and duty to ensure the application of the plethora of regulatory measures that constituted the Community’s principal output. The fact that it did not do so was because of a conjunction of the practical and the normative. In practical terms, it rapidly became clear that working with and through Member State administrations was the optimal method of implementing EEC policy, more especially given the limited manpower resources within the Commission itself. The nature of the relationship with Member State administrations varied depending upon the subject matter, as the following discussion makes clear. In normative terms, the Treaty framers’ preference was for a concept of executive federalism that entailed limited power for the Commission to engage in direct administrative action, the assumption being that Member States had the principal responsibility for implementation of EU law, including the administration thereof.3 This normative schema was in turn reinforced through ECJ rulings that emphasized the separation between the EU and national administration.4 This vision was further reinforced in Article 291 TFEU, which embodies the assumption that Member States have responsibility for implementation of EU law, except where uniform conditions for implementation are required. The very meaning of this concept of executive federalism is, however, less certain and more problematic than is commonly imagined, even more so when it is depicted as a constitutional precept. This is in part because it did not fit with the pattern of Community legislation that developed thereafter, and in part because of normative ambiguities that inhere in the meaning of the concept.5 The pattern of EU administration that developed over time varied, as the subsequent discussion will reveal. A common theme that recurs throughout is, nonetheless, the interrelationship between national and EU administration in the delivery of Community/EU policy. Thus, while the initial model of executive federalism may well have been predicated on assumptions concerning the separation and divisibility  between national and EU administration, the practical reality as embodied in Community regulatory schema across a variety of areas, was for administration to be shared or composite, in the sense that national and EU administration were accorded legal and practical responsibilities for the discharge of the particular regulatory scheme.

3  F Brito Bastos, ‘Beyond Executive Federalism, the Judicial Crafting of the Law of Composite Administrative Decision-Making’, PhD Thesis, EUI (2018) Ch 2. 4  Bastos (n 3) Ch 2; Case 6/60 Humblet, EU:C:1960:48; Cases 205–215/82 Deutsche Milchkontor, EU:C:1983:233, [17]; Case T-54/96 Oleifici Italiani, EU:T:1998:204, [51]–[57]. 5  P Craig, ‘Executive Federalism and the EU: Concept, Meaning and Application’, forthcoming; Leon (n 1) Ch 2.

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(B) Competition: Centralized Administration, Limited Parallelism, and Liaison Articles 85 and 86 EEC contained the substantive rules of competition law for cartels and firms in a dominant position respectively. The Council was obliged within three years of the entry into force of the Treaty to adopt regulations or directives to ensure the application of Articles 85 and 86.6 Pending the entry into force of such measures the Member States retained the power to rule on cartels and dominant positions in accord with their own law and in accord with Articles 85 and 86.7 The Commission was, nonetheless, instructed to apply Articles 85 and 86 as soon as it took office and to cooperate with the Member States in the investigation of matters covered by these Articles. Regulation 17 was duly enacted in 1962.8 The Regulation established the regime of notification, as qualified by negative clearance, and accorded the Commission exclusive power to adjudicate on Article 85(3) EEC.9 This regime remained largely unchanged until the reforms of the new millennium.10 The administration of competition law is sometimes regarded as a paradigm of centralized administration, in the sense that the Commission was empowered to determine infringements of Articles 85 and 86, and more generally to develop the precepts of competition law. This is true, and it warrants the appellation of centralized administration to this aspect of Community policy. It nonetheless only captures part of the original schema embodied in Regulation 17. The pattern of administration established under Regulation 17 was more complex and interesting in two respects. The competition authorities of the Member States retained a limited parallel administrative competence to adjudicate on Articles 85(1) and 86. Thus provided that the Commission had not initiated any procedure relating to negative clearance, condemnation of the cartel, or exemption, the Member States remained competent to apply Articles 85(1) and 86.11 This was important since it quickly became apparent that the Commission could not cope with all notifications of cartels even from the original six Member States. Thus, public enforcement of EEC competition law by the Commission was complemented by public enforcement through national competition authorities. Empowering Member State authorities to administer Community law precepts in order better to ensure its overall efficacy has become an enduring feature of Community administration. Regulation 17 also provided for liaison and assistance between Community and Member State administrations. There were various facets of this relationship. Thus Regulation 17 provided for information flows between the Commission and Member 6  Art 87 EEC.    7  Art 88 EEC. 8  EEC Council Regulation No 17, First Regulation implementing Articles 85 and 86 of the Treaty [1962] OJ L13/204. 9  Art 85(3) allowed for the exemption of cartels that were within Art 85(1). 10  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1. 11  EEC Council Regulation No 17 (n 8) Art 9(3).

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States concerning notifications and ongoing Commission investigations, and for an Advisory Committee on Restrictive Practices and Monopolies composed of national representatives competent in the matter of restrictive practices and monopolies, which was consulted prior to the taking of any Commission decision concerning Articles 85 and 86.12 Regulation 17 also made provision for Commission access to information from governments, competent authorities of the Member States and from undertakings and associations of undertakings.13 The competent authorities of the Member States were required, at the Commission’s request, to undertake the investigations which the Commission considered to be necessary for the purposes of proving an infringement of Articles 85 and 86. Thus while the Commission was given its own extensive powers to conduct investigations into companies within Member States, it could call on Member State authorities for assistance in this regard.14

(C)  Agriculture: Shared Administration and the Birth of Comitology Shared administration has been central to the pattern of Community administration ever since the inception of the EEC. It was the administrative mode used for issues such as customs, with Community legislation being applied by national customs authorities.15 It was also the administrative technique used for the Common Agricultural Policy (CAP), the Treaty foundations of which have not altered in substance since the inception of the Community. The objectives of the CAP were originally laid down in Article 39(1) EEC. They were: (a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilization of the factors of production, in particular labour; (b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilize markets; (d) to assure the availability of supplies; (e) to ensure that supplies reach consumers at reasonable prices. It is clear that these objectives are set out at a high level of generality, and that they can conflict. Decision-making in this area has, therefore, always necessitated a balancing of  the factors listed in Article 39(1) EEC, and the Council was accorded power, on a  proposal from the Commission, to make regulations, directives, and decisions to this end.16 12  Ibid Art 10. 13  Ibid Art 11. 14  Ibid Arts 13, 14. 15  Council Regulation (EEC) 2913/92 of 12 October 1992 establishing the Community Customs Code [1992] OJ L302/1; Commission Regulation (EEC) 2454/93 of 2 July 1993 laying down provisions for the ­implementation of Council Regulation (EEC) 2913/92 establishing the Community Customs Code [1993] OJ L253/1. There have been many subsequent amendments. 16  Art 43(2) EEC.

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The principal focus of CAP policy for many years was on price support.17 The Council established common prices for most agricultural goods. There was a target price, this being the price that it was hoped farmers would be able to obtain on the open market. There was an intervention price, which was the price at which the Commission would buy up produce from the market. There was also a threshold price, this being the price to which imports were raised when world prices were less than those prevailing in the EC. The price support system proved very costly for the Community, consuming the largest share of the Community’s budget. The Community therefore adopted a variety of measures to ameliorate the consequences of the CAP price support regime. Quotas and the like were introduced to reduce the impact of the system. The degree of price support for particular agricultural goods was reduced. Farmers were encouraged to set aside certain farmland and hence reduce production. There has more recently been a shift from price support to income support. We are, however, concerned here with the pattern of administration under the CAP and what it tells us more generally about the interrelationship between Community and national administration. It is significant in two respects: it was the early paradigm for shared administration, and it was the birthplace of Comitology. These will be ­considered in turn. The CAP was an early paradigm for shared administration: the Commission and the  Member States had distinct administrative tasks, which were nonetheless interdependent, and were set down in legislation and where both had to discharge their respective tasks for the Community policy to be implemented successfully.18 Thus, the administration of the CAP was ‘shared’, since the various forms of price support payments were administered jointly by the Commission and the Member States.19 This was done initially through the European Agricultural Guidance and Guarantee Fund (EAGGF). The main enabling provision was Regulation 729/70.20 The Member States designated the bodies within their countries that would make the payments covered by the Guarantee section,21 and the Commission would make the funds available to the Member States for disbursement by those bodies.22 The Member States were under an obligation to take the necessary measures to satisfy themselves that the transactions financed by the Fund were carried out correctly; to prevent and deal with irregularities; and to recover sums lost as a result of irregularities or negligence.23 However, in the absence of total recovery, the financial consequences of irregularities 17  W Grant, The Common Agricultural Policy (Macmillan, 1997); R Fennell, The Common Agricultural Policy: Continuity and Change (Clarendon Press, 1997); J McMahon, Law of the Common Agricultural Policy (Longman, 2000); M Cardwell, The European Model of Agriculture (Oxford University Press, 2004). 18 Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999) Vol I, [3.2.2]. 19  Ibid [3.6.3]. 20  Council Regulation 729/70/EEC on the financing of the Common Agricultural Policy [1970] OJ L94/13. 21  Ibid Art 4(1). 22  Ibid Art 4(2). 23  Reg 729/70 (n 20) Art 8(1).

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or negligence were borne by the Community, with the exception of the consequences of irregularities or negligence attributable to administrative bodies of the Member States.24 The Member States and the Commission had the power to carry out inspections to ensure the probity of the transactions financed by the Fund.25 In addition to the provisions of Regulation 729/70, the protection of the Community Budget was to be secured through the system of clearance of accounts. The difficulties with this regime of shared administration are not our immediate concern.26 What is apposite is the way in which the CAP exemplified the regime of shared administration that has since been adopted in other areas, as will be seen later. The rationale for this form of administration was not difficult to discern. The price ­support regime required multiple complex payments to farmers throughout the Community. It could not conceivably be undertaken by the Commission itself. The Commission therefore operated by and through national bureaucracies, which often established a specialist national agency to discharge the duties. The very fact that the Member States’ duties were formally enshrined in Community regulations served to sharpen the duality of the responsibility for implementation of the policy. The CAP is also of more general significance in relation to the pattern of Community administration because it gave birth to Comitology.27 It rapidly became clear that the administration of the CAP would require the deployment of detailed rules in everchanging market circumstances. Recourse to primary legislation on all such occasions was impracticable. It was equally apparent that the Member States were wary of according the Commission a blank cheque over the making of implementing rules, especially given that power once delegated without encumbrance would generate legally binding rules without further possibility of Council oversight. This wariness was heightened by tensions between the Council and the Commission in the mid-1960s leading to the Luxembourg Crisis and subsequent Accords. The newly emergent committee system was also conceived as a way of dealing with ­disagreements between the Member States themselves. The net result was the birth of the management committee procedure, embodied in the early agricultural regulations.28 Involvement in the making of the implementing rules facilitated interaction between national administrators who would be responsible for the application of the  rules at national level. The committee methodology spread rapidly to other areas,  and became a standard feature attached to the delegation of power to the Commission.29 24  Ibid Art 8(2). 25  Ibid Art 9. 26  Ch 4. 27  C Bertram, ‘Decision-Making in the EEC: The Management Committee Procedure’ (1967–8) 5 CMLRev 246; P Schindler, ‘The Problems of Decision-Making by Way of the Management Committee Procedure in the EEC’ (1971) 8 CMLRev 184; C-F Bergström, Comitology: Delegation of Powers in the European Union and the Committee System (Oxford University Press, 2005) Ch 2. 28  See, eg, Council Regulation 19/62/EEC of 4 April 1962 on the progressive establishment of a common organisation of the market in cereals [1962] OJ 30/933, Arts 25–26. 29  See, eg, Council Regulation 802/68/EEC of 27 June 1968 on the common definition of the concept of the origin of goods [1968] OJ L148/1, Arts 12–14.

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3  The Single European Act and the Revitalization of the Community: Shared Administration, Agencies, and Networks (A)  The Single European Act and the Recognition of Comitology The 1970s and early 1980s were a difficult period for the EEC. The reasons are ­complex and cannot be examined in detail here. Suffice it to say that the net effect was that Community objectives laid down in the Rome Treaty that were to be carried forward through regulations and directives were stalled, often because of Council resistance to Commission proposals. The Single European Act 1986 (SEA) sought to revitalize the Community, thereby enabling it to complete the single market. The introduction of Article 100a, now Article 114 TFEU, allowing harmonization measures to be enacted through qualified majority, rather than unanimity, was central in this respect. It accorded the European Parliament its first real contribution to the legislative process through the creation of the cooperation procedure in what was Article 149 EEC, and served to legitimate the initiatives enacted under Article 100a EEC. We are concerned here with the effect of these changes on the pattern of Commu­ nity administration. The SEA, like the Rome Treaty, said little about the pattern of Community administration. It did, however, provide foundation for the Comitology procedures that had developed rapidly since their invention in the early 1960s. Thus Article 145 EEC was amended. The third indent stated that: the Council could confer on the Commission, in the acts which the Council adopted, powers for the implementation of the rules which the Council laid down; that the Council could impose certain requirements on the exercise of these powers; and that it could reserve the right, in  ­specific cases, to exercise implementing powers itself. The ­procedures were to be ­consonant with principles and rules laid down in advance by  the Council. The first Comitology decision establishing these principles was duly  adopted by the Council in 1987, and sought to rationalize the committee ­structure.30 Aside from the impact on Comitology, the SEA had little directly to say concerning Community administration. This was to be developed by the Community institutions on a sectoral basis. The pattern of Community administration created after the SEA was a blend of the old and the new. This was triggered by the need for administrative mechanisms to cope with new competences granted to the Community by the SEA, most notably in the sphere of economic and social cohesion, environment, and research and technological development.

30  Decision 87/373/EEC, Council Decision of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission [1987] OJ L197/33.

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(B) Economic and Social Cohesion: The Extension of Shared Administration The original Rome Treaty contained no specific commitment to adjust the imbalance between the regions in Europe,31 although Article 2 EEC contained within the list of Community objectives the promotion of a harmonious development of economic activities and a continuous and balanced expansion. There were some developments in Community regional policy prior to 1986, as exemplified by the creation of a European Regional Development Fund (ERDF) in 1974–5. The SEA was, however, a major catalyst in this respect. Reform of Structural Fund policy was a consequence of the drive to complete the internal market, since such reform was seen as necessary to ensure the acceptability of the market-based initiatives contained in the SEA. There were fears that the wealthier economies would benefit from the completion of the single market, with the consequence that the gap between them and the less advantaged economies would widen. Reform of the Structural Funds was seen as one way of alleviating these concerns. The Treaty was, therefore, amended through the inclusion of new articles under the Title of Economic and Social Cohesion,32 through which the Community aimed to reduce disparities between the levels of development of the various regions and the backwardness of the least favoured regions. The attainment of these aims was to be supported through the Structural Funds.33 The detailed operation of this regime was set out by Regulation 2052/88,34 which identified the principal objectives and tasks of the Funds.35 A number of principles were central to the 1988 scheme. The new regulations were premised on concentration, this connoting the idea that funding should be allocated to the areas in greatest need; additionality connoted the idea that Community funding had a genuine additional impact in the regions concerned; partnership captured the idea that Community operations were to be established through close consultations between the Commission, the Member State concerned, and the competent authorities designated by the latter at  national, regional, and local level; and programming connoted the principle that 31  G Marks, ‘Structural Policy in the European Community’ in A Sbragia (ed), Euro Politics: Institutions and Policymaking in the ‘New’ European Community (Brookings Institution, 1992); J Scott, Development Dilemmas in the European Community: Rethinking Regional Development Policy (Open University Press, 1995); L Hooghe (ed), Cohesion Policy and European Integration (Oxford University Press, 1996); I Bache, The Politics of European Union Regional Policy: Multi-Level Governance or Flexible Gatekeeping? (Sheffield Academic Press, 1998); T Christiansen, ‘Territorial Politics in the EU’ (1999) 6 JEPP 349; J Scott, ‘Regional Policy: An Evolutionary Perspective’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999) Ch 17; A Evans, The EU Structural Funds (Oxford University Press, 1999). 32  Art 130a EEC, now Art 174 TFEU. 33  The European Agricultural Guidance and Guarantee Fund, Guidance Section (EAGGF); the European Social Fund (ESF); and the European Regional Development Fund (ERDF). 34 Council Regulation (EEC) 2052/88 of 24 June 1988 on the tasks of the structural funds and their ­effectiveness and on co-ordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments [1988] OJ L185/9. 35  Ch 4.

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funding would be given for a period of years, and that the different players of the ­partnership would interrelate. The Community Support Framework was central to the modus operandi of the Funds. The regime of shared administration in the 1988 regulations entailed formal shared responsibility between Member States and Commission in relation to both input and output. Thus, in relation to input it was the Member States who submitted their regional development plans to the Commission, which then reviewed the plans for conformity with the Regulation. It then established in agreement with the Member State the Community Support Framework (CSF) for Community Structural Fund operations, which specified the priorities adopted for Community assistance, the form of the ­assistance, its duration, and the financing plan. There was then more detailed ­elaboration of the operational programmes given the green light by the CSF. In relation to output, it was the Member States who were accorded initial responsibility for ensuring that Community funds for particular projects were properly expended, subject to constraints in Community regulations as to how this should be  done, in order to minimize the possibility of fraud and mismanagement. The Commission was also empowered to recover funds that were improperly expended. The very fact that shared administration related to the input and output stage is ­significant. Its application to the input stage was designed to enable Member State ­preferences as to the projects that would be funded to be taken into account, provided they were consonant with the objectives in the 1988 regulations. The application of shared administration to the output stage reflected the fact that the Commission did not possess the resources to monitor in detail all projects that received Community funding, hence the allocation of responsibility to the Member States, while preserving the Commission’s right to take legal action to recover funds improperly expended.

(C) Environmental Policy: Agency Creation and Shared Administration While concern for environmental protection was reflected in the Rome Treaty and while environmental initiatives had been enacted prior to 1986, it was the SEA that provided a more secure foundation for Community environmental policy through the addition of a specific title on the environment.36 The Community was ‘to preserve, protect and improve the quality of the environment, to contribute towards protecting human health, and to ensure a prudent and rational utilization of natural resources’,37 but the Community could only intervene in environmental matters when this action could be attained better at Community rather than national level, hence embodying a principle of subsidiarity. The pattern of Community administration for this area is interesting in two respects. 36  Arts 130r, 130s, and 130t EEC.

37  Art 130r EEC.

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The first is that an environment agency was created. Two agencies had been created in 1975,38 but the establishment of the European Environment Agency (EEA)39 was nonetheless the beginning of the wave of agency creation that occurred in the 1990s. The EEA’s task is to provide sound, independent information on the environment, for those involved in developing, adopting, implementing, and evaluating environmental policy. The EEA works in a number of thematic areas: tackling climate change; tackling biodiversity loss and understanding spatial change; protecting human health and ­quality of life; and use and management of natural resources and waste. The enabling regulation also provided the foundations for the European Environment Information and Observation Network (Eionet).40 The EEA provided a model for many of the subsequent agencies: a body whose primary remit was to gather and coordinate information in order to assist Community policymakers to make informed choices concerning the environment. To this end it was assisted by a network of bodies at national level, which were also concerned with the environment. The combination of Community agency assisted by national network was to be replicated in many subsequent agencies. The second reason why administration of environmental policy is instructive is that it reveals the different forms of shared administration when hard law is enacted. This can be exemplified by a brief look at the 2008 Directive on Air Quality,41 which brought together earlier more specific Directives on air quality. The Directive set certain targets and ceilings in relation to air quality and pollutants, and imposed obligations to develop air quality plans for certain areas where the pollutants in ambient air exceeded relevant target or limit values. Member States played an important role in the administration of the Directive. They had to designate competent authorities, which were responsible for:42 assessment of ambient air quality; approval of measurement systems; ensuring the accuracy of measurements; analysis of assessment methods; coordination on their territory if Community-wide quality assurance programmes are organized by the Commission; and cooperation with the other Member States and the Commission. Member States had the obligation to provide for penalties for breach of the national provisions adopted pursuant to the Directive, which had to be effective, proportionate, and dissuasive.43 The Directive also established horizontal links between the Member States because of the transboundary nature of pollution. Thus where any alert threshold, limit, or target value is exceeded due to significant transboundary transport of air pollutants, the 38  Council Regulation 337/75/EEC of 10 February 1975 establishing a European Centre for the Development of Vocational Training [1975] OJ L39/1; Council Regulation 1365/75/EEC of 26 May 1975 on the creation of a European Foundation for the Improvement of Living and Working Conditions [1975] OJ L139/1. 39  Council Regulation (EEC) 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network [1990] OJ L120/1. 40  Ibid Art 4. 41  Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe [2008] OJ L152/1. 42  Ibid Art 3. 43  Ibid Art 30.

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Member States concerned had to cooperate and, where appropriate, draw up joint activities, such as joint or coordinated air quality plans.44 It is readily apparent that the objectives of the 2008 Directive could only be attained by co-opting and imposing obligations on national administrations. It would be impossible for the Commission to carry out the detailed measurements required to render the Directive effective, and even more impossible for it to devise detailed plans to combat air pollution where the target levels were not met. Hence the requirement that the Member States had to designate bodies responsible for carrying out many of the primary empirical tasks under the Directive, for checking the analysis of the assessment methods and for devising the relevant plans where they are needed. The obligation on Member States to provide penalties for breach of the national implementing law, subject to the condition that they were effective, proportionate, and dissuasive, ­obviated the need for the Community to devise a uniform set of remedial penalties, which would have been difficult given the varied nature of the primary obligations imposed on the Member States. The Directive also provided an interesting example of  horizontal cooperation between Member States necessitated by the cross-border nature of pollution.

4  The Maastricht Treaty, Pillarization, and Extension of Competence: Centralized Administration, Shared Administration, and Agencies (A)  The Maastricht Treaty The Maastricht Treaty made significant changes to the previous Treaty regime. The Treaty on European Union, which embodied the Pillar system, was formally distinct from the EEC Treaty, which was renamed the EC Treaty. The TEU introduced complex new provisions concerning Common Foreign and Security Policy, Pillar 2, and Justice and Home Affairs, Pillar 3. The amended version of the EC Treaty contained important institutional provisions extending the powers of the European Parliament. It also made far-reaching changes to the substantive scope of the EC, laying the Treaty foundations for economic and monetary union, while adding and modifying heads of Community competence, in areas such as health, consumer protection, culture, and education and vocational training. The Maastricht Treaty introduced new heads of competence for the EC, and modified certain existing heads of competence. Many heads of competence were shared rather than exclusive, because of constitutional limits laid down in the relevant Treaty article. Thus, what Schutze describes as

44  Ibid Art 25(1).

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cooperative federalism45 was increasingly constitutionalized since the SEA. It operated in two ways. In some areas, such as the environment and social policy, the Treaty mandated that the Community set minimum requirements only. In other areas, such as research and technological development, health, and culture, the Treaty stipulated that the Community should ‘complement’ or ‘supplement’ national action. It is the implications of these Treaty changes for the pattern of Community administration that we are concerned with here.

(B) Research, Technological Development, and Health: The Extension of Centralized Administration In some instances, it led to centralized administration by the Commission assisted by executive agencies and advisory bodies, as in the area of research and technological development. This is exemplified by the administration of the multi-annual research programme made pursuant to what is now Article 182 TFEU.46 Thus grants and awards under the 7th multi-annual programme (FP7) that ran from 2007–13, were administered by the Commission. It was, however, assisted by the European Research Council,47 and the Research Executive Agency (REA),48 which were both new-style executive agencies. Thus, the function of the REA was to carry out project management tasks for parts of FP7, by evaluating and managing projects that involved large numbers of relatively small budgets. The Commission was also assisted by a plethora of advisory bodies, whose task was to assist the Commission in project evaluation and selection in different subject matter areas.49 In other areas, such as health, the administration is also primarily centralized in relation to management of the Community public health programme.50 This was apparent from the 2007 Community health action programme,51 the objectives of which were improvement in citizens’ health security, health promotion, and d ­ issemination of  health information.52 Community action was expressly designed to complement, support, and add value to Member State policies.53 It had a budget of €321 million over six years. The decision on the initiatives to be financed was taken by the Commission, although there were a variety of co-financing mechanisms that involved input from

45  R Schutze, ‘Co-operative Federalism Constitutionalised: The Emergence of Complementary Competences in the EC Legal Order’ (2006) 31 ELRev 167. 46  Decision 2006/1982/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007–2013) [2006] OJ L412/1. 47 http://ec.europa.eu/. 48 https://ec.europa.eu/info/departments/research-executive-agency_en. 49 http://ec.europa.eu/research/fp7/index_en.cfm?pg=eag. 50 http://ec.europa.eu/health/index_en.htm. 51  Decision 2007/1350/EC of the European Parliament and of the Council of 23 October 2007 establishing a second programme of Community action in the field of health (2008–13) [2007] OJ L301/3. 52  Ibid Art 2(2). 53  Ibid Art 2(1).

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other parties.54 The enabling Decision gave broad latitude as to means of implementation, stipulating that full use should be made of appropriate means of implementation, including direct or indirect implementation by the Commission on a centralized basis, and joint management with international organizations.55 The Commission was assisted in its administration of the 2007 programme by the Executive Agency for Health and Consumers (EAHC). Thus the EAHC managed relations with some 2,200 beneficiaries involved in nearly 200 projects in the field of health.56 While the principal executive decisions were made by the Commission and the EAHC, the enabling Decision also made provision for close cooperation with the Member States to ensure the effectiveness of the 2007 programme, through, for example, information exchange and the like.57 The Community’s overall imperative for public health was also furthered by the European Agency for Safety and Health at Work (OSHA),58 which sought to make workplaces safer, healthier, and more productive, by bringing together and ­sharing knowledge and information, and promoting a culture of risk prevention.

(C)  Consumer Protection: Extension of Shared Administration In yet other areas, such as consumer protection, shared administration prevails. Article 153 EC stipulated that consumer protection measures could be enacted pursuant to Article 95 EC, as measures designed to complete the internal market, and most were enacted on this basis, dealing with matters such as unfair contract terms, products liability, product safety, unfair commercial practices, distance selling, and the like.59 There is, therefore, a significant volume of consumer protection law.60 The administration of such directives varies in detail, and has altered somewhat over time. The earlier directives contained little detail on Member State administration, other than saying that they had to bring into force the laws, regulations, and administrative provisions necessary to comply with the Directive.61 The paradigm in later directives is for the Member States to have the duty to administer the directive, albeit with some structured discretion as to how to do so, but the Directive nonetheless stipulated the ends that must be attained by the Member State administrative and remedial regime, and the types of order that could be imposed.62 These Directives accorded the national 54  Ibid Art 4. 55  Ibid Art 6. 56 http://ec.europa.eu/chafea/. 57  Dec 2007/1350/EC (n 51) Art 7. 58 http://osha.europa.eu/en/about-eu-osha. 59 http://ec.europa.eu/info/departments/justice-and-consumers_en. 60  S Weatherill, EU Consumer Law and Policy (Edward Elgar, 2nd edn, 2005). 61  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L95/29, Art 10; Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees [1999] OJ L171/12, Art 11. 62  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market [2005] OJ L149/22, Arts 11–13; Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000] OJ L178/1, Arts 16–20; Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers [2008] OJ L133/66, Arts 22–24.

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authorities significant powers and duties in relation to consumer protection, which would often be central to their overall regime.63 There was, moreover, an important ‘horizontal’ dimension to administration of EC law in this area, which was manifest in  a Regulation that mandated cross-border cooperation between administrative ­authorities in Member States to ensure the more effective enforcement of consumer protection laws.64

(D) The Exercise of Community Competence: The Rise of EU Agencies We have already seen that an agency was chosen as part of the administrative machinery for the environment in 1990. The 1990s more generally witnessed the second wave of agency creation in diverse areas, ranging from medicines to drug addiction, from trade marks to health and safety at work and from reconstruction to the regulation of plant varieties.65 The general reasons for using agencies are well known.66 It facilitates the use of experts outside the normal bureaucratic structure; enables the Commission to concentrate on strategic policy; insulates the resolution of technical regulatory issues from the 63  See, eg, in the UK, the application of the consumer protection directives by the Office of Fair Trading. In  relation to unfair commercial practices: OFT, Statement of Consumer Protection Enforcement Principles (2008), available at http://webarchive.nationalarchives.gov.uk/20100114052338/http://www.oft.gov.uk/shared_oft/ reports/consumer_protection/oft964.pdf; in relation to distance selling, http://webarchive.­nationalarchives. gov.uk/20110704121308/http://oft.gov.uk/about-the-oft/legal-powers/legal/distance-selling-regulations/; in relation to enforcement and application of consumer protection legislation, including obligations derived from Community directives, OFT, Enforcement of Consumer Protection Legislation (2002), available at https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/284456/oft512.pdf. 64  Regulation (EC) 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws [2004] OJ L364/1. 65  Council Regulation (EEC) 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network [1990] OJ L120/1; Council Regulation (EEC) 1360/90 of 7 May 1990 establishing a European Training Foundation [1990] OJ L 131/1; Council Regulation (EEC) 302/93 of 8 February 1993 on the establishment of a European Centre for Drugs and Drug Addiction [1993] OJ L36/1; Council Regulation (EEC) 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veter­ inary use and establishing a European Agency for the Evaluation of Medicinal Products [1993] OJ L214/1; Council Regulation (EC) 40/94 of 20 December 1993 on the Community Trademark [1994] OJ L11/1; Council Regulation (EC) 2062/94 of 18 July 1994 establishing a European Agency for Safety and Health at Work [1994] OJ L216/1; Council Regulation (EC) 2100/94 of 27 July 1994 on Community Plant Variety Rights [1994] OJ L227/1; Council Regulation (EC) 2965/94 of 28 November 1994 setting up a Translation Centre for Bodies of the European Union [1994] OJ L314/1; Council Regulation (EC) 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia [1997] OJ L151/1; Council Regulation (EC) 2454/1999 of 15 November 1999 setting up of a European Agency for Reconstruction [1999] OJ L299/1. 66 D Hague, W Mackenzie, and A Barker (eds), Public Policy and Private Interests: The Institutions of Compromise (Macmillan, 1975) 362; Report on Non-Departmental Public Bodies (Cmnd 7797, 1980) [10]–[16]; R Baldwin and C McCrudden, Regulation and Public Law (Weidenfeld & Nicolson, 1987) Ch 1; M Thatcher and A Stone Sweet, ‘Theory and Practice of Delegation to Non-Majoritarian Institutions’ (2002) 25 West European Politics 1.

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vagaries of day-to-day political change; increases the credibility of the choices thus made;67 and facilitates correction of market failure through rulemaking in the ‘regulatory state’.68 There are, nonetheless, diverse views as to why agencies proliferated in the EC during this period.69 There is little doubt that ‘political’ factors were also relevant: given the opposition to according further power directly to the Commission, agencies provided a way for the EC to play a role in an area through smaller, more discrete ‘technical’ units. A number of the preceding rationales were echoed by the Commission Communication on Agencies, which stated that agencies were valuable in ‘highly specialized technical areas requiring advanced expertise and continuity, credibility and visibility of public action’,70 the corollary being that the Commission would thereby be able to focus on its core function of policy formation, with the agencies implementing this policy in specific technical areas.71

(E) The Third Pillar: Intergovernmentalism and Shared Administration The original provisions of the TEU concerning the Third Pillar dealt with a broad range of matters concerning justice and home affairs. Thus, the initial version of Article K.1 stipulated that Member States should regard the following as matters of ‘common interest’: asylum policy; rules governing the crossing by persons of the external borders of the Member States; immigration policy and policy regarding nationals of third countries; combating drug addiction; combating fraud on an international scale; judicial cooperation in civil matters; judicial cooperation in criminal matters; customs cooperation; and police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking, and other serious international crime. The original version of Article K.3 stipulated that Member States should inform and consult one another within the Council with a view to coordinating their action and that they should ‘establish collaboration between the relevant departments of their administrations’. The emphasis placed on inter-administrative cooperation was further echoed in Article K.4. It created a Coordinating Committee of senior national officials, 67  G Majone, ‘Temporal Consistency and Policy Credibility: Why Democracies Need Non-Majoritarian Institutions’, Working Paper RSC No 96/57, EUI (1996); F Gilardi, ‘Policy Credibility and Delegation to Independent Regulatory Agencies: A Comparative Empirical Analysis’ (2002) 9 JEPP 873. 68  G Majone, ‘The Rise of the Regulatory State in Europe’ (1994) 17 West European Politics 77; G Majone, Regulating Europe (Routledge, 1996); G Majone, ‘From the Positive to the Regulatory State: Causes and Consequences of Changes in the Mode of Governance’ (1997) 17 Jnl of Public Policy 139. 69  A Kreher, ‘Agencies in the European Community—A Step towards Administrative Integration in Europe’ (1997) 4 JEPP 225; M Shapiro, ‘The Problems of Independent Agencies in the United States and the European Union’ (1997) 4 JEPP 276; R Dehousse, ‘Regulation by Networks in the European Community: The Role of European Agencies’ (1997) 4 JEPP 246; G Majone, ‘Delegation of Regulatory Powers in a Mixed Polity’ (2002) 8 ELJ 319. 70  The Operating Framework for the European Regulatory Agencies, COM(2002) 718 final, 5. 71  Ibid 2.

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which could also give opinions to the Council, either at the Council’s request or on its own initiative, and could contribute to the preparation of Council discussions in the areas covered by Article K.1. The fact that the Third Pillar was more intergovernmental than the EC Treaty, combined with the range and sensitivity of the subject matter, had implications for the pattern of administration and policy execution in this area. The K.4 Coordinating Committee, a secretive body that lacked transparency, gave national officials direct influence on agenda setting and policy development of a kind that they lacked under the EC Treaty. The subject matter covered by the Third Pillar shaped the nature of subsequent administration. This was in part because of the language of Article K.1, which spoke of judicial cooperation in civil and criminal matters, and customs and police cooperation, thereby laying the foundation for measures that involved interaction between the EU and Member States, and between the Member States themselves. The nature of the subsequent administration was also shaped by the sensitivity of the subject matter, such as asylum and immigration, and EU action in these areas was crucially dependent on Member State administrations taking the steps to effectuate the objectives set out in the Third Pillar measure.72

5  The Amsterdam Treaty and Novel Forms of Administration: Treaty Choice and Political Choice (A)  The Amsterdam Treaty In addition to the renumbering of the Treaty provisions, which some regarded as regrettable, but which was in reality inevitable and beneficial, the Amsterdam Treaty made further changes to the status quo ante. In institutional terms, it did not achieve its stated objective, which was to revise the Treaty articles concerning the Community institutions to reflect the expansion of the Community from six to fifteen Member States, although it did further expand the power of the European Parliament over the legislative process. In substantive terms, there were changes to the Third Pillar, part of which was brought into the First Pillar, by creating the new Title IV of the EC Treaty dealing with asylum, immigration, and the like. There were also substantive changes to the EC Treaty, the most important being new and amended provisions on employment, social policy, and labour law. The period between the Amsterdam Treaty and the Nice Treaty was noteworthy in two respects for the evolution of Community administration, since it saw the emergence of novel forms of administration, one the result of a choice made in the Treaty, the other the result of political choice.

72  S Peers, EU Justice and Home Affairs (Oxford University Press, 3rd edn, 2011).

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(B)  Social Partners: Treaty Choice The Amsterdam Treaty formalized the role of the social partners in the policymaking and the administrative process. This occurred in a number of related ways. First, the social dialogue involving representatives of management and labour began in the mid-1980s and was recognized in the Maastricht Treaty via the Protocol on Social Policy. The Protocol was, however, incorporated into the main body of the Treaty by the Treaty of Amsterdam in 1997. The social dialogue is now regarded as important, not only as a mechanism for making legislation, but also as a way of ­advancing Community social policy more generally. Secondly, the Treaty of Amsterdam left it open to a Member State to entrust ­management and labour at their joint request with the implementation of Council ­directives on social policy made pursuant to Article 137(2) EC. The Member State must ensure that management and labour introduced the necessary measures no later than the date when the directive was to be transposed into national law. It was also incumbent on the Member State to take any measures necessary to place it in a ­position to guarantee the results imposed by the directive.73 Thirdly, the Amsterdam Treaty empowered management and labour to signal ­during the consultative process74 that they wished the Community dialogue to lead to contractual relations, including agreements.75 Such agreements could be implemented in two ways. They could be implemented in accord with the procedures and practices specific to management and labour and the Member States,76 with monitoring of the agreements undertaken primarily by the social partners, but also by the Commission. The alternative mode of implementing the agreement was via a Council decision, on a proposal from the Commission,77 which was then formally binding and covered all workers.78 They are referred to as framework agreements since they leave discretion to Member States and management/labour as to the more detailed measures to fulfil the Directive. The Directives also normally provide that implementation and administration can be done either by the Member State, or by management/labour via collective agreements and the like, or by a combination of the two.

(C)  Open Method of Coordination: Political Choice The other novel development in the years between the Amsterdam and Nice Treaties with significant implications for the pattern of Community administration was the

73  Art 137(3) EC. 74  Art 138(4) EC. 75  Art 139(1) EC. 76  Art 139(2) EC. 77  Art 139(2) EC. 78  Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on Parental Leave Concluded by UNICE, CEEP and ETUC [1996] OJ L145/4; Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on Part-time Work Concluded by UNICE, CEEP, and the ETUC—Annex Framework Agreement on Part-Time Work [1998] OJ L14/9; Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on Fixed-Time Work Concluded by ETUC, UNICE and CEEP [1999] OJ L175/43.

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Open Method of Coordination (OMC),79 a political choice made by the European Council. While the intellectual origins can be traced earlier than the Lisbon Summit in March 2000,80 this European Council meeting was nonetheless important, since it gave its imprimatur to the OMC as an approach to be used within EU governance.81 The EU was ‘to become the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion’.82 The implementation of this strategy was to be, inter alia, through the OMC, with involvement of Member States, regional and local government, the social partners, and civil society.83 The OMC functions both in relation to policymaking through the fixing of guidelines, timetables, and the like, and also to administration of that policy through benchmarking, monitoring, evaluation, mutual learning, and peer review.84

6  The Nice Treaty and Community Administration: Reform, Centralized Administration, Shared Administration, and Agencies (A)  Nice Treaty Given that the Treaty of Amsterdam did not address the EU’s institutional structure pending enlargement, a further Intergovernmental Conference was inevitable. The Nice Treaty was duly concluded in December 2000 after a notoriously fractious and badly run European Council summit. The major political achievement was agreement on institutional questions relevant to enlargement: settling the weighting of votes in the Council, the distribution of seats in the European Parliament, the composition of the Commission, and the court system. The Nice Treaty contained little that was directly relevant to the pattern of Community administration. There were nonetheless significant developments in Community administration in the ensuing years.

(B) Administrative Crisis and Legislative Response: New Rules for Community Administration There had, prior to 2002, been little in the way of overarching principles to govern Community administration. Political and legal developments may, however, be 79  There is a large literature on the OMC, which is discussed in Ch 7. 80  Lisbon European Council, Presidency Conclusions, 23–4 March 2000. 81  The Lisbon approach was developed further at the Nice European Council in December 2000, and relaunched in the March 2005 Summit: Nice European Council, Presidency Conclusions, 7–9 December 2000; European Council, Presidency Conclusions, 22–3 March 2005. 82  Nice European Council, Presidency Conclusions (n 81) [5]. 83  Ibid [38]. 84  Ibid [37].

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­ recipitated by a crisis. The resignation of the Santer Commission constituted just such p a crisis for the Community. There had been concern for some considerable time about fraud, and mismanagement in the EC. This culminated in the setting up of a Committee of Independent Experts in January 1999.85 Its First Report, critical of the Santer Commission, prompted its downfall. Romano Prodi, the new President of the Commission, introduced a number of reforms designed to restore faith in the Commission, which were followed in 1999 by the creation of Task Force for Administrative Reform (TFRA). The TFRA produced a consultative document in January 2000,86 and the White Paper appeared in March of  the same year.87 An Action Plan was attached to the White Paper highlighting ninety-eight points on which further measures were required to implement the reform agenda. These were carried through by an admixture of formal legislation, soft law, and internal administrative reform.88 A number of these reforms were dealt with through the new Financial Regulation, which established a constitutional framework for Community administration of a kind that had not existed hitherto. The new Financial Regulation89 provided a legal framework for Community administration, and the distinction between centralized and shared administration that was central to the Second Report of the Committee of Independent Experts, and to the Commission White Paper, was embodied in the Regulation.

(C) Executive Agencies, Partnerships, and Contract: Centralized Administration The predominant pattern has, as we have seen, been shared administration, with the Commission working with national bureaucracies to implement policy in areas such as the CAP, the Structural Funds, and Customs Regulations. The Community legislation in these areas laid down distinct legal and political obligations on both the Commission and the Member States, and the success of the regime was dependent on both fulfilling their assigned remit. The Commission has, however, increasingly undertaken administration centrally, without a systematic relationship with national administrations. This was in part because the Commission was given wider responsibilities, and the enabling provisions did not establish any general pattern of shared management. It was in part because 85  Committee of Independent Experts, First Report on Allegations regarding Fraud, Mismanagement and Nepotism in the European Commission (15 March 1999); Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999). 86  Reforming the Commission, CG3 (2000) 1/17, 18 January 2000. 87  Reforming the Commission, COM (2000) 200. 88  Ch 2. 89  Council Regulation (EC, Euratom) 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the General Budget of the European Communities [2002] OJ L248/1; Council Regulation (EC, Euratom) 1995/2006 of 13 December 2006 amending Regulation (EC, Euratom) 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities [2006] OJ L390/1.

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the  subject matter did not necessarily lend itself to shared management. It was in part  also because the Commission felt that certain policies were best implemented through non-governmental organs. Thus, for example, initiatives in relation to t­ourism, ­cooperation with non-member countries of the southern Mediterranean (the MED programmes), emergency aid, vocational training (the Leonardo da Vinci programme), nuclear safety policy, as well as the TACIS and PHARE programmes, were managed directly by the Commission. Centralized management captures the idea that the Commission will implement a  programme without formal, systematic cooperation with national bureaucracies. It  does not mean that the Commission carries out the entirety of the activity itself, ‘in  house’. The new Financial Regulation provided a framework for those activities managed by the Commission. Such programmes could be directly managed within the Commission; management tasks could be undertaken by executive agencies; implementation could be entrusted to a Community body or agency; some tasks could be delegated to networks of national agencies; and certain activities could be contracted out. These modes of centralized management interrelate. Thus, even where it was decided to use an executive agency, there would still be important aspects of the programme overseen by the Commission, since the management tasks that could be ­delegated to such agencies were limited. Moreover, the contracting-out of certain tasks could be used in conjunction with any of the other modes of centralized management. The Commission could in addition establish special partnership bodies, predicated on the assumption that ‘to achieve some goals, the public sector needs to work in ­partnership with the private sector, providing funding and maintaining a voice but standing aside from key strategic decisions on direction’.90 Such a partnership body was established for air traffic management (SESAR), to develop the new generation air traffic management system capable of ensuring the safety of air transport worldwide over the next thirty years.91 The joint undertaking secured funding and organized the work programme.92 The EU entered analogous partnerships dealing with nuclear fusion,93 and research innovation.94

(D)  Services and the Internal Market: Shared Administration Shared administration in which Member States are accorded formal legal ­responsibilities by Community legislation to partake in the administration of EC policy, nonetheless, remains the norm for administration in many areas. The internal market was not ­‘literally completed’ in 1992, and indeed changes in technology, combined with the development of new products, meant that completion of the internal market should be 90  COM(2008) 135 (n 118) 3. 91  https://ec.europa.eu/transport/modes/air/sesar/sesar_undertaking_en; Council Regulation (EC) 219/2007 of 27 February 2007 [2007] OJ L64/1. 92 https://www.eurocontrol.int/sesar-research. 93 https://www.iter.org/. 94  https://eit.europa.eu/, European Institute of Innovation and Technology.

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viewed as an ongoing process, rather than an end to be achieved once and for all. The Commission turned its attention to integration in the services sector, where market integration had lagged behind other areas. It initiated a range of legislative measures to meet this deficiency and shared administration was the norm throughout. This can be briefly exemplified by considering the Community directives concerned with telecommunications.95 Telecommunications liberalization was achieved through a series of directives, ­consisting of a Framework Directive96 and a number of other directives dealing with specific issues, such as the Universal Service Directive.97 The competitive market was regarded as the optimal method for the distribution of these services, but legislative intervention via universal service obligations was required to correct market failure. The Universal Service Directive specified the particular services that must be made available to end-users, while leaving Member States to determine the best method of  implementation, subject to respect for principles of objectivity, transparency, non-­discrimination, and proportionality. The Universal Service Directive set out the relevant universal service obligations, relating to matters such as access to public phone services, directory inquiry service, quality of service, and affordability of tariffs. National regulatory authorities were required to deal with such issues and there were detailed obligations and powers requiring the exercise of their discretion. The Directive contained additional regulatory controls on undertakings with significant market power in specific markets, and once again it was the national regulatory authority that was charged with applying the relevant provisions.

(E) Competition: Extended Parallel Competence, Liaison, and Assistance We saw from the preceding analysis the administrative regime that applied in competition cases. The traditional approach came under increasing strain. The Commission did not have the resources to deal with all agreements notified to it, nor did it have the resources to adjudicate on anything but a handful of individual exemptions. The Commission therefore encouraged national courts to apply Articles 81 and 82 EC, and in the White Paper on Modernization98 it proposed a thorough overhaul of the 95  P Craig, ‘Shared Administration, Disbursement of Community Funds and the Regulatory State’ in H Hofmann and A Turk (eds), Legal Challenges in EU Administrative Law: Towards an Integrated Administration (Edward Elgar, 2009) Ch 2. 96  Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) [2002] OJ L108/33. 97  Directive 2002/22 of the European Parliament and the Council of 7 March 2002 on universal service and users’ right relating to electronic communications networks and services (Universal Service Directive) [2002] OJ L108/51; W Sauter, ‘Universal Service Obligations and the Emergence of Citizens’ Rights in European Telecommunications Liberalization’ in M Freedland and S Sciarra (eds), Public Services and Citizenship in European Law—Public and Labour Law Perspectives (Clarendon Press, 1998) Ch 7. 98 White Paper on Modernization of the Rules Implementing Articles 85 and 86 of the EC Treaty, Commission Programme 99/27, 28 April 1999.

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enforcement regime, abolishing notification and the Commission’s monopoly over Article 81(3). National courts and national competition authorities (NCAs) would be ­empowered to apply Article 81 in its entirety and Article 82. The Commission would retain its power to apply Articles 81 and 82. This was enacted in Regulation 1/2003,99 and embodies a regime that is decentralized and accords extended parallel competence to national courts and NCAs over competition. It provides that agreements, etc, caught by Article 81(1), which do not satisfy the conditions of Article 81(3), shall be prohibited, no prior decision to that effect being required. The same principle is applicable to abuse of a dominant position in Article 82. NCAs and national courts can apply the entirety of Articles 81 and 82.100 There are provisions facilitating cooperation between an NCA and the Commission.101 NCAs have an obligation to inform the Commission of proceedings begun in the Member States,102 and the NCAs are also obliged to inform the Commission before they adopt a decision requiring an infringement of Article 81 or 82 to be brought to an end, before they accept commitments or withdraw the benefit of a block exemption.103 The NCAs are ‘relieved of their competence’ to apply Articles 81 and 82 if the Commission initiates proceedings for the adoption of a decision.104 NCAs cannot make rulings in relation to Articles 81 and 82 that are counter to a decision already reached by the Commission on that same subject matter.105 There are also provisions dealing with the relationship between national courts and the Commission. A national court cannot make rulings on Articles 81 and 82 that are contrary to a Commission decision on the same subject matter; they must avoid giving decisions that would conflict with a decision contemplated by the Commission in proceedings which it has initiated;106 national courts can seek the Commission’s opinion on questions concerning the Community competition rules;107 and the Commission can submit written observations to national courts where the coherent application of Articles 81 and 82 so requires.108 There are further provisions facilitating cooperation between NCAs in different Member States,109 and a European Competition Network has been established for ­discussion and cooperation between NCAs.110 There are separate provisions dealing with cooperation with national courts.111 The Commission continues to have enforcement power under the new regime. It can act on a complaint or on its own initiative and find an infringement of Article 81 99  Council Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1; J Venit, ‘Brave New World: The Decentralization and Modernization of Enforcement under Articles 81 and 82 of the EC Treaty’ (2003) 40 CMLRev 545. 100  Reg 1/2003 (n 99) Arts 5 and 6. 101  Ibid Arts 11–12. 102  Ibid Art 11(3). 103  Ibid Art 11(4). 104  Ibid Art 11(6). 105  Ibid Art 16(2). 106  Ibid Art 16(1). 107  Ibid Art 15(1). 108  Ibid Art 15(3). 109  Commission Notice on cooperation within the Network of Competition Authorities [2004] OJ C101/43; Joint Statement of the Council and the Commission on the Functioning of the Network of Competition Authorities, available at http://ec.europa.eu/competition/ecn/joint_statement_en.pdf. 110 http://ec.europa.eu/competition/ecn/index_en.html. 111  Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC [2004] OJ C101/54.

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or Article 82.112 It can impose behavioural or structural remedies, although the Regulation is framed in favour of the former.113

(F) The Exercise of Community Competence: The Rise and Rise of EU Agencies We have already seen how agencies were increasingly employed in the 1990s, constituting a second wave of agencies to complement those created in 1975. The new millennium saw further use made of the agency model in what can be regarded as a third wave, with agencies being adopted in areas as diverse as food safety, maritime safety, aviation safety, information security, disease prevention, railways, fisheries, fundamental rights, and chemicals.114 A new set of agencies was created to strengthen regulatory control over banking and financial services in the wake of the 2008 financial crisis. Agencies were also established under the Common Foreign and Security Policy (CFSP) Pillar,115 and under the Police and Judicial Cooperation in Criminal Matters (PJCC) Pillar.116 In addition to these agencies there are ‘executive agencies’, designed to oversee a programme that is directly managed by the Commission, and such agencies are ­subject to a specific set of rules laid down by regulation.117 The Commission, however, signalled in 2008 its wish to reconsider the role of ­agencies, other than executive agencies, in the EU, stating that the ‘time has come to re-launch a debate on the role of agencies and their place in the governance of the EU’.118 The Commission wished this re-evaluation to consider a range of matters: the structure and working of agencies, including their method of governance; agency accountability and their relationship with other institutions; the application of the principles of better regulation to agencies; and consideration of the process for establishing and ending regulatory agencies. It was for some time irked by its role within the decision-making structure of agencies, and argued repeatedly that it should have at the very least equal status on the management board of agencies. It proposed a draft inter-­ institutional agreement on agencies in 2005 in which this was a key theme.119 The draft agreement languished in the Council. The Commission’s continuing frustration with the structure of agency decision-making was apparent in its 2008 document, where it bemoaned the fact that while it was normally represented on the agency management

112  Reg 1/2003 (n 99) Art 7. 113  Ibid Art 7(1). 114  A full list of agencies and accompanying regulations can be found on https://europa.eu/europeanunion/about-eu/agencies_en. 115 https://eeas.europa.eu/topics/common-foreign-security-policy-cfsp_en. 116 https://eur-lex.europa.eu/summary/glossary/police_judicial_cooperation.html. 117  Council Regulation (EC) 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes [2003] OJ 2003 L11/1. 118  European Agencies—The Way Forward, COM(2008) 135, 2. 119  Draft Interinstitutional Agreement on the operating framework for the European regulatory agencies, COM(2005) 59 final.

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board, ‘it is always in a minority, sometimes even without the right to vote’120, the consequence being that ‘the degree of accountability of the Commission cannot exceed the degree of influence of the Commission on the agency’s activities’.121 These tensions within the agency model will be explored more fully later,122 and they have not prevented new agencies being created to strengthen regulatory control over banking and financial services.

7  Lisbon Treaty, Continuity, and Change: Centralized and Shared Administration, Comitology, Agencies The pattern of EU administration evolved in the light of the Lisbon Treaty. The workings of the different forms of EU administration as they operate under the Lisbon Treaty will be analysed in detail in the subsequent chapters. Suffice it to say the following for present purposes. First, the institutional forms of administration that we have encountered thus far continue post-Lisbon. In some areas centralized administration is used, while in others shared/mixed administration remains the mode of service delivery. Agencies continue to feature prominently in the post-Lisbon world. There have, as will be seen, been more significant changes in relation to Comitology as a result of the Lisbon Treaty provisions on the hierarchy of norms.123 Secondly, the Lisbon Treaty contains a novel provision on administrative c­ ooperation. Article 197 TFEU states that effective implementation of EU law by the Member States is essential for the proper functioning of the Union and hence is to be regarded ‘as a matter of common interest’. The EU can support Member States to improve their administrative capacity to implement EU law, by, for example, facilitating the exchange of information and of civil servants and support for training schemes. No Member State is obliged to avail itself of such support. Legislative regulations can, however, be enacted to establish the necessary measures to achieve the objectives of Article 197, excluding harmonization of national laws. Article 197 is, however, framed in guarded tones. Thus Article 197(3) states that the preceding parts of the Article are without prejudice to Member States’ obligations to implement Union law, to the prerogatives and duties of the Commission, and to other Treaty provisions providing for administrative cooperation among the Member States and between them and the Union. Thirdly, prior to the Lisbon Treaty there were doubts as to whether the EU had competence to adopt a general code concerning administrative law. It was arguable that a code could be based on what was Article 308 EC, but the Commission President seemed to doubt the existence of such competence. The Lisbon Treaty has now ­provided 120  COM(2008) 135 (n 118) 5.

121  Ibid 8.

122  Ch 6.

123  Ch 5.

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a legal foundation. Article 298 TFEU states that in carrying out their missions, the institutions, bodies, offices, and agencies of the Union shall have the support of an open, efficient, and independent European administration, and that legislative r­egulations can be enacted to attain this objective. It, nonetheless, remained debatable whether such a code could apply to Member States, as well as the EU institutions.

8  Typology: Centralized Administration, Shared Administration, and Variation Commentators will inevitably differ as to the labels that best capture the different forms of administrative organization within the EU. There is, in particular, ­considerable variety of terms used to describe those areas in which national administrations play a formal role in the discharge of EU initiatives. The labels shared administration, ­indirect administration, executive federalism, co-administration, and mixed proceedings have all been used to connote this type of administrative interaction between the EU and national level. Little turns on the precise appellation chosen. My own preference is for shared administration, this being the term used by the Committee of Independent Experts,124 and embodied in the 2002 Financial Regulation.125 The typology articulated below is therefore premised on a divide between centralized and shared administration. It is, however, important to understand that various factors can affect the type of centralized or shared administration that operates within any particular area.126

(A)  Centralized Administration There are various areas where centralized administration is the prevalent method of discharging EU policy, although it may well vary as will become apparent from the subsequent discussion. (i)  Classic Centralized Administration: State Aids The procedural rules that apply in this area are derived from the relevant Treaty a­ rticles, case law, and from Regulation 659/1999.127 The constant feature throughout the Community’s existence is that the Commission makes the relevant decisions concerning the compatibility of state aid with the Treaty. Thus, it is for the Member State to 124  Committee of Independent Experts, Second Report (n 18). 125  Reg 1605/2002 (n 89). 126  See also Franchini, ‘L’impatto dell’integrazione comunitaria sulle relazioni al vertice dell’amministrazione’ (n 1); Schmidt-Aßmann, ‘Verwaltungskooperation’ (n 1); Cassese, ‘Diritto amministrativo europeo e diritto amministrativo nazionale’ (n 1); Cassese, ‘European Administrative Proceedings’ (n 1); Schmidt-Aßmann, ‘European Composite Administration’ (n 1); Chiti, ‘Forms of European Administrative Action’ (n 1). 127  Council Regulation 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the Treaty [1999] OJ L83/1.

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notify the Commission about proposed new state aid, and the Commission may, after a preliminary review, decide to approve the aid. It is to take no more than two months, and if there are difficulties in reaching a decision within this time then the Commission proceeds to the more complete review in Article 108(2) TFEU. Commission findings pursuant to formal investigations are made by decisions. The Commission may decide that the aid is compatible, or incompatible, with the common market, and it may attach conditions to a positive decision.128 (ii) The New Paradigm of Centralized Administration: Management of Multiple Grants and Awards Centralized administration is now used for a wide variety of programmes, as the preceding discussion has shown. It captures the idea that the Commission will implement a programme without formal, systematic cooperation with national bureaucracies. It does not mean that the Commission carries out the entirety of the activity itself, ‘in house’. It may do so, it may not. It may choose to use an executive agency, or contract out part of the work. The new paradigm for this mode of administration is different from the traditional rationale. It now commonly applies in areas where the EU is accorded competence to supplement and support action of the Member States, such as health, education and vocational training, research and technological development, and culture. It will often choose to do this by programmes that entail awards in the form of subsidies, grants, or contracts to private parties to carry forward the objectives of the programme. The new-style executive agencies often manage such programmes. We have seen this in operation in the earlier discussion concerning public health. The same pattern has been apparent in relation to, for example, education and vocational training, where the programmes have been managed by the Education, Audiovisual and Culture Executive Agency;129 energy, where the programmes were run by the Intelligent Energy Executive Agency,130 which has now been superseded by the Executive Agency for Competitiveness and Innovation (EACI);131 and the EU’s research programme, where the REA has played a central role in assessing and managing multiple research projects in the FP7 programme, ranging from outer space to security, and from social science projects to research that will benefit small and medium-sized enterprises.132

128  Ibid Art 7. 129 Commission Decision 2005/56/EC of 14 January 2005 setting up the Education, Audiovisual and Culture Executive Agency for the management of Community action in the fields of education, audiovisual and culture in application of Council Regulation (EC) 58/2003 [2005] OJ L24/35. 130  Commission Decision 2004/20/EC of 23 December 2003 setting up an Executive Agency, the ‘Intelligent Energy Executive Agency’, to manage Community action in the field of energy in application of Council Regulation (EC) 58/2003 [2004] OJ L5/85. 131 https://europa.eu/european-union/about-eu/agencies_en. 132 https://ec.europa.eu/info/departments/research-executive-agency_en.

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(B)  Shared Administration It is apparent from the preceding discussion that shared administration has been the predominant mode of discharging policy since the inception of the Community. The empowering legislation formally gives the Commission and Member States distinct administrative tasks, which are inter-dependent and both must discharge their ­respective tasks for the EU policy to be implemented successfully.133 It would be wrong to assume that all instances of shared or mixed administration fit some standard ‘mould’. They do not. They can differ very markedly. It is, therefore, important to identify the factors that shape the regime of shared administration that applies in any ­particular area. It is these factors taken individually and in aggregate that determine the reality of shared administration in the areas where it is used. (i)  Vertical Dimension: Top-Down, Bottom-Up, and Hybrid In a valuable analysis, della Cananea distinguished between three kinds of shared administration, or what he terms mixed proceedings.134 Thus, as the nomenclature would suggest, in top-down proceedings the initial decision is made by the EU authorities, normally in the form of a legislative act, which is often complemented by more detailed provisions, which in the post-Lisbon world may take the form of delegated or implementing acts. It is then for the relevant national authority to apply these rules at national level. This mode of shared administration has characterized much of the CAP, in relation to the disbursement of financial benefits and in relation to the levying of penalties for those who acted in contravention of production constraints and the like. A national intervention agency, or some similar body, applies the EU precepts at national level. By way of contrast, in bottom-up proceedings the initial decision in the administrative sequence is made at the national level, with the final decision resting with the Commission. This has been the case with some subsidies granted under the CAP, whereby it is for the national authority to make the initial recommendation as to the grant of the subsidy, with the final decision resting with the Commission.135 The bottom-up approach also captures important aspects of the Structural Funds. EU legislation identified the objectives of the Funds,136 one of which was the promotion of under-developed regions. The Member State would then submit to the Commission its regional development plans and priorities, and the operational programmes it wished to pursue in those areas. The Commission reviewed the proposed plans and programmes for conformity with the Regulation. It then established in agreement with the Member State, the CSF for Structural Fund operations. The CSF specified the priorities adopted for assistance, the forms of the assistance, its duration, and the financing plan. Hybrid shared administration entails an admixture of the previous two, in the sense that the administrative scheme has dimensions that are both top-down and b ­ ottom-up. 133  Committee of Independent Experts, Second Report (n 18) Vol I, [3.2.2]. 134  Della Cananea, ‘The European Union’s Mixed Administrative Proceedings’ (n 1) 199–203. 135  Ibid 201. 136  Reg 2052/88 (n 34).

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Thus, there were two tracks for gaining approval for new medicines. The centralized procedure was obligatory for biotechnical medicinal products, but optional for others. It was administered by the European Agency for the Evaluation of Medicinal Products (now the European Medicines Agency),137 aided by specialist committees, and made recommendations to the Commission, which then made the formal decision, albeit normally rubber-stamping the Agency’s recommendation.138 The decentralized ­procedure placed the authorization decision in the hands of national regulatory authorities, which when receiving an application informed authorities in other Member States, and the latter could object on certain specified grounds. The assumption underlying the decentralized procedure was nonetheless one of mutual recognition.139 (ii)  Vertical Dimension: The Power Accorded to the National Authorities A second factor that markedly affects the regime of shared or mixed administration in a particular area is the power accorded to the national authorities. This can vary very considerably. It is the most significant factor that affects the reality of shared administration between the EU and Member States. At one end of the scale, there are regimes of shared administration characterized by the existence of very detailed EU regulations applied by the relevant national ­authorities, but which leave little discretion. The national authority will have to determine whether the rules pertain to a particular instance, but their principal role will, nonetheless, be to apply the EU rules to cases that come within their jurisdiction. Many, although not all, of the rules concerning the CAP and customs are of this kind. Thus, it was for the national agency to decide whether, for example, a farmer planted crops in excess of EU limits, and if so the agency imposed the penalty stipulated by the Regulation. At the other end of the scale, there are regimes of shared administration, such as those applicable for utilities and telecommunications, in which considerably greater discretion resides with the national authorities. This can be exemplified by the provisions governing the electricity market. The principal objective of Directive 2009/72140 was to complete the internal market in electricity and to expedite market liberalization. Member States and their national regulatory authorities were given broad powers and duties to effectuate the Union objective. They had responsibilities for matters such as: the substantive criteria for the construction of generating capacity in their territory, subject to guidance in the Directive; application of these criteria; and for ensuring network access and non-discriminatory transmission and distribution tariffs. They were given discretionary power as to whether to impose on electricity undertakings public service obligations in the general economic interest, relating to matters such as 137 http://www.ema.europa.eu/ema. 138  Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products [1993] OJ L214/1. 139  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use [2001] OJ L311/67, Art 28. 140  Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC [2009] OJ L211/55.

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security, regularity, quality and price of supplies, and environmental protection. They were obliged to ensure that all household customers, and where Member States deemed it appropriate, small enterprises, enjoyed universal service, defined as the right to be supplied with electricity of a specified quality at reasonable prices. They could appoint a supplier of last resort to ensure provision of universal service, and had the power to give compensation or exclusive rights to undertakings for the fulfilment of these obligations. They were obliged to take appropriate measures to protect final customers, in particular those who were vulnerable or who lived in remote areas; to ensure high levels of consumer protection; and to enable customers to switch to a new supplier. The overall regime was overseen at national level by regulatory authorities, which were responsible for ensuring non-discrimination, effective competition, and the efficient functioning of the market. There are other areas where the power accorded to national authorities falls between the two poles of the spectrum considered earlier. The type and degree of power given to national authorities is, nonetheless, the most important feature that distinguishes different regimes of shared administration. It is, moreover, a factor that cuts across that considered in the previous section. Thus, the mere fact that a regulatory regime is in certain respects bottom-up, does not necessarily mean that the Member State will have more power than in other areas where the shared administration is entirely top-down. There is no necessary correlation between this feature and the overall degree of power left to the national administration. (iii)  Vertical Dimension: The Existence of an EU Agency The nature of shared administration may also be affected by the existence of an EU agency.141 The extent to which this is so will depend on the nature of the EU agency, its  powers, and the surrounding body of rules applicable to the area. The following features are, nonetheless, of more general significance. The Commission’s authority may be reduced in relative terms and that of the Member States increased when an agency is created. This is because of the Commission’s minority role in the agency’s management board. The Commission’s concerns and frustration in this respect are apparent from its 2008 Communication on Agencies considered earlier.142 The very fact that the management board plays a central role in  setting the agency agenda, and making its key decisions serves to explain the Commission’s attention to this matter. The importance of this imbalance between Member State and Commission influence on the agency will depend on the nature of the agency’s powers. Other things being equal it will be less important if the agency’s powers are limited to information gathering and the like, and more important to the extent that the agency has powers of individual decision and ability to draft technical regulations, even if the latter have to be approved by the Commission. If we relate this to the earlier discussion it means that 141  Chiti, ‘Administrative Proceedings involving European Agencies’ (n 1). 142  European Agencies—The Way Forward, COM(2008) 135.

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even where shared administration is top-down, Member States may have a greater influence on what emerges from the ‘top’ where there is an agency. The existence of an agency may also reduce Commission influence within shared administration in a particular area because of the subject matter assigned to the agency, more especially when it is highly technical. In some instances, such as the regulation of medicines, this may lead to provisions built into the empowering Regulation whereby there is a presumption that the Commission will follow the opinion of the Agency.143 In other instances, such as air safety regulation, the technical nature of the subject matter means that the detailed regulation drafted by the Agency will normally be rubberstamped by the Commission.144 The regulations dealing with the new financial regulatory agencies make very clear that the draft regulations made by the agencies, which are dominated by the Member States, should be accepted by the Commission.145 (iv)  Horizontal Dimension: Networks and Interaction of Member State Administrations The regime of shared administration will also be markedly affected by the nature and degree of horizontal interaction between Member State administrations. Networks are prevalent throughout the EU.146 It is common in many areas of shared administration for there to be a network of national administrators or national regulatory authorities. The role played by such networks varies. The best known example of national network influence on rulemaking is Comitology,147 and networks also play a major role in the standardization process that accompanies the new mode of harmonization.148 In relation to the administration of agreed rules, it is not fortuitous that the most formal networks exist where there is the strongest incentive for effective enforcement of EU law across national borders. The Commission will normally be in the driving seat and will press for measures that enhance the enforcement capacities of the relevant national agencies to render the EU regulatory regime more effective. Thus, the Commission pressed for formal law to establish a network of national enforcement agencies and the EU regulations set out their powers and duties in considerable detail. The national agencies surrender some enforcement autonomy on their own territory, since they gain reciprocal powers of cross-border enforcement in other Member States. This is exemplified by the regimes in customs and agriculture, where problems of cross-border fraud have been especially prevalent,149 and in consumer protection 143  Reg 2309/93 (n 65) Art 10. 144  Regulation (EC) 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency [2002] OJ L240/1. 145  See 165. 146  P Craig, ‘Shared Administration and Networks: Global and EU Perspectives’ in G Anthony, J-B Auby, J Morison, and T Zwart (eds), Values in Global Administrative Law: Essays in Honour of Spyridon Flogaitis and Gerard Timsit (Hart, 2011) Ch 4. 147  Ch 5. 148  https://www.cen.eu/Pages/default.aspx; https://www.cenelec.eu; http://www.etsi.org/index.php. 149  Council Regulation (EC) 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters [1997] OJ L82/1, replacing earlier provisions dating from 1981.

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where cross-border cooperation was formalized and enhanced because of concerns that the pre-existing regime was not effective.150 Horizontal networks are also common in other areas. Thus, for example, in relation to competition there are provisions facilitating cooperation between NCAs, in d ­ ifferent Member States,151 and a European Competition Network has been established for discussion and cooperation between NCAs.152 Analogous mechanisms exist in relation to utilities, with institutional mechanisms designed to foster discussion of cross-border issues, the Florence Forum in relation to electricity,153 and the Madrid Forum in ­relation to gas.154 There is now also ACER, which is the Agency for Cooperation of Energy Regulators.155 The Commission will often be instrumental in creating such networks, as exemplified by the European Consumer Centres Network (ECC-Net), which was an EU-wide network created in order to promote consumer confidence with better informed and educated consumers, and also to help them in getting easy access to appropriate redress in case of a violation of their rights as consumers in cross-border transactions.156 EU support for such a network may indeed come from the European Council, with its existence then being embodied in a formal legal act, as was the case with the European Judicial Network in civil and commercial matters. The catalyst for its formation was the Tampere European Council in 1999, in which the heads of state wished the European Commission to take initiatives to improve access to justice in Europe, one of which was the establishment of a network of national authorities with responsibility for civil and commercial law. The Commission duly presented a proposal for a  Decision establishing the network in 2000, which was adopted by the Council in May  2001.157 The network consists of representatives of the Member States’ judicial and administrative authorities and meets several times each year to exchange information and experience and boost cooperation between the Member States as regards civil and commercial law. The main objective is to make life easier for people facing ­litigation of whatever kind where there is a transnational element, although it does not provide legal advice about a specific situation.158

150  Regulation (EC) 2006/2004 of the European Parliament and of the Council of 27 October 2004 on c­ ooperation between national authorities responsible for the enforcement of consumer protection laws [2004] OJ L364/1. 151  Commission Notice on cooperation within the Network of Competition Authorities [2004] OJ C101/43. 152 http://ec.europa.eu/competition/ecn/index_en.html. 153 https://ec.europa.eu/info/events/meeting-european-electricity-regulatory-forum-florence-2018-may-30_en. 154 https://ec.europa.eu/info/events/madrid-forum-2018-oct-17_en. 155 https://europa.eu/european-union/about-eu/agencies/acer_en. 156 https://ec.europa.eu/info/live-work-travel-eu/consumers/resolve-your-consumer-complaint/europeanconsumer-centres-network_en. 157  Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters [2001] OJ L174/25. 158  http://ec.europa.eu/civiljustice/index_en.htm; https://e-justice.europa.eu/home.do?action=home&plang=en.

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9 Conclusion Community administration has evolved since the inception of the EEC and continues to do so. More traditional decisional forms have been modified and extended and new decisional forms have been created in response to an EU that has been granted an expanded range of competences, the nature of which vary in different sectoral areas. There is little doubt that this administrative evolution will continue. These developments pose challenges for all those concerned with the EU and its interrelationship with the Member States, whether considered from the perspective of legitimacy, accountability, or effectiveness. These challenges will be considered in the chapters that follow. The detailed regime that pertains to each principal mode of EU administration will be considered. This includes analysis of legal and political accountability. It also includes substantive or output accountability, which speaks to the effectiveness of any particular regime of EU administration in discharging the task assigned to it. To ignore issues of substantive accountability leads to conclusions concerning the success or failure of EU administration that are necessarily incomplete.

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2 Crisis, Reform, and Constitutionalization 1 Introduction The previous chapter considered the history and typology of EU administration. The present chapter focuses on the impact of resignation of the Santer Commission, which had profound significance for EU administration, and the controls to which it was subject. The resignation received front-page attention in the press, proof for those minded to believe it of the malaise which had long existed within that organization. Its downfall was prompted by the First Report of the Committee of Independent Experts. This was followed in quick succession by reforms instituted by Romano Prodi as the new President of the Commission, by the Committee of Independent Experts’ Second Report, by the White Paper on reform of the Commission and implementation of these reforms. An understanding of these developments is crucial in order to appreciate the current pattern of EU administration. This chapter will chart these developments leading to administrative reform, including the Financial Regulation, which established a constitutional framework for Union administration of the kind that had not existed hitherto. Subsequent chapters will analyse the provisions contained therein as they relate to different types of EU administration.

2  The Fall of the Santer Commission (A) The Committee of Independent Experts, its Origin, and Criteria of Operation There had been concern in the EC for some considerable time about fraud, and mismanagement. Newspaper reports revealed instances of fraud in the Common Agricultural Policy (CAP), the Court of Auditors brought to light instances of mismanagement of certain Community policies, and UCLAF investigations revealed the ways in which Community funds were being misused. The European Parliament repeatedly expressed its dissatisfaction with the management of the Community’s financial resources.

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This culminated in a resolution of 14 January 1999 which called for a Committee of Independent Experts to be convened under the auspices of the European Parliament and the Commission with a mandate to detect and deal with fraud, mismanagement, and nepotism. It was for the Committee to decide how far the Commission as a body, or individual Commissioners, had responsibility for such matters. The Committee was also to conduct a fundamental review of the Commission’s practices in the award of all financial contracts. The Committee produced its first report within two months, by 15 March 1999. The Committee was not a Community institution, nor was it a Community agency. It had no formal investigative powers. It derived its authority from the agreement of the Parliament and the Commission, and saw itself as a temporary advisory committee operating by consent. The Committee began by defining its terms of reference. Fraud was taken to mean  ‘intentional acts or omissions tending to harm the financial interests of the Communities’, and included misappropriation of funds.1 Mismanagement was said to be a broader concept and encompassed ‘serious or persistent infringements of the principles of sound administration, and, in particular, acts or omissions allowing or encouraging fraud or irregularities to occur or persist’.2 It would normally be the result of negligence in the exercise of public management functions. Nepotism was ‘­favouritism shown to relatives or friends, especially in appointments to desirable positions which are not based on merit or justice.’3 Public officials should act in the general interest of the Community, with complete independence. Decisions should be made solely in terms of the public interest on the basis of objective criteria.4 Exigencies of time meant that the Committee could only investigate a limited ­number of Community policies. It nonetheless produced a Report of 146 pages by the ­stipulated date, and this had an immediate, dramatic effect, prompting the Commission to resign en bloc. The resulting crisis was the dominant headline in newspapers across Europe, being the focus of attention in quality papers and the tabloid press alike. For  many Eurosceptics it was proof of what they had always maintained, empirical vindication of the ‘rottenness at the heart of Europe’. The tabloid press in the UK, much of which had lost no opportunity in the past to berate the EC, vied to devise ever more cutting headlines. Individual sentences plucked from the Committee’s Report lent themselves readily to the media sound-bite age. The concluding paragraph of the Committee’s Report spoke in terms of it ‘becoming difficult to find anyone who has even the slightest sense of responsibility’5 within the Commission, and there were ­earlier references to a mismatch between the objectives assigned to the Commission, and the way in which it had chosen to fulfil them.6 Whether those who were so ready to dance on the grave of the outgoing Commission had actually read the Report might well be doubted. There is often an inverse ­correlation

1  Committee of Independent Experts, First Report on Allegations regarding Fraud, Mismanagement and Nepotism in the European Commission (15 March 1999) [1.4.2]. 2  Ibid [1.4.3]. 3  Ibid [1.4.4]. 4 Ibid [1.5.4].   5 Ibid [9.4.25].    6  Ibid [9.4.5].

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between the strength of one’s feelings and the depth of one’s knowledge. An executive summary is probably as far as most people got. Some might even have read the actual conclusion in the Report itself. It is, however, only by reading the entire Report that one can understand what went wrong in the cases investigated by the Committee. This is not to deny the existence of matters of real concern which the Committee brought to light. Its Report performed a valuable function in bringing together data on the problems encountered in the running of a number of important Community policies. It was, moreover, no bad thing in the long term for the Commission to have been publicly criticized in this manner, since there were doubtless those in the Commission who were arrogant, personally and ‘institutionally’, to others in the Community. It is, nonetheless, important to stand back and see what general lessons can be learned from the events that occurred, and to place these events within the more general context of decision-making by public bodies. It becomes readily apparent that the difficulties were those inherent in contracting-out by a public arm of government: the blurring of the line between policy formation and policy implementation; the difficulty of ensuring proper financial accounting for activities of the private contractor; the importance of a proper line of management within the public body; and the fact that the private contractor will normally not be imbued with a public ethos.7 These lessons must not be forgotten. It should, nonetheless, be acknowledged that there will often be no viable alternative to contracting-out for the effective discharge of many Community policies. This was recognized in the Second Report of the Committee of Independent Experts8 and in the White Paper on Reform of the Commission.9 The objective must be to develop techniques to ensure that contracting-out functions as an effective and efficient mechanism for the provision of Community public services.

(B) The Committee of Independent Experts’ Detailed Critique It is important at the outset to put the Committee’s findings into perspective. There was no finding of fraud against any Commissioner, and the great majority of the allegations of favouritism against individual Commissioners were said to be unfounded.10 The most serious allegation upheld by the Committee was against Commissioner Cresson, who appointed a close friend to a job for which he was not qualified, and whose work was deficient. The fraud that was found to exist was perpetrated by companies to which 7  P Craig, Administrative Law (Sweet & Maxwell, 8th edn, 2015) Ch 5; M Freedland, ‘Government by Contract and Private Law’ [1994] PL 86. 8  Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999). 9  Reforming the Commission, COM (2000) 200. 10  There were, however, previous instances where there had been concern over Commission behaviour, D Spence, ‘Plus ca change, plus c’est la meme chose? Attempting to reform the European Commission’ (2000) 7 JEPP 1, 9–10.

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work had been contracted out by the Commission, and the mismanagement resided in the Commission’s failure to detect this and to act quickly to stop it once it became apparent. This is apparent from the policies examined by the Committee. Tourism can be taken by way of example. Resolutions passed by the Council and European Parliament as early as 1983–4 prompted the Commission to propose to the Council a programme to highlight the economic significance of tourism in the EC, and to integrate tourism more closely with other Community policies than hitherto. 1990 was designated as European Year of Tourism by the Council,11 and this was followed in 1992 by the Council’s adoption of a three-year action plan to assist tourism.12 The total sum involved in these projects was 39.3 million ECUs. The implementation of the action plan was entrusted to the Commission. Directorate-General (DG) XXIII took responsibility and a specific unit was set up within Directorate A to implement the Community tourism policy. There were two main problems with administration of this policy. The Head of the Tourism Unit engaged in unauthorized activities that gave rise to embezzlement, corruption, and favouritism. The Committee of Experts felt that the Commission had been slow in checking whether the accusations levelled against the Head of the Unit were well founded, that the internal inquiries were incomplete, and that the penalty imposed was too lenient.13 There were also problems with the use of external consultants to whom work had been contracted out. The Committee of Experts criticized the fact that there was no adequate supervision of the consultants with the result that ‘those consultants performed managerial duties incumbent on officials and played an important role in the selection and monitoring of projects’,14 and there were unjustified payments made to the firm. Underlying these specific concerns was a more general problem, which was a factor in all the programmes studied by the Committee of Experts: insufficient staff within the Commission. The tourism project was managed by eleven people subject to Staff Regulations, and an external c­ onsultancy. The shortage of human resources undoubtedly contributed to management weaknesses and administrative failures.15 The Committee of Experts was critical of the College of Commissioners for proposing the tourism initiative without having the resources to do the job, more especially since the action plan involved the management of a large number of undertakings.16 Similar problems with contracting-out were apparent in relation to the MED programmes. These provided for decentralized cooperation with non-member countries of the southern Mediterranean. The aim was to strengthen political and economic cooperation with these countries to counterbalance aid given to countries in Central and Eastern Europe. A central theme of the programmes was that governmental

11  Council Decision 89/46/EEC of 21 December 1988 on an action programme for European Tourism Year (1990) [1989] OJ L17/53. 12  Council Decision 92/421/EEC of 13 July 1992 on a Community action plan to assist tourism [1992] OJ L231/26. 13  Committee of Independent Experts, First Report (n 1) [2.8.1]–[2.8.3]. 14  Ibid [2.5.6]. 15  Ibid [2.7.7]. 16  Ibid [2.9.1].

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s­ tructures should be avoided and that funds should be channelled to non-governmental organizations (NGOs). The total budget for 1992–6 was 116.6 million ECUs. The principal criticism of the MED programmes was that the Commission had illegally delegated its powers to a third party, ARTM, rather than merely signed a service contract. The terms of the contract entrusted ARTM with the implementation of the financing of the programme and gave it broad powers to manage the programme as a whole. The Committee’s Report acknowledged that the Commission did not have sufficient manpower to undertake the task in-house,17 but felt that this did not excuse delegation to the private sector without a sufficient control structure. The difficulties of maintaining control when work is contracted out were equally apparent in the context of the European Community Humanitarian Assistance Office (ECHO). It was established on 1 March 1992 to give the EC a more effective means for providing aid in emergency relief situations.18 During its first six years it disbursed some 3,500 million ECUs in aid. It did so largely through partner organizations, such as NGOs. ECHO was established as a new Directorate. The demands upon it grew, but there was no corresponding increase in its staff. Nor were there well-recognized financial or organizational procedures to regulate its activities.19 Budgetary appropriations were used in an irregular manner, since money intended for operations was used to finance staffing. Many within ECHO regarded this as a mere administrative irregularity, since the money was being used to cover staff that were necessary for ECHO to perform its tasks. The Committee of Experts took a different view. It concluded that if the system itself was inadequate, then it invited irregularity.20 It was also critical of the lateness of the Commission’s response to the problems with ECHO. Commission intervention only occurred four years later when a whistle-blower ­intervened.21 It was, moreover, clear that the Commissioners themselves were aware of the problem. The problems encountered with the running of the Leonardo da Vinci programme, launched in 1995, were particularly instructive. The programme was authorized by a Council Decision,22 and its objective was the implementation of a vocational training policy in support of initiatives conducted by individual Member States. It was to last for five years, from 1995–9, and had an appropriation of approximately 620 million ECU. The rationale for contracting-out was succinctly captured by the Committee.23 Normally, such a programme would have been implemented by the Commission’s services themselves. However, because of a lack of staff within DG XXII, and since it appeared impossible to re-deploy the necessary staff from other services in the Commission, it was decided to outsource the implementation of the project to a ‘technical assistance office’ following a public call for tender.

17  Ibid [3.4.1]–[3.4.3]. 18  Ibid [4.1.1]. 19  Ibid [4.2.2]. 20  Ibid [4.2.5]. 21  Ibid [4.2.10]. 22  Council Decision 94/819/EC of 6 December 1994 establishing an action programme for the implementation of a European Community vocational training policy [1994] OJ L340/8. 23  Committee of Independent Experts, First Report (n 1) [5.2.2].

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A firm called Agenor SA was awarded the five-year service contract, after tender, and it was renewable annually. Agenor therefore constituted the technical assistance office (TAO) for the Leonardo programme. Its main function was to manage several thousand project proposals per year and involved ‘complex processing procedures through a chain of operations leading to the selection of some 750 projects per year by the Commission’.24 Audit revealed that Agenor was in receipt of detailed information about the Leonardo programme prior to publication of its tender; the company was in breach of its contract conditions; it was not in compliance with national tax or social security laws; the company had a poor system of internal control; and there was some evidence that funds had been misappropriated. The Committee questioned whether Agenor’s deficiencies could have occurred without having become known at the highest level of DG XXII,25 and Agenor’s contract was only terminated on 31 January 1999. The European Parliament was, moreover, kept in the dark about these problems, which was important because it was considering a second Leonardo programme. The Committee of Experts was, however, aware of the need for contracting-out as  exemplified by its discussion of nuclear safety policy. The Commission had some responsibility in relation to nuclear safety since 1975. The Chernobyl accident in 1986 revealed the dangers of nuclear plants in the Soviet Union that did not conform to safety requirements. The EC therefore decided to allocate approximately 845 million ECUs for nuclear safety programmes. The Community resources were delivered under the TACIS and PHARE programmes. DG IA within the Commission managed the programme. The Committee of Experts drew on a Court of Auditors’ Report,26 which was critical of the excessive delegation and transfer of responsibilities to third parties. The Committee of Experts put the matter in the following way.27 The DG IA unit in charge of the programmes did not have the necessary manpower at its disposal, in terms of numbers and expertise, to draw up the nuclear safety programmes, follow them up and monitor implementation. For this reason, the Commission delegated some of its responsibilities to the Twining Programme Engineering Group (TPEG) and to supply agencies to such an extent that the Court of Auditors termed these delegations excessive and likely to jeopardise the institution’s independence.

The Committee of Experts did not, however, share all the criticisms voiced by the Court of Auditors.28 The Committee of Experts concluded that there were no grounds for saying that the implementation of the nuclear safety programme gave rise to fraud or serious irregularities.

(C) The Committee of Independent Experts’ Conclusions The final section of the Report contained the Committee’s conclusions from the detailed studies which it had undertaken. Three general points stand out in this respect. 24  Ibid [5.2.3]. 25  Ibid [5.4.9]. 26  Special Report No 25/98 [1999] OJ C35/1. 27  Committee of Independent Experts, First Report (n 1) [7.4.1]. 28  Ibid [7.4.9], [7.7.2].

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The first was that the Commissioners did not have sufficient control over the administration. There were no cases in which Commissioners were directly or personally involved in fraudulent activities, but protestations by the Commissioners that they were unaware of the problems later brought to light were ‘tantamount to an admission of a loss of control by the political authorities over the Administration that they are supposedly running’.29 There were, moreover, instances where the Commissioners or the Commission as a whole bore some responsibility for fraud, irregularities, or mismanagement in their services.30 The second point concerned staffing. A common theme in the programmes studied was the need to contract out because of inadequacies in staffing levels in the Commission. The Committee was not on the whole sympathetic with this rationale for the manner of carrying out Community policies. It took the view that the Commission should never have taken on policies when it lacked the proper resources to do so. Thus ­speaking of the MED programmes, the Committee stated that the ‘Commission as a whole deserves serious criticism (as in other cases under review) for launching a new, politically important and highly expensive programme without having the resources— especially staff—to do so’.31 Similar sentiments were expressed about the ECHO policy,32 and the Leonardo programme.33 The Committee also felt that the Commission should have made better use of the staff which it did possess. Thus, the Committee spoke of a failure by the Commission to set priorities, and that there were as ‘many fiefdoms as there are Commissioners’.34 The third point which emerged from the Committee’s conclusions was that the ­control and audit procedures within the Commission were not able to rectify the ­problems in good time.

3  Service Delivery and Accountability The Report by the Committee of Independent Experts was important for its evaluation of programmes administered by the Commission. The Committee’s conclusions deserved to be taken seriously. There were, however, issues on which there was more to be said about responsibility for what occurred in the past, and the lessons for the future.

(A) Responsibility for Policies Where There were Staff Shortages We have seen that shortage of staff in-house was a major reason why the Commission contracted out work. The Committee was for the most part unsympathetic to the Commission in this respect for three reasons: the Commission should never have undertaken these programmes without the requisite staff; it should have calculated the 29  Ibid [9.2.2]. 32  Ibid [9.2.6].

30  Ibid [9.2.3]. 33  Ibid [9.2.7].

31  Ibid [9.2.5]. 34  Ibid [9.4.6].

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aggregate calls on its resources and prioritized between such demands; and the Commission should have asked for budget increases to cover the extra staffing required. This critique can, however, be questioned. The conception of EC policy formation that underlies this critique is overly ­simplistic. The picture of Community decision-making captured in the aphorism ‘the  Commission proposes, the Council disposes’, may well have characterized ­policymaking in the early years of the Community. It no longer captured the more complex reality whereby Community legislation was made at the end of the last millennium. The European Parliament, since the Single European Act 1986, had a real input into the content of such legislation. Nor was the Council a mere passive receptor, awaiting ­legislative proposals from the Commission, since approximately 40 per cent of Commission proposals originated in suggestions made by the Council pursuant to Article 208 EC. If blame is to be ascribed for proposing policies with inadequate resources it should not be laid solely at the door of the Commission. The programmes under examination did not emerge simply as a result of a Commission initiative. There were often resolutions from the Council and European Parliament, which were taken forward by the Commission. This was recognized at certain points in the Committee’s Report, albeit not developed. Thus the Committee stated that the ‘European Parliament and the Council have imposed on the Commission more and more tasks, while at the same time applying rigorous budgetary restrictions’.35 The Council and Parliament cannot therefore evade all responsibility for ensuring that the resources were there to do the job. Legislative power is shared between the Council, European Parliament, and Commission. So too should legislative responsibility. The Committee’s critique was also that the Commission should have better calculated the overall demands on its resources and that the College of Commissioners should have drawn up a list of priorities. There is force in this point. There should and could have been more macro-level planning by the Commission. The difficulties of undertaking such exercises should not, however, be forgotten. This is particularly so in the context of a decision-making structure such as the EC, where legislative power is shared, with the consequence that it might be difficult for the Commission to determine precisely when, or indeed whether, a new programme would come ‘on line’. Proposals for a programme might be included in the annual legislative agenda, but whether they are actually enacted by the Council and Parliament might be affected by a whole range of factors which could not easily be foreseen. Accurate macro-level planning is obviously all the more difficult in such circumstances. The final element of the Committee’s critique concerning resourcing is that the Commission should have pressed for budget increases. The Committee’s response to the use of contracting-out, auxiliary staff, and the like because of staff shortages was that ‘the Commission can put forward whatever proposals it sees fit with regard to its Establishment Plan when it submits its preliminary draft budget to the budgetary

35  Ibid [5.8.2], [9.4.5].

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authority’.36 It was for that reason that the Committee felt that the ‘excuses referring to the shortage of human resources were at odds with the decisions taken by the Commission itself to continue the policy of austerity budgets since 1995’.37 How much leeway the Commission really had to propose such budget increases may be doubted. The passage of the budget is a complex process in which the Commission, Council, and European Parliament all have input. The resulting budget is perforce dependent on political and economic factors. The Committee recognized that the Council and Parliament were imposing on the Commission an increasing range of tasks, while at the same time maintaining rigorous budget restrictions.38 The Commission then had to make a political calculation as to whether it was realistic to press for budget increases relating to staff. It could be argued that if the Commission felt thus constrained it could have declined to take on new programmes. Yet this too oversimplifies the way in which political institutions operate. It would have been difficult for the Commission to reject important new initiatives pressed by the Council and the European Parliament, since this would have looked like failure on its part whatever the reality was.

(B) The Legitimacy of Contracting-Out as a Method of Service Delivery The second issue which is worthy of comment concerns the legitimacy of contractingout as a method of service delivery. Most of the Community policies implemented in the past had been executed with the help of national bureaucracies. The programmes analysed in the Committee’s Report were different. They were either designed consciously to bypass national bureaucracies, as in the case of the MED programmes; or they entailed the direct evaluation of large numbers of project bids, as in the case of the Tourism and Leonardo initiatives; or the very nature of the programme necessitated working with a range of NGOs, as in the case of the ECHO. These programmes therefore required more direct implementation of policy than had been the case hitherto. In the absence of sufficient staff in-house, it became necessary to contract out much of the work. The Reports of the Court of Auditors, and that of the Committee of Experts, show the need for proper supervision if contracting-out is to be acceptable. Indeed, the costs of such supervision need to be borne in mind when undertaking the economic calculus about the pros and cons of this strategy. The Committee’s more general words about contracting-out in the context of the Leonardo programme could be extended to all of the cases studied.39 The implementation of Community programmes by private contractors can only be accepted on the basis of a guarantee that the essence of the public function is not abandoned into the hands of the private contractor. Moreover, those private contractors must be subject to contractual provisions imposing strict obligations in the general interest, and the public authorities must effectively supervise this action. It is clear that such supervision has 36  Ibid [9.4.2].

37  Ibid [9.4.2].

38  Ibid [5.8.2].

39  Ibid [5.8.3].

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not been exercised with sufficient care in the present case vis-à-vis the Leonardo/Agenor TAO. It would seem that excessive confidence has been placed in the TAO, and thus excess reliance on outside consultants.

Notwithstanding this extract, the impression created by some parts of the Committee of Experts’ Report, is that contracting-out was an unfortunate by-product of the Commission’s resourcing problem. If this problem had been properly addressed there would have been less need for contracting-out. There is no doubt that if the Commission had possessed more resources in-house there would have been no need for the subterfuges used to staff ECHO, supervision of all the programmes would have been that much easier, and there would have been less likelihood that public sector policy responsibility would have been transferred to the private sector, as was the case in ­relation to some programmes. It should, nonetheless, be recognized that contracting-out must and should remain an option for the delivery of public services, as recognized in the Committee’s Second Report40 and the Commission’s White Paper.41 Not only must it remain an option, it  will in many instances still be the best option all things considered. The more ­programmes are committed to the direct responsibility of the Commission, without direct input from national bureaucracies, the more the Commission will need to have recourse to contracting-out, as exemplified by nuclear safety. Contracting-out may be necessary or desirable in many other areas. Programmes such as Tourism and Leonardo involved the collection of data, the establishment of criteria by which to evaluate projects, and the actual evaluation of particular proposals. Even if the staffing pressures within the Commission were alleviated it is not clear that it would be desirable in terms of efficiency for this work to be done in-house.42 Contracting-out in such areas, subject to effective Commission oversight, will therefore often be the optimal method of ­delivering programmes.

4  The Prodi Commission and Institutional Reform (A)  The Initial Prodi Reforms Romano Prodi, the new President of the Commission, lost no time in introducing reforms designed to restore faith in the Commission. A paper was produced titled Formation of the New Commission.43 It contained a new Code of Conduct for Commissioners with strict rules about the declaration of interests, and the outside activities which Commissioners are allowed to pursue. The same paper also contained detailed rules about the formation and role of the Commissioners’ private offices. A separate paper entitled the Operation of the Commission44 dealt with a number of

40  See n 8. 41  See n 9. 42  I Harden, The Contracting State (Open University Press, 1992). 43  12 July 1999. 44  12 July 1999.

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matters. The Commission’s Rules of Procedure were revised. New working groups of Commissioners were established to ensure the better preparation and coordination of  the Commission’s activities.45 Increased emphasis was placed on closer internal ­coordination within the Commission.46 This was of particular importance. The broad range of activities for which the Commission is responsible, combined with increased decentralization, furthered the need for closer internal coordination to ensure the consistency and effectiveness of the Commission’s actions. The paper, therefore, gave particular emphasis to the setting of priorities, and the need to ensure that the Commission had the resources necessary to meet them.47 In his first major address to the European Parliament, Romano Prodi emphasized these new initiatives.48 He also made it clear that, although it was not at that time formally dealt with in the Treaty, he would not hesitate to ask for the resignation of an individual Commissioner should this prove to be necessary. All of his new team accepted their portfolios on this understanding. These initial reforms introduced by Romano Prodi were followed by the setting up, on 18 September 1999, of a Task Force for Administrative Reform (TFRA) for which Neil Kinnock was given responsibility. The mission statement of the TFRA49 listed the following matters which would be considered: human resources; allocation and use of internal and external resources; management of operational activities; internal financial and budgetary controls; audits; interaction between control services and the European Anti-Fraud Office (OLAF; previously UCLAF); programming; ethics and discipline; and internal communication. The White Paper50 that emerged as a result of this study will be analysed later. Before doing so, it is important to consider the Second Report of the Committee of Independent Experts, since this influenced the recommendations produced in the White Paper.

(B) The Second Report of the Committee of Independent Experts The Second Report of the Committee of Independent Experts was published on 10 September 1999.51 It was a study of major importance covering two volumes and running to 278 pages. It deserves to be read by all those interested in administrative reform within the Community. The Report received nothing like the attention that had been focused on the earlier document, which had led to the downfall of the Santer Commission. In the long term the Second Report was undoubtedly of greater i­ mportance for its insights into the workings of the Commission. It is not possible to do full justice to this Report here. The focus will be on the central recommendations made by the Committee in Volume I. The material covered in Volume II will be analysed where 45  Such groups were established to deal with: growth, competitiveness and employment; equal opportunities; reform; inter-institutional relations; and external relations. 46  The Operation of the Commission, 12 July 1999, 18–22. 47  Ibid 18, 20. 48  Speech by Romano Prodi, President-designate of the European Commission, to the European Parliament, 21 July 1999. 49  20 October 1999. 50  Reforming the Commission, COM (2000) 200. 51  Committee of Independent Experts, Second Report (n 8).

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relevant when considering the Commission’s White Paper. Volume I dealt primarily with the different ways in which services are delivered within the Community, the division being between those areas where the Commission has a direct management responsibility, and those instances where this responsibility was shared between the Commission and the Member States. The discussion of direct management was rich, sophisticated, and blunt. Direct management covers those areas where the Commission itself directly manages a programme without the necessary involvement of national administrations, albeit often with the aid of an outside contractor. The area covered at that time one-sixth of the Community budget.52 The Committee accepted that the ‘Commission will in future have a huge number of tasks to perform, the temporary and specialized nature of which requires them to be contracted-out—subcontracting being justified on the grounds of efficiency, expediency and cost’.53 It noted that recourse to such contractingout had never been challenged by the European Parliament or the Council.54 While accepting the need for contracting-out, the Committee was clear that existing arrangements were imperfect. Contracting-out had been undertaken through the medium of TAOs which were, in the Committee’s view, nothing more than Commission contractors.55 The use of TAOs raised problems as to the dividing line between Commission tasks that could be contracted out without any risk to the public service, and ‘those in respect of which the Commission would be abandoning its r­ esponsibilities if it were to delegate them to private companies’.56 The difficulty was to determine what  constituted a public service responsibility.57 The way forward favoured by the Committee was to establish a new type of implementing agency. These should not be permanent, nor should they contain Member State representatives.58 They should exist solely for the duration of the particular project. Such agencies would facilitate the working together of Community officials seconded to the agency, with staff from the private sector.59 The Committee’s Report contained a number of other valuable recommendations in relation to direct management. There should be better training for Community staff, so as to improve their management of contracts.60 The Financial Regulation, the principal legal provision under which disbursements were made, was in need of thorough overhaul,61 as were the complex rules concerning public procurement.62 The position of the authorizing officer should be enhanced.63 The Committee’s discussion of shared management served as a timely reminder of the difficulties of executing policies when administration is shared between different levels of government. While the errors identified in the Committee’s First Report that led to the downfall of the Commission related to direct management, shared management has generated most concern in annual reports of the Court of Auditors. 52  Ibid Vol I [2.1.1]. 53  Ibid Vol I [2.3.1]. See also [2.0.1], [2.3.8]. 54  Ibid Vol I [2.3.1]. 55  Ibid Vol I [2.3.4], [2.3.14]. 56  Ibid Vol I [2.3.10]. 57  Ibid Vol I [2.3.19]. 58  Ibid Vol I [2.3.27]. 59  Ibid Vol I [2.3.27]–[2.3.31]. 60  Ibid Vol I [2.0.5]. 61  Ibid Vol I [2.1.15]–[2.1.19]. 62  Ibid Vol I [2.1.17]. 63  Ibid Vol I [2.2.49]–[2.2.59].

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Shared management refers to the management of those Community programmes where the ‘Commission and the Member States have distinct administrative tasks which are inter-dependent and set down in legislation and where both the Commission and the national administrations need to discharge their respective tasks for the Community policy to be implemented successfully’.64 The CAP and the Structural Funds, which at that time took up over 70 per cent of the Community budget, were the prime examples of shared administration. While the Member States had responsibility to counter fraud, the detailed regulations often provided a disincentive for them to do so, an issue to which we shall return in the discussion of shared administration later.65 The Committee’s discussion of both direct and shared management must be seen in the light of its more general recommendations concerning the control environment. It produced a detailed analysis of the shortcomings of internal control and internal audit. Internal or ex ante control had traditionally taken the form of the ‘visa’ system, which was designed to ensure that proposals for expenditure were in conformity with the appropriate rules and procedures. It did not, however, work effectively, and many items of expenditure for which a visa had been granted were later found to be irregular or illegal. The system displaced responsibility for financial regularity from the person actually managing the expenditure onto the person approving it, with the consequence that no one was ultimately responsible.66 The Committee recommended that the authorizing officer should bear responsibility for proposals which he authorized, as opposed to validation by a separate, central authority of the kind hitherto undertaken by the Financial Controller.67 The Committee was equally convinced of the need for change in the system of internal audit. The Financial Controller at that time had overall responsibility for both the visa and audit functions. This dual role caused difficulties where an audit revealed irregularities in relation to payments for which a visa had been issued. The Committee favoured creation of an independent Internal Audit Service, which should report directly to the President of the Commission.68

(C) Reforming the Commission and the White Paper The TFRA produced a consultative document in January 2000,69 and the White Paper appeared in March of the same year.70 Part I of the White Paper set out the general principles on which reform of the Commission was to be based, while Part II contained an Action Plan detailing how these principles were to be achieved. The White

64  Ibid Vol I [3.2.2]. 65  Ch 4. 66  Committee of Independent Experts, Second Report (n 8) Vol I [4.6.2]. 67  Ibid Vol I [4.7.], [4.18.1]. 68  Ibid Vol I, [4.13], [4.18.2]. 69  Consultative Document, Reforming the Commission, CG3 (2000) 1/17, 18 January 2000. 70  Reforming the Commission, COM (2000) 200.

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Paper acknowledged the contributions made by the Reports of the Committee of Independent Experts,71 and the DECODE exercise.72 The theme of the White Paper was made clear at the outset. The Prodi Commission wished to concentrate more on core functions such as policy conception, political initiative, and enforcing Community law. The fact that almost half of the Commission officials spent their time managing programmes was not regarded as an efficient use of  resources.73 The execution of Community programmes would, therefore, require identification of those ‘activities that could be more usefully and efficiently executed by other bodies, where necessary, under the control of the Commission’.74 With the Reports of the Committee of Independent Experts firmly in its mind, it was made clear that if the Commission did not have the requisite resources to carry out its tasks, and  more resources were not forthcoming, then the Commission would have to ­discontinue some programmes.75 The modern Commission should be independent, ­responsible, accountable, efficient, and transparent.76 Three more particular themes are explored in the White Paper: priority setting, and the allocation and efficient use of resources; human resources policy; and the overhaul of financial management. The attention given to priority setting, and the allocation and efficient use of resources was to enable the Commission to concentrate on its core activities. Resources had, in the past, not been linked to priorities both because Commission decisions on activities were taken separately from those on the allocation of resources, and because the Council and European Parliament gave the Commission new tasks without providing the extra resources needed.77 This mismatch was to be addressed in part by the introduction of a system of Activity-Based Management (ABM), the object of which was to ensure that decisions about policy priorities and the corresponding resources were taken together within the organization.78 It was also to be addressed by the simplification of working procedures and the introduction of performance-oriented working methods in the Commission.79 The Commission’s wish to concentrate on its core activities was the rationale for what was termed an ‘externalization policy’: the delegation of activities to other bodies. These included Community bodies, decentralization to national public bodies, and contracting out to the private sector.80 Externalization was only to be pursued where it was the most efficient option; it should not be pursued at the expense of accountability; and there had to be sufficient internal resources to ensure proper control. It should not therefore be used for the administration of ill-defined activities, nor where real discretionary power was involved.81 The type of task that was delegated would depend on the 71  Ibid Part I, at 2. 72  Designing Tomorrow’s Commission, A Review of the Commission’s Organization and Operation, 7 July 1999. This exercise was begun in 1997 by the Commission and constituted a review of all the activities which it carried out. The principal objective was to determine what work was being done, why it was being done, who did it, and how the work was being carried out. 73  Reforming the Commission (n 70) Part I, 1. 74  Ibid Part I, 2. 75  Ibid Part I, 2. 76  Ibid Part I, 3–4. 77  Ibid Part I, 4. 78  Ibid Part I, 5–6. 79  Ibid Part I, 6–7. 80  Ibid Part I, 6. 81  Ibid Part I, 7.

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body to which it was delegated, with outsourcing to private bodies being subject to the strictest limits.82 There is much that harks back to the Reports of the Committee of Independent Experts. This is also apparent in the suggestion in the White Paper that there should be a new type of implementing body to be headed by Community staff, which was the seed for what became the new breed of executive agency.83 The White Paper proposed a number of detailed changes in relation to human resources.84 These related to management, recruitment, training, career structure, performance appraisal, promotion, and the like. The most interesting point related to career structure. It was recognized that the current system provided little in the way of incentive to good performance or personal initiative, and that it acted as an artificial constraint on those with particular abilities. The White Paper therefore proposed the development of a new and more linear career structure.85 The discussion of audit, financial management, and control also developed a number of the ideas from the Committee of Independent Experts. The White Paper a­ cknowledged that the centralized system of financial control was no longer capable of dealing with the volume of transactions which the Commission had to process. It recognized that the centralized ‘visa’ system of control had not worked and that it gave decision-­ makers  a false sense of security. It accepted also that the position of the Financial Controller, being responsible for the ex ante visa, and the ex post audit, could give rise to a conflict of interest.86 The emphasis for the future was to be on decentralization. Directors-general would exercise the powers currently held by the Financial Controller.87 Financial responsibility would be allocated to authorizing officers within departments: ‘as far as possible the person taking the operational decision to go ahead with an ­operation involving expenditure should also be the one authorising the expenditure’.88 The proposals relating to audit drew heavily on those of the Committee of Experts. There was to be an Internal Audit Service under the authority of the Vice-President for Reform, and each department was to have its own specialized audit c­ apability. There was, in addition, to be an Audit Progress Committee which would monitor the quality of audit work, and the implementation of audit recommendations made by the Court of Auditors.89

5  Implementation of the Reforms An Action Plan was attached to the White Paper highlighting ninety-eight points on which further measures were required in order to implement the broader objectives of the reform agenda. These were carried through by an admixture of formal legislation, 82  Ibid Part II, 17–18. 83  Committee of Independent Experts, Second Report (n 8) Vol I [2.3.27]–[2.3.31]; White Paper (n 70) Part I, 7. 84  White Paper (n 70) Part I, 8–15. 85  Ibid Part I, 10. 86  Ibid Part I, 17. 87  Ibid Part I, 17. 88  Ibid Part I, 16. 89  Ibid Part I, 18.

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soft law, and internal administrative reform. The discussion that follows gives a brief overview of changes in the different areas where action was deemed necessary.90

(A)  A Culture Based on Service and Ethical Standards A number of initiatives were passed in order to effectuate the White Paper actions concerning the creation of a more service-based culture. A Code of Good Administrative Behaviour dealing with relations between the Commission and the public came into effect on 1 November 2000. A Regulation was enacted on access to documents held by Community institutions and extended to cover other Community bodies, such as agencies.91 A number of initiatives were concerned with the safeguarding of ethical and professional standards. These included a modified Code of Conduct for Commissioners adopted by the Barroso Commission on 24 November 2004. There were also changes to the disciplinary procedures applicable to staff where there was serious wrongdoing. Guidelines were introduced to deal with under-performance by staff that did not amount to serious wrongdoing, with mechanisms to detect professional incompetence at an early stage.

(B) Priority Setting and the Efficient Use of Resources There were changes to improve policy coordination. There was an ABM Steering Group, which was chaired by the Secretary-General, and included directors-general and cabinets from central services. Changes were made to address the concerns about the setting of priorities and the allocation of resources to meet them. The system now operates as follows.92 The Commission on entering office publishes a five-year programme, setting out the strategic objectives for that period at a relatively high level of generality. Thus the programme for 2015–19 had ten priorities: jobs, growth, and investment; energy union and climate; digital single market; internal market; a fairer economic and monetary union; balanced and fair trade policy; justice and fundamental rights; migration; the EU as a global actor; and democratic change.93 The Commission then proposes an annual work programme, designed to carry forward these initiatives.94 There may, 90  Progress Review of Reform, COM(2003) 40 final; Completing the Reform Mandate: Progress Report and Measures to be Implemented in 2004, COM(2004) 93 final. 91  Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43. 92 https://ec.europa.eu/info/strategy/decision-making-process_en. 93  https://ec.europa.eu/commission/priorities_en; J-C Juncker, A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change, 15 July 2014, https://ec.europa.eu/commission/publications/ president-junckers-political-guidelines_en; White Paper on the Future of Europe, 1 March 2017, https://ec. europa.eu/commission/sites/beta-political/files/white_paper_on_the_future_of_europe_en.pdf. 94  Commission Work Programme 2018, An Agenda for a more United, Stronger and more Democratic Europe, COM(2017) 650 final.

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in addition, be priorities within this programme that are jointly agreed between the Council, the European Parliament, and the Commission.95 Each Commission Department establishes a five-year Strategic Plan, setting out its vision for that period.96 It will also publish an Annual Management Plan (AMP) to show how it will contribute towards attainment of the Commission’s annual work programme.97 Thus the AMP translates the priority initiatives and the strategic objectives of the Commission into concrete operations and provides an instrument enabling the management to plan, and report on all the activities and resources of each directorategeneral. Each Department presents an Annual Activity Report (AAR), which mirrors the AMP in the sense of monitoring how far objectives have been realized.98 The cycle ends with Synthesis Reports by the Commission, which assess policy progress, the way in which resources were used, and proposals for remedying deficiencies revealed in the individual reports from the DGs.99 Impact assessment is a prominent feature of the Commission’s legislative planning.100 It is designed to assess the problem and the objectives pursued. It identifies the main options for achieving the objective and analyses their likely impact in economic, ­environmental, and social terms. Impact assessment is regarded as an aid to political decision, not a substitute for it. It informs decision-makers of the impact of proposals, while leaving it to them to take the decisions. Thus, ‘impact assessment identifies the likely positive and negative impacts of proposed policy actions, enabling informed political judgments to be made about the proposal and identify trade-offs in achieving competing objectives’.101 Impact assessment is applied to all major initiatives included in the Commission’s Annual Policy Strategy or Work Programme.

(C) Staff Policy The White Paper listed numerous action points in relation to human resources policy. The centrepiece of the new personnel policy involved significant changes to appraisal and promotion, designed to link merit and career development more closely than had  been the case hitherto. Certain of the modifications concerning staff required amendment to the Staff Regulations, including matters relating to career structure, mobility, welfare policy, pay and pensions, early retirement, and discipline. Change in this area did not prove easy, with staff representatives threatening to reject significant 95  Joint Declaration on the EU’s Legislative Priorities for 2017, 13 December 2016, https://ec.europa.eu/ commission/publications/joint-declaration-eus-legislative-priorities-2017_en. See also https://ec.europa.eu/info/ strategy/decision-making-process/how-decisions-are-made_en. 96 https://ec.europa.eu/info/publications/strategic-plans-2016-2020_en. 97  https://ec.europa.eu/info/publications/management-plans_en; https://ec.europa.eu/info/publications/ management-plans-2017_en. 98 https://ec.europa.eu/info/publications/annual-activity-reports_en. 99  Annual Management and Performance Report for the EU Budget, COM(2017) 351 final. 100 https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en. 101  Impact Assessment, COM(2002) 276 final, 2. See also Impact Assessment Guidelines, SEC(2009) 92, http://ec.europa.eu/smart-regulation/impact/commission_guidelines/docs/iag_2009_en.pdf.

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parts of a draft document and to strike. A mediator was appointed, the draft regulations were amended, and the new Staff Regulations entered into force on 1 May 2004.102

(D) Financial Management, Control, and Audit The White Paper listed numerous matters relating to financial management that should be addressed. Many of these were dealt with through the Financial Regulation, which established a constitutional framework for EU administration that had not existed hitherto. The term constitutionalization has a plethora of meanings. Its use here signifies that the principles governing EU administration have been enshrined in a norm of constitutional importance, and that these principles frame Union administration. The previous Financial Regulation was enacted in 1977, and had been amended on many occasions.103 The Financial Regulation 2002,104 based on Commission proposals,105 provided a legal framework for EU administration. The detailed provisions concerning direct and shared management will be considered in the chapters that follow. This ­distinction was, as we have seen, central to the Second Report of the Committee of Independent Experts, and to the Commission White Paper. It was embodied in the Financial Regulation 2002. Chapter 2 of Title IV, Implementation of the Budget, was concerned with Methods of Implementation. Article 53 of the Financial Regulation provided that the Commission should implement the budget either on a centralized basis or by shared or decentralized management, or by joint management with international organizations. There were also significant organizational changes as a result of the Financial Regulation. An Independent Internal Audit Service106 was established in July 2001. There are also specialized audit services within each DG, which report directly to the director-general or head of department.107 The Financial Regulation 2002 was replaced by a new Financial Regulation 2012,108 in order to accommodate requirements of the Lisbon Treaty, and to introduce changes felt desirable in the light of experience thus far. The relevant changes were touched on

102  Council Regulation (EC, Euratom) 723/2004 of 22 March 2004 amending the Staff Regulations of the officials of the European Communities and the Conditions of Employment of other servants of the European Communities [2004] OJ L124/1. 103 Financial Regulation of 21 December 1977 Applicable to the General Budget of the European Communities [1977] OJ L356/1. 104  Council Regulation (EC, Euratom) 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities [2002] OJ L248/1, as amended by Council Regulation 1995/2006 [2006] OJ L390/1. 105  Proposal for a Council Regulation on the Financial Regulation Applicable to the General Budget of the  EC, COM(2000) 461 final; Amended Proposal for a Council Regulation on the Financial Regulation Applicable to the General Budget of the EC, COM(2001) 691. 106 http://ec.europa.eu/dgs/internal_audit/index_en.htm. 107 http://ec.europa.eu/budget/explained/reports_control/audits/audits_en.cfm. 108  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 [2012] OJ L298/1.

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earlier109 and will be considered in detail later.110 Suffice it to say for the present that the Financial Regulation 2012 retains the basic divide between centralized, shared, and decentralized administration, although there are some differences in the detailed working through of these principles.

6  Conclusions and Assessment The forced resignation of the Santer Commission sent shockwaves through the Commission bureaucracy. It prompted a wide-ranging inquiry into the methods of administration and service delivery within the EU. There were, nonetheless, concerns that the lessons learned from the experience, embodied in the reports of the Committee of Independent Experts and in the Commission White Paper, might simply gather dust in the manner redolent of some previous reform initiatives. This did not happen. The Commission to its credit did not deny the need for reform. It followed through on the ‘action points’ listed in the White Paper. It crafted the Financial Regulation, which gave formal legal force to many of the more particular suggestions for reform contained in the earlier reports. The Financial Regulation is not a panacea for all ills, real and imagined, that have beset EU administration. Nor, as we shall see in subsequent chapters, does it address all the modes by which the EU delivers policy. It is, nonetheless, an important initiative that provides a principled foundation for central aspects of EU administration, direct and shared. The Commission has, moreover, also undertaken the other reforms adumbrated earlier, some enshrined in formal legislation, others in codes, and yet others brought about through internal administrative change. It is, however, important to keep a perspective on what has and what has not been achieved. The Commission documentation on implementation of the reforms read somewhat in the manner of a check list, with itemization of action points that had been met. To be fair, the Commission also recognized that reform is a ‘process of change and discovery’111 rather than simply an endpoint to be measured in terms of compliance with the ninety-eight issues listed in the White Paper. There is, nonetheless, still room for disagreement within the EU as to how far the reforms addressed the relevant problems. This is readily apparent from a reading of the Court of Auditors’ Report 2003.112 Thus the Report stated with reference to expenditure through shared management that while progress had been made in relation to financial probity, the ‘Court has no ­reasonable assurance that the supervisory systems and controls of significant areas of  the budget are effectively implemented so as to manage the risks concerning the legality and regularity of the underlying operations’.113 The Court of Auditors believed

109  See 22–3. 110  See 57–60. 111  Progress Review of Reform (n 90) 1. 112  Court of Auditors, Annual Report Concerning the Financial Year 2003 [2004] OJ C293/1. 113  Ibid [0.4].

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that the annual activity reports from the Directors-General could not yet systematically serve as a useful basis for its audit conclusions,114 and regarded the Commission’s assessment that all the action points from the White Paper had been completed or that significant progress had been made as ‘very optimistic’.115 The Commission by way of response acknowledged that certain problems could only be effectively resolved in the medium term. The possible second-order consequences of reforms that have been achieved should also have been borne in mind. Thus the emphasis placed on financial regularity can lead to a culture in which the individuals at the front line responsible for authorizing expenditure become overly wary of doing so. It is equally important to remember that the success of any part of the reform strategy is, as the Committee of Independent Experts wisely noted, dependent upon a more general modification in the culture of the Commission. Formal responsibilities can be enshrined in codes of conduct and the like, but this must not be ‘confused with respect for substance’.116 The very idea of responsibility captures a range of ideas including personal integrity, formal procedural safeguards, and institutional accountability.117 It should be equally recognized that the successful, fair, and efficient delivery of EU policies is not the responsibility of the Commission alone. The Council and the European Parliament have important roles in the legislative and budgetary process. They cannot shift all responsibility to the Commission when things go wrong. If the EU wishes to take on new tasks, or to develop existing policies, then the Council and the European Parliament must recognize that this cannot be done without the requisite resources. If the political will is not there to secure these resources then this should be recognized at the outset, so that the Commission is not saddled with the administration of policies which it is unable to deliver. We should finally be mindful of the different roles played by law in this area. Law, in the form of general EU legislation, establishes the overarching principles to govern Union administration, as exemplified by the Financial Regulation. Law, in the form of specific EU legislation, encapsulates choices that can markedly affect success or failure, as exemplified by the regulations governing the CAP and the Structural Funds.118 Law is used to legitimate new institutions for policy delivery, such as executive agencies.119 Law, in the form of judicial review, has a Janus-like focus. The EU Courts will control abuse of administrative power. They also use judicial review to read EU legislation in the manner that best conforms to the Union interest. We must also be aware of the limits of law. The bypassing of formal legal norms by key players, and the legal response, is a fascinating part of the story.

114  Ibid [1.70]. 115  Ibid [1.72]. 116  Committee of Independent Experts, Second Report (n 51) Vol II, [7.1.4]. 117  Ibid Vol II, [7.1]–[7.16]. 118  Ch 4. 119  Ch 3.

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3 Centralized Management 1 Introduction The previous chapter charted the reforms made in the aftermath of the fall of the Santer Commission, including the emergence of a constitutional framework for Union administration embodied1 in the Financial Regulation 2002.2 The divide between centralized and shared administration was central to the reform initiatives and also to the structure of the Financial Regulation 2002, now contained in the Financial Regulation 2012.3 This chapter will take the story forward by considering the regime that governs centralized EU administration. The discussion begins with a brief overview of the rationale for centralized administration and the problems encountered in the past. This will be followed by detailed analysis of the regime for centralized administration found in the Financial Regulation and related instruments. There will then be examination of the use of executive agencies in specific areas of EU policy, with a particular focus on the energy sector. The discussion concludes with reflections on the role of law within centralized EU administration.

2  Nature and Rationale The most common pattern of EU administration has been shared, with the Commission working directly with national bureaucracies to implement policy in areas such as the Common Agricultural Policy (CAP), Structural Funds, customs, and utility regulation. The essence of shared administration is, as will be seen in the next chapter, that Union 1  Proposal for a Council Regulation on the Financial Regulation Applicable to the General Budget of the EC, COM(2000) 461 final; Amended Proposal for a Council Regulation on the Financial Regulation Applicable to the General Budget of the EC, COM(2001) 691. 2  Council Regulation (EC, Euratom) 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities [2002] OJ L248/1, as amended by Council Regulation 1995/2006 [2006] OJ L390/1. 3  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 [2012] OJ L298/1. A revised version of the Financial Regulation has been drafted in 2018, see below (n 162).

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legislation imposes formal legal obligations on both the Commission and the Member States for the effective implementation of a particular administrative regime. The essence of centralized management, by way of contrast, is that EU legislation imposes obligations on the Commission to discharge policies without any systematic relationship with national administrations. Centralized management does not, however, necessarily mean that the Commission undertakes the activity ‘in house’. It may do so, in which case we then have direct centralized administration. It may not do so, in which case we then have indirect centralized administration, where the Commission chooses to implement the policy through contracting-out,4 or one of the other m ­ echanisms discussed later. The Commission will normally have discretion as to whether to undertake the activity directly or indirectly, although the Financial Regulation imposes some constraints in this respect. The Commission has increasingly undertaken administration centrally for a variety of reasons: it was given wider responsibilities; the subject matter did not necessarily lend itself to shared management; and the Commission felt that certain policies were best implemented through non-governmental organs. Initiatives in relation to tourism, cooperation with non-member countries of the southern Mediterranean (the MED programmes), emergency aid, vocational training (the Leonardo da Vinci programme), nuclear safety policy, as well as the TACIS and PHARE programmes, have been managed directly by the Commission.

3  Financial Regulation (A)  Financial Regulation 2002: General Principles The relevant principles were laid down in the Financial Regulation 2002, Title IV, Implementation of the Budget, Chapter 2 of which was concerned with Methods of Implementation. The Commission should, in accord with Article 53, implement the budget either on a centralized basis, or by shared or decentralized management, or by joint management with international organizations. Centralized management covered those instances where the Commission implemented the budget directly through its departments, or via an executive agency, or where it implemented the budget indirectly.5 The principles concerning indirect centralized implementation were set out in Article 54. The Commission was not allowed to delegate its executive powers to third parties where they involved a large measure of discretion implying political choices. The implementing tasks that were delegated had to be clearly defined and fully supervised.6 Within these limits the Commission could entrust tasks to four types of body: executive 4  Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999) Vol I, [2.3.1], [2.0.1], [2.3.8]; Reforming the Commission, COM(2000) 200. 5  Reg 1605/2002 (n 2) Art 53(a). 6  Ibid Art 54(1).

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agencies;7 EU bodies as referred to in Article 185 EC and other specialized EU bodies, such as the European Investment Bank (EIB), provided that this was compatible with the tasks of each body as defined in the basic act;8 national or international public sector bodies or bodies governed by private law with a public service mission providing adequate financial guarantees and complying with the conditions provided for in the implementing rules;9 and persons entrusted with specific Common Foreign and Security Policy (CFSP) actions.10 The delegation of executive tasks to these bodies had to be transparent, and the procurement procedure had to be non-discriminatory and prevent any conflict of interest. There were rules mandating an effective internal control system for management operations, proper accounting arrangements, and an external audit.11 Before the Commission entrusted implementation to the preceding bodies it had to ensure that there were proper control and accounting systems in place, and proper procedures for the award of contracts and grants.12 The Commission was not allowed to entrust implementation of funds from the budget, in particular payment and recovery, to external private sector bodies, other than those which had a public service mission guaranteed by the state, or in specific cases where the payments involved were made to beneficiaries determined by the Commission, were subject to conditions and amounts fixed by the Commission, and did not involve the exercise of discretion by the entity or body making the payments.13 The Commission was empowered to entrust such private sector entities with tasks involving technical expertise and administrative, preparatory, or ancillary tasks involving neither the exercise of public authority nor the use of discretionary judgment.14

(B)  Financial Regulation 2012: General Principles The Financial Regulation 2012 continued this schema, albeit with some modification.15 It was enacted to accommodate requirements of the Lisbon Treaty, and to introduce changes felt desirable in the light of experience thus far. The Financial Regulation 2012 stipulates that the Commission can implement the budget by its departments, through Union delegations, or by executive agencies, all of which are regarded as direct centralized administration.16 It is also open to the Commission to implement policy indirectly by entrusting it to:17 (i) third countries or the bodies they have designated;   (ii)  international organisations and their agencies;

7  Ibid Art 54(2)(a). 8  Ibid Art 54(2)(b). 9  Ibid Art 54(2)(c). 10  Ibid Art 54(2)(d). 11  Ibid Art 56(1). 12  Commission Regulation (EC, Euratom) 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation 1605/2002 [2002] OJ L357/1, Art 35, as amended by Commission Regulation 478/2007 [2007] OJ L111/13.    13  Reg 1605/2002 (n 2) Art 57(1). 14  Ibid Art 57(2). 15  Reg 966/2012 (n 3). 16  Ibid Art 58(1)(a). 17  Ibid Art 58(1)(c).

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(iii) (iv) (v) (vi)

the EIB and the European Investment Fund [or any other subsidiary of the Bank]; bodies referred to in Articles 208 and 209; public law bodies; bodies governed by private law with a public service mission to the extent that they provide adequate financial guarantees; (vii) bodies governed by the private law of a Member State that are entrusted with the implementation of a public-private partnership and that provide adequate financial guarantees; (viii) persons entrusted with the implementation of specific actions in the CFSP pursuant to Title V of the TEU, and identified in the relevant basic act.

The choice of certain of the bodies listed above is constrained by subject matter. Thus, for example, third countries will only be used for implementation in relation to EU projects, usually concerned with aid or development, to be undertaken therein. Subject to this caveat, the Commission has significant discretion in making the choice as between these bodies. Thus Article 61(2) provides that when choosing an entity from categories (ii), (v), (vi), and (vii) the Commission shall take ‘due account of the nature of the tasks to be entrusted as well as the experience and the operational and financial capacity of the entities concerned’. The choice must be justified on objective grounds and must not give rise to a conflict of interest. The Commission, as under the 2002 Financial Regulation, cannot entrust third parties with executive powers it enjoys under the Treaties where they involve a large measure of discretion implying political choices,18 and it retains responsibility for supervising tasks entrusted to such bodies.19 The Commission is also generally precluded, as under the 2002 Financial Regulation, from entrusting measures of implementation of funds deriving from the budget, including payment and recovery, to external private sector entities or bodies, except in the cases in points (v), (vi), and (vii) above, or in specific cases where the payments involved are made to beneficiaries determined by the Commission, are subject to conditions fixed by the Commission and do not involve the exercise of discretion by the body making the payments.20 The tasks that can be entrusted by contract to external private sector entities or bodies, other than those which have a public service mission, are technical expertise tasks and administrative, preparatory, or ancillary tasks involving neither  the exercise of public authority nor the use of discretionary powers of judgment.21 The Financial Regulation 2012 elaborates further principles concerning indirect implementation through entities other than Member States, which build on those contained in the 2002 Regulation. The bodies listed above must respect the principles of sound financial management, transparency, and non-discrimination.22 They must have in place adequate systems to protect the EU’s financial interests, including an

18  Ibid Art 58(7).    19  Ibid Art 60(6).    20  Ibid Art 63(1). 21  Ibid Art 63(2).   22  Ibid Art 60(1).

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effective and efficient internal control system, a proper accounting system, and external audit.23 The Financial Regulation 2012 has also reinforced the duties incumbent on such bodies, by stipulating that they ‘shall prevent, detect and correct irregularities and fraud when executing tasks relating to the implementation of the budget’.24 This requires them to carry out ex ante and ex post controls to ensure that the actions financed from the budget are effectively carried out and implemented correctly, recover funds unduly paid, and bring legal proceedings as necessary. The Commission can suspend payments to such bodies if, inter alia, there are systemic errors in such control systems, and the authorizing office can interrupt the flow of payments when, for ­example, there is information indicating a significant deficiency in the functioning of the internal control system.25 The bodies responsible for implementation have obligations to report results, produce accounts, and an audit trail.26 It is not possible within the constraints of this chapter to consider in detail all the variants of centralized administration. The remainder of the chapter will, therefore, examine the more detailed rules that govern some instances of centralized administration, both direct and indirect.

4  Management by the Commission: Power and Responsibility Public lawyers will be aware of the importance of proper control systems when dealing with contracting-out and the like. Such systems are a necessary, albeit not sufficient, element in the accountability of public administration. This is reinforced by the findings of the Committee of Independent Experts. They revealed that many of the problems with direct management were integrally linked to deficiencies in relation to financial controls. The basic provision was the Financial Regulation of 1977.27 It had been amended many times, but certain fundamentals remained largely unchanged. Two were especially significant. First, the authorization of expenditure and the collection of revenue were both in the hands of the Financial Controller of each EU institution. It was the Financial Controller that would give the ‘visa’ authorizing the expenditure, and it was the Financial Controller that would collect the revenue.28 Secondly, there was a separation of function between the authorizing officer and the accounting officer. The former entered into the financial commitments, subject to the grant of a ‘visa’ by the Financial Controller, and the latter actually carried out the relevant operation.

23  Ibid Arts 60(2), 61(1). 24  Ibid Art 60(3). 25  Ibid Art 60(4). 26  Ibid Draft Art 60(5). 27  Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities [1977] OJ L356/1. 28  Ibid Art 24.

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The Committee of Independent Experts was critical of this regime.29 The Financial Controller’s responsibility for ex ante control, and ex post audit, could lead to a conflict of interest. The centralization of ex ante control in the Financial Controller through the visa system was ineffective. Control of expenditure should be decentralized to the Directorates-General. The responsibility for authorization of expenditure should be linked to responsibility for the carrying out of the operation.30 Responsibility should, in this sense, be ‘repatriated’31 through decentralization to those officers authorizing the expenditure. These ideas were taken up in the White Paper on Reforming the Commission. The aim was to create ‘an administrative culture that encourages officials to take responsibility for activities over which they have control—and gives them control over the activities for which they are responsible’.32 The system of ex ante visas proved ­inadequate to assess the correctness of financial operations,33 and led to a culture that denuded officials of responsibility. The Financial Regulation gives legal force to these ideas. The duties of the authorizing officer and the accounting officer are separated.34 The latter is responsible for payments, collection of revenue, keeping the accounts, and the like.35 It is, however, the authorizing officer that is central to the whole scheme. Each institution ‘performs’ the duties of authorizing officer.36 It lays down rules for the delegation of these duties to staff of an appropriate level, specifies the scope of the powers delegated and the possibility for sub-delegation.37 The authorizing officer to whom power has been delegated makes the budget and legal commitments, validates expenditure, and authorizes payments.38 The authorizing officer to whom power has been delegated must establish the organizational structure and internal management and control procedures suited to the performance of his or her duties. Before an operation is authorized, members of staff other than the person who initiated the operation must verify the operational and financial aspects.39 The provisions on expenditure reinforce the centrality of the authorizing officer. Every item of expenditure must be committed, validated, authorized, and paid.40 The budget commitment consists of making the appropriation necessary to cover a legal commitment. The legal commitment is the act whereby the authorizing officer enters an obligation to third parties, which results in expenditure being charged to the budget. The same authorizing officer undertakes the budget and legal commitment,41 and the former must precede the latter.42 It is for the authorizing officer, when adopting a budget commitment, to ensure that the appropriations are available, that the ­expenditure conforms to the relevant legal provisions, and that the principles of sound financial

29  Committee of Independent Experts, Second Report (n 4) [4.6]–[4.7.2]. 30  Ibid [4.7]. 31  Ibid [4.7.2]. 32  Reforming the Commission (n 4) Part I, 19. 33  Ibid 21. 34  Reg 966/2012 (n 3) Art 64. 35  Ibid Art 68. 36  Ibid Art 65(1). 37  Ibid Art 65(3). 39  Ibid Art 66(5). 40  Ibid Art 84. 38  Ibid Art 66(3). 41  Ibid Art 85(1), subject to limited exceptions. 42  Ibid Art 86(1).

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management are complied with.43 It is the authorizing officer that is responsible for validation of expenditure: the creditor’s entitlement to payment, and the conditions on which it is due.44 The onus is also on the authorizing officer to authorize the expenditure through the issuance of a payment order for expenditure that has been validated.45 These rules are designed to give authorizing officers the entire responsibility for the internal controls in their departments and for the financial decisions they take in the exercise of their functions. There are rules as to the financial liability of authorizing and accounting officers.46 The internal auditor is also central to the reform package. The idea was strongly advocated by the Committee of Independent Experts,47 and endorsed by the Commission White Paper.48 The central idea was to establish an Internal Audit Service, the auditors of which would advise the institutions about proper budgetary ­procedures, and the quality of their management and control systems. They are intended to help authorizing officers by providing a check on the overall systems adopted. The Financial Regulation made provision for internal auditors,49 and the Internal Audit Service published a Charter to describe its role.50

5  Management by Executive Agencies: Policy and Implementation The origins of executive agencies are to be found in the Committee of Independent Experts’ Second Report. The Committee noted that technical assistance offices were nothing more than contractors, who undertook work for the Commission.51 It was the weak controls over such firms that led to the problems highlighted in the Committee’s First Report. The creation of implementing agencies was seen as a way of alleviating these problems.52 The Financial Regulation makes provision for such executive agencies.53 There is also a framework Regulation dealing specifically with these agencies.54 It is important to read this Regulation within the broader context of the other institutional reforms. The objective is to foster flexible, accountable, and efficient management of tasks assigned to the Commission. Policy decisions remain with the Commission,

43  Ibid Art 87. 44  Ibid Art 88. 45  Ibid Art 89. 46  Ibid Arts 71–75. 47  Committee of Independent Experts, Second Report (n 4) [4.13]. 48  Reforming the Commission (n 4) Part I, 22. 49  Reg 966/2012 (n 3) Arts 98–100. 50  Charter of the Internal Audit Service of the European Commission, SEC(2000)1801/2. 51  Committee of Independent Experts, Second Report (n 4) [2.3.4]. 52  Ibid [2.3.27]. 53  Reg 966/2012 (n 3) Arts 58(1)(a), 62. 54  Council Regulation (EC) 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes [2003] OJ L11/1; Amended Proposal for a Council Regulation laying down the Statute for Executive Agencies to be Entrusted with Certain Tasks in the Management of Community Programmes, COM(2001) 808 final, replacing the earlier version COM(2000) 788 final.

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implementation is assigned to the agency.55 The conjunction of power and responsibility, a principal theme of the Financial Regulation, is carried over to this new regime, since the agency director is cast as the authorizing officer. This is apparent from the Regulation on executive agencies.

(A)  Establishment, Winding-up, Legal Status, and Staffing It is fitting to begin with the rules relating to the establishment and winding-up of executive agencies. The term executive agency covers a legal entity created in accordance with the Regulation, to manage an EU programme.56 The Commission may decide after a cost–benefit analysis to set up such an agency.57 The cost–benefit analysis must take into account factors such as the justification for outsourcing, the costs of coordination and checks, the impact on human resources, efficiency and flexibility in the implementation of outsourced tasks, possible financial savings, simplification of the procedures used, proximity of the outsourced activities to final beneficiaries, the need to maintain an adequate level of know-how in the Commission, and the visibility of the EU as promoter of the Union programme. A particular agency will not necessarily be permanent. The Commission will determine the lifetime of the agency, which can, within limits, be extended.58 When the services of the agency are not required, it will be wound up.59 The creation of a particular agency requires approval under the Comitology regulatory procedure.60 In terms of legal status, executive agencies are EU bodies, with a public service role. They are legal entities with the capacity to hold property, be a party to legal proceedings, and the like.61 The agencies are located in the same place as the Commission and its departments.62 The staffing arrangements are a blend of the old and the new. The operational head of the agency is the director, who must be an EU official within the Staff Regulations. The Commission makes the appointment, which is for four years renewable.63 The dir­ ector is responsible for the agency’s tasks, and draws up an annual work programme.64 The director is assisted by a Steering Committee of five members, who do not have to be EU officials. They are appointed by the Commission for at least two years renew­ able.65 The Committee is to meet at least four times a year. Its main tasks are to adopt the agency’s annual work programme presented by the director, to adopt the agency’s budget, and to report annually to the Commission on the agency’s ­activities.66 The agency staff are comprised of EU officials, seconded to the agency, and non-EU

55  Reg 58/2003 (n 54) recitals 5–6. 56  Ibid Art 2. EU programme covers any activity, set of activities, or other initiative which the relevant basic instrument or budgetary authorization requires the Commission to implement for the benefit of one or more categories of specific beneficiaries, by committing expenditure, Art 2(b). 57  Ibid Art 3(1). 58  Ibid Art 3(1)–(2). 59  Ibid Art 3(2). 60  Ibid Arts 3(3), 24(2). 61  Ibid Art 4. 62  Ibid Art 5. 63  Ibid Art 10. 64  Ibid Art 11. 65  Ibid Art 8. 66  Ibid Art 9.

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­ fficials recruited on renewable contracts.67 This is designed to provide flexibility, o facilitating employment of those needed for particular tasks, without the need to incorporate them into the hierarchy of Union officials.

(B) Tasks The Commission can entrust the executive agency with any tasks required to implement an EU programme, with the exception of ‘tasks requiring discretionary powers in translating political choices into action’.68 The intent is clear. Policy choices remain for the Commission, and implementation is for the agency. This is confirmed by the ­examples of tasks that can be assigned to executive agencies.69 These are to be defined more fully in the instrument creating a particular executive agency.70 The tasks include management of projects within a programme, by adopting relevant decisions using powers delegated to the agency by the Commission; adopting the instruments of budget implementation for revenue, expenditure, and the award of contracts on the basis of powers delegated by the Commission; and gathering and analysing data for the implementation of the programme. While the intent is clear, the actual wording in Article 6 to delimit the agency’s power may be problematic. This wording is similar to that found in Article 58(7) of the Financial Regulation, which precludes delegation of executive powers to executive agencies involving a ‘large measure of discretion implying political choices’.71 There are, however, important differences between the two formulations. Article 58(7) of the Financial Regulation prevents delegation of discretionary political choices. Article 6(1) of the Regulation on executive agencies precludes delegation of tasks requiring discretionary power in translating political choices into action. On this formulation the executive agency is not only prevented from making the initial political choices, but also from exercising discretionary power when translating those choices into action. This would, if taken literally, severely limit the tasks that can be given to agencies, since such discretion may exist in relation to the specific functions listed in Article 6(2)(a)– (c). This conclusion might be avoided by reading the phrase ‘discretionary powers’ more narrowly. On this view, the mere existence of choices as to how to, for example, manage a project, or award a contract, would not be regarded as the exercise of ‘discretionary powers’, and hence would not be caught by the limit in Article 6(1).

(C)  Financial Arrangements The financial arrangements for the new agencies are important. Space precludes detailed analysis of this issue. Suffice it to say that the principles of the Financial Regulation concerning financial transparency, internal and external audit, and the like

67  Ibid Art 18.    68  Ibid Art 6(1).    69  Ibid Art 6(2)(a)–(c). 70  Ibid Art 6(3).   71  Reg 966/2012 (n 3) Art 58(7).

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are carried over into the scheme for executive agencies.72 This is especially so in relation to the fusion of financial power and responsibility. The director is the authorizing officer for budgetary matters within the agency,73 and therefore has the general ­responsibilities laid down in the Financial Regulation. It is the director who is to draw up the provisional statement of revenue and expenditure and, in the capacity of authorizing officer, must execute the agency’s administrative budget.74

(D)  Damages Liability, and Review of Legality Regulation 58/2003 specifies rules on agency liability in damages. The law applicable to the contract governs contractual liability.75 Article 340(2) TFEU concerning noncontractual liability has been extended to the executive agency.76 This follows the legal technique used in relation to ‘older’ agencies, such as the European Environment Agency.77 There are also provisions rendering the authorizing officer financially liable for losses caused by serious misconduct and holding the accounting officer to account on certain conditions for losses caused.78 The provisions on review of legality were more controversial. The initial draft Regulation stipulated that the legality of the acts of an executive agency could be reviewed under what was Article 230 EC on the same conditions as the acts of the Commission.79 The legality of actions of executive agencies was not included in the list of reviewable acts under Article 230(1), but the better view was that such agency decisions could be reviewed. The EU Courts read Article 230 broadly so as to facilitate review of the European Parliament,80 Court of Auditors,81 and traditional agencies,82 holding that the rule of law demanded that their actions be susceptible to legal control. Moreover, EU legislation provided for challenge to the legality of decisions made by bodies such as the Office for Harmonization in the Internal Market (OHIM), it being the defendant in the legality challenge.83 Article 263 TFEU, the successor to Article 230

72  Reg 58/2003 (n 54) Arts 12–16, 20; Reg 966/2012 (n 3) Arts 58, 60; Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council [2013] OJ L328/42; Commission Regulation (EC) 1653/2004 of 21 December 2004 on a standard financial regulation for the executive agencies pursuant to Council Regulation (EC) 58/2003 [2004] OJ L297/6, as amended by Commission Regulation 651/2008 [2008] OJ L181/15. 73  Reg 58/2003 (n 54) Arts 11(3), 16(2). 74  Ibid Arts 11(4), 14(1), 16(2). 75  Ibid Art 21(1). 76  Ibid Art 21(2). 77  Council Regulation (EEC) 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network [1990] OJ L120/1, Art 18. 78  Reg 1653/2004 (n 72) Arts 34, 36. 79  COM(2000) 788 final, Art 21. 80  Case 249/83 Parti Ecologiste—‘Les Verts’ v European Parliament [1986] ECR 1339. 81  Cases 193–194/87 Maurissen v Commission [1989] ECR 1045. 82  Case T-411/06 Sogelma—Societá generale lavori manutenzioni appalti Srl v European Agency for Reconstruction (AER) [2008] ECR II-2771. 83  Council Regulation (EC) 40/94 of 20 December 2003 on the Community trade mark [1994] OJ L11/1, Art 63.

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EC, now expressly provides for review of the legality of acts of bodies, offices, and agencies intended to produce legal effects. The European Parliament nonetheless argued that the executive agency was the Commission’s responsibility, that the Commission should be legally responsible under Article 230, and that it should ‘monitor’ the legality of the agency’s action.84 The Commission counter-argued that the executive agency had legal personality, and therefore the Commission should not be liable for the legality of its actions. The final version of the Regulation was a compromise between these two views: the initial legal responsibility lies with the agency, and the legality of its acts can be reviewed by the Commission, with a further review of the Commission by the CJEU under Article 263 if the Commission rejects the appeal. Article 22(1) of the Regulation provides for internal review of agency decisions by the Commission. An act of an executive agency that injures a third party can be referred to the Commission by any person directly and individually concerned, or by a Member State, for a review of its legality. Such actions must be brought within one month of the day on which the applicant learned of the act challenged. The Commission, after hearing arguments, must take a decision within two months. If it does not do so, it means that the action has been implicitly rejected. The Commission is also able, of its own volition, to review an act of the executive agency.85 The Commission can, pursuant to such internal review, suspend implementation of the measure, or prescribe interim measures. It can, in its final decision, uphold the measure, or decide that the agency must modify it in whole or in part. The executive agency is bound to act as soon as possible on Commission decisions taken under Article 22. This regime for internal monitoring by the Commission is complemented by recourse to what is now Article 263 TFEU. Thus Article 22(5) states that an action for annulment of the Commission’s explicit or implicit decision to reject an administrative appeal may be brought before the Court of Justice in accordance with Article 263. The rules on the legality of agency acts raise technical legal issues. The grounds for review are not spelled out, although the implicit assumption is that they will be those used under Article 263. It seems, moreover, that any act of the executive agency that injures a third party can be reviewed, irrespective of whether it is binding, although the requirement that the act should cause injury may impose an indirect qualification in this respect. There also seems to be an asymmetry as to recourse to the Court of Justice. Article 22(5) is framed in terms of an annulment action where the Commission rejects the administrative appeal. It seems, therefore, that the executive agency itself has no such recourse where the Commission upholds the appeal. The rules on the legality of agency acts also raise important issues of principle. Article 22 has introduced a form of internal review of the legality of executive agency action by the Commission. The procedure in such cases requires careful thought. Executive agencies are only accorded limited implementing powers. Policy formation 84  Report of the European Parliament on the Proposal for a Council Regulation laying down the Statute for Executive Agencies, A5-0216/2001, Amendment 12. 85  Reg 58/2003 (n 54) Art 22(2).

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remains the prerogative of the Commission. This raises significant points of principle. It is important who hears such cases within the Commission. It is not clear whether they will be heard by the Department to which the executive agency is attached, and if so who within the Department will hold the hearing. If the cases come to the same Department that established the agency, there is a danger of a conflict of interest. It is not easy to keep policy formation and implementation distinct. If an action c­ hallenging implementation implicates policy, there could be objections to the Commission sitting as a ‘judge’. There is also an issue of principle arising from the fact that the executive agency seems to have no recourse to the CJEU where the Commission upholds the appeal. This may be especially problematic if the internal hearing is by the same Department as set up the agency. The executive agency may feel that the Commission is using its internal power of review to impose a view concerning detailed matters of implementation that is legitimately within the agency’s sphere. The rules on the legality of executive agency acts also prompt thought about broader issues of ‘legal design’, and the optimal structuring of legal liability. The mere fact that a body has separate legal personality, so that it can hold property and bring actions in its own name, does not a priori preclude making another body liable for its actions. The principled argument for holding the Commission responsible for the executive agency is that the programme has been assigned to the Commission, which can choose to deliver it in-house, or through an executive agency. That choice should not affect legal liability, which should remain with the Commission. The argument to the contrary is that executive agencies were lawfully created pursuant to Article 308 EC, and their powers do not infringe the Meroni principle.86 They are EU bodies and have legal personality. Placing liability directly on the executive agencies best serves the broader objectives of the administrative reforms. It reinforces the conjunction of power and responsibility that is central to the Financial Regulation. This is the approach adopted in relation to damages liability. The rules on review for legality represent a ­compromise, with the initial and primary responsibility lying on the executive agency, which is subject to review by the Commission, with further review of the Commission’s decision by the Court of Justice.

(E)  Executive Agencies There are currently six executive agencies:87 the Executive Agency for Innovation and Networks (INEA); the Education, Audiovisual and Culture Executive Agency (EACEA); the European Research Council Executive Agency (ERCEA); the Executive Agency for Consumers, Health, Education and Food (CHAFEA); the Research Executive Agency (REA); and the Executive Agency for Small and Medium-Sized Enterprises (EASME).

86  Case 9/56 Meroni v High Authority [1958] ECR 133. 87  https://ec.europa.eu/info/departments_en.

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They were responsible in the period between 2007–13 for implementing spending programmes of approximately €28 billion.88 The standard format is for the legislation dealing with the particular subject matter to include a provision empowering management of the programme through an executive agency, leaving it to the Commission to decide whether and when to bring such an agency on line. This section considers the rationale for choice of the executive agency option by focusing on two such agencies. The common theme is that the relevant programme entails multiple grants and/or contracts, which can most effectively be administered by an executive agency. (i)  The Executive Agency for Small and Medium-Sized Enterprises EASME89 replaced the Executive Agency for Competitiveness and Innovation (EACI). The EACI had replaced an agency, originally called the Intelligent Energy Executive Agency, which was established pursuant to the multi-annual programme adopted in 2003 entitled ‘Intelligent Energy—Europe’.90 The EU had previously enacted strategies dealing with various aspects of energy.91 The objective of the 2003 programme was to draw these strategies together, extend them, and provide the requisite financial means to enable them to be carried out. The 2003 Decision originated in proposals made by the Commission,92 which identified the key features of the proposed programme. There should, said the Commission, be increased attention given to the demand side of energy usage, since there was little margin for increasing supply. The demand side of energy use should in particular be concerned with energy saving, energy efficiency, and the use of renewable energy resources. Priority should also be accorded to the combating of global warming, and here too development of new and renewable energy sources was seen as central to achieving this objective. Community involvement with energy efficiency began in ­earnest in 1991 with the SAVE programme, followed in 1993 by the ALTENER programme, which was concerned with the promotion of renewable resources. These programmes were complemented by others such as SYNERGY, dealing with 88  European Court of Auditors, Delegating Implementing Tasks to Executive Agencies: A Successful Option?, Special Report 13/2009, [11]. 89 https://ec.europa.eu/easme/en/about-easme. 90  Decision 2003/1230/EC of the European Parliament and Council of 26 June 2003 adopting a multiannual programme for action in the field of energy: ‘Intelligent Energy—Europe’ [2003] OJ L176/29. 91  See, eg, Council Decision 1999/24/EC of 14 December 1998 adopting a multi-annual programme of technological actions promoting the clean and efficient use of solid fuels (1998 to 2002) [1999] OJ L7/28; Council Decision 1999/25/Euratom of 14 December 1998 adopting a multi-annual programme (1998–2002) of actions in the nuclear sector relating to the safe transport of radioactive materials [1999] OJ L7/31; Decision 647/2000/EC of the European Parliament and of the Council of 28 February 2000 adopting a multi-annual programme for the promotion of energy efficiency (SAVE) (1998 to 2002) [2000] OJ L79/6; Decision 646/2000/ EC of the European Parliament and of the Council of 28 February 2000 adopting a multi-annual programme for the promotion of renewable energy resources in the Community (ALTENER) [2000] OJ L79/1. 92  Proposal for a Decision of the European Parliament and of the Council adopting a multi-annual programme for action in the field of energy: ‘Intelligent Energy for Europe’ Programme (2003–2006), COM(2002) 162 final.

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i­nternational energy cooperation, and SURE dealing with cooperation in the nuclear sector. It was felt, however, that the EU’s involvement in this area would be more efficacious if these various initiatives were brought within one overall programme ‘in order to combine Community action to form a coherent, effective whole, both procedurally and in terms of objectives’.93 It was therefore necessary ‘to broaden and strengthen some of the activities and to include them in a single framework’.94 The new programme was, therefore, designed to strengthen renewable energy resources and energy efficiency, while adding two further strands to EU energy policy.95 The programme is structured in four specific areas: rational use of energy and demand management (SAVE), new and renewable energy resources (ALTENER), energy aspects of transport (STEER), and promotion at international level in the fields of renewable energy sources and energy efficiency (COOPENER). Six types of action are planned for each area, viz. a) implementation of strategies, development of standards, studies etc.; b) creation of structures and financial and market instruments, including local and regional planning; c) promotion of systems and equipment to ease the transition from demonstration to marketing; d) development of information and education structures and utilisation of the results; e) monitoring, and f) assessment of the impact of the actions.

The Commission considered the possible ways in which the programme could be executed. It is here that we see the rationale for the creation of the first executive agency. The Commission acknowledged that the proposed programme would lead to an increase in overall workload, and analysed two options for dealing with this. An option was to create an executive agency to which certain management tasks could be delegated, thereby enabling the Commission to concentrate its efforts on strategic issues. The Commission envisaged that the agency could be assigned the following tasks.96 It could draw up recommendations for the Commission on the execution of the ‘Intelligent Energy—Europe’ programme, and collect the necessary data to ­enable the Commission to guide the overall implementation of the programme. The agency could manage some or all of the phases in the lifetime of the specific individual projects. It could also manage the budgetary side of specific programmes, including the award of contracts and subsidies. The agency could, in addition, promote the ­dissemination of the results of projects at local, regional, and national level. The Commission’s preference for the executive agency option was influenced by the large number of contracts that would have to be managed. It anticipated that implementation of the programme would lead to some 270 contracts per annum, rising to 330 with the accession of the new Member States. The creation of an executive agency was felt to be the best solution for managing the plethora of contracts required to make the programme a reality. The Commission also considered another option for managing the programme, which was to do so directly by the relevant Commission departments. It did not, however, 93  Ibid 6.

94  Ibid 7.

95  Ibid 7.

96  Ibid 13.

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favour this strategy. It was felt that direct management from within the Commission would ‘involve major changes to the management of the programme and to its intervention mechanisms’.97 It would require an increase in Commission staff from thirtyeight to fifty-two; it would result in a substantial reduction in activities relating to promotion and utilization of the results of the projects, thereby limiting the benefits of the programme; and it would in practice lead to the imposition of a ­minimum threshold for the funding of projects, with the result that there would be a significant reduction in the number of contracts, and the consequential exclusion of important players at local and regional level from the programme’s activities.98 The 2003 Decision followed the Commission’s thinking about the substance of EU energy policy. The multi-annual programme was structured around the four specific fields identified by the Commission: energy efficiency (SAVE); use of renewable energy resources (ALTENER); energy aspects of transport (STEER); and support for initiatives concerning renewable energy in developing countries (COOPENER).99 There were also ‘key actions’, which were initiatives combining several of these specific fields.100 There were broad criteria for projects to qualify for EU funding concerning the four specific fields and key actions.101 It was for the Commission to establish a work programme to effectuate the multi-annual programme.102 It was unsurprising, given the Commission’s proposals, that implementation should be entrusted to an executive agency, which was established in 2003.103 The Preamble reiterates the general rationale for the creation of such agencies: they allow the Commission ‘to focus on its core activities and functions which cannot be outsourced, without relinquishing control over, or ultimate responsibility for, activities managed by those executive agencies’.104 This rationale was particularly relevant in this area, since management of the energy programme involved ‘implementation of technical projects which do not entail political decision-making and requires a high level of technical and financial expertise throughout the project cycle’.105 It was, moreover, possible to ­separate clearly ‘between programming, establishing priorities and evaluating the programme, which would be carried out by the Commission, and project implementation, which would be entrusted to the agency’.106 The agency’s tasks followed closely the thinking in the Commission’s proposals. It was responsible for implementing the tasks concerning Community aid under the programme, ‘except for programme evaluation, monitoring of legislation and strategic studies, or any other action which comes under the exclusive competence of the Commission’.107 The agency was responsible for the following tasks. It managed all phases in the lifetime of specific projects and the work programme laid down in

97 Ibid 13.   98  Ibid 13.   99  Dec 2003/1230 (n 90) Art 3(1). 100  Ibid Art 3(2). 101  Ibid Art 4. 102  Ibid Arts 5(1), 5(2), 7, 8. 103  Commission Decision 2004/20/EC of 23 December 2003 setting up an executive agency, the ‘Intelligent Energy Executive Agency’, to manage Community action in the field of energy in application of Council Regulation (EC) 58/2003 [2004] OJ 2004 L5/85. 104  Ibid [4]. 105  Ibid [5]. 106  Ibid [6]. 107  Ibid Art 4(1).

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Decision 2003/1230 following the advice of the executive committee of the programme, by adopting the relevant decisions where the Commission empowered it to do so.108 The agency was responsible for budget implementation and, where the Commission empowered it to do so, all the operations necessary to manage the Community programme, in particular the award of contracts and grants.109 The agency was also charged with gathering and passing on to the Commission all information needed to guide implementation of the Community programme.110 The Commission Decision allowed the agency to undertake tasks of the same broad type under other Community programmes, provided that they fall within the general area of energy efficiency, renewable energy, and the like.111 The agency was subject to supervision by the Commission and had to report regularly on its progress.112 The Intelligent Energy Executive Agency was transformed into the EACI in 2007,113 the rationale being that the EACI dealt with a range of issues concerning innovation other than those concerned with energy. Intelligent use of energy114 continued to be a key part of the EACI’s remit, and it retained responsibility for the award of contracts and grants to promote energy efficiency and renewable energy. The EACI was replaced by EASME in 2013,115 the idea being to build on the success of the EACI, but to bring together management of a broader number of programmes than hitherto, which had thematic links.116 The overarching aim is to help create a more competitive and resource-efficient European economy based on knowledge and innovation, and the award of multiple contracts and grants remains central to the work of EASME.117 (ii)  The Education, Audiovisual and Culture Executive Agency The need to administer multiple grants and/or contracts is apparent once again in the ­creation of the EACEA.118 The EACEA was created on 1 January 2005119 and is now governed by a Decision made in 2013, which extended the EACEA’s remit to the end of 2024.120 108  Ibid Art 4(1)(a). 109  Ibid Art 4(1)(b). 110  Ibid Art 4(1)(c). 111  Ibid Art 4(2). 112  Ibid Art 7. 113  Commission Decision of 31 May 2007 amending Decision 2004/20/EC in order to transform the ‘Intelligent Energy Executive Agency’ into the Executive Agency for Competitiveness and Innovation [2007] OJ L140/52. 114  Energy 2020: A strategy for competitive, sustainable and secure energy, COM(2010) 639 final. 115  2013/771/EU: Commission Implementing Decision of 17 December 2013 establishing the ‘Executive Agency for Small and Medium-sized Enterprises’ and repealing Decisions 2004/20/EC and 2007/372/EC [2013] OJ L341/73. 116 https://ec.europa.eu/easme/en/about-easme. 117  Commission Decision approving the draft Annual Work Programme of the Executive Agency for Small and Medium-Sized Enterprises, C(2016) 2011 final; Draft Annual Work Programme of the Executive Agency for Small and Medium-Sized Enterprises for 2016, https://ec.europa.eu/easme/sites/easme-site/files/documents/easme_wp_2016_20160408.pdf. 118 http://eacea.ec.europa.eu/index_en.php. 119 Commission Decision 2005/56/EC of 14 January 2005 setting up the Education, Audiovisual and Culture Executive Agency for the management of Community action in the fields of education, audiovisual and culture in application of Council Regulation (EC) 58/2003 [2005] OJ L24/35. 120  2013/776/EU: Commission Implementing Decision of 18 December 2013 establishing the ‘Education, Audiovisual and Culture Executive Agency’ and repealing Decision 2009/336/EC [2013] OJ L343/46.

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The Agency has responsibility for the management of parts of a wide variety of EU programmes concerning education, audiovisual, and culture. These programmes now include121 Erasmus, Creative Europe, Europe for Citizens, Eurydice, EU Aid Volunteers, and Intra-Africa. The EACEA is also responsible the overseeing the legacy of previous programmes. The Agency is responsible for managing projects entrusted to it in these areas, more specifically in relation to the award of contracts and grants. We can understand why an executive agency was created by considering the background to three areas where the EACEA has authority: active citizenship, information and communication technologies in education systems, and cooperation in the context of higher education. The objectives of the initial active citizenship programme122 were to promote and disseminate the values and objectives of the EU; to bring citizens closer to the EU and to encourage them to engage more frequently with its institutions; to involve citizens closely in discussion about the EU; to intensify links between citizens by techniques such as the twinning of towns; and to stimulate initiatives by bodies engaged in the promotion of active and participatory citizenship.123 The activities that can be supported are broad and diverse.124 They include activities of bodies within civil society, NGOs and the like, as well as initiatives undertaken by municipalities and other official bodies. Financial support is in the form of grants. There are multiple grants to administer under this programme and this was the primary rationale for using an executive agency. The governing instrument for citizenship initiatives now dates from 2014,125 and established the ‘Europe for Citizens’ programme to run from 2014–20. It provides funding in the form of grants and contracts to contribute to citizens’ awareness of the EU; to foster EU citizenship and promote democratic participation of citizens; and to raise awareness of remembrance and advance European values.126 The same features are evident in relation to administration of the programme concerning integration of information and communication technologies in education and training systems. The initial programme was established in 2003.127 The objectives were to use e-learning as a means of promoting digital literacy; to exploit the potential of e-learning for enhancing the European dimension in education; and to use e-learning to improve the quality of the learning process.128 These objectives were to be pursued through strategies designed to promote digital literacy, through virtual campuses,

121  Ibid Art 3. 122  Council Decision 2004/100/EC of 26 January 2004 establishing a Community action programme to promote active European citizenship (Civic Participation) [2004] OJ L30/6. 123  Ibid Art 1(1). 124  Ibid Annex Art 1. 125  Council Regulation (EU) No 390/2014 of 14 April 2014 establishing the ‘Europe for Citizens’ programme for the period 2014–2020 [2014] OJ L115/3. 126 https://eacea.ec.europa.eu/europe-for-citizens_en. 127  Decision 2003/2318/EC of the European Parliament and Council of 5 December 2003 adopting a multiannual Programme (2004 to 2006) for the effective integration of information and communication technologies (ICT) in education and training systems in Europe (eLearning Programme) [2003] OJ L345/9. 128  Ibid Art 1.

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the  twinning of schools, and the like.129 The Commission was charged with implementing the programme. Multiple projects were financed, primarily through subsidies,130 hence the choice of an executive agency to manage the programme.131 The Commission favoured this method of policy implementation, stating that ‘whenever possible and justifiable by a cost/effectiveness analysis, programme administration and other programme execution related tasks such as, for example, monitoring and documentation project results, will be entrusted to a future Executive Agency, under study’.132 The EACEA was duly given authority to manage certain aspects of this programme. More recently the focus has shifted to the Eurydice programme, which is designed to facilitate understanding of how education systems work in different countries in the EU.133 The programme adopted to enhance quality in higher education through ­cooperation with third countries (Erasmus Mundus) exhibited the same structural characteristics as those considered above.134 The objectives of the programme included improving accessibility to higher education in the EU and encouraging qualified graduates from third countries to obtain qualifications in the EU. These objectives could be pursued through a variety of means, such as scholarship schemes, Masters’ courses, partnerships with third-country higher education institutions, and the like. Many grants or scholarships were awarded in furtherance of the programme’s objectives. Provision was, therefore, made for managing the programme through an executive agency, together with national agencies if this should prove to be appropriate. The current programme is ‘Erasmus+’, which is a funding scheme to support activities in the fields of education, training, youth, and sport. It is composed primarily of three key action areas, concerning mobility, cooperation, and policy reform, with two additional components relating to the Jean Monnet programme and funding for the European dimension in sport.135

(F) Assessment Executive agencies were created as a central part of the reforms following the resignation of the Santer Commission. The Court of Auditors in 2009 produced a special report assessing their performance. The report was mixed.

129  Ibid Art 2. 130  Ibid Annex Arts 1–2. 131  Ibid Annex Art 2. 132  COM(2002) 751 final, 35. 133 https://eacea.ec.europa.eu/national-policies/eurydice/home_en. 134  Decision 2003/2317/EC of the European Parliament and Council of 5 December 2003 establishing a programme for the enhancement of quality in higher education and the promotion of inter-cultural understanding through co-operation with third countries (Erasmus Mundus) (2004 to 2008) [2003] OJ L345/1; Decision No 2008/1298/EC of the European Parliament and of the Council of 16 December 2008 establishing the Erasmus Mundus 2009–2013 action programme for the enhancement of quality in higher education and the promotion of intercultural understanding through cooperation with third countries [2008] OJ L340/83. 135 https://eacea.ec.europa.eu/erasmus-plus_en.

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It found that the initiative for setting up the executive agencies was mainly driven by constraints on employment within the Commission, rather than being based on the intrinsic features of the programmes themselves, and that there were some deficiencies in the cost–benefit analyses required by the legislation to support the decision to create the agencies. It was also concerned that Commission supervision of the agencies was limited and that more could be done to set agency targets. The Court of Auditors, however, acknowledged that service delivery by executive agencies with specialized skills in the relevant areas had been improved in terms of reduced time for contracting, more rapid approval procedures for technical and financial reports, and lower payment delays, as compared with when such matters had been undertaken in-house by the parent DG. There were also qualitative improvements in terms of simplification of processes, increased external communication, and ­dissemination of results.136

6  Management by Networks of National Agencies: Public Service Mission It is clear from the Commission’s White Paper that externalization could be pursued through devolution of tasks to certain national public bodies.137 This was confirmed by the Financial Regulation. Indirect centralized management of EU activities can be undertaken by the bodies listed earlier, which includes public law bodies or bodies governed by private law with a public service mission, and bodies governed by the private law of a Member State, entrusted with the implementation of a public and private partnership, subject in both instances to adequate financial guarantees.138 Such bodies must be chosen in an objective and transparent manner.139 Where policy is implemented in this way the Commission will conclude agreements with such bodies specifying the tasks assigned, the performance conditions, and reporting rules. The constraints and conditions described earlier140 apply to these bodies, just as much as when externalization is pursued through executive agencies. The Commission’s thinking about the use of such bodies emerged from a Communication devoted to the topic.141 The idea is to devolve executive ­responsibilities to national bodies, which are either public or have a public service mission guaranteed by the state. These bodies were collectively referred to as ‘national agencies’, and this status could be conferred on existing or new entities. The agencies then acted as 136  Special Report 13/2009 (n 88) [40]–[46]. 137  Reforming the Commission (n 152) Vol I, 10. 138  Reg 966/2012 (n 3) Art 58(1)(c)(v)–(vii). 139  Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union [2012] OJ L362/1, Art 44. 140  See above, 58–60. 141  Management of Community Programmes by Networks of National Agencies, COM(2001) 648 final.

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partners in the implementation of EU policies, but the Commission retained overall responsibility for service delivery.142 The intention was to devolve detailed implementation to national agencies, so that they had no margin of discretion on EU policy. The implementing tasks entrusted to such agencies would ‘in no way alter any choices taken by the Commission involving political judgment’.143 The scale of delegation to national agencies was, therefore, conceived to be less than to the new breed of executive agencies. This was because the Commission retains a degree of control over executive agencies ‘going well beyond what it can exercise over’ national agencies.144 The Commission made clear that use of national agencies was to be distinguished from shared administration, where the states themselves had responsibility for budget operations.145 The Commission perceived a number of advantages in using national agencies.146 It facilitated ‘proximity’ to the beneficiaries of the policy, as in the case of education and training. It fostered ‘complementarity’, since there would often be national agencies with experience of a particular policy. National agencies could offer greater ‘flexibility’ than executive agencies, since it was easier to adapt to local circumstance. The Commission established criteria for when networks of national agencies will be appropriate.147 The Commission was also mindful of the need for precautions when using this strategy.148 These would be necessary to avoid cumbersome procedures, ensure the visibility of the European dimension to the programmes, secure the overall coherence of the programme, and maintain a clear distinction between intermediaries and beneficiaries of the policies. The Commission was against a general framework regulation for management by networks of national agencies,149 because it would be difficult to draft such a measure that could cover all possible scenarios, while providing sufficiently detailed common rules. The preferred approach was to provide for management by national agencies within the specific regulation governing a particular programme. There would then be a Commission decision laying down the responsibilities of the Commission and the Member States in relation to the national agencies. This would be supplemented by operating agreements, between the Commission and national agencies, which specified the duties and powers of the latter. There would also be an agreement on decentralized measures, which would deal with the management of funds transferred to national agencies. Controls operated ex ante and ex post. The former included the Commission decision specifying the responsibilities of the Commission and Member States in respect of national agencies, the terms of the operating agreement, and of the agreement on decentralized measures. There would be internal audit to consider management and control systems within the national agencies. The latter controls encompassed external

142  Ibid [3.1]. 146  Ibid [4.1].

143  Ibid [5.2]. 147  Ibid [5.1].

144  Ibid [5.2], [7]. 148  Ibid [4.2].

145  Ibid [3.2]. 149  Ibid [5.3].

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audit to ensure that expenditure was consistent with the legal provisions, and spot checks through field visits.

7  Management through Contracting-Out: Award and Risk Contracts are used to secure the delivery of many programmes directly administered by the Commission and EU agencies. The motivations for contracting-out were eclectic.150 In some areas, such as nuclear safety, expertise was the key factor. In others, such as the Med programmes, there was a desire to involve civil society in service delivery. In yet others such as humanitarian assistance the rationale was that specialist organizations would be better placed to deliver the aid than the Commission. Shortage of staff within the Commission was another more general reason for contracting-out. There were, as we saw in the previous chapter, problems concerning contractingout. The line between policy formation and policy implementation became blurred. It was difficult to ensure that the private contractor did not breach its contract with or defraud the Commission. The Committee of Independent Experts accepted that the Commission would have to contract out tasks,151 but was equally firm in its belief that the existing arrangements were imperfect. This was acknowledged also in the Commission’s White Paper.152 Problems surrounding such contracts played a large part in the fall of the Santer Commission, and the Court of Auditors revealed difficulties in other areas.153 It is, therefore, unsurprising that subsequent reforms were directed towards these contractual relationships. The general principles considered earlier concerning the type of activities that can be entrusted to another body, and the type of bodies to whom such tasks can be assigned, are applicable here and impose limits on the grant of contracts. The Financial Regulation also contains specific provisions on the award of contracts. The basic strategy is to apply the directives on public procurement to contracts awarded by EU institutions.154 There is an obligation to put such contracts out to tender, using the open, restricted, or negotiated procedure, or for there to be a contest or competitive dialogue. There are safeguards against fraud by contractors. Thus firms are excluded from the tendering process if they are bankrupt, guilty of grave professional

150  Ch 2. 151  Committee of Independent Experts, Second Report (n 4) Vol I, [2.3.1], [2.0.1], [2.3.8]. 152  Reforming the Commission, COM(2000) 200. 153  Court of Auditors, Special Report 16/2000, On Tendering Procedures for Service Contracts under the Phare and Tacis Programmes [2000] OJ C350/1; Court of Auditors, Special Report 12/2000, On the Management by the Commission of European Union Support for the Development of Human Rights and Democracy in Third Countries [2000] OJ C230/1. 154  Reg 966/2012 (n 3) Arts 101–114.

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misconduct, and the like.155 A contract cannot be awarded to a firm that has a conflict of interest, or that has been guilty of misrepresentation. The contracting authority is empowered to exclude such firms from contracts financed by the budget for up to ten years.156 The centrality of the authorizing officer to the Financial Regulation is evident here, since this officer decides to whom the contract is to be awarded.157 There is, ­moreover, greater transparency than hitherto concerning contract tenders and awards by the Commission and EU agencies.158 The specification of the terms of the contract is equally important if the mistakes of the past are to be avoided. Fraud and financial irregularities perpetrated by contractors will be prevented in part by the provisions concerning the exclusion of certain firms from the tendering process. This can, however, only be part of the overall strategy. It is also important to ensure the effective discharge of EU policies by those to whom tasks have been contracted out. The specification of the contract terms is all-important. Contracts are bargains, which allocate risks. The Committee of Independent Experts was critical of Commission practice in this respect. It found instances where the contractor’s task was poorly defined, where there was insufficient monitoring of contractual performance, and where the EU prefinanced the project by paying a large amount of the contract price ‘up front’.159 There is an integral connection between the specification of the contract terms and the contractual objective. If the objective is set at too high a level of generality, it will be difficult to devise concrete contractual terms that can operate as a meaningful constraint on the other contracting party.

8  Conclusions and Assessment The shockwaves from the fall of the Santer Commission generated a radical rethinking by the Commission of the delivery of programmes for which it has direct management responsibility. The Commission might well have retreated into a defensive shell after the Report of the Committee of Independent Experts. It did not do so. It embraced the majority of the Committee’s suggestions. Any assessment of the emerging order must take account of the legislative and non-legislative initiatives. A number of more general observations on the new administrative order are warranted. First, the Commission’s overall strategy is based on the conjunction of power and responsibility, which are integrally linked, legally and financially, with the authorizing officer being the key figure in this regard. This strategy is to be welcomed. Public lawyers will be aware of the importance of financial responsibility in the overall design of administrative systems. It is a crucial component of administrative accountability. This

155  Ibid Arts 106–108. 156  Ibid Art 109. 157  Ibid Art 113. 158 http://ec.europa.eu/budget/contracts_grants/info_contracts/doing_business/do-business_en.cfm. 159  Committee of Independent Experts, Second Report (n 4) [2.2.4]–[2.2.14].

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is recognized in the Financial Regulation, which attempts to address past problems by recasting the regime of financial responsibility and placing this new regime at the heart of the system of centralized management. The Financial Regulation makes an ­important contribution towards the design of administrative systems so as to maximize accountability by the very centrality accorded to the ideas of power and responsibility, placing these at the forefront of the new system for dealing with centralized EU administration. Secondly, the divide between policy and implementation is equally central to the new system:160 policy remains the preserve of the Commission, with implementation devolved to executive agencies, networks of national agencies, or managed through contracting-out subject to Commission oversight. The divide between policy and implementation is difficult to preserve. This does not mean that the overall strategy is misguided. It is inevitable that the Commission has to externalize the administration of some programmes. The effective delivery of policy is an endemic problem within national polities, so too when programmes are administered at Union level. The Commission cannot administer all policies in-house. It has neither the expertise, nor the personnel to do so. Moreover, if implementation were always undertaken in-house, it would divert the Commission from policy formation. The Commission has, therefore, to ‘externalize’ the administration of some programmes for which it has direct management responsibility. This cannot be avoided. Given that this is so, it is right that the central policy choices should be made by the Commission, which is given the primary responsibility for implementing a programme. It is right that this basic precept should be enshrined in the new Regulations, even if in some instances an executive agency might ‘cross the line’ and make some limited discretionary policy choices. The architects of the Financial Regulation were therefore correct in enshrining this p ­ rinciple in formal legal terms. Thirdly, it is equally clear that no single administrative method can serve for the plethora of differing programmes that the EU manages. In some cases, the best technique will be to maintain control within the Commission, but to contract out detailed implementation. In other cases, executive agencies will be the most appropriate institutional form, and they might use contracts to facilitate fulfilment of their tasks or might liaise with national agencies. In yet other instances, existing national agencies will be the most fitting medium and these agencies might use contracts to fulfil their remit. This is recognized in the new regime, and is embodied in the legal and non-legal rules that govern this area. The factors that affect the choice of technique are, moreover, becoming increasingly clear in the light of more recent programmes in particular areas. It is evident that executive agencies are especially suited to the implementation of programmes involving multiple contracts, grants, or subsidies. This is exemplified 160  There are clear analogies to reforms of the administrative landscape within national polities, such as the UK, with the shift to core departments, and Next Steps Agencies: Improving Management in Government: The Next Steps (1988); D Goldsworthy, Setting Up Next Steps: A Short Account of the Origins, Launch, and Implementation of the Next Steps Project in the British Civil Service (HMSO, 1991).

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by the case of energy where it is clear, extrapolating from existing experience, that upwards of 300 contracts per year may be awarded to effectuate the overall aims of the programme. It is vital that these contracts are properly managed in order that the problems revealed in the First Report of the Committee of Independent Experts are not repeated. Executive agencies, properly staffed with a mix of personnel seconded from the Commission, combined with staff recruited from outside, have the potential to provide an effective method of securing delivery of these programmes.161 The very fact that these agencies are subject to the general principles of the Financial Regulation, more especially those concerning the financial responsibility of the authorizing officer, serves moreover to enhance accountability and to further the conjunction of power and responsibility that runs throughout the new regime. Finally, it should be acknowledged that there are several layers to the legal realization of these administrative reforms. This is not excessive legalism. The differing legal norms legitimate the new structures, through the provision of overarching principles applicable to all forms of administration, combined with detailed rules relevant to particular institutional forms. The Financial Regulation is at the apex.162 It is of constitutional significance. It contains the budgetary principles, it orders the different forms of EU administration, it establishes principles governing the allocation and exercise of administrative power, and it allocates financial power and responsibility. The next level down is the Regulation on Executive Agencies, which draws on the principles in the Financial Regulation. No such general regulation is contemplated for networks of national agencies. The use of such networks will, nonetheless, be legitimated through EU legislation in the specific areas where they are used. There is a further legal level, concerned with the detailed operation of an executive agency, or network of national agencies. Specific Union legislation, combined with operating agreements, defines the tasks of such bodies in particular areas.

161  Special Report No 13 (n 88) [40]–[46]. 162  A revised version of the Financial Regulation is close to finalization. The rules concerning the issues addressed in this chapter are largely unaltered: REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the financial rules applicable to the general budget of the Union, 2, Brussels, 6 July 2018, PE-Cons 13/18.

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4 Shared Management 1 Introduction Shared management has been central to the implementation of EU policy. This includes areas where the EU expends funds, such as the Common Agricultural Policy (CAP) and the Structural Funds, and areas where the EU intervenes through regulatory ­policy  such as utilities, financial services, and consumer protection.1 The Financial Regulation contains provisions dealing with shared management, as well as centralized management.2 There are, nonetheless, many issues posed by shared management that are not touched by the 2002 reforms. It would clearly be impossible in the course of this ­chapter to deal with all the main areas where shared administration applies. That would require a book in itself.3 The issues will therefore be explored in the context of the CAP and the Structural Funds. There is considerable specialist literature dealing with these areas, but they have received relatively little attention from a more general public law perspective. The legal regimes governing agriculture and regional policy are daunting in their complexity. They cannot, however, be ignored by anyone seriously interested in law and administration within the EU, because expenditure in these areas still consumes a large part of the EU budget, and because the regime of shared management poses unique problems and challenges. The public law approach taken to the study of these areas is a broad one, and it is important to make this clear at the outset. It is not confined to analysis of procedure, or the application of the principles of judicial review. These issues are significant, and the way in which such principles have been modified so as to accommodate shared management/composite procedures, together with the difficulties thereby involved, will be considered in later chapters on judicial review.4 To believe that these issues 1 P Craig, ‘Shared Administration, Disbursement of Community Funds and the Regulatory State’ in H Hofmann and A Turk (eds), Legal Challenges in EU Administrative Law: Towards an Integrated Administration (Edward Elgar, 2009) Ch 2. 2  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 [2012] OJ L298/1, Arts 58–63. 3  See, eg, O Jansen and B Schöndorf-Haubold (eds), The European Composite Administration (Intersentia, 2011); C Harlow and R Rawlings, Process and Procedure in EU Administration (Hart, 2014). 4  See in particular, Chs 11, 12, 15, 16.

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constitute the entirety of public law concerns raised by the existence of shared or mixed administration is, nonetheless, mistaken, since it circumscribes the nature of the inquiry too narrowly. The preceding issues are important, but tell only part of the story concerning the interrelationship between administration and law as concerns the CAP and the Structural Funds. We must also be mindful of regulatory efficacy, and the challenges posed by the fact that administration of such schemes is undertaken both by EU and national authorities. We should, therefore, be cognizant of issues concerning legislative design, the way in which legislation embodies incentives for compliance, and the principal factors that shape an effective regime of shared administration. These matters are explored in relation to the CAP and the Structural Funds, but are equally pertinent to inquiry in any other area where shared administration operates. It is helpful at this juncture to note the definition provided by the Committee of Independent Experts. Shared management connoted,5 [M]anagement of those Community programmes where the Commission and the Member States have distinct administrative tasks which are inter-dependent and set down in legislation and where both the Commission and the national administrations need to discharge their respective tasks for the Community policy to be implemented successfully.

2  The Common Agricultural Policy (A) Treaty Foundations The Treaty foundations for the CAP have not altered in substance since the inception of the Community. The objectives of the CAP are laid down in Article 39(1) TFEU. They are: (a) to increase agricultural productivity by promoting technical progress and by ensuring

the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour; (b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilise markets; (d) to assure the availability of supplies; (e) to ensure that supplies reach consumers at reasonable prices.

These objectives are set out at a high level of generality, and can conflict. Decisionmaking has, therefore, always necessitated a balancing operation of the factors in

5  Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999) Vol I, [3.2.2] (hereafter Second CIE).

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Article 39(1). The Treaty provides further guidance as to attainment of these ­objectives. Article 40(2) stipulates that the common organization of agricultural markets may be directed towards price regulation, production, and marketing aids, and storage arrangements to stabilize imports and exports; and it provides that there shall be no discrimination between producers or consumers in the EU.

(B) From Price Support towards Income Support The detailed story of the CAP has been told elsewhere.6 It is, however, necessary to understand the outline of this story, in order to comprehend the regime of shared management.7 The principal focus of CAP policy has been on price support. A rationale for the EU has always been that goods should be able to move unhindered by trade barriers. This regime has not applied to agricultural produce. The Council established common prices for most agricultural goods. There was a target price, this being the price that it was hoped farmers would be able to obtain on the open market. There was an intervention price, which was the price at which the Commission would buy up produce from the market. There was also a threshold price, this being the price to which imports were raised when world prices were less than those prevailing in the EU. The price support system was very costly for the EU, consuming the largest share of the budget. EU prices have generally been higher than those on the open markets. This encouraged production, generating surplus goods, which then had to be stored, a further significant cost. If they were exported yet further cost was incurred, since the CAP regime provided ‘restitution’ to exporters to ensure that they suffered no loss on such transactions. The EU adopted a variety of measures to ameliorate the consequences of the CAP price support regime. Quotas were introduced to reduce the impact of the system. The degree of price support for particular agricultural goods was reduced. Farmers were encouraged to set aside farmland and reduce production. There was a realization that the existing regime could not continue in the light of enlargement, since many applicant countries were heavily dependent on agriculture, and hence the financial burden on the EU would increase. Incentives for CAP reform also came from external sources. The EU was under pressure from the US and other countries to reform its protectionist agricultural policies. These pressures became particularly forceful during the Uruguay round of the negotiations on the General Agreement on Tariffs and Trade (GATT) in 6  J Usher, Legal Aspects of Agriculture in the European Community (Oxford University Press, 1988); F Snyder, New Directions in European Community Law (Weidenfeld, 1990) Chs 4–5; W Grant, The Common Agricultural Policy (Macmillan, 1997); R Fennell, The Common Agricultural Policy: Continuity and Change (Clarendon Press, 1997); J McMahon, Law of the Common Agricultural Policy (Longman, 2000); E Rieger, ‘The Common Agricultural Policy, Politics against Markets’ in H Wallace and W Wallace (eds), Policy-Making in the European Union (Oxford University Press, 4th edn, 2000) Ch 7; M Cardwell, The European Model of Agriculture (Oxford University Press, 2004). 7 https://ec.europa.eu/info/departments/agriculture-and-rural-development_en#responsibilities.

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the early 1990s. The Agriculture Commissioner, MacSharry, put together a package of reforms, which were of more long-term significance, since it was acknowledged that support for farmers could be disaggregated from production. This was the beginning of the shift from price support to income support. Fischler, the Agriculture Commissioner in the Santer Commission, continued this trend. Support for farmers began to be seen separately from support for production. This theme was developed in the Commission’s Agenda 2000 document.8 The Commission proposed large reductions in support prices, coupled with direct compensation to farmers. The proposals were opposed by France and it was not easy to secure agreement on the changes. However, the pressures of enlargement, and the EU’s negotiating position with the World Trade Organization (WTO), led to an agreement in June 2003, the foundation of which was the disaggregation of financial support from production. The key element of the reformed CAP was a single farm payment for EU farmers, which, subject to limited exceptions, was decoupled from production. This payment was linked to respect for standards concerning the environment, food safety, animal and plant health, and animal welfare. The reformed CAP also embodied a strengthened rural development policy.9 The governing instrument now dates from 2013.10

(C) The Framework of Shared Management The administration of the CAP is ‘shared’, in the sense that the various forms of price support payments were administered jointly by the Commission and the Member States.11 This was for many years done through the European Agricultural Guidance and Guarantee Fund (EAGGF). The Guidance section dealt with expenditure relating to agricultural structures; the Guarantee section covered payments relating directly to the regulation of agricultural markets, refunds on exports, and intervention payments. It is the latter that is of principal concern here. The main enabling provision for many years was Regulation 729/70.12 The Member States designated the bodies within their countries that would make the payments ­covered by the Guarantee section,13 and the Commission made the funds available to  the Member States for disbursement by those bodies.14 The Member States were

8  Agenda 2000: For a Stronger and Wider Union (1997). 9  Council Regulation (EC) 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers [2003] OJ L270/1. 10  Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the ­common  agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 [2013] OJ L347/608. 11  Second CIE (n 5) Vol I, [3.6.3]. 12  Council Regulation 729/70/EEC on the financing of the common agricultural policy [1970] OJ L94/13. 13  Ibid Art 4(1). 14  Ibid Art 4(2).

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obliged to take the necessary measures to satisfy themselves that the transactions financed by the Fund were carried out correctly; to prevent and deal with irregularities; and to recover sums lost as a result of irregularities or negligence.15 However, in the absence of total recovery, the financial consequences of irregularities or negligence were borne by the Community, with the exception of the consequences of irregularities or negligence attributable to administrative bodies of the Member States.16 The Member States and Commission could carry out inspections to ensure the probity of the transactions financed by the Fund.17 In addition to the provisions of Regulation 729/70 protection of the budget was to be secured through clearance of accounts. This was important since the Commission paid national bodies monthly, and sought to recover thereafter sums that should not have been paid. Prior to 1995 the Commission was required to clear the EAGGF Guarantee accounts by 31 December of the year following the financial year concerned, that is by 31 December of year n + 1. The Member States were meant to submit the accounts of their paying agencies by 31 March of the year n + 1, which were then examined by the Commission. The accounts were, however, rarely closed  on time, and it became common for them to be finalized a year late. The Commission could order a correction in relation to a particular irregularity. It could also order flat-rate corrections when it discovered systemic weakness in the procedures of a paying agency, from which it could be concluded that irregular payments had been made. Three major changes to Regulation 729/70 were made in 1995. It was stipulated that paying agencies had to be accredited by the Member States, and only such agencies could make payments.18 Where more than one agency was accredited the Member State had to specify a coordinating body responsible for promoting the harmonized application of the rules.19 The accounts of the paying agencies had to be certified by a body that was operationally independent of the paying agency.20 Finally, the timetables and procedures for accounting and compliance were separated within the system for clearance of accounts.21 These changes were incorporated in Regulation 1258/99,22 and were retained in later Regulations23 that superseded it.

15  Ibid Art 8(1). 16  Ibid Art 8(2). 17  Ibid Art 9. 18  Commission Regulation (EC) 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) 729/70 regarding the clearance of accounts of the EAGGF Guarantee Section [1995] OJ L158/6, Art 1. 19  Council Regulation (EC) 1287/95 amending Regulation (EEC) 729/70 on the financing of the common agricultural policy [1995] OJ L125/1, Art 1. 20  Reg 1663/95 (n 18) Art 3. 21  Reg 1287/95 (n 19) Art 1. 22  Council Regulation (EC) 1258/1999 of 17 May 1999 on the financing of the common agricultural policy [1999] OJ L160/103. 23  Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on  the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 [2013] OJ L347/549.

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3  The CAP, Shared Management, and Law It is interesting to reflect on the role of law within the pattern of shared management that characterizes the CAP.

(A) The Delineation of Legislative Objectives: The Tension between the Collective Interest and the Interests of Individual Member States It is fitting to begin by considering legislative objectives. There has been tension between the collective interests of the Member States in the Council, and the interests of individual Member States as recipients of CAP funds. The framers of legislation will approach their task with certain aims. The Member States in their collective capacity have an interest in the allocation of the EU budget, and in the proper use of funds. There is, however, a tension between this objective and the accountability of individual Member States for the correct disbursement of CAP funds. Individual states sought to minimize their liability for incorrect CAP allocations. This was reflected in the content of the legislation and in the way it is applied.

(B) Legislative Design and Content: Incentives for Compliance This leads naturally to the design and content of legislation. The legislation contained procedural and substantive conditions for eligibility to funds. It specified rules as to liability if things went wrong. These matters were crucial to the way shared management operated. Law creates incentives or disincentives to certain types of action. The framing of the legal provisions is vital to the success of the scheme. This can be seen from three examples. The first concerns the complex system of export refunds. This was intended to bridge the gap between Community prices and those on the world market. The provisions differentiated payments according to product type, and export destination. It was highly susceptible to fraud and difficult to police. It required careful verification that the goods were of a kind for which the refund was claimed, and that they were destined for a particular country, and not another where the prices were higher, and hence only a lower refund would be payable.24 A second example relates to the 1995 legislative reforms that introduced a­ ccreditation and certification of accounts. The Commission argued that it should be responsible for the accreditation of paying agencies, and for approval of the national certifying bodies, but these suggestions were rejected by the Council. The Member States were empowered to accredit agencies,25 and specify the certifying bodies.26 This was problematic, with bodies being accredited that did not fulfil the relevant criteria. 24  Second CIE (n 5) [3.13.2]–[3.13.5]. 26  Reg 1663/95 (n 18) Art 3.

25  Reg 1258/1999 (n 22) Art 4.

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The third example of the importance of legislative design is provided by Article 8 of Regulation 729/70.27 Member States had an obligation to prevent irregularities, and to recover sums lost as a result of irregularities or negligence. However, in the absence of total recovery, the financial consequences of irregularities or negligence were borne by the Community, with the exception of losses attributable to irregularities or negligence by administrative bodies of the Member States. This created, as the Committee of Independent Experts noted, a particular pattern of incentives.28 It is difficult to believe that the administrative authorities . . . in the Member States are always inclined to highlight for the Commission instances of irregularity or negligence on their part which would result in them bearing the resulting financial consequences. It is also difficult to believe that they are never negligent. In other words, the arrangements which this basic Regulation established and which still pertain do not provide the immediate disbursers of 48% (at one time as high as 70%) of the Community’s budget, the EAGGF paying agencies in the Member States, with any immediate incentive for rigour and tight control of what is in effect someone else’s, that is the Community’s, money.

(C) The Undermining of Formal Law: Pressure from the Member States and Acquiescence by the Commission Formal law, howsoever framed, can only do so much. The history of shared management in this area provides ample testimony to the way in which formal legal norms were undermined in the operation of the CAP. Member States bypassed formal law when it suited their interests. This can be exemplified by the accreditation of paying agencies. Article 4 of Regulation 729/7029 was clear: Member States were obliged to submit to the Commission details of the paying agencies, and the accounting conditions for payment. However, prior to 1996 there were ‘hundreds of un-notified small de facto agencies making EAGGF Guarantee payments in the Member States without any structured procedures for checking on their activities or accounts’.30 This illegality was practised by the Member States and tolerated by the Commission. In this context ‘shared administration amounted to not much more than shared acceptance that the Regulation could be flouted’.31 This point was further exemplified by the system for clearance of accounts. The timescale for this procedure was rarely adhered to, in part because the Member States were habitually late in submitting the accounts of paying agencies.

(D) The Law Attempts to Catch Up: Formal Legal Change and its Effectiveness The interplay between formal legal norms and practical reality is readily apparent in the response to the preceding problems. The law attempted to ‘catch up’ and address 27  See n 12. The provision remained unchanged in Reg 1258/1999. 29  See n 12. 30  Second CIE (n 5) [3.9.6]. 31  Ibid [3.9.6].

28  Second CIE (n 5) [3.7.5].

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the problems caused by shared management. There were many changes in the CAP regulations. The major changes were motivated by the need to address shortcomings of the previous legal structure. Thus the 1995 Regulations32 were designed to deal with the weaknesses of the previous legal regime. The accreditation requirements, the stipulation that there must be a coordinating body where there was more than one paying agency, the certification of accounts, and the divide between accounting and compliance were all directed towards this end. We must also consider the effectiveness of law reform. The revised legal norms may be a necessary condition for improvement in the CAP regime. It is not, however, sufficient. The Court of Auditors looked at these issues twice. Its conclusions were that the revised regime was certainly better than before, but that the new system still had deficiencies. Both reports revealed weaknesses in the accreditation system. The 1995 reforms gave power of accreditation to the Member States. The Court of Auditors found that there were major shortcomings in many paying agencies, which ought to have led the Member States to withdraw accreditation.33 It also found that the certifying bodies were not always operationally independent of the paying agencies.34 Its later Report found that there had been improvements, but that there were still causes for concern. There were still too many paying agencies, some of which failed to meet the criteria for accreditation, but the Member States had not generally withdrawn their accreditation.35 The independence of certifying bodies had been resolved, but there were shortcomings in the conduct of audits.36 The Committee of Independent Experts expressed itself more forcefully. It concluded that the ‘leeway which the Commission has allowed the Member States on accreditation and certification amounts to a lax implementation of the Regulation’.37 The Committee was of the view that the 1995 reforms had improved the recovery of money, but that there were insufficient resources devoted to the task and it concluded that the error rate was still too high.38

(E) The Conciliation Procedure: Bargaining in the Shadow of the Law The legal regime for the CAP was also markedly affected by the Conciliation Procedure. There were inevitably differences of opinion between the Member States, and Commission concerning the clearance procedure. The Commission could exclude expenditure by paying agencies where it was not in compliance with EU rules.39 Before

32  See nn 18, 19. 33  Court of Auditors, Special Report 21/98, Concerning the Accreditation and Certification Procedures as Applied to the 1996 Clearance of Accounts for EAGGF-Guarantee Expenditure [1998] OJ C389/1, [2.11]. 34  Ibid [3.2]. 35 Court of Auditors, Special Report 22/2000, On Evaluation of the Reformed Clearance of Accounts Procedure [2000] OJ C69/1, 13–23. 36  Ibid 31–47. 37  Second CIE (n 5) [3.9.10]. 38  Ibid Vol I, [3.14]. 39  Reg 1258/1999 (n 22) Art 7(4).

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such a decision was finalized, the Member State could invoke the Conciliation Procedure, which was introduced in 1994.40 The original idea, as advanced by the Belle Group, was for a mandatory mechanism that would obviate settlement out of court, and hence reduce the number of cases brought by Member States under what is now Article 263 TFEU.41 What emerged was rather different. The Conciliation Body was instructed to try to reconcile the divergent positions of the Commission and the Member States. This was not, however, binding on the Commission, nor did it preclude a Member State from using Article 263. Conciliation is a sensible idea, but the effect of the Conciliation Body was mixed. The number of cases in which it secured agreement was relatively low,42 and there was not a marked drop in cases submitted to the ECJ.43 The Committee of Independent Experts described conciliation as a ‘win-win’ procedure for the Member States, ­enabling them to delay recovery of undue payments, while reserving the right to ­challenge the Commission’s final decision before the Court.44

(F) The Contribution of the ECJ: Teleological Interpretation in Support of the Commission The discussion of law in CAP shared management would be incomplete if it did not consider the role of the ECJ. The general reaction of EU lawyers is for the eyes to glaze over concerning annulment actions in relation to EAGGF funding. The Court’s contribution to the ‘law’ that governs the CAP regime is, nonetheless, important. It interpreted the legislation in a teleological manner, with important consequences for the allocation of financial responsibilities between the EU and the Member States. The ECJ allocated the risk of incorrect interpretation of the EU rules to the Member States. The Member States argued that the implication of Article 8(2)45 of Regulation 729/70 was that losses flowing from an incorrect, but bona fide, application of an EU rule by a national authority should be borne by the EU, except where there was negligence at the national level. The Court disagreed. It held that Article 8(2) contained ‘too many contradictory and ambiguous elements to provide an answer to the question at issue’.46 The ECJ decided the case on the basis of Articles 2 and 3, from which it concluded that only sums paid in accordance with the rules correctly interpreted could be charged to the EAGGF. It was for the Member States to bear the burden of other sums paid.47 The ECJ reasoned that otherwise Member States might give a broad i­nterpretation to the relevant rules, thereby benefiting their traders as compared to those in other states. The Court also made it easier for the Commission to impose financial corrections on the Member States in the clearance procedure. Most actions for judicial review

40  Commission Decision 94/442/EC of 1 July 1994 setting up a conciliation procedure in the context of the clearance of accounts of the EAGGF Guarantee Section [1994] OJ L182/45. 41  Doc VI/216/93. 42  Court of Auditors, Special Report 22/2000 (n 35) 65–8. 43  Ibid 72. 44  Second CIE (n 5) [3.11.1]. 45  Reg 729/70 (n 12). 46  Case 11/76 Netherlands v Commission [1979] ECR 245, [6]. 47  Ibid [8].

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involved a challenge to the legality of flat-rate corrections. These were made by the Commission when it discovered a systemic weakness in the procedures of a paying agency, and it concluded that a series of irregular payments had been made. Flat-rate corrections could be 2, 5, or 10 per cent of the money disbursed, depending upon the seriousness of the deficiency, and the degree of probable loss to EU funds. The Court held that it was for the Member State, in accordance with Article 8(1),48 to ensure the correct implementation of the CAP, prevent irregularities, and recover sums lost due to irregularity or fraud. This was seen as an application of the general duty of cooperation in what is now Article 4(3) TEU.49 It was for the Commission to prove an infringement of the CAP rules, and to give reasons explaining the defect in the national procedures.50 However, the Commission was not required to demonstrate exhaustively that the checks carried out by national authorities were inadequate, or that there were irregularities in the figures submitted by them, but to adduce evidence of ‘serious and reasonable doubt on its part regarding those checks or figures’.51 The rationale for this ‘mitigation of the burden of proof ’ was that it was the Member State that was best placed to verify the data required for the clearance of the EAGGF accounts. Therefore it was for the state to adduce evidence to show that it had carried out the necessary checks, or that its figures were accurate, and that the Commission’s assertions were inaccurate.52 This judicial reasoning was of real importance for the clearance procedure. It ­legitimated the system of flat-rate corrections, without which the compliance aspect of clearance would have been unworkable. It went a considerable way to negate the damaging force of Article 8(2), under which the financial consequences of irregularities or negligence were borne by the EU, unless attributable to irregularities or negligence by the national agencies. The Commission carried out inspections of national procedures, and might conclude that there was a serious and reasonable doubt as to the soundness of these procedures, or the correctness of the national figures. The ‘mitigation’ of the burden of proof means that it was for the Member State to adduce evidence to dispel those doubts. It was, in this sense, much easier to ‘attribute’ the irregularities to the Member States, denying them the safe haven of Article 8(2).

(G) The Reformed CAP: Looking to the Future The reforms to the CAP have been touched on earlier. The shift to income support that is largely decoupled from production is central to the new regime, as is the condition that such payments are conditional on compliance with standards concerning the environment, food safety, animal and plant health, and animal welfare. 48  Reg 1258/1999 (n 22). 49  Case C-235/97 France v Commission [1998] ECR I-7555, [45]; Case C-278/98 Netherlands v Commission [2001] ECR I-1501, [92]. 50  Case C-253/97 Italy v Commission [1999] ECR I-7529, [6]; Case C-278/98 Netherlands v Commission (n 49) [39]. 51  Case C-54/95 Germany v Commission [1999] ECR I-35, [35]; Case C-278/98 Netherlands v Commission (n 49) [40]. 52  Case C-278/98 Netherlands v Commission (n 49) [41].

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These substantive changes to the CAP regime have been accompanied by reforms relating to the administration and financing of the CAP, which took effect from 1 January 2007.53 Administration of the CAP is now in the hands of the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD).54 The EAGF continues the work of the EAGGF, Guarantee section, and administers direct payments to farmers and measures regulating or supporting agricultural markets. The EAFRD administers the EU’s financial contribution to rural development programmes. The rules relating to accreditation of national paying agencies have been reinforced, and where more than one agency exists within a Member State it must specify one agency that will act as the coordinating body.55 Member States must, as in the past, designate a certification body to verify the accounts of the accredited paying agency, and both types of body must supply the Commission with a variety of information.56 Member States are under a duty to adopt all necessary measures to ensure protection of the EU’s financial interests, including the prevention of irregularities and the recovery of sums lost through irregularity or negligence.57 The Commission is empowered to reduce or suspend monthly payments if information supplied by the Member States indicates that funds have not been used in compliance with EU rules.58 The 2013 Regulation contains important provisions concerning clearance of accounts, designed to ensure that EU funds have been spent as intended.59 It is important to see the substantive provisions on the CAP based on income support and rural development, in tandem with the modified rules on administration and financing. There is little doubt that the shift from production subsidies to income support will reduce fraud. The very complexity of the previous regime with its multiplicity of rules relating to quotas, subsidies, and the like invited the fraud that has been an endemic problem in this area. The new system, however, has its own problems. The criteria for direct farm payments cast in terms of compliance with environmental, food safety, animal and plant health, and animal welfare standards can be difficult to evaluate. These difficulties are exemplified by Reports of the Court of Auditors60 that identified problems in the single payment scheme for farmers that lies at the heart of the reformed CAP,61 weaknesses in the scheme for agri-environment support for farmers,62 difficulties with clearance of accounts,63 and shortcomings in the control systems concerning the regularity of payments.64 53  Reg 1290/2005 (n 23) Arts 2–4. 54  https://ec.europa.eu/agriculture/cap-overview_en; https://ec.europa.eu/agriculture/cap-funding_en. 55  Reg 1306/2013 (n 23) Art 7(4). 56  Ibid Art 9. 57  Ibid Arts 56, 58. 58  Ibid Arts 63, 64. 59  Ibid Arts 47–53. 60  The reports are available at https://www.eca.europa.eu/en/Pages/AuditReportsOpinions.aspx. 61  Court of Auditors, Special Report 5/2011, Single Payment Scheme (SPS): Issues to be Addressed to Improve its Sound Financial Management. 62  Court of Auditors, Special Report 7/2011, Is Agri-Environment Support Well Designed and Managed? 63  Court of Auditors, Special Report 7/2010, Audit of the Clearance of Accounts Procedure. 64  Court of Auditors, Annual Report on the Implementation of the Budget [2010] OJ C303/1, [3.70]–[3.72]. See also Court of Auditors, Special Report 1/2016, Is the Commission’s system for performance measurement in relation to farmers’ incomes well designed and based on sound data?

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4  The Structural Funds (A) The Treaty Foundations The principal provisions concerning the Structural Funds have been amended on a number of occasions since they first appeared as a discrete title in the EC Treaty. These developments will be considered later. It is nonetheless helpful to set out the relevant Treaty articles at this juncture. Article 174 TFEU is now the foundational provision. In order to promote its overall harmonious development, the Union shall develop and pursue its actions leading to the strengthening of its economic, social and territorial cohesion. In particular, the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions. Among the regions concerned, particular attention shall be paid to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, cross-border and mountain regions.

This principle is then fleshed out by Article 175 TFEU. Member States are to conduct their economic policies and coordinate them so as to attain the objectives set out in Article 174. Union policy in relation to the internal market must also take into account the objectives specified in Article 174. The EU is to support the attainment of these aims through the Structural Funds: the EAFRD; the European Social Fund (ESF); and the European Regional Development Fund (ERDF); and the European Maritime and Fisheries Fund.65 The ERDF is especially important. It is to help to redress the main regional imbalances in the EU through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions.66 There is also a Cohesion Fund (CF) to provide a  financial contribution to environmental projects and trans-European networks ­relating to transport infrastructure.67 The European Parliament and Council, acting under the ordinary legislative ­procedure, and consulting with the European Economic and Social Committee (ECOSOC) and the Committee of the Regions, define the tasks, priority objectives, and organization of the Structural Funds. The same procedure is used for the enactment of general rules applicable to the Funds, which are designed to ensure their ­effectiveness and the ­coordination between them.68 The Commission must report every three years to the Council, the European Parliament, ECOSOC, and the Committee of the Regions on progress towards achieving economic and social cohesion and the contribution of the Funds to this end.69

65  http://ec.europa.eu/regional_policy/en/funding/.   66  Art 176 TFEU. 67  Art 177 TFEU.    68  Art 177 TFEU. 69  Art 175 TFEU.

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(B) The Genesis of Structural Fund Policy The Treaty articles provide the legal framework for Structural Fund policy, but provide little by way of understanding of the forces that led to the inclusion of this Title in the Treaty, or the ways in which it has developed since its inception.70 The original Rome Treaty contained no specific commitment to adjust the imbalance between the regions in Europe. It did, however, contain within the list of general objectives the promotion throughout the Community of a harmonious development of economic activities and a continuous and balanced expansion; and the Preamble made reference to reducing the differences between the various regions and the ­backwardness of the less favoured regions. The initial impetus for a more specific Community role in regional policy came from the Commission and in 1967 a directorate dealing with this area was established. This was followed in 1969 by Commission proposals for the coordination of Member State regional policy, and for the creation of Community regional policy. These initial proposals were not well received by major players such as Germany and France. The fact that a Community regional policy was nonetheless established but three years later was due to a number of factors. Discussion of moves towards economic and monetary union was one such factor, since it was recognized that significant regional disparities would impede this development. Enlargement was another factor, since the then new entrants, Britain, Ireland, and Denmark, each had disadvantaged regions that would benefit from a Community regional policy. The Paris Summit in 1972 decided in favour of a Community regional policy, and this was given further impetus by the Thomson Report in 1973 by the EC Regional Policy Commissioner. The Paris Summit in 1974 agreed to the setting up of the ERDF, although the birth was not easy and was accompanied by much brinksmanship by the major state players. These ­disagreements spilled over into wrangles about the amount available for disbursement, and the 1974 Summit finally agreed on £540 million. The money was allocated in accord with national quotas, rather than by objective Community criteria as advocated by the Commission.

70  G Marks, ‘Structural Policy in the European Community’ in A Sbragia (ed), Euro Politics: Institutions and Policymaking in the ‘New’ European Community (Brookings Institution, 1992); G Marks, ‘Structural Policy and Multilevel Government’ in A Cafruny and G Rosenthal (eds), The State of the EU, Vol 2: The Maastricht Debates and Beyond (Longman, 1993) 395; J Scott, Development Dilemmas in the European Community: Rethinking Regional Development Policy (Open University Press, 1995); M Pollack, ‘Regional Actors in Intergovernmental Play: The Making and Implementation of EC Structural Policy’ in C Rhodes and S Mazey (eds), The State of the European Community, Vol 3: Building a European Polity (Longman, 1995); L Hooghe (ed), Cohesion Policy and European Integration (Oxford University Press, 1996); I Bache, The Politics of European Union Regional Policy: Multi-Level Governance or Flexible Gatekeeping? (Sheffield Academic Press, 1998); T Christiansen, ‘Territorial Politics in the EU’ (1999) 6 JEPP 349; J Scott, ‘Regional Policy: An Evolutionary Perspective’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999) Ch 17; A Evans, The EU Structural Funds (Oxford University Press, 1999); J Sutcliffe, ‘The 1999 Reform of the Structural Fund Regulations: MultiLevel Governance or Renationalization?’ (2000) 7 JEPP 290.

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(C) The 1988 Reforms There were significant reforms to the Structural Funds in 1988. The forces driving the reforms were eclectic. There was dissatisfaction with the regime established in 1975 in terms of the meagre amount available for disbursement and because the principles governing the allocation of funds, such as additionality, were often ignored. There were new entrants to the Community, Spain and Portugal, who had incentives to press for a more vibrant Structural Fund policy. Reform of Structural Fund policy was also a consequence of the drive to complete the internal market heralded by the Single European Act 1986 (SEA). This was seen as necessary to ensure the acceptability of the market-based initiatives in the SEA. There were fears that it would be the wealthier economies that would ­benefit from completion of the single market, with the consequence that the gap between them and the less advantaged economies would widen. Reform of the Structural Funds was seen as one way of alleviating these concerns. The Treaty was amended through inclusion of new articles under the Title of Economic and Social Cohesion, and there was a commitment to double the funding. This was accompanied by the passage of regulations setting out the principles to guide operation of the Funds. Regulation 2052/8871 identified the principal objectives and tasks of the Funds. Five such objectives were set out.72 Objective 1 was the promotion of the development and structural adjustment of the regions whose development was lagging behind. Objective 2 was the conversion of regions seriously affected by industrial decline. Objective 3 was to combat long-term unemployment. Objective 4 was to assist in the occupational integration of young people. Objective 5 was concerned with reform of the CAP. A  small percentage of the budget, approximately 9 per cent, could be used for Community initiatives, programmes designed by the Commission to meet particular regional needs. A number of principles ran through the 1988 scheme. It was premised on concentration, this connoting the idea that funding should be allocated to the areas in greatest need. The concept of additionality was always central to the Commission conception of Structural Fund assistance. This connoted the idea that the Commission and the Member States should ensure that expenditure from the Funds had a genuine a­ dditional impact in the regions concerned and resulted in at least an equivalent increase in the total volume of official or similar (Community and national) structural aid in the Member State concerned, taking into account the macroeconomic circumstances in which the funding takes place.73 The idea of partnership was equally central to the 1988 scheme. Article 4 of Regulation 2052/88 provided that Community operations ‘shall be 71  Council Regulation (EEC) 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their e­ffectiveness and on co-ordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments [1988] OJ L185/9. 72  Ibid Arts 1–2. 73  Council Regulation (EEC) 4253/88 laying down provisions for implementing Regulation (EEC) 2052/88 [1988] OJ L374/1, Art 9.

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established through close consultations between the Commission, the Member State concerned and the competent authorities designated by the latter at national, regional, local or other level with each party acting as a partner in pursuit of a common goal’. The partnership was to cover the preparation, financing, monitoring, and assessment of the operations. This led naturally to the fourth guiding principle: programming: funding would be given for a period of years, and the 1988 regulations established a detailed scheme whereby the different players of the partnership would interrelate. The CSF was central to the operation of the Funds. The Member State, having consulted the relevant parties, submitted to the Commission its regional development plans, setting out its regional development priorities and the operational programmes it wished to pursue. The Commission reviewed the proposed plans and programmes for conformity with the Regulation. It then established, through the partnership referred to above, and in agreement with the Member State, the CSF for Community Structural Fund operations. The CSF specified the priorities adopted for Community assistance, the forms of the assistance, its duration, and the financing plan. There was then more detailed elaboration of the operational programmes that had been given the green light by the CSF.

(D) The 1993 Reforms There was further reform of the Structural Funds in 1993, which was motivated by broader developments in the EU and within the national economies. The Maastricht Treaty contained new provisions on economic and monetary union. This created pressure to increase the amount available for regional aid, resulting in agreement that the budget for the Structural Funds should be increased to 27.4 billion ECUs by 1999. Pressures from Member States, particularly Spain, led to the creation of the Cohesion Fund, to provide a further compensatory mechanism for poor Member States. A sum in the order of 16 billion ECUs was allocated to the fund for the period between 1993–9.74 The downturn in the economies of some Member States created countervailing concerns about the effectiveness of Community policies, leading to demands that the ­regulatory provisions concerning assessment and monitoring of Structural Fund ­operations should be strengthened. The 1993 reforms modified the objectives of Structural Fund policy.75 Objectives 1 and 2 remained the same. However, the previous objectives 3 and 4 were merged to create a new Objective 3 combating long-term unemployment and promoting entry to the labour market. There was a new Objective 4 designed to facilitate the adaptation of workers to industrial change. There were also modifications to Objective 5, most importantly through the creation of a new fund, the Financial Instrument of Fisheries Guidance, which would address problems resulting from the decline in fishing. A new

74  Council Regulation (EC) 1164/94 of 16 May 1994 establishing a Cohesion Fund [1994] OJ L130/1, Art 7. 75  Council Regulation (EEC) 2081/93 of 20 July 1993 amending Regulation 2052/88 [1993] OJ L193/5, Art 1.

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Objective 6 was added allowing funds to be used for the development of sparsely ­populated Nordic areas. The principles that had guided the policy in this area—concentration, additionality, partnership, and programming—continued to frame the regime post-1993. There were, however, modifications to the previous position. The weakening in the definition of additionality was most significant. It became possible to take into account ‘a number of specific economic circumstances, namely privatizations, an unusual level of public structural expenditure undertaken in the previous programming period and business cycles in the national economy’.76 This made it increasingly difficult for the Commission to argue that Community funds were being used instead of national expenditure.

(E) The 1999 Reforms The Structural Funds were reformed once again in 1999, on this occasion in the shadow of enlargement. The shadow cast by the prospective enlargement was highly significant in budgetary terms, since the extension of the existing regime to the new Member States would mean a radical increase in the overall cost of the regional programme. The sum of €195 billion was allocated to the Funds for the period 2000–6, €18 billion for the Cohesion Fund, and a further €7.28 billion for pre-accession structural assistance. Regulation 1260/9977 reduced the objectives that could be pursued through the Structural Funds to three. Objective 1 continued to be concerned with the development and structural adjustment of regions whose development lagged behind, defined as those with a GDP 75 per cent or less than the EU average over the previous three years.78 Objective 2 was cast in terms of supporting the economic and social conversion of areas facing structural difficulties.79 Objective 3 was now framed in terms of support for the adaptation and modernization of systems of education, training, and employment.80 The principles that had guided policy in this area continued to apply, albeit with some modification. The emphasis on concentration was retained. This was manifest in the reduction of the objectives from six to three, in the strictures in the 1999 schema that the criteria for inclusion in these objectives would be strictly applied, and  in the reduction of the Community’s own initiatives from thirteen to three. The concept of additionality was preserved, albeit with the same basic criterion as contained in the 1993 regulations.81 The 1999 schema, however, attempted to put ‘more bite’ into this idea, by providing more specific details as to how additionality would be estimated in relation to the 76  Council Regulation (EEC) 2082/93 of 20 July 1993 amending Regulation 4253/88 [1993] OJ L193/20, Art 9(2). 77  Council Regulation (EC) 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds [1999] OJ L161/1, Art 1. 78  Ibid Art 3(1). 79  Ibid Arts 1(2), 4(1). 80  Ibid Art 1(3). 81  Ibid Art 11(2).

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different objectives eligible for funding, and by delineating in more detail three verification points at which the calculus would be undertaken.82 The Member State retained control over the baseline figures for domestic funding. The idea of partnership remained central to Commission thinking, and the operative provision was modified such that the Member States in designating the relevant bodies within their own states should take account of the need to promote equality between men and women, and sustainable development through the integration of environmental protection and improvement requirements.83 Programming continued to be integral in the 1999 scheme, being made operational through the CSFs.84 There was, however, a shift towards delegating more responsibility to the Member States for the implementation of and monitoring of particular programmes.

(F) The 2007 Reforms The Structural Fund regime was further reformed through Regulations that cover the period from 2007–13.85 A sum in the order of €336.1 billion, or one-third of the EU budget, was allocated. The principal catalysts for reform were enlargement, coupled with a desire to link the Structural Fund regime more closely with other EU initiatives, the Lisbon and Gothenburg agendas concerning the knowledge economy and the employment strategy. The Regulation made a number of important changes to the ­pre-existing order and further decentralized operations in this area. The objectives were recast.86 Objective 1 was now cast in terms of convergence, although it was close to the previous objective of helping those areas that were lagging behind in terms of development. This objective took the biggest share of available funds, 81.54 per cent. The key test for eligibility was that the region had a per capita GDP that was less than 75 per cent of the average for the enlarged EU, this applying mainly to the new Member States. Objective 2 was modified to focus on regional competitiveness and employment, and all regions not covered by the convergence objective were eligible. It took 15.95 per cent of resources. Objective 3 was European territorial cooperation which was designed to foster cross-border cooperation and took the remaining 2.51 per cent of available resources. The principles that guided structural policy hitherto were preserved,87 albeit with some modification. There is a clear emphasis on the need to concentrate the resources on the areas that are in the greatest need, as reflected by the fact that the bulk of the funding is devoted to convergence. Programming, partnership, and additionality ­continue to feature prominently in the new regime. There is, however, more reference

82  Ibid Arts 11(2), 11(3). 83  Ibid Art 8(1). 84  Ibid Arts 13–19. 85  Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 [2006] OJ L210/25; Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 [2006] OJ L371/1. 86  Reg 1083/2006 (n 85) Art 3(2). 87  Ibid Arts 9–17.

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to proportionality and subsidiarity, signalling that oversight and management of ­operational programmes would be undertaken by the Member States.88 This was reflected moreover in the provisions on additionality which indicated that this would only be monitored by the Commission in relation to the convergence objective.89 The documentation related to programming was significantly altered. CSFs, Single Programming Documents, and Programme Complements were replaced by a new scheme. The Council established strategic guidelines for Community Structural Fund policy, taking account of the medium-term economic strategy as contained in the Broad Economic Policy Guidelines and the European Strategy for Employment.90 Each Member State prepared a National Strategic Reference Framework (NSRF), which set out how the Member State intended to use funding for Objectives 1 and 2 in the period 2007–13.91 The Member State had to submit data justifying an operational programme for Objectives 1 and 292 and the Commission could require modification to particular operational programmes if they were not consistent with the Council’s strategic guidelines or the NSRF.93 The intent behind the new scheme was, however, that the Commission’s ‘adoption’ of the operational programme took place at an aggregate level, in the sense that only the most important priorities would be highlighted, with further detail being left to the Member States.

(G) The 2013 Reforms The present regime is governed by Regulation 1303/2013.94 The priorities for 2014–20 include a stronger focus on results, enhanced accountability, simplification, and the fight for social inclusion. The Structural Funds have been related more closely to other aspects of EU policy. This is evident from the more direct link between Structural Fund policy and EU economic policy, such that if a Member State does not comply with the latter, then its payments from the Structural Funds may be reduced.95 This linkage is evident yet again in the fact that Article 9 provides that in order to contribute to EU strategy for ‘smart, sustainable and inclusive growth as well as the Fund-specific missions pursuant to their Treaty-based objectives, including economic, social and territorial cohesion’, each of the Structural Funds should support the ­following more general thematic objectives:96 strengthening research, technological

88  Ibid Art 13. 89  Ibid Art 15. 90  Ibid Arts 25–26. 91  Ibid Art 27. 92  Ibid Art 37. 93  Ibid Art 32(4). 94  Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 [2013] OJ L347/320. 95 http://ec.europa.eu/regional_policy/en/policy/how/priorities/. 96  For studies concerning the effectiveness of this new approach, see http://ec.europa.eu/regional_policy/ en/policy/how/improving-investment/studies_integration/.

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development, and innovation; enhancing access to ICT; enhancing the competitiveness of small and medium-sized enterprises, and the agricultural and fisheries sectors; ­supporting the shift towards a low-carbon economy in all sectors; promoting climate change adaptation, risk prevention, and management; preserving and protecting the environment and promoting resource efficiency; promoting sustainable transport; promoting sustainable and quality employment, and supporting labour mobility; ­promoting social inclusion, combating poverty, and any discrimination; investing in education, training, and vocational training; and enhancing institutional capacity of public authorities and stakeholders and efficient public administration.97 Implementation of Structural Fund policy is the result of a process of consultation between the Commission and Member States.98 Thus, each Member State produces a draft Partnership Agreement, which outlines the country’s strategy and proposes a list of programmes. The Member States present draft operational programmes, which cover entire Member States and/or regions, and represent that Member State’s ­priorities. There can also be cooperation programmes involving more than one country. The Commission negotiates with the national authorities on the final content of the Partnership Agreement, as well as each of the programmes. There will be managing authorities in each Member State, which have overall responsibility for the correct deployment of this funding. The principles that guide Structural Fund policy have largely been preserved, these being concentration, programming, partnership, and additionality.99

(H) The Framework of Shared Management The discussion thus far has focused on the development of Structural Fund policy over time. This is essential in order to understand the subsequent discussion. It is equally important to stand back from the temporal development and appreciate the sense in which this area exemplifies shared management. We should recall here the helpful definition of shared management provided by the Committee of Independent Experts and which is quoted at the end of Section 1 above. Structural Fund policy is especially interesting in this respect, since shared management operates, albeit in different ways, in relation to project and programme selection, and in relation to implementation and monitoring of selected projects and programmes. Shared management applies therefore both to the input and the output stage. The role of law in both dimensions will be considered in the section that follows.

97  European Structural and Investment Funds 2014–2020, 2016 Summary Report of the programme annual implementation reports covering implementation in 2014–2015, COM(2016) 812 final. 98  For strategies to improve implementation at Member State level, see http://ec.europa.eu/regional_policy/ en/policy/how/improving-investment/. 99  Reg 1303/2013 (n 94) Arts 14–18, 26–30, 95, Annex X; http://ec.europa.eu/regional_policy/en/policy/ how/principles/.

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5  The Structural Funds, Shared Management, and Law (A) The Delineation of Legislative Objectives: The Tension between the Collective Interest and the Interests of Individual Member States The previous discussion on the role of law in the context of the CAP revealed a tension between the collective interest and the interests of individual Member States. The same tension is apparent, albeit in different ways, in relation to both the input and output dimensions of the Structural Funds. This tension can be outlined here and will be explicated more fully later. In terms of inputs, the successive regulations on the Structural Funds embodied commitments to concentration, additionality, partnership, and programming as ideals that shaped the collective interest in a rational EU regional policy. The legislation, however, accorded the Member States significant discretion concerning the application of these ideals in the context of project selection, or the legislation was amended to weaken the peremptory force of the particular collective commitment. In terms of output, it is clear that the collective interest favours the proper deployment of resources to attain the goals of EU regional policy. This requires machinery to ensure that projects and programmes are properly monitored, that there is effective machinery to detect financial irregularity through audit and the like, and that the rules provide a meaningful regime for compliance by the relevant players. Individual Member States may, however, have an incentive to avoid these consequences in relation to their own projects, more especially where the consequences could be financial penalties on the state, or the withholding of further disbursements. This issue is particularly significant given that the strategy in the 1999 regulations was to devolve more responsibility for monitoring to the Member States, since the Commission did not possess the requisite resources. It is then all the more important that the legislative rules casting the Member State as gamekeeper do not allow it to become poacher, or to turn a blind eye to poaching by others. The tensions between the collective interest and that of the Member States came to  the fore in the Second Report of the Committee of Independent Experts. The Committee made two kinds of observations concerning the Structural Funds. It was, on the one hand, critical of certain aspects of the legislative design embodied in the Structural Fund regulations even after 1999. The Committee concluded that the balance of decision-making power had shifted to the Member States, but that a number of factors tended to divest them of responsibility:100 the criterion for additionality was weak;101 the shift to programming post-1988 removed the greater part of Commission

100  Ibid Vol I, [3.22].

101  Ibid Vol I, [3.19].

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control over individual projects;102 and the ceiling of expenditure for each Member State was in effect also a target, with implications for project selection, evaluation, and control,103 this being exacerbated by Member States’ ability to substitute projects for those declared ineligible.104 The Committee, on the other hand, expressed concern about the practical ­effectiveness of the powers possessed by the Commission. Thus while the Committee was mindful of the improvements in the 1999 regulations concerning proper management and ­control systems, it felt that the resources for control were ‘woefully inadequate to ensure proper implementation of the new Regulation’.105 It expressed similar reservations about the powers relating to on-the-spot checks, and the paucity of claims for recovery in cases of financial irregularity. These provisions were of limited efficacy, not because of inadequacies in the legislation per se, but because of inadequate implementation by the Commission combined with resistance by the Member States.106

(B) Legislative Design and Input: Project Selection The way in which the tensions between the collective and individual interest affected attainment of the ideals underpinning the Structural Fund regulations can now be explored more fully. We can begin by focusing on partnership. There is a duality in the very meaning of partnership in the regulatory provisions. In formal legal terms, partnership primarily connotes a relationship between the Member States and the Commission in the application of regional policy. It also captures the idea that when devising a development plan the Member State should involve regional bodies, local authorities, and the like.107 The relationship between these two senses of partnership lies at the root of the debate among political scientists as to whether this area exemplifies multilevel governance, or whether it is best explained in liberal intergovernmentalist terms. Proponents of ­multilevel governance point to the Commission’s discretion over indicative allocations per Member State and also the involvement of sub-national actors in the drawing up of the development plan, coupled with its implementation.108 Those who espouse a more liberal intergovernmentalist view respond by pointing to the controls that remain in the hands of the Member States.109 Thus the Member States designated the bodies that took part in the formulation of the plan.110 This combined with other provisions ­enabled the Member State to operate as an ‘extended gatekeeper’, maintaining control over all stages of the policy process, including implementation. On this view, there may well be evidence of multilevel involvement in the implementation of EU regional policy, but less of a case for multilevel governance as such. The duality in the key legal provisions about partnership is central to an understanding of this debate.

102  Ibid Vol I, [3.18]. 103  Ibid Vol I, [3.15.6]. 104  Ibid Vol I, [3.18.1]–[3.18.3]. 105  Ibid Vol I, [3.17.3]. 106  Ibid Vol I, [3.17.4]–[3.17.6]. 107  Reg 1260/1999 (n 77) Art 8. 108  Marks (n 70). 109  Pollack (n 70). 110  Reg 1260/1999 (n 77) Art 8.

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The idea of partnership in the first sense, as between the Commission and the Member States, leaves unresolved the precise degree of power wielded by each at the input stage. Prior to 1988 each Fund operated in isolation, and assistance was granted to individual projects proposed by states and approved by the Commission. In 1988 the Structural Funds moved to coordinated operations on the basis of multi-annual programming. The move from individual projects to programming, and from Member State quotas to indicative ranges determined by the Commission, gave the Commission some significant control over policy formulation and the identification of priorities. The Commission’s discretion in this respect was, however, bounded by specified ­criteria.111 It should also be recognized in estimating the balance of power under this partnership that the legislative schema accorded significant powers to the Member States. The development plans were designed by the Member States, and these formed the basis of their operational programmes. The Commission determined whether the operational programmes were consistent with the aims of the CSF drawn up by the Commission in agreement with the relevant Member State. When a programme was approved and the Community contribution fixed, the 1988 and 1993 regulations made no express provision for the selection of individual projects to implement the programme. This was left to the Member States. In practice, it was reportedly carried out by the monitoring committees.112 Under the 1999 regulations, Member States had to submit a ‘programme complement’113 detailing the individual measures to be assisted and the types of final beneficiary, as well as the financing plan for each measure.114 Thus while programmes had to be approved by the Commission, they were drawn up by the Member States. This ordering of power as between the Commission and the Member States continued in subsequent regimes,115 although the Commission is empowered to determine whether the proposed operational programme contributes to the goals of the national strategic reference framework and the EU strategic guidelines on cohesion, and can require the Member State to revise the proposed programme.116 The idea of partnership in the second sense, capturing the EU’s desire formally to involve actors other than the Member States in the decision-making process, has been tempered by the Member States’ desire to retain control over who should participate, and the extent of this participation. It is the Member State that designates within the framework of its ‘national rules and current practices’ the bodies that participate in drawing up the development plan.117 The tension between the collective interest and that of individual Member States is also evident in relation to additionality. It was always central to the collective interest 111  Ibid Arts 3(1), 4, 7(3). 112  J Scott, ‘Law, Legitimacy and EC Governance’ (1998) 36 JCMS 175, 183, 187; Scott, ‘Regional Policy’ (n 70) 634–7. 113  Reg 1260/1999 (n 77) Art 15(6). 114  Ibid Art 18(3). 115  Reg 1083/2006 (n 85) Art 32; Reg 1303/2013 (n 94) Arts 26–29. 116  Reg 1083/2006 (n 85) Art 32(4); Reg 1303/2013 (n 94) Art 29. 117  Reg 1260/1999 (n 77) Art 8(1); Reg 1083/2006 (n 85) Art 11(1).

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in the overall regional programme, connoting the idea that EU aid should not be an excuse for the diminution of national aid. The legal force of this commitment in Article 9 of Regulation 4253/88118 was, however, qualified by the fact that it allowed account to be taken of the ‘macro-economic circumstances in which the funding takes place.’ Later amendments further weakened the force of this provision. It became possible to take into account ‘a number of specific economic circumstances, namely privatizations, an unusual level of public structural expenditure undertaken in the previous programming period and business cycles in the national economy’,119 thereby making it increasingly difficult for the Commission to argue that EU funds were being used in place of national expenditure. The Court of Auditors attested to the very real difficulties in the application of additionality.120 The practical force of additionality was strengthened in the 1999 Regulation by the obligation cast on the Member State to determine the level of expenditure that it would maintain in, for example, Objective 1 regions, for the programming period of five years and to make this commitment as a precondition to the approval of any CSF.121 Additionality was verified ex ante, at midterm, and at the end of the six-year period.122 This general approach has been preserved in the 2007 and 2013 scheme for the convergence objective.123

(C) Legislative Design and Output: Payment and Incentives for Compliance The tension between the collective EU interest and that of individual Member States is also apparent at the output stage. If the regime of shared management is to be effective, then proper attention must be given to legislative design in this respect. There must be appropriate rules relating to matters such as payment, monitoring, audit, and the like, more especially given the plethora of projects that benefit from EU funding. We can begin by considering the payment regime. Advance payments give the national authorities control over disbursement of the funds, while reimbursements leave that control ultimately with the Commission, which can refuse to reimburse ineligible or otherwise irregular expenditure. Prior to 1999 payments were made according to annual commitments,124 although they could be suspended where Commission examinations revealed irregularities.125 Up to 80 per cent of the annual commitments were paid through two advances.126 National authorities could rely on continuous advance payments to cover payments to beneficiaries, without too close an inspection of progress. The Commission could

118  See n 73. 119  Reg 2082/93 (n 76) Art 9(2). 120  Court of Auditors, Special Report 6/99, Concerning the Application of the Principle of Additionality [2000] OJ C68/1. 121  Reg 1260/1999 (n 77) Art 11(2). 122  Ibid Art 11(3); Twelfth Annual Report on the Structural Funds (2000), COM(2001) 539 final, [2.1.4]. 123  Reg 1083/2006 (n 85) Art 15(4); Reg 1303/2013 (n 94) Art 15, Annex X. 124  Reg 4253/88 (n 73) Art 21(1). 125  Ibid Art 24(2). 126  Ibid Art 21(2) and (3).

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suspend payments altogether for irregularities, or reduce future commitments because of lack of progress, but these controls largely applied after the fact.127 The legal regime changed considerably post-1999. The general rule now is for reimbursement of expenditure actually incurred. Commitments and payments were disassociated under the 1999 Regulation. Commitments are still made on an annual basis, but the bulk of payments are now firmly linked to expenditure. Pre-financing is strictly limited to 2–3 per cent of assistance.128 After that, all interim and final payments are made to reimburse eligible expenditure, which must be certified by the Member State.129 Payments may be suspended if there is evidence of a significant deficiency in the national management and control system.130

(D) Legislative Design and Output: Control Systems, Reporting, Checks, and Incentives for Compliance The legislative design of the payment regime is a necessary condition for effective shared management. It is not sufficient. There must also be effective control systems over the disbursement of funds at national level. The applicable provisions have been tightened over time. The regime prior to 1999 showed a gradual ‘ratcheting up’ of the relevant provisions. The ‘1988 scheme’ required Member States to take the necessary measures to verify that operations were carried out properly, to prevent and take action against i­rregularities, and to recover amounts lost through irregularity or negligence.131 Member States also had to designate appropriate authorities to certify the correctness of the information supplied in payment requests and reports.132 The ‘1993 amendments’ went further and required Member States to notify the Commission of the management and control systems it had established.133 This obligation was spelt out in greater detail in the ‘1997 amendments’.134 The national control systems had to ensure: proper implementation in accordance with sound financial management; certify the validity of payment claims; provide a sufficient audit trail; facilitate identification of possible weaknesses; and provide for corrective measures to eliminate irregularities.135 The obligations on Member States to prevent financial irregularities were also tightened during this period.136

127  S White Protection of the Financial Interests of the European Communities: The Fight against Fraud (Kluwer Law International, 1998) 98–9. 128  Reg 1083/2006 (n 85) Art 82. 129  Ibid Arts 85–88. 130  Ibid Arts 91–92; Reg 1303/2013 (n 94) Arts 76–82. 131  Reg 4253/88 (n 73) Art 23(1). 132  Ibid Art 21(3)–(5). 133  Reg 2082/93 (n 76) Art 23(1). 134  Commission Regulation (EC) 2064/97 of 15 October 1997 establishing detailed arrangements for the implementation of Council Regulation (EEC) 4253/88 regards the financial control by Member States of operations co-financed by the Structural Funds [1997] OJ L290/1. 135  Ibid Art 2. 136  Reg 4253/88 (n 73) Art 23(1); Commission Regulation (EC) 1681/94 of 11 July 1994 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the structural policies and the organization of information systems in this field [1994] OJ L178/43; Reg 2064/97 (n 134) Art 7.

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The regime post-1999 developed and reinforced the strategy from earlier regulations. There are detailed rules concerning management and control systems. Member States must designate managing authorities for each operational programme, which have a plethora of responsibilities for the correctness, efficiency, and management of  the programme.137 The Member States must also designate a separate certifying authority, to certify expenditure and payment requests before they are sent to the Commission. There must in addition be national audit authorities that verify the ­effective functioning of the management and control systems, and audit the accounts. Monitoring committees are also required for each operational programme, and must be satisfied with the quality and implementation of the operational programme in accord with specified criteria.138 The rules concerning management and control ­systems are reinforced by extensive national reporting requirements. This is important since it will have a marked impact on the effectiveness of the other regulatory controls.139 The preceding regulatory controls are further reinforced by provisions which give the Commission power to evaluate national systems and to conduct on-the-spot audits.140

(E) Legislative Design and Output: Correction of Irregularities, Sanctions, and Incentives for Compliance It is essential if the policy objectives are to be achieved that there should be adequate sanctions. The general enforcement power under Article 258 TFEU can be used to enforce Member States’ obligations in relation to the Structural Funds. There are in addition other ways in which irregularities can be corrected and sanctions can be imposed. These operate through the Member States and the Commission. Member States have an obligation to take measures to correct irregularities and recover amounts lost.141 The Member State is liable for amounts unduly paid to a ­beneficiary that cannot be recovered, where the loss was the result of Member State negligence.142 The legislation imposes duties on Member States to investigate ­irregularities and to make the financial corrections flowing from such irregularities.143 The Commission also has powers and duties to prevent irregularity. The power to impose penalties is somewhat limited.144 The Commission’s principal sanctions are conditional payment and financial correction.

137  Reg 1303/2013 (n 94) Arts 72–74, 122–127. 138  Ibid Arts 110–111. 139  14th Annual Report on the Implementation of the Structural Funds, COM(2003) 646 final, [3.2]. 140  Reg 1303/2013 (n 94) Art 75. 141  Ibid Arts 72, 122. 142  Ibid Art 122.    143  Ibid Arts 122, 143. 144  Council Regulation (EC, Euratom) 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests [1995] OJ L312/1. This Regulation was passed to provide generally for administrative penalties for financial irregularities across all sectors of EU activity. It states that penalties may be imposed for either intentional or negligent irregularities, and may be applied either to the perpetrators of the irregularity, or to those with a duty to prevent or take responsibility for irregularities. However, the Regulation merely sets out framework rules, to be implemented by further sectoral legislation.

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Payments have been conditional on certified claims since 1988, and since 1999 they are almost exclusively by way of reimbursement of certified regular expenditure. Non-reimbursement of expenditure the regularity of which cannot be assured potentially represents an effective sanction and incentive to ensure the regularity of expenditure. The 1999 system included a new power to reduce the payment on account instead of making a financial correction.145 The 2006 and 2013 Regulations contain extensive provisions allowing payment to be interrupted, suspended, or withheld where there are  doubts concerning the management and control systems or the regularity of ­expenditure.146 In relation to financial corrections, the Structural Funds operate on a multi-annual basis. This provides the foundation for reducing or cancelling the EU contribution to a programme in the event of irregularities. We have already touched on the Member States’ obligations to carry out corrections. The focus here is the Commission’s power to make corrections. In the 1988 Regulations, the Commission was accorded a general power to reduce, suspend, or cancel assistance in the event of irregularity.147 The 1999 Regulations introduced more comprehensive provisions for financial corrections, which have been retained in the 2006 and 2013 Regulations. The Commission makes financial corrections by cancelling part of the EU contribution to an operational programme. It is largely a backup power, where the Member State has failed to carry out corrections, or failed to comply with its control and management obligations.148 The net effect is that where the Member State has already paid out on the irregular ­expenditure, cancellation and deduction from the next funding instalment means that the loss due to the irregularity is shifted to the Member State, leaving it out of pocket at the end of the programme unless it can recover from the beneficiaries. This effectively amounts to liability for amounts not recovered.

(F) The Contribution of the ECJ: Teleological Interpretation in Support of the Commission We saw that the ECJ played an important role in the CAP. Its role in relation to the Structural Fund Regulations has been less prominent, in part at least because there is no formal system of annual clearance of accounts of the kind that exists in the CAP regime, and it is this which provided the vehicle for most of the legal challenges in the agricultural sphere. The EU Courts have, nonetheless, played a significant role in the context of the Structural Funds. This has been most marked in relation to legal challenges to financial corrections. The 1988 Regulations allowed the Commission to reduce, suspend, or cancel assistance in the event of an irregularity.149 The EU Courts interpreted the relevant provisions 145  Reg 1260/1999 (n 77) Art 39(3)(a). 146  Reg 1083/2006 (n 85) Arts 91–92; Reg 1303/2013 (n 94) Arts 83, 142–143. 147  Reg 4253/88 (n 73) Art 24. 148  Reg 1083/2006 (n 85) Art 99; Reg 1303/2013 (n 94) Art 85. 149  Reg 4253/88 (n 73) Art 24.

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broadly, so as to support the Commission in its endeavour to ensure the probity of the system. This is so both in substantive and procedural terms. The broad substantive interpretation of these provisions is exemplified by Conserve Italia.150 The ECJ accepted that Article 24(2) of Regulation 4253/88 did not expressly allow the cancellation of assistance. It concluded, nonetheless, that Article 24(2) would be deprived of its effectiveness if the Commission could not cancel the entirety of the assistance where this was warranted. This was more especially so because reduction of assistance directly in proportion to irregularities detected would encourage fraud, since applicants would risk only the loss of the sums unduly paid. In Valnerina151 the CFI held that it was acceptable in principle for a decision granting assistance to specify one of a number of parties involved as the sole person to be financially liable in the event of irregularities, provided that this was made sufficiently clear at the outset. In COPPI152 the ECJ considered whether it was lawful for a Member State to revoke ­assistance granted to an undertaking from the EAGGF, or whether this power was reserved to the Commission. The ECJ acknowledged that Article 23 of the Regulation did not expressly provide for this action by a Member State. It held, however, that the Article would be deprived of useful effect if a Member State could not adopt such measures, more especially because it had the primary responsibility for monitoring the operation of the project. The EU Courts have been equally strident in relation to procedural aspects of the enforcement regime. The CFI held in Sgaravatti Mediterranea153 that the Commission could validly comply with its obligation, contained in Article 24(1) of Regulation 4253/88, to conduct an examination prior to ordering reduction of assistance for ­irregularities, by relying on detailed investigations made by the national authorities. In Conserve Italia154 the ECJ held that it was essential for the proper functioning of the system of controls established to ensure the proper use of EU funds that applicants for aid provided the Commission with information that was reliable and not apt to mislead it. The same approach is evident in Thessalonikis.155 The CFI confirmed that the Commission had the burden of proof under Article 24 of Regulation 4253/88, but held that if examination revealed irregularities it was then for the beneficiary of the ­assistance to show that expenditure was properly incurred on the particular project. It was, moreover, for the beneficiary to provide the Commission with all documentation required to dispel the doubts raised by the Commission. Similar themes are apparent in Hortiplant,156 where the ECJ held that the Commission’s power to cancel 150  Case C-500/99 P Conserve Italia Soc Coop arl v Commission [2002] ECR I-867, [88]; Cases C-383– 385/06 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid [2008] ECR I-1561. 151  Case T-340/00 Comunita Montana della Valnerina v Commission [2003] ECR II-811, [53]–[54]. 152  Case C-271/01 Ministero delle Politiche Agricole e Forestali v Consorzio Produttori Pompelmo Italiano Soc Coop arl (COPPI) [2004] ECR I-1029, [41]. 153  Case T-199/99 Sgaravatti Mediterranea Srl v Commission [2002] ECR II-3731, [45]. 154  See n 152 [100]. 155  Case T-196/01 Thessalonikis v Commission [2003] ECR II-3987, [47]. 156  Case C-330/01 Hortiplant SAT v Commission [2004] ECR I-1763, [31], [32].

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assistance under Article 24(2) of Regulation 4253/88 would be ‘totally deprived of usefulness if, prior to the adoption of a decision, the Commission were obliged to wait for the Member State concerned to submit its observations’.

(G) Formal Law and Efficacy The formal legal regime for the disbursement of Structural Funds has been tightened and strengthened since its inception. The present regime is nonetheless complex and places considerable reliance on effective interaction between the Commission and the Member States. This is especially so given the decentralization of responsibilities to the latter. It is therefore important to assess the effectiveness of this disposition of power and authority. Reports from the Court of Auditors are valuable in this respect. The Court of Auditors considered the efficacy of the financial controls introduced in 1994 and 1997.157 These Regulations upgraded the checks required on programmes co-financed from the Structural Funds and introduced a system for communicating information about irregularities that were detected by Member States. The Court found that the new regulatory regime had beneficial effects. It concluded, however, that there were instances where the Member States were not applying the rules correctly, in part because of inadequate guidance from the Commission. The data on irregularities was, moreover, incomplete and there was significant room for improvement in the follow up procedures by the European Anti-Fraud Office (OLAF) and the Commission in relation to these irregularities. The Court of Auditors conducted a general audit on the Structural Fund regime for 2000–6.158 It noted the achievements of the Commission during this period, but pointed to difficulties that still remained. The Report focused in part on the extent to  which funding assistance was actually reaching the intended regions in accord with Objectives 1 and 2 of the 1999 regime, and made recommendations to enhance ­effectiveness in this respect. It noted, moreover, the delays and unwieldiness in approving the Structural Fund programmes.159 The Report also considered the way in which the management and control systems were operating. It found there were delays in the introduction of such systems within some Member States.160 It affirmed the centrality of reliable data if devolved management subject to Commission supervision was to work.161 The Court of Auditors pointed to the danger that when the introduction of new functions was introduced piecemeal into national systems ‘there was an inherent risk as regards the separation of functions and the independence and operational ­efficiency of the new bodies’.162 Moreover, the allocation of the responsibility for

157  Court of Auditors, Special Report 10/2001, Concerning the Financial Control of the Structural Funds, Commission Regulations 2064/97 and 1681/94, together with the Commission’s Replies [2001] OJ C314/26. 158  Court of Auditors, Special Report 7/2003, On the Implementation of Assistance Programming for the Period 2000 to 2006 within the Framework of the Structural Funds, together with the Commission’s Replies [2003] OJ C174/1. See also Annual Report (n 64) [4.34]–[4.39]. 159  Special Report 7/2003 (n 158) [18]–[24]. 160  Ibid [55]. 161  Ibid [59]. 162  Ibid [64].

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­ anagement, payment, and certification to a single national institution, even if difm ferent departments therein performed separate functions, could lead to conflicts of interest, unless their operational independence was safeguarded in advance.163 The Report was in addition critical of imprecision relating to eligibility of expenditure.164 On a positive note, the Court of Auditors more recently concluded that ERDF ­co-financed tourism projects were in general effective.165

(H) Soft Law and Reform The preceding discussion reveals the complexity of the formal legal rules that apply in this area, and how they have changed over time. Legal rules such as the provisions on eligibility of expenditure,166 continue to be made to meet difficulties revealed by, for example, the Court of Auditors. Soft law has also been used to address difficulties in the functioning of the system, such as the administrative burdens placed on national administrations and the delays attendant on Commission approval. The system is based on a balance. It is premised on decentralization to the Member States of major responsibilities concerning project selection, management, evaluation, and control. The quid pro quo is the imposition of stricter controls on the Member States concerning financial management; automatic decommitment of appropriations (the n + 2 rule);167 financial corrections; and increased Commission power in relation to audit and the like. In 2003 the Commission engaged in discussion with the Member States on ways in which the 1999 regime could be made to work better.168 The changes proposed largely concerned interpretation of the existing legal rules rather than their modification. The  most interesting development from this discourse concerned what was termed the  ‘contract of confidence’. It emerged from the Member States’ rejection of the Commission proposal for an annual clearance of accounts regime modelled on the CAP. The Commission’s ‘contract of confidence’ was thus a fallback position, but ­interesting nonetheless. It was to be accommodated within the existing framework of legal rules. The ‘contract of confidence’ built on the decentralization that underpins the post1999 regime, and was based on three elements. There had to be: assurance that the national financial and control systems met the conditions in the EU regulations; a satisfactory national audit strategy; submission of reports through which the effective implementation of the audit strategy and certification of expenditure could be assessed. The operational consequences of a ‘contract of confidence’ were that the Commission 163  Ibid [66]. 164  Ibid [68]–[81]. 165  Court of Auditors, Special Report 6/11, Were ERDF Co-financed Tourism Projects Effective? 166  Commission Regulation (EC) 448/2004 of 10 March 2004 the eligibility of expenditure of operations co-financed by the Structural Funds [2004] OJ L72/66. 167  Reg 1083/2006 (n 85) Art 93; Reg 1303/2013 (n 94) Arts 86–88, 136. 168  On the Simplification, Clarification, Co-ordination and Flexible Management of the Structural Policies 2000–6, C(2003) 1255.

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limited on-the-spot audit to verification of assurances provided by the contract, and a reduction in the time that it retained documentation on expenditure and checks. More recently, the Commission has been attempting to combat corruption that can affect the proper use of Structural Funding through ‘Integrity Pacts’, which are contracts between a contracting authority and economic operators bidding for public ­contracts, that they will abstain from corrupt practices and conduct a transparent procurement process. To ensure accountability and legitimacy, an Integrity Pact includes a separate contract with a civil society organization, which monitors compliance with these commitments.169 The Commission continues to reflect on the Structural Funds, as evidenced by the 2010 report on economic, social, and territorial cohesion.170 The report assesses the contribution of cohesion policy and the difficulties caused by the financial crisis. The Commission is clearly desirous of forging closer links between cohesion policy, the  broader Lisbon agenda, and employment policy. This is evident in the 2013 Regulation.171 It is at the same time seeking to steer a course between preserving the continuity of existing policy because of the transaction costs associated with significant change, while fine-tuning that policy in order to ensure that it is more efficacious.

6  Conclusions and Assessment A number of related conclusions can be drawn concerning the role of law in the administration of the CAP and the Structural Funds. First, sharing the administration of complex activities is difficult. This is a trite statement, but important nonetheless. It was natural that the administration of the CAP and the Structural Funds should be shared between the Commission and national bureaucracies. The difficulties of designing and operating such a system should, nonetheless, be borne firmly in mind. It involves the interrelationship between twenty-eight Member States and the Commission. The rules are administered by states with diverse bureaucratic traditions, more especially at the level of operational detail concerning certification, audit, and the like. It is equally important to remember that the other players are states. This renders administration of the regimes, and the degree of power possessed by the relevant players, rather different from the paradigm of national administration, even where this is undertaken within a federal structure. Secondly, the interplay between Member States and the EU in the design of the rules governing these two regimes was never going to be straightforward. This is in part because of the very nature of the subject matter covered by the CAP and the Structural 169 http://ec.europa.eu/regional_policy/en/policy/how/improving-investment/integrity-pacts/. 170  Conclusions of the fifth report on economic, social and territorial cohesion: the future of cohesion ­policy, COM(2010) 642 final; Results of the public consultation on the conclusions of the fifth report on economic, social and territorial cohesion, SEC(2011) 590 final. 171  Reg 1303/2013 (n 94) Arts 9–10.

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Funds. The latter for example requires rules to be devised which delineate the ­objectives of regional policy, and the oversight and management of multiple individual projects across the entire EU. Moves towards simplification of the CAP legislation are to be welcomed,172 as are the reforms in the Structural Fund system post-2006.173 The relationship between Member States and the EU is also complex because of the tension between the collective interest and that of individual Member States adverted to ­earlier, and because of the tension between decentralization and effective supervision of regional policy. Thus, we have seen that the Structural Funds have been increasingly based on decentralization to the Member States. This has been motivated by subsidiarity and by the realization that the Commission does not possess the resources to administer the policy itself. It is, nonetheless, essential that effective supervision over the Funds be maintained, and this too involves responsibilities shared by the Member States and the Commission in the manner analysed earlier. Thirdly, legislative design is crucial for the successful delivery of these policies. It is certainly a necessary condition in this respect. This is so whether one has regard to the criteria for access to, for example, the Structural Funds, or whether one is concerned with management, oversight, audit, and the correction of irregularity. The rules contained in the EU legislation embody incentives for compliance, which may be more or less effective depending upon their content. While legislative design is a necessary ­condition for successful policy delivery, it is not sufficient. The history of the CAP and the Structural Funds provides important instances where the failings flowed not from inadequate rules, but from inadequacy in their implementation, whether this was due to failures of management systems, insufficient personnel, or personal shortcomings. The 2003 Report of the Court of Auditors bears testimony to the continuing difficulties with ensuring adherence to the rules applicable to the CAP and the Structural Funds.174 Finally, we should be careful about the ascription of blame when things go wrong. The tendency has been to lay the fault at the door of the EU, and more especially the Commission. This suits the Member States, and anti-European commentators. The Commission has been at fault through, for example, tolerating departures from existing rules, and by allocating insufficient personnel to the EAGGF section. To suggest that the entire malaise of the CAP, or that all difficulties with the Structural Funds, can be laid at the Commission’s door is a gross oversimplification. The EU is not some ­reified entity that desired the CAP in its present format. The existing regime is largely the result of Member State preferences expressed in the Treaty provisions and in the CAP legislation.175 172  Simplification of Agricultural Legislation, COM(2001) 48 final; Reg 1782/2003 (n 9); Reg 1290/2005 (n 23); Reg 73/2009 (n 10). 173 A New Partnership for Cohesion, Convergence, Competitiveness, Co-operation, Third Report on Economic and Social Cohesion (2004); Proposal for a Council Regulation Laying Down General Provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund, COM(2004) 492. 174  Court of Auditors, Annual Report Concerning the Financial Year 2003 [2004] OJ C293/01, [4.47]–[4.49], [5.66]–[5.69]. 175  Rieger (n 6) 180.

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5 Comitology 1 Introduction The discussion thus far has focused on centralized and shared administration as ways in which EU policy is delivered. This chapter focuses on Comitology and the making of secondary norms, which normally take the form of rules. This cuts across the ­previous analysis, in the sense that rulemaking is a feature of both direct and shared administration. The structure of the discussion is as follows. It begins with analysis of the problem presented by rulemaking, and the necessity for any polity, including the EU, to administer an area through secondary norms of a legislative nature. This is ­followed by an historical overview of rulemaking in the EU and the role of Comitology therein. The focus then shifts to detailed evaluation of the approach to rulemaking in the Lisbon Treaty.

2  Secondary Acts: The Nature of the Problem The issues raised by this chapter are complex. They take us into the realms of political science as well as law. We need to negotiate the difficult world of Comitology. It is all too easy to lose sight of the wood for the trees when traversing this landscape. It is, therefore, important to be clear from the outset about the nature of the problem. The problem, in essence, is how to make and legitimate secondary norms, which are often legislative in nature. The paradigm in democratic statal systems is for legislation to be enacted by the legislature. The primary legislation is then complemented by secondary norms, which flesh out the principles contained in the enabling statute. The reasons for this are well known. The legislature may not be able to foresee all ramifications of the legislation when the initial statute is made. It may well have ­neither the time, nor the expertise, to address all issues in the original legislation. The measures consequential to the original statute may have to be passed ­expe­ditiously, which precludes the use of procedures for primary legislation. These reasons gain added force when viewed in the context of much modern legislation, which is often framed in relatively open-textured terms, thereby necessitating greater specification through subsequent action. The problem of securing the legitimacy of rules is

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especially significant within the EU, given that it functions in many respects as a regulatory state.1 The secondary norms that are enacted will vary depending on the subject matter of the primary legislation, and the nature of the issue that requires elucidation. On some occasions, the secondary measure will be an individualized decision, made by the ­person to whom authority has been delegated by the primary legislation. In other instances, the secondary norm will be legislative in nature. It will take the form of a general rule that is intended to apply to all those falling within a certain factual situation. The terminology used to describe such norms varies as between legal systems. Some employ the language of delegated or secondary legislation; others prefer the appellation rulemaking; yet others use terminology such as directive. The method by which such measures are made also varies. The premise in some systems is that norms of a legislative nature should so far as possible be legitimated through oversight by the legislature, even if the procedures through which this is done differ from those used for primary legislation. This legitimation from the ‘top’ via the legislature may then be complemented by legitimation from the ‘bottom’ through participation in rulemaking by affected parties pursuant to a legal regime providing the framework for such participatory rights. The premise in other regimes is that the ­executive should have some autonomous power to make secondary rules of a ­legislative nature, the principal check lying with the courts via judicial review. It is important to be clear about the content of these secondary rules of a legislative nature. It is tempting to think in terms of a simple divide between the primary legislation that captures all points of principle, while secondary norms address insignificant points of detail, with the corollary that the latter can therefore be left to the executive relatively unencumbered by external constraint. This does not represent reality. There is no simple dichotomy between principle and detail. There is no ready equation between detail and absence of political controversy. Secondary norms may deal with uncontroversial detail. They may often address points of principle, or involve issues of political choice, which are every bit as controversial as those dealt with in the primary legislation. The extent to which issues of political choice can be delegated to ministers, agencies, and the like will be affected by the extent to which the legal system uses a non-­delegation doctrine. The vigorous deployment of such a doctrine, designed to ensure that the essential principles are laid down in the primary statute, will limit delegation of broad rulemaking powers to bodies external to the legislature. This does not alter the point being made here. The fact that a legal system takes the non-delegation doctrine ­seriously means that the courts will ensure that there are sufficient principles to guide the framing of the rules made by the executive or administration. It does not mean that the rules made pursuant to the primary legislation will thereby be self-executing, ­politically uncontroversial, or merely technical. The non-delegation doctrine does not, 1  G Majone, ‘The Rise of the Regulatory State in Europe’ (1994) 17 West European Politics 77; G Majone, Regulating Europe (Routledge, 1996); G Majone, ‘Europe’s “Democratic Deficit”: The Question of Standards’ (1998) 4 ELJ 5.

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therefore, serve to ensure that the relationship between the primary legislation and rules made pursuant thereto functions in accord with some idealized transmission belt theory of administrative law. The preceding analysis is of course standard fare for those familiar with public law. This does not mean that national solutions can necessarily be cut and pasted to the EU. Nor does it mean that we should ignore the wealth of experience at national level. We should be mindful that the problem of ensuring the legitimacy of secondary rules is an endemic one for all systems, and we should be equally mindful that no system has  ‘cracked’ or ‘solved’ the problem perfectly. It is, therefore, little wonder that the issue still proves problematic within the EU. Moreover, the ‘solutions’ adopted within national systems necessarily reflect explicitly or implicitly a complex normative and pragmatic calculus. This is equally true in the EU. There are, however, structural factors in the EU that have made it especially difficult to devise a satisfactory solution to the dilemma of legitimating secondary rules of a legislative nature. This does not mean that the dilemma is incapable of resolution in this context. It does mean that we have to understand the reality of the functioning of the EU in order to make sure that any proposed solutions cohere with its modus operandi.

3  Comitology: A Short Guide to a Complex History There is a rich literature exploring Comitology in the EU.2 The present discussion will merely address the most significant staging posts in this historical development, in order to lay the foundations for the later analysis.

(A) The Ambiguous ‘Original Intent’ Most discussions concerning rulemaking in the EU begin with the birth of Comitology in the early 1960s. This will be considered later. It is, however, important to step back to the original Rome Treaty. This is particularly so because the Commission has 2  G della Cananea, ‘Cooperazione e integrazione nel sistema amministrativo delle comunità europee: la questione della “comitologia”’ (1990) Rivista Trimestrale di Diritto Pubblico 655; R Pedler and G Schaefer (eds), Shaping European Law and Policy: The Role of Committees and Comitology in the Political Process (European Institute of Public Administration, 1996); D Rometsch and W Wessels (eds), The European Union and Member States: Towards Institutional Fusion? (Manchester University Press, 1996); C Joerges, K-H Ladeur, and E Vos (eds), Integrating Scientific Expertise into Regulatory Decision-Making: National Traditions and European Innovations (Nomos, 1997); C Joerges and E Vos (eds), EU Committees: Social Regulation, Law and Politics (Hart, 1999); Third Report of the House of Lords Select Committee on European Legislation: Delegation of Powers to the Commission: Reforming Comitology (HL 23, 1999); E Vos, Institutional Frameworks of Community Health and Safety Legislation: Committees, Agencies and Private Bodies (Hart, 1999); M Andenas and A Turk (eds), Delegated Legislation and the Role of Committees in the EC (Kluwer Law International, 2000); M L Tufano, ‘La comitologia e le misure di esecuzione degli atti e delle politiche comunitarie’ (2008) Diritto dell’Unione Europea 149; C-F Bergström, Comitology: Delegation of Powers in the European Union and the Committee System (Oxford University Press, 2005).

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a­ rticulated a picture of the ‘Community method’ in which it characterizes itself as the ­executive, which should have sole or principal responsibility for the making of such secondary rules. This vision must, however, be justified, not merely stated. Such justification may be based on first principle, the argument being that this falls within the natural province of the executive, and the Commission is the executive for these purposes. This argument will be assessed later. The justification could alternatively be grounded in the original Treaty, or later amendments thereto. This argument will be considered here. It is not easy to discern the framers’ intent from the travaux préparatoires for the EEC Treaty. A close reading of the original Rome Treaty reveals that it was, however, ambiguous as to assignment of power over the making of secondary rules. The disposition of primary legislative power in the Rome Treaty was relatively clear. In most areas the maxim the ‘Commission proposes, the Council disposes’ held true. Legislative authority was divided between the Commission, exercising the right of ­legislative initiative, and the Council that had the right to vote. The Commission’s power was increased because unanimity was required for the Council to amend a Commission proposal, and because the Commission could alter the original proposal before the Council had acted.3 The Assembly had a bare right to be consulted, but only where the Treaty so stipulated. The disposition of power over the making of secondary rules was much less clear. The Treaty drew no formal distinction between primary and secondary norms. The same terminology of regulation and directive was applied to both. It was left to the reader to divine that a regulation was made pursuant to an earlier regulation or d ­ irective by its title and content. The Commission’s claim for authority over the making of secondary rules fastened on the wording of Article 155 EC, which provided that in order to ensure the proper functioning and development of the common market the  Commission should ‘exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter’. This was, however, a decidedly shaky basis for the assertion of authority or autonomy over the making of secondary ­legislative rules. This was in part because, as the ECJ pointed out,4 the provision was optional: it became operative when the Council conferred power on the Commission for the implementation of primary legislation. It was in part because of ambiguity as to the meaning of ‘implementation’. The word could refer to the ‘making’ of secondary rules, although this still left open the possibility of attaching conditions by the Council to the delegation of such power. It could, alternatively, refer to the ‘execution’ of the primary regulation or directive, connoting the need to take measures including individual decisions to ensure that the primary regulation or directive was properly applied.5

3  Art 149 EEC. 4  Case 25/70 Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster and Berodt & Co [1970] 2 ECR 1161, [9]. 5 Case 16/88 Commission v Council [1989] ECR 3457, [11]–[13], for recognition of this ambiguity in ­relation to ‘implementation’ in the revised Art 145 EC post the SEA.

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The reality was that the Rome Treaty provided little by way of definitive guidance on the making of secondary rules, or the conditions that could be attached to this process. The early years of the Community’s existence should, therefore, be regarded as a working out of this issue, not as some upsetting of a carefully contrived institutional balance clearly delineated in the original Treaty.

(B) The Birth of Comitology Political reality may well be the mother of legal invention. Comitology was born in the context of the Common Agricultural Policy (CAP).6 It rapidly became clear that the CAP required detailed rules to respond to market circumstances. Recourse to primary legislation was often impracticable. The Member States were, however, wary of according the Commission a blank cheque over the making of implementing rules, especially given that power once delegated without encumbrance would generate legally binding rules without further Council oversight. This wariness was heightened by the tensions between the Council and the Commission in the mid-1960s, leading to the Luxembourg Crisis and subsequent Accords. The relative powers of the Council and Commission were fought out with de Gaulle and Hallstein staking out their visions of the two institutions. It would, nonetheless, be mistaken to see the birth of the committee system solely in terms of Council distrust of Commission. The committee system was also conceived as a way of dealing with ­disagreements between the Member States themselves. The Member States might agree on the general regulatory principles for a particular area, but disagree on the more detailed ramifications thereof. Involvement in the making of the implementing rules served, moreover, to facilitate interaction between national administrators who would be responsible for application of the rules at national level. The net result was the birth of the management committee procedure, embodied in the early agricultural regulations. The committee composed of national representatives with expertise in the relevant area would be involved with the Commission in the deliberations concerning the secondary regulations or directives. The secondary measure would be immediately applicable, subject to the caveat that it could be sent back to the Council if the committee voted against the draft measure. It was then open to the Council to take a different decision by qualified majority within one month.7 The committee methodology spread rapidly to other areas, and became a standard feature attached to the delegation of power to the Commission. It was not long before the more restrictive version, known as the regulatory committee procedure, was 6  C Bertram, ‘Decision-Making in the EEC: The Management Committee Procedure’ (1967–8) 5 CMLRev 246; P Schindler, ‘The Problems of Decision-Making by Way of the Management Committee Procedure in the EEC’ (1971) 8 CMLRev 184; Bergström (n 2) Ch 2. 7  See, eg, Council Regulation 19/62/EEC of 4 April 1962 on the progressive establishment of a common organisation of the market in cereals [1962] OJ 30/933, Arts 25–26.

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c­ reated in the context of the emerging common commercial policy.8 On this version, if the committee failed to deliver an opinion, or if it gave an opinion contrary to the ­recommended measure, the Commission would have to submit the proposal to the Council, which could then act by qualified majority. There was, however, a safety net or filet, such that if the Council had not acted within three months of the measure being submitted to it, then the proposed provisions could be adopted by the Commission. The desire for greater political control reached its apotheosis in the ­modified version of the regulatory committee procedure, which embodied what became known as the contre-filet: the normal regulatory committee procedure applied, subject to the caveat that the Council could by simple majority prevent the Commission from acting even after the expiry of the prescribed period.

(C) Judicial Approval It is rare for any important institutional development to be unaffected by judicial ­scrutiny. The legitimacy of the management committee procedure came before the ECJ  in the Köster case.9 The German court asked whether the procedure attached to  the d ­ elegation of power to the Commission was consistent with the institutional balance established by the Treaty. The ECJ would have been familiar with the committee ­procedure, and also with the fact that it was working reasonably well. It was then unsurprising that it crafted its judgment to uphold the legitimacy of the management committee procedure. To have done otherwise would have created a constitutional crisis for EEC decision-making, or if that sounds too dramatic, it would most certainly have led to dire problems. The ECJ was unequivocal. It reasoned that Article 155 EC accorded the Council discretion to confer on the Commission implementing powers. It followed that the Council could determine the detailed rules to which the Commission was subject when exercising the powers conferred on it, and the management committee p ­ rocedure constituted just such a detailed rule. Moreover, because the committee could not take any decision, but merely sent the matter to the Council in the event of a negative committee opinion, it did not distort the institutional balance within the EEC.10 The judicial realization of the centrality of the committees was reaffirmed in Rey Soda,11 where the ECJ opined that the management committee procedure provided a ‘mechanism which allows the Council to give the Commission an appreciably wide power of implementation whilst reserving where necessary its own right to intervene’. Judicial support for the political status quo was evident again in Tedeschi,12 where the ECJ upheld the legality of the regulatory committee procedure. The ECJ accepted that 8  See, eg, Council Regulation 802/68/EEC of 27 June 1968 on the common definition of the concept of the origin of goods [1968] OJ L148/1, Arts 12–14. 9  Case 25/70 Köster (n 4). 10  Ibid [9]. 11  Case 23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279, [13]. 12  Case 5/77 Carlo Tedeschi v Denkavit Commerciale Srl [1977] ECR 1555.

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the committee procedure could have the effect of preventing the Commission from implementing the proposal that had been rejected by the Council. The Court concluded that this did not, however, paralyse the Commission, which could issue any other measure it considered appropriate.13 The relative brevity of the ECJ’s reasoning on this point attests to its difficulty: it was clear in reality that any other measure suggested by the Commission would also have to secure the approval of the regulatory committee. The ‘judicial realpolitik’ explanation offered by Bergström best captures the essence of the Court’s reasoning: ‘the Commission was obliged to focus its efforts on bringing about reconciliation between the different interests of the Member States’14 with the corollary that the Commission should normally accept a measure favoured by the qualified majority on the committee.

(D) The Single European Act and the First Comitology Decision Prior to the Single European Act 1986 (SEA), Comitology was based on an admixture of legislative choice, backed by judicial approval, set against the backdrop of Article 155 EC. It was the judicial interpretation of Article 155 that formed the cornerstone of the ECJ’s reasoning in cases such as Köster.15 The passage of the SEA shifted the Treaty foundation of Comitology to the new third indent of Article 145 EEC. This stipulated that the Council should confer on the Commission, in the acts adopted by the Council, powers for the implementation of the rules which the Council laid down, and that it could impose certain requirements in respect of the exercise of these powers. These procedures had to be consonant with principles and rules laid down in advance. The Council might reserve the right, in specific cases, to exercise directly implementing powers itself. The revised Article 145 certainly had some gains for the Commission, most notably because it embodied the general principle that the Council ‘should’ confer implementing power on the Commission, unless the Council provided reasons as to why it should reserve specific implementing power to itself.16 There is, however, equally little doubt that, viewed more generally, Article 145 was a defeat for more far-reaching Commission ambitions. The Commission entered the negotiations leading to the SEA with an explicit agenda for reform of Article 155: it sought implementing power without prior authorization from the Council, coupled with a strictly limited number of committee procedures, and a clear preference against regulatory committees.17 The result in the SEA was very different. There was no relevant reform of Article 155, Comitology was legitimated by the Treaty and this was done within Article 145, thereby emphasizing the centrality of the grant of implementing power from Council to Commission. 13  Ibid [55]. 14  Bergström (n 2) 149. 15  See n 9. 16  Case 16/88 (n 5) [10]; Case C-257/01 Commission v Council [2005] ECR I-345, [49]–[50]. 17  C-D Ehlermann, ‘Compétences d’exécution conférées á la Commission—La nouvelle decision-cadre du  Conseil’ (1988) 316 RMC 232, and ‘The Internal Market Following the Single European Act’ (1987) 24 CMLRev 361.

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The Commission then turned its attention to the formulation of principles concerning committee procedures demanded by Article 145. There is little doubt that such reform was required, given that there were more than thirty variants of the committee procedures in play at the time of the SEA, and that considerable energy was spent during the legislative process wrangling about the precise procedure to be incorporated in the primary regulation or directive. The resultant Council Decision18 was certainly an improvement on the status quo ante, reducing the basic committee procedures to three, advisory, management, and regulatory, with two variants of both the management and regulatory committee procedures, plus safeguard committee procedures. The beneficial impact of the Decision was, however, qualified by the Council’s insistence that it should not be taken to affect the plethora of procedures applicable to existing committees, rejecting thereby the Commission’s hope that provision would be made to bring such committees into the new procedural format within a specified period of time. There was also disquiet within the Commission over the continued use of the contre-filet version of the regulatory procedure.

(E) The TEU, Amsterdam, and the Second Comitology Decision The European Parliament had expressed disquiet over Comitology from the very outset. The strength of its opposition grew commensurately with its increased status in the making of primary regulations and directives. The reason for this is not hard to divine. For nearly the first three decades of the Community’s existence the European Parliament had been very much on the side lines of the legislative process, with only a bare right to be consulted where the Treaty so provided. It felt, even at this stage, that the committee procedure limited its capacity to exercise its supervisory powers over the Commission, but it could not readily claim that its legislative powers were ­compromised by Comitology in areas where it had no role in the legislative process. The SEA began the transformation of the legislative process through the creation of the cooperation procedure, giving the European Parliament a stronger role in the making of regulations and directives, more especially since it applied to important areas such as the passage of harmonization measures to attain the internal market. This changed the manner in which primary regulations and directives were enacted. The Commission and Council could no longer ignore the European Parliament, or treat its expression of preferences with scant regard. The TEU took the process further, with the creation of the co-decision procedure and this was followed by expansion of the areas to which the procedure applied, coupled with modification of the procedure so as to further strengthen the role of the European Parliament therein. The European Parliament’s increasingly vocal opposition to Comitology, and more especially to the regulatory committee procedure, was readily explicable against this backdrop. It had fought long and hard to attain a more co-equal role in the making 18  Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission [1987] OJ L197/33.

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of primary regulations and directives. These gains were, however, undermined by its exclusion from the making of secondary regulations and directives, which were still the preserve of the Commission and Council through Comitology. The tension was heightened by the ‘normality’ of Comitology: most important regulations and ­directives enacted pursuant to co-decision contained a committee procedure, often regulatory, which governed the making of implementing regulations. The European Parliament’s success in securing the application of co-decision to an ever increased range of ­primary regulations and directives was therefore tempered by its exclusion from the ­making of the more detailed secondary rules, which would often entail important issues of principle or political choice. The European Parliament fought the battle against Comitology on the legal and political front.19 It argued consistently that Article 145 could not be regarded as the basis for Comitology in respect of regulations or directives adopted pursuant to codecision. Article 145 could only be used to legitimate the imposition of committee procedures, so the European Parliament contended, for acts adopted by the Council alone. The Council, not surprisingly, rejected this view.20 It drew comfort from the ECJ which held, albeit without detailed consideration, that acts of the Council covered acts undertaken jointly with the European Parliament pursuant to co-decision, as well as acts made by the Council alone.21 The ECJ’s jurisprudence further served to empower the Council and Commission at the expense of the European Parliament by adopting a broad concept of implementation. It is true that the ECJ insisted that the primary regulation or directive should embody the ‘essential elements’ of the matter to be dealt with. However it interpreted this relatively loosely, thereby allowing a broad range of implementing measures to be adopted through regulations according to Comitology procedures from which the European Parliament was effectively excluded.22 The European Parliament continued to contest the application of the committee procedures through the political process,23 using its powers under co-decision to propose amendment to primary regulations and directives containing Comitology and even blocking a measure for this reason. The process of legislative attrition was wearing for all involved and hostilities were temporarily lessened through the conclusion of a ‘Modus Vivendi’ in 1994.24 This provided that the relevant committee of the European 19  K Bradley, ‘Maintaining the Balance: The Role of the Court of Justice in Defining the Institutional Position of the European Parliament’ (1987) 24 CMLRev 41; K Bradley, ‘Comitology and the Law: Through a Glass Darkly’ (1992) 29 CMLRev 693; K Bradley, ‘The European Parliament and Comitology: On the Road to Nowhere?’ (1997) 3 ELJ 230. 20  J-P Jacque, ‘Implementing Powers and Comitology’ in Joerges and Vos (n 2) Ch 4. 21  Case C-259/95 European Parliament v Council [1997] ECR I-5303, [26]; Case C-378/00 Commission v European Parliament and Council [2003] ECR I-937, [40]. 22  Case C-156/93 European Parliament v Commission [1995] ECR I-2019, [18]–[22]; Case C-417/93 European Parliament v Council [1995] ECR I-1185, [30]. 23  R Corbett, The European Parliament’s Role in Closer EU Integration (Macmillan, 1998) 347–8. 24  Modus Vivendi of 20 December 1994 between the European Parliament, the Council and the Commission concerning the implementing measures for acts adopted in accordance with the procedure laid down in Article 189b of the EC Treaty [1996] OJ C102/1.

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Parliament would be sent general draft implementing acts at the same time as the ­committee set up by the basic act. Moreover, the Council undertook not to adopt a draft general act referred to it in accordance with the implementing procedure without first informing the European Parliament and obtaining its opinion. The Intergovernmental Conference process leading to the Treaty of Amsterdam was dominated by concerns relating to the legitimacy of the EU and its decision-making processes.25 Notwithstanding this the Treaty of Amsterdam continued the status quo in relation to the making of secondary rules. Article 145 was not materially altered save for being renumbered Article 202 EC. The Treaty did, however, contain Declaration 31 requiring the Commission to submit a proposal for a revised Comitology Decision by 1998. The passage of this Decision was difficult to say the least,26 and was finally adopted in 1999.27 The management and regulatory committee procedures were simplified to some degree.28 There were efforts to make the system more accessible to the public.29 The European Parliament was accorded a greater role in the making of secondary rules than hitherto. It was given power concerning rules made pursuant to the regulatory procedure;30 and more generally power to indicate by resolution that draft implementing measures, which had been submitted to a committee pursuant to a basic instrument adopted by co-decision, would exceed the implementing powers in that instrument.31 The European Parliament was also given a right to be informed by the Commission of committee proceedings, receive committee agendas, voting records, and draft measures submitted to the committees for implementation of primary law made under the co-decision procedure.32 In an agreement made between the European Parliament and the Commission,33 the latter stated that it would also forward to the European Parliament, at its request, specific draft measures for implementing basic instruments even if they were not adopted under co-decision, where they were of particular ­importance to the European Parliament. The European Parliament could, moreover, request access to minutes of committee meetings.34 The basic premise of Article 202 EC and Article 1 of the 1999 Comitology Decision was that the Council should grant implementing power to the Commission, subject to the caveat that the Council could reserve implementing power to itself in certain 25  P Craig, ‘Democracy and Rulemaking within the EC: An Empirical and Normative Assessment’ (1997) 3 ELJ 105. 26  Bergström (n 2) 249–64. 27  Council Decision 99/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [1999] OJ L184/23; K Lenaerts and A Verhoeven, ‘Towards a Legal Framework for Executive Rule-Making in the EU? The Contribution of the New Comitology Decision’ (2000) 37 CMLRev 645. 28  Dec 99/468 (n 27) Arts 4–5. 29  Ibid Art 7; G Brandsma, D Curtin, and A Meijer, ‘How Transparent are EU “Comitology” Committees?’ (2008) 14 ELJ 819. 30  Ibid Art 5(5). 31  Ibid Art 8. 32  Ibid Art 7(3). 33  Agreement between the European Parliament and the Commission on procedures for implementing Council Decision 99/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers by the Commission [2000] OJ 2000 L256/19, [2]. 34  Case T-188/97 Rothmans v Commission [1999] ECR II-2463.

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specific cases. The ECJ was willing to review Commission claims that it should have been given implementing power where the Council reserved that power for itself. The Court reviewed the reasons given by the Council. The Commission, nonetheless, faced an uphill struggle on this issue. Thus in one case the ECJ acknowledged that the r­ easons given by the Council were ‘general and laconic’, but the Court nonetheless concluded that when they were assessed in their context they showed the rationale for reservation of implementing power to the Council.35 The ECJ has, however, been willing to annul reservation of implementing power by the Council.36 The ECJ was also willing to review the choice as between management and regulatory procedures in the 1999 Comitology Decision. It acknowledged that the criteria in Article 2 of this Decision were not formally binding, but held that where the Council and European Parliament sought to depart from those criteria they had to provide reasons for doing so. The ECJ concluded that such reasons had not been given, that the imposition of the regulatory procedure was not therefore justified, and annulled the contested measure in this respect.37

(F) The Nice Treaty and Amendment to the Second Comitology Decision The complex history of Comitology continued after the Nice Treaty. The Commission accepted the force of the European Parliament’s objection to the existing Comitology Decision in circumstances where co-decision applied. This led to amendment to the Second Comitology Decision.38 A new Article 5a of Decision 1999/468 modified the regulatory procedure for basic instruments adopted under Article 251 EC. Under the ‘regulatory procedure with scrutiny’ the Commission continued to be assisted by a committee of national representatives, but the European Parliament was afforded a greater role in the passage of such implementing measures than hitherto.

4  Comitology: Academic Opinion Pre-Nice There was much academic discussion of Comitology prior to the Lisbon Treaty. It is important to understand this literature, since it provides the backdrop to the Lisbon reforms. The ensuing analysis will not attempt to traverse all such views.39 It will rather consider the two dominant approaches to Comitology.40 35  Case C-257/01 (n 16) [53]. 36  Case C-133/06 European Parliament v Council [2008] ECR I-3189. 37  Case C-378/00 (n 21); Case C-122/04 Commission v European Parliament and Council [2006] ECR I-2001. 38 Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying down the ­procedures for the exercise of implementing powers by the Commission [2006] OJ L200/11. 39  W Wessels, ‘Comitology: Fusion in Action. Politico-Administrative Trends in the EU System’ (1998) 5 JEPP 209. 40  There have been empirical studies to test the rival hypotheses, M Pollack, The Engines of Integration: Delegation, Agency, and Agenda Setting in the EU (Oxford University Press, 2003); F Franchino, ‘Control of

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(A) Rational Choice Rational choice institutionalists regard Comitology as exemplifying the principal/ agent thesis. Member State principals delegate four functions to supranational agents: monitoring compliance; the resolution of incomplete contracts among principals; the adoption of regulations in areas where the principals would be biased or uninformed; and setting the legislative agenda so as to avoid the ‘endless cycling’ that would otherwise result if this power were exercised by the principals themselves.41 The principals must, however, ensure insofar as possible that the agents do not stray from the preferences of the principals themselves. Thus, on this view Comitology constitutes a control mechanism whereby the Member State principals exert control over supranational agents. The Member State principals recognized the need for delegation of power over secondary norms to the supranational agent, the Commission, but did not wish to give it a blank cheque, hence the creation of committees through which Member State preferences could be expressed, with the threat of recourse to the Council if agreement could not be reached with the Commission. It is assumed that the representatives on Comitology echo their Member State exogenous preferences and bargain within the committees.42 The variants of committee procedure reflect the Member States’ ability to impose the degree of control that best suit their interests. The advisory committee procedure thus places a high premium on getting things done, and a correspondingly low degree of Member State control, while at the other end of the scale the regulatory committee procedure, especially the contre-filet version thereof, places prime ­importance on Member State control even at the ultimate cost of preventing the emergence of an EU rule on the issue. The assumption is that decision-making within the committee system will operate similarly to that in the Council, with a strong emphasis on interstate bargain, and Member State preferences being regarded as ‘givens’ in this process.

(B) Deliberative Supranationalism Joerges and Neyer43 contend that Comitology is best viewed in terms of deliberative supranationalism, and that this is more accurate than the contending views, which see Comitology either in terms of rational choice bargain, or in terms of supranational administration.

the Commission’s Executive Functions: Uncertainty, Conflict and Decision Rules’ (2000) 1 European Union Politics 63; M Pollack, ‘Control Mechanism or Deliberative Democracy: Two Images of Comitology’ (2003) 36 Comparative Political Studies 125. 41  Pollack (n 40) 6. 42  Ibid Ch 2. 43  C Joerges and J Neyer, ‘From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalization of Comitology’ (1997) 3 ELJ 273; J Neyer, ‘The Comitology Challenge to Analytical Integration Theory’ in Joerges and Vos (n 2) Ch 12; C Joerges, ‘Good Governance through Comitology?’ in Joerges and Vos (n 2) Ch 17.

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The rational choice view is premised, as seen earlier, on the Member States’ awareness of the need to delegate power to the Commission to achieve Treaty imperatives, combined with the desire to retain control over the resultant rules. The supranational view regards the EU institutions as dominant within Comitology,44 because of the Commission’s control over information, committee agendas, its role as chair of committees, and the limited time that national delegations have to respond to Commission proposals. Joerges and Neyer regard both the rational choice intergovernmental view and the  supranational view as too extreme.45 They argue that rulemaking pursuant to Comitology should be properly perceived as a deliberative discourse. They contend that governments might be unaware of their own preferences on a particular issue, and the national delegates on the committees will often regard themselves as part of a team dealing with a transnational problem. The national representatives shift to becoming representatives of a ‘Europeanised interadministrative discourse that is characterized by mutual learning and by an understanding of each others’ difficulties in the implementation of specific solutions’.46 Comitology is portrayed as a network of European and national actors, with the Commission acting as coordinator.47 The national ­participants in the deliberative process are willing to call their own preferences into question in searching for a Community solution.48 (i)  Deliberative Supranationalism and Consensual Deliberation The central kernel of the deliberative supranationalism thesis has some force. The national representatives on the committees are usually bureaucrats or technocrats with experience in the relevant area. They have not normally spent their lives as politicians. It should not, therefore, come as a surprise that they bring a deliberative perspective to the issues, nor that they are willing to call their preferences into question. We should, nonetheless, be mindful of the constraints on consensual deliberation. It is true that Comitology committees rarely exercised their formal powers, with the result that it was uncommon for a draft implementing regulation to be sent to the Council.49 This, however, tells one relatively little concerning the extent to which state interests constrained the content of the relevant measure, in the same way that the  scarcity in use of the Luxembourg veto in the Council tells one only so much about  intergovernmental influences on decision-making during the relevant period. Comitology discussion in the shadow of formal powers vested in Member State representatives can constrain the proposal placed on the table,50 just as Council decisionmaking could be shaped by the shadow of the veto. There was, moreover, literature that challenged the notion of consensual ­deliberation and expressed concern about the Comitology decision-making process. Thus Wessels 44  Neyer (n 43) 222–3. 45  Ibid 224. 46  Ibid 228. 47  Joerges (n 43) 318. 48  Ibid 315. 49  Wessels (n 39) 224–5; R Dehousse, ‘Comitology: Who Watches the Watchmen?’ (2003) 10 JEPP 798, 800. 50  Wessels (n 39) 225.

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acknowledged that Comitology was characterized by camaraderie, but took the view that the ‘closed clubs with their technical language, their intrinsic procedures and informal rules are not an example of deliberative democracy, but an immunisation against outside interference’.51 He argued that there was a propensity to transform political issues into administrative problems, which had undesirable consequences for the role of the state. Harlow voiced analogous concerns that committees could acquire a life of their own.52 Dehousse recognized that the shift from ‘primary’ legislative activity towards secondary rulemaking meant that a ‘growing number of salient political issues are likely to arise in the post-legislative phase, be it in rule-making or in the concrete application of Community rules’.53 Weiler acknowledged the importance of Joerges and Neyer’s insights concerning the deliberative style of Comitology, and the search for solutions that transcended purely national interests.54 He was, nonetheless, troubled by the decisional autonomy of Comitology, by the fact that the committees exercised ‘considerable political and policy discretion without adequate political accountability’,55 and that committee members might be unaware of ‘the profound political and moral choices involved in their determinations and of their shared ­biases’.56 We should, moreover, not forget when evaluating the picture of consensual ­deliberation that the Commission sought for twenty years to weaken the Comitology constraints and that its schema was embodied in the Lisbon Treaty. It will be examined later. This does not sit easily with a picture of Comitology in which the preferences of national representatives lacked constraining impact on the measures drafted by the Commission. If the national representatives did not cramp the Commission’s ‘­executive autonomy’ the motivation for the Commission to change the schema would not be readily ­explicable. (ii)  Deliberative Supranationalism and the European Parliament Joerges and Neyer were sceptical about involvement of the European Parliament in delegated rulemaking. The scepticism was part conceptual and part practical. The conceptual argument focused on the ‘no demos’ thesis. It was argued that the EU’s principal task was to cope with transnational economic interdependence, and was not about organizing the self-governance of a European demos that Neyer did not believe to exist.57 This argument was problematic. It was based on the assumption that there was ‘no demos’ within the EU, and that a demos of the kind that existed within Member States was a condition precedent for thinking about ­democratic decision-making in the EU. If the argument as put were true it would 51  W Wessels, ‘Comitology as a Research Subject: A New Legitimacy Mix?’ in Joerges and Vos (n 2) 265. 52  C Harlow, Accountability in the European Union (Oxford University Press, 2002) 175. 53  R Dehousse, ‘Towards a Regulation of Transnational Governance? Citizen’s Rights and the Reform of Comitology Procedures’ in Joerges and Vos (n 2) 114. 54  J Weiler, ‘Epilogue: “Comitology” as Revolution—Infranationalism, Constitutionalism and Democracy’ in Joerges and Vos (n 2) 347. 55  Ibid 345. 56  Ibid 348. 57  Neyer (n 43) 230.

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­ ndermine the European Parliament’s claims to partake in the passage of primary u regulations or directives. Yet it cannot seriously be questioned that the advances made by the European Parliament to a more co-equal role in the primary legislative process through the creation and expansion of co-decision are warranted on democratic grounds. Joerges articulated the pragmatic argument. He accepted in principle the European Parliament’s claim that the extension of its rights in the primary legislative process should be mirrored by an extended role in secondary rulemaking, but contended that it was not practicable because the European Parliament committees did not have sufficient resources to engage in supervision of Comitology committees.58 Joerges was clearly right to point to the practical problems of European Parliament involvement in the making of secondary rules. The ‘bottom line’ is nonetheless that secondary rules may well entail political choice and controversy every bit as real as in the case of primary legislation. We should, therefore, hesitate long and hard before concluding that a co-equal partner in the making of the primary legislation should have no substantive input into the making of secondary norms, more especially if we wish to sustain the claim that the overall process comports with an ideal of deliberative supranationalism. We shall return to this issue when considering the Lisbon reforms. (iii)  Deliberative Supranationalism and Participatory Rights The relationship between deliberation through committees and participation by interested individuals is important. Joerges acknowledged that in areas such as risk regulation there were aspects of risk assessment which, ‘in view of their practical normative content, ought not to be delegated to expert bodies no matter how technically competent they may be’.59 Joerges did not, however, favour extended participation, at least not in the context of risk regulation. This was partly because the ‘correctness of risk decisions cannot be guaranteed by unmediated recourse to interests or their negotiation’.60 It was partly because the identification of ‘interests’ at the European level to whom participation rights would be extended was felt to be inconceivable. It was partly also because he felt that the national representatives on the committees could take all such concerns into account.61 This argument was presented forcefully, but was problematic. There is an abundance of literature that attests to the fact that risk regulation is not purely scientific, but involves social and political choice in circumstances where the scientific evidence may

58  Joerges (n 43) 327. 59  Joerges (n 43) 334; Joerges (n 60) 147. 60  Joerges (n 43) 334; C Joerges, ‘Deliberative Supranationalism—Two Defences’ (2002) 8 ELJ 133, 145. 61  Joerges (n 43) 334; Joerges (n 60) 150–1. Joerges, however, appeared to favour extension of participatory rights in the context of technical standardization, as opposed to risk regulation (n 43) 335.

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be equivocal.62 The extension of participatory rights cannot therefore be rejected on the ground that these are matters of pure science. Technical expertise cannot readily be disaggregated from social and political choice. Insofar as it is possible to separate ‘pure expertise’, Comitology was deficient in limiting the provision of that expertise to the national representatives on the relevant committee, providing no ready mechanism whereby other interest groups that might have expert knowledge could present their arguments. The argument for such participatory rights is not premised on the assumption that risk regulation should be determined by the ‘unmediated recourse’ to such interests. The issue is whether such interests should have input into the rulemaking process, not that they should be determinative. Nor is the argument for such rights premised on the assumption that there are identifiable representatives of European interests ‘out there’. It is based rather on the plurality of interests with a strong concern about the subject matter of the regulation, and such interests may well have expertise in the relevant area. The idea that these concerns can adequately be captured through feedback links to Member States operating via Comitology is based on an idealized vision of the degree to which national representatives on committees are informed of and represent the plethora of views within their home state. It is belied by the call for increased ­participation rights in rulemaking within national polities.63 The ideal of deliberative supranationalism which limits or excludes input from either the European Parliament or affected interests must be counted as an attenuated one. The ‘distance’ between the concept of deliberative supranationalism cast principally in terms of technocratic interaction, and the broader meaning accorded to ­deliberative democracy in the literature has been a more general focus of criticism of the thesis advanced by Joerges and Neyer.64

5  Comitology: Lisbon Treaty (A) Treaty Reform: Commission Objectives The Commission long desired to loosen the constraints imposed by Comitology and to have greater autonomy over the passage of secondary rules. Its strategy dating back at least to the Intergovernmental Conference leading to the Maastricht Treaty65 was to 62  S Jasanoff, ‘Science and the Limits of Administrative Rule Making: Lessons from the OSHA Cancer Policy’ (1982) 20 Osgoode Hall LJ 536; S Jasanoff, The Fifth Branch: Science Advisers as Policy Makers (Harvard University Press, 1990); S Jasanoff, Science at the Bar: Law, Science, and Technology in America (Harvard University Press, 1995); U Beck, The Risk Society (Sage, 1992); W Leiss and C Chociolko (eds), Risk and Responsibility (McGill-Queen’s University Press, 1992). 63  P Craig, Administrative Law (Sweet & Maxwell, 8th edn, 2015) Ch 15; T Ziamou, Rulemaking, Participation and the Limits of Public Law in the USA and Europe (Ashgate, 2001). 64  Joerges (n 60) for a response. 65  Bergström (n 2) 212–17.

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propose a hierarchy of norms for the EU, with a distinction being drawn between primary laws, and secondary acts, the intent being to ensure that the Commission had greater autonomy over the passage of implementing measures. The nub of this strategy was to accept constraints over secondary acts through the need to specify essential principles within the primary laws, combined with the possibility of recall by the Council or European Parliament if they believed that the secondary act made by the Commission exceeded the powers granted, with the hope that the Member States might dismantle the Comitology regime, at least insofar as it entailed management and regulatory committees. This was apparent from a series of high-profile Commission communications.66 It was an explicit feature of the White Paper on European Governance.67 The key to the White Paper was the Commission’s conception of the ‘Community method’,68 with the Commission representing the general interest and the Council and the European Parliament as the joint legislature, representing the Member States and national citizens respectively. This was in itself unexceptionable. It was the implications that the Commission drew from it that are interesting in the light of subsequent developments. It was, said the Commission, necessary to revitalize the Community method.69 The Council and the European Parliament should limit their involvement in primary Community legislation to defining the essential elements.70 This legislation would define the conditions and limits within which the Commission performed its executive role. It would, in the Commission’s view, make it possible to do away with the Comitology committees, at least so far as they had the powers presently exercised by  management and regulatory committees. There would instead be a simple legal mechanism allowing the Council and European Parliament to control the actions of  the Commission against the principles adopted in the legislation. The possibility of  enhancing the Commission’s control over delegated regulations by abolishing or amending the Comitology procedure was raised again by the Working Group on Simplification.71

(B) The Lisbon Treaty: Legislative, Delegated, and Implementing Acts The Constitutional Treaty introduced a hierarchy of norms, which distinguished between different categories of legal act, and used terms such as ‘law’, ‘framework law’, and the like.72 The European Council of June 2007, which initiated the process leading 66  European Governance, COM(2001) 428 final, [20]–[29]; Institutional Architecture, COM(2002) 728 final, [1.2], [1.3.4]; Proposal for a Council Decision Amending Decision 1999/468/EC Laying Down the Procedures for the Exercise of Implementing Powers Conferred on the Commission, COM(2002) 719 final, 2; Final Report of Working Group IX on Simplification, CONV 424/02, Brussels, 29 November 2002, 12. 67  COM(2001) 428 final. For critical comment, see the Symposium: Responses to the European Commission’s White Paper on Governance, https://www.jeanmonnetprogram.org/papers. 68  COM(2001) 428 final, 8. 69  Ibid 29. 70  Ibid 20. 71  Working Group IX (n 66) 12. 72  Arts I-33–39 CT.

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to the Lisbon Treaty, decided that the terms ‘law’, and ‘framework law’ should be dropped. The rationale given was that the Lisbon Treaty was not to have a ‘constitutional character’,73 although it is not readily apparent why the terminology of ‘law’ or  ‘framework law’ should be assumed to have such a character. It was decided to retain  the existing terminology of regulations, directives, and decisions. A version of  the hierarchy of norms was nonetheless preserved in the Lisbon Treaty, which distinguishes between legislative acts, non-legislative acts of general application, and implementing acts.74 Article 289 TFEU defines a legislative act as one adopted in accord with a legislative  procedure, either the ordinary legislative procedure, which is the successor to ­co-decision, or a special legislative procedure. Article 290 TFEU deals with what are now termed non-legislative acts of general application, whereby power to adopt such acts is delegated to the Commission by a legislative act. Such non-legislative acts can supplement or amend certain non-essential elements of the legislative act, but the legislative act must define the objectives, content, scope, and duration of the delegation of power. The essential elements of an area cannot be delegated. The legislative act must specify the conditions to which the delegation is subject. Such conditions may allow the European Parliament or the Council to revoke the delegation; and/or enable the European Parliament or the Council to veto the delegated act within a specified period of time. Acts made pursuant to Article 290 TFEU are known as delegated acts.75 The third category in the hierarchy of norms, implementing acts, is dealt with in Article 291 TFEU. Member States must adopt all measures of national law necessary to implement legally binding Union acts. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in certain cases on the Council. It is for the European Parliament and Council to lay down in advance the rules and general principles concerning ­mechanisms for control by Member States of the Commission’s exercise of implementing powers.

(C) Delegated Acts: Demise of Comitology The Lisbon Treaty is predicated on the distinction between legislative and non-­ legislative acts, but that distinction is nonetheless formal in the following sense. Legislative acts are defined as those enacted via a legislative procedure, either ordinary or special; non-legislative acts are those that are not enacted in this manner.

73  Brussels European Council, 21–22 June 2007, Annex 1, [3]. 74  C-F Bergström and D Ritleng (eds), Rulemaking by the European Commission: The New System for the Delegation of Powers (Oxford University Press, 2016). 75  Art 290(3) TFEU.

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This should not, however, mask the fact that delegated acts will often be legislative in nature, in the sense that they will lay down binding provisions of general application to govern a certain situation. This is implicitly recognized in the nomenclature used in  the Lisbon Treaty, which speaks of delegated acts having ‘general application’. This accords with the use made of ‘secondary regulations’ prior to the Lisbon Treaty. Such regulations were commonly used to flesh out the meaning, scope, or interpret­ ation of provisions in the ‘parent regulation’ in a manner analogous to the use made of ­secondary legislation or rulemaking in national legal systems. The Working Group in the Convention on the Future of Europe was more honest in recognizing these acts as a new category of legislation.76 It is possible to construct an argument for the survival of Comitology in relation to delegated acts,77 but the contrary interpretation best fits the wording of Article 290 TFEU. This is because Article 290 TFEU makes no mention of such committees and because the Comitology procedures would create an imbalance between the Council and the European Parliament within Article 290, which is formally built on institutional parity between the two bodies in relation to control over delegated acts. The relevant institutional reports confirm this interpretation. Thus the Report of the European Parliament’s Committee of Legal Affairs expressed its unequivocal ­opposition to continuation of Comitology committees in the post-Lisbon world in relation to Article 290.78 The Commission’s Communication to the Council concerning Articles 290 and 291 in December 2009 was premised on the demise of management and regulatory committees in relation to Article 290.79 The Commission, without mentioning the previous committee regime, accepted that it would systematically consult with national experts in the making of delegated acts, but stressed that the experts would have a ‘consultative rather than an institutional role in the decision-making procedure’.80 When the consultations were concluded the experts would merely be informed of the Commission’s conclusions and how it intended to proceed.81 The Council for its part suddenly woke up to the imminent demise of the old Comitology regime and responded to the Commission document by stressing the importance it attached to consultation with national experts,82 which should be undertaken in time to allow for meaningful input by such experts. The legal and political reality under Article 290 is therefore that formal management and regulatory committees cease to exist. 76  Final Report of Working Group IX (n 66) 8. 77  P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press, 2010) 58–9. 78  Committee on Legal Affairs, On the Power of Legislative Delegation, A-7 0110/2010, Rapporteur J Szájer, 11–12. 79  Implementation of Article 290 of the Treaty on the Functioning of the European Union, COM(2009) 673 final. 80  Ibid [4.2]. 81  Ibid [4.2]. 82  Council 17477/09, Implementation of the Treaty of Lisbon, Article 290, Article 291, Brussels, 11 December 2009.

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However, the Council’s desire for assistance from national experts in relation to ­ elegated acts led rapidly to the Common Understanding 2011.83 The Commission d was charged when preparing delegated acts with ensuring ‘a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council and carry out appropriate and transparent consultations well in advance, including at expert level’.84 The Common Understanding included an annex containing a standard clause to be included in the recital to legislative acts that delegate power to the Commission, in which the substance of the preceding obligation was iterated, which occurs as a matter of course. The Common Understanding was revised in 2016, and strengthened the role of experts.85 The revised schema is as follows. When preparing delegated acts, the Commission must ensure a timely and simultaneous transmission of all documents, including the draft acts, to the European Parliament and the Council at the same time as to Member States’ experts.86 The Commission must consult experts designated by each Member State in the preparation of draft delegated acts. The Member States’ experts shall be consulted in a timely manner on each draft delegated act prepared by the Commission services. The draft delegated acts shall be shared with the Member States’ experts. The consultations shall take place via existing expert groups, or via ad hoc meetings with experts from the Member States. It is for the Member States to decide which experts are to participate. National experts must be provided with the draft delegated acts, the draft agenda, and any other relevant documents in sufficient time to prepare.87 Where they consider it ­necessary, the European Parliament and the Council may each send experts to meetings of the Commission expert groups dealing with the preparation of delegated acts to which Member States’ experts are invited. To that end, the European Parliament and the Council receive the planning for the following months and invitations for all experts’ meetings.88 Preparation and drawing-up of delegated acts may also include ­consultations with stakeholders.89 At the end of any meeting with national experts, the Commission shall state the conclusions they have drawn from the discussions, including how they will take the experts’ views into consideration and how they intend to proceed.90 Where the ­material content of a draft delegated act is changed in any way, it is incumbent on the Commission to give Member States’ experts the opportunity to react to the amended version of the draft delegated act.91 There is, moreover, an obligation to include a summary of the  consultation process in the explanatory memorandum accompanying the delegated act.92

83  Common Understanding on Delegated Acts, Council 8753/1/11, Brussels, 14 April 2011. 84  Ibid [4]. 85  Interinstitutional Agreement of 13 April 2016 on Better Lawmaking [2016] OJ L123/1. 86  Ibid Annex [10]. 87  Ibid Annex [4]. 88  Ibid Annex [11]. 89  Ibid Annex [6]. 92  Ibid Annex [8]. 90  Ibid Annex [5]. 91  Ibid Annex [7].

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The 2011 Common Understanding was given formal imprimatur by its repeated inclusion in the recitals to legislation. It reinvented the wheel insofar as it brought back  some advisory committees to provide the informational resource that is especially useful in deciding whether to exercise a veto power. These committees do not have the formal powers of their management and regulatory Comitology predecessors, although whether their input into Council decision-making is markedly different in substance is difficult to determine. The 2016 version of the Common Understanding is now customarily referred to in the preambles to delegated regulations. It has strengthened the position of national expert groups, and opened the possibility that existing Comitology expert committees used under Article 291 could be used in relation to Article 290. The paradox is that the Lisbon reforms were intended to simplify the decision-­ making process, including the role of committees therein. The political reality is that in the immediate aftermath of the Lisbon Treaty, we had the new Comitology regime within Article 291, coupled with the more shadowy world of advisory committees created pursuant to the 2011 Common Understanding operating within Article 290, the membership and proceedings of which were not readily available. The 2016 Common Understanding has improved matters in this respect by mandating the Commission to keep summaries of the consultations. There is then the further paradox that the greater the formality introduced for the Article 290 committees by the 2016 Common Understanding, the smaller the difference de facto between the decision-making process for delegated and implementing acts, more especially if the ability to use ‘existing expert groups’ leads to Article 291 Comitology committees fulfilling the role of expert advisers within Article 290. We should, moreover, note a further twist in the post-Lisbon legal and political landscape.93 The old-style Comitology committees may well have gone, but in some areas the ‘solution’ has been to create new agencies and to accord the Member States significant decisional autonomy on such bodies. This has been the solution adopted for the new financial supervisory authorities: the European Securities and Markets Authority (ESMA);94 the European Banking Authority (EBA);95 the European Insurance and Occupational Pensions Authority (EIOPA).96 They are discussed in detail in the next chapter. Suffice it to say for the present that Member States dominate the organizational 93  P Craig, ‘Comitology, Rulemaking and the Lisbon Settlement: Tensions and Strains’ in Bergström and Ritleng (n 74) 173–202. 94  Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority) [2010] OJ L331/84; https://www.esma.europa.eu/. 95  Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority) [2010] OJ L331/12. 96  Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) [2010] OJ L331/48.

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structure of these authorities, which are given the power to make delegated regulations pursuant to Article 290, subject to Commission approval of the draft and the possibility of veto by Council and the European Parliament. The reality is that, insofar as the Lisbon reforms were intended to produce parity between the Council and the European Parliament in relation to delegated acts, this is undermined by the decision-making structure on these new agencies. It is true that the representatives must be independent and represent their state rather than the Council. This does not alter the fact that national interests predominate in the formulation of the detailed rules to govern the relevant area.

(D) Delegated Acts: Inter-Institutional Balance of Power It is, therefore, important to consider the implications of the demise of Comitology in relation to delegated acts on the inter-institutional balance of power. Article 290 requires the legislative act to specify the essential elements of the area. Article 290 also accords the Council or the European Parliament power to revoke the delegation to the Commission, or veto the particular delegated act. The European Parliament’s Committee on Legal Affairs argued that Article 290 does not preclude other conditions being imposed on delegation of power to the Commission, but the latter is likely to resist this interpretation.97 There are reasons for concluding that the new regime means a shift in the inter-institutional balance of power in favour of the Commission. First, the controls in Article 290(2) TFEU are not mandatory. The conditions of application to which the delegation is subject ‘shall’ be determined in the legislative act. These ‘may’ entail the possibility of revocation of the delegation by the European Parliament or the Council, or a condition whereby the delegated regulation enters into force only if there is no objection expressed by the European Parliament or the Council within a specified period of time. The controls therefore only operate where written into the legislative act.98 The wording of the analogous provision in the Constitutional Treaty was consciously altered to make it clear that ‘these conditions do not constitute a mandatory element of such a law or framework law’.99 Secondly, the ex ante control in Article 290(1) TFEU will be difficult to monitor and enforce. Non-legislative acts can only amend or supplement ‘certain non-essential ­elements of the legislative act’, and cannot cover the ‘essential elements of an area’. These must be reserved for the legislative act, which must also define the ‘objectives, content, scope and duration of the delegation of power’. It will, however, often be difficult for the Council and the European Parliament to specify with exactitude the criteria that should guide the exercise of delegated power by the Commission. They may lack the knowledge and the time to delineate in the legislative act precise parameters for the exercise of regulatory choices. If these requirements are to be taken seriously 97  Committee on Legal Affairs A-7 0110/2010 (n 78) 9. 98  COM(2009) 673 (n 79) 7–8. 99  CONV 724/03, Annex 2, 93.

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then there will have to be oversight by the Union Courts. History does not indicate vigorous judicial enforcement of such criteria.100 The CJEU has, however, emphasized in the post-Lisbon jurisprudence that it is incumbent on the EU legislature to specify not only the objectives, but also the content, scope, and duration of the delegation of power in the legislative act.101 Even if compliance with these criteria is taken seriously by the CJEU, important regulatory choices will still be dealt with through delegated acts, since the exercise of such choices may only become apparent when the provisions of the legislative act are worked through in greater detail in the delegated acts. The reality is that secondary regulations often deal with complex regulatory choices or policy issues, which are not rendered less so by the fact that they are concerned with matters of detail or technicality. To the contrary, the devil is often in the detail, which is the very reason why the Comitology committees were created in the first place, so as to allow Member State oversight of these complex regulatory choices. Thirdly, the ex post controls in terms of veto power over a particular delegated act give nothing new to the Council. It already had a veto power through the management and regulatory committee procedures. We should, moreover, be mindful of the tradeoff that is inherent in the Lisbon schema for delegated acts. The pre-existing regime was based on generalized ex ante input into the making of the delegated norms, with the possibility of formal recourse to the Council in accord with the Comitology ­procedures. It allowed for regularized, general, and detailed input into the content of such norms by Member State representatives, with increasing control exercised by the European Parliament, more especially since the 2006 reforms. Article 290 TFEU by way of contrast is premised on a system of ex ante specification of standards in the primary law, combined with the possibility of some control ex post should the measure not be to the liking of the European Parliament or Council. The Council’s pressure for the schema in the Common Understandings 2011 and 2016 attests to its desire for a return to generalized input from national experts that characterized the pre-Lisbon regime. Fourthly, we should be mindful of the limits to the ex post controls in Article 290(2) TFEU. Revocation of the delegation might be useful as an ultimate weapon, but is illsuited to fine-tuned control over the content of a particular delegated act. This can only be achieved by the veto power. This too is a blunt tool, in the sense that neither the Council nor the European Parliament is accorded any formal right to propose amendments to a delegated act, but only the power to prevent its entry into force. The threat of the veto might be leverage to secure amendment to a delegated act, but this does not alter the fact that Article 290(2) contains no formal power to amend. Exercise of the veto is, moreover, crucially dependent on understanding the relevant measure. The Member State representatives on the Council clearly have neither the time nor ­expertise to perform this task unaided. The Committee on Legal Affairs emphasized the flow of 100  Case 156/93 European Parliament v Commission [1995] ECR I-2019; Case 417/93 European Parliament v Council [1995] ECR I-1185; Case C-363/14 European Parliament v Council, EU:C:2015:579. 101  Case C-696/15 P Czech Republic v European Commission, EU:C:2017:595, [48]–[50].

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information from Commission to the relevant committees of the European Parliament, including information about successive drafts of delegated acts.102 The Common Understanding 2016, discussed in the previous section, improved the European Parliament’s position as compared with the 2011 version. It remains to be seen how it works in practice. Finally, the preceding difficulties will be more pronounced given that the European Parliament and Council have to raise any such objection within a period specified by the legislative act. The period will vary depending on the area, but the norm in the Common Understanding 2016 is two months, which can be extended by a further two months at the behest of the Council or European Parliament.103 The Council and European Parliament will, therefore, have to ‘get their act together’ pretty quickly if either institution seeks to prevent the non-legislative act becoming law. The reality is the Council and European Parliament will only be able to make a reasoned choice concerning a draft delegated act within the limited time available with the help of national experts as institutionalized through the Common Understanding 2016. Formal legal differences persist between the role of experts as used for delegated acts via the Common Understanding, and experts that participate in Comitology committees for the making of implementing acts; how far those differences continue in ­substance remains to be seen.

(E) Implementing Acts: Survival of Comitology The law in this area has become more complex because the Lisbon Treaty, following the Constitutional Treaty, recognizes a third category of legal act, the implementing act (Article 291 TFEU). The continuance of Comitology is envisaged by Article 291 TFEU. Article 291(2) provides that where uniform conditions for implementation are needed the requisite implementing powers must be conferred on the Commission, or in ­limited instances the Council. The acts thereby adopted are termed implementing acts. Article 291(3) stipulates that the European Parliament and the Council shall lay down in advance, by means of a legislative regulation enacted by the ordinary legislative ­procedure, the rules and principles concerning mechanisms for control by the Member States of the Commission’s implementing powers. Regulation 182/2011104 embodies the Comitology regime under Article 291.105 The  official view is that there are two procedures, the advisory procedure and the ­examination procedure. The legal and practical reality is, however, that there are four 102  Committee on Legal Affairs A-7 0110/2010 (n 78) 10. 103  Interinstitutional Agreement (n 85) [18]. 104  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L55/13; Proposal for a Regulation of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, COM(2010) 83 final. 105  P Craig, ‘Delegated Acts, Implementing Acts and the New Comitology Regulation’ (2011) 36 ELRev 671.

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­ rocedures. This is in part because the Regulation also makes provision for implep menting acts to be immediately applicable on grounds of urgency.106 It is in part because the detailed workings of the examination procedure replicate the substance of the divide between management and regulatory committees, insofar as different consequences flow from a committee’s failure to vote in favour of an implementing act, and voting against it. The Commission submits a draft of the implementing act to the committee composed of Member State representatives, chaired by the Commission.107 The Commission can revise the measure in the light of the committee discussion at any time before the committee has delivered its opinion.108 The committee gives its opinion within a time limit set by the Commission. The advisory procedure is the default procedure, in the sense that it is used except when the examination procedure is mandated.109 Under the advisory procedure, as the name would indicate, the Commission decides on the implementing measures ‘taking the utmost account of the conclusions’110 from the committee deliberations. The examination procedure applies in relation to implementing acts of general scope.111 It also applies to other acts that relate to:112 programmes with substantial implications; agriculture and fisheries; environment, security and safety or protection of the health or safety of humans, animals, or plants; common commercial policy; and taxation. This is subject to the caveat that the advisory procedure may be used even in these cases where it is considered to be ‘duly justified’.113 The rules on the examination procedure provide for different outcomes depending on whether the committee votes in favour of the draft measure, against it, or delivers no opinion. The implementing act will be passed if the committee delivers a positive opinion,114 voting in accord with the rules for qualified majority laid down in Article 16(4)–(5) TEU.115 If it gives a negative opinion the Commission cannot adopt the acts. It can, however, submit a revised version to the committee, or submit the original version to the appeal committee.116 The Commission can also adopt the acts even where there has been a negative opinion if adoption without delay is necessary to avoid creating a significant disruption of the markets in the area of agriculture, or a risk for the financial interests of the Union within the meaning of Article 325 TFEU. The Commission must then immediately submit the adopted acts to the appeal committee, and if it delivers a negative opinion on the adopted acts, the Commission must then repeal them. Where the appeal committee delivers a positive opinion or delivers no opinion, the acts remain in force.117 There is, in addition, provision enabling the Commission to adopt the draft act in cases of urgency.118 If the committee that examined the draft act delivers no ­opinion, the default position is that the Commission can adopt the implementing act, save for certain types of case where prima facie it cannot do so.119 However, even in 106  Reg 182/2011 (n 104) Art 8. 107  Ibid Art 3(2)–(3). 108  Ibid Art 3(4). 109  Ibid Art 2(3). 110  Ibid Art 4(2). 111  Ibid Art 2(2)(a). 112  Ibid Art 2(2)(b). 114  Ibid Art 5(2). 115  Ibid Art 5(1). 116  Ibid Art 5(3). 113  Ibid Art 2(3). 117  Ibid Art 7. 118  Ibid Art 8. 119  Ibid Art 5(4).

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these instances it can submit a revised version of the draft measure to the committee, or take the original version to the appeal committee. The Commission emphasized in its original proposal that control was to be exercised by the Member States, and that neither the Council nor the European Parliament were accorded a direct role on the committees, although they could have access to information about the proceedings.120 This is reflected in the Regulation.121 It provides that where the basic act is adopted under the ordinary legislative procedure, the European Parliament or the Council may at any time indicate to the Commission that they consider a draft implementing act to exceed the implementing powers provided for in the basic act. The Commission has a duty to review the draft act, taking account of the views of the European Parliament and Council. It is not, however, obliged to withdraw the act, but must rather inform the European Parliament and the Council whether it intends to maintain, amend, or withdraw the draft implementing act. There are also provisions concerning information on Comitology committees and documentation to be made available to the European Parliament and Council.122

(F) Implementing Acts: Inter-Institutional Balance of Power The European Parliament and the Council have certain limited rights under Regulation 182/2011, but this should not mask the difference between the new Regulation and the previous Comitology regime. The Commission emphasized, as we have seen, in its original proposal that control was to be exercised by the Member States, and that neither the Council nor the European Parliament were accorded a direct role on the committees.123 The provisions of the new Treaty on implementing acts, which are set out in Article 291, do  not provide any role for the European Parliament and the Council to control the Commission’s exercise of implementing powers. Such control can only be exercised by  the Member States. A legal framework is required to establish the mechanisms of such control.

This approach is reflected in the 2011 Regulation. The committees are composed of representatives of the Member States, but there is no recourse to the Council as there was under the previous Comitology regime. The 2011 Regulation formally disaggregates the representatives of Member States that serve on the committees from those on the Council. It remains to be seen whether this is sustainable in practice. The ministers that ­represent the Member States on the Council may well take a keen interest in the ­appointees from their respective states that serve on the new Comitology committees. There is, moreover, likely to be exchange of views between the two sets of personnel. 120  COM(2010) 83 final (n 104) 3. 121  Reg 182/2011 (n 104) Art 11. 122  Ibid Art 10.    123  COM(2010) 83 (n 104) 3.

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The Commission’s desire to preserve the distinction between input into implementation via Member State representatives on Comitology committees, and Member State ­interests as vocalized in the Council, may therefore be hard to sustain, more especially because the committee voting rules mirror those of the Council itself. Thus, it is difficult to believe that Member State representatives in the Council will not discuss, brief, and consult their representatives on the Comitology committees on the policy position that should be taken on important implementing acts. This interchange will work both ways. The Member State representatives on the committees are likely to liaise with, inform, and seek the views of those who represent their Member States on the Council, or what is more likely in reality, the civil servants, whether based in Coreper or at home, who support their ministerial representatives on the Council. This interchange is likely to be enhanced as a result of the Common Understanding 2016, which provides that consultation of national experts in relation to delegated acts may occur through existing expert groups, thereby opening the possibility to use experts from Comitology committees for consultations under Article 290.124 Thus while it remains formally true, as the Commission opined in the preceding quotation, that the Council is accorded no role in controlling implementing acts, channels of communication of the kind adumbrated above are likely to emerge, which may well be used to effectuate Council objectives indirectly even if this cannot be done through more direct means. This is unsurprising, and reveals the fragility of the practical and theoretical underpinning to the Article 291 strategy. It is predicated on the assumption that implementing acts are of no concern to the Council qua Council, and that it is simply a matter of the practicalities of implementation in each Member State, by way of contrast to ­delegated acts where the Council and European Parliament are both given a formal institutional role in their own right. This assumption is problematic because of the difficulty of the divide between delegated and implementing acts considered in the following section. There will inevitably be many cases where it is contestable whether a secondary measure should be characterized as a delegated or implementing act. The assumption that if this fine calculus leads to classification of the measure as an implementing act then the Council or European Parliament have no institutional interest in the measure, and that it is simply a matter of the practicalities of implementation in each Member State, does not readily withstand examination. The reality is that value judgments and political choices will be contained in and effectuated through implementing acts. They are EU measures in both formal and substantive terms. It will, therefore, not be surprising if the Council qua Council, or the European Parliament, takes an interest in these more detailed measures that flesh out the basic legislative act.

124  Interinstitutional Agreement (n 85) [4].

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(G) Delegated and Implementing Acts: The Nature of the Divide We have already seen that pre-Lisbon the making of secondary measures was governed by Article 202 EC, which was framed so as to allow delegation of power to the Commission for the ‘implementation’ of rules laid down by the Council, subject to the Comitology procedure. There was significant variation as to the secondary measures concluded pursuant to Article 202 EC. In reality there was a spectrum of secondary norms, with ‘pure’ rulemaking at one end, ‘pure’ implementation at the other, and many measures falling between the two. This did not, however, matter pre-Lisbon since the same Treaty provision, Article 202 EC, applied to all such measures. The term ‘implementation’ as used in Community legislation and on official ­websites thus covered what are now termed delegated acts, as well as the terrain now ­covered by implementing acts. Thus the standard format in EC legislation was to empower the Commission to make ‘implementing provisions’, ‘implementing rules’, or ‘determine detailed rules’, subject to Comitology, and the paradigmatic application was through delegated rulemaking or decision-making that amended or supplemented the primary legal norm.125 The same terminology was evident on official websites, where the term ‘implementing provisions’ carried the broad connotation used in Community legislation.126 The post-Lisbon world now requires us to distinguish between delegated and implementing acts, since very different controls apply to the two types of act. The rationale for the divide was to distinguish between secondary measures that were ‘legislative’ in nature, delegated acts, and those that could be regarded as more purely ‘executive’, implementing acts. Delegated acts should then be legitimated and rendered accountable through the types of control in Article 290: the delegated act was amending or supplementing the legislative act, and therefore should be subject to oversight from the two constituent arms of the legislature, the Council and the European Parliament. Implementing acts, by way of contrast, were the preserve of  the Commission and the Member States that had the principal responsibility for implementation under Article 291, hence the types of control contained in the 2011 Comitology Regulation, and the sidelining of the Council and the European Parliament. The difficulties of realizing this divide were, however, never fully thought through in the deliberations on the Constitutional or Lisbon Treaties. Delegated acts are of general application and amend or supplement the legislative act. Implementing acts will normally be of general application, since Article 291 specifies their use in circumstances where uniform conditions for implementing legally binding acts are needed. Thus in most instances implementing acts will be of general application. The key distinguishing feature is therefore, as acknowledged by the Commission,127 that implementing

125  Craig (n 77) 271. 126  See, eg, http://ec.europa.eu/competition/antitrust/legislation/regulations.html. 127  COM(2009) 673 (n 79).

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acts execute the legislative act without amendment or supplementation. There are, however, very considerable difficulties with this divide.128 First, there is what might be termed ‘the analytical problem’: all secondary measures involve some addition to the primary act. Many thousands of secondary measures have been enacted since the inception of the EEC. In the paradigm case they bring greater exactitude to the meaning of an article of the primary act. Thus, for example, there might be a complex primary act dealing with agriculture, and a secondary measure specifies in greater detail one part of the primary act relating to, for example, the requirements for the independence of agencies that pay money pursuant to the primary regulation. Such measures clearly ‘add something’ to the primary act. This will be equally true for any measure classified as an implementing act in the post-Lisbon world, since the very specification of uniform conditions of implementation will be ‘adding something’ to the enabling provision in the legislative or delegated act. The key issue is therefore whether what is added will be regarded as amending or supplementing the primary act. This demands the following evaluation. It might be considered that the article in the legislative act sufficiently resolved the relevant issues, the conclusion being that the secondary measure, while obviously imbuing the article of the legislative act with greater detail, and hence ‘adding something’ or ‘fleshing it out’, did not supplement it so as to trigger recourse to Article 290, and therefore Article 291 could be used. It might in other instances be considered that the relevant article in the legislative act is less definitive, the conclusion being that while the legislative act provided sufficient guide as to essential principles so as to be lawful under Article 290, the secondary measure nonetheless ‘supplemented’ it through fleshing out the meaning of the ­non-essential elements, and therefore Article 290 had to be used. The difficulty in this respect is exacerbated by the fact that the answer will depend on the degree of abstraction or specificity with which the Court reads the background legislative act. Thus, other things being equal, if the CJEU takes a relatively abstract view on this issue, the consequence will be to allow much filling in of detail through an implementing act, even if that detail clarifies matters that were not specified in the legislative act itself, provided only that it falls within the general aims of the legislative act. The CJEU might, alternatively, demand greater specificity in this respect, with the consequence that the detailed fleshing out of the legislative act will be regarded as ­supplementing it and hence a delegated act will be required. The divide between the terrain of delegated and implementing acts will turn on the preceding determination. It is difficult to regard this as satisfactory. It will generate inter-institutional disputes as to whether recourse should be had to Article 290 or 291 TFEU. It calls into question the normative foundation for the differential controls that operate in relation to delegated and implementing acts. There will inevitably be instances where juxtaposition of acts will reveal scant reason as to why the addition to

128  Craig (n 105).

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the legislative act in the one instance should be regarded as a ‘new’ non-essential ­element, such that a delegated act is required, while in other instances this is not so, such that an implementing act can be used. Secondly, the preceding difficulty is exacerbated by the ‘time problem’. It is not ­possible to decide conclusively whether a secondary measure falls into the category of delegated or implementing acts until it is made, more especially because any draft measure may be changed prior to final enactment and this may take the measure from the category of delegated to implementing act, or vice versa. However, the choice between delegated and implementing act has to be made at an early stage. This is because the procedures for making delegated and implementing acts are very different. Delegated acts are subject to the ex ante and ex post controls described earlier exercised by the Council or European Parliament; implementing acts are subject to a revised version of the Comitology procedure. The danger is that once the Commission has decided that a measure should be classified as, for example, an implementing act, and the revised Comitology process has been engaged, it will be loath to admit that any changes made by this process involve ‘supplementation’ of the legislative act via the introduction of ‘new’ non-essential elements, since this would mean that the act should be regarded as a delegated act. Thirdly, the difficulties in applying the Treaty criteria for the divide between ­delegated and implementing acts will almost certainly mean that the principal institutional players will seek to categorize secondary measures in order to maximize their control. How this plays out remains to be seen. The Council may, for example, be content for measures to be categorized as implementing acts, notwithstanding that it has no formal veto of the kind that exists under Article 290, and notwithstanding the fact that the 2011 Comitology Regulation provides no means of recourse to the Council of the kind that existed hitherto. This is because the Article 291 route does give Member State representatives the opportunity for formal and detailed input into the making of the measure. Moreover, while the Council qua Council is not afforded the oversight role that it had previously, the political reality is, as seen earlier, that things may not work out that differently. The European Parliament, by way of contrast, is likely to press for  more measures to be included within the category of delegated acts, since it is Article 290 that contains the veto power, and Article 291 has little to offer the European Parliament. This has indeed been the position taken by the European Parliament, which has pressed for a broad reading of Article 290.129 If the new divide between ­delegated and implementing acts is played for maximum political advantage as judged by the principal institutional players, this then undermines the very rationale for the dichotomy between the two types of act. Finally, the Lisbon regime will lead to greater institutional complexity. There are Comitology committees established pursuant to Article 291. There is, in addition, the 129 European Parliament resolution of 25 February 2014 on follow-up on the delegation of legislative ­ owers and control by Member States of the Commission’s exercise of implementing powers (2012/2323(INI)) p [2017] OJ C285/2.

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world of committees established pursuant to the Common Understandings 2011 and 2016. There may be some overlap between the committees, but the two areas nonetheless remain formally distinct.

(H) Delegated and Implementing Acts: The Case Law The preceding difficulties are evident in the CJEU’s case law distinguishing between delegated and implementing acts. The initial decision, Biocidal Products,130 provided little guidance on the nature of the distinction between delegated and implementing acts, leaving the choice largely to the EU legislature, which is unsatisfactory for the reasons set out below. The second decision, Visa Reciprocity,131 reveals the difficulties in deciding whether a secondary measure amends a legislative act and thus must be made through a delegated act. The third decision, EURES Network,132 reveals the ­complexities of deciding whether an act supplements a legislative act and hence must be done by a delegated act, while the fourth case, Connecting Europe Facility,133 bears testimony to the need to distinguish carefully between grant of power to amend and to supplement within Article 290. The CJEU’s initial decision on the divide between delegated and implementing acts was Biocidal Products.134 A legislative act had been enacted concerning biocidal products and empowered the Commission to make implementing regulations pursuant to Article 291. The Commission contended that Article 290 should have been used, because the regulation supplemented the legislative act and thus should be regarded as a delegated act. The Commission argued that the power conferred by Article 291 TFEU was purely implementing in nature, whereas that contained in Article 290 was a quasi-legislative power. It contended that the choice as between a delegated and an implementing act should be based on objective and clear factors that were amenable to judicial review, a view supported by the European Parliament.135 The respective scopes of Articles 290 and 291 TFEU were mutually exclusive, and implementing acts could not affect the content of the legislative act. If the purpose was to adopt non-essential rules of general application, which completed the normative framework of the legislative act, then those rules supplemented the legislative act and had to be made through Article 290. If, however, the purpose was merely to give effect to the rules already laid down in the 130 Case C-427/12 Commission v European Parliament and Council, EU:C:2014:170; D Ritleng, ‘The Dividing Line between Delegated and Implementing Acts: The Court of Justice Sidesteps the Difficulty in Commission v. Parliament (Biocides)’ (2015) 52 CMLRev 243. 131  Case C-88/14 European Commission v European Parliament and Council, EU:C:2015:499. 132  Case C-65/13 European Parliament v Commission, EU:C:2014:2289. 133  Case C-286/14 European Parliament and Council v Commission, EU:C:2016:183. 134 Case C-427/12 Commission v European Parliament and Council (n 130); P Craig, ‘Delegated and Implementing Acts’, in R Schutze and T Tridimas (eds), Oxford Principles of European Union Law, Volume I: The European Union Legal Order (Oxford University Press, 2018), Ch 22. 135  Committee on Legal Affairs, Report on follow-up on delegation of legislative powers and control by Member States of the Commission’s exercise of implementing powers, A7-0435/2013, 4 December 2013, Rapporteur J Szájer.

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basic act while ensuring uniform conditions of application within the EU, then Article 291 could be used.136 Advocate General Cruz Villalón examined the distinction between delegated and implementing acts at some length, noting the different purposes of the respective provisions, the former being to accord the Commission with some regulatory power to amend or supplement the legislative act, subject to the conditions in Article 290, the latter being to give the Commission implementing powers normally reserved to Member States where this was necessary to ensure uniform conditions for implementation. For the Advocate General, the key difference between the two was the ‘fact that delegation allows a measure of discretion which is not mirrored in the case of implementation’, in the sense that ‘the legislature delegates to the Commission the ability to decide issues that, in principle, it should itself have decided, whereas implementation under Article 291 TFEU operates in relation to provisions the content of which has, as regards the substance, been defined by the legislature’.137 The criterion used by the Advocate General restates the analytical problem. It does not with respect resolve it. Given that all delegated and implementing acts ‘add something’ to the legislative act, it must still be determined when that should be regarded as supplementing the legislative act so as to trigger Article 290, and when it should not be so regarded so as to justify recourse to Article 291. The answer to that inquiry demands application of the criterion set out above, or something analogous thereto. In its judgment, the CJEU acknowledged that prior to the Lisbon Treaty the term ‘implementing powers’ in Article 202 EC covered the entire terrain now divided between delegated and implementing acts. The Court, however, provided little by way of guidance as to the divide between the two species of act, saying merely that d ­ elegated acts supplemented or amended non-essential elements of the legislative act, whereas implementing acts enabled the Commission to provide further detail in relation to the content of a legislative act, in order to ensure that it was implemented under uniform conditions in all Member States.138 The CJEU did not, therefore, sharpen the nature of the analytical divide, but chose rather to leave considerable choice to the EU ­legislature, as is readily apparent from the following extract.139 It must be noted that the EU legislature has discretion when it decides to confer a ­delegated power on the Commission pursuant to Article 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU. Consequently, judicial review is limited to manifest errors of assessment as to whether the EU legislature could reasonably have taken the view, first, that, in order to be implemented, the legal framework which it laid down regarding the system of fees referred to in Article 80(1) of Regulation No 528/2012 needs only the addition of further detail, without its non-essential elements having to be amended or supplemented and, secondly, that the provisions of Regulation No 528/2012 relating to that system require uniform conditions for implementation. 136  Ibid [22]–[23]. 137  Case C-427/12 Commission v European Parliament and Council, EU:C:2013:871 [62]. 138  Case C-427/12 Commission v European Parliament and Council (n 130) [37]–[39]. 139  Ibid [40].

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This approach obviated the need for the Court to give clear guidance on the nature of the dichotomy between delegated and implementing acts. The CJEU’s reasoning is problematic, and the difficulty resides in the very premise in the extract, viz that the EU legislature has discretion as to whether to confer a delegated or an implementing power on the Commission. This proposition elides two distinct issues, these being the legislature’s power to use both delegated and implementing acts, and whether the ­conditions for the application of the respective types of act have been met. It is true that the legislature has ‘discretion’ as to the former issue, but only in the reductionist sense that the Lisbon Treaty makes provision for both delegated and implementing acts, with the consequence that it is open to the EU legislature in the legislative act to choose whether further rules should be made pursuant to Article 290 or Article 291. This provides, however, no foundation for the conclusion that the EU legislature has ‘discretion’ as to the latter issue, which is whether the conditions for the application of Article 290 or Article 291 have been met in any particular instance. Thus, the fact that the EU legislature may take the view that, for example, an implementing act will suffice for rules made pursuant to a particular article of the legislative act, because they only add some further detail that does not amend or supplement its non-essential elements, does not ‘make it so’. This is more especially so given that the analytical problem is compounded by the temporal one, set out earlier. The EU legislature will stipulate the type of secondary act to be used pursuant to different articles of the legislative act. However, the particular delegated or implementing act has by definition not been made at this point. It is only when it is made that it can be determined whether it does in reality conform to the definition of a delegated or implementing act provided in the Treaty. The difficulties of deciding whether a secondary measure amends a legislative act is exemplified by the Visa Reciprocity case.140 The EU operated a system whereby nationals from certain third countries did not have to secure a visa before entering the EU, whereas those from other countries had to do so. However, if a country came in the former category, its exemption from visa requirements could be suspended if it imposed such requirements on nationals from an EU Member State. The legal act through which this decision was made varied depending on the length of time for which the third country persisted with its visa requirements for nationals of an EU Member State. There were three stages. The first stage involved adoption by the Commission of an implementing act suspending the exemption from the visa requirement for certain categories of nationals of the third country for six months, which could be extended. The second stage became operative where the third country still maintained its visa

140  Case C-88/14 European Commission v European Parliament and Council (n 131); M Chamon, ‘The Dividing Line between Delegated and Implementing Acts: The Court of Justice Settles the Issue in Commission v.  Parliament and the Council’ (2015) 52 CMLRev 1617; A Mei, ‘Delegation of Rulemaking Powers to the Commission Post-Lisbon’ [2016] ECLRev 538.

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requirement for nationals of a Member State: the Commission could then issue a ­delegated act suspending the exemption from the visa obligation for all nationals of that third country for twelve months, and insert in the Annex to the parent regulation a footnote indicating that the exemption from the visa requirement had been suspended with regard to that third country, specifying the period of the suspension. The third stage related to the permanent reinstatement of the visa obligation, which required the ordinary legislative procedure. The Commission argued that the requirement for a delegated act at the second stage was inconsistent with Articles 290 and 291, since the twelve-month suspension did not entail any amendment or supplementation of the parent regulation, and hence an implementing act should suffice. It further argued that the placing of a footnote in the Annex to the parent regulation, signifying that the visa exemption was suspended, was a ‘a mere technical tool used abusively in order to disguise the implementing act as a delegated act’.141 The CJEU disagreed. It began by reiterating its finding from the previous case that the EU legislature had discretion as to whether to proceed through a delegated or an implementing act.142 This was, however, qualified by the need to comply with the ­criteria in the Treaty for the divide between delegated and implementing acts. The Court held that the existence of discretion in relation to the secondary measure was not determinative in this respect. A delegated act would have to be used if the secondary measure amended or supplemented non-essential elements of the legislative act.143 The CJEU concluded that a delegated act was correctly prescribed for the second stage of the procedure, because it reintroduced, for a period of twelve or eighteen months, a visa obligation for nationals of a third country that had previously been exempt from that requirement, and therefore amended, if only temporarily, the normative content of the legislative act.144 The EURES Network145 case exemplifies the difficulty of deciding whether an act supplements a legislative act. It was concerned with implementing measures adopted by the Commission pursuant to Article 38 of Regulation 492/2011 concerning free movement of workers.146 The contested implementing measure was concerned with the creation and functioning of the EURES Network, which was designed to enhance knowledge of job vacancies in the EU and facilitate the filling of such placements. The European Parliament argued that the Commission implementing decision could not be made pursuant to Article 291, because six aspects thereof supplemented the ­legislative act. The CJEU accepted that ‘in exercising an implementing power, the Commission may neither amend nor supplement the legislative act, even as to its ­non-essential elements’.147 It nonetheless rejected the claim, after having analysed each 141  Case C-88/14 European Commission v European Parliament and Council (n 131) [21]. 142  Ibid [28]. 143  Ibid [32]. 144  Ibid [42]. 145  Case C-65/13 European Parliament v Commission (n 132). 146  Regulation 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement of workers in the European Union [2011] OJ L141/1. 147  Case C-65/13 European Parliament v Commission (n 132) [45].

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aspect of the contested implementing decision that the European Parliament said was problematic. Space precludes further examination of the Court’s reasoning in this respect. Suffice it to say that the implementing decision added considerable detail to the legislative act, revealing the inherent difficulty in deciding when this is held to ­supplement the legislative act, an issue to which we shall return later. These tensions were cast into sharp relief by the reasoning in Connecting Europe Facility,148 where the focus was on the line between power to amend and power to supplement within Article 290. The European Parliament argued that the Commission had exceeded its power to make a delegated act, because it had added an extra annex to the legislative act, and that it should instead have adopted a separate delegated act. It is the CJEU’s discussion of the difference between amend and supplement that is of interest here. The CJEU held that delegation of a power to ‘supplement’ a legislative act only authorized the Commission to flesh out that act. It had, when doing so, to comply with the entirety of the legislative act, and its authority was limited to development in detail of non-essential elements of the legislation that the legislature had not specified. By way of contrast, delegation of a power to ‘amend’ a legislative act authorized the Commission to modify or repeal non-essential elements laid down by the legislature in that act. It was not required to act in compliance with the aspects of the legislation that it intended to amend.149 It was, moreover, for the legislature to make clear which type of delegated power it was according to the Commission; it was not for the Commission to make that determination for itself.150 The CJEU concluded that the legislature only intended to give the Commission power to supplement the legislative act, not to amend it, and therefore the contested regulation was invalid, since it could not add provisions to the legislative act. The following conclusions can be drawn from the preceding cases. First, it was decided in the Lisbon Treaty to differentiate delegated and implementing acts, and to establish different regimes of control to reflect the differences between the two types of measure. These differences were felt to be of constitutional significance. It can be accepted that when reviewing the choice made by the legislature the Court should consider the reasons why it chose to proceed via a delegated act rather than an implementing act, or vice versa. This is, however, to say no more than that, when exercising judicial review, a Court should be properly informed as to the reasoning that underpinned the decision of the body being reviewed. It provides no foundation for the conclusion that the body subject to review has ‘discretion’ as to whether the conditions for the application of delegated or implementing acts are met, with the consequence that the Court uses only light-touch review for manifest error. The EU legislature must perforce exercise interpretive judgment as to the application of Articles 290 and 291, but if the exercise of such judgment by an EU institution in relation to a Treaty p ­ rovision

148  Case C-286/14 European Parliament and Council v Commission (n 133). 149  Ibid [41]–[45]. 150  Ibid [46].

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is to be equated with discretion justifying only light-touch review this would have major ramifications across the entirety of EU law. Secondly, the case law throws into sharp relief the difficulty of distinguishing between delegated and implementing acts, more especially when the issue is whether the contested measure supplemented the legislative act and therefore had to be made through a delegated act. The problem is exemplified by the preceding cases. In the Visa Reciprocity case the CJEU stated that an implementing act was designed to ‘provide further detail in relation to the content of a legislative act’.151 By way of contrast, the CJEU in Connecting Europe Facility,152 when defining a delegated act, stated that to supplement meant to flesh out the detail of the legislative act in relation to its nonessential elements. The difficulty of deciding whether the addition of further detail can be done via an implementing act, or whether that addition constitutes supplementation that requires a delegated act, is exemplified by EURES Network,153 where the European Parliament argued that what had been done in the contested implementing regulation really had supplemented the legislative act and thus should have been done through a delegated act. The CJEU nonetheless concluded that, while such detail had been added, it did not constitute supplementation of the legislative act. Thirdly, these cases reflect the analytical conundrum set out earlier. The thrust of the case law is to resolve the conundrum by concluding that the addition of further detail can be accomplished through implementing acts, rejecting arguments that a delegated act was required. The CJEU and GC have reasoned as follows: the limits of the Commission’s implementing power should be determined by the essential general aims of the legislative act in question; within those limits the Commission is authorized to adopt all measures necessary or appropriate for implementation of that act; and that provided these conditions are met, the further detail will be accepted as valid implementing measures.154 This approach risks, however, undermining the very rationale for the divide between delegated and implementing acts. If the addition of further detail is to be accepted as valid through an implementing act, provided only that it is consistent with the essential general aims of the legislation, and necessary or  appropriate for its implementation, then this gives considerable latitude to the Commission to shape the legislative act, without the democratic controls built into Article 290. The European Parliament has, by way of contrast, argued strenuously that more secondary measures should be required to be delegated acts, taking a broad view of what constitutes amendment or supplementation for these purposes.155 Fourthly, the problems are further compounded by the demands placed on the ­legislature in the Connecting Europe Facility case.156 It will, therefore, be necessary in 151  Case C-88/14 European Commission v European Parliament and Council (n 131) [30]. 152  Case C-286/14 European Parliament and Council v Commission (n 133) [41], [44], [45]. 153  Case C-65/13 European Parliament v Commission (n 132). 154 Ibid [44]–[46]; Cases T-261/13 and 86/14 Netherlands v European Commission, EU:T:2015:671, [43]–[45]. 155  European Parliament resolution of 25 February 2014 (n 129). 156  Case C-286/14 European Parliament and Council v Commission (n 133).

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the future to decide not only whether an act is properly regarded as delegated or implementing, but whether, even if it is a delegated act, the legislature accorded the Commission power to supplement and amend, or only accorded it power in one of these respects. Finally, there is a double paradox that besets this area. The distinction between ­delegated and implementing acts was introduced under the banner of simplification, which it has manifestly failed to achieve. The distinction between delegated and ­implementing acts was also adopted because it was felt to be important constitutionally and pragmatically. The problematic nature of the divide, coupled with the broad ­interpretation given to implementing act, undermine, however, the normative claim that the two types of act should be subject to markedly different forms of control and accountability, and this paradox is further heightened by the fact that, as seen above, the committee structure that was excised from Article 290 has partially ­reappeared.

6 Conclusion The Lisbon regime for scrutiny and control over secondary measures in the form of delegated and implementing acts is complex and problematic for the reasons set out earlier. The formal Treaty provisions are, however, unlikely to change in the foreseeable future, nor is the general Comitology regime that pertains to implementing acts. The practical operation of the new complex world is, by way of contrast, far from certain. It is readily apparent that the task of ensuring the legitimacy of secondary rulemaking or delegated regulation, consistent with the dictates of practical political life, is an endemic problem for all polities. The nature of the EU’s decision-making structure merely serves to render the problem more difficult, not to change its nature. The complexity of the EU system for dealing with delegated and implementing acts should not, however, serve to conceal the most significant issue underlying the entire discourse, which is the nature of the enacted measures and the institutional controls to which they should be subject. The Commission insists that delegated acts are concerned primarily with matters of technical detail, where the legislative act has established the issues of principle. It invested significant effort to increase its autonomy over the passage of such measures, which it regards as an inherent part of its ‘executive function’. It fought Comitology ever since it was created. It has striven since the early 1990s to find ways of satisfying the Council and European Parliament through a schema of the kind included in the Lisbon Treaty, with the hope that regulatory and management committees as presently conceived could be abolished. The problem is that the premise underpinning the Commission’s view accords ill with reality. There are to be sure some delegated acts that can be properly regarded as purely technical. There are a great many that cannot be characterized in this manner.

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EU policy evolves across time. The classic mode of development is for there to be a new legislative act in the relevant area, followed by delegated or implementing acts. The idea that the delegated acts can be regarded as purely technical, fleshing out points of  detail where all the essentials have been laid down in the primary regulation or ­directive, misrepresents reality. Take any instance where there has been a shift in policy effectuated through a legislative act/primary regulation, whether in the field of, for example, agriculture, the Structural Funds, the budget, customs, or energy. The ­delegated acts enacted thereafter will regularly deal with practical and normative issues of real importance, the solution to which may be guided, but rarely determined, by the legislative act. This is precisely why Member States invented Comitology in the first place. If the delegated and implementing acts really just dealt with technical detail, then the Member States might have been content to let the Commission get on with it. They realized within a bare five years of the EEC’s existence that this was not so. They were unwilling to give the Commission a blank cheque to provide answers to the issues of practical and normative choice left outstanding by the primary regulation, because they did not wish to invest the Commission with that degree of power and because they disagreed amongst themselves as to the desirable answers. Comitology was the response, allowing Member States a real input into the making of implementing ­measures, thereby exerting some control over the Commission and having an institutionalized forum through which to debate their contending views. The realization that secondary measures will often entail contentious practical and normative issues serves equally to explain the European Parliament’s long-running battles to secure a greater say in their passage, more especially since the creation and expansion of co-decision. The Commission’s mantra that implementation is a natural part of the executive function over which it should naturally have autonomy is premised ultimately on contentious assumptions about the meaning of those very concepts, implementation and executive function. Its vision of the Community method, as elaborated in the White Paper on Governance, is that pretty much everything after the enactment of the ­legislative act/primary regulation or directive should be regarded as implementation, which then falls within the ambit of the executive function residing with the Commission. This vision was given added force by the Commission’s desire for the legislative act to be set at a higher level of generality than hitherto, thereby leaving even more to be done through implementing measures. This interpretation of implementation and executive function should not, however, be regarded as self-evident. The idea that the ‘executive’ should have prima facie autonomy over the drafting and content of all delegated norms of a legislative nature that embody practical and normative choices requires justification, not simply assertion as if it were an a priori logical proposition. It is true that executives in the Member States have some regulatory power. The precise nature and extent of this power varies considerably from state to state and it must in any event be viewed against the entirety of the constitutional distribution of power that exists within any polity. It is not possible to ‘cut and paste’ experience in a Member State to the EU, more especially because the

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Commission does not have a democratic mandate akin to that possessed by some national executives. It can be accepted that the regime for delegated acts in the Lisbon Treaty embodies ex ante and ex post controls over the passage of delegated acts. The efficacy of such controls is, however, doubtful for the reasons considered earlier. The difficulties of the new regime are exacerbated by the fragility of the divide between delegated and implementing acts. The new regime is moreover predicated on ‘legitimation from the top’, and ignores the possibility of ‘legitimation from the bottom’ via participation rights. The fact that the EU provides some ‘legitimation from the top’ does not mean that ‘legitimation from the bottom’ via participation rights should be rejected. The rationale for such participation is partly instrumental, connoting the idea that the resultant rules may be improved by input from interested parties. It is also partly non-instrumental, in the sense that it allows citizens to partake in the business of government. We should be mindful of imagining that a US-style Administrative Procedure Act can readily be transplanted to the EU, but we should be equally wary of dismissing such solutions too readily. There was prior to the Lisbon Treaty a good deal of rhetoric concerning participation and inclusion, much of which was directed towards enhancing the overall ­legitimacy of the EU. The reality was nonetheless that the extent to which the judicial or political organs were willing to commit to legally binding participation rights was decidedly limited.157 The EU Courts provided little assistance in this respect. They were active in promoting due process rights in adjudication.158 Their stance was markedly different when the applicant claimed participation rights in the making of norms of a legislative nature. The Union Courts consistently resisted such claims, denying consultation rights unless they were expressly provided by the relevant Treaty article, or by a regulation, directive, or decision.159 The Commission was reluctant to accord legally enforceable participation rights in relation to its own legislative or policy ­proposals.160 It remains to be seen whether Article 11 TEU makes a difference in this respect. It is expressed in mandatory language. It states that the EU institutions shall, by appropriate means, give citizens and representative associations the opportunity to make 157  Ch 11; J Mendes, Participation in EU Rulemaking: A Rights-Based Approach (Oxford University Press, 2010). 158  Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, [15]; Cases T-33–34/98 Petrotub and Republica SA v Council [1999] ECR II-3837; Case C-458/98 P Industrie des poudres sphériques v Council and Commission [2000] ECR I-8147, [99]. 159  Case C-104/97 P Atlanta AG v Commission [1999] ECR I-6983; Case C-258/02 P Bactria IndustriehygieneService Verwaltungs GmbH v Commission [2003] ECR I-15105, [43]; Case C-263/02 P Commission v JégoQuéré & Cie SA [2004] ECR I-3425, [47]; Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305, [487]; Case T-70/99 Alpharma Inc v Council [2002] ECR II-3495, [388]; Case T-135/96 UEAPME v Council [1998] ECR II-2335, [69]–[80]. 160 Towards a Reinforced Culture of Consultation and Dialogue—General Principles and Minimum Standards for Consultation of Interested Parties by the Commission, COM(2002) 704 final.

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known and publicly exchange their views in all areas of Union action. The institutions must maintain an open, transparent, and regular dialogue with representative ­associations and civil society. It requires moreover that the European Commission carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. It will be for the CJEU to draw the concrete implications from these principles. It might choose to interpret the Article narrowly, thereby effectively leaving the matter to the political institutions, but this is problematic. It does not sit well with the injunction in Article 11 TEU that citizens and representative associations shall have the ­opportunity to make known their views in all areas of EU action, that there should be open, transparent, and regular dialogue between EU institutions and civil society, and that the Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. A restrictive ­interpretation of Article 11 would therefore send a very negative message about the nature of participatory democracy in the EU, and risk turning a provision that was meant to convey a positive feeling about the inclusive nature of the EU and its willingness to engage with its citizenry, into one that carried the opposite connotation.161 161  The GC has taken an expansive reading of the European Citizens’ Initiative, Case T-646/13 Bürgerausschuss für die Bürgerinitiative Minority SafePack—one million signatures for diversity in Europe v European Commission, EU:T:2017:59; Case T-754/14 Efler v European Commission, EU:T:2017:323.

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6 Agencies 1 Introduction It has become increasingly common for agencies to be deployed in nation states to fulfil certain governmental functions. The same phenomenon has occurred in the EU, especially since the 1990s. This chapter explores the role played by agencies in the EU. The discussion begins with consideration of the rationale for agencies in nation states and the EU respectively, followed by examination as to how EU agencies have evolved. The focus then turns to classification of EU agencies in the light of their ­powers and functions, and explication of the legal limits that constrain the powers that can be given to EU agencies. The remainder of the chapter analyses the legal, political, and financial mechanisms for controlling agencies and rendering them accountable. The chapter concludes with discussion as to whether the powers of agencies ought to be extended.

2  Rationale for Agencies in the Nation State We have already seen in the preceding chapter that modern democratic polities face a dilemma. The basic tenets of representative democracy tell us that norms of a legislative nature are legitimated through the legislative process. The range of issues over which government has responsibility means, however, that it is not possible for all such matters to be dealt with through primary legislation. This is in part because of time constraints. It is in part because not all eventualities can be foreseen when the primary legislation is enacted. It is in part also because the legislature may lack the technical competence to fill in the interstices of the legislative scheme. The necessary consequence is to delegate power, or to accord some independent legislative capacity to the executive branch of government. If the delegation option is taken this may mean that, for example, a minister is accorded power to make further rules for the topic in question, which will then be subject to scrutiny and control. This may be exercised through the legislative and the judicial process, and there may also be opportunity for participatory input by interested

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parties. This should not disguise the fact that political systems have real problems in legitimating and controlling the passage of such delegated norms. It may, however, be decided that the optimum strategy is not to deal with such matters ‘in house’, but rather to create an agency outside the normal departmental structure. This might be felt preferable for a number of reasons.1 It facilitates the use of experts who are not part of the normal bureaucratic structure. It frees up the parent department itself so that it can concentrate on strategic policy. It insulates the ­resolution of technical regulatory issues from the vagaries of day-to-day political change and hence increases the credibility of the choices thus made.2 It might be felt that certain matters, such as funding for the arts, should be dealt with outside the normal departmental structure to safeguard against possible political bias. It might be thought that an agency is a better option where there are regulatory issues in relation to which the government has a stake, such as the licensing of airline routes. The rationale for choosing an agency might be for a mixture of reasons, as exemplified by the regulation of race and gender equality in the UK. The desire to insulate such matters from the dayto-day political process, greater staffing flexibility, the wish to combine rulemaking and enforcement capabilities, and the government’s desire to immunize itself from adverse political fallout from day-to-day operations, while still taking the credit for such regimes, might all incline the government to choose the agency route. It would be mistaken to think of agencies as a modern creation. They have existed in some states such as the UK for over three centuries.3 There has, nonetheless, been a considerable increase in the use of agencies over the last three decades. This has been linked with what has become known as the regulatory state hypothesis advanced by Majone.4 On this view the principal state function in the modern era is the correction of market failure through rulemaking. It is argued that in the positive state the main institutions were parliament, government departments, and state-owned industry, with the primary political actors being political parties and civil servants. In the r­ egulatory

1 D Hague, W Mackenzie, and A Barker (eds), Public Policy and Private Interests: The Institutions of Compromise (Macmillan, 1975) 362; Report on Non-Departmental Public Bodies (Cmnd 7797, 1980) [10]–[16]; R Baldwin and C McCrudden, Regulation and Public Law (Weidenfeld & Nicolson, 1987) Ch 1; M Thatcher and A Stone Sweet, ‘Theory and Practice of Delegation to Non-Majoritarian Institutions’ (2002) 25 West European Politics 1; J Ziller, ‘Organizing the Central Administration: Policy and Instruments’, Law Department, EUI (2006); T Christensen and P Lægreid (eds), Autonomy and Regulation: Coping with Agencies in the Modern State (Edward Elgar, 2006); M Groenleer, The Autonomy of European Union Agencies: A Comparative Study of Institutional Development (Eburon, 2009). 2  G Majone, ‘Temporal Consistency and Policy Credibility: Why Democracies Need Non-Majoritarian Institutions’, Working Paper RSC No 96/57, EUI (1996); F Gilardi, ‘Policy Credibility and Delegation to Independent Regulatory Agencies: A Comparative Empirical Analysis’ (2002) 9 JEPP 873. 3 D Roberts, Victorian Origins of the British Welfare State (Yale University Press, 1960); W Lubenow, The Politics of Government Growth (Archon Books, 1971); Sir N Chester, The English Administrative System 1780–1870 (Clarendon Press, 1981); H Parris, Constitutional Bureaucracy: The Development of British Central Administration in the Eighteenth Century (Allen & Unwin, 1969). 4  G Majone, ‘The Rise of the Regulatory State in Europe’ (1994) 17 West European Politics 77; G Majone, Regulating Europe (Routledge, 1996); G Majone, ‘From the Positive to the Regulatory State: Causes and Consequences of Changes in the Mode of Governance’ (1997) 17 Jnl of Public Policy 139.

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state, by way of contrast, the main institutions are said to be parliamentary committees and regulatory agencies, with the primary actors being regulators, experts, and courts. Indirect political accountability replaces more traditional direct forms of holding ­government to account. Thus ‘regulatory politics combines a rule-bound legalistic policy style, a pluralist political culture and indirect political accountability’.5 The regulatory state thesis was fuelled by changing patterns of government in many European countries over the last three decades, with privatization of nationalized industry and the creation of regulatory bodies to oversee the new market structures.6 Further research on countries in Europe has found much to substantiate the claims about the ‘regulatory state’, with many instances of privatization, liberalization, and delegation to regulatory agencies and a shift away from state ownership. The research also revealed however that several features of the regulatory state were absent, or only partially present, and that there was some real diversity across countries and across different policy areas.7 Where agencies are established political and legal controls are set in place. Political controls may be exercised by the legislature, or the executive, or a combination thereof. There will normally be some degree of judicial review. There may also be rights to participate in formulation of agency policy. The admixture of these controls will depend on the nature of the agency and the constitutional structure of the country.

3  Rationale for Agencies in the EU The fact that the EU should have similar problems to those considered above should not come as a surprise. The resolution of such problems is, however, particularly problematic in the EU because of its decision-making process. We saw in the previous chapter that the Council’s need to delegate power to the Commission was recognized in the original Rome Treaty. Not all matters could be dealt with through the standard process for the making of Community legislation, particularly when they concerned, for example, the detailed regulation of agriculture, where fast reaction to the exigencies of the market was of the essence. The Council was, however, unwilling to give the Commission a blank cheque. It wished to have some control over the delegated norms. This signalled the birth of the management and ­regulatory committees, an institutionalized mechanism for allowing national, normally technocratic interests, to have an input into these norms. It was these committees that formed Comitology. The EC institutional structure was further developed through the creation of agencies. The initial two agencies were established in 1975 and many others have been 5  M Thatcher, ‘Analysing Regulatory Reform in Europe’ (2002) 9 JEPP 859, 867. 6  J Vickers and G Yarrow, Privatization: An Economic Analysis (MIT Press, 1988). 7  Thatcher (n 5) 867–9; V Schmidt, ‘Europeanization and the Mechanics of Economic Policy Adjustment’ (2002) 9 JEPP 894.

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c­ reated since then. The nature of these agencies will be examined more fully later. Before doing so, we should reflect further on the rationale for their creation. A variety of factors has motivated national systems to choose the agency route. It is interesting therefore to consider why this institutional option has been increasingly used in the EU. It is unsurprising that factors that led to use of agencies in nation states have also been relevant in the EU. Thus the Commission in its Communication on Agencies stated that agencies ‘would make the executive more effective at European level in highly specialized technical areas requiring advanced expertise and continuity, ­credibility and visibility of public action’.8 It continued in the following vein, claiming that ‘the main advantage of using the agencies is that their decisions are based on purely technical considerations of very high quality and are not influenced by political or contingent considerations’.9 The Commission also emphasized the value of agencies in enabling the Commission to focus on its core function of policy formation, with the agencies implementing this policy in specific technical areas.10 The rationale for the agency option has also been discussed by academics, who have proffered differing views. Kreher saw the prime motivation for agency creation as the fostering of administrative integration.11 Shapiro’s view was less prosaic.12 If direct routes to further political integration were presently unacceptable, then it was best to proceed via creation of small discrete technical units that had the added advantage of not being the Commission, and not being in Brussels. The creation of relatively small agencies, each with a particular remit would also be more likely to lead to the creation of ‘Europe-wide epistemic communities’ of technocrats ‘whose technical truths transcend politics’.13 Dehousse saw more general forces at work.14 He argued that agency creation was a response to conflicting pressures within the Community. There was a sense that legislative harmonization was insufficient to dismantle trade barriers, and that some greater convergence of administrative practice was required. There was also the growing recognition that further delegation of direct administrative responsibility to the Commission was not politically feasible. Regulation by networks, whereby national and Community administrators came together to achieve a uniform response, was said to be the way out of this conundrum. The Comitology process was itself a prime ­example of this form of networking. Many of these committees developed from bodies whose principal function was to oversee the Commission in the discharge of power delegated to it by the Council, into forums through which national administrators could meet to try and 8  The Operating Framework for the European Regulatory Agencies, COM(2002) 718 final, 5. 9  Ibid 5. 10  Ibid 2. 11  A Kreher, ‘Agencies in the European Community—A Step towards Administrative Integration in Europe’ (1997) 4 JEPP 225. 12  M Shapiro, ‘The Problems of Independent Agencies in the United States and the European Union’ (1997) 4 JEPP 276. 13  Ibid 282. 14  R Dehousse, ‘Regulation by Networks in the European Community: The Role of European Agencies’ (1997) 4 JEPP 246.

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attain a uniform strategy for implementation. The ad hoc nature of these committee meetings was, however, a drawback, and Dehousse therefore saw agencies as a more permanent institutionalized locus through which such networking could occur.15 Majone placed the increasing use of agencies within a more general conceptual framework concerning the nature of the EU.16 He argued convincingly that the framers of the Rome Treaty rejected the option of separating the functional branches of government in favour of a polity in which the Council, Assembly, and Commission, ­representing respectively the interests of states, the people, and the European interest, combined albeit in different ways depending on the particular legislative process. Institutional balance and institutional autonomy were central to this mode of ‘mixed government’, as they had been in earlier polities in Europe.17 The division of power among different estates had the objective of balancing different interests, and was designed to prevent any single interest or estate from becoming dominant.18 It was against this model of institutional balance within a mixed polity that Majone advocated increased recourse to agencies. He acknowledged that the debate about delegation of power was ‘really a debate about the fundamental political organization of the polity, rather than merely an issue of political and administrative efficiency’.19 Majone argued that delegation of power to agencies was necessary and could be reconciled with ideals of institutional balance. It was necessary because of the credibility problem of traditional Community regulation, as exemplified by the ‘mad cow’ disease crisis. He argued that there was a ‘mismatch between highly complex regulatory tasks and available administrative instruments’,20 exacerbated by the limited administrative, financial, and cognitive resources available to the Commission,21 with the consequence that ‘a growing number of Commission officials and industry representatives feel that the situation can only be improved by creating stronger and more autonomous r­ egulatory institutions at European level’.22 Majone argued that this institutional change was consistent with the idea of institutional balance within a mixed polity by regarding such agencies as a ‘regulatory estate’ to be added to the other estates that form the EU.

4 Evolution (A)  Agency Creation: Three Phases We shall return to these matters in due course when we evaluate the agency model. Before doing so it is necessary to understand the development of the existing agencies.23 15  Ibid 254–5. 16  G Majone, ‘Delegation of Regulatory Powers in a Mixed Polity’ (2002) 8 ELJ 319. 17  Ibid 320, 323, 325–6. 18  P Craig, ‘Democracy and Rule-Making within the EC: An Empirical and Normative Assessment’ (1997) 3 ELJ 105. 19  Majone (n 16) 322. 20  Ibid 329. 21  Ibid 330. 22  Ibid 329. 23 https://europa.eu/european-union/about-eu/agencies_en; https://europa.eu/european-union/about-eu/ agencies/decentralised-agencies_en.

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It would be wrong to imagine that the EU suddenly woke up to the importance of agencies. The reality was rather that agencies were created at different periods of time.24 The agency model was initially used in 1975 when two agencies were established. These were the European Centre for the Development of Vocational Training (Cedefop)25 and the European Foundation for the Improvement of Living and Working Conditions (Eurofound).26 It was, however, to be fifteen years before recourse was made to agencies again. This second wave of agencies that occurred in the 1990s saw the creation of ten further agencies. It began with the setting up of the European Environment Agency (EEA)27 and the European Training Foundation (ETF).28 In temporal sequence this decade also saw the establishment of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA);29 the European Medicines Agency (EMA);30 the Office for the Harmonization in the Internal Market (OHIM);31 the European Agency for Health and Safety at Work (EU-OSHA);32 the Community Plant Variety Office (CPVO);33 the Translation Centre for Bodies of the European Union (CdT);34 the European Monitoring

24  D Keleman, ‘The Politics of “Eurocratic” Structure and the New European Agencies’ (2002) 25 West European Politics 93. 25  Council Regulation 337/75/EEC of 10 February 1975 establishing a European Centre for Vocational Training [1975] OJ L39/1. 26  Council Regulation 1365/75/EEC of 26 May 1975 on the creation of a European Foundation for the Improvement of Living and Working Conditions [1975] OJ L139/1. 27  Council Regulation (EEC) 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network [1990] OJ L120/1; Regulation (EC) No 401/2009 of the European Parliament and of the Council of 23 April 2009 on the European Environment Agency and the European Environment Information and Observation Network (Codified Version) [2009] OJ L126/13. 28  Council Regulation (EEC) 1360/90 of 7 May 1990 establishing a European Training Foundation [1990] OJ L131/1; Regulation (EC) No 1339/2008 of the European Parliament and of the Council of 16 December 2008 establishing a European Training Foundation [2008] OJ L354/82. 29  Council Regulation (EEC) 302/93 of 8 February 1993 on the establishment of a European Centre for Drugs and Drug Addiction [1993] OJ L36/1; Regulation (EC) No 1920/2006 of the European Parliament and of the Council of 12 December 2006 on the European Monitoring Centre for Drugs and Drug Addiction [2006] OJ L376/1. 30  Council Regulation (EEC) 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products [1993] OJ L214/1; Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency [2004] OJ L136/1. 31  Council Regulation (EC) 40/94 of 20 December 1993 on the Community trademark [1994] OJ L11/1; Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark (Codified Version) [2009] OJ L78/1; Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark [2017] OJ L154/1. 32  Council Regulation (EC) 2062/94 of 18 July 1994 establishing a European Agency for Safety and Health at Work [1994] OJ L216/1. 33  Council Regulation (EC) 2100/94 of 27 July 1994 on Community plant variety rights [1994] OJ L227/1. 34  Council Regulation (EC) 2965/94 of 28 November 1994 setting up a Translation Centre for bodies of the European Union [1994] OJ L314/1.

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Centre for Racism and Xenophobia (EUMC);35 and the European Agency for Reconstruction (EAR).36 The new millennium saw further use of the agency model in what can be regarded as a third wave. A European Food Safety Authority (EFSA)37 was created, as was the European Maritime Safety Authority (EMSA)38 and the European Aviation Safety Agency (EASA).39 The regulation to establish the European Network and Information Security Agency (ENISA)40 was enacted in 2004, as were the regulations for the European Centre for Disease Prevention and Control (ECDC),41 what is now the European Border and Coast Guard Agency (Frontex),42 and the European Railway Agency (ERA).43 A Community Fisheries Control Agency (CFCA)44 was created in 2005, the European Chemicals Agency (ECHA) in 2006,45 the European Union Agency for Fundamental Rights (FRA) superseded the EUMC in 2007,46 and an Agency for Cooperation of Energy Regulators (ACER) was founded in 2009.47 There were also new bodies established to oversee the financial sector in the wake of the financial crisis:48 the European 35  Council Regulation (EC) 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia [1997] OJ L151/1. 36  Council Regulation (EC) 2454/1999 of 15 November 1999 setting up a European Agency for Recon­ struction [1999] OJ L299/1. 37  Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L31/1. 38  Regulation (EC) 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency [2002] OJ L208/1. 39  Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency [2008] OJ L79/1 is now the governing regulation. 40  Regulation (EC) 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Agency [2004] OJ L77/1; Regulation (EU) No 526/2013 of the European Parliament and of the Council of 21 May 2013 concerning the European Union Agency for Network and Information Security (ENISA) [2013] OJ L165/41. 41  Regulation (EC) 851/2004 of the European Parliament and of the Council of 21 April 2004 establishing a European Centre for Disease Prevention and Control [2004] OJ L142/1. 42  Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L349/1; Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard [2016] OJ L251/1. 43  Regulation (EC) 881/2004 of the European Parliament and of the Council of 29 April 2004 establishing a European Railway Safety Agency [2004] OJ L164/1; Regulation (EU) 2016/796 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Railways [2016] OJ L138/1. 44  Council Regulation (EC) 768/2005 of 26 April 2005 establishing a Common Fisheries Control Agency [2005] OJ L128/1. 45  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency [2006] OJ L396/1. 46  Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights [2007] OJ L53/1. 47  Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators [2009] OJ L211/1. 48 https://ec.europa.eu/info/business-economy-euro/banking-and-finance/financial-supervision-and-riskmanagement/european-system-financial-supervision_en.

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Securities and Markets Authority (ESMA);49 the European Banking Authority (EBA);50 the European Insurance and Occupational Pensions Authority (EIOPA);51 and the European Systemic Risk Board (ESRB).52 The first and second waves of agencies were with one exception based on Article 352 TFEU.53 This practice has now been modified. The Commission signalled that henceforth ‘since the regulatory agency is an instrument of implementation of a specific Community policy, it follows that the legal instrument creating it must be based on the provision of the Treaty which constitutes the specific legal basis for that policy’.54 The intent is therefore that Article 352 will only be used when it is the legal basis for the specific action. The discussion thus far has been concerned with agencies set up by Commission initiative. There are, however, agencies that owe their origin to Council action. Some of these, such as Europol,55 are relatively well known. The agreement to set up Europol dates from the Maastricht Treaty. The Europol Convention flowed from a Council act based on what was Article K3 of the TEU. It was ratified by all Member States in October 1998 and Europol became fully operational in July 1999. In 2000 CEPOL, a European Police College, came into existence.56 The European Union Satellite Centre (EUSC) was created in 2001,57 although it was the direct successor of an earlier organization with the same function. Its mission is to support EU decision-making in the context of the Common Foreign and Security Policy (CSFP), and in particular the European Security and Defence Policy, by enhancing the EU’s capability to gather space-related information to help prevent conflicts, support peacekeeping efforts, and provide effective humanitarian aid during man-made disasters. The European Institute

49  Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority) [2010] OJ L331/84; https://www.esma.europa.eu/; P Schammo, ‘The European Securities and Markets Authority: Lifting the Veil on the Allocation of Powers’ (2011) 48 CMLRev 1879. 50  Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority) [2010] OJ L331/12. 51  Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) [2010] OJ L331/48. 52  Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board [2010] OJ L331/1. 53  Kreher (n 11). The exception was the EEA. 54  Operating Framework (n 8) 7. 55  Council Decision 2009/371/JHA of 6 April 2009 establishing a European Police Office (Europol) [2009] OJ 121/37; Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) [2016] OJ L135/53; https://www. europol.europa.eu/. 56  Council Decision 2000/820/JHA of 22 December 2000 establishing a European Police College (CEPOL) [2000] OJ L336/1; Regulation (EU) 2015/2219 of the European Parliament and of the Council of 25 November 2015 on the European Union Agency for Law Enforcement Training (CEPOL) [2015] OJ L319/1. 57  Council Joint Action 2001/555/CFSP of 20 July 2001 on the establishment of a European Union Satellite Centre [2001] OJ L200/5; Council Decision 2014/401/CFSP of 26 June 2014 on the European Union Satellite Centre [2014] OJ L188/73.

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for Security Studies (EUISS) dates from 2001 and was also established under the CSFP. Its mandate is to help create a common European security culture, to enrich the ­strategic debate, and systematically to promote the interests of the EU.58 Eurojust was established in 2002 to enhance cooperation between the competent authorities responsible for investigation and prosecution of cross-border and organized crime.59 In 2004 the European Defence Agency (EDA)60 was added to the list of those created by the Council, its objective being to support the Member States and the Council in their effort to improve European defence capabilities in the field of crisis management and to sustain the European Security and Defence Policy as it stands now and develops in the future.

(B) Agency Creation and Operation: 2012 Common Approach The evolution of EU agencies charted above had proceeded on a largely ad hoc basis. This was modified to some degree by the introduction of a ‘Common Approach’ in 2012, the result of a joint exercise of the Commission, European Parliament, and Council.61 The 2012 agreement resulted from the work of the inter-institutional working group (IIWG) which studied the issues from 2009 onwards. The IIWG, chaired by the Commission, addressed matters such as the role of the agencies in the EU’s institutional landscape, the creation, structure, and operation of the agencies, together with funding, budgetary, supervision, and management issues. It produced thirty-four fact sheets, which identified the existing situation, the problems, the possible solutions, and their implementation.62 These formed the basis for subsequent negotiations. The European Parliament, Council, and Commission reached an informal agreement in Strasbourg on 12 June 2012, and the Common Approach was signed on 19 July 2012. The principal issues dealt with in the Common Approach were as follows.63 There should be:64 an objective impact assessment before deciding to create a new agency; sunset or review clauses foreseeing the option of merging or closing down agencies; criteria for the choice of the seat and headquarters arrangements; and regular overall 58  Council Joint Action 2001/554/CFSP of 20 July 2001 on the establishment of a European Union Institute for Security Studies [2001] OJ L200/1; Council Decision 2014/75/CFSP of 10 February 2014 on the European Union Institute for Security Studies [2014] OJ L41/13. 59  Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [2002] OJ L63/1; M Luchtmann and J Vervaele, ‘European Agencies for Criminal Justice and Shared Enforcement (Eurojust and the European Public Prosecutor’s Office)’ (2014) 10 Utrecht Law Review 132. 60  Council Joint Action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency [2004] OJ L245/17; Council Decision (CFSP) 2015/1835 of 12 October 2015 defining the statute, seat and operational rules of the European Defence Agency [2015] OJ L266/15. 61 http://europa.eu/rapid/press-release_IP-12-604_en.htm. 62  The materials are available at https://europa.eu/european-union/about-eu/agencies/overhaul_en. 63  Joint Statement of the European Parliament, the Council of the EU and the European Commission on Decentralised Agencies, 19 July 2012, https://europa.eu/european-union/sites/europaeu/files/docs/body/ joint_statement_and_common_approach_2012_en.pdf. 64  Ibid [2]–[9].

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evaluations of the agencies’ programmes/activities, including the development of key performance indicators, a multi-annual programming to be linked with multi-annual resource planning, a stronger link between actions performed by the agency and human and financial resources, a streamlined governance structure, and making it clear who does what. There were also important provisions concerning the structure of decision-making in agencies. Thus, the Common Approach embodied a template for the composition of agency management boards. It recommended that there should be one representative from each Member State, two from the Commission, where appropriate one from the European Parliament, and where appropriate a limited number of stakeholder representatives.65 The Common Approach recognized the centrality of the agency director, who was and should be accountable for agency performance. Appointments should therefore be made transparently, and expertise should be central to the appointment process.66 Agencies should adopt annual work programmes and multi-annual strategic programmes; the Commission should be consulted and proffer advice on both documents; the European Parliament should also be consulted, although the outcome of the  exchange of views was not binding on the agency.67 Agency accountability was conceptualized in terms of reporting requirements, internal and external audit, agency ­evaluation, an alert warning system, and transparency, including in this respect ­relations with stakeholders.68 The Commission was accorded responsibility for taking forward the Common Approach, and it published a number of reports on progress in this respect.69 We shall consider the significance of the 2012 Common Approach in the ensuing discussion. Suffice it to say for the present, that while it was helpful in instilling some degree of transversal order into the role of EU agencies, there were also important issues that were not addressed, none more significant than the scope of power that could be accorded to agencies.

5 Classification The preceding analysis reveals the variety of EU agencies. This has prompted attempts at classification, which can be of assistance subject to the following caveat. We should never lose sight of the fact that taxonomy is of instrumental value. It is there to cast light on differences between agencies. It is not an end in itself. We should not allow the desire for ‘order’ to lead to the imposition of a taxonomic Procrustean frame that forces agencies into categories that are ill-fitting. There is, moreover, a tension between 65  Ibid [10]–[13]. 66  Ibid [14]–[19]. 67  Ibid [27]–[29]. 68  Ibid [46]–[66]. 69  Roadmap on the Follow-Up to the Common Approach on EU Decentralised Agencies, 2012; Commission Progress Report on the Implementation of the Common Approach, 2013; Progress Report on the Implementation of the Common Approach on EU Decentralised Agencies, COM(2015) 179 final, https:// europa.eu/european-union/about-eu/agencies/overhaul_en.

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g­ enerality and specificity. The more general is the classification then the greater the likelihood that all can be fitted into the category thus fashioned, with the consequential danger that the category loses its utility by grouping together agencies that are significantly different. There are similar dangers in veering too far in the opposite direction, since categories that are too specific can convey a wilderness of single instances, downplaying commonalities at the expense of differences that may be of little significance to the functioning of the relevant body. With these cautionary notes in mind we can spend a little time reflecting on taxonomy.

(A)  The Commission View It is fitting to begin with the official view put forward by the Commission. This has altered over time, and it is therefore necessary to disaggregate the different attempts at classification. (i)  The 2002 Schema The Commission’s initial classification dates from 2002. There are satisfactory and unsatisfactory elements in the Commission’s classification. It is satisfactory in that the Commission distinguishes between executive and regulatory agencies, albeit stressing that some existing agencies do not fall within either category.70 Executive agencies connote those bodies discussed earlier that were set up in post-Santer Commission reforms.71 These led to the creation of a new breed of executive agencies that would be responsible for managing programmes where the Commission had direct administrative responsibility for implementation. These agencies are subject to a specific framework Regulation,72 they are not intended to be independent and are subject to close supervision by the Commission. The agencies listed in the previous section are not executive agencies. The Commission classification is unsatisfactory when we move beyond the basic distinction between executive and regulatory agencies and consider the meaning accorded to the term regulatory agency. The latter agencies are ‘required to be actively involved in the executive function by enacting instruments which help to regulate a specific sector’ and the ‘majority of them are intended to make such regulation more consistent and effective by combining and networking at Community level activities which are initially a matter for the Member States’.73 The Commission properly recognizes that the existing ‘regulatory agencies’ perform different functions. Some, such as the European Medicines Evaluation Agency (EMEA) and the EFSA, provide technical and scientific assistance that is the basis for a decision made by the Commission; ­others, such as EMSA, provide inspection reports to enable the Commission to fulfil its 70  Operating Framework (n 8) 3–4. 71  Ch 3. 72  Council Regulation (EC) 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes [2003] OJ L11/1. 73  Operating Framework (n 8) 4.

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role as guardian of EU law; yet others, such as OHIM, CPVO, and EASA, can make individual decisions that are legally binding on third parties.74 In the light of this the Commission states that a distinction should be drawn within the category of r­ egulatory agencies. The distinction is between decision-making agencies, being those empowered to enact legal instruments binding on third parties, and executive agencies, being those with no independent power of decision in relation to third parties, but which perform other regulatory tasks.75 This labelling is confusing. We are presented with an initial distinction between executive and regulatory agencies, followed by differentiation within the latter ­category between decision-making and executive agencies. It is, moreover, as Majone forcefully points out confusing to have a category of regulatory agency and then to delineate within that category a group of bodies that do not have formal regulatory powers, whether of individualized decision-making or rulemaking.76 The instrumental use made of the distinction between decision-making and executive agencies can, as will be seen later, also be questioned, insofar as it informs matters such as the role of the Commission in the choice of agency director. (ii)  The 2008 and 2012 Schema The Commission modified its taxonomy in its 2008 paper on EU agencies, with the classification turning on the primary mission entrusted to the agency.77 Based on this criterion, the Commission distinguished between: agencies adopting individual decisions, which were legally binding on third parties, such as OHIM, EMA, EASA, and ECHA; agencies providing assistance to the Commission and, where necessary, to the Member States, in the form of technical or scientific advice and/or inspection reports, such as the ECDC, EMSA, EFSA, ERA, and EMA; agencies that were charged with operational activities, such as Frontex, Eurojust, Europol, and Cepol; and agencies with responsibility for gathering and analysing information and for networking, such as the EEA, EFSA, EU-OSHA, and ENISA. The Common Approach adopted in 2012 said nothing directly about classification, reflecting in this respect the stance taken by the IIWG paper on definition and classification of European regulatory agency.78 The IIWG paper noted the approach taken by the Commission in 2008, and took the view that classification could be predicated on different criteria, such as time of creation, policy area, powers, and the like. It eschewed any further attempt at classification, save for the fact of stating that the term ‘­regulatory’ could be misleading, ‘in the sense that, while agencies can have regulatory functions, they do not create and set new norms in the relevant sector’, this being distinct from

74  Ibid 4. 75  Ibid 8. 76 G Majone, ‘Strategy of Regulatory Reform’ in G della Cananea (ed), European Regulatory Agencies (ISUPE Press, 2004) 54. 77  European Agencies—The Way Forward, COM(2008) 135 final. 78  Analytical Fiche Nr 1, https://europa.eu/european-union/sites/europaeu/files/docs/body/fiche_1_sent_ to_ep_cons_2010-12-15_en.pdf.

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the fact that a few agencies could adopt individual decisions ‘in specific areas where a defined technical expertise is required, under clearly and precisely defined conditions’.79

(B)  An Alternative View The academic literature contains various taxonomies to capture the agencies that have been created under the Community Pillar.80 My own view is as follows. (i)  Regulatory Agencies The term regulatory agency is normally used to refer to bodies that have decisionmaking powers, which can be exercised either through individualized adjudication or through rulemaking. This is how the term is used in relation to the classic regulatory agencies in the US, and many national regulatory agencies conform to this model. Such agencies exercise discretionary power within their designated areas, and agency policy can be developed through either adjudication or rulemaking. The terminology used to describe agencies in the EU does not have to be tied to that used in nation states. This can be accepted, but does not diminish the point being made here. None of the EU agencies created thus far are regulatory agencies in the way that the term is used in common legal and political parlance, the principal reason being that there are legal constraints to the delegation of discretionary power to agencies. The EU agencies might have regulatory input, even though they do not exercise discretionary powers through adjudication and rulemaking. This too can be acknowledged, but does not thereby lessen the contrast between those bodies that do and do not have formal dispositive powers that can be exercised at their own volition, whether through adjudication or rulemaking. It should, nonetheless, be emphasized that it is now increasingly common for EU agencies to be given strong quasi-regulatory powers in the manner set out later. It should also be emphasized that the preceding limit on agency power must now be seen in the light of the ESMA ruling,81 discussed later, where the CJEU held that an agency

79  Ibid 3. 80  E Chiti, ‘The Emergence of a Community Administration: The Case of European Agencies’ (2000) 37 CMLRev 309, 311–17; E Chiti, ‘Decentralisation and Integration into the Community Administrations: A New Perspective on European Agencies’ (2004) 10 ELJ 402, 431–6; D Geradin and N Petit, ‘The Development of Agencies at EU and National Levels: Conceptual Analysis and Proposals for Reform’, Jean Monnet Working Paper 01/04, NYU School of Law, 43–50; S Griller and A Orator, ‘Everything under Control? The “Way Forward” for European Agencies in the Footsteps of the Meroni Doctrine’ (2010) 35 ELRev 3; E Vos, ‘EU Agencies: Features, Framework and Future’, Maastricht Faculty of Law Working Paper 2013/3; M Everson, C Monda, and E Vos (eds), European Agencies in between Institutions and Member States (Wolters Kluwer, 2014); M Busuioc, M Gronleer, and J Trondal (eds), The Agency Phenomenon in the European Union (Manchester University Press, 2015); M Egeberg, J Trondal, and N Vestlund, ‘The Quest for Order: Unravelling the Relationship between the European Commission and European Union Agencies’ (2015) 22 JEPP 609; M Broberg and J Trondal, ‘Agencification of the European Union Administration: Connecting the Dots’, TARN Working Paper 1/2016. 81  Case C-270/12 UK v Council and Parliament, EU:C:2014:18.

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could make acts of general application, provided the discretion accorded to the agency was sufficiently circumscribed and constrained, and provided also that the agency was amenable to judicial review, (ii)  Decision-Making Agencies There are, however, decision-making agencies, which have the power to make individualized decisions that are binding on third parties. OHIM, CPVO, EASA, EBA, ESMA, and EIOPA fall within this category. The official rationale for according this type of decisional power is that in these areas a single public interest predominates and the agency is not called on to ‘arbitrate on conflicting public interests, exercise any powers of political appraisal or conduct complex economic assessments’.82 Whether this accords with reality or not the fact that the rationale is framed in these terms, ­coupled with the repeated injunction that such agencies cannot adopt ‘legislative measures of general application’, or be ‘delegated responsibilities for which the EC Treaty has conferred direct power of decision on the Commission’,83 serves to emphasize the ­limits of the powers accorded to such agencies and the difference between them and classic regulatory agencies. (iii)  Quasi-Regulatory Agencies The EU also has a number of quasi-regulatory agencies with strong recommendatory power.84 This term is admittedly inelegant, but it captures reasonably the powers accorded to certain agencies. The EASA provides a good example of an agency accorded this type of power in the context of air safety. The EASA has actual decisional power in individual cases concerning airworthiness and environmental certification, hence its inclusion in the previous category.85 Its rulemaking role is less well known, but equally important. It is the EASA that in effect drafts the detailed implementing rules passed pursuant to the basic agency Regulation. It has elaborate rulemaking procedures, discussed later,86 the result of which will be a draft set out as a Commission implementing regulation. This requires approval from the Commission, which will, however, often have little if any input into these complex rules. The EASA will, in addition, publish codes, as it is empowered to do, that are in effect complex, highly detailed regulatory provisions regarded as binding by the industry, even though they do not have the force of law.87 The term quasi-regulatory agency is also apt for bodies such as the EMA, EFSA, and the EMSA. They make recommendations to the Commission, which has the final power of decision. The Commission is not bound by the recommendations thus made, but the views proffered by the relevant agency will nonetheless carry considerable

82  Operating Framework (n 8) 8; Analytical Fiche Nr 1 (n 78). 83  Operating Framework (n 8) 8. 84  E Chiti, ‘European Agencies’ Rulemaking: Powers, Procedures and Assessment’ (2013) 19 ELJ 93. 85  Reg 216/2008 (n 39) Art 18. 86  See below, 187. 87  The two main codes issued by the EASA are 279 and 239 pages respectively.

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weight, more particularly because they will commonly be concerned with technical and scientific matters. This can be reflected in the language of the Regulation, as in the context of the EMEA.88 The willingness to accord agencies with strong quasi-regulatory power is most apparent in relation to the new agencies established in the aftermath of the banking crisis. What is notable about the strategy in this area is the extent to which the primary legislative acts make clear that responsibility for delegated acts resides with the agency, subject to formal endorsement by the Commission. The relevant regulations are similar and hence that dealing with the EBA can be taken by way of example.89 The EBA is given a range of tasks designed to prevent a further crisis in the banking sector.90 It is empowered to make individual decisions in certain instances.91 It is also authorized to draft regulatory standards. The schema is that where the primary regulation delegates power to the Commission to make delegated acts pursuant to Article 290 TFEU, it is the EBA that drafts these acts, which are then endorsed by the Commission, subject to the possibility of veto by the Council or the European Parliament in accordance with Article 290 TFEU.92 The recitals to the Regulation make it clear that the Commission should amend the draft produced by the EBA only in ‘very restricted and ­extraordinary circumstances’, the rationale being that the EBA has the expertise within this area.93 These sentiments are reflected in the Regulation. The Commission is only able to adopt a draft delegated act itself if the EBA has failed to do so within the time specified in the legislative act.94 The Commission must also give a reasoned explanation for departure from the EBA draft rule and cannot make any such change without discussion with the EBA.95 The importance of such agencies in the decision-making process has been recognized by the EU Courts. This story will be told fully later.96 Suffice it to say for the present that they have held that where the Commission departs from the agency recommendation it will normally have to provide good reasons for doing so, and its decision will be annulled if the reasons do not suffice. The significance of the agencies’ work is also evidenced by the courts’ willingness to review their reasoning and findings, notwithstanding the fact that they do not have formal decisional powers of their own. (iv)  Information and Coordination Agencies There are also a significant number of agencies whose main tasks are the provision of information and coordination. Most EU agencies, including those considered earlier, perform some functions of this nature, but for many agencies it is their principal function. The precise tasks performed by these information and coordination agencies vary, but there are common features. Their role will normally be to furnish information and analysis to the Commission, Member States, and related actors whether at the public or private level; to assist the Commission where necessary in the formulation of 88  Reg 2309/93 (n 30) Arts 10, 32. 89  Reg 1093/2010 (n 50). 91  Ibid Arts 17(6), 18(3)–(4), 19(3)–(4). 92  Ibid Arts 10, 13. 94  Ibid Art 10(3). 95  Ibid Art 10(1). 96  See below, 176–7.

90  Ibid Art 1(5). 93  Ibid rec 23.

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EU policy and legislation; and to coordinate and interact with other players concerned with the relevant subject matter. What follows are examples of EU agencies that ­perform these functions. The EEA is a prominent example of such an agency. Its principal tasks are the provision of information to enable the EU and the Member States to take the requisite measures to protect the environment, assess the results of such measures, and ensure that the public is properly informed about the state of the environment.97 EU-OSHA is another second-generation agency that has similar features. In order to encourage improvements in the safety and health of workers the agency is charged with providing the EU, Member States, the social partners, and those involved in the field with technical, scientific, and economic information on workplace health and safety.98 The information is intended to identify risks and good practices. The agency is also to supply both the Union and Member States with such information as they require to implement judicious and effective policies to protect workers’ health and safety, and more particularly to provide such information to the Commission when it is preparing legislation in this area.99 In order to better attain its goals EU-OSHA is instructed to set up a network comprising the main elements of national information networks, including national social partners’ organizations, national focal points, and what are called future topic centres. Member States are obliged to inform the agency of the main ­components of their national health and safety information networks, including any institution that could contribute to the work of the agency.100 The EMSA is a more recent example of an agency performing similar tasks within its field. It was established because there was a need for an expert body to monitor implementation of EU policies on maritime safety and pollution and judge the effectiveness of such policies. To this end the EMSA is the technical body charged with providing the EU and Member States with the necessary means to act effectively to enhance overall maritime safety and prevent pollution by ships, and to assist the Commission in updating and developing EU legislation in these areas. The EMSA is also accorded the more specific task of identifying ships that breach the relevant rules concerning safety and pollution in order that the Commission and the Member States can take appropriate enforcement action.101 ENISA is another prominent agency whose principal functions concern the provision of information and coordination. It was established because of the increased importance of communication networks and information systems to modern economic and social development. The security of such networks is important, more especially given that this can be jeopardized by accident, attack, and mistake. ENISA is therefore charged with provision of information concerning such risks and analysing ways of dealing with them. 97  Reg 401/2009 (n 27) Arts 1–2. 98  Reg 2062/94 (n 32) Arts 2, 3(1)(a)–(d), as amended by Council Regulation (EC) 1112/2005 of 24 June 2005 amending Regulation 2062/94 establishing a European agency for safety and health at work [2005] OJ L184/5. 99  Ibid Art 3(1)(e). 100  Ibid Arts 3(1)(f), 4. 101  Reg 1406/2002 (n 38) Art 2(f).

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The discussion thus far has focused on information and coordination agencies established under what was, prior to the Lisbon Treaty, the Community Pillar, Pillar 1, normally at the behest of the Commission. The agencies established by the Council under what were Pillars 2 and 3 fulfilled similar functions. Europol and Eurojust were the most important agencies established by the Council acting under what was Pillar 3 (Justice and Home Affairs (JHA)/ Police and Judicial Cooperation in Criminal Matters (PJCC)), and they too have many important roles in relation to information and ­coordination. Thus the objectives of Europol are to enhance effectiveness and ­cooperation between Member States in dealing with offences that come within Europol’s remit.102 It has important tasks concerning the collection and provision of information.103 The centrality of information collation to Europol’s tasks is further emphasized by the importance given to the computerized information system that Europol creates and maintains.104 Coordination and cooperation between Europol and national police forces is also accorded a high prominence and the Europol Convention tries to ensure that this operates as efficiently as possible.105 The same emphasis on information, cooperation, and coordination is apparent in the remit given to Eurojust. It has competence in relation to crimes that fall within Europol’s jurisdiction and other crimes specifically listed.106 Eurojust’s objectives are to  stimulate and improve coordination between the competent authorities of the Member States concerned with investigation and prosecution of these crimes; to improve ­cooperation between such authorities by facilitating execution of international mutual legal assistance and implementation of extradition requests; and otherwise to support Member State authorities in order to render their prosecutions and investigations more effective.107

6 Limits There are, as seen, an increasing number of EU quasi-regulatory agencies, where the agency de facto drafts the detailed delegated regulation and where there are ­constraints on the extent to which the Commission can interfere with this draft. The EU does not yet possess regulatory agencies as that term is commonly used in national parlance. The principal legal constraint comes from the Meroni principle. It will be seen that there are also political limits to the types of power that the Commission is willing to accord to agencies, although the nature of those limits may well be changing.108

102  Dec 2009/371 (n 55) Arts 3, 5. 103  Ibid Art 5. 104  Ibid Arts 10–13. 105  Ibid Arts 6, 8. 106  Dec 2002/187/JHA (n 59) Art 4. 107  Ibid Art 3. 108  M Chamon, EU Agencies: Legal and Political Limits to the Transformation of the EU Administration (Oxford University Press, 2016).

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(A)  Legal Limits (i) Meroni The Meroni case109 involved a challenge by the applicant company to a decision requiring it to pay the Imported Ferrous Scrap Equalization Fund a sum of money. The applicant argued that the particular decision was vitiated because of a failure to state adequate reasons. It further contended that the more general decision underlying the particular decision was unlawful because it entailed a delegation of power that was impermissible under the Treaty. The general decision provided that the operation of the financial arrangements for the ferrous scrap regime should be dealt with by the Joint Bureau of Ferrous Scrap Consumers and the Imported Scrap Equalization Fund, bodies with legal personality under private law. The ECJ decided that the contested decision entailed a true delegation of power found and then reasoned as follows. It held that the delegation was unlawful because a delegating authority could not confer on another body powers different from those possessed by the delegator under the Treaty.110 If the High Authority had exercised the power itself then it would have been subject to Treaty rules concerning a duty to give reasons, publish data, and the like. The contested decision did not make the agencies to which power had been delegated subject to the same constraints, such that in reality those agencies had more extensive power than those held by the High Authority under the Treaty. The ECJ also held that it was not possible to delegate power involving a wide margin of discretion. The Court accepted that it was possible for the High Authority to delegate certain power under the ECSC, but imposed limits in this respect.111 The consequences resulting from a delegation of powers are very different depending on whether it involves clearly defined executive powers the exercise of which can, therefore, be subject to strict review in the light of objective criteria determined by the delegating authority, or whether it involves a discretionary power, implying a wide margin of discretion which may, according to the use which is made of it, make possible the execution of actual economic policy. A delegation of the first kind cannot appreciably alter the consequences involved in the exercise of the powers concerned, whereas a delegation of the second kind, since it replaces the choices of the delegator by the choices of the delegate, brings about an actual transfer of responsibility.

This rationale for limiting the type of power that could be delegated was reinforced by the concept of institutional balance.112 The ECJ held that Article 3 ECSC, which contained eight diverse objectives for the ECSC, not all of which could be simultaneously pursued, was binding not only on the High Authority, but also on the institutions of the Community within the limits of their respective powers. It followed, said the ECJ, from Article 3 that there could be seen in the balance of powers that was characteristic of the

109  Case 9/56 Meroni & Co, Industrie Metallurgiche SpA v High Authority [1958] ECR 133. 110  Ibid 149–50. 111  Ibid 152. 112  Ibid 152.

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institutional structure of the Community a fundamental guarantee granted by the Treaty in particular to the undertakings to which it applied. To delegate a discretionary power, ‘by entrusting it to bodies other than those which the Treaty has established to  effect and supervise the exercise of such power each within the limits of its own authority, would render that guarantee ineffective’.113 The ECJ concluded that the power ­delegated to the agencies in the instant case contained significant discretionary power that was not bounded by objective criteria and hence was not compatible with the Treaty. The Meroni principle has stood for sixty years as a constitutional limit to delegation.114 The EU Courts have been willing to uphold delegations of power when they were felt to be warranted, but they have done so largely from within the framework of the Meroni reasoning, rather than straying outside it.115 Thus in Tralli116 the ECJ held that a delegation of power within the organs of the European Central Bank (ECB) to decide on rules as to staff management and contracts was compatible with the Meroni principle. More interestingly in DIR International117 the CFI was willing, in the context of the MEDIA programme designed to enhance the European audiovisual industry, to uphold a delegation of power by the Commission to a private body (EFDO) that decided on funding applications, on the ground that the agreement between EFDO and the Commission in effect made EFDO’s decisions subject to Commission agreement, hence imputable to the Commission and therefore subject to judicial review. The Meroni principle has, moreover, been indirectly reinforced by Article 290 TFEU. It stipulates that for delegation of power to the Commission to be lawful, the legislative act must lay down the essential elements of the area. The Commission cannot make discretionary policy choices in the form of delegated acts. The same stricture applies a fortiori to exercise of analogous power by agencies, as is apparent from the regulations governing the financial supervisory authorities.118 (ii) Romano Romano was decided in 1980.119 The Administrative Commission was established ­pursuant to Regulation 1408/71 dealing with social security payments. Its duties were articulated in Article 81 of the Regulation. They included dealing with administrative questions and questions of interpretation arising from the Regulation and subsequent Regulations, or from any agreement or arrangement concluded thereunder, without 113  Ibid 152. 114  Cases C-154–155/04 The Queen, on the application of Alliance for Natural Health and Nutri-link Ltd v Secretary of State for Health [2005] ECR I-6451, [90]. 115  See, eg, Case C-147/13 Spain v Council, EU:C:2015:299 [62]–[63]; Case C-146/13 Spain v European Parliament and the Council, EU:C:2015:298, [84]–[87]. 116  Case C-301/02 P Tralli v ECB [2005] ECR I-4071, [42]–[52]. 117  Cases T-369/94 and 85/95 DIR International Film Srl and others v Commission [1998] ECR II-357, [52]– [53]. The case was reversed on appeal on different grounds, Case C-164/98 P DIR International Film Srl and others v Commission [2000] ECR I-447. 118  See, eg, Reg 1093/2010 (n 50) Art 10. 119  Case 98/80 Romano v Institut national d’assurance maladie-invalidité, EU:C:1981:104.

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prejudice to the right of the authorities, institutions, and persons concerned to have recourse to the procedures and tribunals provided for by the legislation of Member States, by the Regulation, or by the Treaty. The ECJ held that it followed from Article 155 EEC and the judicial system created by the Treaty, in particular by Articles 173 and 177 EEC, that a body such as the Administrative Commission could not be empowered by the Council to adopt acts having the force of law. Whilst a decision of the Administrative Commission might provide an aid to social security institutions responsible for applying Community law, it was not of such a nature as to require those institutions to use certain methods or adopt certain interpretations when they applied the Community rules. A decision of the Administrative Commission did not, therefore, bind national courts. The scope of the Romano ruling, and its relationship with Meroni, continue to be debated in the academic literature.120 Part of the difficulty in this respect flows from  the  fact that the reasoning in Romano denying legal force to acts of the Administrative Commission, drew in part on Article 155 EEC, the principal Treaty provision ­empowering the Commission, and in part from Articles 173 and 177 EEC, which dealt with direct and indirect review by the ECJ. To what extent the infirmity perceived by the ECJ flowed from a conjunction of these considerations, given that at the time there was no express provision for judicial review of a body such as the Administrative Commission, is not clear from the Court’s ruling. The judgment was, however, read narrowly in the ESMA case to which we now turn. (iii) ESMA It is, however, clear from UK v Council121 that power can be conferred directly on an EU agency. ESMA had been given power by a legislative act to take action in relation to short selling on stock in certain defined circumstances. The UK argued that this was unlawful on four grounds, three of which are relevant to the present discussion. First, the UK contended that the direct conferral of power in Article 28 of Regulation 236/2012122 infringed the Meroni principle,123 which limits the discretion that can be given to agencies. The CJEU rejected this argument, stating that the powers exercised by ESMA pursuant to Article 28 were sufficiently delineated and precise so as not to offend the Meroni principle. The CJEU took into account the following factors:124 that the bodies in question in Meroni were entities governed by private law, whereas ESMA 120  Chamon (n 108) 253–6, for discussion of the contending views. 121  Case C-270/12 UK v Council and Parliament (n 81); A Adamski, ‘The ESMA Doctrine: A Constitutional Revolution and the Economics of Delegation’ (2014) 39 ELRev 812; M Chamon, ‘The Empowerment of Agencies under the Meroni Doctrine and Article 114 TFEU: Comment on United Kingdom v Parliament and Council (Short-selling) and the proposed Single Resolution Mechanism’ (2014) 39 ELRev 380; C-F Bergström, ‘Shaping the New System for Delegation of Powers to EU Agencies: UK v Council and Parliament (Short Selling)’ (2015) 52 CMLRev 219; M de Bellis, ‘Procedural Rule-Making of European Supervisory Agencies (ESAs): An Effective Tool for Legitimacy?’, TARN Working Paper 12/2017. 122  Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps [2012] OJ L86/1. 123  Case 9/56 (n 109). 124  Case C-270/12 (n 81) [41]–[55].

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was an EU entity, created by the EU legislature; that the contested provision did not  confer any autonomous power on ESMA that went beyond the bounds of the ­regulatory framework established by the ESMA Regulation; and that unlike the case of the powers delegated to the bodies concerned in Meroni, the exercise of the powers under Article 28 of Regulation 236/2012 were circumscribed by various conditions and criteria which limited ESMA’s discretion. These limits were both substantive, through criteria that specified in detail when ESMA could take the contested action; and ­procedural, by detailing the bodies that had to be consulted when such action was taken. Secondly, the UK contended that the grant of authority to ESMA under Article 28 of Regulation 236/2012 to adopt quasi-legislative measures of general application was inconsistent with Romano. The CJEU disagreed. It acknowledged that ESMA was required, under Article 28, ‘in strictly circumscribed circumstances, to adopt measures of general application’,125 but held that this was not inconsistent with Romano: the institutional framework in the TFEU, in particular Article 263(1) TFEU and Article 277 TFEU, expressly permitted EU agencies to adopt acts of general application, with the consequence that it could not ‘be inferred from Romano that the delegation of powers to a body such as ESMA is governed by conditions other than those set out in Meroni v High Authority’.126 Thirdly, the UK argued that Articles 290 and 291 TFEU circumscribed the circumstances in which powers could be given to the Commission, and that the Council and European Parliament had no authority under the Treaties to delegate powers such as those in the instant case to an EU agency. The CJEU acknowledged that Article 28 of Regulation 236/2012 delegated power not to the Commission, but to an EU agency. This required the CJEU to decide whether Articles 290 and 291 were intended to establish ‘a single legal framework under which certain delegated and executive powers may be attributed solely to the Commission or whether other systems for the delegation of such powers to Union bodies, offices or agencies may be contemplated by the Union legislature.’127 The Court noted that while the Treaties contained no express provision allowing this, certain Treaty provisions presumed that such a possibility existed. Agencies were subject to judicial review via Articles 263, 265, and 267 TFEU, which were applicable to EU bodies, offices, and agencies that were given powers to adopt legally binding measures on natural or legal persons.128 The power accorded to ESMA in the present case must, said the CJEU, be seen in the context of the overall purpose of the regulatory scheme to deal with integration of financial markets and prevent the risk of financial contagion. This required that ESMA have power to impose temporary restrictions on the short selling of certain stocks, in  order to prevent an uncontrolled fall in the price of those instruments.129 This 125  Ibid [64]. 126  Ibid [66]. 127  Ibid [78]. 128  Ibid [80]–[81]. The CJEU cited by way of example the ECA, the EMA, the OHIM, the CPVO, and the EASA. 129  Ibid [84]–[85].

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‘­conferral of powers’130 did not therefore correspond to the situations in Articles 290 and 291, nor did it undermine them. (iv) Conclusion The ESMA judgment received a mixed reception, with support from some, and criticism from others, the latter being directed, inter alia, at the impact of the ruling on the inter-institutional balance of power in the EU.131 My own view is, however, more positive for the following two reasons. First, there was perforce some measure of discretion accorded to ESMA in the ­determination of when Article 28 of the Regulation should be applied. The CJEU did not, however, deny this, but rather emphasized that the discretion was closely circumscribed substantively, and subject to procedural safeguards, the conclusion being that it was consistent with Meroni. The fact that the EU legislature can delegate power directly to agencies to adopt legal acts, which are not only binding on those to whom they are addressed, but are also binding in general, is therefore subject to the caveat that such delegation to agencies is only permissible if the scope of power thus delegated is circumscribed by ‘criteria and conditions’, so as to ensure that the powers are sufficiently delineated and subject to judicial review, thereby preserving, in this respect, the principle in Meroni.132 Secondly, the meaning and application of the concept of inter-institutional balance is contestable. It is also dynamic, not static, in the sense that the meaning can alter over time. The salient point for present purposes is that the European Supervisory Authorities (ESAs), such as ESMA, reflected a conscious choice by the EU legislature to create agencies with greater power than hitherto, and to constrain the extent to which the Commission could interfere with regulations recommended by the agencies. The CJEU acknowledged that the power accorded to ESMA in Article 28 fell outside the confines of Articles 290 and 291 TFEU. The decision by the EU legislature to vest ESMA with such power directly, nonetheless, cohered with the legislature’s overall vision of the place of such agencies in the schema of EU decision-making. The CJEU rightly concluded that this was acceptable, given that ESMA was amenable to review and that its power was substantively and procedurally circumscribed in the manner adumbrated above.

(B)  Political Limits Meroni not only continues to have a pervasive influence over legal doctrine, it has also shaped the political discourse. This is self-evidently so in the formal sense that Meroni is the oft-cited reason given for the limited powers that can be accorded to agencies. Thus, the background papers prepared by the IIWG for the 2012 Common Approach were predicated on the legal limits in Meroni.133 It should, however, be recognized that 130  Ibid [83]. 131  See n 121. 132  Bergström (n 121) 236–7, 240. 133  Creation of Agencies, Analytical Fiche Nr 2, https://europa.eu/european-union/sites/europaeu/files/ docs/body/fiche_2_sent_to_ep_cons_2010-12-15_en.pdf, 2.

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in certain political quarters there is a desire to preserve the limits of delegation laid down by the EU Courts for reasons that go beyond the formal authority of judicial doctrine. Consider in this respect the Commission’s perspective. It may well be true, as Majone relates,134 that there are tensions within the Commission, with certain members ­wishing to move beyond Meroni and create true regulatory agencies. The official Commission view as laid down in its 2002 Communication on Regulatory Agencies was nonetheless premised on the judicial status quo, complete with the limit on delegation of discretionary power that constitutes the block to the creation of real regulatory agencies. This position was reiterated in the Commission’s 2005 proposal for a Draft Interinstitutional Agreement concerning regulatory agencies.135 The 2002 document revealed the Commission’s rationale for preserving this limit that transcended the ­dictates of formal law. The Commission acknowledged the virtues of independence, credibility, and ­expertise as reasons for agency creation, combined with the fact that it enabled the Commission to concentrate on its core policymaking functions. This was, however, balanced by repeated references to the need to preserve and reinforce ‘the unity and integrity of the executive function’ to ensure ‘that it continues to be vested in the chief of the Commission if the latter is to have the required responsibility vis-à-vis Europe’s citizens, the Member States and the other institutions’.136 The participation of agencies should therefore be ‘organised in a way which is consistent and in balance with the unity and integrity of the executive function and the Commission’s ensuing responsibilities’.137 The same language recurs later in the Communication, when the Commission considers the important issue of the composition of agency boards.138 The emphasis placed on the ‘unity and integrity of the executive function’ and its location in the President of the Commission was not fortuitous given the timing of the Communication. It was issued in 2002 during the deliberations in the Convention on the Future of Europe. The most divisive issue in the Convention deliberations concerned the location of executive power and whether this should reside in the Commission, or whether it should be divided between the Commission and European Council. The Commission lost that battle since the Constitutional Treaty and the Lisbon Treaty embody a regime of shared executive power.139 The Commission’s attachment to the ‘unity and integrity of the executive function’ with this continuing to be located in the Commission and its President nonetheless remained strong. The executive function with which it was vested included in principle all that occurred after passage of primary regulations, directives, etc. It was this conception that informed its opposition to management and regulatory committees, and

134  Majone (n 16). 135  Draft Interinstitutional Agreement on the Operating Framework for the European Regulatory Agencies, COM(2005) 59 final, Art 5(1). The Draft was withdrawn in 2009, [2009] OJ C71/17. 136  Operating Framework (n 8) 1. 137  Ibid 1. 138  Ibid 9. 139  P Craig, ‘European Governance: Executive and Administrative Powers under the New Constitutional Settlement’ (2005) 3 I-CON 407.

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its desire to replace them with other controls that might satisfy the Council and European Parliament, while leaving the Commission more autonomous in the making of legislative norms of a secondary nature.140 It is this same conception of the executive function that serves to explain its approach to agencies. It could accept agencies, such as OHIM and CPVO, with individual decision-making power in discrete fields. It could embrace information and coordination agencies, where it continued to have the final say. It was reluctant to create real ­regulatory agencies exercising discretionary power through adjudication and rulemaking, since if such power could be delegated then the Commission’s sense of the unity and integrity of the executive function vested in it would be undermined. This would be more especially so given that the agencies would have a degree of independence and that Member States would continue to exert considerable influence through membership of the administrative boards. The Meroni principle will be evaluated in detail when we consider the possibility of creating real regulatory agencies within the EU. Suffice it to say for the present that more recent developments reveal that the line between real regulatory agencies and quasi-regulatory agencies is becoming increasingly thin. The powers accorded to the EASA have been taken as the model for the even stronger quasi-regulatory powers accorded to the agencies established post the financial crisis. The reality is that these agencies draft the detailed regulatory instruments and although they have to be endorsed by the Commission there are strict legal and political constraints on the extent to which the Commission can diverge from the agency’s view.

7  Legal Control and Accountability (A)  The Agency Regulation The natural place to begin with respect to legal accountability is the regulation through which the agency is created. There are not surprisingly points of similarity and points of difference in these regulations. They are similar in that all agencies are given legal personality. The governing Regulation also makes provision for contractual and non-contractual liability. The former is determined by the law applicable to the contract and the relevant provisions will commonly provide that the CJEU has jurisdiction to give judgment pursuant to an arbitration clause contained in a contract concluded by the agency. In relation to non-contractual liability, the standard format is for the Regulation to replicate Article 340(2) TFEU within the body of the relevant Regulation: the agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by it or its servants in the performance of their duties.

140  Ch 5.

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The differences between the agency regulations are most marked in relation to l­ egality review. There is no standard provision akin to that concerning non-contractual liability. Some Regulations, such as those dealing with OHIM and EASA, contain detailed and explicit provisions on legality review, with a system of internal appeal to a Board of Appeals followed by legality review by the EU Courts.141 Other Regulations, such as that applicable to the EU Agency for Fundamental Rights, contain no provision for internal appeal, but state that the CJEU shall have jurisdiction in actions brought against the Agency under Article 263 TFEU.142 The format used in relation to the ECDC is different yet again, enabling a reference to be made to the Commission concerning the legality of the Centre’s action, explicitly backed by the possibility of recourse to the EU Courts to annul the Commission decision.143 The approach taken in the EU-OSHA Regulation is similar, in the sense that it embodies a system of legality review by the Commission, the difference being that there is no explicit reference to further recourse to the CJEU,144 although the EU Courts would have little difficulty in reading this into the Regulation, since the Commission decision on legality would be an act with legal effects and hence reviewable. In some other instances, such as the EMEA, the Regulation contains no mention of legality review, although this is ­explicable because it is the Commission that makes the final decision and hence it can be reviewed in the normal manner. The regulations in relation to some other agencies, such as EMSA, ENISA, ERA, and CFCA, simply say nothing about legality review. The provisions pertaining to legal accountability in the agencies established by the Council are similarly diverse. It is common to find provisions concerning contractual liability, less common to find rules about non-contractual liability, and uncommon to find anything that relates to legality review.

(B)  The Treaty Given the diversity in the governing regulations pertaining to individual agencies, it is important to consider how far the general Treaty provisions concerning legality review can be used against agencies. Prior to the Lisbon Treaty Article 230(1) EC did not contain any explicit mention of agencies or other bodies among the list of those subject to review. The CFI nonetheless filled this gap in Sogelma.145 The CFI held that a Community agency was subject to judicial review, and relied on the principle in Les Verts:146 the Community was based on the rule of law and therefore judicial review should be available against all acts designed to have legal effects. There were, nonetheless, difficulties with respect to 141  Reg 2017/1001 (n 31) Arts 66–73; Reg 216/2008 (n 39) Arts 40–51; P Chirulli and L de Lucia, ‘Specialized Adjudication in EU Administrative Law: The Boards of Appeal of EU Agencies’ (2015) 40 ELRev 832. 142  Reg 168/2007 (n 46) Art 27(3). 143  Reg 851/2004 (n 41) Art 28. 144  Reg 2062/94 (n 32) Art 22. 145 Case T-411/06 Sogelma—Societá generale lavori manutenzioni appalti Srl v European Agency for Reconstruction (AER) [2008] ECR II-2771. 146  Case 294/83 Parti écologiste—‘Les Verts’ v Parliament [1986] ECR 1339, [23].

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agencies established by the Council under Pillar 3, as evidenced by the Eurojust case.147 The ECJ held that judicial review was not available to challenge the particular action complained of and was unwilling to follow the reasoning of Advocate General Maduro and apply the reasoning in Les Verts to what was Article 35 EU. The Lisbon Treaty has simplified the position. Article 263(1) TFEU now explicitly states that the EU Courts can review the legality of acts of bodies and agencies, albeit providing in Article 263(5) that the governing provision for an agency can lay down the more detailed procedures for actions brought by private parties. Moreover, the Pillar system has been dropped from the Lisbon Treaty, with the consequence that the Area of Freedom Security and Justice is subject to the normal Treaty rules, including those of judicial review. The very fact that agencies are now expressly amenable to review influenced the CJEU’s reasoning in the ESMA case.148

(C)  Targeting Judicial Review If judicial review is to be effective, it must be capable of being applied to the institution that made the operative decision. This will not normally be a problem, since either the agency or the Commission will be subject to review in the manner considered earlier. This can, however, be more problematic in relation to those agencies, such as the EMA, where the Commission makes the formal decision, but is heavily reliant on the views of the agency, or one of its committees. It might be thought that if the Commission is amenable to review then this will suffice, since it makes the formal decision. The reality is that in most instances the Commission will simply adopt the agency’s recommendation, and it is intended that this should be so. If review is to be effective, it is necessary for the EU Courts to be able to go behind the Commission decision and consider the agency’s reasoning. The agency itself must be susceptible to review even though it is not the formal author of the decision. The CFI took just this step in Artegodan, which was concerned with withdrawal of authorization to market medicinal products containing ‘amphetamine-like’ anorectic agents, used in the treatment of obesity by accelerating the feeling of satiety.149 The Commission had relied on findings made by the Committee for Proprietary Medicinal Products (CPMP), one of two committees that undertake the scientific work for the EMA. While the Commission was not bound by its opinion, the CFI stressed the importance of the mandatory consultation with the CPMP laid down by the relevant Directive. Given that the Commission could not assess for itself the safety or efficacy of the product, consultation with the CPMP was necessary to give the Commission the scientific evidence from which it could make a reasoned decision.150 The CFI then held that the ‘Community judicature may be called on to review, first, the formal legality of 147  Case C-160/03 Spain v Eurojust [2005] ECR I-2077. 148  Case C-270/12 UK v Council and Parliament (n 81). 149  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan GmbH v Commission [2002] ECR II-4945. 150  Ibid [198].

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the CPMP’s scientific opinion and, second, the Commission’s exercise of its discretion’, in deciding whether to accept that opinion.151 While the CFI acknowledged that it could not substitute its view for that of the CPMP, it could consider its reasoning and whether there was an understandable link between the medical evidence relied on by the CPMP and its conclusions. It was, moreover, incumbent on the CPMP to refer to the main scientific reports on which it had relied and to explain why it disagreed with, for example, divergent scientific opinion presented by the undertakings concerned in the case.152 The case will be examined in more detail later, within the general context of judicial review. Suffice it to say for the present that the logic of the CFI’s reasoning is unassailable: since the Commission would normally follow the opinion of the scientific committee, and had done so in this case, if judicial review was to be meaningful the CFI should be able to consider the CPMP’s reasoning.153

(D)  Applying Judicial Review The discussion thus far has been concerned with the foundations for legal accountability, whether in the agency regulation or the Treaty, and the targeting of judicial review at the institution or institutions that made the contested decision. This still leaves the all-important issue about the application of the precepts of judicial review to the agencies. The chapters in the second half of this book discuss these matters in detail and reference should be made to those for consideration of the procedural and substantive principles of judicial review that are available to an applicant.

8  Political Control and Accountability There is a large literature on control and accountability.154 Commentators take differing views as to the terrain covered by these terms respectively. Bovens has distinguished between broad and narrow conceptions of accountability.155 He acknowledges that some use accountability in a broad sense to connote matters such as transparency,

151  Ibid [199]. 152  Ibid [199]–[200]. 153  The CFI’s decision was upheld on appeal, but the ECJ did not consider this particular issue, Case C-39/03 P Commission v Artegodan GmbH [2003] ECR I-7885. 154  See, eg, T Bergman and E Damgaard (eds), Delegation and Accountability in the European Union (Frank Cass, 2000); C Harlow, Accountability in the European Union (Oxford University Press, 2002); R Mulgan, Holding Power to Account: Accountability in Modern Democracies (Palgrave, 2003); M Bovens, D Curtin, and P ‘t Hart (eds), The Real World of EU Accountability: What Deficit? (Oxford University Press, 2010); M Busuioc, European Agencies: Law and Practices of Accountability (Oxford University Press, 2013); P Craig, ‘Accountability’ in A Arnull and D Chalmers (eds), The Oxford Handbook of European Union Law (Oxford University Press, 2015) Ch 17. 155  M Bovens, ‘Analyzing and Assessing Public Accountability: A Conceptual Framework’ (2007) 13 ELJ 447.

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controllability, responsiveness, responsibility, and liability. His preference, nonetheless, is for a more discrete use of accountability, to denote ‘a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences’.156 Accountability in this sense operates ex post, as distinct from control which will often operate ex ante. This sense of accountability is also distinct from issues such as responsiveness and participation. Curtin has, moreover, emphasized the limits of the principal–agent model in assessing accountability of EU agencies.157 The analysis that follows considers a variety of factors that impact on political ­control and accountability of EU agencies. The same issue may well be pertinent at more than one level. Thus, for example, agency composition may have implications for ex ante control and for ex post accountability. It should, moreover, be recognized that formal provisions in agency regulations only take one so far, with the consequence that the reality of the control and accountability between agencies and other institutional players may only be discerned by closer empirical observation of the agency’s workings.158

(A)  Agency Tasks, Criteria, and Reporting It is fitting to begin by considering how far the enabling regulation specifies the ­agency’s tasks and criteria for their attainment. This is important, but is often overlooked in discussion of EU agencies. The basic point is simple: the greater the specification of agency objectives and criteria for attainment, the greater the control exercised over agency choices by the legislature. Vague injunctions as to what the agency is intended to do, coupled with criteria set out at a high level of abstraction, will, other things being equal, leave more power to the agency. This point is especially important where the agency has decision-making power, and even more so where it is accorded discretionary power to make rules and individual decisions. Concerns of this nature have been voiced about grants of power to agencies in the US, leading some to call for revival of the non-delegation doctrine, compelling Congress to set out more specifically the criteria to be used by the agency when making decisions, although the courts have not generally responded to this call.159 Legislative specification of tasks and criteria for their fulfilment are nonetheless ­relevant for EU agencies, a point emphasized in external evaluation of agency 156  Ibid 450. See also M Bovens, P ’t Hart, and T Schillemans, ‘Does Public Accountability Work? An Assessment Tool’ (2008) 86 Pub Admin 225; M Busuioc, ‘Accountability, Control and Independence: The Case of European Agencies’ (2009) 15 ELJ 599; M Bovens, ‘Two Concepts of Accountability: Accountability as a Virtue and as a Mechanism’ (2010) 33 West European Politics 946. 157  D Curtin, ‘Holding (Quasi-)Autonomous EU Administrative Actors to Public Account’ (2009) 13 ELJ 523; D Curtin, ‘Delegation to EU Non-Majoritarian Agencies and Emerging Practices of Public Accountability’ in D Geradin, R Muñoz, and N Petit (eds), Regulation through Agencies in the EU: A New Paradigm of European Governance (Edward Elgar, 2005) 88–119. 158  Busuioc (n 156). 159  A Aman and W Mayton, Administrative Law (West, 2nd edn, 2001) 9–36.

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­ erformance.160 This is particularly so for those that have decision-making power, but p it is also apposite for quasi-regulatory and information/coordination agencies. The tasks of these agencies include advising the Commission on legislative initiatives and hence the criteria that should inform such advice remain important. It is impossible within the scope of this chapter to examine all agencies to see how they measure up in this regard. That would require a paper in its own right. Suffice it to say for the present that the general pattern is that the basic agency regulation establishes tasks and criteria for their fulfilment with some real specificity. This is so notwithstanding the fact that the subject matter dealt with by some agencies necessarily leaves interpretive power to the agency to determine whether the criteria have been met. The basic regulation will, moreover, contain provision for implementing regulations to be made to flesh out certain provisions. These regulations are made by the Commission. The agency will contribute to this process, and the more technical the nature of the subject matter, the greater the degree of agency involvement. Thus in the context of aviation safety the two main EASA implementing regulations, which run to 79 and 165 pages respectively, consisted almost entirely of detailed annexes drafted in large part by the EASA. The specification of agency tasks and criteria for their fulfilment has an impact ex ante on the degree of control exercised by the legislature over agency choices. The obligation to report provides some accountability ex post facto. The general pattern is for the regulation to require the agency to send an annual report to the European Parliament, Council, and Commission, and in some instances to the Member States, European Economic and Social Committee (ECOSOC), and the Committee of the Regions. Some agency regulations contain more far-reaching provisions. Thus, for example, the EASA Regulation provides that the European Parliament or Council may invite the director to report on the carrying out of his or her tasks,161 and the ERA Regulation states that the Council and European Parliament can call for a hearing with the agency director at any time.162

(B)  Agency Composition The extent to which agencies can be controlled and held accountable is dependent in part on their composition. Those familiar with the US system will be familiar with changes in agency policy resulting from a new agency head appointed when a President of a different political party takes office. The reality is that no single institution wields this degree of power over agency membership in the EU. The general structure of EU agencies is for there to be an administrative, governing, or management board, an executive director, and in some agencies an advisory forum or a body akin thereto. Control over agency membership is important in any system.

160  Budget Directorate General, Evaluation Unit, Meta-Evaluation on the Community Agency System (2003). 161  Reg 216/2008 (n 39) Art 38(2). 162  Reg 2016/796 (n 43) Art 54(3).

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The Commission has sought to increase its power in relation to management boards and the director of the agency, but it has not been notably successful in this regard. The administrative, governing, or management board will normally have the following responsibilities. It will have a role in the appointment of the director of the agency; it adopts the agency’s annual work programme, as proposed by the director; it has overall responsibility for ensuring that the agency performs its tasks; it may play a role in defining the agency’s strategic orientation; and it adopts the annual report on the agency and its financial rules. More recent agency regulations place increased ­emphasis on board members possessing the skills relevant to the area. The board meets twice a year, but there is provision for further meetings at the request of the Chairman, or some of the board members, the normal requirement being two-thirds. Each board member has one vote, and the norm is to require two-thirds majority for management board decisions. The effect is that state equality, in formal terms at least, applies within management boards of agencies. It is interesting to speculate on whether there would be pressure for this to change if agencies were accorded discretionary powers coupled with the authority to make binding rules and decisions. The composition of these boards is important. The paradigm has been for Member State interests to dominate. Thus it was common for agencies created in the 1990s to have one or two representatives from each Member State, somewhere between one and three from the Commission, one or two from the European Parliament, and in some instances representatives from employer and employee organizations. The Commission expressed dissatisfaction with this practice, stating that it failed to take sufficient account of the Community dimension and hence gave insufficient attention to the importance of preserving the unity and integrity of the executive function at European level. It argued in favour of smaller management boards on which it, the Commission, would have a greater percentage of representatives. It pressed for a ­fifteen-member management board, where there would be six Council representatives, six from the Commission, plus three representing interested parties who would have no voting rights.163 The Commission has not been notably successful in this regard. The general pattern for agencies created since the Commission’s Communication in 2002 has continued the same practice as hitherto, with a representative from each Member State, between one and four from the Commission, and some expert professionals in the relevant area, who commonly do not have the right to vote.164 The Commission may, however, wield influence beyond its numerical force.165 The closest that the Commission has come to fulfilling its aspirations has been in relation to amendments to the governing board of

163  Operating Framework (n 8) 9; Draft Interinstitutional Agreement (n 135) Art 11(2). 164  See, eg, Reg 1406/2002 EMSA (n 38) Art 11; Reg 216/2008 EASA (n 39) Art 34; Reg 526/2013 ENISA (n 40) Art 6; Reg 851/2004 ECDC (n 41) Art 14(1); Reg 1093/2010 EBA (n 50) Art 45(2); Reg 1095/2010 ESMA (n 49) Art 45(2). 165  Busuioc (n 156).

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EU-OSHA, an older agency.166 The financial supervisory agencies have by way of contrast diminished the Commission’s role in the decision-making process. There is a powerful Board of Supervisors composed of Member State representatives, with only one member from the Commission who has no vote,167 and the management board is composed of the Chairperson plus six other members of the Supervisory Board, and once again there is only one Commission member of the management board who has no vote.168 It is, moreover, noteworthy that the 2012 Common Approach endorsed a general approach to the composition of management boards that emphasized the status quo, in terms of a representative from each Member State, and two members from the Commission.169 The agency director is central to the running of the organization. The incumbent has a number of functions including oversight of the day-to-day work of the agency, drawing up the agency work programme, implementing that programme, budgetary responsibility, and the preparation of the annual report of the agency’s activities. Appointment is normally either by the management board on a proposal from the Commission, or by the Commission on the basis of candidates put forward by the management board. The Commission argued that the latter should be used in relation to those bodies with formal decision-making powers, since it was especially important in such contexts that the director had the Commission’s confidence.170 The reality is that appointment by the management board is the norm, and this has continued to be so even in relation to agencies that have decision-making power. This approach was endorsed in the 2012 Common Approach, subject to the caveat that the candidates should be selected from a list drawn up by the Commission.171 The method of appointment whereby the Commission provides the list of candidates to the agency still leaves the Commission with power over choice of the agency director. The extent of this power has, however, been qualified by three related developments in the regulations governing third-generation agencies. There has been an increased emphasis on the need for the agency director to be independent and to possess the skills relevant to the agency’s area.172 There is provision for the Commission’s list of candidates to be produced after an open competition for the post, which must be advertised in the Official Journal and other relevant sites. There is, moreover, a requirement that the person chosen by the management board as a result of this process must appear before the European Parliament before being formally appointed, make a statement concerning his or her vision for the agency, and answer questions.173 The discussion thus far has been concerned with agencies established under the Community Pillar. Matters were not surprisingly different for Council agencies 166  Reg 1112/2005 (n 98) Art 1(5) amending Reg 2062/94, Art 8. 167  Reg 1093/2010 (n 50) Art 40(1). 168  Ibid Art 45(2). 169  Joint Statement (n 63) [10]. 170  Operating Framework (n 8) 10. 171  Joint Statement (n 63) [16]. 172  Reg 1406/2002 EMSA (n 38) Arts 15–16; Reg 216/2008 EASA (n 39) Art 39; Reg 526/2013 ENISA (n 40) Art 11; Reg 851/2004 ECDC (n 41) Art 16. 173  Reg 178/2002 EFSA (n 37) Art 26; Reg 526/2013 ENISA (n 40) Art 24(2); Reg 851/2004 ECDC (n 41) Art 17.

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e­ stablished under what were Pillars 2 and 3, where Member State control over the decision-making process was more pronounced.

(C)  Agency Work Programme The rules concerning agency composition are important for the reasons considered earlier. The extent to which an institution external to the agency is able to exert influence over its work programme is equally significant. Most of the regulatory schemes accord the Commission some input to the agency’s work programme over and beyond that flowing from its membership of the management board, although the precise degree varies from agency to agency. The 2012 Common Approach stipulated that the annual work programme and the multi-annual programme should be drawn up by the agency, subject to consultation and advice from the Commission.174 The provisions in relation to the EMSA give the Commission the greatest influence in this respect. The administrative board adopts the agency’s work programme for the coming year and forwards it to the Member States, the European Parliament, the Council, and the Commission. Where the Commission expresses within fifteen days from the date of adoption of the work programme its disagreement, the administrative board must re-examine the programme and adopt it, possibly with amendments within two months. There must be a two-thirds majority, including the Commission representatives, or unanimity of the Member State representatives on the administrative board for this second reading.175 The same provisions apply to Commission control over the ERA’s176 and the CFCA’s177 work programme. The EMA Regulation falls at the other end of the scale. It stipulates that the director prepares the draft programme of work for the coming year, which is then adopted by the management board and forwarded to the Member States, Commission, Council, and European Parliament.178 There is no explicit provision for any privileged role for the Commission concerning the annual work programme of the kind that exists in the EMSA Regulation. Similarly the EBA Regulation provides for the work programme to be adopted by the Board of Supervisors, which is then transmitted for information to the Commission, Council, and European Parliament.179 The EFSA Regulation occupies an intermediate position. It is for the management board to adopt the annual work programme. There is no mention at this level of any Commission involvement, over and beyond its membership of the board, albeit there is an injunction that the programme should be consistent with the EU’s legislative and policy priorities in the area of food safety and this would serve to give the Commission some leverage. The Commission is in any event accorded influence because the ­director who drafts the annual work programme does so in consultation with the Commission.180 174  Joint Statement (n 63) [28]–[29]. 175  Reg 1406/2002 (n 38) Art 10(2)(d). 176  Reg 2016/796 (n 43) Art 52(2). 177  Reg 768/2005 (n 44) Art 23(2)(c). 178  Reg 726/2004 (n 30) Arts 64(3), 65(9), 66(d). 179  Reg 1093/2010 (n 50) Art 43(6). 180  Reg 178/2002 (n 37) Arts 25(8), 26(2)(b).

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The Regulation governing the EASA exemplifies another intermediate position, stipulating that the management board shall adopt the annual work programme after receiving the Commission’s opinion, and then forwarding it to the European Parliament, Council, Commission, and Member States.181 This is perhaps the most common ­‘format’ in use. There is little doubt that the regulatory provisions concerning EMSA give the Commission some real leverage over the annual work programme. It is, nonetheless, difficult to determine in reality how much influence the Commission brings to bear over this programme and equally difficult to assess whether there is any causal relationship between the different legal provisions and the degree of influence wielded by the Commission. The empirical evidence indicates that the formal legal provisions are an imperfect guide as to the extent of Commission influence over the agency work programme.182 It is likely that if the Commission feels sufficiently strongly about the direction of an annual work programme and has been unable to get it revised through its members on the management board, then it will seek to exert influence from the outside irrespective of the precise provisions of the particular regulation. The situation in relation to Council agencies was different. The norm was that the board adopted the annual work programme that had been drafted by the director of the agency. There was no formal provision for the Commission to be consulted on this draft by the director or by the board. This was unsurprising given that these agencies were dominated by Member State representatives.

(D)  Agency Transparency Transparency is properly regarded as an important attribute of public decision-­ making. There is both diversity and some degree of uniformity in relation to agencies and transparency. There is diversity in the sense that agency regulations differ considerably as to the extent to which they mention transparency. This may be partly explained by the fact that the agencies deal with different subject matter and that transparency may be relatively more or less important in some areas than others. This explanation is, however, unconvincing, given that basic precepts of transparency are important in all public decision-making. The EFSA Regulation on food safety is an example of transparency being accorded a high status. The EFSA is instructed to carry out its mission with transparent procedures.183 It is told more specifically to make public without delay agendas and minutes of the Scientific Committee and Scientific Panels; the opinions of these bodies immediately after adoption, including minority opinions; the information on which its opinions are based; annual declarations of interest by the management board, director, and others; the results of scientific studies; the annual report of its

181  Reg 216/2008 (n 39) Art 33(2)(c). 183  Reg 178/2002 (n 37) Art 22(7).

182  Busuioc (n 156).

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activities; and requests from the European Parliament, Commission, and Member States for scientific opinions that have been refused or modified, together with justification.184 The Regulation also provides that the management board shall generally meet in public and that it may authorize consumer representatives or other interested parties to observe some of the EFSA’s activities.185 A number of other agency regulations contain provisions about transparency,186 albeit not in the detail of the EFSA Regulation. There is, however, uniformity in relation to the aspect of transparency dealing with access to documents. Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices, and agencies shall conduct their work as openly as possible. Article 15(3) TFEU provides a right of access to documents held by the EU institutions including agencies, subject to limits on grounds of public or private interest. A Regulation was introduced specifying the nature of these conditions and limits.187 It will be examined in more detail in a later chapter.188 This Regulation has been applied to agencies. They must also ensure that their proceedings are transparent and must elaborate in their Rules of Procedure provisions regarding access to their documents.

(E)  Agency Networks A theme that appears repeatedly in the agency regulations is that of network,189 connoting the idea that the agency should interact with other key players, whether at national, regional, or international level. In many of the regulatory schemes the network concept is explicit and formalized, as exemplified by the EFSA and food safety. The original Regulation stipulated that the  EFSA should promote the networking of organizations operating in fields that came within the EFSA’s mission, in order to facilitate scientific cooperation through ­coordination of activities, exchange of information, expertise, and the like. Detailed implementation of this idea was to be carried through by a Commission Regulation,190 which was enacted.191 It established the criteria for organizations that are to take part in the network. They must, for example, have scientific expertise in the relevant area 184  Ibid Art 38(1). 185  Ibid Art 38(2). 186  See, eg, Reg 1406/2002 EMSA (n 38) Art 4(2); Reg 526/2013 ENISA (n 40) Art 16; Reg 851/2004 ECDC (n 41) Arts 19–20; Reg 1093/2010 EBA (n 50) Art 81(1)(f). 187  Regulation (EC) 1049/01 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission Documents [2001] OJ L145/43. 188  Ch 12. 189  P Craig, ‘Shared Administration and Networks: Global and EU Perspectives’ in G Anthony, J-B Auby, J Morison, and T Zwart (eds), Values in Global Administrative Law: Essays in Honour of Spyridon Flogaitis and Gerard Timsit (Hart, 2011) Ch 4. 190  Reg 178/2002 (n 37) Art 36. 191  Commission Regulation (EC) 2230/2004 of 23 December 2004 laying down detailed rules for the implementation of European Parliament and Council Regulation (EC) 178/2002 with regard to the networking of organisations operating in the fields within the EFSA’s Mission [2004] OJ L379/64.

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and pursue public interest objectives. It is for the Member States to designate competent organizations from their country. The EFSA will check that they meet the relevant criteria. The EFSA fosters networking with these organizations with the help of the Advisory Forum. The Regulation specifies tasks that can be entrusted to organizations on the list, including: dissemination of best practices; collecting and analysing specific data with a view to facilitating risk assessment by the EFSA; producing scientific data contributing to risk assessment; preparing the EFSA’s scientific opinions; and preparing the harmonization of risk-assessment methods. Networks are accorded an explicit role in relation to many other agencies. The ­following are simply examples. Thus, one task accorded to EU-OSHA is to establish, in cooperation with the Member States, and coordinate a network of organizations, taking into account the national, EU, and international bodies providing the type of information concerning health and safety at work that falls within EU-OSHA’s remit. The agency is enjoined to establish a network comprising principal components  of national information frameworks, including social partners’ organizations, national focal points, and future topic centres, in order to exchange information and coordinate initiatives.192 The EASA Regulation makes provision for an information network between the agency, the Commission, and national aviation authorities. Networking is  evident once again in the fact that the agency can enlist the help of national ­aviation  authorities in the issuing of airworthiness certificates, drawing on their expertise in this area, and can work with such national authorities in relation to investigation and enforcement.193 Networking is central to the work of the ECDC, in order for it to be aware of and be able to fight disease. The ECDC therefore interacts with and draws information from national bodies, and promotes cooperation between them.194  The remit accorded to the EMSA to provide for maritime safety, maritime security, and the prevention of pollution necessitates significant interaction between the agency and national authorities in relation to a whole range of matters.195 Networks are also a prominent feature of many of the Council agencies established under Pillars 2 and 3. It is clear that networking makes a good deal of practical sense. It fosters c­ ooperation between national and Union authorities dealing with the same terrain, avoids duplication of effort, and facilitates exchange of information, expertise, and best practice. These benefits are especially significant for those agencies concerned with collation of information and coordination. Networking is equally important for agencies such as the EASA and EMSA, which have been established to foster safety and security in their area. The discharge of these responsibilities not only requires information flows between relevant players at national, EU, and international level. It also necessitates interaction when it comes to matters such as criteria for airworthiness, inspection, and enforcement. The agency model provides a fitting mechanism through which such 192  Reg 2062/94 (n 32) Arts 3(1)(f), 4, as amended by Reg 1112/2005 (n 98). 193  Reg 216/2008 (n 39) Arts 10, 15. 194  Reg 851/2004 (n 41) Arts 5–10. 195  Reg 1406/2002 (n 38).

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­ etworking can take place. It enables the EU to establish a body to act as the focal point n for the network. Scholars have highlighted the benefits of networking and the way in which it is facilitated by the agency model,196 although some are more cautious about the utility of the network concept for explicating the nature of the agency administrative regime.197 The fact that networking is efficacious does not in and of itself tell one much if anything about its implications for political control and accountability. This is in part because so much depends on the type of networking that operates within a particular agency regime, and because networking can have countervailing implications for ­control and accountability. Thus the existence of the type of network that characterizes EU agencies renders control from and accountability to the top more difficult. The very fact that there are multiple players involved (national, sub-national, international, non-governmental), as well as the Union agency, means that implementation of the agency’s agenda may be shaped by these players, who may have an impact on the agenda itself and not merely its implementation. It may moreover, as Shapiro notes, be difficult to differentiate between expert input and policy preference, or to know what the preferences of the other players actually are and how they factor into the practicalities of implementation or shape the policy agenda.198 It is, however, also possible to argue that while networks render control from and accountability to the top more difficult, they nonetheless have other benefits. The inclusion of multiple players, in addition to the agency and the formal Union institutions, could be said to facilitate more pluralist, participatory forms of governance. We should not forget why state, regional, international, and non-governmental parties are included in the networks. They have things to offer, such as expertise and information; they may be concerned with the same problems and hence duplication of effort can be avoided; and their assistance may be required for the agency regime to be operational on the ground. There is, therefore, an admixture of instrumental and non-instrumental reasons for  the involvement of other parties in the development and application of agency policy. The instrumental rationale is that it is hoped that a better policy will result if the  views of those with expertise etc are taken into account. This is complemented by  the non-instrumental rationale, that participation of these parties within agency ­decision-making will enhance their involvement with the polity and render the results more acceptable.

196  Dehousse (n 14); K-H Ladeur, ‘The European Environment Agency and Prospects for a European Network of Environmental Administrations’, Working Paper RSC No 96/50, EUI (1996); T Borzel, ‘Policy Networks—A New Paradigm for European Governance?’, Working Paper RSC 97/19, EUI (1997); T Borzel, ‘Rediscovering Policy Networks as a Form of Modern Governance’ (1998) 5 JEPP 354. 197  Chiti, ‘Emergence’ (n 80) 329–31; Chiti, ‘Decentralisation’ (n 80) 425–8. 198  Shapiro (n 12) 286–7.

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(F)  Agency Participation There is a proximate connection between networks and participation in agency ­decision-making. Networks enable those who are interested in the agency’s work to participate therein. Participation is, nonetheless, a topic in its own right, since there may be parties that are not part of any network, who wish to have their voice heard on a particular issue. A number of agency regulations make reference to participation/consultation. The EMA provides that Member States and interested parties should be consulted when it draws up guidance on the form in which applications for authorization should be presented and on the collection and presentation of adverse reaction reports.199 ENISA is instructed to engage with interested parties in the context of risk management.200 The EFSA Regulation stipulates that there shall be open and transparent public c­ onsultation during the preparation, evaluation, and revision of food law, except where urgency precludes this.201 The EASA is enjoined to consult interested parties and respond to their comments.202 It is, however, necessary to press beyond the bare regulations to appreciate the reality of agencies and participation. It is clear, for example, that the EFSA makes frequent use of consultations on an ad hoc basis. It is equally clear that the EASA has the best developed practice in this respect. We have touched on the EASA’s rulemaking programme in the previous discussion. The rulemaking procedures are impressive. The EASA publishes an annual rulemaking programme, and any person can propose that an item be included.203 The terms of reference of a particular rule are then set out, explaining the nature of the problem to be addressed, followed by the draft rule, in relation to which the agency conducts a regulatory impact assessment. Notice of the proposed rule is posted on the website and any person can comment through a standardized form. The comments are then aggregated in a comment response document (CRD), enabling interested parties to gain an overview of comments put forward by others.204 These comments are then used by the drafting group when finalizing the rule. The drafting group may be reinforced by additional members, including those who dissented from the draft rule. The entire rulemaking process is easy to access and follow. It could well serve as a model in other related areas.205 The primary regulations for the financial supervisory agencies contain detailed obligations to consult, and it remains to be seen how the agencies structure such participation.

199  Reg 726/2004 (n 30) Arts 26, 51. 200  Reg 526/2013 (n 40) Art 12. 201  Reg 178/2002 (n 37) Art 9. 202  Reg 216/2008 (n 39) Art 52. 203 https://www.easa.europa.eu/document-library/rulemaking-process-overview/rulemaking-explained; https://www.easa.europa.eu/sites/default/files/dfu/EASA%20MB%20Decision%2018-2015%20on%20 Rulemaking%20Procedure.pdf. 204 http://easa.europa.eu/rulemaking/comment-response-documents-CRDs-and-review-groups.php. 205  Reg 1093/2010 (n 50) Arts 10, 15; Reg 1095/2010 (n 49) Arts 10, 15; Reg 1094/2010 (n 51) Arts 10, 15.

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9  Financial Control and Accountability Financial accountability is important for any public institution. The original agency regulations contained provisions about budgets, revenue, and the like. These have now  been amended and made more uniform. The catalyst for this change was the new Financial Regulation,206 considered in a previous chapter,207 Article 185 of which ­stipulated that a further regulation should be made applying relevant principles of the Financial Regulation to Community bodies that have legal personality and received grants charged to the budget. This Regulation was enacted in 2002,208 and the current version dates from 2013.209 It leaves certain choices open to agencies, but nonetheless closely structures and confines their options. The budgetary principles of unity, annuality equilibrium, universality, specification, sound financial management, and transparency contained in the Financial Regulation are made applicable to EU bodies,210 as are the important rules concerning budget implementation. The division between authorizing and accounting officer, which was central to the new Financial Regulation, is extended to these bodies. The director is presumptively the authorizing officer for the agency, although he can delegate these powers to a staff member who comes within the Staff Regulations.211 The authorizing officer is responsible for implementing revenue and expenditure commitments in accordance with the principles of sound financial management and for ensuring that requirements of legality and regularity are met.212 Financial control systems must be put in place. The authorizing officer is the key figure in the financial regime. Every item of expenditure has to be committed, validated, authorized, and paid. Budgetary commitment must precede legal commitment, and it is the authorizing officer who does both. The authorizing officer is responsible for validating the expenditure, which entails verification that the relevant task has been performed and the amount of the claim.213 The officer then authorizes the expenditure, although the actual payment is made by the accounting officer.214 There are numerous checks built into the system. Before any particular operation is authorized it must be verified ex ante by a staff member other than the one who initi206  Council Regulation (EC, Euratom) 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities [2002] OJ L248/1; Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 [2012] OJ L298/1. 207  Ch 3. 208  Commission Regulation (EC, Euratom) 2343/2002 of 23 December 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) 1605/2002 [2002] OJ L357/72. 209  Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council [2013] OJ L328/42. 210  Ibid Arts 5–28. 211  Ibid Arts 39–40. 212  Ibid Art 39. 213  Ibid Arts 44–46. 214  Ibid Art 50.

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ated the operation.215 The controls ex post are dealt with by a different person yet again.216 There is provision for a staff member to blow the whistle if the person believes that he or she is being required to agree to something by a superior that is irregular or contrary to principles of sound financial management and this applies a fortiori in the event of illegality, corruption, or fraud.217 There are provisions requiring the authorizing officer to pay compensation if expenditure is authorized that does not comply with the Financial Regulation and the implementing rules.218 Where power is ­delegated the director as the original authorizing officer remains responsible for the effectiveness of the internal management and control systems put in place and for the choice of the person to whom the power has been delegated.219 There is an internal audit regime, and the internal auditor advises the agency on matters such as internal management and control systems.220 This is complemented by external audit through the Court of Auditors,221 and the requirement of budgetary discharge exercised by the European Parliament on recommendation from the Council.222 In addition to these financial controls, it is now common practice to specify that the agency is subject to investigation by the European Anti-Fraud Office (OLAF), thereby providing a further check on fraud. These rules are likely to have an impact on agency decision-making that goes beyond financial accountability per se. The authorizing officer is responsible for the budgetary and legal commitment on expenditure; he or she is responsible for validating the expenditure; and it is the authorizing officer that issues the payment order. It means that the agency director as authorizing officer will be acutely aware of agency decisionmaking that involves any expenditure and mindful of the penalties that can flow if errors are made. The director is, as we have seen, responsible for the day-to-day running of the agency and the planning of its work agenda. The financial rules locate, subject to any delegation, financial responsibility with the director. This conjunction of responsibilities is likely to be beneficial for the smooth running of agencies, ensuring that policy and financial planning/implementation are closely linked, and that the director maintains control over the agency, notwithstanding the networks that feed into it. It also facilitates oversight by the management board, which has the power to adopt the work programme and budget, both of which will have been drafted by the director.

10  The Current Agency Regime (A)  The Current Regime Agencies have become a settled feature of the EU’s institutional landscape. There are controls and mechanisms designed to foster accountability from the top and the 215  Ibid Art 45(5). 219  Ibid Art 44(2).

216  Ibid Art 46(3). 220  Ibid Arts 82–84.

217  Ibid Arts 39, 48, 53. 221  Ibid Arts 107–111.

218  Ibid Art 53. 222  Ibid Art 109.

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bottom. These are not perfect, and agencies could learn much from exchange of ‘best practices’ in relation to matters such as procedures, transparency, and consultation. While there is room for improvement, the existing regime, when viewed with the financial provisions, secures a reasonable measure of accountability. External e­ valuation of agency performance has been quite positive, albeit with some recommendations for improving agency efficiency and internal agency management structures.223 It should, moreover, be remembered, as Dehousse forcefully reminds us, that prior to the Lisbon Treaty the alternative to agencies was not a genuine political dialogue between Council and Parliament, but regulation through yet another Comitology committee with the problems that this entails.224 It is difficult to argue that Comitology fared better than agencies judged by the accountability criteria considered earlier.225 The Commission view is that agencies will remain part of the institutional landscape. This is clear from its 2005 Draft Interinstitutional Agreement226 and from its 2008 Communication ‘The Way Forward’ for agencies.227 Both documents are premised on the continuation of the existing limits to the powers that can be accorded to agencies. Thus the 2008 Communication states that there are ‘clear and strict limits to the autonomous power of regulatory agencies in the current Community legal order’ and that they cannot be given ‘power to adopt general regulatory measures’.228 The 2005 and 2008 documents also reveal Commission frustration at the failure to secure institutional agreement on issues that it regards as central, such as membership and voting on agency management boards. Thus the Commission notes that it is always in the minority on management boards, and that sometimes does not even have a vote, which in the words of the Commission ‘raises issues as to the extent to which it can be held accountable for decisions taken by agency’.229 The 2012 Common Approach, nonetheless, saw some accommodation between the Commission, European Parliament, and the Council as to the principles that should govern agency creation and operation.230

(B)  The Current Regime Modified We should be fully mindful of the changes in the existing agency regime. The rulemaking power accorded to bodies such as the EASA has been further reinforced in the regulations concerning the financial supervisory authorities. The EBA, ESMA, and EIOPA are all accorded power to enact draft delegated acts, and the strong assumption, both legally and politically, is that these norms will be accepted by the Commission. The ‘gap’ between real regulatory agencies and those in the EU has narrowed over time, given that the degree of rulemaking and decisional power granted to some EU agencies has increased.231 223  Meta-Evaluation (n 160). 224  Dehousse (n 14) 258. 225  Ch 5. 226  See n 135. 227  European Agencies—The Way Forward, COM(2008) 135 final. 228  Ibid 5. 229  Ibid 5. 230  Joint Statement (n 63). 231  See also E Chiti, ‘Decentralized Implementation: European Agencies’ in R Schütze and T Tridimas (eds), Oxford Principles of European Union Law, Vol I: The European Union Legal Order (Oxford University Press, 2018) 748, 771–5.

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There is, however, a further facet of the new agency regulations that warrants the appellation ‘modification of the agency regime’, which is less obvious than the increase in rulemaking competence accorded to the new financial agencies. It is, nonetheless, equally significant and concerns the very nature of the new financial supervisory agencies. These are EU agencies, but the decision-making structure is different from other such agencies. It is true, as we have seen earlier, that Member State interests have predominated on management boards, and this is so even though the Commission may well ‘punch above its weight’ in this respect. The novelty of the new financial regulatory agencies resides in the combination of their organizational structure and their powers. The decision-making is dominated by Member State representatives, who are not simply national middle-level technocrats seconded to the agency. The representative on the EBA is the head of the national public authority responsible for supervision of credit institutions, which is normally the national central bank. The representative on ESMA is the head of the national public authority with responsibility for credit institutions. These national representatives, together with a non-voting member of the Commission, constitute the agency board of supervisors, which is the top organ within each agency. The agency management board is composed of the agency head, plus six members of the supervisory board.232 It is the agency thus composed that drafts the regulatory standards. Thus, to take the EBA by way of example, the schema, as we have seen, is that where the primary regulation delegates power to the Commission to make delegated acts pursuant to Article 290 TFEU, it is the EBA that drafts these acts, which are then endorsed by the Commission, subject to the possibility of veto by the Council or the European Parliament in accordance with Article 290 TFEU.233 The recitals to the Regulation make it clear that the Commission should, however, amend the EBA draft regulation only in ‘very restricted and extraordinary circumstances’, the rationale being that the EBA has the expertise within this area.234 These sentiments are reflected in the Regulation. The Commission is only able to adopt a draft delegated act itself if the EBA has failed to do so within the time specified in the legislative act.235 The Commission must also give a reasoned explanation for departure from the EBA draft rule and cannot make any such change without discussion with the EBA.236 The legal, as well as political reality, is therefore that these EU agencies are run by the Member States through top-level national officials in a manner that is at the very least different in degree and arguably in kind as compared to other agencies. There is, moreover, something of a paradox here. The Commission pressed for the regime in Article 290 TFEU in order to rid itself of old-style management and ­regulatory committees from the realm of delegated acts. It was to have executive autonomy over delegated acts subject to the ex ante and ex post controls in Article 290. It is acknowledged that Comitology committees no longer operate in relation to delegated acts, and are confined to implementing acts, subject to the caveats made in the preceding chapter. 232  See, eg, Reg 1093/2010 (n 50) Arts 40–49. 233  Ibid Arts 10, 13. 234  Ibid rec 23.    235  Ibid Art 10(3).    236  Ibid Art 10(1).

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The legal and political reality of the new financial regulatory agencies is, however, that Member State influence continues to dominate in the making of d ­ elegated acts within this sphere. These bodies are not Comitology committees, they are agencies. The ­reality, nonetheless, is that the Member State representatives on the agencies make the rules, and the Commission is tightly constrained, both legally and politically, in terms of any amendment to such draft regulatory acts.

11  Future Agency Regime It is readily apparent from the preceding discussion that the EU has edged ever-closer to the creation of real regulatory agencies, with discretionary power that can be exercised through formally binding individual decisions and rulemaking. It is, nonetheless, important to consider the implications of such a development.

(A)  Rationale for EU Agencies The natural starting place is to consider how far the loosening of the Meroni constraints would affect the rationale for EU agencies. The Meroni principle has generally had a ‘bad press’, at least in the modern legal literature.237 It is seen as the block to the ­creation of true regulatory agencies that would be beneficial for decision-making in the EU. It is argued that if agencies were accorded real discretionary power then safeguards, such as an Administrative Procedure Act, fiscal oversight, and the like, could be put in place to ensure that the power was used properly. There is also a more moderate view in the  literature, which acknowledges the importance of retaining broad discretionary powers within the traditional EU institutions, but seeks nonetheless to loosen the Meroni constraints, while preserving agency accountability and legitimacy.238 It is important to reflect on the rationale for EU agencies if we loosen the Meroni constraints. We have seen that EU agencies were justified in terms of their expertise, the enhanced credibility that they bring to decision-making, their ability to foster networks with other interested parties, and the fact that they enable the Commission to concentrate on its core tasks of policy formation. The grant of real discretionary power to agencies, requiring them to balance competing public interests when making binding formal rules or individual decisions, would require re-evaluation of this rationale. Justifications cast in terms of expertise become weaker, since the agency accorded such new powers has less claim to expertise when it comes to balancing broad, competing public interests, or when deciding on, for example, the level of risk that is

237 M Everson, ‘Independent Agencies: Hierarchy Beaters?’ (1995) 1 ELJ 180; E Vos, ‘Reforming the European Commission: What Role to Play for EU Agencies?’ (2000) 37 CMLRev 1113; Majone (n 16). 238  Griller and Orator (n 80); J-P Schneider, ‘A Common Framework for Decentralized EU Agencies and the Meroni Doctrine’ (2009) 61 Admin LRev 29.

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acceptable within society. Agency technical expertise does not translate into specialist skills in balancing broad public interests. Scientific legitimacy is, as the CFI recognized in Pfizer, not the same as democratic legitimacy.239 The credibility argument captures the idea that by preserving technical regulatory issues from the vagaries of day-to-day political change the credibility of the choices thus made will be increased. If, however, agencies are accorded broad discretionary powers requiring them to balance competing public interests then it is by no means self-evident that such decisions should be insulated from political change expressed by and through the ordinary political process. Nor is it self-evident that EU agencies ­exercising such enhanced power would be viewed as more credible than majoritarian ­decision-making institutions. It follows that if the Meroni constraints were to be loosened this must be based on an argument that transcends that made for existing agencies. Majone presents such an argument for enhancing agency power that embraces expertise and credibility, but moves beyond them.240 He maintains that it is not possible in certain areas, such as risk regulation, to distinguish between the technical issues dealt with by an agency, and the  policy matters residing in majoritarian institutions. He argues that the complex ­regulatory tasks faced by the EU cannot be adequately handled by the Commission with its limited administrative, financial, and cognitive resources and that recourse to stronger and more autonomous regulatory institutions at European level is the best  response. Majone argues furthermore that such a development can fit with the idea of institutional balance that characterizes the EU polity, with agencies being regarded as the ‘regulatory estate’ to be added to the other ‘estates’ that comprise the EU. The ­regulatory estate would be subject to controls to ensure accountability and legitimacy. This line of argument is contestable, and some will simply disagree with it. They may feel that continued attachment to the limits established by Meroni is important in the EU and be unconvinced by the argument that the creation of real regulatory agencies can be accommodated within the institutional balance that characterizes the EU polity. Others may agree with Majone’s general line of argument, provided that adequate checks exist over agencies with such enhanced power. It is, therefore, interesting to press further and consider more precisely what form these checks would take, remembering that the greater the power accorded to agencies the more important it becomes to ensure that adequate accountability mechanisms exist. The current regime of financial accountability described earlier would not require significant modification, and therefore the discussion will concentrate on legal and political constraints. The Meroni principle has in any event, as seen earlier, been indirectly reinforced and constitutionalized by Article 290 TFEU. It stipulates that for delegation of power to the Commission to be lawful, the legislative act must lay down the essential elements of the area. The Commission cannot make discretionary policy choices in the form of 239  Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3303, [201]. 240  Majone (nn 4, 16).

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­ elegated acts. The same stricture applies a fortiori to exercise of analogous power d by agencies, as is readily apparent from the regulations governing the new financial supervisory authorities.241

(B)  Legal Constraints: Amenability to Judicial Review If agencies were accorded such extended power a necessary condition for legal accountability would be amenability to judicial review. This has now been achieved through the Lisbon Treaty, which has brought agencies and similar bodies within the purview of Article 263 TFEU. It is equally clear that legal accountability would demand that we pay due attention to the Meroni reasoning requiring that if power is given to agencies it should be subject to the same legal constraints, in terms of reason giving, publication, compliance with fundamental rights, and the like, as if the power were exercised by the primary EU institutions. This was central to the Meroni ruling, since the agencies in that case were not subject to duties to give reasons and publication that bound the High Authority. In Meroni the ECJ declined to read these strictures into the grant of power to the agencies.242 However, the very fact that agencies are amenable to review under Article 263(1), now means that they are susceptible to review on the grounds in Article 263(2).

(C)  Legal Constraints: Agency Procedures The grant of discretionary power leading to binding individual decisions and rules would also require reforms in agency procedures. The existing agency regulations are diverse in this respect. Those dealing with agencies that have power to make binding individual decisions normally contain classic adjudicatory process rights to hearings and the like, with internal appeal and recourse to the EU Courts. There is greater diversity in the current regulations concerning consultation and participation rights, and much depends, as we saw earlier, on agency practice. If agencies were accorded discretionary power to make binding rules, then greater procedural regularity would be required. This could be achieved through something akin to the US Administrative Procedure Act 1946. The EASA experience shows the viability of  what is in fact an improved version of the US notice and comment model being deployed by that agency. There would be every reason to extend such a model if agencies were given power to make formally binding rules. The regulations concerning the new financial regulatory agencies impose an obligation to engage in public c­ onsultation on draft agency rules.243 It is, however, important to be mindful of the limits of substantive review if agencies were accorded discretionary powers of the kind under consideration here. There are, as

241  See, eg, Reg 1093/2010 (n 50) Art 10(1). 242  Case 9/56 Meroni (n 109) 150. 243  Reg 1093/2010 (n 50) Art 10(1); Reg 1095/2010 (n 49) Art 10(1); Reg 1094/2010 (n 51) Art 10(1).

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will be seen in the second half of this book, limits to the extent to which the principles of judicial review are able to reach such determinations. Judicial review is designed to  control the legality of decisions, rather than their merits. It is true, as will be seen, that the EU Courts have extended their conception of legality and consider the reasoning used, and result reached, by institutions more intensively than hitherto. There are, nonetheless, limits to the extent to which judicial review can be used to hold  the ­content of discretionary policy choices involving the balancing of public interests accountable.

(D)  Political Constraints: Agency Tasks and Specification Legislative specification of agency tasks would be even more important if the EU were to develop real regulatory agencies. This might be enforced through more vigorous use of a non-delegation doctrine, although there are limits to the extent to which the legislature can specify detailed criteria in certain areas. We should, nonetheless, remember that the term discretionary power can mean very different things, ranging from the grant of broad open-textured power where there is scant guidance in the enabling ­legislation as to how it should be exercised, to those instances where the discretion is structured and confined by detailed provisions of the parent legislation. We should be mindful of this when considering the Meroni decision.244 Critiques of the case too often ignore the context in which the ruling was made. The ECJ was concerned about the delegation of power to agencies requiring them to balance the eight broad, and often conflicting, imperatives contained in Article 3 ECSC. The Court’s admonitions about the effect of such a delegation on the institutional balance within the Community were made with this expressly in mind and had force.

(E)  Political Constraints: Agency Appointments and Reporting It would also be generally accepted that more recent practice whereby the agency director is appointed after open competition and appears before the European Parliament prior to confirmation should become the norm. The obligation of agencies to report annually to the European Parliament, the Council, and Commission should continue, and should include the Member States, ECOSOC, and the Committee of Regions. There would, moreover, be a strong argument that a director could be called before the European Parliament, or one of its committees, to explain or justify ­regulatory choices.

(F)  Political Constraints: Agency Composition It is when we turn to agency composition and agency planning that matters become more contentious. The general pattern is, as we have seen, for Member States to 244  Case 9/56 Meroni (n 109).

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­ redominate on agency management boards, with representatives from the Commission, p and sometimes from the European Parliament, making up the balance. This is even more pronounced in the financial supervisory authorities, the EBA, ESMA, and EIOPA. The Commission expressed the opinion, in relation to existing agencies, that appointment of MEPs would be inappropriate in view of the agency’s regulatory work, combined with the fact that the European Parliament could then exercise external political supervision over their actions.245 Political practice continues to differ on this,246 but the argument becomes more ­contestable if agencies were to be accorded real regulatory powers of the kind being considered here. It is not readily apparent in principle why the European Parliament should be excluded from representation on a body that makes binding rules balancing competing public interests. The same point can be put from a different perspective. The European Parliament battled for over forty years to have a greater say in the making of secondary legislative choices via Comitology. It would be strange if it were to view with equanimity its exclusion from the making of such secondary legislative choices when they happened to be made by an agency, more especially one on which Member States had significant power. It might be argued by way of response that even real regulatory agencies would be an integral part of the executive, the unity and integrity of which must still reside in the Commission, hence its privileged status on management boards and in relation to agency planning. This argument reveals a duality in the meaning of executive function that recurs throughout EU law. In a formalistic sense everything that comes after the passage of the primary regulation can be regarded as a matter of execution/implementation of that regulation. It is, however, also readily apparent that execution in this formal sense can entail anything ranging from simple mechanistic implementation, to the passage of highly complex regulatory instruments that require a balance of competing public interests. The Commission has, not surprisingly, adhered to the formalistic sense of execution, and it is this that informed its opposition to Comitology, regarding Member State intervention in the passage of implementing regulations through such committees as an unwarranted encumbrance on its executive autonomy. This formalistic reading of execution is, however, flawed. It is incapable of providing a principled rationale as to why in those cases where, for example, execution requires the balancing of competing public interests and results in a rule of a legislative nature, the Commission should be autonomous.247 The formalistic conception therefore provides no ready answer as to why the European Parliament, as well as the Member States, should not be involved in the agency where it makes binding legislative rules balancing competing public interests.

245  Operating Framework (n 8) 9. 246  The European Parliament is not represented on the management boards of most of the more recent agencies, with the exception of the ECDC, Reg 851/2004 (n 41) Art 14. 247  There may be practical reasons as to why involvement by the principal legislative organs has to be ­limited, but this is another matter.

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It might alternatively be argued that even if stronger regulatory agencies were created with greater autonomy these would still be primarily concerned with economic integration, and that a divide can and should be maintained between the economic and political sphere. There is a vein of such reasoning running through Majone’s work.248 There are, however, real difficulties with this view. Economics and politics are not, and cannot, be kept separate in this manner. Economic regulation raises important normative issues as to the risks which society is willing to accept. These issues should not be excluded from the agenda of majoritarian politics. Nor should we be forced to accept that if formal rulemaking powers are accorded to non-majoritarian institutions, such as agencies, that it is therefore inappropriate for majoritarian influence through the European Parliament to be exercised within the managing body alongside that of the Council and Commission. As Shapiro wisely reminds us, information cannot be equated with technical expertise outside politics, leading to non-democratic ­legitimacy in the form of technocracy. Information may often not be technical but political, and technocratic solutions to problems that are inherently political may not be perceived by the public as legitimate.249

(G) Political Constraints: Agencies and Regulatory Impact Assessment If agencies were to be accorded real regulatory power, then there would be much to be said in favour of extending the emergent regime of regulatory impact assessment to agency rules. This regime began in earnest in 2003 as part of the more general programme for ‘Better Regulation’.250 It requires the Commission to engage in a regulatory impact assessment for all major initiatives, which are those presented in the Annual Policy Strategy or later in the Commission Work Programme. There is a two-stage process, with a preliminary assessment followed by an extended impact assessment where that is deemed to be necessary. The impact assessment is undertaken by the relevant Directorate-General (DG) responsible for the area, but the Secretariat-General of the Commission has an overall coordinating role and also evaluates the quality of the DG’s assessment. Regulatory impact assessments are already undertaken by some agencies, and the EASA has the most developed policy in this respect. If agencies were to be given formal rulemaking power then the requirement to make such assessments should become mandatory, at least so far as major initiatives are concerned.

(H)  Political Constraints: Agencies and Legislative Veto A schema whereby the Council and European Parliament could exercise a veto over delegated regulations has been embodied in Article 290 TFEU, which was discussed in 248  G Majone, ‘Europe’s “Democracy Deficit”: The Question of Standards’ (1998) 4 ELJ 5. 249  Shapiro (n 12) 287. 250  On Impact Assessment, COM(2002) 276 final.

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the previous chapter.251 There are, as was pointed out in that discussion, limits to the efficacy of this form of legislative veto. There is a real difference between involvement in the framing of the relevant rule and review of that rule after it has been made. This is particularly so where the rule is technically complex. The possibility of a legislative veto is, nonetheless, important if real regulatory agencies were to be created with discretionary powers leading to binding rules and decisions. It would provide an opportunity for legislative checks on agency choices. The regime of legislative veto in Article 290 TFEU has already been applied to the new financial supervisory authorities, the EBA, ESMA, and EIOPA.

12 Conclusion It is clear that agencies are here to stay as part of the EU’s institutional framework. They are increasingly relied on in a wide variety of areas. This chapter has analysed the rationale for EU agencies, their classification, the limits on their powers, and the ways in which the existing agencies are held accountable, legally, politically, and financially. It has also examined the issues involved in the creation of real regulatory agencies. The EU is ambivalent in this respect. The general Commission position is premised on the existing limits of agency power.252 The reality is, nonetheless, that more particular agency regulations, such as those dealing with the new financial supervisory ­authorities, have narrowed the gap between the EU agency model and that in which the agency possesses discretionary power to make regulatory choices through rulemaking or ­individualized decisions.

251  See above, 127–32.

252  See nn 135, 227.

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7 Open Method of Coordination 1 Introduction The preceding chapters have dealt with various methods of policy delivery in the EU, including centralized administration, shared administration, Comitology, and agencies. These methods differ, but they all are primarily based on traditional forms of EU law—regulations, directives, and decisions. This chapter deals with a rather different method of policy delivery, the Open Method of Coordination. The discussion begins by reviewing the imprimatur given by the European Council to the Open Method of Coordination, henceforth OMC, at the Lisbon and Nice Summits. This will be followed by a look at the operation of the OMC process in the three key areas of economic policy, employment policy, and social inclusion, which will lay the foundation for the subsequent analysis. There will be consideration of the differences between the OMC and more traditional modes of EU regulation. The focus will then shift to an evaluation of the OMC, looking to see how far it fulfils the ­aspirations that underpin this mode of policy delivery in the EU.

2  Launch and Relaunch: Lisbon, Nice, and Brussels The OMC did not ‘begin’ with the Lisbon Summit in March 2000.1 Its intellectual origins can be traced to the strategy for dealing with Economic and Monetary Union post Maastricht, and to the European Employment Strategy developed post Amsterdam, and even earlier to coordination that was part of the original Rome Treaty. The nature of this coordination will be analysed in the following section. The Lisbon Summit was, nonetheless, important, since the European Council gave its imprimatur to the OMC as an approach to be used more generally within EU governance. It is important to be aware of the European Council’s reasoning in Lisbon. It began with an assessment of the EU’s strengths and weaknesses. Its strengths were said to be a vibrant macroeconomic outlook, the successful introduction of the euro, and major progress towards the completion of the internal market, all of which bode well for growth 1  Lisbon European Council, Presidency Conclusions, 23–4 March 2000.

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and job creation.2 There were, however, weaknesses, most notably in u ­ nemployment, both structural and regional. It was, therefore, necessary to ‘undertake economic and social reforms as part of a positive strategy which combines competitiveness and social cohesion’.3 The way forward was to be based on a new strategic goal for the coming decade. The EU was ‘to become the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion’.4 The more particular aspects of this plan were in part economic: the enhancement of an information society open to all, encouragement of a European research area, the creation of an environment friendly to the creation of new business, the coordination of macroeconomic policy, and a fully operational internal market. The plan also had an overtly social dimension: there was to be education and training for those living and working in the knowledge society, the development of an active employment policy, modernization of social protection, and the promotion of social inclusion. The implementation of this overall strategy was to be by ‘improving the existing processes, introducing a new open method of coordination at all levels, coupled with a  stronger guiding and coordinating role for the European Council to ensure more coherent and strategic direction and effective monitoring of progress’.5 The Lisbon European Council made it clear that the OMC was to be a decentralized process, and hence in accord with subsidiarity, and that the Member States, regional and local government, the social partners, and civil society would be actively involved.6 The general features of OMC were said to be,7 – fixing guidelines for the Union combined with specific timetables for achieving the goals which they set in the short, medium and long terms; – establishing, where appropriate, quantitative and qualitative indicators and benchmarks against the best in the world and tailored to meet the needs of ­different Member States and sectors as a means of comparing best practice; – translating these European guidelines into national and regional policies by ­setting specific targets and adopting measures, taking into account national and regional differences; –  periodic monitoring, evaluation and peer review organized as mutual learning processes. The Lisbon approach was developed further at the Nice European Council in December 2000,8 with particular focus on the European social model. The connection between the economic and the social was evident in Nice, as it had been in Lisbon. Thus, the European social model was said to be characterized by the ‘indissoluble link between

2  Ibid [3]. 3  Ibid [4]. 4  Ibid [5]. 5  Ibid [7]. 6  Ibid [38]. 8  Nice European Council, Presidency Conclusions, 7–9 December 2000.

7  Ibid [37].

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economic performance and social progress’.9 Henceforth the Spring European Council meeting would annually consider progress towards meeting the specified social ­objectives. The Nice European Council set out in some detail the substance of the goals and the methods to be used in attaining them. It stipulated that the employment rate should be increased to 70 per cent and that the proportion of working women should be increased to over 60 per cent by 2010.10 Social policy should focus on more and better jobs, fighting poverty, all forms of exclusion and discrimination in order to promote integration, modernizing social protection, and the promotion of gender equality.11 The implementation of the social agenda should make use of ‘all existing Community instruments bar none’,12 including the OMC, legislation, the social dialogue, the Structural Funds, the support programmes, the integrated policy approach, analysis, and research. The Commission, sectoral Council formations, and the Member States were instructed or requested to take steps to fulfil these objectives.13 Thus, the Commission was ‘requested’ to take the OMC forward by developing indicators against which employment policy or social exclusion could be judged, and to present an annual report to the European Council, detailing its initiatives and the contributions of other actors to attaining the objectives of the social model. The Employment and Social Policy Council was ‘instructed’ to implement the social agenda, including the setting of benchmarks and indicators as part of the OMC process. The social partners were encouraged to take part in the process. It was for the Member States to translate these objectives into ‘national, regional or local policies by  setting specific targets and adopting measures which take into account national, regional and local differences’.14 Five years on, after suggestions made by the Commission15 and the Kok Task Force,16 the Brussels European Council revisited and relaunched the Lisbon strategy in the March 2005 Summit.17 It acknowledged that results had been mixed, and that while progress had been made there were also shortcomings and delays. There was, said the European Council, a high price to pay for delayed or incomplete reforms ‘as is borne out by the gulf between Europe’s growth potential and that of its economic partners’.18 It was, therefore, necessary to relaunch the Lisbon strategy without delay and ‘re-focus priorities on growth and employment’.19 The European Council then set out the ‘vital strands’ of the relaunch. The substantive components of the ‘relaunch’ were knowledge and innovation; an attractive area in which to invest and work, dealing with completion of the internal market, the removal of impediments to trade, and an improved regulatory environment; and growth and employment making for social cohesion. It is clear from the 9  Ibid [15]. 10  Ibid Annex I, [2]. 11  Ibid Annex I, [32]. 12  Ibid Annex I, [28]. 13  Ibid Annex I, [32]. 14  Ibid Annex I, [32]. 15  Working Together for Growth and Jobs, A New Start for the Lisbon Strategy, COM(2005) 24. 16  Report of the Task Force chaired by Wim Kok, Jobs, Jobs, Jobs: Creating More Employment in Europe (November 2003), https://publications.europa.eu/en/publication-detail/-/publication/eba3e718-ec56-4da48b01-0c9101c8d4ac/language-en. 17  European Council, Presidency Conclusions, 22–3 March 2005. 18  Ibid [4]. 19  Ibid [5].

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European Council’s conclusions that these strands are related, with a central theme being improved economic performance, this being perceived as the engine that would drive increased employment. This interconnectedness was equally apparent in the blueprint for ‘improving governance’ of the Lisbon strategy.20 The new approach was based on a three-year cycle, the starting point of which was the Commission’s synoptic document, the strategic report. This report should be examined in the relevant Council configurations and then discussed by the European Council at its Spring Summit, which established political guidelines for the economic, social, and environmental strands of the strategy. On the basis of the European Council’s conclusions, the Council, acting in accord with Articles 121 and 148 TFEU, should then adopt ‘integrated guidelines’ consisting of the broad economic policy guidelines (BEPGs) and employment guidelines (EGs). The Member States, acting on the basis of the integrated guidelines, should draw up ‘national reform programmes’, after consultation with all stakeholders. As a counterpart to these national programmes, the Commission should present a ‘Community Lisbon programme’ covering all action to be undertaken at EU level in the interests of growth and employment. The Member State reports on the follow-up to the Lisbon strategy, including the application of the OMC, should be grouped in a single document, which distinguished between different areas of action and set out the measures taken to implement the national programmes. In the light of these national reports, the Commission should report on the implementation of the strategy each year, with the European Council reviewing progress each spring and deciding on any adjustments to the integrated guidelines. The danger of the BEPGs becoming the ‘coordination of coordination processes’ without proper input from other interested parties was noted by the European Parliament in 2003.21 An understanding of the OMC requires us to examine its workings in particular areas. This is necessary in order to assess the debates about the desirability and efficacy of the OMC that will be considered later.22

3  Economic Policy (A) Rationale The coordination of economic policy has been especially important post the Maastricht  Treaty, and even more so in the light of monetary union and the single 20  Ibid [38]–[41]. 21  Committee on Employment and Social Affairs, On New Proposals for Employment Strategy and Social Policy in the European Union, A5-0062/2003, Rapporteur Thomas Mann, [4]. 22  For the limits thus far of the OMC in relation to innovation policy and immigration, see respectively R Kaiser and H Prange, ‘Managing Diversity in a System of Multi-Level Governance: The Open Method of Coordination in Innovation Policy’ (2004) 11 JEPP 249; A Caviedes, ‘The Open Method of Coordination in Immigration Policy: A Tool for Prying Open Fortress Europe?’ (2004) 11 JEPP 289.

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­currency.23 This encapsulates a vision of sound money, sound finance.24 The economic health of individual Member State economies can have a marked impact on the valuation of the euro, and hence impact on the economies of all countries that subscribe to the single currency. The sound money, sound finance paradigm therefore made coordin­ ation of economic policy essential. Thus, as Hodson and Maher state, ‘the strong links between monetary policy and economic policies, where monetary policy is uniform and highly centralized, in effect mandated coordination of economic policy while the diversity of national approaches required that coordination remain at the national level so there is adequate room for manoeuvre in response to asymmetric shocks’.25 The link between monetary union and economic coordination is apparent in the regulations establishing the Growth and Stability Pact, which state that for Economic and Monetary Union (EMU) to function properly it is necessary that c­ onvergence of economic and budgetary performance of countries with the single currency are stable, and that budgetary discipline is necessary to ensure price stability.26 This then is the broad rationale for coordination in this area. The Treaty embodies two forms of coordination.

(B)  Treaty Provisions: Multilateral Surveillance Procedure The softer version is the multilateral surveillance procedure. Member States are to regard their economic policies as a matter of common concern, and are to coordinate them in the Council.27 The Council acting by qualified majority on a recommendation from the Commission formulates a draft for the broad guidelines28 of the economic

23  I Harden, ‘The Fiscal Constitution of EMU’ in P Beaumont and N Walker (eds), The Legal Framework of the Single European Currency (Hart, 1999) 71–93; D Hodson and I Maher, ‘The Open Method as a New Mode of Governance: The Case of Soft Economic Policy Co-ordination’ (2001) 39 JCMS 719; Thirteenth Report of the House of Lords Select Committee on the European Union: The Stability and Growth Pact (HL 72, 2002–3); I Begg, D Hodson, and I Maher, ‘Economic Policy Coordination in the European Union’ (2003) 183 National Institute Economic Review 66; F Amtenbrink and J de Haan, ‘Economic Governance in the European Union’ (2003) 40 CMLRev 1075; I Begg, ‘Hard and Soft Policy Coordination under EMU: Problems, Paradoxes and Prospects’, London School of Economics and Political Science, Centre for European Studies, Working Paper 103 (2004); I Maher, ‘Law and the Open Method of Coordination: Towards a New Flexibility in European Policy-Making?’ (2004) 2(2) Zeitschrift für Staats- und Europawissenschaften; D Hodson, ‘Macroeconomic Co-ordination in the Euro Area: The Scope and Limits of the Open Method’ (2004) 11 JEPP 231; D Hodson and I Maher, ‘Soft Law and Sanctions: Economic Policy Coordination and Reform of the Stability and Growth Pact’ (2004) 11 JEPP 798; J-V Louis, ‘The Economic and Monetary Union: Law and Institutions’ (2004) 41 CMLRev 575; I Begg and W Schelkle, ‘Can Fiscal Policy Co-ordination be Made to Work Effectively?’ (2004) 42 JCMS 1047; I Maher, ‘Economic Governance: Hybridity, Accountability and Control’ (2007)13 CJEL 679; H James, H-W Micklitz, and H Schweitzer, ‘The Impact of the Financial Crisis on the European Economic Constitution’, Law Working Paper 2010/05, EUI (2010). 24  K Dyson, ‘EMU as Europeanization: Convergence, Diversity and Contingency’ (2000) 38 JCMS 645. 25  Hodson and Maher, ‘The Open Method as a New Mode of Governance’ (n 23) 738. 26  Council Regulation (EC) 1467/97 of 7 July 1997 on speeding up and clarifying the implementation of the excessive deficit procedure [1997] OJ L209/6, rec 8. 27  Art 121 TFEU. 28  Council Recommendation 95/326/EC of 10 July 1995 on the broad guidelines of the economic policies of the Member States and of the Community [1995] OJ L191/24.

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policies of the Member States and the EU, and reports this to the European Council. The guidelines are discussed by the European Council, and its conclusion forms the basis for a Council recommendation setting out the broad guidelines.29 In order to ensure closer coordination of economic policy, it is then for the Council, on the basis of reports from the Commission, to monitor economic developments in the Member States and in the Community. This constitutes the multilateral surveillance.30 If it becomes apparent that the economic policies of the Member States are not consistent with the broad economic guidelines, or that they risk jeopardizing the proper functioning of EMU, the Council may, acting by qualified majority on a recommendation from the Commission, without taking account of the vote of the Member State concerned, make the necessary recommendations to that Member State.31 There are provisions requiring the European Parliament to be kept informed.32 The Treaty provisions have been complemented by the Stability and Growth Pact (SGP). The foundations are to be found in a Resolution of the European Council in 1997.33 The Resolution produced guidelines addressed to the Member States, the Commission, and the Council, and were directed to prevention of budget deficit and effective deterrence. The precepts contained in the Resolution formed the basis for two regulations, one of which concerns the multilateral surveillance procedure.34 The Regulation has, as will be seen, been amended and strengthened in the light of the financial crisis. The changes in this respect will be considered later. We begin with the initial version of the Regulation. The Regulation provides rules covering the content, submission, examination, and monitoring of the stability and convergence programmes so as to prevent at an early stage the occurrence of excessive government deficit, and to promote the surveillance and coordination of economic policies.35 To this end, Member States are required to submit to the Council and Commission information necessary for multilateral surveillance in the form of a stability programme, in order to provide the essential basis for price stability and sustainable economic growth. The stability programme requires the Member States to present information concerning the medium-term objective for a budgetary position of close to balance or in surplus; the main assumptions about expected economic performance; a description of measures to achieve the objectives of the programme; and an analysis of how changes in the principal economic assumptions would affect the budgetary and debt position.36 It is then for the Council, based on assessments made by the Commission and the Economic and Financial Committee to decide whether the economic assumptions of the stability programme are realistic, and whether the measures proposed by the

29  Art 121(2) TFEU. 30  Art 121(3) TFEU. 31  Art 121(4) TFEU. 32  Art 121(5) TFEU. 33  Resolution of the European Council on the Stability and Growth Pact, 17 June 1997. 34  Council Regulation (EC) 1466/97 of 7 July 1997 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies [1997] OJ L209/1. 35  Ibid Art 1. 36  Ibid Art 2.

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Member State will be likely to reach the desired goal.37 Provision is made for early warnings where there is a danger of excessive deficit.38

(C)  Treaty Provisions: Excessive Deficit Procedure The harder version of coordination is embodied in the excessive deficit procedure. Member States are under an obligation to avoid excessive deficits.39 The Commission monitors the budgetary situation and government debt in the Member States to ­identify ‘gross errors’.40 The Commission must in particular examine compliance with budget discipline on the basis of two criteria.41 The first criterion is whether the ratio of the planned or actual government deficit to gross domestic product (GDP) exceeds a reference value, this being 3 per cent, unless either the ratio has declined substantially and continuously and reached a level that comes close to the reference value, or, alternatively, the excess over the reference value is only exceptional and temporary and the ratio remains close to the reference value. The second criterion is whether the ratio of government debt to GDP exceeds such a reference value, this being 60 per cent, unless the ratio is sufficiently diminishing and approaching the reference value at a satisfactory pace. These reference values are ­specified in the Protocol on the Excessive Deficit Procedure.42 The Commission reports where a Member State does not fulfil these criteria, and may do so if it believes that there is a risk of an excessive deficit in a Member State.43 The Economic and Financial Committee gives an opinion on this report.44 Where the Commission considers that there is an excessive deficit, or that it may occur, the Commission must address an opinion to the Member State concerned and inform the Council.45 It is then for the Council, acting on a proposal from the Commission, and having taken account of any observations from the Member State, to decide whether the excessive deficit exists.46 Where the Council decides that an excessive deficit exists, it shall adopt, without undue delay, on a recommendation from the Commission, recommendations addressed to the Member State concerned with a view to bringing that situation to an end within a given period.47 The general rule is that these recommendations are not made public, but where the Council establishes that the Member State has taken no  effective action within the requisite period then the Council may make the ­recommendations public.48 The Treaty then contains provisions specifying what should happen if the Member State fails to put into practice the recommendations of the Council. If this occurs the Council can decide to give notice to the Member State to take, within a specified time limit, measures for the deficit reduction which is judged necessary by the Council in 37  Ibid Art 5. 38  Ibid Art 6. 39  Art 126(1) TFEU. 40  Art 126(2) TFEU. 41  Art 126(2) TFEU. 42  Protocol (No 12) Art 1. 43  Art 126(3) TFEU. 44  Art 126(4) TFEU. 45  Art 126(5) TFEU. 46  Art 126(6) TFEU. 47  Art 126(7) TFEU. 48  Art 126(8) TFEU.

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order to remedy the situation, and to submit reports to the Council so that it can examine the adjustment efforts of that Member State.49 If the Member State fails to comply with such a decision, the Council may then decide to apply or intensify one or more of the following measures:50 it can require the Member State to publish additional information, specified by the Council, before issuing bonds and securities; it can invite the European Investment Bank to reconsider its lending policy towards that Member State; it can require the Member State to make a non-interest-bearing deposit of an appropriate size with the Union until the excessive deficit has, in the Council’s view, been corrected; and it can impose fines of an appropriate size. The Council must abrogate the preceding decisions and recommendations to the extent that the excessive deficit in the Member State has, in the Council’s view, been corrected.51 The Treaty provisions on excessive deficit have, like those on surveillance, been complemented by a Regulation concerning excessive deficit,52 this being the other main limb of the SGP. This Regulation has been affected by changes made as a result of the financial crisis. The analysis begins with the original version of the Regulation and then considers the changes made below. The Regulation clarifies certain definitional aspects concerning excessive deficit, and contains provisions for speeding up the procedure by imposing timelines for action on the Council.53 It also provides greater detail concerning possible sanctions.54 The excessive deficit procedure therefore embodies a harder form of coordination than the  multilateral surveillance procedure, since the former can ultimately lead to the imposition of sanctions. The Treaty provisions are, however, nuanced in this respect. The initial stages of the excessive deficit procedure are couched in mandatory terms: there are obligations cast on the Commission to investigate excessive deficits, the Council must decide whether such a deficit exists, and must then issue recommendations to the Member State. The latter stages of the procedure are cast in more discretionary terms: where the Member State fails to comply with the Council recommendations, the Council may decide to instruct the Member State to take more specific measures, and where these have not been complied with, the Council may decide to apply one of the specified sanctions. While the excessive deficit procedure contains a harder form of coordination there are factors that limited its effectiveness. Hodson and Maher point to the procedural softness of the excessive deficit procedure in its latter stages, the inappropriateness of imposing a financial sanction on a state that is in economic difficulty and the consensus that such a penalty would in any event only be imposed in extreme circumstances. They concluded that the softer form of coordination through multilateral surveillance is in fact the principal method of coordination for fiscal policy.55 49  Art 126(9) TFEU. 50  Art 126(11) TFEU. 51  Art 126(12) TFEU. 52  Reg 1467/97 (n 26). 53  Ibid Arts 3–6. 54  Ibid Arts 11–14. 55  Hodson and Maher, ‘Soft Law and Sanctions’ (n 23) 804.

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(D) Effectiveness (i) 2002–3 There have always been concerns over the effectiveness of the surveillance and deficit procedures. The frailty of the latter was revealed in relation to the deficits run by France, Germany, Portugal, and Italy in 2002–3. They undertook to balance their budget over the medium term, but departed from their corrective programmes. This led to the Commission having recourse to legal action when the Economic and Financial Affairs Council (ECOFIN) placed the excessive deficit procedure in abeyance for France and Germany.56 The ECJ’s judgment is complex and cannot be examined in detail here.57 Suffice it to  say that the Court held that the Council’s decision to place the excessive deficit ­procedure in abeyance was unlawful, since there was no authority for this in the Treaty. The ECJ, however, rejected the other Commission claim, that the Council’s failure to adopt the Commission’s recommendations pursuant to what was then Article 104(8) and (9) EC was a decision that should be annulled. It held that where the requisite majority for the Commission recommendations was not secured in the Council there was no decision that could be reviewed under Article 230 EC. The flouting of the system by France and Germany brought the SGP into disrepute. The Commission was placed in a dilemma. If reforms were not enacted, then resistance to the SGP was likely to continue. If, however, reform significantly weakened the preexisting regime then its practical effectiveness for the future would correspondingly diminish. Changes were made to the Stability and Growth Pact Regulations,58 the net effect being to soften and render more discretionary the multilateral surveillance and excessive deficit procedures, thereby rendering it more unlikely that those sanctions would be imposed. It seemed, nonetheless, that the SGP actually worked somewhat better than hitherto, notwithstanding the softening of the obligations through the 2005 amendments.59 (ii) 2008–11 The EU’s regime for coordination of economic policy was subject to more general strain as a result of the banking and financial crisis that began in 2008.60 Space precludes detailed analysis, but the problem for the EU began with the fact that Greece’s

56  2546th Meeting of the Council of the European Union (Economic and Financial Affairs), Brussels, 25 November 2003. 57  Case C-27/04 Commission v Council [2004] ECR I-6649; I Maher, ‘Economic Policy Co-ordination and the European Court: Excessive Deficits and ECOFIN Discretion’ (2004) 29 ELRev 831. 58  Council Regulation (EC) 1055/2005 of 27 June 2005 amending Regulation 1466/97 [2005] OJ L174/1; Council Regulation (EC) 1056/2005 of 27 June 2005 amending Regulation 1467/97 [2005] OJ L174/5; J-V Louis, ‘The Review of the Stability and Growth Pact’ (2006) 43 CMLRev 85. 59  W Schelkle, ‘EU Fiscal Governance: Hard Law in the Shadow of Soft Law?’ (2007) 13 CJEL 705. 60  James, Micklitz, and Schweitzer (n 23).

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rating to repay its debt was downgraded.61 This then led to problems for the euro, and to concerns about the budgetary health of some other countries that used this currency. The result was downward pressure on the euro, which was only alleviated when the countries that used the currency provided a support package for Greece that satisfied the financial markets. The sovereign debt crisis was overlaid by, and interacted with, the banking crisis that affected some lending institutions that were heavily committed to economic sectors, such as housing, which were hit badly by the downturn in the economic markets. The deeper causality underlying these events is contestable.62 The crisis generated a range of responses from the EU.63 There was provision of assistance to Member States that were in serious financial difficulty. This was complemented by increased supervision over national financial institutions. Thus the regulatory apparatus for banking, securities, insurance, and occupational pensions was thoroughly overhauled,64 and new measures were introduced such as the Single Resolution Mechanism, which has increased EU oversight of national banking facilities. There were also major changes to increase oversight of national economic policy, because of the proximate connection between economic and monetary union. The primary objective was to tighten EU control over national economic policy in order to prevent a recurrence of the sovereign debt and banking crises that precipitated the crisis with the euro. The legislative framework for economic union was amended through the ‘six-pack’ of measures in 2011,65 which were enacted pursuant to Articles 121, 126, and 136 TFEU.66 The measures were designed to render economic union 61  A valuable and succinct summary can be found in P de Grauwe, ‘Crisis in the Eurozone and How to Deal With It’, CEPS Policy Brief No 204, February 2010. 62  M Maduro, ‘A New Governance for the European Union and the Euro: Democracy and Justice’, European Parliament, Directorate-General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, PE 462.484 (2012) 9–10. 63  P Craig, ‘Economic Governance and the Euro Crisis: Constitutional Architecture and Constitutional Implications’ in M Adams, F Fabbrini, and P Larouche (eds), The Constitutionalization of European Budgetary Constraints (Hart, 2014) Ch 2. 64  Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority) [2010] OJ L331/12; Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority) [2010] OJ L331/84; Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) [2010] OJ L331/4. 65 https://ec.europa.eu/info/business-economy-euro/economic-and-fiscal-policy-coordination/eu-­ economic-governance-monitoring-prevention-correction_en. 66  Regulation (EU) No 1175/2011 of the European Parliament and of the Council of 16 November 2011 amending Regulation (EC) No 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies [2011] OJ L306/12; Council Regulation (EU) No 1177/2011 of 8 November 2011 amending Regulation (EC) No 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure [2011] OJ L306/33; Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area [2011] OJ L306/1; Council Directive 2011/85/EU of 8 November 2011 on requirements for

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more effective by tightening the two parts of the schema, surveillance and excessive deficit, the details of which were contained in the SGP. Further measures, the twopack, were enacted on 21 May 2013.67 Space precludes detailed elaboration of these complex provisions. Suffice it to say for the present that they included changes to enhance budgetary oversight by focusing on its timing, the format of national budgetary determinations, and the need for these to be independently verified. Further changes to the surveillance mechanism are substantive and require Member States to make significant progress towards medium-term budgetary objectives (MTO) for their budgetary balances. The EU also strengthened the excessive deficit procedure, the other limb of economic union. The rules on oversight of national economic policy analysis were also affected by the Treaty on Stability, Coordination and Governance (TSCG),68 also known as the Fiscal Compact, which was signed by twenty-five contracting states in March 2012.69 Article 3(1) TSCG contains the ‘balanced budget’ rule and is the heart of the new Treaty. The budgets of the contracting parties must be balanced or in surplus. This is deemed to be respected if the annual structural balance of the general government is at its countryspecific medium-term objective, as defined in the revised SGP, with a lower limit of a structural deficit of 0.5 per cent of GDP at market prices. The contracting parties must ensure rapid convergence towards their respective medium-term objectives, within a timeframe set by the Commission. While the obligation to balance the national budget is the core of the TSCG, it is arguable that almost everything therein might have been done under the Lisbon Treaty provisions.70 It is also important to recognize that the provisions concerning assistance and those concerning oversight are ‘joined at the hip’,  in the sense that grant of assistance under the European Stability Mechanism (ESM) is conditional from 1 March 2013 on ratification by the applicant state of the Fiscal Compact. ­ udgetary frameworks of the Member States [2011] OJ L306/41; Regulation (EU) No 1176/2011 of the b European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances [2011] OJ L306/25; Regulation (EU) No 1174/2011 of the European Parliament and of the Council of 16 November 2011 on enforcement measures to correct macroeconomic imbalances in the euro area [2011] OJ L306/8; Results of in-depth reviews under Regulation (EU) No 1176/2011 on the prevention and correction of macroeconomic imbalances, COM(2013) 199 final. 67 Regulation (EU) 472/2013 of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States experiencing or threatened with serious difficulties with respect to their financial stability in the euro area [2013] OJ L140/1; Regulation (EU) 473/2013 of the European Parliament and of the Council of 21 May 2013 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area [2013] OJ L140/11. 68  P Craig, ‘The Stability, Coordination and Governance Treaty: Principle, Politics and Pragmatism’ (2012) 37 ELRev 231; S Peers, ‘The Stability Treaty: Permanent Austerity or Gesture Politics?’ (2012) 8 EuConst 404. 69 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, 1–2 March 2012. 70  Craig (n 68); Peers (n 68).

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4  Employment Policy (A) Rationale The rationale for EU involvement in employment policy, and the use of the OMC within this area, is interesting.71 The European Employment Strategy (EES) emerged as a result of the strains placed on welfare state regimes that became evident in the mid1990s. Many Member States ‘faced high levels of unemployment and/or low levels of employment participation as well as the need to restructure labour markets and welfare systems to take account of internal changes and external shocks’.72 There was also significant rethinking about social policy in a number of the Member States, more especially the possible impact of high levels of social protection on the overall employment rate. Many Member States were, nonetheless, attached to high levels of social protection and were unwilling to allow the employment problem to be resolved if indeed it could be, by cutting back on such protection. The imperative to take action at the EU level to combat unemployment was furthered by impending Economic and Monetary Union. It became clear that ‘employment measures had to be taken if the European Monetary Union project, or at least the planned timetable, was not to be put at risk’.73 The need to meet the criteria for m ­ onetary union placed budgetary constraints on states, thereby exacerbating existing problems of unemployment resulting from slow growth in economies in the mid-1990s. The impetus for EU involvement in employment policy was also the result of the very ­constraints placed by EU law on traditional national mechanisms for combating ­unemployment. Thus Member States could no longer foster employment through

71  J Kenner, ‘EC Labour Law: The Softly, Softly Approach’ (1995) 14 IJCLLIR 307; J Goetschy, ‘The European Employment Strategy: Genesis and Development’ (1999) 5 EJIR 117; J Mosher, ‘Open Method of Coordination: Functional and Political Origins’ (2000) 13 ECSA Review 2; J Goetschy, ‘The European Employment Strategy from Amsterdam to Stockholm: Has it Reached Cruising Speed Yet?’ (2001) 32 IRJ 401; C de la Porte, ‘Is the Open Method of Coordination Appropriate for Organising Activities at European Level in Sensitive Policy Areas’ (2002) 8 ELJ 38; C de la Porte and P Pochet, Building Social Europe through the Open Method of Coordination (PIE-Peter Lang, 2002); D Trubek and J Mosher, ‘New Governance, Employment Policy and the European Social Model’ in J Zeitlin and D Trubek (eds), Governing Work and Welfare in a New Economy: European and American Experiments (Oxford University Press, 2003) Ch 2; S Regent, ‘The Open Method of Coordination: A New Supranational Form of Governance?’ (2003) 9 ELJ 190; C de la Porte and P Nanz, ‘The OMC—A Deliberative-Democratic Mode of Governance? The Cases of Employment and Pensions’ (2004) 11 JEPP 267; J Mosher and D Trubek, ‘Alternative Approaches to Governance in the EU: EU Social Policy and the European Employment Strategy’ (2003) 41 JCMS 63; A Watt, ‘Reform of the European Employment Strategy after Five Years: A Change of Course or Merely of Presentation?’ (2004) 10 EJIR 117; M Rhodes, ‘Employment Policy: Between Efficacy and Experimentation’ in H Wallace, W Wallace, and M Pollack (eds), Policy-Making in the European Union (Oxford University Press, 2005) Ch 11; J Zeitlin, ‘The Open Method of Coordination in Action: Theoretical Promise, Empirical Realities, Reform Strategy’ in J Zeitlin and P Pochet with L Magnusson (eds), The Open Method of Coordination in Action: The European Employment and Social Inclusion Strategies (PIE-Peter Lang, 2005) Ch 14; D Ashiagbor, The European Employment Strategy: Labour Market Regulation and New Governance (Oxford University Press, 2005); Directorate-General for Employment, Social Affairs and Inclusion, Ten Years of the European Employment Strategy (EES) (Commission, 2007). 72  Trubek and Mosher (n 71) 34–5. 73  Goetschy, ‘ Cruising Speed’ (n 71) 401.

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competitive devaluations combined with adjustments to national interest rates because ‘EMU entailed an increasingly centralized monetary policy for the EU’.74 Nor could national governments tackle the problem through public sector job-creation, since EMU, together with the SGP, placed stringent constraints on the size of public deficits.75 While there were, therefore, a plethora of reasons for EU involvement in employment policy, the nature of this involvement, and the competence accorded to the EU, was shaped by the Member States. There had in the past been a marked reluctance to accord the EU real power over social policy or industrial relations.76 The 1990s was, moreover, a period in which there was renewed questioning of the legitimacy of EU involvement in areas previously reserved to Member State competence. The problems posed by employment were in addition less well suited to traditional methods of EU intervention, because they were inherently less susceptible to EU legislation enshrining particular ends, and because the differing social models in the Member States rendered the imposition of such ‘uniform solutions’ undesirable.

(B)  Treaty Provisions The factors driving EU involvement with employment policy, and those limiting the  nature of that involvement, shaped the Employment Chapter in the Treaty of Amsterdam. The Member States undertake to work towards a coordinated strategy for employment, and in particular towards a skilled, trained, and adaptable work force,77 and a high level of employment.78 The promotion of employment is regarded as a matter of common concern, and national action is to be coordinated in accord with the detailed Treaty provisions. Employment policy must be consistent with the broad guidelines on economic policy79 discussed earlier. Coordination within the EES operates in the following way.80 The European Council each year considers the employment situation in the EU and adopts conclusions based on the joint report from the Commission and Council. The European Council conclusions form the basis for the Council guidelines, acting on a proposal from the Commission, and after consulting the European Parliament, the European Economic and Social Committee (ECOSOC), the Committee of the Regions, and the Employment Committee, which the Member States must take into account in their employment policies. It is then for each Member State to provide the Council and the Commission with an annual report on the principal measures taken to implement its employment policy 74  J Goetschy, ‘The European Employment Strategy, Multi-Level Governance and Policy Coordination: Past, Present and Future’ in Zeitlin and Trubek (n 71) Ch 3. 75  Ibid 60. 76  W Streeck, ‘From Market-Making to State-Building: Reflections on the Political Economy of European Social Policy’ in S Leibfried and P Pierson (eds), European Social Policy: Between Fragmentation and Integration (Brookings Institution, 1995). 77  Art 145 TFEU. 78  Art 147 TFEU. 79  Arts 146(1), 148(2) TFEU. 80  Art 148 TFEU; http://ec.europa.eu/social/main.jsp?langId=en&catId=101.

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in the light of these guidelines. The Council considers these reports and the opinion of the Employment Committee and forms a view on the implementation of the guidelines at national level. It is open to the Council acting on a recommendation from the Commission to decide to make recommendations to a particular Member State. Having completed their examination of the reports from the Member States, the Council and the Commission make their joint report to the European Council on the employment situation in the EU and the implementation of the guidelines for employment. The annual process then begins once again. The Employment Committee assists in this process.81 It is composed of two persons from each Member State, plus two members of the Commission. It acts in an advisory capacity to promote coordination between the Member States on employment and labour market policies and more particularly to monitor the employment situation and policies in the Member States and the EU, and to formulate opinions to contribute to the preparation of the Council proceedings described above. In fulfilling its mandate, the Employment Committee is instructed to consult management and labour. The Member States did not wait for the Treaty of Amsterdam to be ratified before implementing the strategy laid down in the Employment Chapter. The Luxembourg European Council in 199782 began the process by adopting guidelines organized around four pillars: employability policies; entrepreneurship and job creation policies; adaptability policies; and equal opportunity policies. The system was simplified in 2003.83 The four pillars were reduced to three overarching objectives—full employment, improving quality and productivity at work, and strengthening social cohesion and inclusion. Ten guidelines were specified to effectuate these objectives.84 Since 2005 the economic and employment guidelines have been integrated. The 2015 guidelines are: boosting demand for labour; enhanced labour and skills supply; better functioning of labour markets; and fairness, combating poverty, and promoting equal ­opportunities.85 Employment policy is now seen as one part of the Europe 2020 strategy, with the objective being to ensure that 75 per cent of 20–64-year-olds are employed by that date.86 The provisions concerning employment exemplify the OMC. The emphasis throughout is on a soft law approach fostered through deliberation, learning, and discourse.87 There are provisions enabling legislation to be made pursuant to the co-decision procedure, but these cannot include harmonization of national laws. The EU’s competence is limited to the enactment of measures to encourage cooperation between Member 81  Art 150 TFEU. 82  Luxembourg European Council, 20–1 November 1997. 83  Barcelona European Council, 15–16 March 2002, [30]. 84  Council Decision 2003/578/EC of 22 July 2003 on guidelines for the employment policies of the Member States [2003] OJ L197/13. 85 http://ec.europa.eu/social/main.jsp?catId=101&intPageId=1471&langId=en; http://ec.europa.eu/social/ main.jsp?catId=101&intPageId=3427. 86 http://ec.europa.eu/eurostat/statistics-explained/index.php/Europe_2020_headline_indicators. 87  Taking Stock of Five Years of the European Employment Strategy, COM(2002) 416 final; DirectorateGeneral for Employment, Social Affairs and Inclusion, Ten Years of the European Employment Strategy (n 71).

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States through exchange of information, best practices, and the like.88 There are, as Goetschy states, three elements that characterize the Employment Title.89 [I]t is based on the previous experience of the Essen procedure (1994) establishing a ­multilateral monitoring procedure for national employment policies; the procedural approach of the EES was inspired by the convergence process in the macroeconomic field set up in the Maastricht Treaty; and it is the national level which remains primarily responsible for employment policies and achievements, though employment is considered an issue of common concern for both the national and the Community level. The fact that employment is a ‘shared competence’ between the Community and national levels is consistent with the principle of subsidiarity and clearly shows that the EES represents an effort to promote greater convergence of national employment policies while at the same time respecting national diversity.

5  Social Exclusion (A) Rationale The application of the OMC to social exclusion dated from the Lisbon and Nice European Councils in 2000, the immediate rationale being to foster social inclusion as one part of the construction of the European social model. The deeper rationale for this strategy was articulated by Scharpf.90 The essence of his argument was that the EU is premised on asymmetrical treatment of the economic and social spheres. The economic order has predominated, as evidenced by the Treaty provisions, and the primacy accorded to completion of the single market with the a­ ttendant priority placed on market and competitive principles. Scharpf argued that it would have been possible when the Rome Treaty was framed to have made harmonization of social protection a precondition for market integration, given that the welfare regimes of the original six Member States were relatively rudimentary and closer than they have since become. If the Rome Treaty had been cast in this form, then the debates at EU level about the interplay between social protection and the market mechanism would have replicated similar discourse at national level. Matters developed very differently. The Treaty focus was heavily on markets, with the consequence that there was a decoupling of economic integration and social protection. This led to constitutional asymmetry. Whereas at national level economic and social policy had the same constitutional status, it was economic policy that predominated at the EU level. The very predominance afforded to economic policy reduced the Member States’ ability to influence their own ­economies 88  Art 149 TFEU. 89  Goetschy (n 74) 64. 90  F Scharpf, ‘The European Social Model: Coping with the Challenges of Diversity’ (2002) 40 JCMS 645 and ‘Legitimate Diversity: The New Challenge of European Integration’ in T Borzel and R Cichowski (eds), The State of the European Union, Vol 6: Law, Politics and Society (Oxford University Press, 2003) 79–104.

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or to ‘realize self-defined socio-political goals’.91 EU law doctrines of direct effect and supremacy made these constraints even firmer. It is, therefore, unsurprising that there came to be increasing pressure for the EU to play a greater role in social policy, thereby alleviating the constitutional imbalance between the market-making and market-correcting functions of a polity. Scharpf argued, however, that it was not possible at the turn of the millennium for the EU to adopt the stance towards social policy that it had declined to take when the Rome Treaty was signed. It was not possible to treat social welfare and protection through uniform rules applicable to all, because of the very diversity in welfare systems that existed within the Member States.92 The linkage between this diversity and the OMC emerges clearly in the following extract.93 Political parties and unions promoting ‘social Europe’ are thus confronted by a dilemma: to ensure effectiveness, they need to assert the constitutional equality of social protection and economic integration functions at the European level—which could be achieved either through European social programmes or through the harmonization of national socialprotection systems. At the same time, however, the present diversity of national socialprotection systems and the political salience of these differences make it practically impossible for them to agree on common European solutions. Faced by this dilemma, the Union opted for a new governing mode, the open method of coordination (OMC), in order to protect and promote social Europe.

We shall consider in due course whether OMC has been capable of delivering social protection while respecting national diversity. For the present, the focus will be on the structure of the regime for coordination that applies to social exclusion.94

(B)  Treaty Provisions The Treaty foundation for EU action is Article 151 TFEU, which provides that the objectives of the EU and Member States in relation to social policy shall include the combating of exclusion.95 Article 153(2) TFEU specifies that the European Parliament and Council can adopt measures pursuant to the ordinary legislative procedure to encourage cooperation between Member States through initiatives aimed at improving 91  Scharpf, ‘The European Social Model’ (n 90) 648. 92  Ibid 649–51. 93  Ibid 652. 94  R Atkinson and S Davoudi, ‘The Concept of Social Exclusion in the European Union’ (2000) 38 JCMS 3; I Begg et al, Social Exclusion and Social Protection in the European Union: Policy Issues and Proposals for the Future Role of the EU (South Bank University, European Institute, 2001); T Atkinson, B Cantillon, E Marlier, and B Nolan, Indicators for Social Exclusion in the European Union (Oxford University Press, 2001); de la Porte (n 71); D Wincott, ‘Beyond Social Regulation? New Instruments and/or a New Agenda for Social Policy at Lisbon’ (2003) 81 Pub Adm 533; A Atkinson, E Marlier, and B Nolan, ‘Indicators and Targets for Social Inclusion in the European Union’ (2004) 42 JCMS 47; M Daly, ‘Whither EU Social Policy? An Account and Assessment of Developments in the Lisbon Social Inclusion Process’ (2007) 37 Jnl of Soc Policy 1; K Armstrong, Governing Social Inclusion: Europeanization through Policy Coordination (Oxford University Press, 2010). 95  http://ec.europa.eu/social/main.jsp?langId=en&catId=750; The Social Dimension of the Europe 2020 Strategy, A Report of the Social Protection Committee (2011) http://ec.europa.eu/social/main.jsp?catId=750& langId=en&pubId=5976&type=2&furtherPubs=yes.

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knowledge, developing exchanges of information and best practices, promoting ­innovative approaches, and evaluating experiences to combat social exclusion. The Commission has responsibility for administering EU policy, and is assisted by the Social Protection Committee.96 The European Parliament and Council enacted a Decision97 in 2002 pursuant to what is now Article 153(2). This Decision established a programme to combat social exclusion to run until 2006. The programme was based on the OMC, and was designed to combat social exclusion and poverty by setting appropriate objectives at Community level and by the implementation of national action plans (NAPs). Since 2006 EU policy has been based on a Commission Communication adopted by the European Council.98 Social exclusion is now regarded as one part of the Europe 2020 policy for smart, sustainable, and inclusive growth.99 The 2020 strategy includes targets to lift 20 million people out of poverty, and to increase employment rates for those aged between 20–64 to 75 per cent. The OMC in the areas of social inclusion and pensions, and the process of cooperation in the field of health and long-term care, have been brought together under common objectives and simplified reporting procedures. The overarching objectives of the OMC for social protection and social inclusion are to promote: social cohesion, equality between men and women and equal ­opportunities for all through adequate, accessible, financially sustainable, adaptable, and efficient social protection systems and social inclusion policies; effective and mutual interaction between the Lisbon objectives of greater economic growth, more and better jobs, and greater social cohesion, and with the EU’s Sustainable Development Strategy; and good governance, transparency, and the involvement of stakeholders in the design, implementation, and monitoring of policy.100 The Member States have different policies on social inclusion, pensions, health, and long-term care. The strategy behind EU involvement in social exclusion is that the Member States agree on the preceding common objectives, and on common indicators that are used to test national attainment of the agreed objectives. This facilitates comparison of best practices and measures progress towards the common objectives. There are fourteen headline indicators, which are complemented by specific indicators relating to poverty and social exclusion, pensions, investing in children, and health and long-term care.101 The Member States submit reports in accord with the indicators and 96  Art 160 TFEU; Council Decision (EU) 2015/773 of 11 May 2015 establishing the Social Protection Committee and repealing Decision 2004/689/EC [2015] OJ L121/16. 97  Decision 50/2002/EC of the European Parliament and of the Council of 7 December 2001 establishing a programme of Community action to encourage cooperation between Member States to combat social exclusion [2002] OJ L10/1. 98  Working together, working better—A new framework for the open coordination of social protection and inclusion policies in the European Union, COM(2005) 706 final. 99 https://ec.europa.eu/info/business-economy-euro/economic-and-fiscal-policy-coordination/eu-­ economic-governance-monitoring-prevention-correction/european-semester/framework/europe-2020-­ strategy_en. 100 http://ec.europa.eu/social/main.jsp?langId=en&catId=750. 101 http://ec.europa.eu/social/main.jsp?catId=756&langId=en.

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this leads to a joint report by the Commission and Council. It assesses progress made in the implementation of the OMC, sets priorities, and identifies good practices that are of common interest to the Member States.

6  The Open Method of Coordination and the Traditional Union Method It is important to consider two dimensions to the contrast between the OMC and the traditional Union method that are discussed later.

(A)  Soft Law v Hard Law The OMC operates largely through soft law, by way of contrast to the traditional Union method as epitomized by regulations and directives that result in binding legal norms enforceable through the normal judicial process.102 This should not, however, be held ‘against’ the OMC as a method for policy delivery in the EU. This is so for a number of reasons. The line between hard law and soft law is not that clear-cut.103 There are of course paradigmatic examples of ‘pure hard law’, and classic instances of ‘pure soft law’, but any lawyer knows that there is much in between these extremities. Legalization is in that sense a spectrum. The ‘hardness’ of the law will be a function of the extent to which it creates legal obligations, the precision of those obligations, and the extent to which interpretation is delegated to an independent third party such as a court.104 It is equally apparent that there are factors that explain the preference for relatively hard or relatively soft law.105 It is important to focus on their relative capacities to cope with different governance tasks.106 Thus hard law will tend to be used when the obligations are reciprocal, but their performance is not. Hard law will increase the credibility of the parties’ commitments. It will be a natural choice when there is high premium on

102  J Scott and D Trubek, ‘Mind the Gap: Law and New Approaches to Governance in the European Union’ (2002) 8 ELJ 1; R Dehousse, ‘Conclusion: du bon usage de la methode ouverte de coordination’ in R Dehousse, N Jabko, L Navarro, and M Browne, L’Europe sans Bruxelles? Une analyse de la méthode ouverte de coordination (L’Harmattan, 2004) 157–80. 103  D Trubek and L Trubek, ‘The Open Method of Coordination and the Debate over “Hard” and “Soft” Law’ in Zeitlin and Pochet with Magnusson (n 71) Ch 3; D Trubek, P Cottrell, and M Nance, ‘“Soft Law,” “Hard Law,” and European Integration: Toward a Theory of Hybridity’ in G de Búrca and J Scott (eds), Law and New Governance in the EU and the US (Hart, 2006) 65–94. 104  K Abbott et al, ‘The Concept of Legalization’ (2000) 54 International Organization 401. 105  K Abbott and D Snidal, ‘Hard Law and Soft Law in International Governance’ (2000) 54 International Organization 421; D Trubek and L Trubek, ‘Hard and Soft Law in the Construction of Social Europe: The Role of the Open Method of Co-ordination’ (2005) 11 ELJ 343; S de la Rosa, ‘The Open Method of Coordination in the New Member States—the Perspectives for its Use as a Tool of Soft Law’ (2005) 11 ELJ 618. 106  Trubek and Trubek (n 105) 344.

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legal certainty, for example to enable business to know precisely what safety requirements it must comply with if a certain product is to be marketed. Hard law may also be the preferred tool when there is doubt about the degree of commitment of other players to comply with the relevant rule. The clarity of hard law, combined with ­interpretation by an independent adjudicative body, reduces the likelihood of freeriding by a party wishing to take the benefits of the legal regime without accepting the burdens. There are also instances where soft or softer law may be the preferred option. This may be so where the parties are unwilling to cast the relevant obligation in legal terms combined with adjudication by an independent third party. This may be especially relevant in the international arena, where states may be reluctant to accept external enforcement in sensitive policy areas. They may, nonetheless, desire some form of ­regularized cooperation to deal with a recurrent problem, thereby reducing the transaction costs of ad hoc meetings on the particular topic. The preference for softer law may be because the subject matter is inherently less well suited to being cast in strict legal terms, either because the resultant legal rule will be over- or under-inclusive, or because the problem is polycentric, with the result that it is difficult to frame a meaningful hard legal rule on the topic. Soft law may be the preferred option for the very reason that it facilitates accommodation of divergent circumstances, or national differences, in a manner that would be difficult if the norm were embodied in hard law. A further reason for choosing soft law is that it may be easier to change than hard law, and hence more useful as a tool where the factual or economic circumstances rapidly change, or where the issue to be addressed is a novel one and hence it is felt unwise to embody the rule in hard law. Soft law may also be the chosen option where the lawmaker believes that it will render compliance more likely than would be the case with harder-edged legal rules. We should, moreover, be careful in the characterization of OMC as being purely soft law, or in thinking that it embodies the same kind of soft law as exists in other areas.107 The outcome of OMC deliberations will often sound as recommendations rather than hard-edged legal norms. The picture of the OMC as being purely soft law is, nonetheless, flawed. The governing instruments that frame the OMC will normally take the form of hard law. The framework for the OMC is generally found in Treaty articles combined with EU legislation. The picture of the OMC as purely soft law also ignores the fact that the Treaty articles, combined with EU legislation, will often be couched in mandatory terms in relation to the procedure for coordination, delineating particular tasks that EU institutions and Member States must undertake as part of the c­ oordination process.108 The picture of the OMC as purely soft law must be further qualified even in relation to sanctions, since these can be applied in the context of economic policy. Nor should it be thought that soft law, as it operates in the OMC, is necessarily the same as

107  K Armstrong and C Fitzpatrick, ‘Law, Governance, or New Governance? The Changing Open Method of Coordination’ (2007) 13 CJEL 649. 108  See, eg, Arts 121 and 148 TFEU.

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the soft law that applies in other areas.109 Thus traditional soft law in the EU has been made by the Commission and overseen by the ECJ, whereas in the OMC it is the Member States, Commission, Council, and European Council that predominate. Moreover, traditional soft law tends to be ad hoc, whereas in the context of the OMC it is more systematic. We should be equally wary of regarding the traditional Union method as being based solely on hard law. Regulations, directives, and decisions are the normal tools of the traditional Union method, but these regulatory techniques are often used in conjunction with other governance strategies,110 as is apparent in areas as diverse as competition law, state aids, and the regulation of the pharmaceutical industry. Guidelines and the like that flesh out hard law are a standard feature of this regulatory landscape. This can be exemplified by considering the regulatory strategies used in that most quintessential EU sphere, the internal market. The Commission’s 2000 Review of the Internal Market111 identified areas that were of concern for the fulfilment of the single market. The Commission set out in detail the legislative and non-legislative initiatives that it was taking to attain the specified goals. The interplay between hard and soft law can be exemplified further by the Commission Recommendation concerning the transposition of directives into national law.112 Lawyers are aware of the problems concerning the transposition of directives into national law. They naturally think of legal redress for this malaise, whether in the form of a Commission action against the recalcitrant Member State, or a Francovich damages action. Both are classic hard law remedies. Both are important. Neither has cured the problem. The Commission Recommendation acknowledged the legally binding nature of the directive and the repeated calls made for timely transposition, but concluded that ‘many such Directives have still not been transposed into national law in all Member States long after the deadline for transposition has passed’.113 The Commission admitted that its ‘vigorous legal action against Member States for late or incorrect transposition’ has not cured the ‘transposition deficits’ that continue to persist,114 and that it was therefore necessary for the Commission to take a more proactive role. To this end the Recommendation set out detailed steps that should be taken by the Member States to alleviate the problem. What is especially interesting is that the methodology employed draws on the OMC. Thus the recitals to the Recommendation talk directly of Member States learning from each other’s practice, of identifying best

109  S Borras and K Jacobsson, ‘The Open Method of Coordination and New Governance Patterns in the EU’ (2004) 11 JEPP 185, 188–9. 110  D Trubek and L Trubek, ‘New Governance & Legal Regulation: Complementarity, Rivalry, and Transformation’ (2007) 13 CJEL 539; J Zeitlin, ‘Is the Open Method of Coordination an Alternative to the Community Method?’ in R Dehousse (ed), The Community Method: Obstinate or Obsolete? (Palgrave Macmillan, 2009). 111  2000 Review of the Internal Market Strategy, COM(2000) 257 final. 112  On the Transposition into National Law of Directives Affecting the Internal Market, SEC(2004) 918 final. 113  Ibid rec 4. 114  Ibid rec 8.

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practice, and of choosing the procedures and practices best designed to ensure the timely transposition of directives.115 It is, therefore, clear that an admixture of hard and soft law is to be found even in areas commonly regarded as paradigms of the traditional Union method. We should, moreover, not forget that policymaking in an area such as employment policy is itself a blend of different regulatory techniques, including the traditional Union method, OMC, and norms generated by the social partners.116

(B)  Open Method of Coordination v Traditional Union Method There is another dimension to the discourse about the OMC that requires separate treatment. The relevant literature contrasts the nature of the OMC with that of the traditional Union method. The virtues of the OMC are said to be that it fosters deliberation, participation, discourse, mutual learning, and the like, while at the same time respecting national differences. There is foundation for these claims, although how fully they are realized will be considered in the next section. The assumption is that these virtues are either absent, or exist to a much lesser degree, in the context of the traditional Union method. This assumption is contestable. There are of course differences between the OMC and the traditional method. That is self-evident. To assume that the ideals of deliberation, participation, learning, and the like are absent from the traditional Union method, or even that they exist to a lesser degree, is, however, not self-evident. Consider this from the following perspectives. Let us begin with the passage of regulations and directives. The relevant players, the Commission, European Parliament, and Council, may have veto positions on ­important matters in a piece of legislation. There will be elements of bargain between the key institutional players, and within each institutional setting. To regard this as the complete picture is, nonetheless, to see only half the story and it may well not be the most important half. It leaves out of account the fact that the ordinary legislative procedure embodies a structured deliberative discourse between the key actors.117 The steps of the process require each institution to assess its own preferences in the light of those voiced by others, and to decide whether to stick to those preferences at the second reading stage, within the Conciliation Committee, or in the trilogue process that has become the norm for consideration of legislative initiatives. This does not work as a perfect model of republican discourse, but nor for that matter does the OMC. The ­traditional method, nonetheless, provides the structured forum for such discourse, as is apparent when one follows through particular pieces of legislation. There will be institutional intransigence and bargain. But there will also be many instances where the dialogue that occurs through the ordinary legislative procedure is every bit as

115  Ibid recs 16–18. 116  Rhodes (n 71). 117  See also in this respect European Parliament, Council and Commission, Institutional Agreement on Better Lawmaking [2003] OJ C321/1.

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deliberative as that which occurs within the OMC, and this dialogue includes the European Parliament, which is largely excluded from the OMC. We need to be similarly mindful of the capacity for learning within the traditional Union method. The OMC provides opportunities for mutual learning by the relevant players. It is structured with that very idea in mind, and the iterative nature of the OMC operating on an annual basis fosters such learning. It should, however, also be recognized that learning is an important feature of the traditional method. Legislative revision will often be the ‘didactic result’ of the lessons gleaned from the pre-existing legislative regime. Reflect on legal development within particular EU spheres. Take the Structural Funds by way of example.118 There have been numerous legislative changes over the last forty years. Some have been prompted by shifts in policy. The catalyst for others has been the lessons learned from the shortcomings of the previous legal regime. The relevant players get a better idea of, for example, the controls that should be imposed on the recipients of funds so as to foster accountability and efficacy. The same capacity for learning through the traditional method can be perceived in areas as diverse as the Common Agricultural Policy, state aids, and the Financial Regulation. Legislative revision within the traditional Union method is a dynamic process designed in part to learn from, and improve on, the status quo ante. Similar caution is warranted in relation to the relative capacities of the OMC and the traditional Union method to foster participation. A virtue claimed for OMC is that it enables input from interested parties in the deliberative process. The very word ‘open’ carries this connotation. It is, as will be seen, contestable how far participation is realized within the OMC. This is not a zero-sum game. It is perfectly possible to favour participation within the OMC and the traditional method. We should not, however, work on the assumption that the opportunities for such participation are necessarily less within the traditional method than the OMC. This is not the place for a general exegesis on participation as it operates within the traditional Union method. It is by no means perfect.119 The reality is that the opportunities for participation are greater in relation to legislative acts than in relation to secondary norms. The Commission has resisted pressures to create a regime of legal rights to participate. It has, however, broadened consultation through increasing use of Green and White Papers when important areas of EU policy are developed. This approach was formalized and generalized in the 2002 Communication from the Commission.120 The very fact that the traditional method will normally lead to legislation dealing with a specific topic facilitates input from interested parties, who can focus on detailed hard-edged aspects of the proposed legislation. The Commission also initiated Interactive Policy Making (IPM), which is accessible via the web portal ‘Your Voice in Europe’. The efficacy of these mechanisms will be considered in more detail later.121 Suffice it to say here that 118  See Ch 4. 119  Ch 11. 120 Towards a Reinforced Culture of Consultation and Dialogue—General Principles and Minimum Standards for Consultation of Interested Parties by the Commission, COM(2002) 704 final. 121  Ch 11.

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this initiative applies in relation to regulations, directives, and decisions enacted pursuant to the traditional method. It is designed to foster learning and facilitate participation. Empirical analysis of the OMC revealed that most interviewees felt that the process was relatively closed not only to the broader public, but also to executive agencies and other interested parties at sub-national level, and that some pointed to the irony of the term ‘open’ method of coordination, given that it was perceived as less open than the traditional method.122

7  The Open Method of Coordination: An Evaluation The preceding discussion revealed that there is no reason to be dismissive of the OMC because it operates principally through the medium of soft law. It also revealed that we should be cautious about assuming that the virtues of the OMC are necessarily absent from the traditional Union method. The focus now shifts to analysis of the OMC itself. The virtues of the OMC as a method of governance are that it promotes deliberation, participation, learning, and responsiveness, while at the same time enabling national differences to be respected when addressing solutions to common problems. Some commentators see these facets of the OMC as an embodiment and exemplification of a broader democratic theory, directly deliberative polyarchy.123 A key feature of this theory is that centralized decision-making has limits within a modern polity. Politics is seen as a method for dealing with practical problems. In deliberative polyarchy, ‘problem solving depends not on harmony and spontaneous collaboration, but on the permanent disequilibrium of incentives and interests imperfectly aligned, and on

122  K Jacobsson and A Vifell, ‘Towards Deliberative Supranationalism? Analysing the Role of Committees in Soft Coordination’ in I Linsenmann, C Meyer, and W Wessels (eds), Economic Government of the EU: A Balance Sheet of New Modes of Policy Coordination (Palgrave, 2007) Ch 9. 123  J Cohen and C Sabel, ‘Directly-deliberative Polyarchy’ (1997) 3 ELJ 313; O Gerstenberg and C Sabel, ‘Directly-deliberative Polyarchy: An Institutional Ideal for Europe?’ in C Joerges and R Dehousse (eds), Good Governance in Europe’s Integrated Markets (Oxford University Press, 2002) 289–342; C Sabel and J Zeitlin, ‘Active Welfare, Experimental Governance, Pragmatic Constitutionalism: The New Transformation of Europe’, paper presented at the International Conference of the Hellenic Presidency of the European Union, ‘The Modernisation of the European Social Model and EU Policies and Instruments’, Ioannina, Greece (May 2003); J Zeitlin, ‘Social Europe and Experimentalist Governance: Towards a New Constitutional Compromise?’ in G de Búrca (ed), EU Law and the Welfare State: In Search of Solidarity (Oxford University Press, 2005) Ch 7; B Eberlein and D Kerwer, ‘New Governance in the European Union: A Theoretical Perspective’ (2004) 42 JCMS 121; S Smismans, ‘Reflexive Law in Support of Directly Deliberative Polyarchy: Reflexive-Deliberative Polyarchy as a Normative Frame for the OMC’ in O De Schutter and S Deakin (eds), Social Rights and Market Forces: Is the Open Coordination of Employment and Social Policies the Future of Social Europe? (Bruylant, 2005) 99–144; K Armstrong, ‘Inclusive Governance? Civil Society and the Open Method of Coordination’ in S Smismans (ed), Civil Society and Legitimate European Governance (Edward Elgar, 2006) Ch 3; C Sabel and J Zeitlin, ‘Learning from Difference: The New Architecture of Experimentalist Governance in the EU’ (2008) 14 ELJ 271.

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the collaborative exploration of resulting differences’.124 Deliberation is to be found ‘when collective decisions are founded not on a simple aggregation of interests, but on arguments from and to those governed by the decision, or their representatives’.125 Democratic deliberative polyarchy requires protection of basic rights, transparency and public participation, coordination across and between the relevant units, m ­ echanisms for accountability that connect deliberative decisions in particular areas with broader public discussion about those topics, and the ability to contest decisions.126 It is, however, necessary to assess how far the ideals associated with the OMC are realized in practice. This requires us to look more closely at the individual parts of the overall package, and check the theory against the empirical evidence, being mindful of the difficult methodological issues in assessing the effectiveness of the OMC.127

(A) Transparency Transparency is clearly central to the OMC, both in itself and as a precondition for fostering participation, debate, and the like. De la Porte and Nanz128 evaluated transparency in the operation of the employment and pensions OMC. They found that access to information in relation to the EES had improved considerably since 2003 with the creation of a specific website containing the relevant documentation including a description of the OMC strategy, Commission communications, national action plans, indicators, and the like. A similar website exists in relation to social inclusion, and documentation is readily accessible and easy to locate. Formal access to documentation is, however, only one facet of transparency. Another equally important consideration concerns the transparency or opacity of the decision-making process itself. Consider in this respect the observations of Hodson and Maher on economic policy coordination.129 They pointed to the difficulties of demarcating responsibilities between the different institutions and committees that operate in this area, with resultant complexity and opacity for the decision-making process as a whole. They noted that transparency is essential for the process, since learning is dependent on information exchange, but that ‘the fragmentation of responsibility means that the system lacks transparency beyond the core of elites—national and Community civil servants, and the social partners through the macroeconomic dialogue—who are directly involved in preparing and discussing the national reports, and in framing of the broad guidelines’.130 Jacobsson and Vifell voiced similar concerns about transparency in relation to the role of committees in the overall decision-making process in the context of economic, employment, and social policy.131

124  J Cohen and C Sabel, ‘Sovereignty and Solidarity: EU and US’ in Zeitlin and Trubek (n 71) 366. 125  Ibid 366. 126  Ibid 369–70. 127  Zeitlin (n 110). 128  De la Porte and Nanz (n 71) 276–7. 129  Hodson and Maher, ‘The Open Method as a New Mode of Governance’ (n 23). 130  Ibid 730. 131  Jacobsson and Vifell (n 122).

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This problem was not lost on the Commission. The streamlining introduced in 2002–3 was motivated in part by just such problems. Thus, the Commission noted that as new elements were added to the OMC processes on an ad hoc basis ‘without ­necessarily taking the wider picture into account, the present framework has arguably become complex and more difficult to understand and explain’.132 The streamlining introduced at the Commission’s initiative has been beneficial. It has not, however, addressed the institutional complexity and consequent opacity of decision-making as it operates within particular areas where the OMC is used.

(B)  Public Debate The findings in terms of public debate and awareness are less encouraging. Studies indicate that media coverage of the OMC in relation to employment from 1997–2002 was principally driven by national initiatives, rather than those taken at European level, and that the learning which takes place through EES is not linked to public debate. The consequence is that there is little pressure placed on governments from such public debate to comply with the recommendations made by the EES.133

(C)  Parliamentary Involvement It is unsurprising that the media shows little coverage of OMC procedures, although regrettable nonetheless. The available evidence also indicates that national parliaments have given relatively little attention to OMC processes, and that knowledge of such matters by national parliamentarians is in short supply. The limited role accorded to the European Parliament within the OMC is of ­especial concern. This does not mean that the European Parliament is opposed to the OMC. It has, for example, expressed positive support for this method of policy delivery in the context of health care,134 social exclusion,135 and as part of more general social ­policy.136 The European Parliament has, nonetheless, voiced concerns about the OMC. The Committee on Employment and Social Affairs stated that leaving aside employment, the areas of governance where the OMC was to be preferred to other executive instruments were not specified by the Treaty, by other regulatory provisions, or by an inter-

132  On Streamlining the Annual Economic and Employment Policy Coordination Cycles, COM(2002) 487 final, 2. 133  De la Porte and Nanz (n 71) 277. 134  Committee on Employment and Social Affairs, On Modernising Social Protection and Developing Good Quality Healthcare, A6-0085/2005, Rapporteur Milan Cabrnoch, [5], [17], subject to cautionary notes about not overburdening Member States with requests for data. 135  Committee on Employment and Social Affairs (n 21) [10]. 136  Committee on Employment and Social Affairs, On the Social Policy Agenda for the Period 2006–2010, A6-0142/2005, Rapporteur Ria Oomen-Ruijten, [35], [47].

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institutional agreement.137 The choice of the OMC was ‘taken on a case-by-case basis by the Council acting on a proposal from the Commission or on its own initiative’.138 The Committee noted the progressive switch from traditional legislative techniques, to the use of new techniques where the traditional approach was felt to be inappropriate. Its view was that the European Parliament was the only institution which was capable at EU level of exercising democratic control over political processes, including the OMC,139 and that the European Parliament was ‘at risk of being marginalized or ­sidelined by these new political procedures’.140 The Committee noted that the European Parliament’s role in OMC procedures was unspecified, with the exception of the EES, where it had a right to be consulted, but that its role in this area was severely constrained because it had so little time to proffer opinions on the salient issues.141 It proposed that the OMC procedure should only be used in any policy area after the European Parliament and the Council had given their approval. It argued further that the European Parliament should be consulted and should give an opinion on the guidelines, the summary report, and the r­ ecommendations emanating from the OMC process. Moreover, each national report should indicate how civil society, including the social partners and local regional and national authorities had been consulted. The recommendations resulting from the OMC process should also be accompanied by the European Parliament’s report. The Committee exhorted the Council and Commission to take greater account of the European Parliament’s views when drawing up guidelines. It also expressed concern that the OMC should not serve as ‘fig leaf for a country’s failure to take action’,142 and that it should not be used for the purpose of avoiding the binding quality of more traditional EU regulation. The Committee on Employment and Social Affairs repeated these concerns when approving the 2011 integrated guidelines for economic and employment policies, the Rapporteur ‘reiterating the Parliament’s longstanding calls on the Commission and the Council to ensure that the Parliament is given the necessary time, and in any event no less than five months, to fulfil its consultative role during the next full revision of the Employment Guidelines’.143 Similar concerns were voiced by the Committee on Economic and Monetary Affairs. In 2002 it welcomed the Commission’s streamlining proposals, but expressed concern that the new timetable for the Guidelines Package would give the European Parliament an even shorter time than before to examine the Commission’s proposal.144 It highlighted the need for greater democratic legitimacy and insisted that the European Parliament should have participation rights with respect to the full coordination policy 137  Committee on Employment and Social Affairs, Report on Analysis of the Open Coordination Procedure in the Field of Employment Social Affairs and Future Prospects, A5-0143/2003, Rapporteur Miet Smet. 138  Ibid rec D. 139  Ibid rec F. 140  Ibid rec G. 141  Ibid rec I. 142  Ibid 9. 143  Committee on Employment and Social Affairs, On the Proposal for a Council decision on guidelines for the employment policies of the Member States, A7-0040/2011, Rapporteur Pervenche Beres, 6. 144  Committee on Economic and Monetary Affairs, On the Commission Communication on Streamlining the Annual Economic and Employment Policy Coordination Cycles, A5-0400/2002, Rapporteur Othmar Karas, 7.

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cycle and the Lisbon process, this to be embodied in an inter-institutional agreement.145 These points were reiterated in 2003 where the Committee regretted that the European Parliament was not fully included in the development and implementation of the broad economic policy guidelines, and expressed its concern at the time within which it had to deliver an opinion on the 2003 guidelines.146 In 2004 the Committee spoke once again about the democratic deficit in relation to economic policy governance, calling for the inclusion of the European Parliament and national parliaments in the Lisbon process, and for greater involvement by the social partners and civil society, in order to ‘raise political ownership of the strategy and responsibility for the measures to be undertaken’.147 The Committee on Constitutional Affairs voiced the same view, on this occasion in  relation to the new regime of integrated economic and employment guidelines, ‘insisting’ that the Commission allows proper time for consultation with the European Parliament prior to the Spring European Council Summit.148 These concerns should be taken seriously, even if one subscribes to a theory of ­deliberative-democratic polyarchy, which is premised on the assumption that democratic legitimation should not rest solely on input from a body such as the European Parliament. Let us for the sake of argument accept this premise. It does not, however, lead to the conclusion that the democratically elected legislature at the European level should be largely excluded from the OMC process. It provides no rationale as to why the European Parliament should not be thought of as a legitimate participant in deciding when the OMC should be used as a mode of policy delivery, and it provides no justification for the exclusion or marginalization of the European Parliament from input into the OMC process when it is used. These issues will be of greater importance if the OMC is increasingly used as an adjunct to traditional regulatory techniques. This would see the traditional Union method in the form of regulations, decisions, or directives being complemented by the OMC as a method for checking on best practices, benchmarking, iterative learning, and the like in the relevant area. There is no problem with this strategy as such. We have already seen that the admixture of hard and soft law features in many regulatory schemes at both EU and national level, and may be the optimal way to deal with an issue. The concern is that unless thought is given to the role of the European Parliament in relation to OMC it will be further marginalized by such developments. The ­emerging pattern will be one in which the European Parliament will have its normal role in the 145  Ibid 7, 10–11. 146  Committee on Economic and Monetary Affairs, On the Broad Guidelines of the Economic Policies of the Member States and the Community for 2003–2005, A5-0142/2003, Rapporteur José Manuel GarcíaMargallo y Marfil. See also, Committee on Economic and Monetary Affairs, On the Annual Assessment of Stability and Convergence Programmes, A5-0047/2003, Rapporteur Bruno Trentin, [14]. 147  Committee on Economic and Monetary Affairs, On the Situation of the European Economy, Report on the Broad Guidelines for Economic Policies, A5-0045/2004, Rapporteur Christa Randzio-Plath, 7, 12. 148 Committee on Constitutional Affairs, On the Revision of the Framework Agreement between the European Parliament and the Commission, A6-0147/2005, Rapporteur Jo Leinen, [5].

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passage of the principal regulation or directive, normally through the ordinary legislative procedure, but it may have little input in deciding whether the OMC should be the chosen mode of implementation, and it will have scant involvement if the OMC is chosen as the method of implementation. This could well lead to inter-institutional tensions and conflict redolent of those that  have dogged the exclusion of the European Parliament from the passage of ­secondary norms pursuant to the Comitology procedures.149 Indeed there are currents in  the ­literature that draw this analogy, regarding both as instances of deliberative supran­ationalism, to be defended notwithstanding the marginalization of the European Parliament. There are real difficulties with this view in relation to Comitology,150 and the marginalization of the European Parliament from the OMC should not be viewed with equanimity. This does not mean opposition to the OMC. The soft law approach that it embodies with its emphasis on learning, benchmarking, and peer pressure may be a valuable adjunct to normal regulatory techniques. It does mean that we need to think seriously about the role of the European Parliament in this respect. The European Parliament should have a say in the choice of regulatory technique, and if the OMC process is chosen we should then ensure that the European Parliament is able to play a role therein in the manner elaborated by the reports of the European Parliament committees set out earlier. This is important in and of itself. It is also important to the broader legitimacy of the OMC. The vision of the OMC as a manifestation of some ‘democratic’ form of deliberative problem-solving assumes that we can locate the input from somewhere, thereby warranting that appellation. If it does not come from the European Parliament, or indeed national parliaments, then it must be sought through input from the bottom, via participation of affected parties. It is, however, not clear that the empirical evidence of participation can sustain this vision. It is to this issue that we now turn.

(D) Participation Participation is central to the OMC. The very word ‘open’ connotes that the process should be inclusive, not exclusive, and carries the implication that participation should be possible ‘throughout the policy chain from agenda-setting to implementation and monitoring—and in all fora: committees subordinate to the Council formations, indicators’ working groups, and peer review process’.151 There seems to be some connection between the degree of participation and the degree of politicization, with higher degrees of politicization making it more difficult for actors to participate, although this is not invariably the case.152 It is important to judge the reality of participation in the areas where the OMC is used. In the context of the EES de la Porte and Nanz found that the participation of 149  Ch 5. 150  See above, 124–6. 151  De la Porte and Nanz (n 71) 272. 152  C de la Porte and P Pochet, ‘The Participative Dimension of the OMC’, paper delivered at the Conference on ‘Opening the Open Method of Coordination’, EUI Florence, 4 July 2003.

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European labour and management organizations had been rather limited, notwithstanding that they were encouraged to contribute.153 They found that the participation of social partners at the national level had improved, but that ‘progress is disappointing overall compared to the incentives taken to improve their participation’.154 The authors provided valuable data on participation of social partners in the national action plans made under the EES.155 In all but one instance the NAP was characterized as a governmental rather than joint document, although there were direct contributions made by the social partners to the NAP in seven out of fifteen countries, normally in relation to the adaptability pillar. The study revealed that the quality of social partner participation was vulnerable to domestic political change, and that it had declined in certain countries where right-wing governments were in power. There was, however, a high level of satisfaction with participation in six of the countries, though not surprisingly this correlated with their contribution to the NAP. The Commission also encouraged participation from local actors, even though there is no legal obligation to consult them, basing its initiatives rather on the Lisbon Council remit to foster participation at all levels. There was some evidence that participation by local actors had increased, although this was mainly focused at the level of implementation rather than policy design. There was, moreover, some involvement of civil society in the EES, notably through interest groups concerned with poverty and the implications of the employment guidelines on poverty. The general conclusion reached by de la Porte and Nanz was that participation of the social partners in the EES had improved at national level over time, but that the input was still weak, that the impact of other civil society actors had been minimal, and that there was some evidence of involvement of local actors at national level at the implementation stage.156 The conclusions reached concerning participation in relation to the EES cannot ­necessarily be generalized to other areas where OMC operates. It is, however, only through studies of this nature that one can discern the reality of participatory involvement. There is some evidence of greater participation in the context of social inclusion,157 but the extent remains open to question.158 There is also evidence relating to the willingness and desire of different types of organizations to take part in the OMC, with groups that normally have less power in the political process being more anxious to make use of the opportunities afforded by the OMC, while by way of contrast the social partners have been ambivalent, with some fearing that too great an involvement in the EES might compromise their bargaining autonomy and being mindful that they have other ways to influence the relevant agenda.159 153  De la Porte and Nanz (n 71) 278–9. 154  Ibid 279. 155  Ibid 280. 156  Ibid 283. 157  De la Porte and Pochet (n 152) 10–11. 158  K Armstrong, ‘How Open is the United Kingdom to the Open Method of Coordination Process on Social Inclusion?’ in Zeitlin and Pochet with Magnusson (n 71) Ch 9. 159 Zeitlin, ‘The Open Method of Coordination in Action’ (n 71); J Zeitlin, ‘The Open Method of Coordination and Reform of National Social and Employment Policies: Influences, Mechanisms, Effects’ in M Heidenreich and J Zeitlin (eds), Changing European Employment and Welfare Regimes: The Influence of the Open Method of Coordination on National Reforms (Routledge, 2009) Ch 11.

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The general picture is not, however, that encouraging.160 In the economic sphere it is generally acknowledged that the deliberation takes place among members of a select policymaking community, rather than the broader public.161 We should also recall the empirical analysis of committees in the OMC, which revealed that most interviewees felt that the process was relatively closed, and that some pointed to the irony of the term ‘open method of coordination’, given that it was perceived as less open than the traditional Union method.162 Participation is central to the vision of the OMC as an exemplar of democratic deliberation. It is central in terms of input if the OMC is to be viewed as democratic as well as deliberative. It is integral in terms of output to the learning that is a feature of the OMC. It is, therefore, unsurprising that weakness in this respect has led to scepticism of the democratic credentials of the process. The European Parliament’s Committee on Employment and Social Affairs voiced the opinion that ‘as things stand, the open method of coordination is, in many cases, a process conducted between and on behalf of elites, the outcome of intergovernmental negotiation and bargain’.163 Radaelli acknowledges that the OMC may well embody technocratic deliberation. He argues that there is, however, very little in the current practice of the OMC that resembles democratic governance based on bottom-up learning or directly-deliberative polyarchy, and that the real world of the OMC is weak in terms of participation, transparency, domestic salience of the process, and communicative rationality.164 Jacobsson and Vifell note the benefits of the committees that are central to the OMC, but conclude that committee deliberation is a type of elite/expert deliberation, which hardly fulfils all requirements of deliberative democratic theory.165

(E)  Deliberation and Learning The extent to which the OMC has been successful in fostering deliberation and learning is hotly debated in the literature, with differences of view turning on diverse ­interpretation of the empirical data and rival hypotheses as to the correct criterion through which to test whether deliberation and learning have occurred.166 Deliberation and learning are dependent on benchmarks and indicators which structure the process. Benchmarking has become a major tool in both the private and

160  J Zeitlin, ‘Opening the Open Method of Coordination’, paper delivered at the Committee of the Regions’ Conference ‘The OMC: Improving European Governance?’, 30 September 2002; Zeitlin, ‘The Open Method of Coordination in Action’ (n 71). 161  Hodson (n 23) 238. 162  Jacobsson and Vifell (n 122). 163  Committee on Employment and Social Affairs (n 137) 13. 164  C Radaelli, ‘The Open Method of Coordination: A New Governance Architecture for the European Union’ (2003) 1 Swedish Institute for European Policy Studies 1, 49–50. 165  Jacobsson and Vifell (n 122). 166  P Nedergaard, ‘Policy Learning in the European Union, the Case of the European Employment Strategy’ (2006) 27 Policy Studies 311; Zeitlin (n 110); Zeitlin, ‘The Open Method of Coordination and Reform of National Social and Employment Policies’ (n 159).

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the public sphere. It is used frequently by national governments. It is a valuable device for defining goals and measuring performance, but we should be mindful of the difficulties associated with it. There are technical problems of defining best practice, of collecting and collating the relevant data, and of deciding on the balance between quantitative and qualitative measures. These difficulties are compounded when there are several potentially conflicting policy goals. Arrowsmith, Sisson, and Marginson capture this point when remarking that ‘if companies like Alcan find it difficult to benchmark smelting processes between their different plants, how much more difficult is it to benchmark processes such as skills acquisition, innovation or knowledge transfer across different countries of the Union?’167 There is literature assessing the extent to which the ideals of deliberation and learning are realized in the different areas where the OMC applies.168 Valuable work has been done on the role of the committees within the OMC.169 These committees are especially important, since they do not fit the paradigm of other committees within the EU. The OMC is not based on a traditional legislative mandate and hence the normal range of committees and working groups do not generally operate in these areas. The  Employment Committee, the Economic Policy Committee, the Economic and Financial Committee, and the Social Protection Committee play a crucial role in relation to matters such as the guidelines, indicators, peer review, and the like. The conclusions reached by the study are interesting. Jacobsson and Vifell found that much turned on the nature of the agenda. The general aim was to reach consensus and common ground. There was real evidence of deliberation and a willingness to learn from the experience of others, and in that sense strategic bargaining was not the general mode of committee operation. They also found that negotiation and bargaining predominated when matters were politically sensitive, or where they concerned issues of a more rule-setting character. Thus, when formulating recommendations or the precise definition of indicators, the committee discussion tended towards pure negotiation and bargaining. It was, therefore, difficult in sensitive areas to find evidence of national standpoints being modified during the committee interaction. Jacobsson and Vifell further concluded that some committees, such as the Employment Committee, operated as surrogate political forums. This was a measure of the committee’s importance, in the sense that the relevant Council formation would often adopt the committee’s recommendation without modification. Member States would therefore use the committees to place issues on the political agenda, with the consequence that discussions became more like negotiations based on national standpoints, rather than open-ended discussions on best practices. The demand for written statements on

167 J Arrowsmith, K Sisson, and P Marginson, ‘What can Benchmarking Offer the Open Method of Coordination?’ (2004) 11 JEPP 311, 324. 168  B Casey and M Gold, ‘Peer Review of Labour Market Programmes in the European Union: What Can Countries Really Learn from One Another?’ (2005) 12 JEPP 23; D Mabbett, ‘Learning by Numbers? The Use of Indicators in the Co-ordination of Social Inclusion Policies in Europe’ (2007) 14 JEPP 78. 169  Jacobsson and Vifell (n 122).

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policy, the weight of the committee agenda, and the limited timeframe has furthered the tendency towards negotiation and bargain. The study revealed that the degree of deliberation could vary as between committees. It was relatively high in relation to the Economic and Finance Committee composed of economists forming an epistemic community, although there was some evidence that the committee was becoming more politicized because of differences concerning the SGP, and the tensions caused by the failure of some states to comply with its dictates. There was, moreover, some correlation between the degree of deliberation within the committee, and its very lack of openness to other participants, thereby evidencing in this context at least a tension between deliberation and participation. This tension has been evident more generally in the context of the debates about rulemaking and Comitology.170 In more general terms Zeitlin concluded that the strongest impact of the EES and Social Inclusion strategy was to be seen through indirect or higher-order effects, such as the identification of common European challenges and promising policy options, combined with the impact of the OMC in pressing Member States to think afresh about established approaches.171 There were, however, relatively few concrete cases at national level of direct learning from other systems as to what worked and what did not. Direct learning, where it did exist, tended moreover to be concentrated on specific topics, such as gender mainstreaming and the shift towards a preventative approach to unemployment. The evidence of reflexive learning from the results of the OMC processes at EU level was also found to be limited.172 The fullness of the agendas of the OMC committees, combined with the tight timetable for peer review of national action plans, was also found to limit the scope for mutual learning.173 There is a further dimension to deliberation and learning within the OMC: they are dependent on some measure of agreement on the desired end. In the economic sphere there is general agreement that coordination can be beneficial in circumstances where the autonomous actions of individual actors prove harmful to the welfare of others. This is, as we have seen, the general rationale for coordination in this area. There is, however, uncertainty as to the more detailed application of this principle. Thus Hodson notes the ‘diagnostic uncertainty over the exact nature of fiscal spillover within the Euro area and hence over the form that macroeconomic coordination should take’.174 This problem is compounded by ‘prescriptive uncertainty over whether macroeconomic coordination is an appropriate cure for the problem of fiscal spillover’, and by  ‘substantive uncertainty over the definition of the medium-term target’.175 The scope for deliberation within the economic sphere will, moreover, be ‘bounded’ by the institutional setting at national level. The deliberative approach has been criticized in this area because ‘by assuming that political willingness to coordinate is a sufficient 170  Ch 4. 171  Zeitlin, ‘The Open Method of Coordination in Action’ (n 71). 172  Zeitlin is in general more positive about the learning that can flow from the OMC in Zeitlin (n 110); Zeitlin, ‘The Open Method of Coordination and Reform of National Social and Employment Policies’ (n 159). 173  See also Watt (n 71). 174  Hodson (n 23) 234. 175  Ibid 234.

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condition for policy coordination, it ignores the role of domestic budgetary institutions and procedures in the formation of Member State’s fiscal policy’.176

(F)  Peer Pressure The efficacy of the OMC depends in part on peer pressure. National policy change can in principle be driven by mimetic and normative processes, even in the absence of coercive mechanisms and even though there is no lurking shadow of hierarchy.177 This still leaves open the practical effectiveness of peer pressure, which may vary in different areas. This can be exemplified by coordination in the economic sphere. Hodson notes that macroeconomic policy coordination is an inherently uncertain exercise, with costs as well as benefits. The OMC is designed to minimize the costs of coordination, but the delivery of the benefits is doubtful and is dependent on whether ‘consensus building and peer pressure can have the desired impact on Member States’ budgetary decisions’.178 The danger is that ‘while the ambiguity of soft coordination allows for agreement to be struck in an area that is not suited to harder forms of coordination, it also provides a ready-made escape clause for profligate Member States’.179 Hodson and Maher elaborated more specific factors affecting the efficacy of peer pressure within the area of economic coordination.180 The relevant obligations should be defined as specifically as possible, thereby reducing the risk of counterclaim on the part of the censured state; the participants must regard peer rebuke as costly and therefore to be avoided; the body imposing the sanctions must have respect and credibility; and the existence of discretion as to whether to impose the sanction can lead to doubts about its imposition and questions about the evenness with which such discretion is exercised. Hodson, having charted the application of economic coordination in the context of Portugal, remarked that the experience ‘reminds us that the impact of peer pressure as a sanction mechanism requires an obligation that is precisely drawn, a credible sanctioning body that is ready, willing and able to perform its functions, and a Member State that has respect for the rule of law’.181 These sentiments are echoed by Maher, who states that national concerns will often trump the guidelines when states fail to meet the multilateral surveillance targets.182 The very recourse to law by the Commission, unhappy with the way in which the principles of coordination were applied in 2003 to Germany and France, serves to exemplify these issues in a recent high-profile case. These concerns have been echoed by the European Parliament’s Committee on Economic and Monetary Affairs.183 176  Hodson (n 23) 238; Kaiser and Prange (n 22) 250–1 in relation to innovation policy. 177  Borras and Jacobsson (n 109) 195–6; Trubek and Trubek (n 105) 356–9. 178  Hodson (n 23) 233. 179  Ibid 236. 180  Hodson and Maher, ‘Soft Law and Sanctions’ (n 23) 807; Hodson (n 23) 239–40. 181  Hodson (n 23) 245. 182  Maher (n 23). 183  Committee on Economic and Monetary Affairs, A5-0142/2003 (n 146) 6; Committee on Economic and Monetary Affairs, A5-0045/2004 (n 147) 12.

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The sentiments expressed in the previous paragraphs are further reinforced by the events that led to the financial crisis and its implications for the euro from 2008 onwards. The new package of measures considered earlier is designed to tighten ­central control over Member State economic policy.

(G)  Substantive and Procedural Impact The legitimate concern with issues such as transparency, participation, and the like should not lead us to forget the all-important issue concerning the substantive impact of the OMC in the policy areas where it operates. This is a complex issue that cannot be examined in any detail here.184 Suffice it to say for the present that empirical work, combined with official reports, suggest that OMC processes have raised the political salience of employment and social inclusion policies at the national and EU levels, that they have contributed towards the incorporation of EU concepts into national debates, and led to changes in some specific national policies. There are, nonetheless, difficulties in identifying the precise causal impact of the EES and social inclusion processes on national policymaking, since national attention to such matters often preceded the OMC at EU level, and because the OMC is not truly external to policy formation at national level.185 The European Parliament’s Committee on Employment and Social Affairs called on the Commission to study the effectiveness of the OMC to determine the ‘impact of the open method of coordination on national policies, looking not only at efforts made and results obtained, but also into the causal link between the application of the open method of coordination and the adjustment of national policy’.186 There is some positive evidence that the OMC has fostered improvements in national decision-making by encouraging collaboration between independent government departments dealing with employment, social welfare, taxation, and the like, all of which will have some input into NAPs in the areas covered by the OMC.187 There have also been studies concluding that the OMC process has had little positive effect.188

8  The Open Method of Coordination: Future Prospects The OMC will doubtless remain an important tool for policy delivery within the EU. It has the potential to promote deliberation, learning, participation, and the like, while

184  E Barcevičius, J Weishaupt, and J Zeitlin (eds), Assessing the Open Method of Coordination: Institutional Design and National Influence of EU Social Policy Coordination (Palgrave Macmillan, 2014). 185  Zeitlin, ‘The Open Method of Coordination in Action’ (n 71). 186  Committee on Employment and Social Affairs, A5-0143/2003 (n 137) 8. 187 Ibid. 188  Daly (n 94).

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respecting national differences in terms of substantive outcomes. This potential has not been fully realized, and there is the danger that it will come to be another mode of eliteled technocratic governance. There are, however, ways to think about the future of the OMC that make it more likely that the reality of the OMC procedure will live up to its expectations.

(A)  The Relationship between the Economic and Social Order We should be aware of the underlying normative frame within which OMC procedures operate. There is little doubt that the EU is concerned about employment and social inclusion as issues in their own right. There is equally little doubt that they are pursued within an underlying frame that still accords prominence to market discourse and competition. This is apparent from the process initiated at Lisbon and carried forward at Nice, the rationale for the development of the employment chapter, the need to ensure that the employment guidelines and social policies are consistent with the broad economic policy guidelines, and the fact that market integration still remains the dominant ‘discourse’ both politically and legally. The dominance of the market discourse and the constraints that it imposed were clearly represented by Scharpf.189 De Búrca made the same point. She notes the constitutional hierarchy in terms of available instruments and legal status between the EU’s policies concerning market freedoms and those of its social, environmental, and other policies. This has been further reinforced by the way in which the ECJ interpreted the relevant provisions. Thus as de Búrca states, ‘while social, environmental, cultural and other policy concerns were certainly not absent from the EC’s or the Court’s remit, they have been conceived of and dealt with either as justification-requiring exceptions to market-integration norms, or as politically necessary supplements to market liberalisation goals, but rarely as autonomous policy priorities in their own right’.190 It is, therefore, important to consider the future relationship between the economic and social order. Scharpf argued, as we have seen, that there was a constitutional asymmetry in the sense that while economic and social policies have the same constitutional status at national level, economic policy predominates at the EU level. The twin premises behind the OMC are that choices in relation to employment and social policy are still left at the national level, albeit with improvements engendered through benchmarking, peer review, and the like at the EU level, and that the OMC operates largely through soft law. To alleviate the imbalance between the economic and social order Scharpf proposed a combination of framework directives coupled with the OMC. The rationale for this proposal was that since directives were EU law this would ensure ‘constitutional parity’ between the rules concerning social policy and economic policy,

189  Scharpf (n 90). 190  G de Búrca, ‘The Constitutional Challenge of New Governance in the European Union’ (2003) 28 ELRev 814, 818.

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while the fact that the law took the form of a directive, coupled with the continued use of the OMC, would preserve the freedom of Member State choices in these areas.191 It is not clear that this would achieve the constitutional parity that Scharpf desires. Directives, while partaking of the nature of hard law, would have to be relatively open-textured if they were to leave the Member States with the desired freedom of choice. It would, moreover, be for the EU Courts to decide on the relative priorities between directives embodying social norms and those containing economic precepts when there was a clash between the two, and they might well perpetuate the priority of the latter. Whether they do so turns in part on how the EU’s broad objectives are defined. Article 3 TEU contains the EU’s broad list of objectives and it includes the combating of social exclusion and the promotion of social justice. It remains to be seen whether this wording, which differs in certain respects from Article 2 EC, leads to a different balancing as between the economic and social order. It is doubtful whether it will do so, more particularly given the detailed provisions concerning the economic and social orders contained in the TFEU. This reflection on what might occur in the future should not, however, blind us to what is already taking place. Kilpatrick has convincingly argued that a significant characteristic of EU employment governance is that it is a self-consciously integrated regime in which the OMC, European Social Fund, and employment law measures each play distinctive and overlapping roles in realizing social justice and competitiveness, with the EES operating as a bridge between employment legislation cast in terms of imperium measures and the European Social Fund operating through dominium measures.192 There is, moreover, already linkage between directives concerned with race and equality and the OMC objectives. In political terms, the EU is keen to give prominence to the social dimension in the overall 2020 programme,193 more especially because it suffered during the years of the financial crisis, when the emphasis was very firmly on the economic dimension of the EU.

(B)  Reforming the OMC Process There is no simple fix for the difficulties that beset the OMC considered earlier. It is necessary to consider each of these to determine the improvements that might be made. It may well be, as Zeitlin observes, that the best way forward to combat deficiencies in the OMC would be to adopt a reflexive reform strategy, whereby the key ­elements of the method, benchmarking, peer review, iterative redesign, and monitoring are applied to OMC procedures.194 191  Scharpf (n 90) 662–6. 192  C Kilpatrick, ‘New EU Employment Governance and Constitutionalism’ in G de Búrca and J Scott (eds), New Governance and Constitutionalism in the EU and the US (Hart, 2006). 193 http://ec.europa.eu/social/main.jsp?langId=en&catId=750. 194  Zeitlin, ‘The Open Method of Coordination in Action’ (n 71).

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In relation to transparency, further steps could be taken to meet the concerns that information about the process is available to the public. This has already been done in part through placing of documentation on the web. This could be taken further by, for example, increasing the transparency of the principal committees used in the OMC processes by making public not only their formal reports, as currently happens, but also agendas of meetings and internal papers. It is more difficult to address the transparency concerns that relate to the opacity and complexity of the decision-making process itself. In relation to the role of the European Parliament, it would be possible to make headway, along the lines of the proposals made by the European Parliament committees discussed earlier. If we were to pursue this, then the OMC procedure should only be used in any policy area after the European Parliament and the Council have given their approval. It would also be possible to accord the European Parliament a greater role than at present in the operation of the OMC: the European Parliament should be consulted and give an opinion on the relevant guidelines, the summary report, and the recommendations emanating from the OMC process; it should have sufficient time in which to do so; the Council and Commission should take greater account of the European Parliament’s views when drawing up guidelines; and the ­recommendations resulting from the OMC process should be accompanied by the European Parliament’s report.195 Valuable suggestions have been made to enhance participation. The European Parliament Committee on Employment and Social Affairs suggested that each national report should indicate how civil society, including the social partners and local regional and national authorities had been consulted.196 More far-reaching is the suggestion of Zeitlin and de Búrca that there should be an obligation to ensure that the OMC should be conducted as openly as possible in accordance with the principle of transparency, and so as to ensure the fullest possible participation of all relevant bodies and ­stakeholders.197 This is a valuable proposal, which could then be fine-tuned in its ­application to different types of participants. It remains to be seen whether the European Council’s injunction when relaunching the Lisbon strategy that parliaments, regional and local bodies, social partners, and civil society should be regarded as stakeholders and take an active part in attaining its objectives, will make a difference in this respect.198 There is no simple method of increasing the deliberative quality of the discourse and enhancing the learning that is an integral objective of the OMC process. This would be improved if the process were to become more open in the manner considered above,

195  European Parliament Resolution B5-282/2003, T5-268/2003. 196  Committee on Employment and Social Affairs, A5-0143/2003 (n 137). 197  G de Búrca and J Zeitlin, ‘Constitutionalising the Open Method of Coordination: What Should the Convention Propose?’, Centre for European Policy Studies Brief No 31 (2003); Zeitlin, ‘The Open Method of Coordination in Action’ (n 71). 198  European Council, Presidency Conclusions, 22–3 March 2003, [6].

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more especially if this were accompanied by a cognizable obligation to take the views of the participants into account when reaching conclusions. An obligation on Member States to mainstream OMC processes into national decision-making would also be valuable in this respect. So too are initiatives already in play, such as the thematic seminars run by the Employment Committee focusing on particular topics such as ageing, which are designed to disseminate best practice and facilitate mutual learning.199 The relationship between the OMC and the Charter of Rights is another area in which progress could be made. There are, as de Búrca has pointed out, two ways in which this could occur. The OMC ‘could be used as a way of giving concrete contextual meaning to the various rights set out in the Charter’.200 Thus the OMC could on this view be the vehicle through which general and abstract guarantees in the Charter, such as rights to education, access to health care, and the like, were fleshed out in the context of particular policies. The other possibility is that the Charter rights ‘could operate as ideal norms in relation to which the outcome of the process would be appraised, and which could be used to stimulate reform or revision of the standards which emerge when the outcomes are considered substantively unsatisfactory’.201 It would then be open to the EU Courts through judicial review to ensure that the rights had been taken into account in the OMC process and to require those involved in the process to explain how this was done.202

9 Conclusion The OMC has been controversial from its inception. There have been critiques in terms of its legitimacy and accountability,203 and questions have been raised as to whether it has achieved its headline goals, such as greater job creation.204 The OMC, nonetheless, looks set to stay as a mode of policy delivery for the EU for the very reasons considered in this chapter. The areas in which it is used are either ones in which the Member States are unwilling to accord the EU more far-reaching regulatory competence sounding in  hard law, or where the imposition of uniform EU solutions would be inherently ­undesirable, given the normative diversity that exists within the Member States. The OMC technique has considerable potential as a vehicle for promoting deliberation, participation, mutual learning, and the like, while respecting national differences. This potential has not, however, been fully realized. Whether this can be done or whether 199 http://ec.europa.eu/social/main.jsp?catId=1047. 200  De Búrca (n 190) 834. 201 Ibid. 202  See also N Bernard, ‘A “New Governance” Approach to Economic, Social and Cultural Rights in the EU’ in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights (Hart, 2003) Ch 11; O De Schutter, ‘The Implementation of Fundamental Rights through the Open Method of Coordination’ in De Schutter and Deakin (n 123) 279–342. 203  V Hatzopoulos, ‘Why the Open Method of Coordination is Bad for You: A Letter to the EU’ (2007) 13 ELJ 309; S Kroeger, ‘The End of Democracy as We Know It? The Legitimacy Deficits of Bureaucratic Social Policy Governance’ (2007) 29 Jnl of European Integration 565. 204  G Raveaud, ‘The European Employment Strategy: Towards More and Better Jobs?’ (2007) 45 JCMS 411.

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the OMC will partake more of the character of elite and expert-led dominance is the challenge for the future. Armstrong captures the current position,205 The title of this essay begged the question whether the ‘OMC’ had become an obstinate or obsolete method of coordination. It is clear that policy coordination is alive and well in the form of the European Semester. Coordination is being used as both a means of elaborating a normative framework for the conduct of domestic policymaking and at the same time a tool to monitor compliance with this framework. Beyond this core of meta-coordination, satellite coordination processes are present to greater or lesser extents as distinctive ‘OMC’ processes. While an obstinate form of EU governance, the legitimating discourse that ­heralded the diffusion of ‘the OMC’ as a means of filling competence and legitimacy gaps is perhaps now obsolete.

205  K Armstrong, ‘The Open Method of Coordination—Obstinate or Obsolete?’, University of Cambridge Faculty of Law Research Paper No 45/2016, 60.

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8 Social Partners 1 Introduction We saw in the previous chapter that the social partners were afforded a role in the Open Method of Coordination (OMC). This chapter considers the ways in which the social partners are involved in the making of EU policy.1 The discussion begins with the emergence of the social dialogue. This is followed by analysis of the Treaty articles, with more specific elaboration of the ways in which the social partners can participate in the making of social policy. The focus then turns to the role of the social partners in the making of agreements that can be transformed into formal law, the problems associated with this process, and the justifications offered for this privileged position. The ensuing discussion shifts to consideration of what are now known as autonomous agreements concluded by the social partners, which do not have the formal status of law, but which are important nonetheless. The chapter concludes by looking at less formal texts produced by the social partners through sectoral social committees, and the efforts that have been made to render these more effective than hitherto.

2  The Emergence of the Social Dialogue The social dialogue is normally regarded as having its origin in the initiative of Jacques Delors in 1985. He invited the European social partners to cooperate with a view to improving growth and employment in the EU. The first step towards a constructive dialogue is traditionally known as the Val Duchesse process. The social partners 1  B Bercusson, ‘The Dynamic of European Labour Law after Maastricht’ (1994) 23 ILJ 1; B Bercusson and J Van Dijk, ‘The Implementation of the Protocol and Agreement on Social Policy of the Treaty on European Union’ (1995) 11 IJCLLIR 3; S Sciarra, ‘Social Values and the Multiple Sources of European Social Law’ (1995) 1 ELJ 60; G Brinkmann, ‘Lawmaking under the Social Chapter of Maastricht’ in P Craig and C Harlow (eds), Lawmaking in the European Union (Kluwer Law International, 1998) Ch 12; H Cullen and E Campbell, ‘The Future of Social Policy-Making in the European Union’ in Craig and Harlow, Lawmaking in the European Union, Ch 13; S Smismans, Law, Legitimacy, and European Governance: Functional Participation in Social Regulation (Oxford University Press, 2004) Ch 6; S Smismans (ed), Civil Society and Legitimate European Governance (Edward Elgar, 2006); C Barnard, ‘EC “Social” Policy, from Employment Law to Labour Market Reform’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 2nd edn, 2011) Ch 21.

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involved at this stage were the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP); the Union of Industrial and Employers’ Confederations of Europe (UNICE); and the European Trade Union Confederation (ETUC). The social partners proposed that this process be recognized within the Treaties in 1991. This was achieved in part in the Maastricht Treaty via the Protocol on Social Policy. The Protocol was signed by all Member States and allowed all Member States, with the exception of the UK, which opted out of the provisions, to make use of Community instruments so as to be able to make social policy on the basis of the Agreement on Social Policy. The Protocol was incorporated into the main body of the Treaty by the Treaty of Amsterdam in 1997, this being facilitated by the change of government in the UK which ended the opt-out from these Articles. The social dialogue is important not only as a mechanism for the making of particular legislation, but also as a way of advancing EU social policy. This is apparent from the Lisbon European Council 2000,2 the importance of which was considered in the previous chapter.3 The EU was ‘to become the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion’.4 The focus was in part economic: the enhancement of an information society open to all, encouragement of a European research area, the creation of an environment friendly to new business, the ­coordination of macroeconomic policy, and a fully operational internal market. The plan also had an overtly social dimension: there was to be education and training for those living and working in the knowledge society, the development of an active employment policy, modernization of social protection, and the promotion of social inclusion. The Lisbon approach was developed further at the Nice European Council in December 2000.5 The implementation of the social agenda should make use of ‘all existing Community instruments bar none’6, including the OMC, legislation, the social dialogue, the Structural Funds, the support programmes, the integrated policy approach, analysis, and research. The social dialogue was thus regarded as one instrument to help attain the Community’s social agenda. There were efforts to further reinvigorate the process of social dialogue in 2016, through a jointly issued document that stressed the different ways in which the social partners could positively contribute to EU policymaking. This could occur through bilateral discourse between management and labour, and through discussions between management, labour, and the EU institutions.7 It was agreed that there should be closer involvement of the social partners in the European Semester; stronger emphasis on 2  Lisbon European Council, Presidency Conclusions, 23–4 March 2000.    3  See above, 199–202. 4  Lisbon European Council (n 2) [5]. 5  Nice European Council, Presidency Conclusions, 7–9 December 2000.    6  Ibid Annex I, [28]. 7  A New Start for Social Dialogue, Statement of the Presidency of the Council of the European Union, the European Commission and the European Social Partners, 27 June 2016, http://ec.europa.eu/social/main. jsp?catId=329&langId=en; A New Start for Social Dialogue, August 2016, http://ec.europa.eu/social/main.jsp ?catId=738&langId=en&pubId=7918&type=2&furtherPubs=yes.

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capacity building of national social partners; increased involvement of social partners in EU policy- and law-making; and a clearer relation between social partners’ agreements and the Better Regulation Agenda.

3  The Treaty Framework The principal provisions about the social partners and their role in the legislative process are now found in Part Three, Title X of the TFEU. Article 151 TFEU provides that the Union and the Member States shall have as their objectives: the promotion of employment; improved living and working conditions, so as to make possible their harmonization while the improvement is being maintained; proper social protection; dialogue between management and labour; and the development of human resources with a view to lasting high employment and the combating of exclusion. To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the EU economy. In order to achieve these objectives Article 153(1) TFEU provides that the EU shall support and complement the activities of the Member States in a number of specified fields: improvements in the working environment to protect workers’ health and safety; working conditions; social security and social protection of workers; protection of workers where the contract is terminated; information and consultation of workers; representation and collective defence of the interests of workers and employers; employment conditions for third country nationals legally residing in the EU; integration of those excluded from the labour market; equality between men and women in the labour market and treatment at work; the combating of social exclusion; and the modernization of social protection systems. The EU’s legislative competence within these areas is limited. This is apparent from Article 153(2) TFEU. The European Parliament and Council can adopt measures designed to encourage cooperation between Member States through initiatives to improve knowledge, develop exchanges of information, and best practices, but these measures cannot harmonize the laws of the Member States.8 The European Parliament and Council can in most of the areas listed9 adopt directives that set minimum requirements for gradual implementation, having regard to the conditions and technical rules in each Member State.10 The provisions adopted shall not affect the right of the Member States to define the fundamental principles of their social security systems and must not affect their financial equilibrium; and such EU provisions shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaty.11 8  Art 153(2)(a) TFEU. 9  The exceptions being the combating of social exclusion and the modernization of social protection systems. 10  Art 153(2)(b) TFEU.    11  Art 153(4) TFEU.

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It is, in this respect, important to disaggregate a number of different ways in which the social partners may be involved with the furthering of social policy.12

(A)  The Social Partners and Implementation of Directives: Article 153 It is open to a Member State to entrust management and labour at their joint request with the implementation of directives made pursuant to Article 153(2) TFEU. The Member State must ensure that management and labour have introduced the necessary measures no later than the date when the directive is to be transposed into national law. It is also incumbent on the Member State to take any measures necessary to place it in a position to guarantee the results imposed by the directive.13

(B)  The Social Partners and Consultation: Article 154 There are duties to consult management and labour about social policy.14 The Commission is charged with the task of promoting consultation of management and labour at EU level and shall take any relevant measure to facilitate that dialogue by ensuring balanced support for the parties. It has a duty to consult management and labour on the possible direction of Union action in the social policy field. If after such consultation the Commission considers that EU action is advisable it shall consult management and labour on the content of the proposal. It is then for management and labour to send a recommendation or opinion to the Commission.15

(C)  The Social Partners, Agreements, and Law: Article 155 Management and labour may shape the resulting norm and have a role in its promulgation. It is open to them during the consultative process16 to inform the Commission that they wish to make use of the process contained in Article 155 TFEU. They can signal that they wish the Union dialogue to lead to contractual relations, including agreements.17 Thus far cross-industry agreements have generally been negotiated by ETUC, UNICE, and CEEP, but they may include other organizations in their negotiating team. Such agreements can be implemented in two ways. The agreement may be implemented in accord with the procedures and practices specific to management and labour and the Member States.18 The Commission has termed agreements implemented in this manner as autonomous agreements,19 by way 12  Vademecum, Commission Support to EU Social Dialogue, A Practical Guide for European Social Partner Organizations and their National Affiliates, July 2017, http://ec.europa.eu/social/main.jsp?catId=329&langId=en. 13  Art 153(3) TFEU.    14  Art 154 TFEU. 15  Consulting European Social Partners: Understanding how it Works, 2011, http://ec.europa.eu/social/ main.jsp?catId=738&langId=en&pubId=6152&furtherPubs=yes; Vademecum (n 12) 9. 16  Art 154(4) TFEU.    17  Art 155(1) TFEU.    18  Art 155(2) EC. 19 Partnership for Change in an Enlarged Europe—Enhancing the Contribution of European Social Dialogue, COM(2004) 557 final, Annex 2, [1].

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of contrast to those agreements implemented by Council decision. The Commission has also made it clear that it retains a responsibility for agreements implemented in this manner where the agreement was the result of an Article 154 consultation, since the  decision to negotiate suspends the normal legislative process at EU level.20 The Commission will therefore publish such autonomous agreements and inform the Council and the European Parliament. On the expiry of the implementation and ­monitoring period, while being respectful of the monitoring undertaken by the social partners, the Commission will undertake its own monitoring to assess whether the agreement has contributed to the attainment of the EU’s objectives. Where the Commission takes the view that the agreement has not succeeded in meeting these objectives, it may propose a legislative act, and it reserves this power even during the implementation period if it feels that management or labour are delaying the pursuit of Union objectives. The alternative mode of implementing the agreement is via a Council decision. Where the subject matter falls within Article 153 TFEU, management and labour may request that the agreement be implemented by a Council decision21 on a proposal from the Commission.22 The Commission has made it clear that it prefers this mode of implementing an agreement, as opposed to the first mode, where fundamental rights or important political options are at stake, in situations where the rules must be applied in uniform fashion in all Member States, where coverage must be complete, or where there is a modification to a pre-existing directive.23 The default position is that the Council acts by qualified majority, except where the agreement contains provisions relating to an area where unanimity is required. It is normal for the Council simply to accept the agreement as made between the social partners without amendment, and the Commission has signalled that it would withdraw the draft legislation if the Council sought to amend it. The Council decision will normally be brief and the agreement made between management and labour will be incorporated as an annex to the decision. If this route is chosen then the decision will be formally binding and cover all workers. It has led to the enactment of intersectoral Directives on issues such as Parental Leave,24 Part-Time Work,25 and Fixed-Term Work.26 There have also been sectoral directives on the organization of working time for seafarers27 and those in civil 20  Ibid [4.4]. 21  The term decision as used here is broader than its usage in Art 288 TFEU. It can cover any legally binding act, and it is common for directives to be made pursuant to Art 155(2) TFEU. 22  Art 155(2) TFEU.    23  Partnership for Change (n 19) [4.4]. 24  Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and ETUC [1996] OJ L145/4. 25  Council Directive 97/81/EC of 15 December 1997 concerning the framework agreement on part-time work concluded by UNICE, CEEP, and the ETUC—annex framework agreement on part-time work [1998] OJ L14/9. 26  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-time work concluded by ETUC, UNICE and CEEP [1999] OJ L175/43. 27  Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC [2009] OJ L124/30.

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aviation,28 and on prevention of sharp injury in the health sector.29 Such Directives are referred to as framework agreements, since they will commonly leave room for Member States and/or the social partners to fill out the content.

(D)  The Social Partners, Process-Oriented Texts, and Joint Opinions There is a further mode of contribution by the social partners to the development of social policy that warrants separate mention. This is the role of the sectoral social dialogue committees.30 In 2016, there were forty-three sectoral dialogue committees, ­covering areas such as agriculture, civil aviation, banking, commerce, personal services, railways, road transport, and construction.31 The committees have formulated guides, communications, codes of conduct, and recommendations and opinions that are intended to improve practice in the specific industrial sector. They have produced more than 300 such texts. The label ‘process-oriented texts’ was chosen by the Commission to distinguish this aspect of the social dialogue from that considered earlier.32 This category consists of a variety of joint texts which are implemented in a more incremental and process-oriented way than agreements. In these texts the European social partners make recommendations of various kinds to their membership for follow-up, and they should involve regular evaluation of the progress made towards achieving their objectives in order to ensure they have a real impact. The implementation of some of these texts may require cooperation with national public authorities.

The Commission’s taxonomy of the forms of social dialogue distinguished processoriented texts from ‘joint opinions and tools’ concerned with the exchange of information.33 This category consists of social partner texts and tools which contribute to exchanging information, either upwards from the social partners to the European institutions and/or national public authorities, or downwards, by explaining the implications of EU policies to national members. The instruments in this category do not entail any implementation, monitoring or follow-up provisions.

28  Council Directive 2000/79/EC of 27 November 2000 concerning the European agreement on the organisation of working time of mobile workers in civil aviation concluded by the AEA, the ETF, the ECA, the ERA and the IACA [2000] OJ L302/57. 29  Council Directive 2010/32/EU of 10 May 2010 implementing the Framework Agreement on prevention from sharp injuries in the hospital and healthcare sector concluded by HOSPEEM and EPSU [2010] OJ L134/66. 30  98/500/EC: Commission Decision of 20 May 1998 on the establishment of Sectoral Dialogue Committees promoting the Dialogue between the social partners at European level (notified under document number) [1998] OJ L225/27. 31 http://ec.europa.eu/social/main.jsp?catId=480&langId=en; European Sectoral Social Dialogue Recent Developments (European Commission, 2010); On the Functioning and Potential of European Sectoral Social Dialogue, SEC(2010) 964 final; Partnership for Change (n 19) Annex 4; Vademecum (n 12) 11–12. 32  Partnership for Change (n 19) Annex 2, [II].    33  Ibid Annex 2, [III]; Vademecum (n 12) 22.

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(E)  The Social Partners and the Open Method of Coordination The social partners also contribute to policy development through the OMC, as it applies to economic policy, employment policy, and social policy. This was considered in the previous chapter and reference should be made to that discussion. Suffice it to say for the present that the precise role accorded to the social partners differs in the different areas to which OMC applies. It is, however, generally recognized that the impact of the social partners has been less than many observers might have hoped. The Commission has attempted to reinvigorate this aspect of the OMC process.34

(F)  The Tripartite Social Summit for Growth and Employment It is clear from the discussion thus far that the social partners are involved with social policy in a variety of ways. In their contribution to the Laeken European Council 2001 the social partners pointed out that the existing mechanisms for ensuring coherence and synergy between the various processes in which they were involved were not ­effective. This led the Commission to propose the creation of a Tripartite Social Summit for Growth and Employment,35 and this was established.36 The current Decision dates from 2016.37 The task of the Summit is to ensure that there is ‘continuous concertation’38 between the European Council, Council, Commission, and the social partners by enabling the social partners to contribute, in the context of their social dialogue to the various components of the integrated economic and social strategy. The Summit consists of the Presidents of the European Council and the Commission, the Council Presidency, representatives of the two subsequent Presidencies, the Commissioner for employment and social affairs, and the social partners represented at the highest level. The social partners’ representatives consist of two delegations: ten worker representatives and ten employers’ representatives. Each delegation must be made up of representatives of European cross-industry organizations, either representing general interests or more specific interests of supervisory and managerial staff and small and medium-sized businesses at European level. The agenda for the Summit is set by the Council Presidency, the Commission, and the workers’ and cross-industry organizations taking part in the work of the Summit during preparatory meetings. The Summit meets at least twice a year and a meeting must be held before the Spring European Council that deals with economic and social matters. The recitals to the 2016 Decision attest to the need for the social partners to be 34  The European Social Dialogue, a Force for Innovation and Change, COM(2002) 341 final, [2.2]–[2.3]. 35 Ibid. 36  Council Decision 2003/174/EC of 6 March 2003 establishing a Tripartite Social Summit for Growth and Employment [2003] OJ L70/31. 37  Council Decision (EU) 2016/1859 of 13 October 2016 on the Tripartite Social Summit for Growth and Employment and repealing Decision 2003/174/EC [2016] OJ L284/27. 38  Ibid Art 1.

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more involved in Economic and Monetary Union (EMU), in order that the social dimension of EMU policy can be adequately taken into account.39

(G)  The Social Partners and the European Council The preceding analysis has been concerned with the varying ways in which the social partners contribute to the development of social policy. It would, however, be incomplete if it did not take into account the role of the European Council, which was the principal player in the initiation of the Lisbon strategy for social and economic progress, with all that this entailed in terms of the OMC and the role of the social partners therein. It was the European Council that drew together the disparate Treaty provisions dealing with these matters, while adding a political overlay that was significant even though not formally binding. European Council initiatives continue to be of direct relevance for the role of the social partners. This can be exemplified by the Spring Summit 2004,40 which considered the Lisbon Strategy and the economic, social, and environmental situation in the EU. The European Council specified a number of detailed initiatives that should be undertaken by the Council, the Commission, and the Member States in each of these areas. The conclusions of the European Council then contained a section on ‘building partnerships for reform’.41 The European Council stated that support and advocacy for change must reach beyond governments. It called on Member States to build reform partnerships involving the social partners, civil society, and public authorities in accord with national traditions. The social partners were seen as especially important in this regard, as exemplified by the Tripartite Social Summit, and the European Council advocated further action to boost their role in advancing the Lisbon strategy. The European Council’s initiatives in this regard were partly spurred by the Commission, and led also to the subsequent Commission Communication on Partnership for Change in an Enlarged Europe,42 which sought to flesh out in more detail ways in which the social dialogue could be enhanced. The need to relaunch the Lisbon strategy was central to the Spring Summit 2005, and the European Council welcomed the support from the social partners in the Tripartite Summit that preceded the meeting of the European Council.43 The following discussion will consider the role of the social partners in the making of agreements that are transformed into formal law, their role in relation to a­ utonomous agreements, and their more diverse contribution to EU social policy through processoriented texts and joint opinions produced by the sectoral social dialogue committees.

39  Ibid recs 5–6. 40  Council of the European Union, Brussels European Council, 25–6 March 2004, Presidency Conclusions, 9048/04, Brussels, 19 May 2004. 41 Ibid [43]–[45].   42  Partnership for Change (n 19). 43  Council of the European Union, Brussels European Council, 22–3 March 2005, Presidency Conclusions, 7619/1/05, Brussels, 23 March 2005, [4]–[9].

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4  The Social Partners, Agreements, and Formal Law The novel aspect of the Treaty provisions is the ability of the social partners to broker an agreement that can be transformed into EU law. This applies, as we have seen, when the signatory parties request that their agreement should be formalized through a Council decision made pursuant to a Commission proposal.44 This method of delivering EU policy raises a number of important issues.

(A)  Rationale and Legitimacy: Representation It is readily apparent that ensuring adequate representation in the social dialogue leading to an agreement is a necessary, if not sufficient condition, for its legitimacy and that this is a fortiori the case where the agreement is then formalized as binding law. This has been recognized by the Commission, which acknowledged that ‘the legitimacy and effectiveness of the social-partner consultation is based on their representativeness’.45 The Treaty Articles left this issue open: they are framed in terms of management and labour without any further and better particulars as to which organizations should be able to represent the respective sides of industry. It was for this reason that the Commission issued a Communication in 1993, which was re-issued in 1998, that delineated three criteria for inclusion within the social dialogue:46 the associations must be cross-industry or relate to specific sectors or ­categories and be organized at European level; they must consist of organizations which are themselves an integral and recognized part of Member State social structures, and have the capacity to negotiate agreements and be representative of all the Member States as far as possible; and they must have effective structures to ensure their effective participation in the consultation process. The meaning and application of these criteria were considered in a study undertaken at the request of the Commission by the Institute des Sciences du Travail (IST) at the Catholic University of Louvain.47 The IST Report contains a mine of useful information concerning the general characteristics of the organizations studied, data on their representativeness, and the extent to which the organization had been recognized at European level. The study noted, however, that the Commission criteria were ­ambiguous. Thus in relation to the first criteria of being cross-industry it was possible for an employers’ group representing, for example, various craft workers to claim to fulfil this 44  Art 155(2) TFEU.    45  The European Social Dialogue (n 34) [1.1]. 46  Concerning the Application of the Agreement on Social Policy Presented by the Commission to the Council and to the European Parliament, COM(1993) 600 final, [24]; Adapting and Promoting the Social Dialogue at Community Level, COM(1998) 322 final. 47  Report on the Representativeness of European Social Partner Organisations, Part  1 (IST, Université Catholique de Louvain, 1999).

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test ‘without in fact representing any significant number in the majority of industrial sectors’.48 There were also organizations that were cross-industry in that they represented many sectors of economic activity, but which only represented particular ­categories of workers such as white collar or blue collar. The condition that the association should be organized at European level was equally open to multiple meanings, and if it were interpreted literally then any organization with branches in several Member States, managed by EU nationals, whose statutes declared an intention to operate at the EU level would fulfil this condition.49 Similar difficulties beset the interpretation of the second criterion, that the organizations should be an integral and recognized part of Member State social structures, and have the capacity to negotiate agreements and be representative of all the Member States as far as possible. An organization might be cross-industry in vocation and composed of national organizations ‘considered as social partners within their countries, but which nevertheless represent only a limited number of sectors of economic activity’.50 Moreover, the recognition of the legitimacy of an organization to negotiate collective agreements or participate in social policy could be interpreted in different ways, including ‘the organization’s ability to effectively mobilise workers or to quantify thresholds linked to the results of social elections’.51 The third condition, that the association must have effective structures to ensure its effective participation in the consultation process, could also be understood in a v­ ariety of ways, including ‘the nature of the organization’s internal balance of power, the institutional procedures for taking decisions or deciding on an official position, the process for selecting representatives and delegates etc’.52 The IST Report contains, as stated earlier, valuable data on the representativeness of the different organizations studied. It also revealed that the very idea of representativeness was accorded varying significance by different organizations. Speaking of UNICE, the principal employers’ organization, the report noted that the ‘question of the representativeness of the employers’ organizations has historically been the subject of little debate within industrial relations systems compared with their trade union counterpart’.53 The report continued in the following vein.54 This no doubt reflects the historically uneven balance of power between capital and work, but also a degree of decentralization among the employers’ organizations, the leadership structures of which have never had a strong influence on the lower structures, in contrast to some trade union organizations. Finally, it appears that only when the ­legitimacy of one or more organizations is called into question is any particular attention paid to representativeness. With a few notable exceptions, the representativeness of employers’ organizations has rarely been questioned except with regard to SMEs [small and medium-sized enterprises]. The importance of SMEs has sometimes been considerable but, clearly never to the point of justifying precise measurement of their membership of employers’ organizations. 48  Ibid 3.   49 Ibid 5.   50 Ibid 5.   51 Ibid 5.    52  Ibid 6.   53 Ibid 43.   54  Ibid 43.

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The representativeness of employers’ organizations did, however, come to the fore in the UEAPME case,55 in which this organization representing small and medium-sized employers challenged the legality of the Parental Leave Directive,56 arguing that since it had been represented at the ‘informal’ consultation stage it should have been involved with the formal negotiation leading to the agreement and the directive.57 The CFI rejected the claim. It held that the consultation stage had to be distinguished from the negotiation of the agreement: there was no general right for those consulted to partake in the negotiations leading to the agreement, nor was there any individual right to participate in the negotiation of the framework agreement.58 The CFI qualified this to a certain extent by finding that the Commission had an obligation to consider the representativity of the parties to an agreement proposed for implementation via a Council decision, and that it was for the Council to check that the Commission had done so. Where the required degree of representativity did not exist the Commission and the Council should refuse to implement the agreement at the Community level.59 The CFI decided that the Commission and Council had fulfilled this obligation in the instant case. The Parental Leave Agreement dealt with the entirety of employment relationships, and the signatories were sufficiently collectively representative to speak for all categories of undertakings and workers, since they were cross-industry organizations having a general mandate. The CFI also took into account the fact that UNICE represented many small and medium-sized undertakings. The legal action was not entirely in vain, since it acted as the catalyst for an agreement between the European Association of Craft, Small and Medium-Sized Enterprises (UEAPME) and UNICE. UEAPME’s initial reaction to the judgment was to lodge an appeal to the ECJ. It discontinued the action because it reached a cooperation agreement with UNICE in 1999.60 Under the agreement UEAPME recognized UNICE as the sole European organization representing business undertakings of all sizes in all sectors of the economy, and acknowledged that many of the businesses represented by UNICE were small and medium-sized. UNICE for its part recognized that UEAPME was the principal cross-industry organization representing the specific interests of small and medium-sized businesses, and that it therefore had a useful role to play in the social dialogue in defending employers’ interests. UNICE would, therefore, consult UEAPME before taking public positions on behalf of employers in negotiations and in the social dialogue. UEAPME would play a full part in the preparatory meetings with the employers’ group and in plenary meetings with ETUC.

55  Case T-135/96 Union Européenne de l’artisanat et des petites et moyennes enterprises (UEAPME) v Council [1998] ECR II-2335. 56  Dir 96/34 (n 24). 57  E Franssen and A Jacobs, ‘The Question of Representativity in the European Social Dialogue’ (1998) 35 CMLRev 1295; L Betten, ‘The Democratic Deficit of Participatory Democracy in Community Social Policy’ (1998) 23 ELRev 20. 58  Case T-135/96 UEAPME (n 55) [82].    59  Ibid [90]. 60  IST Report (n 47) 41; http://ec.europa.eu/social/main.jsp?catId=479&langId=en.

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The Commission for its part is trying to keep the list of social partner organizations consulted up to date. In 2002 it produced a revised list of the social partner organizations consulted under Article 154.61 This was revised again in 2004,62 and has been updated for the Lisbon Treaty.63 The list specifies general cross-industry organizations; cross-industry organizations representing certain categories of workers or undertakings; specific organizations; sectoral organizations representing employers; and European trade union organizations. The list is adapted as new sectoral social dialogue committees are established and in the light of new studies on representativeness. This is entirely laudable. The problem of ensuring that the social partners that negotiate agreements are properly representative, more especially when the agreements negotiated are transformed into formal law, is nonetheless a continuing one. The problem has, moreover, been exacerbated by changes in patterns of work and trade union membership. Barnard notes that the decline in trade union membership means that even in traditional labour law areas ‘the extent to which trade unions actually represent the “people”, especially women is questionable’.64 The consequential danger is that ‘by involving the social partners in an attempt to broaden the legitimacy base of governance in the EU by being more inclusive, the result is greater exclusivity and even competitive elitism’.65 It is, however, important to note that in 2006 the European Commission mandated the European Foundation for the Improvement of Living and Working Conditions (Eurofound) to carry out studies on the representativeness of European social partner organizations, with the aim of identifying the relevant national and supranational interest associations in the field of industrial relations in selected sectors. Eurofound had, to the end of 2014, completed almost forty such studies.66

(B) Rationale and Legitimacy: Better Governance as Social Subsidiarity Representativeness is a necessary condition for the legitimacy of the social dialogue that leads to agreements which can be transformed into formal law. It is not sufficient. The Commission as the institution with the primary responsibility for organizing the social dialogue67 sees the justification for this dialogue in terms of better governance.68 A closer reading of the Commission’s reasoning reveals a number of intersecting strands of thought, one of which is social subsidiarity. The Commission views the scheme embodied in the Treaty as fostering social ­subsidiarity. The consultation exercise conducted by the Commission may lead to 61  The European Social Dialogue (n 34) Annex 1.    62  Partnership for Change (n 19) Annex 5. 63  http://ec.europa.eu/social/main.jsp?catId=522&langId=en; On the Functioning and Potential of European Sectoral Social Dialogue (n 31) [3.1], Annex 1. 64  C Barnard, ‘The Social Partners and the Governance Agenda’ (2002) 8 ELJ 80, 93.    65  Ibid 93. 66  https://www.eurofound.europa.eu/representativeness-studies-methodology; Vademecum (n 12) 8. 67  Art 154(1) TFEU.    68  The European Social Dialogue (n 34) [1].

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agreements that are then incorporated into EU law. This is seen as an application of the principle of social subsidiarity in that ‘it is for the social players to make the first move to arrive at appropriate solutions coming within their area of responsibility; the Community institutions intervene, at the Commission’s initiative, only where ­negotiations fail’.69 The Commission reiterated this idea in 2004. It stated that the social dialogue is a ‘pioneering example of improved consultation and the application of subsidiarity in practice and is widely recognized as making an essential contribution to better governance, as result of the proximity of the social partners to the realities of the work place’.70 This echoes the earlier Council Resolution on EU Social Policy, which welcomed the role of the two sides of industry in the social dialogue as a ‘forward-looking result of the Maastricht Treaty and a concrete contribution to the attainment of the subsidiarity principle in social policy’.71 There are traces of similar ideas within the academic literature. Thus Streeck72 viewed the social dialogue as functional subsidiarity, in which power is distributed between those operating at the same level, in this instance the EU institutions and the social partners. We should, however, be mindful of the transfer of terminology and concepts from one context to another. Subsidiarity as traditionally used denotes the division of power on a vertical plane between the EU and the Member States. It provides criteria as to when the EU should act and when matters should be left to the Member States. Social subsidiarity as interpreted by the Commission connotes something quite different. The concept is used to justify the privileged status accorded to the social partners when the EU does act, the argument being that because the social partners are close to the relevant problems this justifies their role in the making of agreements that can be enshrined in a Union decision. There may be some force in this. The use of subsidiarity should not, however, serve to mask Barnard’s important point that the negotiation of European collective agreements is an example of centralized lawmaking at EU level, at a time when decentralized collective bargaining is on the ascendant in many Member States.73

(C) Rationale and Legitimacy: Better Governance, Functional Attribution, and Democracy A prominent strand in the Commission’s reasoning about better governance is functional in nature: the ‘social partners have a particular role and influence which flow from the very nature of the subjects they cover and the interests they represent in connection with the world of work’.74 For the Commission it follows that matters such as working conditions, wage standards, training, working time, and the balance between 69 Ibid [1.1].   70  Partnership for Change (n 19) [3.1]. 71  Council Resolution, On Certain Aspects for a European Social Policy: A Contribution to Economic and Social Convergence in the Union [1994] OJ C368/6. 72  W Streeck, ‘Neo-Voluntarism: A New European Social Policy Regime’ (1995) 1 ELJ 31, 48–9. 73  Barnard (n 64) 89.    74  The European Social Dialogue (n 34) [1].

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flexibility and security are a ‘few examples of specific topics which the social partners, as representatives of employees and employers are entitled to deal with’.75 Thus the Treaty ‘recognizes the social partners’ ability to undertake genuine independent social dialogue, that is to negotiate independently agreements which become law’, and it is that ‘ability to negotiate agreements which sets the social dialogue apart’.76 The Commission’s argument is a blend of the descriptive and the normative. The descriptive element is functional in nature and speaks to the tasks dealt with by the social partners. This is reinforced by the normative argument, to the effect that the social partners are ‘entitled’ to deal with such matters. This argument is barely developed by the Commission. The ‘entitlement’ is couched largely in formal terms, in the sense that the social partners are accorded the relevant power by the relevant Treaty articles. We must, however, press further if the normative underpinning is to be ­adequately sustained. This task has been taken up by academic commentators, who have explored various ways in which the power accorded to the social partners might be justified. (i)  The EU Democratic Model It might be argued that the involvement of the social partners can be squared with the normal method for the legitimation of legislation enshrined in the Treaty. An argument of this nature has been advanced by Britz and Schmidt.77 They recognize that the role accorded to the social partners is problematic in terms of democratic legitimation. They contend that this can, nonetheless, be defended in terms of the way in which legislation is classically enacted in the EU. They see sufficient democratic legitimation flowing from the involvement of the Commission and Council, through their unlimited right to examine and reject the agreement brokered by management and labour. This is so notwithstanding the fact that Britz and Schmidt maintain that the Council has no legal right to amend the proposed legislation. Their argument in this regard is that the procedure in Articles 154 and 155 TFEU is costly in terms of time and organization, and that it affords management and labour with a right of autonomous negotiation. It is said that this would be impaired if the Commission and Council were to be authorized to amend agreements. They argue further that although the Council can amend by unanimity under Article 293 TFEU, the lack of direct reference indicates that this Article is not applicable to the Article 155 ­procedure.78 The exclusion of the European Parliament is seen as regrettable, but not fatal, in terms of democratic legitimation.79 They acknowledge, however, that the justification for the role given to the social partners must be sought also in terms of the substantive legitimacy of the law thus produced. Management and labour, while not representative of the entire ‘European public’ can claim to contribute to the substantive

75 Ibid [1].   76  Ibid [1]. 77  G Britz and M Schmidt, ‘The Institutionalised Participation of Management and Labour in the Legislative Activities of the European Community: A Challenge to the Principle of Democracy under Community Law’ (2000) 6 ELJ 45. 78 Ibid 55–6.   79  Ibid 54–6, 63–6.

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legitimacy of the laws thus enacted where they are at least adequately representative of those affected by such laws.80 This is an interesting thesis. It is not, however, unproblematic. It is premised on the assumption that the Commission and Council’s right to examine and reject suffices for democratic legitimation even though, in their view, the Commission and Council have no right to amend, and even though the European Parliament is excluded. It can be accepted that the Commission is against any attempt to amend agreements that are proposed for legislation. The argument that there is no legal right to amend is another matter. The fact that management and labour are given an autonomous right to negotiate the agreement does not mean that the agreement thus concluded could not be amended when enshrined in legislation. Nor is the argument concerning Article 293 convincing. This Article applies whenever the Council acts on a proposal from the Commission.81 There is no requirement that it should be referenced in the specific Article under which the legislation is proposed, in this instance Article 155 TFEU. Moreover, the authors’ assumption that amendment is not available significantly weakens the claim that the process as a whole can be regarded as comporting with the requirements of democratic legitimacy. It necessarily renders the Commission and Council’s acknowledged right to examine and reject a blunt tool. This problem is exacerbated by the formal exclusion of the European Parliament, which the authors view as regrettable, but not fatal. It is, however, difficult to accept the European Parliament’s exclusion from the Article 155 TFEU procedure. This is so even if one believes that there are sufficiently strong reasons for the privileged position given to the social partners. It would be perfectly possible to preserve this procedure, with the modification that the legislation emanating therefrom should receive the imprimatur of the European Parliament, as well as the Council. To put the same point in a different way, there has to be some good reason why the European Parliament should have no formal role in the transformation into law of important matters of social policy, or indeed why its role should be any less than that of the Council. No such reason is readily apparent. This issue is especially significant given that there may be interests affected by the legislation that are not represented in the consultation or negotiation process at all. Thus an agreement between management and labour may have implications for, inter alia, the environment, the unemployed, and those not seeking work, such as adults looking after children. The European Parliament may well have views on such matters and be able to represent the relevant interest, or voice their concerns. (ii)  Participatory Democracy Participatory democracy has been suggested as another such model, the argument being as Fredman states, that ‘the incorporation of the social partners into the legislative process goes some way towards remedying the democratic deficit at EC level’.82 Fredman 80 Ibid 66–70.   81  Subject to limited exceptions. 82  S Fredman, ‘Social Law in the European Union: The Impact of the Lawmaking Process’ in P Craig and C Harlow (eds), Lawmaking in the European Union (Kluwer Law International, 1998) 409.

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is, nonetheless, mindful of the difficulties of applying this model to the social partners. She notes that there is a ‘continuing risk of fundamental inequality between the two sides of the bargaining process’,83 that the use of bargaining to achieve l­egislation could well entrench these inequalities which would be more likely to be evened-out through the normal legislative process. She is also concerned by the exclusion of the European Parliament, which although informed about the legislation has no real say in its content, and no formal role in the making of legislation under Article 155. Bernard has similar reservations, stating ‘that the relationship between participatory theory and the association of organized interests within civil society to public decision-making is rather tense’.84 Such interests can serve as schools of democracy, ­enabling citizens to acquire the skills for civic political involvement; they can function as mediating structures thereby facilitating citizen involvement in decision-making; and they can also help to bring those who are poorly represented into the decisionmaking process. The downside is that the ‘institutionalisation and crystallisation of interests in formal structures can hamper the development of a truly deliberative search for the common good’, and ‘cosy relationships between public authorities and a small number of strong privileged interest groups can facilitate phenomena of regulatory capture and rent seeking practices’.85 Bernard concludes that the ‘kind of civil society involvement that would fit best within a participatory logic would be that of relatively small-scale organizations at a fairly localised level, in which individual citizens still have direct or near-direct access’, and that the EU model whereby limited peak-level associations enjoy a virtual monopoly position does not readily fit this picture.86 He also points out the difficulty of applying a model of democracy based on deliberation in search of the common good, to a situation that is still characterized to a considerable degree by bargain, and this tension remains notwithstanding the fact that bargain and deliberation are ideal-types.87 (iii)  Associative Democracy The possibility of seeing the contribution of the social partners through the lens of associative democracy has been considered by Bernard.88 Conceptions of associative democracy vary,89 but a core theme is to ‘curb faction through a deliberate politics of association while netting such group contribution to egalitarian-democratic governance’, by making associations ‘less factionalizing and more supportive of the range of egalitarian-democratic norms’.90 This is to be achieved while maintaining the established organs of governance. The Commission makes extensive use of associations and their informational expertise when crafting legislation. 83  Ibid 410. 84  N Bernard, ‘Legitimising EU Law: Is the Social Dialogue the Way Forward? Some Reflections on the UEAPME Case’ in J Shaw (ed), Social Law and Policy in an Evolving European Union (Hart, 2000) Ch 14. 85 Ibid 293.   86  Ibid 293–4.   87  Ibid 294–6.   88  Ibid 297–301. 89  P Hirst, Associative Democracy: New Forms of Economic and Social Governance (Polity Press, 1994). 90  J Cohen and J Rogers, ‘Secondary Associations and Democratic Governance’ (1992) 20 Politics and Society 393, 425.

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Bernard, nonetheless, highlights difficulties in the application of this democratic model to the role played by the social partners. He notes the problems of ensuring accountability of the social partners to their members, and the danger of instantiating a regime that allows input from ‘oligarchs’ within each of the participating organizations, in circumstances where the leaders may be insufficiently responsive to their members.91 This problem is compounded by the exclusion of certain interests from the decision-making process, whether this is a sub-constituency of a class that is represented, or a class whose voice is not heard in the decision-making process at all.92 The limited oversight by the established EU institutions exacerbates these problems. Thus, as Bernard states, the issue is ‘not one of incessant meddling by the Commission into agreements reached by the social partners, but one of keeping sufficient powers to ensure supervision of the process’.93 This harks back to the issue considered earlier about the extent of the Commission and Council’s power in relation to agreements reached by the social partners. The established view is that the agreements will be accepted or rejected without amendment, the only check being on the representativity of the social partners and the formal compatibility of the agreement with the precepts of EU law. As Bernard remarks, this hands-off attitude of the Commission may make political sense, but it makes the Article 155 procedure ‘a rather unattractive proposal from a democratic legitimation point of view’.94 (iv)  Directly-Deliberative Polyarchy Barnard has explored the applicability of a variant democratic theory, directly-deliberative polyarchy,95 to the role played by the social partners under Article 155 TFEU.96 We have already considered this theory in the context of the OMC.97 A central feature of the theory is that centralized decision-making has limits within a modern polity, more especially if it is unconnected with local reality. Politics is seen as a method for dealing with practical problems, and there is a premium placed on granting lower level actors autonomy to experiment with solutions that they have devised for themselves. In deliberative polyarchy, ‘problem solving depends not on harmony and spontaneous collaboration, but on the permanent disequilibrium of incentives and interests imperfectly aligned, and on the collaborative exploration of resulting differences’.98 Deliberation is to be found ‘when collective decisions are founded not on a simple aggregation of interests, but on arguments from and to those governed by the decision, or their representatives’.99 Democratic deliberative polyarchy 91  Bernard (n 84) 299.    92 Ibid 299–300.   93  Ibid 301. Italics in the original. 94  Ibid 301. 95  J Cohen and C Sabel, ‘Directly-deliberative Polyarchy’ (1997) 3 ELJ 313; O Gerstenberg and C Sabel, ‘Directly-deliberative Polyarchy: An Institutional Ideal for Europe?’ in C Joerges and R Dehousse (eds), Good Governance in Europe’s Integrated Markets (Oxford University Press, 2002) 289–342. 96  Barnard (n 64) 96–101.    97  See above, 221–2. 98  J Cohen and C Sabel, ‘Sovereignty and Solidarity: EU and US’ in J Zeitlin and D Trubek (eds), Governing Work and Welfare in a New Economy: European and American Experiments (Oxford University Press, 2003) 366. 99  Ibid 366.

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requires protection of basic rights, transparency and public participation, ­coordination across and between the relevant units, mechanisms for accountability that connect deliberative decisions in particular areas with broader public discussion about those topics, and the ability to contest decisions.100 Barnard is positive about the application of this democratic model, but is mindful of its limitations in this area. Thus, she notes that the social dialogue only applies to those ‘already in the loop’.101 It does not extend to the EU as a whole, ‘except insofar as they are members of one of the participating groups’.102 She also addresses an issue that concerned Bernard, the distinction between deliberation and bargain. Thus Barnard recognizes that the social partners operate primarily through bargain, albeit qualified by the fact that the partners lack the normal means of coercion at national level, leading her to classify the process as one of deliberative bargaining.103 (v)  Neo-Corporatism, Functional Participation, and Democracy A rather different view of social dialogue is taken by Smismans.104 He is sceptical about the applicability of alternative democratic models to justify the role given to the social partners in Article 155 TFEU,105 and argues that their participation should be seen in neo-corporatist terms. It is necessary to understand the background ideas at play in order to assess their applicability to the social partners in the EU. Pluralist theories depict the political process as one in which a relatively wide range of different groups affect political decisionmaking. Such groups compete for political influence and no particular group enjoys a monopoly of representational status with the government. In corporatist theory a particular group or groups are accorded a privileged representational status with the government, which ‘licenses’ the group or groups to represent the interests of others within the same area. The privileged status accorded to the dominant group normally carries a ‘price’, in the sense that it will accept certain constraints on the range of its demands.106 The rationale for this type of group action stems from the pressures faced by modern states. They must undertake a wide range of activities in order to correct defects in, or problems arising from, the capitalist system. Governments are forced to juggle with goals such as full employment, economic growth, the resolution of labour conflicts, inflation, and the provision of protection for consumers and workers. This requires discussion and collaboration with major interest groups. Such groups help to shape governmental policy and their own objectives are fashioned or constrained by the same process. Major power groups achieve their dominant representational status for a number of reasons. The government perceives benefits in dealing with one bargaining agent. A relationship of trust

100 Ibid 369–70.   101  Barnard (n 64) 100.    102  Ibid 100.    103  Ibid 101. 104  Smismans (n 1).    105  Ibid 329–30. 106  P Schmitter and G Lehmbruch (eds), Trends Toward Corporatist Intermediation (Sage, 1979); P Schmitter and G Lehmbruch (eds), Patterns of Corporatist Policymaking (Sage, 1982); A Cawson, Corporatism and Welfare (Heinemann, 1982); R Harrison (ed), Corporatism and the Welfare State (Allen & Unwin, 1984); P Birkinshaw, I Harden, and N Lewis, Government by Moonlight: The Hybrid Parts of the State (Unwin Hyman, 1990).

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can be built up, an understanding of the rules of the game and an assuredness that the organization will promote an agreed policy among the relevant ‘constituency’. Industrial concentration and economies of scale further the impetus towards the emergence of a particular interest group, which will bargain and speak for the whole. Smismans acknowledges that pluralism may best explain interest group access within many areas of the EU, but argues that the role of social partners within the social dialogue is best viewed as an example of neo-corporatism. This is because the social dialogue creates privileged access for certain groups in policymaking; it creates a separate regulatory space in which management and labour deal with work-related issues; the decision-making process is based on a limited number of organizations; and because it operates as a bargaining forum for the major players involved.107 He argues that this mode of decision-making can be legitimated.108 The privileged consultation of a limited number of organizations can be seen as a way to ensure more equal access to certain weaker interests such as labour. It provides an opportunity for management and labour to adjust their respective preferences more readily than in a pluralist setting. The limited number of organizations allowed to take part is said to be justified in terms of governability. He argues that the ‘recognition of a self-regulatory space and of horizontal subsidiarity for the social partners can be based on ideas of output-legitimacy, in terms of regulatory efficiency’.109 The reasoning in the UEAPME case,110 that participation of the social partners in the social dialogue assures respect for democracy in the absence of parliamentary participation, is used in support of the argument for functional democracy. Smismans accepts, however, that these legitimating arguments in favour of the social dialogue are premised on the assumptions that the peak organizations are representative and that the output is better than would otherwise obtain. He is doubtful whether these assumptions are met satisfactorily.111 Thus, he questions the adequacy of representativity of the social partners’ organizations in relation to the number of unionized workers, in relation to the entire workforce and in relation to the general population, and has doubts about the representativity of the social partners judged in terms of internal accountability within their organizations. Smismans also has reservations about output-legitimacy. He argues that the output from the social dialogue has been modest both in terms of quantity and in terms of the level of social protection provided in the legislation that has been enacted, the root cause being the imbalance between management and labour in the bargaining process.

(D)  Rationale and Legitimacy: Conclusions The literature on the social partners and the legitimacy of the role accorded to them by the Treaty is rich and varied. There is a laudable willingness to explore the possible application of differing democratic models. The preceding discussion has, nonetheless, 107  Smismans (n 1) 330–2.    108 Ibid 334–9.   109 Ibid 339.    110  Case T-135/96 (n 55).    111  Smismans (n 1) 394–7.

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revealed difficulties with the application of these models to the social dialogue as embodied in Article 155 TFEU. There are problems concerning the procedure, including who can participate as representatives of workers and management, the relationship between the participants and their members, and the exclusion of other interests that may be legitimately concerned by the resulting agreement/legislation. There are difficulties with the nature of the process, the divide between deliberation and bargain and the implications that this has for the application of the particular explanatory theory. There are also concerns about the relationship between the agreement brokered between management and labour and the role of the established EU institutions when transforming the agreement into formal law. These concerns relate to the limited role played by the Commission and Council in the legislative process, and to the exclusion of the European Parliament. These difficulties must be taken seriously. There may well be good arguments for thinking more broadly and not confining our horizons to traditional notions of representative democracy. This still leaves open the crucial issue about the precise role of the established representative institutions within these differing democratic models. It is, for example, perfectly possible to favour increased participation in the making of ­legislation by affected interests. The role of the established representative institutions within such a theory is clearly still a live issue. It is indeed the case that most theories of participatory democracy are premised on input from interested parties, with the final decision still residing with traditional legislative bodies, or administrative institutions such as agencies. It is, to take another example, perfectly possible to explore the potential of functional participation within decision-making. This still leaves open for debate the precise degree of oversight and input from the traditional institutions that are based on territorial representation. It might be argued that this whole way of thinking about the social dialogue is misconceived and that it should be conceptualized in terms of industrial relations, rather than alternative models of democracy. Bercusson has been the principal exponent of  this view,112 arguing forcefully that the social dialogue is primarily a contractual process of collective bargaining, with agreements at European level playing the role of  agreements between the social partners at national level. On this view, the ­transformation of the collective agreement into formal law functions analogously to mechanisms found in some Member States whereby collective agreements can be accorded an erga omnes affect. For Bercusson, the consequence of this conceptualization is that it is misguided to think of the social partners performing a surrogate role equivalent to the European Parliament, or to require that social partners comply with procedural norms fashioned against the backdrop of democracy. While there is force in the industrial relations model, there are also difficulties with this way of viewing the social dialogue,113 which is why the dominant strain within the literature has been to

112  B Bercusson, ‘Democratic Legitimacy and European Labour Law’ (1999) 28 ILJ 153. 113  Fredman (n 82) 409; Bernard (n 84) 286–7; Barnard (n 64) 96–7.

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think of it in terms of alternative models of democracy. This is, moreover, the mode of thought that runs through the judgment in UEAPME.114

5  The Social Partners, Autonomous Agreements, and the Shadow of the Law The discussion thus far has been concerned with the rationale and legitimacy of the social partners’ role in the making of agreements that are transformed into binding law through a Council decision. This is clearly the most controversial aspect of the existing scheme. There has been less attention given to the other method of implementing agreements set out in Article 155(2), which is in accord with the procedures and practices specific to management and labour and the Member States. This was because this method was not used initially, and because the very fact that the agreements were not embodied in formal law made them less controversial. This mode of implementation warrants a closer look now that it is being used, more especially because, as will be seen, it operates in the shadow of the law. Autonomous agreements115 have been made in relation to matters such as telework, harassment and violence at work, and work-related stress. The Framework Agreement on Telework can be taken by way of example.116 Telework connotes a form of organizing and performing work using information technology in the context of an employment contract or relationship, where work which could be performed at the employer’s premises is carried out away from those premises on a regular basis. This is of considerable significance in the high-tech, service-driven economy. The agreement deals with matters of import­ ance for both employer and employee, including: the extent to which an employee might  be obliged to undertake telework; the application of employment conditions to teleworkers; data protection; privacy; equipment; health and safety; organization of work; training; and collective rights. The agreement is implemented by the signatories, UNICE/ UEAPME, CEEP, and ETUC, in three years, in accord with the procedures and practices specific to management and labour in the Member States. The member organizations of the signatory parties report on implementation to an ad hoc group established by the signatories under the responsibility of the social dialogue committee. The ad hoc group will prepare a report on implementation within four years of signature of the agreement, and the agreement can be reviewed after five years if one of the signatories so requests. Bercusson has aptly termed the general process under Article 155 as bargaining in the shadow of the law, to connote the idea that any deadlock in bargaining may lead to the introduction of legislation by the Commission.117 This point has been reinforced in 114  Case T-135/96 (n 55).    115  Partnership for Change (n 19) Annex 2, [1]. 116  Framework Agreement on Telework (July 2002). 117  Bercusson (n 1) 20, 22.

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the context of autonomous agreements. The Commission has made it clear that it retains a responsibility where the agreement was the result of an Article 154 ­consultation, since the decision to negotiate suspends the normal legislative process at EU level.118 The Commission publishes such autonomous agreements and informs the Council and the European Parliament. The shadow of the law is present in a double sense. The Commission monitors implementation by the social partners and the Member States to determine the agreement’s efficacy, and on the expiry of the implementation and monitoring period, while being respectful of the monitoring undertaken by the social partners, the Commission undertakes its own monitoring to assess whether the agreement has contributed to the attainment of the Community’s objectives.119 The shadow of the law is also present in that the Commission reserves the right to introduce legislation if the agreement does not meet its objectives, and this is possible even during the implementation period if it feels that management or labour are delaying the pursuit of EU objectives.

6  The Social Partners, Process-Oriented Texts, Joint Opinions, and the Sectoral Social Dialogue We have already seen that the social partners contribute to social policy through s­ ectoral social dialogue committees, and formulate guides, communications, codes of conduct, and recommendations and opinions that are intended to improve practice in the s­ pecific industrial sector. More than 500 such texts had been produced by 2010.120 There are two general issues concerning this form of contribution by the social partners. The first is the desire to instil some taxonomic order into the plethora of names used to denote the output from these committees. The Commission has made progress in this respect with the distinctions drawn between ‘process-oriented texts’ and ‘joint opinions and tools’ described earlier. The labels may not be particularly elegant, but they do capture significant differences in the texts produced. The second issue concerns the effectiveness of these contributions. It is obviously difficult to generalize about this, since efficacy may vary significantly between different subject matter areas and between different contributions in the same area. The Commission noted in 2002 that ‘in most cases the texts did not include any provision for implementation and monitoring’, ‘they are not well known and their dissemination at national level has been limited’, and ‘their effectiveness can thus be called into question’.121 118  Partnership for Change (n 19) [4.4]; On the Functioning and Potential of European Sectoral Social Dialogue (n 31) [5.2]. 119  Report on the implementation of the European social partners’ Framework Agreement on Telework, SEC(2008)217. 120  On the Functioning and Potential of European Sectoral Social Dialogue (n 31) 5. 121  The European Social Dialogue (n 34) [2.4].

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The way forward for the Commission was to make use of the OMC. It urged the social partners to apply some of their agreements ‘by establishing goals or guidelines at European level, through regular national implementation reports and regular, systematic assessment of progress achieved’.122 It repeated this injunction in 2004, ­encouraging the ‘social partners to make greater use of peer review techniques inspired by the open method of coordination for following up these texts, for example by setting targets (quantitative where feasible) or benchmarks, and regularly reporting on progress towards achieving them’.123 It returned to the theme in 2010, stating that ‘the European social partners need to invest more in monitoring processes, and to develop relevant indicators to improve implementation and evaluation of their agreed texts’.124 There is clearly good sense in this approach. These texts are not formal law. Nor in many cases would it be appropriate or optimal to give them formal legal status. The OMC provides a way in which implementation can be assessed and monitored. Having said this, the difficulties of this exercise should also be appreciated. The discussion in the previous chapter revealed the difficulties of making a success of the OMC, and that is in a context where the informational resources of the Member States and EU institutions are engaged. It will be all the more difficult where private actors have the responsibility for running the operation, establishing benchmarks, assessing performance, exerting peer pressure, and the like. The factor that might incline in the other direction and make it somewhat easier to agree on benchmarks, performance indicators, and so on, is precisely that the Member States are not involved, thus obviating the high-level tensions that have sometimes beset Member State deliberations on these matters.

7 Conclusion The preceding discussion has analysed the varying ways in which the social partners contribute to the making of social policy in the EU. The most striking is of course the Article 155 TFEU procedure, allowing agreements concluded between the social partners to be transformed into formal law through a Commission proposal that is voted on by the Council. It is, therefore, unsurprising that this has been the subject of most comment from scholars who have proffered a range of theories through which to analyse and appraise this process. The EU Courts have also been influential, most ­prominently in the UEAPME case,125 but also in Albany126 where the ECJ effectively exempted agreements made between management and labour from the strictures of the competition rules contained in Articles 101 and 102 TFEU. While the Article 155 procedure is the most prominent involvement of the social partners, their influence through autonomous agreements, and process-oriented texts, should not be ignored. 122 Ibid [2.4.1].   123  Partnership for Change (n 19) [4.3]. 124  On the Functioning and Potential of European Sectoral Social Dialogue (n 31) [5.2]. 125  Case T-135/96 (n 55). 126  Case C-67/96 Albany International v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-5751.

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PART II

LAW AND ADMINISTRATION

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9 Foundations 1 Introduction The discussion thus far has considered the different ways in which the EU delivers policy. The focus has been on administration and law. In the second part of the book the focus shifts to law and administration, and an evaluation of the judicial doctrine that is of principal significance for EU administration and for the Member States where the latter act within the scope of EU law. It is important to pause and reflect on themes that cut across and are equally pertinent to the analysis of particular aspects of review. This chapter will, therefore, lay the groundwork for the ensuing discussion. We begin with the justification for judicial review. This is followed by the sources of EU administrative law and the grounds on which judicial review is available. The focus then turns to the way in which these have been shaped by background principles and the range of acts that are amenable to judicial review. The final section considers whether it would be desirable for there to be a general code of administrative law in the EU.

2 Justification The justifications proffered for judicial review in national legal systems vary, as does the conceptual foundation for the Courts’ power. This issue is less problematic in ­formal terms within the EU, given that there is, and always has been, express Treaty sanction for this judicial power. The Treaty provisions do not resolve all problems ­concerning the legitimacy and reach of judicial review. They do, however, provide ­significant formal legitimation for the existence of this judicial power. Thus Article 19 TEU provides that the Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed. The more specific authority for the exercise of review is located in Article 263(1) TFEU, which stipulates that the Court of Justice shall review the legality of legislative acts, of acts of the Council, of the Commission, and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices, or agencies of the Union intended to produce legal effects vis-à-vis

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third parties. Provision for failure to act is found in Article 265 TFEU. The direct action via Article 263(1) is complemented by Article 267 TFEU, which provides the basis for indirect scrutiny of, inter alia, the validity and interpretation of acts of the institutions, bodies, offices, and agencies of the EU.

3 Sources The sources of EU administrative law are eclectic. They are to be found primarily in the Treaty, EU legislation, the case law of the EU Courts, and decisions made by the European Ombudsman. The administrative law of the Member States has, moreover, been influential in shaping the EU regime. The more particular role played by each will become apparent in this chapter and those that follow. It may, nonetheless, be helpful at this juncture to exemplify their respective contributions. The Treaty contains articles that deal with principles, both procedural and substantive, which are directly relevant for judicial review. The following are simply examples. Thus Article 296 TFEU establishes a duty to give reasons that applies to all legal acts, whether legislative, delegated, or implementing. The reasons must refer to any p ­ roposals, initiatives, recommendations, requests, or opinions required by the Treaties. It is noteworthy that Article 296 imposes a duty to give reasons not only for administrative decisions, but also for legislative norms. Article 15 TFEU deals with access to information. It provides for a right of access to documents of the Union institutions, bodies, offices, and agencies, whatever their medium, subject to certain principles and conditions. Non-discrimination provides an example of a substantive principle within the Treaty that is of direct relevance for judicial review. Thus, Article 18 TFEU contains a general proscription of discrimination on the grounds of nationality, and this is also to be found in the specific Treaty articles dealing with free movement of workers, freedom of establishment, and the provision of services. Non-discrimination on the grounds of gender is dealt with by Article 157 TFEU. There are also provisions dealing with non-discrimination as between producers or consumers in the field of agriculture, Article 40(2) TFEU, and specific provisions such as Article 110 TFEU prohibiting discriminatory taxation. EU legislation made pursuant to the Treaty may also deal with the principles of judicial review. This legislation may flesh out a principle contained in a Treaty article. This was the case in relation to the legislation adopted pursuant to Article 15 TFEU, dealing with access to information. EU legislation may also establish a code of administrative procedure for a particular area. The EU Courts have, however, made the major contribution to the development of administrative law principles. They have read principles such as proportionality, fundamental rights, legal certainty, legitimate expectations, equality, and procedural j­ustice into the Treaty, and used them as the foundation for judicial review under Article 263 or 267 TFEU. We need to press further to understand why and how this happened.

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4 Grounds It is axiomatic that all systems of administrative law embody grounds or categories of review that provide the framework within which the courts exercise their powers. These may be developed by the courts. They may be laid down by statute or code. They may be formed from an admixture of the two. In the case of the EU the Treaty forms the starting point for the elaboration of the grounds of review. Article 263(2) TFEU stipulates that review shall be available for lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The travaux préparatoires for the Rome Treaty provide little by way of guidance. The influence of French juristic thought is, nonetheless, as Schwarze states, clearly imprinted on these grounds of review.1 The four heads of review—lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or any rule of law relating to its application, and misuse of power—resonate with French administrative law thought. It is, nonetheless, important to be mindful of the latitude accorded to the CJEU, and later the GC, in fashioning the principles of judicial review. This judicial discretion stemmed in part from the fact that while French influence might have dominated the choice of grounds for review, these grounds were then applied within a Community of six Member States. Principles of administrative law and modes of thought in Member States other than France naturally exercised influence on the ECJ’s emerging jurisprudence. It was unsurprising that German thought came to exert considerable authority in this respect. Judicial discretion in developing the grounds of review also stemmed in part from the very fact that they are open-textured. This was especially so with respect to the second and third of the categories. Infringement of an essential procedural requirement could be read in a number of ways and gave ample latitude to the EU judiciary to develop it as they saw fit. This was a fortiori the case with respect to the third ground of review, infringement of the Treaty or any rule of law relating to its application. The phrase ‘any rule of law relating to its application’ provided a fertile grounding for the judicial development of general principles of law, which became the overarching concept for many of the more particular principles discussed in later chapters, such as proportionality, legitimate expectations, fundamental rights, the precautionary ­principle, equality, and due process. The detailed story underlying the introduction and development of these general principles of law is intriguing and can be found elsewhere.2 There is, however, a further reason for the existence of judicial discretion in developing the EU heads of judicial review. It is related to that just given, but distinct nonetheless. The heads of review as specified by Article 263(2) TFEU do not provide an answer 1  J Schwarze, European Administrative Law (Office for Official Publications of the European Communities/ Sweet & Maxwell, revised edn, 2006) 40. 2  P Craig, UK, EU and Global Administrative Law: Foundations and Challenges (Cambridge University Press, 2015) Ch 3.

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to certain issues, which are addressed by all systems of administrative law. They do not on their face tell one about the standard for review in relation to matters of law, fact, or discretion. Now to be sure the Treaty provides, as we have seen, in Article 19 TEU that it is for the CJEU to ensure that the law is observed in the interpretation and application of the Treaty. To be sure also, there will be certain instances, such as competence strictly conceived, where the Courts will naturally incline to strict control and substitution of judgment as to the meaning of the contested Treaty article or provision of ­secondary legislation. This does not diminish the force of the point being made here, which is that many of the seminal issues concerning the test for review for errors of law, fact, or discretion are not addressed by the Treaty, with the necessary consequence that they have been elaborated by the EU Courts.

5  Reviewable Acts The discussion thus far has been concerned with the emergence of the principles of judicial review. We must also consider the range of acts that are subject to judicial review. This is an issue that arises in any system of administrative law, and the EU is no exception in this respect. Article 263(1) TFEU is the starting point. The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than ­recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.

This allows review of legality of acts other than recommendations and opinions. It ­covers legislative acts, delegated acts, and implementing acts, whether in the form of regulations, decisions, or directives. The CJEU has, moreover, held that other sui generis acts can also be reviewed, provided that they have binding force or produce legal effects.3 Thus, in the well-known ERTA case4 the Member States acting through the Council adopted a Resolution in March 1970, the object of which was to coordinate their approach to the negotiations for a European Road Transport Agreement. The Commission disliked the negotiating procedure established in the Resolution, and sought judicial review. The ECJ held that the proceedings of March 1970 were designed to lay down a course of action binding on both the institutions and the Member States, and destined ultimately to be reflected in the tenor of the Regulation. The Council had, moreover, adopted provisions capable of derogating from the Treaty procedure for negotiations with third countries and the conclusion of agreements. The ECJ c­ oncluded 3  Case C-57/95 France v Commission (Re Pension Funds Communication) [1997] ECR I-1627. 4  Case 22/70 Commission v Council [1971] ECR 263.

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that the proceedings in March 1970 were reviewable because they had definite legal effects on relations between the Community and the Member States and on the relationship between institutions. There may, however, be room for difference of opinion as to whether an act has ­produced legal effects. This is exemplified by IBM.5 The company sought the annulment of a Commission letter notifying the fact that the Commission had initiated competition proceedings against it, to determine whether it was in breach of Article 102 TFEU. The letter was accompanied by a statement of objections, with a request that the company reply within a specified time. The Commission objected that the impugned letter was not an act challengeable for the purposes of Article 263 TFEU. The ECJ accepted that judicial review was available for any measure the legal effects of which were binding on, and capable of affecting the legal interests of, an applicant by bringing about a distinct change in its legal position. The applicant nonetheless failed.6 The letter was merely the initiation of the competition procedure, a preparatory step leading to the real decision at a later stage. The statement of objections did not, in itself, alter the legal position of IBM, although it might indicate, as a matter of fact, that it was in danger of being fined later. This may be contrasted to the SFEI case.7 It was held that in an area, such as competition policy, where the Commission has power to investigate and impose fines pursuant to a complaint from an individual, a letter from the Commission indicating that it did not intend to pursue the matter was reviewable as an act ­producing legal consequences.8 The general principle is that an act which is reviewable will have legal effect until it is set aside by the CJEU or the GC,9 and the challenge must be brought within the time limit specified in Article 263(6). The exception is for acts tainted by particularly serious illegality, which are deemed to be ‘non-existent’. The normal time limits for challenge do not apply, since such an act can never be cloaked with legality by the passage of time. Such acts do not have any provisional legal effects, and they are not actually susceptible to annulment as such, because there is no ‘act’ to annul. A judicial finding that an act is non-existent will, however, have the same effect in practice as if it had been annulled. Thus in BASF10 the CFI found that a decision of the Commission in competition proceedings against the PVC cartel was non-existent because the Commission could 5  Case 60/81 International Business Machines Corp v Commission [1981] ECR 2639. 6  Cases C-133 and 150/87 Nashua Corp v Commission and Council [1990] ECR I-719; Case C-282/95 P Guerin Automobiles v Commission [1997] ECR I-503; Case T-554/93 Saint v Council [1997] ECR II-563; Case C-159/96 Portuguese Republic v Commission [1998] ECR I-7379; Case C-180/96 UK v Commission [1998] ECR I-2265; Case C-240/92 Portuguese Republic v Commission [2004] ECR I-10717; Case T-309/03 Manel Camós Grau v Commission [2006] ECR II-1173; Case T-195/08 Antwerpse Bouwwerken NV v European Commission [2009] ECR II-4439; Cases T–355 and 446/04 Co-Frutta Soc coop v European Commission [2010] ECR II-1; Case T-96/10 Rütgers Germany GmbH v European Chemicals Agency (ECHA), EU:T:2013:109, [30]; Case C-31/13 P Hungary v Commission, EU:C:2014:70, [54]–[55]. 7  Case C-39/93 P Syndicat Français de l’Express International (SFEI) v Commission [1994] ECR I-2681. 8  See also, Cases T-10–12 and 15/92 SA Cimenteries CBR [1992] ECR II-2667; Case C-25/92 R Miethke v European Parliament [1993] ECR I-473; Case C-480/93 Zunis Holding SA, Finan Srl and Massinvest SA v Commission [1996] ECR I-1; Case T-120/96 Lilly Industries Ltd v Commission [1998] ECR II-2571. 9  Case C-137/92 P Commission v BASF AG [1994] ECR I-2555. 10  Cases T-79, 84–86, 89, 91–92, 94, 96, 98, 102 and 104/89 BASF AG v Commission [1992] ECR II-315.

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not locate an original copy of the decision duly authenticated in the manner required by the Rules of Procedure; it appeared that the Commissioners had not agreed on the precise text of the decision; and it had been altered after it had been formally adopted. The non-existence of a measure should, said the CFI, be raised by the Court of its own motion at any time during the proceedings. The ECJ took a different view.11 It held that the defects were not so serious as to make the act non-existent, but held that the decision was tainted by sufficient irregularity for it to be annulled. It is, moreover, clear from Solvay that failure to authenticate an act is an essential procedural requirement, breach of which leads to annulment. The matter can be raised by the Court of its own motion. It is not necessary for the act to be vitiated by some other defect, nor is it ­necessary to show that the lack of authentication resulted in harm to the person relying on it.12 Prior to the Lisbon Treaty the CJEU only had limited power to review the legality of acts under what was the Third Pillar dealing with Police and Judicial Cooperation in Criminal Matters (PJCC). It was, nonetheless, creative in construction of its powers.13 The Lisbon Treaty brought the Area of Freedom, Security and Justice within the main fabric of the Treaty.14 The normal principles of judicial review apply, subject to the caveat that the CJEU cannot review the validity or proportionality of operations by the police or law enforcement agencies, or the exercise of responsibilities of Member States with regard to the maintenance of law and order, and the safeguarding of internal ­security.15 The Lisbon Treaty ‘de-pillarized’ the Treaties, but the rules pertaining to the Common Foreign and Security Policy (CFSP) remain distinct. The general principle is that the Union Courts have no jurisdiction over CFSP acts.16 This is subject to two exceptions. First, the CJEU has jurisdiction to monitor compliance with Article 40 TEU, which provides in essence that exercise of power under the CFSP shall not encroach on competences under the TFEU, and vice versa. Secondly, the Union Courts can also rule on proceedings, brought in accordance with Article 263(4) TFEU, to review the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the TEU, which is concerned with the CFSP.

6  Background Principles It was natural given the gaps in the primary Treaty that the ECJ should seek to flesh out the principles that should govern judicial review within EU law. It was, moreover, natural that in doing so it would resort to certain background principles to inform the more particular rules and principles of judicial review for the emerging Community legal order. A number of such background or meta-principles can be identified. 11  Case C-137/92 P (n 9). 12  Cases 287–288/95 P Commission v Solvay SA [2000] ECR I-2391. 13  Case C-354/04 P Gestoras Pro Amnistia, Olano and Errasti v Council [2007] ECR I-1579. 14  Arts 67–89 TFEU.    15  Art 276 TFEU.    16  Art 24 TEU, Art 275 TFEU.

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(A)  The Rule of Law The legal systems of the Member States all have precepts of administrative law concerning procedural and substantive review. The details vary as between legal systems, but there is not surprisingly significant overlap, and this is so irrespective of whether the same term or label is used.17 It is common for the development of these precepts to be justified by recourse to the rule of law, which is a concept with diverse meanings, both formal and substantive.18 The idea that administration should be procedurally and substantively accountable before the courts has been central to the rule of law. This core idea had especial force in the emerging Community legal order. This was because even though there might be room for argument as to the detailed principles of judicial review that should follow from the rule of law, it could hardly be denied that some such principles should exist. This was more especially so given the desire to assure the Member States and national courts that the rapidly growing Community power would be subject to proper legal scrutiny. The primary Treaty provisions were, as we have seen, incomplete in this respect. They, nonetheless, provided fertile ground for the development of a richer set of administrative law principles grounded on the rule of law. Article 263(2) TFEU specified, inter alia, that review should be available for breach of the Treaty or any rule of law relating to its application. The intent might have been to do nothing more than ensure that Commission decision-making should have to comply not only with the primary Treaty articles, but also regulations, directives, etc passed pursuant thereto. If this had been the intent, it could, however, have been expressed more clearly. It is, moreover, evident that the intent was broader, and legitimated some role for general principles in the emerging Community legal order.19 The phrase thereby captured not only the need for compliance with Community legislation, but also with other ‘rules of law relating to the application’ of the Treaty that might be developed by the Courts. Article 19 TFEU was equally important in this respect. It charged the CJEU with the duty of ensuring that in the interpretation and application of the Treaty the law should be observed. This might have been interpreted in a limited manner to connote the idea that, for example, Commission decisions should be made within the limits laid down by the primary Treaty articles and secondary legislation. The word ‘law’ within this Article was, however, open to a broader interpretation that could legitimate the CJEU fashioning a ‘system of legal principles, in accordance with which the legality of Community and Member State action must be determined’.20 The judicial task of elaborating principles of judicial review was further facilitated by more specific Treaty articles, which made reference to, for example, non-discrimination. 17  Schwarze (n 1). 18  P Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] PL 467. 19  Craig (n 2). 20  T Tridimas, The General Principles of EU Law (Oxford University Press, 2nd edn, 2006) 11. See also M Luisa Fernandez Esteban, The Rule of Law in the European Constitution (Kluwer Law International, 1999) 106–22.

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It was then open to the CJEU to read these particular Treaty references as indicative of a more general principle of equal treatment and non-discrimination that could be said to underpin the entire EU legal order.21 The latitude afforded by Articles 19 TEU and 263(2) TFEU, combined with the reference to concepts such as non-discrimination and proportionality in specific Treaty articles, laid the foundation for the CJEU to read general principles into EU law. A rich body of jurisprudence developed on process rights, fundamental rights, equal treatment and non-discrimination, proportionality, and legal certainty and legitimate expectations, which will be examined in the chapters that follow. In developing these concepts, the EU Courts drew on administrative law doctrine from the Member States. They did not systematically trawl through the legal systems of each of the Member States to find principles that they had in common. The approach was, rather, to consider principles in the major national legal systems, to use those that were felt to be best developed and to fashion them to suit the EU’s needs. Thus, as Advocate General Lagrange stated, the ECJ did not seek arithmetical common denominators between the national approaches to a particular problem, but rather chose from ‘each of the Member States those solutions which, having regard to the objects of the Treaty, appear to be the best or, if one may use the expression, the most progressive’.22 German law was most influential in this regard. It was German jurisprudence on, for example, proportionality and legitimate expectations that was of principal significance for the development of EU law in these areas. The EU Courts have used these principles in a number of different ways.23 They function as interpretive guides in relation to primary Treaty articles and regulations, directives, and decisions enacted pursuant thereto. The general principles also operate as grounds of review. The EU Courts cannot invalidate primary Treaty articles. They can, however, annul regulations, directives, decisions, and other EU acts with legal effect. Violation of a general principle of EU law will serve as a ground for annulment. The principles can also be used against national measures that fall within the scope of EU law, although as we shall see the range of measures caught in this manner is not free from doubt. Breach of a general principle may also form the basis for a damages action against the EU. The same should be true with respect to a breach of such a principle by the Member States, subject to fulfilment of the other conditions for this species of ­liability. The jurisprudence on general principles informed by the background precept of the rule of law was well developed by the time of the Treaty of Amsterdam. The amendment of the TEU to provide express recognition that the EU was founded, inter alia, on the rule of law was, nonetheless, supportive of the judicial strategy. Article 2 TEU now provides that,

21  Cases 117/76 and 16/77 Ruckdeschel v Hauptzollamt Hambourg-St Annen [1977] ECR 1753, [7]. 22  Case 14/61 Hoogovens v High Authority [1962] ECR 253, 283–4, AG Lagrange. 23  Tridimas (n 20) 17–23.

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The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

(B)  Institutional Balance The rule of law may well be the primary background principle used to develop EU administrative law. It is not, however, the only one. The CJEU also has recourse to the idea of institutional balance. The concept has both a political and legal dimension.24 In political terms the idea of balanced government or balanced constitutionalism is, in one sense, a proposition on which all can agree. An attachment to this ideal can be found in many more specific species of constitutional ordering, ranging from that adopted in the US, to that which exists in certain continental countries. The idea of institutional balance has a rich history. It was an important part of republican discourse in the fifteenth and sixteenth centuries,25 shaping the desired structure of government in the Italian republics, exerting later influence in England and the US.26 Institutional balance was a central tenet in the republican conception of government. This was based on the twin precepts that the form of political ordering should encapsulate a balance between different interests, which represented different sections within civil society, and that democratic deliberation should be designed to achieve the public interest rather than narrow sectional desires. The existence of the proper institutional balance would serve to prevent tyranny, in itself an extreme manifestation of sectional self-interest. Such a balance would help to ensure a deliberative democracy within which the differing ‘constituencies’ that made up civil society would be encouraged to treat their preferences not simply as givens, but rather as choices that were open to debate and alteration. Considerable emphasis has been placed on institutional balance within EU political debates, more especially during Treaty revisions when the major institutional players made explicit reference to it in making recommendations for the desired distribution 24  P Craig, ‘Democracy and Rulemaking within the EC: An Empirical and Normative Assessment’ (1997) 3 ELJ 105; K Lenaerts and A Verhoeven, ‘Institutional Balance as a Guarantee for Democracy in EU Governance’ in C Joerges and R Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford University Press, 2002) Ch 2; S Smismans, ‘Institutional Balance as Interest Representation: Some Reflections on Lenaerts and Verhoeven’ in Joerges and Dehousse, Ch 3; J-P Jaque, ‘The Principle of Institutional Balance’ (2004) 41 CMLRev 383; P Craig, ‘Institutions, Power and Institutional Balance’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 2nd edn, 2011) Ch 3. 25 J G A Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton University Press, 1975) and Virtue, Commerce and History (Cambridge University Press, 1985). 26  C Sunstein, ‘Interest Groups in American Public Law’ (1985) 38 Stan L Rev 29 and ‘Beyond the Republican Revival’ (1988) 97 Yale LJ 1539; F Michelman, ‘Foreword: Traces of Self-Government’ (1986) 100 Harv L Rev 4; P Craig, Public Law and Democracy in the United Kingdom and the United States of America (Oxford University Press, 1990) Ch 10.

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of power between them.27 The rationale for the centrality accorded to this idea strikes a direct chord with the historical application of republicanism: the necessity to create a stable form of political ordering for a society in which there are different interests or constituencies. In the present context the interests are primarily those of the Council, European Parliament, and Commission, but we should not forget the national parliaments, regional bodies, and functional interests. This is not the place for detailed exegesis on the political dimension of institutional balance. This brief excursus is, however, important in understanding the more directly legal implications of the concept, more especially so given that the relations between the principal EU organs are not de jure or de facto characterized by any strict separation of powers. Legal recourse to the concept of institutional balance that is of direct relevance to  EU administrative law can be exemplified by the saga concerning the European Parliament’s standing to seek judicial review. Prior to the passage of the TEU it was not accorded any formal privileged status in Article 173 EC. In the ‘Comitology’ case28 the ECJ rejected the European Parliament’s argument that it should have the same unlimited standing as other privileged applicants. The issue was considered again in the ‘Chernobyl’ case29 where the ECJ took a different view. The case arose out of a Council Regulation adopted after the Chernobyl ­incident. The Regulation sought to establish the maximum level of radioactive contamination of food and feeding stuffs. This Regulation was adopted under Article 31 of the Euratom Treaty, but the European Parliament argued that it should be based on Article 100A EC. The rationale was that the European Parliament had greater rights under the latter, since the cooperation procedure allowed it more involvement in the legislative process. In the earlier Comitology case the ECJ had denied the European Parliament’s claim for standing because Article 173 did not afford it a privileged status, and because the ECJ felt that there were other remedies through which the European Parliament’s prerogatives in the legislative process could be protected. In the Chernobyl case the ECJ admitted that these various legal remedies might be ineffective, and that it was therefore uncertain whether a measure adopted by the Council or the Commission in disregard of the Parliament’s prerogatives would be reviewed. The ECJ then stated that,30 Those prerogatives are one of the elements of the institutional balance created by the Treaties. The Treaties set up a system for distributing powers among the different Community institutions, assigning to each institution its own role in the institutional structure of the Community and the accomplishment of the tasks entrusted to the Community. Observance of the institutional balance means that each institution must exercise its powers with due regard for the powers of the other institutions. It also requires that it should be possible to penalize any breach of that rule which may occur.

27  Craig (n 24) 107–9.    28  Case 302/87 European Parliament v Council [1988] ECR 5615. 29  Case C-70/88 European Parliament v Council [1990] ECR I-2041.    30  Ibid [21]–[23].

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The Court, which under the Treaties has the task of ensuring that in the interpretation and application of the Treaties the law is observed, must therefore be able to maintain the institutional balance and, consequently, review the observance of the Parliament’s prerogatives when called upon to do so by the Parliament, by means of a legal remedy which is suited to the purpose which the Parliament seeks to achieve.

The ECJ acknowledged that it could not include the European Parliament among the list of privileged institutions under Article 173 EC. It, nonetheless, had a duty of ensuring that the Treaty provisions concerning institutional balance were ‘fully applied’, which meant that there should be an effective legal remedy available to the European Parliament to defend its prerogatives.31 The absence of any Treaty provision giving the European Parliament the right to bring an action for annulment was conceptualized as a procedural gap, which could not prevail over ‘the fundamental interest in the maintenance and observance of the institutional balance laid down in the Treaties establishing the European Communities’.32 The ECJ therefore concluded that the European Parliament could bring an annulment action to safeguard its prerogatives, which included participation in the drafting of legislative measures, in particular participation in the cooperation procedure laid down in the Treaty.33 Formal Treaty amendment followed swiftly after the ECJ’s ruling. Article 173 EC was redrafted in the Maastricht Treaty to reflect the ECJ’s legal position. It was further amended by the Treaty of Nice and the European Parliament was added to the list of privileged applicants. The fact that the formal Treaty ‘caught up’ with the ECJ’s jurisprudence does not diminish the importance of the case as a prime example of background principles shaping judicial review, in this instance the standing of the European Parliament to seek relief. The Court stepped back from the then prevailing rules on standing, and considered them in the light of the background principle of institutional balance. It recognized that the European Parliament’s role in the legislative process was an essential part of the institutional balance and that the legal remedies were not sufficient to protect the European Parliament in this regard. The ECJ was, therefore, ­willing to conceptualize this as a procedural gap, and while recognizing that it could not redress this by making the European Parliament a fully privileged applicant on a par with the Commission, Council, and Member States, it in effect created a quasiprivileged status for the European Parliament, enabling it to bring actions to defend its prerogatives. A further prominent example of institutional balance shaping the principles of EU administrative law was the Meroni decision.34 The applicant challenged a decision of the High Authority on the ground that there had been an improper delegation of power to certain agencies concerning scrap metal. The decision will be considered in greater 31 Ibid [25].   32  Ibid [26]. 33  J Weiler, ‘Pride and Prejudice—Parliament v Council’ (1989) 14 ELRev 334; K Bradley, ‘Sense and Sensibility: Parliament v Council Continued’ (1991) 16 ELRev 245; G Bebr, ‘The Standing of the European Parliament in the Community System of Legal Remedies: A Thorny Jurisprudential Development’ (1990) 10 YBEL 171. 34  Case 9/56 Meroni & Co, Industrie Metallurgiche SpA v High Authority [1957–8] ECR 133.

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detail later.35 Suffice it to say for the present that the case is best known for the ­eponymous Meroni doctrine: delegation of power that involves the exercise of a wide margin of discretion is unlawful. This aspect of the decision must, however, be read in conjunction with the precept that a delegating authority cannot confer power upon another body different from that which it possessed: if the High Authority had exercised the relevant powers itself it would have been subject to a duty to give reasons, a duty to publish an annual report on its activities, a duty to publish data that would have been useful to governments or other concerned parties, and it would have been subject to judicial review. The agency to which power had been delegated was not subject to any of these constraints. The ECJ’s conclusion that the delegation would undermine the ‘balance of powers which is characteristic of the institutional structure of the Community’36 was primarily directed at the dangers of granting wide discretion, in the sense that it would accord power over complex discretionary choices to a body not provided for in the Treaty. This argument is reinforced by the other strand of the ECJ’s reasoning: the inter-institutional balance of power and that between the High Authority and those subject to it would be undermined if the High Authority could accord power to an agency free from the constraints to which it would have been subject. The limits to the use of institutional balance were, however, demonstrated in the FNAB case.37 The applicant sought to challenge a measure and failed to meet the restrictive criteria for individual concern. It sought to circumvent this obstacle by relying on the idea of institutional balance in order to broaden the limited rules on standing. The ECJ rejected the argument. The Court accepted that institutional balance was a fundamental precept of the EU, but held that it could not be interpreted to mean that any individual who considered that a measure had been adopted in breach of that ­principle could challenge it where the individual was not directly and individually ­concerned by it.

(C)  Effectiveness and Cooperation Administrative law principles have also been shaped by a principle of effectiveness. This background principle has been influential in many areas of EU law. Any regime of administrative law will employ tools of review and compensation in order to hold the administration to account. The interrelationship between the two will be considered in detail in the chapters that follow. The relevance of effectiveness can be exemplified by use made of the principle to lay the foundation for Member States’ damages liability in Francovich.38 The applicants brought proceedings against the Italian state arising out of the government’s failure to implement Directive 80/987 on the protection of employees in the 35  See below, XXX.    36  Case 9/56 Meroni (n 34) 152. 37  Case C-345/00 P Fédération nationale d’agriculture biologique des régions de France v Council [2001] ECR I-3811. 38  Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357.

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event of their employer’s insolvency. Both were owed wages from their employers, but since no steps had been taken pursuant to the Directive to guarantee payment of wages, they argued that the state was liable to pay them the sums owed. The ECJ ruled that although the provisions of the Directive lacked sufficient precision to be directly ­effective, they nevertheless intended to confer rights on the individuals who had been deprived through the state’s failure to implement it. The ECJ reiterated established orthodoxy that EU law created rights for individuals not only where they were expressly granted by the Treaty, but also through obligations which the Treaty imposed in a clearly defined manner on individuals, the Member States, and the EU institutions. It was for national courts when applying EU law in cases within their jurisdiction to ensure that those rules had full effect and protected the rights which they conferred on individuals. The full effectiveness of EU rules would, however, be impaired, and the protection of the rights which they granted would be weakened, if individuals were unable to obtain compensation when their rights were infringed by a breach of EU law for which a Member State was responsible. This was especially so where the full effectiveness of EU rules was subject to prior action by the state, with the consequence that individuals could not, in the absence of such action, enforce the rights granted to them by the EU before the national courts. It followed that the principle of state liability for harm caused to individuals by breaches of EU law for which the state was responsible was inherent in the Treaty. This conclusion was reinforced by Article 4(3) TEU, under which Member States were required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under EU law. The obligations flowing from Article 4(3) TEU included the duty to nullify the unlawful consequences of a breach of EU law.39 Damages liability will be considered later.40 It is the Court’s general mode of reasoning and its implications for administrative law that is relevant here. The idea of ­effectiveness was used to reinforce the linkage between rights and remedies, and to legitimate the conclusion that a monetary remedy for breach of EU law by the Member States was inherent in the Treaty schema. This conclusion was reinforced by recourse to the Member States’ general duty in Article 4(3) to take all appropriate measures to fulfil their EU obligations. The ECJ’s use of this Article was a classic example of the judicial capacity to draw specific obligations from generally worded Treaty provisions.

(D)  Administrative Efficacy The discussion of underlying principles would be incomplete without reference to the background idea of administrative efficacy. We need to tread carefully here and to disaggregate at least two senses of this idea, one of which is well known, the other much less so. 39 M Ross, ‘Beyond Francovich’ (1993) 56 MLR 55; P Craig, ‘Francovich, Remedies and the Scope of Damages Liability’ (1993) 109 LQR 595; M Dougan, ‘The Francovich Right to Reparation: Reshaping the Contours of Community Remedial Competence’ (2000) 6 EPL 103. 40  Chs 22–3.

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The well-known face of administrative efficacy is as a feature in the application of particular principles of administrative law, such as legitimate expectations, proportionality, and the like. The need of the administration to, for example, respond rapidly to changing market circumstance, or alter the direction of EU policy, will affect the success of any claim for breach of legitimate expectations against the EU. Analogous considerations may affect the outcome of a proportionality claim and will be taken into account when judging the sufficiency of the EU measure to meet the needs for which it was enacted. There is, however, another less well-known face of administrative efficacy, which is equally important. We have encountered it when examining the different ways in which the EU delivers policy in the earlier chapters. Administrative efficacy is relevant here not directly in relation to the explication of administrative law principles. It is rather of import­ ance in relation to the interpretation of the administrative scheme in the relevant area, whether that is direct administration, shared administration, Comitology, or agencies. In each of these areas the EU Courts have given seminal rulings that affected the legality and effectiveness of that mode of administration.41 These rulings were given in the context of actions for judicial review, whether direct or indirect. The tendency is to regard such rulings simply as examples where the claimants lost, or as instances of judicial teleological interpretation that are of no general interest for EU administrative law. This is far too narrow. We should be concerned as administrative lawyers with the overall effectiveness of the administrative systems that exist within the EU. The ECJ’s judgments have been of seminal importance in this regard and they were given in the context of judicial review actions, direct and indirect. This does not mean that such decisions should always be accepted with equanimity. Administrative efficacy is no automatic trump that can justify any legal decision given in its name. Nor should we veer in the opposite direction and view such decisions as illegitimate or unwarranted. It is part of the judicial function to effectuate an administrative regime by interpreting the empowering regulations or directives to attain the overall purpose. We should, therefore, make considered evaluation of the Court’s case law in this light, and this can only be done with a full appreciation of the particular administrative regime. The discussion in the earlier chapters has addressed this issue as part of the general analysis of particular administrative regimes.42

7  A General Code of Good Administration The sources of EU administrative law are eclectic, drawing on Treaty articles, EU legislation, the EU Courts, the European Ombudsman, and the Commission. There is, however, no general code, although such codes or something closely proximate thereto exist in certain sectoral areas, such as competition and state aids. The European Ombudsman 41  See above, XXX.    42  See above, XXX.

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has been a strong advocate of a general code of good administration and has argued in the past that the existing code, which elaborates on the meaning of the right to good administration in Article 41 of the Charter, should be transformed into formal law.43 A properly drafted code can, as identified by Ziller and Mir, serve four main purposes. It can enhance the clarity of, and facilitate access to, the law; increase the coherence of principles and procedures; set up default procedures to fill gaps in existing law; and establish the functions of administrative procedure.44 The discourse on this issue is a delicate admixture of the legal, the political, and the substantive. The principal legal issue has been whether there is competence to adopt a general code. Competence to adopt sector-specific codes is based on the Treaty Article governing the relevant substantive area. There were, however, doubts as to the formal legal basis for a general code. It was arguable that a code could be based on Article 352 TFEU, but the Commission President seemed to doubt the existence of such competence. The Lisbon Treaty introduced a new provision, Article 298 TFEU, which states that in carrying out their missions, the institutions, bodies, offices, and agencies of the Union shall have the support of an open, efficient, and independent European administration, and that legislative regulations can be enacted to attain this objective. It is contestable as to whether a general code that covered the Member States as well as the EU could be enacted pursuant to this Treaty Article.45 However, the 2016 proposal for a Regulation emanating from the European Parliament is confined to EU institutions and is based on Article 298.46 The legal dimension is overlaid by the political. The Commission has been equivocal about the idea of a general code, and its equivocation has veered towards the negative rather than the positive. It has questioned the need for a general code, in the light of the rules on administrative procedure and the like that are contained in particular sectorspecific regulations. If a formal legal code were to become a reality, then it is highly likely that the Commission would wish to have real ‘input’ into its content and some ‘ownership’ of the resulting document. The most important issue is substantive: the content of any such code and the contribution that it would make to the attainment of good administration.47 The European 43  European Ombudsman, The European Code of Good Administrative Behaviour (2015), https://www. ombudsman.europa.eu/resources/code.faces#/page/1. 44 J Ziller, ‘Is a Law of Administrative Procedure for the Union Institutions Necessary? Introductory Remarks and Prospects’, European Parliament, DG for Internal Policies, 2010; O Mir-Puigpelat, ‘Arguments in Favour of a General Codification of the Procedure Applicable to EU Administration’, European Parliament, DG for Internal Policies, 2011, http://www.europarl.europa.eu/activities/committees/studies.do?language=EN; http://www.reneual.eu/. 45 P Craig, ‘A General Law on Administrative Procedure, Legislative Competence and Judicial Competence’ (2013) 19 EPL 503; O Mir, ‘Die Kodifikation des Verwaltungsverfahrensrechts im Europäischen Verwaltungsverbund’ in J-P Schneider and F Velasco Cabrera (eds), Strukturen des Europäischen Verwaltungsverbunds (Duncker and Humblot, 2009) 206–9. 46 http://www.emeeting.europarl.europa.eu/committees/agenda/201601/JURI/JURI(2016)0111_1/sitt1388826. 47  See, for differing views on this, Ziller and Mir (n 44); C Harlow, ‘Codification of EC Administrative Procedures? Fitting the Foot to the Shoe or the Shoe to the Foot’ (1996) 2 ELJ 3; M Shapiro, ‘Codification of Administrative Law: The US and the Union’ (1996) 2 ELJ 26.

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Ombudsman’s Code contains a blend of provisions. Many of these, such as those dealing with non-discrimination, proportionality, objectivity, impartiality and independence, legitimate expectations, the right to be heard, the provision of reasons, and fairness, reflect existing law. These principles are formulated at a high level of generality in the Code, and their more specific meaning would necessarily depend on the jurisprudence of the Union Courts. The Code contains other provisions dealing with matters such as courtesy, which would not naturally lend themselves to legal enforcement even if the Code were enshrined in formal law. It is equally important to be mindful of what the Code does not cover. While the material scope for the Code’s application is defined in terms of all relations between the EU institutions, their administrations, and the public, the reality is that the Code’s more detailed provisions are primarily targeted at individualized decisions, rather than rulemaking. If a general procedural code were to become a legal reality serious thought should, therefore, be given to its coverage. It would be regrettable for any such code to be premised on a rigid dichotomy between decisions and rules, even if the administrative law precepts might differ as between the two. The detailed contours of such model rules or general law, therefore, remain to be determined. The Committee on Legal Affairs of the European Parliament passed a resolution in favour of such a law, which would apply to all EU institutions, agencies, offices, and bodies in relation to direct administration and individual administrative decisions,48 and this was affirmed by resolution of the European Parliament.49 The proposed EU law would establish default principles of administrative procedure where no sector-specific rule existed, but such sectoral rules should not provide less protection than the general procedural law. The proposal was for a set of principles such as legality, proportionality, non-discrimination, legitimate expectations, and the like to be set out at a relatively high level of generality, with more detailed specification of the process rights that should be applicable in terms of hearings, access to the file, reason giving, rights of the defence, and the like. The Legal Affairs Committee of the European Parliament returned to the issue in 2016, with a formal proposal for a Regulation that was confined to administrative procedure in the context of individual decisions.50 The proposals advanced by ReNEUAL, a research network on EU administrative law, 51 were focused on process, but were more far-reaching. They went live online on 1 September 2014 and are contained in six ‘books’. Book 1 contains an introduction to  the project and deals with general definitional issues that affect the scope of the rules. The subsequent books deal with procedures relating to rulemaking, single-case 48  Committee on Legal Affairs, Draft Report with Recommendations to the Commission on a Law on Administrative Procedure of the European Union, 2012/2024, 21 June 2012, Rapporteur Luigi Berlinguer. 49  European Parliament Resolution of 15 January 2013 with recommendations to the Commission for a Law on Administrative Procedure, 2012/2024 INI, P7-TAPROV(2013)0004. 50 http://www.emeeting.europarl.europa.eu/committees/agenda/201601/JURI/JURI(2016)0111_1/sitt1388826. 51  ReNEUAL is a network of over 100 scholars, academics, and practitioners interested in the field of European administrative and regulatory law, http://www.reneual.eu/.

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­ ecision-making, contracts, mutual assistance between national administrations, and d information management. The overall package of rules is regarded in methodological terms as ‘innovative codification’.52 This captures the idea that a new law can take over principles found in current laws, modify existing principles where this is felt to be desirable, and add new principles or rules where necessary. This should be seen in contrast to the more rigid ‘codification à droit constant’, where the objective is to ­produce a consolidated version of existing legislation. The proposals from the European Parliament, and those from ReNEUAL, will be analysed in more detail in the discussion of process.53 It remains to be seen whether any such proposal becomes a legal reality. It is fitting to conclude this chapter, and the discussion concerning some more general code covering issues of administrative law, by remembering that a very great many European countries have adopted some form of code,54 and that proposals for an EU code should be seen in this light.

52  ReNEUAL, Book I, [17], http://www.reneual.eu/.    53  See 000–000. 54  J-B Auby, ‘General Report’ in J-B Auby (ed), Codification of Administrative Procedure (Bruylant, 2014) 4.

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10 Courts 1 Introduction The preceding chapter considered the foundations of judicial review in the EU. The discussion now turns to the EU Courts. The way in which the principles of review have developed has been affected by the jurisdictional divide between the CJEU and GC, and between these Courts and national courts. It will be argued that a necessary condition for an effective regime of judicial control is the existence of a rational judicial architecture, embracing the CJEU, GC, national courts, and agency boards of appeal. The discussion will proceed in the following manner. There will be analysis of the central structural and jurisdictional features of the present system, followed by consideration of the caseload problems of the EU Courts, and the techniques available to limit the cases that are heard. The focus will then shift to the aims that should underlie reform of the Union’s judicial architecture. The bulk of the chapter will be concerned with the relationship between the CJEU and the GC, and that between the EU Courts and the national courts. The discussion will draw on two important papers concerning the EU’s judicial architecture. One was produced by then current members of the CJEU and CFI,1 and will be referred to hereafter as the Courts’ paper. The other was written by a Working Party composed largely of former judges of the CJEU at the behest of the Commission.2 The Chairman was Ole Due and it will be referred to as the Due Report. The papers generated significant discussion and comment, which will be referred to in the course of the ensuing analysis.3 1  The Future of the Judicial System of the European Union (Proposals and Reflections) (May 1999), available at http://www.alanuzelac.from.hr/Pdf/eu-postdip/Buducnost%20suda%20Europskih%20zajednica%20 -%20ave.pdf. 2  Report by the Working Party on the Future of the European Communities’ Court System (January 2000). 3  C Turner and R Muñoz, ‘Revising the Judicial Architecture of the European Union’ (1999–2000) 19 YBEL 1; A Arnull, ‘Judicial Architecture or Judicial Folly? The Challenge Facing the European Union’ (1999) 24 ELRev 516; H Rasmussen, ‘Remedying the Crumbling EC Judicial System’ (2000) 37 CMLRev 1071; P Craig, ‘The Jurisdiction of the Community Courts Reconsidered’ in G de Búrca and J Weiler (eds), The European Court of Justice (Oxford University Press, 2001) Ch 6; J Weiler, ‘Epilogue: The Judicial Après Nice’, ibid 215; R Caranta, ‘Diritto comunitario e tutela giuridica di fronte al giudice amministrativo italiano’ (2001) Rivista Trimestrale di Diritto Pubblico 81; A Dashwood and A Johnston (eds), The Future of the Judicial System of the European Union (Hart, 2001); N Forwood, ‘The Judicial Architecture of the European Union—the Challenges of Change’ in M Hoskins and W Robinson (eds), A True European: Essays for Judge David Edward (Hart, 2003)

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2  Central Structural Features There are four types of court adjudicating on EU law: the CJEU, the GC, agency boards of appeal, and national courts. There was also a Civil Service Tribunal, but its jurisdiction has now been incorporated into that of the GC. The rationale for inclusion of national courts is that they are enforcers of EU law in their own right, and have been ever since the seminal decisions in Da Costa4 and CILFIT.5 National courts apply EU law to cases which come before them, either where the CJEU/GC have already decided the point of law in question, or where the matter is acte clair in the sense articulated in CILFIT. The CJEU in an earlier paper characterized national courts ‘as the courts with general jurisdiction for Community law’,6 and this characterization was repeated in the Courts’ later paper.7 The division of jurisdictional responsibility between the CJEU and CFI has, however, been largely ad hoc. The GC was created to ease the workload of the CJEU. It was, therefore, natural to assign it certain types of case with a heavy factual quotient, such as competition and staff cases.8 The extension of jurisdictional competence to the GC over direct actions brought by individuals under what are now Articles 263, 265, and 340 TFEU was a further move to ease the CJEU’s workload.9 The same motive, combined with the idea that the GC had built up expertise in the areas of competition and intellectual property, led to cases concerning the Community trade mark being assigned to it. It will be argued later that a rethinking of the division of responsibility between the GC and CJEU, whereby the former becomes a generalized court of first instance, is central to a rational judicial structure. The division of responsibility between the CJEU/GC and national courts has been coloured by two primary factors. The main objective has been to confer a broad power 81; B Vesterdorf, ‘The Community Court System Ten Years from Now and Beyond: Problems and Possibilities’ (2003) 28 ELRev 203; C Timmermans, ‘The European Union’s Judicial System’ (2004) 41 CMLRev 393; I Pernice, J Kokott, and C Saunders (eds), The Future of the European Judicial System in Comparative Perspective (Nomos, 2006); H Rasmussen, ‘Present and Future European Judicial Problems after Enlargement and the Post-2005 Ideological Revolt’ (2007) 44 CMLRev 1661; N Forwood, ‘The Court of First Instance, its Development, and Future Role in the Legal Architecture of the European Union’ in A Arnull, P Eeckhout, and T Tridimas (eds), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (Oxford University Press, 2008) Ch 3. 4 Cases 28–30/62 Da Costa en Schaake NV, Jacob Meijer NV and Hoechst-Holland NV v Nederlandse Belastingadministratie [1963] ECR 31. 5  Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415; Case C-459/03 Intermodal Transports BV v Staatssecretaris van Financiën [2005] ECR I-8151. 6  Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union— Contribution of the Court of First Instance for the Purposes of the 1996 Intergovernmental Conference (May 1995) [15]. 7  The Future of the Judicial System (n 1) 24; Caranta (n 3). 8  Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities [1988] OJ L319/1. 9  Council Decision 93/350/ECSC, EEC, Euratom of 8 June 1993 Amending Council Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities [1993] OJ L144/21; Council Decision 94/149/ECSC, EEC of 7 March 1994 amending Council Decision 93/350 [1994] OJ L66/29.

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on national courts to enforce EU law, since this enhanced its overall effectiveness. This explains the encouragement given to national courts to apply EU precedent without recourse to the CJEU unless there was need to do so,10 the CJEU’s insistence that any national court must be able to apply EU law in a case which came before it, and its insistence also that national rules should not hinder or impede this.11 This has been tempered by the desire to preserve the uniformity of application and interpretation of EU law. Thus while national courts can declare EU norms to be valid, and whilst they must treat CJEU decisions that a Union norm is invalid as having ergo omnes effect,12 they cannot themselves declare an EU norm to be invalid,13 although they can provide interim relief.14

3  Central Jurisdictional Features The CJEU and GC possess jurisdictional competence over actions brought before them pursuant to different Treaty articles, including actions under Articles 258, 263, 265, 267, and 340 TFEU. The jurisdiction of agency boards of appeal is defined principally in their governing instruments, as will be seen later. The CJEU’s jurisdiction over preliminary rulings under Article 267 TFEU is recognized as the jewel in the Crown of this regime. Preliminary references have been the procedural vehicle through which key concepts such as direct effect and supremacy have developed.15 The very existence of this procedure has been part of the justificatory argument for the existence of direct effect itself.16 Preliminary rulings have been the mechanism through which the supremacy doctrine has been ‘nationalized’, in part because supremacy has been developed through Article 267 cases,17 in part because the very structure of this procedure means that the case will start and end in the national courts. It should also be recognized that there is a duality in the types of case that arise under Article 267. A paradigmatic case is the challenge to national action on the ground that it violates a Treaty article, regulation, directive, or other binding norm of EU law. Another prominent type of case concerns the use of Article 267 as a means of indirect challenge to an EU norm on the ground that it is in breach of a Treaty article or a regulation, directive, or decision that is hierarchically superior to the EU norm being 10  Cases 28–30/62 Da Costa (n 4); Case 283/81 CILFIT (n 5). 11  Case 106/77 Amministrazione delle finanze dello Stato v Simmenthal SpA [1978] ECR 629. 12  Case 66/80 International Chemical Corp v Amministrazione delle finanze dello Stato [1981] ECR 1191. 13  Case 314/85 Firma Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199. 14  Cases C-143/88 and 92/89 Zuckerfabrik Süderdithmaschen AG v Hauptzollamt Itzehoe [1991] ECR I-415. 15  F Mancini and D Keeling, ‘From CILFIT to ERT: The Constitutional Challenge Facing the European Court’ (1991) 11 YBEL 1, 2–3. 16  Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1; Case 41/74 Van Duyn v Home Office [1974] ECR 1337, [12]. 17  Case 6/64 Costa v ENEL [1964] ECR 585; Case 106/77 Simmenthal (n 11).

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challenged. Article 267 has been used in this manner especially by individuals and non-privileged applicants, because of the difficulty of securing standing in a direct action for judicial review under Article 263. In these circumstances Article 267 is often the only practical way for an individual to get the case before the EU Courts. This leads directly to a further jurisdictional feature concerning the EU Courts: prior to the Nice Treaty all preliminary references had to go to the CJEU. If all such cases were of real importance, then this would not matter. However, many requests for preliminary rulings are technical rather than constitutional in nature. Applicants will seek to challenge the validity of EU regulations or decisions under Article 267, which they are unable to contest under Article 263. A common scenario is that a national customs authority, or agricultural intervention board, will apply an EU regulation concerning the details of customs classification, agricultural levies, and the like to a particular producer. The producer feels that the goods have been wrongly classified, or that the levy is discriminatory, and therefore resists payment. The customs authority, or agricultural intervention board, takes legal action and the applicant argues before the national court that the regulation is invalid, and asks that the relevant questions be referred to the CJEU. A glance through the case law for any one year reveals the number of such cases heard by the CJEU. It is right and proper that such matters are judicially resolved. It is far less obvious that the CJEU should be spending its time and resources on such matters. It is important at this juncture to recognize the contribution to adjudication made by agency boards of appeal (BoA). Chirulli and de Lucia have identified the principal features of such BoAs:18 the norm is for the agency decisions that are subject to appeal to be listed in the relevant secondary legislation; there is normally a requirement for prior exhaustion of administrative remedies for the admissibility of judicial review before EU Courts; the BoAs are independent offices within the agencies; while they are regarded by the CJEU as ‘quasi-jurisdictional bodies’, the BoAs do not have formal judicial powers, and the members thereof are not technically ‘judges’; the parties to the appeal are normally the agency and the appellant, and the decision of the BoA is binding on the parties; with the exception of the BoAs of the European Supervisory Authorities (ESAs) and that of the Single Resolution Mechanism (SRM), they can modify or substitute the contested act; BoAs are normally composed of lawyers and specialists in the particular field; and an appeal may have a suspensive effect on the initial decision. Agencies are subject to review under Article 263(1) TFEU, and provision is made for arrangements involving BoAs through Article 263(5) TFEU, which stipulates that ‘acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them.’ 18  P Chirulli and L de Lucia, ‘Specialized Adjudication in EU Administrative Law: The Boards of Appeal of EU Agencies’ (2015) 40 ELRev 832, 835–6. See also M Navin-Jones, ‘A Legal Review of EU Boards of Appeal in Particular the European Chemicals Agency Board of Appeal’ (2014) 20 EPL 143.

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The majority of BoAs can exercise any power that is within the agency’s competence. There is in that sense a continuity of function between the BoAs and the agencies, with the consequence,19 [T]hat when they confirm, modify or substitute the contested decision, they express the conclusive position of the agency: such decisions on the complaint therefore absorb and substitute the first measure and may be subject to judicial review before the European courts. In short, they are allowed to carry out a merits review.

There are, nonetheless, as Chirulli and de Lucia point out, considerable ambiguities as to the more precise role performed by BoAs, the issue being further complicated by the fact that not all such bodies possess the same powers. Thus, some BoAs, such as those governing the ESAs and the SRM, can only confirm the initial agency decision, or remit the matter to the agency to decide the case again. There is, moreover, uncertainty as to how far the BoAs adopt a more rights-protective approach as compared to the initial agency determination.20 The BoAs will commonly review the initial agency decision on law and fact, although they have discretion as to the admissibility of new evidence. They will also review technical/scientific decisions made by the agency, the approach thereto being influenced by whether the members of the BoA are p ­ redominantly legal or nonlegal by training.21 The creation of BoAs raises a plethora of interesting issues concerning dispute resolution and adjudication in the EU. Thus, as Chirulli and de Lucia note, the specialized review provided by BoAs ‘offers accuracy, experience, sectoral knowledge, expeditiousness, informality,’22 but also presents the risk of fragmentation of rights protection, although this problem is alleviated by the fact that decisions by BoAs often make reference to European Court case law, ‘thus showing a strong willingness to integrate with the system of administrative justice and to contribute to its overall coherence.’23

4 Caseload It is clear that the principal rationale driving reform of the EU’s judicial system has been workload. The Courts’ paper stressed that the organizational and procedural framework ‘must be revised to enable the Court of Justice and the Court of First Instance to shorten existing time limits and deal with further increases in the number of cases brought’.24 If this did not occur then there would be delays on a scale that could not be reconciled with an acceptable level of judicial protection in the Union. The Courts’ paper continued in the following vein.25

19  Chirulli and de Lucia (n 18) 836.    20  Ibid 853–4.   21 Ibid 850–2.   22  Ibid 855. 23 Ibid 855.   24  The Future of the Judicial System (n 1) 8. 25  Ibid 9; Report by the Working Party (n 2) 5–8.

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Furthermore, in the case of the Court of Justice, the extra case-load might well seriously jeopardise the proper accomplishment of its task as a court of last instance which, in ­addition, has a constitutional role. The Court would then no longer be able to concentrate on its main functions, which are to guarantee respect for the distribution of powers between the Community and its Member States and between the Community institutions, the uniformity and consistency of Community law and to contribute to the harmonious development of the law of the Union. Such a failure on the part of the Court would undermine the rule of law on which, as stated in Article 6(1) EU, the Union is founded.

(A)  The Rationale for the CJEU’s Caseload Problem In 2010 the CJEU had 631 new cases brought before it, the highest number in the Court’s history, and a significant increase as compared with 562 new cases in 2009. The situation was replicated in relation to preliminary references. The number of references submitted in 2010 was 385, which was the highest ever, and exceeded the number in 2009, 302 references, by 27.4 per cent. There were 484 references pending in 2010.26 In 2016, 692 new cases were brought before the Court. This was slightly lower than 2015, when the figure was a record high of 713 new cases. However, of the 692 new cases in 2016, 470 were requests for a preliminary ruling, which represented almost 70 per cent of all the cases brought before the Court in the year.27 Different factors have led to the increase in the caseload of the CJEU and GC.28 Four such factors can be identified. First, and most obviously, is the enlargement of the EU. The expansion from six to twenty-eight Member States led to an increase in business for the EU Courts. Secondly, the areas over which the EU has competence expanded with every major Treaty revision. Thirdly, there has been the success of harmonization initiatives, and enactment of EU legislation, which require judicial interpretation, more especially where the legislation is complex, as exemplified by the introduction of the Community trade mark. The final consideration that led to an increase in caseload has been the growing awareness of EU law by lawyers. At the inception of the Community, EEC law remained the preserve of a limited number of specialists. Taking an EEC point was regarded as rather unusual, and often seen as a matter of last resort. The reality is now very different, and lawyers will routinely consider whether there is an EU ‘angle’ to a case which comes before them.

(B)  Judicial Mechanisms for Limiting Caseload There are judicial mechanisms for limiting the cases which come before the CJEU/GC. These juristic devices differ in relation to the main heads of the EU Courts’ jurisdiction.

26  Proceedings of the Court of Justice, Annual Report 2010, http://curia.europa.eu/jcms/jcms/Jo2_7000/. 27  Proceedings of the Court of Justice, Annual Report 2016, https://curia.europa.eu/jcms/jcms/Jo2_7000/, 80. 28  See also K Lenaerts, ‘The Unity of European Law and the Overload of the CJEU—The System of Preliminary Rulings Revisited’ in Pernice, Kokott, and Saunders (n 3) 211, 213–18.

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In relation to direct actions contesting the validity of Community norms, standing requirements have been the main control device applicable to actions brought by private parties under Article 263 TFEU. This will be considered in detail in the following chapter. Suffice it to say for the present that the rules were very tight and it would not be possible to address the workload problem by making them any tighter. In relation to enforcement actions brought by the Commission before the CJEU under Article 258 TFEU, the main control mechanism is the Commission’s discretion as to whether it should take a case or not.29 The number of cases brought under Article 258 is not that great. The Commission uses its scarce resources to fight those cases which it believes to be most significant, and hence there is no real way of alleviating the CJEU’s work-load by reform in this area. The CJEU has mechanisms whereby it can limit the number of requests for a ­preliminary ruling under Article 267 TFEU.30 Article 267 is based on cooperation between the national court and the CJEU. The early case law indicated that the CJEU would rarely if ever question the factual basis of, or reasons for, a referral.31 However, in the seminal Foglia jurisprudence32 it held that it would make the ultimate decision as to the scope of its own jurisdiction. The Court was not simply to be a passive receptor, forced to adjudicate on whatever was placed before it by a national court. It asserted control over the suitability of the reference. The principle in Foglia lay dormant for some time, and attempts to invoke it did not prove markedly successful.33 However, from the early 1990s the Court used the Foglia principle to decline to give rulings in cases that were hypothetical, where the questions raised were not relevant to the resolution of the substantive action in the national court,34 where the questions were not articulated clearly enough for it to be able to give any meaningful legal response, and where the facts were insufficiently clear for the Court to be able to apply the relevant legal rules.35

29  R Rawlings, ‘Citizen Action and Institutional Attitudes in Commission Enforcement’ (2000) 6 ELJ 4. 30  Lenaerts (n 28) 219–31. 31  P Craig and G de Búrca, EU Law: Text, Cases, and Materials (Oxford University Press, 6th edn, 2015) 485–6. 32  Case 104/79 Pasquale Foglia v Mariella Novella [1980] ECR 745; Case 244/80 Pasquale Foglia v Mariella Novello (No 2) [1981] ECR 3045. 33  Case 261/81 Walter Rau Lebensmittelwerke v De Smedt PvbA [1982] ECR 3961; Case 46/80 Vinal SpA v Orbat SpA [1981] ECR 77; Case C-150/88 Eau de Cologne and Parfumerie-Fabrik Glockengasse No 4711 KG v Provide Srl [1989] ECR 3891. 34  Case C-83/91 Wienand Meilicke v ADV/ORGA FA Meyer AG [1992] ECR I-4871; Case C-18/93 Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783; Case C-428/93 Monin Automobiles— Maison du Deux-Roues [1994] ECR I-1707; Case C-134/95 Unita Socio-Sanitaria Locale No 47 di Biella (USSL) v Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro (INAIL) [1997] ECR I-195; Cases C-320, 328, 329, 337, 338 and 339/94 Reti Televisive Italiane SpA (RTI) v Ministero delle Poste e Telecommunicazione [1996] ECR I-6471; Case C-313/07 Kirtruna SL and Elisa Vigano v Red Elite de Electrodomésticos SA [2008] ECR I-7907. 35  Cases C-320–322/90 Telemarsicabruzzo SpA v Circostel, Ministero delle Poste e Telecommunicazioni and Ministerio della Difesa [1993] ECR I-393; Case C-157/92 Banchero [1993] ECR I-1085; Case C-386/92 Monin Automobiles v France [1993] ECR I-2049; Case C-458/93 Criminal Proceedings against Saddik [1995] ECR I-511; Case C-2/96 Criminal Proceedings against Sunino and Data [1996] ECR I-1543; Case C-257/95 Bresle v Préfet de la Région Auvergne and Préfet du Puy-de-Dôme [1996] ECR I-233; Case C-293/03 Gregorio My v ONP [2004] ECR I-12013; Case C-152/03 Ritter-Coulais v Finanzamt Gemersheim [2006] ECR I-1711.

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The results of this case law were incorporated in a memorandum providing information and guidance for national courts.36 It states that the order for reference should contain a statement of reasons which is succinct, but sufficiently complete, to give the Court a clear understanding of the factual and legal context of the main action. It should include a statement of the essential facts; the relevant national law; the provisions of EU law felt to be applicable to the case; the reasons why the national court referred the matter; and a summary of the parties’ arguments where appropriate. While the CJEU has therefore exerted greater control over the admissibility of references than hitherto, the Court has continued to make it clear that it will only decline to give a ruling if the issue of EU law on which an interpretation is sought is manifestly inapplicable to the dispute before the national court, or bears no relation to the subject matter of that action.37 The CJEU also has a more indirect way of limiting caseload under Article 267, by limiting the intensity of judicial oversight. This is the classic technique used by the CJEU when reviewing cases brought to it under Article 267 to contest the validity of EU acts which cannot be challenged directly through Article 263 because of the limited standing rules. Applicants who wish to challenge the validity of EU action will often have to do so through national courts. The national court will send the case to the CJEU for a preliminary ruling as to whether, for example, an agricultural measure was disproportionate and hence in breach of Article 40 TFEU. The CJEU will not readily find that the challenged Union norm was invalid, more especially in an area where the Commission and Council have broad discretionary power.38 The applicant may have to prove that the measure was manifestly disproportionate, or very obviously discriminatory.39 Low-intensity review can operate as a tool for controlling caseload, since those who are thinking of challenging the validity of a measure will realize that they have to prove something quite extreme before they can succeed. They will, therefore, desist from bringing the action where the chance of proving this is remote. These techniques for limiting caseload under Article 267 have not stemmed the tide of references coming to the CJEU. The Foglia principle only excludes a limited number of references. Moreover, national courts have learned to frame their references better and there will therefore be fewer cases that can be excluded on this ground.

36  Information Note on References from National Courts for a Preliminary Ruling [2005] OJ C143/1, [2009] OJ C297/01. 37  Case C-85/95 Reisdorf v Finanzamt Koln-West [1996] ECR I-6257; Case C-129/94 Criminal Proceedings against Bernaldez [1996] ECR I-1829; Case C-138/05 Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliktiet [2006] ECR I-8339; Case C-295/05 Asemfo v Transformación Agraria SA [2007] ECR I-2999; Case C-484/08 Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc) [2010] ECR I-4785 [19]; Case C-440/08 Gielen v Staatssecretaris van Financiën [2010] ECR I-2323 [29]. 38  P Craig, ‘Judicial Review, Intensity and Deference in EU Law’ in D Dyzenhaus (ed), The Unity of Public Law (Hart, 2004) Ch 13. 39  See Ch 15.

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(C)  The Rationale for the GC’s Caseload Problem Discussion of caseload has focused predominantly on the problems faced by the CJEU. We should not, however, exclude the GC from our focus in this regard. In 2010 636 new cases were lodged at the GC, the highest number ever, as compared with 568 in 2009. The GC completed 527 cases in 2010, but there were still 1,300 cases pending in December 2010, notwithstanding the time per case being reduced from 27.2 months in 2009, to 24.7 months in 2010.40 In 2016, the number of new cases increased by 17 per cent, from 831 cases in 2015 to 974 in 2016, although much of this was due to the transfer of jurisdiction of civil service cases. The number of cases pending increased from 1,267 cases in 2015, to 1,486 cases in 2016. The average time to dispose of a case had, however, come down to 18.7 months.41 The rationale for the increase in the GC’s workload is partly explicable by the same factors as pertain to the CJEU, especially the increase in the size of the EU and the expansion in its sphere of competence.

5  Reform Objectives The discussion thus far has identified central structural and jurisdictional features of the EU judicial system, and the problems relating to caseload. We can now consider reform. The answer to this inquiry depends on assumptions about the principal o ­ bjectives of a reformed regime. Thus the Courts’ paper and the Due Report posited three fundamental requirements that should be taken into account when thinking about the future of the EU’s judicial system:42 the need to secure the unity of Union law by means of a supreme court; the need to ensure that the judicial system is transparent, comprehensible, and accessible to the public; and the need to dispense justice without unacceptable delay. These issues are important, but do not exhaust the considerations pertinent to reform of the EU’s judicial system. We can more generally disaggregate three key aspects of judicial architecture that should be addressed, even though they are related. There are issues concerning input/access. This is exemplified by the need to ensure that the judicial system is transparent, comprehensible, and accessible to the public, and that EU justice is available without excessive delay. It is scant comfort to litigants to be presented with an impressive array of judicial protections if the time to secure relief renders such protection chimerical. We should be equally mindful of cost implications. If the system is structured such that litigants find it necessary to fight their way through multiple courts before reaching a forum that is capable of resolving the matter, then this will dissuade many who do not have the resources for such a ‘journey’. There are equally important matters relating to the distribution of jurisdictional competence as between the CJEU and GC, and as between the EU Courts and national courts. It is axiomatic that the division of judicial power between the CJEU and GC 40  Annual Report 2010 (n 26).    41  Annual Report 2016 (n 27) 126–7. 42  The Future of the Judicial System (n 1) 18; Report by the Working Party (n 2) 10.

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should be as coherent and symmetrical as possible, while accepting that there can be legitimate differences of view as to what this entails. It is also self-evident that the system should be structured to ensure that the most important points of law are decided by the CJEU, and that it is not troubled by less important cases.43 The principles that should guide the division of authority between the EU Courts and the national courts are more contentious. Thus, as will be seen, there is debate as to whether it would be desirable to move from the present reference system, to one which is more appellate in nature. There is equally vibrant discourse about whether national courts should be accorded more latitude by, for example, loosening the criteria of the acte clair doctrine, or according them competence to pronounce on the validity of EU norms. There are finally issues concerning output. The success or otherwise of the EU judicial architecture should be judged in part by whether it secures the effective enforcement of Union law. We should, moreover, be willing to think whether certain assum­p­tions about output should continue to be treated as ‘givens’. Thus the need to ensure the unity and uniformity of EU law has shaped key aspects of judicial doctrine and has had ramifications for the EU judicial system. Whether such a high premium should continue to be placed on this ‘output objective’ has been questioned. The following discussion will focus on the relationship between the CJEU and the GC, and that between the EU Courts and the national courts. This is central for a rational judicial system and has implications for input/access and for output. A cautionary note should be added before proceeding further. The principled discussion about reform of the EU judicial system must be tempered by political reality. The ­ultimate decision concerning judicial reform lies with the EU’s political organs. This should not be forgotten. It will be seen, moreover, that the ‘agenda’ of the main political players, the European Council, Council, European Parliament, and Commission, is not uniform. It is, therefore, necessary to acknowledge not only the existence of ­political pressures, but also that they might pull in different directions.

6  The Relationship between the CJEU and GC The jurisdiction of the GC has, as seen earlier, grown in an ad hoc manner. It has been given heads of jurisdiction primarily to relieve the CJEU’s workload, hence the assignment of staff cases and competition cases to the GC. The transfer of all direct actions brought by non-privileged applicants was fuelled by similar concerns. The future role of the GC is of central importance to the overall judicial architecture. An objective of reform must be a system which is as coherent as possible. A step in this direction would be for the GC to become a general court of first instance for all actions, with limited rights of appeal to the CJEU. This will be considered both for direct actions and for 43  This point was emphasized by judges of the CFI: Forwood, ‘The Court of First Instance’ (n 3) 36; B Vesterdorf, ‘A Constitutional Court for the EU?’ (2006) 4 I-CON 607 .

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preliminary rulings. This is not the route that reform has currently taken, but the issue remains of principled importance, and should, therefore, be discussed nonetheless.

(A)  Direct Actions The possibility that the GC might become a court of first instance for all direct actions was considered by both reports that preceded the Nice Treaty. The Courts’ paper was, however, hesitant about the possible transfer of further competence to the GC to hear direct actions. It stated that there were no grounds at that time for proposing the transfer of any heads of jurisdiction over and above those whose transfer had already been proposed by the CJEU, while leaving open the possibility that ‘it may become necessary, if the volume of cases continues to grow, to review the basis on which jurisdiction is allocated between the two Community courts and to transfer further heads of jurisdiction to the Court of First Instance’.44 The Due Report was more forthcoming in this respect.45 Its starting point was that the GC should, as a matter of principle, be the first judicial forum for direct actions, including review for legality and compensation. The GC’s jurisdiction would include actions brought by a Member State or an EU institution. This principle was then ­qualified in the Report, such that direct actions involving matters of urgency and importance would be assigned to the CJEU.46 This category would be reserved for those cases where a rapid judgment was essential to avoid serious problems in the proper functioning of the EU institutions.47 The changes made by the Nice Treaty moved matters in the direction suggested by the Due Report. The position hitherto had been that the GC would be accorded jurisdiction over certain classes of case as a result of a determination made by the Council, albeit at the request of the CJEU, subject to the Treaty limitation that the GC could not hear preliminary rulings. This was modified by the Nice Treaty and these modifications were taken over into the Lisbon Treaty. Article 256 TFEU provides that the GC can hear actions covered by Articles 263, 265, 268, 270, and 272, with the exception of those cases assigned to a specialized court and those reserved in the Statute of the Court of Justice for the CJEU. Article 256(1) TFEU stipulates further that the Statute may provide for the GC to have jurisdiction for other classes of case, thereby obviating the need for Treaty amendment. Article 51 of the Statute of the Court of Justice had reserved jurisdiction to the CJEU in all actions brought by Member States, the EU institutions, and the ECB. This Article was amended so as to give the GC increased jurisdiction over direct actions.48 Article 51 continues to reserve jurisdiction for the CJEU in relation to direct actions brought 44  The Future of the Judicial System (n 1) 21. 45  Report by the Working Party (n 2) 23–9. 46  Ibid 24–5. 47  Ibid 25. The Report makes it clear that actions under Art 258 TFEU would fall within this category. 48  Council Decision 2004/407/EC, Euratom of 26 April 2004 amending Articles 51 and 54 of the Protocol of the Statute of the Court of Justice [2004] OJ L132/5.

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by an EU institution against another EU institution, including the ECB. Jurisdiction also remains with the CJEU where a Member State seeks to challenge an act or failure to act by the European Parliament or Council, or where these institutions act jointly. This is, however, now subject to limited exceptions. An action by a Member State can be heard by the GC where it relates to a Council decision under paragraph three of Article 108(2) TFEU concerning state aids; where it concerns measures to protect trade pursuant to Article 207 TFEU; and most significantly in relation to acts of the Council, where the Council exercises implementing powers in accord with the second paragraph of Article 291 TFEU. The GC has, moreover, been given jurisdiction in actions brought by Member States against the Commission, except in relation to issues of enhanced cooperation.49 The thrust of the Due Report’s proposal is to be welcomed, as are the steps in that direction taken by the Nice and Lisbon Treaties. There is a strong case for rationalizing the present regime and making it more coherent by transforming the GC into a general first instance court in direct actions. This would be a rational working through of Declaration 12 attached to the Nice Treaty, which stipulated that the CJEU and the Commission should, as soon as possible, present proposals for the division of jurisdiction between the CJEU and the GC, particularly in the area of direct actions. We should move away from the idea that the GC is a court primarily for technical or factually complex cases. We should not accept that the jurisdiction of the GC is destined forever to remain eclectic and ad hoc. The changes made to Article 51 of the Statute have increased the GC’s jurisdiction over direct actions, while welcome for that reason they also serve by their patchwork nature to complicate the jurisdictional divide between the CJEU and the GC. It is, moreover, difficult to sustain a principled argument as to why the GC should be accorded jurisdiction in these areas and not others. The GC is already the first instance court for direct actions involving non-privileged applicants who seek to challenge the validity of EU norms. Its jurisdiction should be extended to enable it to hear all direct actions under Article 263, or 265, even where the case is brought by a privileged applicant such as the Council, Commission, or a Member State, or by a quasi-privileged applicant such as the European Parliament or the ECB. It would also be desirable if the GC could operate as a first instance court in enforcement actions brought under Article 258.50 The Member States are, however, likely to be particularly resistant to change that would mean that they could be sued before the GC for non-compliance with Union obligations, rather than before the CJEU. This should not dissuade us from making the GC a general court of first instance in direct actions under Articles 263 and 265, with

49  Lisbon Treaty, Protocol (No 3), Statute of the Court of Justice [2010] OJ C83/210; Protocol (No 3), Statute of the Court of Justice, Consolidated Version 2016, https://curia.europa.eu/jcms/upload/docs/application/ pdf/2016-08/tra-doc-en-div-c-0000-2016-201606984-05_00.pdf. 50  Forwood (n 3) 87.

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the possibility of appeal to the CJEU.51 GC decisions made pursuant to Article 256(1) are in any event subject to appeal to the CJEU on a point of law, under the conditions laid down by the Statute. The vision of the GC as general first instance court in direct actions fits well with other developments in the general regime of EU adjudication. To an increasing extent cases which come before the EU Courts have already been the subject of some form of adjudication. This has always been the case in the context of competition and state aids where the Commission will have given a formal, legally binding decision, which the parties can challenge before the GC. The development of a specialist agency in the context of trade marks is a further move in the same direction. Staff cases were dealt with through the Civil Service Tribunal,52 subject to appeal to the GC, and further review by the CJEU where there is a serious risk of the unity or consistency of Union law being affected. It can, therefore, be argued that the GC should become the general court of first instance in direct actions irrespective of the nature of the applicant. The caseload problems of the GC adverted to earlier mean that any increase in its jurisdiction would have to be accompanied by an increase in the number of judges, but this has been done. Article 19 TEU states that the GC shall have at least one judge per Member State and Article 254 TFEU specifies that the number of judges in the GC should be determined by the Statute of the Court of Justice. The GC works in Chambers and this can be used to accommodate the need for subject matter specialization. Article 256(1) limits appeal to the CJEU to points of law, and the details of such appeals are specified further by Articles 56–62 of the Statute. In circumstances where the GC has determined an appeal from a specialized court then the approach in the Lisbon Treaty, whereby there is the possibility of review by the CJEU where there is serious risk to the unity or consistency of EU law, is sound.

(B)  Preliminary Rulings The discussion thus far has concentrated on the role of GC as a generalized court of first instance in direct actions. This still leaves open preliminary rulings. Reform of the preliminary ruling procedure raises important issues concerning the relationship between the national courts and the Union Courts. It also has implications for the relationship between the CJEU and the GC. Prior to the Nice Treaty all requests for a preliminary ruling were heard by the CJEU, since the Treaty gave the CJEU exclusive jurisdiction over such cases. We have seen that the CJEU’s workload problem arose in part from the increasing burden of ­preliminary rulings. The reports prior to the Nice Treaty therefore considered whether this problem could be alleviated by allowing the GC to give preliminary rulings. This possibility was 51  A filter for appeals from the CFI to the CJEU was part of the proposals made in the Due Report, Report by the Working Party (n 2) 28. 52  The idea was mooted in The Future of the Judicial System (n 1) 17; Report by the Working Party (n 2) 30–1.

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canvassed positively, albeit cautiously, in the Courts’ paper.53 The Due Report was, however, opposed to this change, except in a limited number of special areas. Such rulings should, said the Report, be given by the CJEU because this was the most important task for the development of EU law. The Due Report was also influenced in reaching this conclusion by the fact that preliminary rulings take the form of a reference of a question from a national court, with the substance of the case remaining for resolution in the national court. It was felt that the consequence must be a ‘one-stop shop’, in the sense that the questions referred by the national court should go to only one EU Court, because of the time delays thereby involved, and thus there would be difficulties in providing for an appeal to the CJEU from the GC’s rulings.54 The Nice Treaty, however, accorded the GC power for the first time to hear ­preliminary rulings. Article 256(3) TFEU provides that the GC has jurisdiction to determine preliminary rulings in specific areas laid down by the Statute of the Court of Justice. Where the GC believes that the case requires a decision of principle which is likely to affect the unity or consistency of EU law, it may refer the case to the CJEU. Preliminary rulings given by the GC can, exceptionally, be subject to review by the CJEU, under the conditions laid down in the Statute, where there is a serious risk to the unity or consistency of EU law being affected.55 There is much to be said for the idea that the GC should be able to give preliminary rulings.56 (i)  Preliminary Rulings, the GC, and Indirect Challenge to EU Norms We have already seen that one category of preliminary ruling involves indirect challenges to the validity of EU norms through Article 267, where the non-privileged applicants cannot satisfy the standing criteria under Article 263. The perverse institutional consequence of the restrictive standing rules limiting access under Article 263 has, therefore, been to compel such applicants to use Article 267, thereby further overburdening the CJEU. The substance of such cases is concerned with just the kind of issues that would be heard by the GC in a direct action under Article 263 if the standing criteria were less restrictive. It cannot, therefore, be argued that the GC is illequipped to hear such actions if they emerge indirectly via national courts as requests for preliminary rulings. Moreover, many of these cases involve no general point of importance for EU law. The paradigm is normally a technical issue concerning the 53  The Future of the Judicial System (n 1) 27. 54  Report by the Working Party (n 2) 22. Compare, however, the discussion in the Courts’ paper, which explicitly considered the possibility of two adjudications on preliminary rulings in the context of its discussion of decentralized judicial bodies, The Future of the Judicial System (n 1) 28–9. 55  Statute of the Court of Justice, 2016 (n 49) Art 62. 56  J Azizi, ‘Opportunities and Limits for the Transfer of Preliminary Reference Proceedings to the Court of First Instance’ in Pernice, Kokott, and Saunders (n 3) 241–56; J Azizi, ‘Die Institutionenreform in der EU aus der Sicht der Gerichtsbarkeit’ in W Hummer (ed), Paradigmenwechsel im Europarecht zur Jahrtausendwende, (Springer, 2004) 181–229; S Prechal, ‘Who Should Do What?’ in V Skouris, La Cour de justice des Communautés européennes, 1952–2002: Bilan et Perspectives (Bruylant, 2004) 63–85; U Everling, ‘The Future of the European Judiciary within the Enlarged European Union’ in Mélanges en hommage à Michel Waelbroeck (Bruylant, 1999) 333–54; P Dyrberg, ‘What Should the Court of Justice Be Doing?’ (2001) 26 ELRev 291.

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meaning of a provision in an EU norm, which requires judicial resolution, but not the scarce resources of the CJEU. Lenaerts has argued that this analogy should be treated with caution, because the direct action is subject to appeal on a point of law, whereas if such matters were heard by the GC as preliminary rulings then the GC judgments would in principle be definitive subject to exceptional review by the CJEU.57 The point in the preceding paragraph is, however, simply that the subject matter of such indirect challenges to the validity of EU norms would be heard as a direct action by the GC if the standing rules were more liberally interpreted. Given that this is so, it is difficult to see why such actions should be regarded as ill-suited to the GC if they arose as indirect actions. The legal arguments that might be addressed against an EU regulation, whether framed in terms of proportionality, legitimate expectations, fundamental rights, etc, will not alter depending on whether the challenge is direct or indirect. Insofar as there is concern that there would be less recourse to the CJEU from the GC in such indirect actions than there is currently from direct actions, this would be a general problem and not one restricted to this category of case. This issue will be considered later. (ii)  Preliminary Rulings, the GC, and Indirect Challenge to Member State Action Nor should we be wedded to the idea that the other principal category of preliminary ruling, challenge to Member State action for violation of EU law, must necessarily be heard by the CJEU. It is mistaken to think that all such cases are of significance either for the development of EU law, or for the Member State. Many such cases involve technical issues as to whether, for example, a national provision is compatible with EU rules on VAT and the like. There is no reason why preliminary rulings should not go initially to the GC, with the possibility of further recourse to the CJEU in accord with Article 256(3). This provides two mechanisms for getting a case from the GC to the CJEU: either the GC refers it on to the CJEU because the GC considers that the case raises an issue of principle likely to affect the unity or consistency of EU law, or the GC’s decision can be subject to review by the CJEU where there is a serious risk that the unity or consistency of EU law will be affected. The GC could, on this view, subject to the caveat just mentioned, be the general first instance court for preliminary rulings as well as direct actions. This conclusion can be reinforced by considering the plausibility of the strategy in the Nice Treaty carried over to the Lisbon Treaty that the GC has jurisdiction to give preliminary rulings only in specific areas. There is some evidence that members of the CJEU are not eager to empower the GC58 and there has been no progress thus far in delineating these ‘areas’. This is not fortuitous. A moment’s reflection will reveal the difficulty in applying this precept. The phrase ‘specific areas’ indicates that the criterion is to be subject matter: the GC would have jurisdiction to give preliminary rulings in relation to energy or agriculture, transport or customs.

57  Lenaerts (n 28) 235.    58  Vesterdorf (n 3).

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This is, however, problematic. This is in part because cases do not always fit neatly into such pigeonholes, and hence there would inevitably be boundary problems leading to uncertainty for national courts and costly procedural litigation. The strategy is flawed more importantly because there is no correlation between subject matter area and the importance of the point of EU law raised by the case, a point acknowledged by members of the Union Courts.59 We know full well from existing jurisprudence that preliminary rulings in, for example, agricultural and customs cases have generated some of the most important points of EU law principle, even where the sums at stake were small. We know equally well that there are many cases in these areas that entail no issue of general principle. There is, therefore, no ready method of choosing particular areas in which the GC should be competent to give preliminary rulings. The only way to avoid this conclusion is to limit the GC’s competence to very specialist areas, such as judicial cooperation in civil matters, which give rise to specific issues of private international law,60 or in relation to matters such as customs classification.61 This would have relatively little impact on the overall work problem of the CJEU. Nor would it furnish any reason as to why the GC should be precluded from acting as the first instance court for preliminary rulings in other areas. Forwood took the view that the mere fact that an area is important or central to the EU legal order should not necessarily preclude a transfer to the GC, although he argued that the relative maturity of the case law should be taken into account.62 Judges on the GC and CJEU take differing views as to which areas might be suited for the exercise of p ­ reliminary ruling jurisdiction by the GC.63 (iii)  Preliminary Rulings and the GC: Conclusion and Concern A principled and pragmatic solution would be to accord the GC with a general competence to hear preliminary rulings.64 This would require an increase in the number of judges given the workload problems of the GC adverted to earlier. There would then be the possibility of further recourse to the CJEU where necessary, and Article 256(3) TFEU already embodies sound criteria in this respect: the GC can refer the matter on to the CJEU where the case requires a decision of principle likely to affect the unity and consistency of EU law, and the CJEU can review the decisions made by the CJEU where there is a serious risk of the unity or consistency of EU law being affected. We should, nonetheless, note a concern expressed by Lenaerts, who argues that such a solution would be undesirable because it would introduce an unwarranted distinction between direct actions and preliminary rulings. In relation to the former, the GC would be a true first instance court, with onward appeal on points of law to the CJEU. 59  Lenaerts (n 28) 233; Azizi (n 56) 249–51; F Jacobs, ‘Recent and Ongoing Measures to Improve the Efficiency of the European Court of Justice’ (2004) 29 ELRev 823, 826. 60  Report by the Working Party (n 2). 61  Lenaerts (n 28) 234; Azizi (n 56) 251. 62  Forwood (n 3) 86. 63  Compare Lenaerts (n 28) 234–6; Forwood, ‘The Court of First Instance’ (n 3) 45–6; Azizi (n 56) 251–2. 64  See also, Rasmussen (n 3) 1098–103; Weiler (n 3) 222–3; Prechal (n 56) 66. For a contrary view, Lenaerts (n 28) 235–6.

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In relation to the latter, the GC’s preliminary ruling would be prima facie definitive, subject to invocation of exceptional review by the CJEU in accord with Article 256(3).65 There is force in this argument. There are, however, two responses. First, the criteria in Article 256(3) reflect the considered judgment of those who framed the Nice and Lisbon Treaties that preliminary rulings by the GC should only be subject to limited oversight by the CJEU, and should not be subject to general appeal on a point of law. It should not, moreover, be too readily assumed that the criteria in Article 256(3) allow for less control by the CJEU than for direct actions where there is an appeal on a point of law. The control is different, but the criteria contained in Article 256(3) allow the CJEU to be proactive in taking a case, whereas the regime for appeal on law is premised on one of the parties seeking to exercise such appeal rights, and they only do so in approximately 25 per cent of cases.66 The existing criteria in Article 256(3) in any event allow for two routes whereby a preliminary ruling can go from the GC to the CJEU: exceptional review by the CJEU and the GC deciding that the case warrants the attention of the CJEU. Both could be liberally interpreted in areas where the unity or consistency of EU law was placed in jeopardy. Indeed Vesterdorf argued strongly that the criteria in Article 256(3) provide ample safeguards to secure the unity and consistency of EU law.67 Secondly, if this interpretation of Article 256(3) was felt to be insufficient then thought could be given to modification of those criteria. It might be argued that more control by the CJEU over the GC would be warranted if the latter were to become the general court of first instance for preliminary rulings. Parity in this respect between direct actions and preliminary rulings heard by the GC could be ensured by allowing appeal on points of law from the latter actions as well as the former. Alternatively, such appeals on a point of law could be added to the existing criteria in Article 256(3). It might be contended that such changes would undermine the benefits of the reform, since the CJEU would still be regularly beset by such appeals and hence its workload would not be reduced. This is not self-evidently so: only approximately 25 per cent of current GC decisions are appealed to the CJEU and only approximately 20 per cent of such appeals are successful.68 Moreover, the very fact that the case has already been subject to detailed scrutiny by the GC will normally facilitate consideration of any appeal on law by the CJEU, since the arguments will already have been subject to such analysis.69 It would, moreover, be possible to render any appeal on a point of law subject to permission from either the GC or the CJEU, a feature common in a number of domestic legal systems. 65  Lenaerts (n 28) 235–6. 66  V Skouris, ‘Self-Conception, Challenges and Perspectives of the EU Courts’ in Pernice, Kokott, and Saunders (n 3) 26; Forwood, ‘The Court of First Instance’ (n 3) 43; Proceedings of the General Court, Annual Report 2010, Statistics (n 40) 189. 67  Vesterdorf (n 43). 68  Skouris (n 66) 26; Forwood, ‘The Court of First Instance’ (n 3) 43–4; Proceedings of the General Court, Annual Report 2010, Statistics (n 40) 192. 69  Forwood, ‘The Court of First Instance’ (n 3) 43.

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(C)  CJEU and GC Reform Concerns over caseload prompted legislative reform, the catalyst being an initiative from the CJEU. It began with a letter from the President of the CJEU to the President of the European Parliament, in which he stated the case for amendments to the Statute of the Court of Justice to tackle the workload problem.70 These included changes to the composition of the Grand Chamber and appointment of a Vice President for both the CJEU and the GC to ease the workload of the respective Presidents. These measures were enacted.71 There was also an increase in the number of Advocates General from six to nine in July 2013, followed by a further addition to eleven in October 2015.72 The proposal from the CJEU President also addressed the severe workload problems facing the GC, suggesting an increase of twelve judges. This could be done under the Treaty, which provides that there should be at least one judge from each Member State on the GC, and thus clearly allows for more.73 This was preferred to the option of creating more specialized courts,74 since it was felt that this would be a less efficient way of dealing with the problem, and could, moreover, create a further tier of appeal in the subject matter area assigned to the specialized court. The Commission75 and European Parliament76 favoured appointment of more judges to the GC, but this proposal was taken separately from those set out above, because there was controversy as to the manner of appointment of the extra judges. The Council was prima facie wedded to nationality, the European Parliament favoured choice on merit.77 The tension in this respect was avoided because the Regulation78 that emerged in 2015 made provision for twenty-eight new judges, with the consequence that there could be two judges from each Member State. Regulation 2015/2422 made provision for this increase in the number of judges of the GC in three stages. In the first phase, ten additional judges were appointed 70  28 March 2011. 71  Regulation (EU, Euratom) 741/2012 of the European Parliament and of the Council of 11 August 2012 amending the Protocol of the Statute of the Court of Justice of the European Union and Annex I thereto, OJ 2012 No. L228/1; Decision 2012/671/EU of the Court of Justice of 23 October 2012 concerning the judicial functions of the Vice-President of the Court [2012] OJ L300/47. 72  Council Decision of 25 June 2013 increasing the number of Advocates-General of the European Union [2013] OJ L179/92. 73  Art 19(2) TEU. 74  Art 257 TFEU. 75  On the requests for the amendment of the Statute of the Court of Justice of the European Union, presented by the Court, COM(2011) 596 final. 76  On the draft regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union by increasing the number of judges at the General Court, Committee on Legal Affairs, A7-0252/2013, 10 July 2013, Rapporteur A Thein. 77  Committee on Legal Affairs, A7-0252/2013, Rapporteur A Thein; Amendments adopted by the European Parliament on 12 December 2013 on the draft regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union by increasing the number of Judges at the General Court, P7_TA(2013)0581, 12 December 2013. 78  Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union [2015] OJ L341/14.

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from 25 December 2015. In the second phase, seven additional judges were appointed from 1 September 2016, consequent on dissolution of the Civil Service Tribunal. Finally, in the third phase, the final nine additional judges are to be appointed from 1 September 2019, bringing the number of judges to fifty-six. Although in formal terms the size of the GC has doubled, account should be taken of the fact that the Civil Service Tribunal has been dissolved, and its work taken over by the GC.79 It is important that the increase in the number of GC judges has been secured. It will go some way to alleviate the severe caseload problems, although it will take some time to bring the backlog of cases down to manageable proportions, as attested to by the fact that there were 1,486 cases pending before the GC in 2016.80 It is regrettable that this malaise had to reach such proportions before action was taken, since it led to serious delays for litigants. The caseload problem and attendant malaise were also regrettable because they prevented serious consideration of the rational division of authority between the CJEU and the GC. The jurisdictional remit of the GC has grown in an ad hoc manner. It was given heads of jurisdiction primarily to relieve the CJEU’s workload, hence the initial assignment of staff cases and competition cases to the GC. The transfer of all direct actions brought by non-privileged applicants was fuelled by similar concerns. Coherence has not been at the forefront of the jurisdictional division between the CJEU and the GC. This is reflected in the piecemeal summation of that division on the official website.81 It is apparent yet again in the absence of fit between nomenclature and sphere of jurisdiction, since the CFI was never a first instance court across all areas, and the GC is not in reality a court of general jurisdiction. Detailed analysis of what would be a rational division of jurisdiction between the CJEU and the GC should address the considerations set out earlier:82 the need to secure the unity of Union law by means of a supreme court; the need to ensure that the judicial system is transparent, comprehensible, and accessible to the public; the need to dispense justice without unacceptable delay; and the need for a system to be structured such that the most important points of law are decided by the CJEU, and that it is not troubled by less important cases. This is not assured by the existing jurisdictional regime. What form the jurisdictional division would take as judged by these criteria may well be contestable. The salient point for present purposes is that the caseload crisis in the GC as it has unfolded over the last decade has stifled such strategic thinking, with those on the front line preoccupied in a constant daily battle to prevent the situation becoming worse.

79  Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants [2016] OJ L200/137; Statute of the Court of Justice of the European Union, 2016 (n 49) Art 50(a). 80  Annual Report 2016 (n 27) 205. 81 http://curia.europa.eu/jcms/jcms/j_6/. 82  See above, 288–9.

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7  The Relationship between the EU Courts and National Courts The workload problems of the Union Courts were considered earlier. There is little doubt that the steep rise in the number of references for preliminary rulings has been a major factor in this respect.83 The Courts’ paper carried a stark warning of the need for reform.84 The constant growth in the number of references for preliminary rulings emanating from courts and tribunals of the Member States carries with it a serious risk that the Court of Justice will be overwhelmed by its case-load. If current trends continue without any reform of the machinery for dealing with cases, not only will proceedings become more protracted, to the detriment of the proper working of the preliminary ruling system, but the Court of Justice will also be obliged to conduct its deliberations with such dispatch that it will no longer be able to apply to cases the thorough consideration necessary for it to give a useful reply to the questions referred. It is highly likely that the impact of its decisions will diminish as their number increases and as they deal more frequently with questions of secondary importance or of interest only in the context of the case concerned.

The number of references for a preliminary ruling rose from 221 in 2005 to 302 in 2009, and to 385 in 2010, this being the highest figure ever, an increase of 27.4 per cent over the previous year. The time taken to secure a preliminary ruling, however, fell from a high of 25 months in 2003, to just over 16 months in 2010,85 but there were still 484 preliminary references pending in 2010, and 799 cases pending in total. In 2016 the number of preliminary references had increased to 470, the highest number to date, which constituted 70 per cent of new cases before the CJEU, but the time taken to secure such a ruling had fallen to 15 months. There were 872 cases in total pending before the CJEU.86 The reduction in the time to secure a preliminary ruling was in part due to changes made to expedite the process. Thus there is now an obligation on the CJEU to decide cases with a minimum of delay where a person is in custody.87 There is provision for expedited hearings in case of urgency.88 Preliminary rulings can be given by reasoned order where the CJEU refers to prior case law in certain types of cases: those where the request is identical to a point dealt with by existing case law, or where the answer can clearly be deduced from an existing case, or where the answer admits of no reasonable doubt.89 A case can, moreover, be decided without an Opinion from the Advocate 83  The Future of the Judicial System (n 1) 5. 84  Ibid 22. 85  Proceedings of the Court of Justice 2010 (n 26). In 2010, the average time for direct actions was 16.7 months and 14.3 months for appeals. 86  Proceedings of the Court of Justice 2016 (n 27) 80, 82. 87  Art 267(4) TFEU. 88  The Rules of Procedure of the Court of Justice [2010] OJ C177/01, Art 62a, http://curia.europa.eu/jcms/ upload/docs/application/pdf/2010-04/rp.en.pdf. 89  Ibid Art 104(3).

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General,90 and this power was used in approximately 52 per cent of cases in 2009, and in 50 per cent of cases in 2010,91 but in only 34 per cent of cases in 2016.92 The reduction in time to secure a preliminary ruling was also in part due to the increase in the number of CJEU judges as a result of enlargement. The net increase of twelve judges has allowed more throughput of cases. There are, however, reasons to question whether the diminution in the time taken for preliminary rulings can be maintained in the coming years. The benefits of extra judges from the newer accession countries will be offset by an increase in the number of references from those national courts, as lawyers in those countries become more accustomed to using EU law.93 There is evidence of increased references from such courts in recent years.94 The impact of the Lisbon Treaty is equally important. The fact that the Charter of Rights is legally binding, and that the Area of Freedom, Security and Justice (AFSJ) is subject to the normal Article 267 procedure, means a net increase in preliminary references, more especially because many AFSJ measures are controversial and touch on civil liberties. It is, therefore, important to consider possible reforms to the preliminary ruling system insofar as this concerns the relationship between the Union and national courts. The Lisbon Treaty made no changes to this relationship, but the matter was addressed by the Courts’ paper and the Due Report.

(A) Limitation of the National Courts Empowered to Make a Reference There was some ‘precedent’ for the idea that a preliminary ruling could only be sought by a national court against whose decisions there is no judicial remedy in national law, since this was the system that operated under what was Title IV of the EC Treaty dealing with ‘Visas, Asylum, Immigration and Other Policies Concerning the Free Movement of Persons’.95 The Courts’ paper and the Due Report, nonetheless, came down firmly against this method of limiting preliminary rulings.96 This is not surprising. The ability of any national court or tribunal to refer a question to the CJEU has been central to the development of EU law in both practical and conceptual terms. In practical terms, it has been common for cases raising important points of EU law to be referred by lower level national courts. To limit the ability to refer to a court of last resort would result in cases being fought to the apex of national judicial systems merely to seek a referral to the CJEU. To reduce the burden on the CJEU by increasing

90  Art 252 TFEU; Statute of the Court of Justice of the European Union, 2016 (n 49) Art 20. 91  Proceedings of the Court of Justice, Annual Report 2009, 3, http://curia.europa.eu/jcms/upload/docs/ application/pdf/2010-05/ra09_activite_cour_final_en.pdf; Proceedings of the Court of Justice 2010 (n 26). 92  Proceedings of the Court of Justice 2016 (n 27) 81. 93  Azizi (n 56) 245. 94  Thus, in 2016 Bulgaria sent eighteen requests for preliminary rulings, and Poland nineteen, Proceedings of the Court of Justice 2016 (n 27) 81. 95  Art 68 EC. 96  The Future of the Judicial System (n 1) 23–4; Report by the Working Party (n 2) 12–13.

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that of the national courts is undesirable. While this might lead to a shorter time for the giving of preliminary rulings, this would be scant comfort to litigants for whom the overall length of proceedings would increase, since they would have to fight their case to the top national court, and bear the cost of doing so, which many might find impossible. Furthermore, the ‘uniform application of Community law frequently depends on the answer to a question of interpretation raised before a national court not having to await the outcome of appeal proceedings but being given by the Court of Justice at the outset, so that the case law can become established at an early stage in the Member States of the Union’.97 In conceptual terms, the ability of any national court or tribunal to refer has been important in emphasizing the penetration of EU law throughout the national legal system. It is true that even if references were limited to courts of last resort, lower courts would still apply existing precedent of the EU Courts. The fact that any national court can refer serves, however, to emphasize that individuals can rely on directly effective EU rights at any point in the national legal system. If the lower level national court is unsure about the interpretation of EU law it can make a reference without the need for approval from any higher national court. The ability of any national court to refer is, moreover, an important safeguard against the possibility that the court of final resort might be ‘conservative or recalcitrant’ and hence reluctant to refer even where this is warranted.

(B)  The Introduction of a Filtering Mechanism Another way to reduce the volume of preliminary rulings would be to introduce a filtering mechanism based on the novelty, complexity, or importance of the question raised. The Courts’ paper pointed to two advantages of such a filtering mechanism. From the national perspective ‘such a filtering system would prompt national courts and tribunals to exercise selectivity in choosing which questions to refer, and would thus encourage them to exercise yet more fully their functions as Community courts of general jurisdiction’.98 From the EC’s perspective ‘the existence of a filtering ­mechanism would enable the Court of Justice to concentrate wholly upon questions which are fundamental from the point of view of the uniformity and development of Community law’.99 The Due Report advocated constraints of this kind. National courts should, it said, be encouraged to be bolder in applying EU law themselves.100 The Report recommended amendment to Article 267 to make it clear that, subject to the power to refer, national courts should be regarded as having general jurisdiction over matters of EU law. It suggested that lower national courts should consider both the importance of the question in terms of EU law, and whether there was reasonable doubt about the answer, before referring. National courts of final resort should, moreover, only be obliged to refer on 97  The Future of the Judicial System (n 1) 24.    98  Ibid 24. 99  Ibid 25.   100  Report by the Working Party (n 2) 14–15.

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questions which are ‘sufficiently important for Community law’, and where there is still ‘reasonable doubt’ after examination by lower courts. The idea has received tentative support from the Association of the Councils of State.101 The Due Report was, however, equivocal as to whether such factors should merely be taken into account by national courts in deciding when to refer, or whether they should operate as a substantive bar on the cases which could be referred, the application of this bar being decided by the CJEU. The Report appeared to incline towards the former,102 but it is doubtful whether this position is sustainable. If Article 267 were reformulated as suggested in the Due Report103 then the ‘importance issue’ and the ‘reasonable doubt issue’ would be factors to be taken into account by a national court in deciding whether to refer. The interpretation of these factors would, however, be a matter of EU law, to be decided ultimately by the CJEU.104 Such a filtering mechanism would necessarily alter the relationship between national courts and the CJEU. The CJEU has traditionally answered the questions referred to it. The CJEU has through the Foglia ruling made it clear that it will not be forced to accept any reference from national courts. This, however, only provides the foundation for declining to hear a case where it is hypothetical, where the facts are insufficiently clear, or where the question of law does not arise on the facts of the case. Under the filtering mechanism being considered here questions which were clear, well-framed, of current relevance, and backed up by adequate factual findings could be rejected on the ground that the question posed was not sufficiently important to warrant the CJEU’s time. In the Courts’ paper there was concern that ‘national courts and tribunals might well refrain from referring questions to the Court of Justice, in order to avoid the risk of their references being rejected for lack of interest’105 and that this could jeopardize the uniform interpretation of EU law in the Member States. The application of the filtering mechanism within the context of a referral, as opposed to an appellate, system would also be problematic. It is true that filters are common in appellate legal systems such as that in the US. The Supreme Court decides which cases to hear, and uses this power to control its case docket. It is, however, mistaken to believe that this can be directly copied in the EU. The US is an appellate system, and the EU is a referral system. In the US if the Supreme Court declines to hear a case there will be a

101  Report of the Association of the Councils of State and Supreme Administrative Jurisdictions of the EU, June 2008, 7; D Sarmiento, ‘Amending the Preliminary Reference Procedure for the Administrative Judge’ (2009) 2 Review of European Administrative Law 29; T de la Mare and C Donnelly, ‘Preliminary Rulings and EU Legal Integration: Evolution and Stasis’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 2nd edn, 2011) Ch 13. 102  This reading is reinforced by the fact that the Report at a later stage came out explicitly against giving the CJEU the power to select those questions which it considered were sufficiently important for EU law, Report by the Working Party (n 2) 21. 103  Ibid 53–4. 104  This does seem to be recognized, since the Report stated it would be for the CJEU to determine the precise scope which should be given to the ‘importance’ or ‘significance’ issue, ibid 15. 105  Ibid 25.

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decision on the point of law and its application to the facts given by a lower court.106 The situation in the EU is markedly different. The national court has not decided the case. It has referred a question for resolution by the CJEU. If the CJEU declines to answer the question because it is not sufficiently important or novel there is no decision by an EU Court on the question. There would then be two options open to the national court.107 It could decide the matter of EU law for itself. If this were regarded as acceptable it would mean that the role of national courts as EU courts of general jurisdiction would have been expanded. We would be accepting that national courts could apply EU law in three situations: where there is an EU law precedent, where the matter is acte clair, or where the CJEU declined to take the case. The national court could alternatively decline to decide the EU point. The effect would be that the party who sought to rely on EU law would be unable to do so, and the case would be decided on the assumption that this point was unproven. The CJEU would have to give guidance to the national courts as between these two options. The former option could undermine the uniform application of EU law. The latter has the de facto consequence that EU law is ignored in such instances. The former is therefore to be preferred. It is better that EU law be applied, albeit with the possibility that the national courts might err or differ, than that it should be ignored. The lack of uniformity would, moreover, be less significant, because the filtering ­mechanism is designed, as the Courts’ paper makes clear, ‘to weed out at a preliminary stage cases of lesser importance from the point of view of the uniformity and development of Community law’.108 If differences of view between national courts on a matter which the CJEU had initially declined to hear were problematic, then a reference in a later case could always be possible. The CJEU would be inclined to accept such a reference.109

(C)  The National Court Proposes an Answer to the Question A further suggestion for easing the CJEU’s caseload would be for the national court to include in its reference a proposed reply to the question referred. The advantages of such a system are said in the Courts’ paper to be that it would ‘lessen the adverse effect of the filtering mechanism on the co-operation between the national court and the Court of Justice, while the proposed reply could at the same time serve as the basis for deciding which questions need to be answered by the Court of Justice and which can be answered in the terms indicated’.110 A similar proposal was advanced in the Due 106  This will commonly be given by a lower tier federal court, either a federal court of appeals or a federal district court, or by a state supreme court. 107  The national court should, of course, apply existing EU law precedent where that exists, and decide the matter for itself if the question can be regarded as acte clair within the confines of that doctrine. The premise behind the filtering idea is, however, that the CJEU may decline to take a reference where there is no existing precedent, and where the matter is not acte clair. 108  The Future of the Judicial System (n 1) 24. 109  Report by the Working Party (n 2) 16. 110  The Future of the Judicial System (n 1) 25–6.

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Report, which stated that national courts should be encouraged, though not obliged, to include in the preliminary questions reasoned grounds for the answers that the national court considered to be most appropriate. Where the CJEU concurred with the national court it could reply, specifying its reasoning by reference to the reasons given by the national court.111 There are, however, limits to how far this proposal can be taken. Most national courts are not specialists in EU law. It is one thing for the national court to identify a question which is necessary for the resolution of the case. It is another thing for it to be able to provide an answer to that question. The latter will require expenditure of time and resources by national courts, some of which may be ill-equipped for the task demanded of them. It is true that higher level national courts might be able to furnish an answer to the question posed. The proposal would, nonetheless, transform the task faced by such courts. It is, moreover, unclear how far this would alleviate the CJEU’s workload. Thus the CJEU would still have to give the matter some detailed consideration, even if national courts were required to suggest an answer to the question. This would be necessary in order to decide whether the question really could be answered in the terms indicated by the national court, or whether it needed to be considered afresh by the CJEU. A via media would be that national courts should not be required to provide a possible answer to the question posed, but they should have the power to do so if they so wish, thereby building on the idea of discourse that is central to the preliminary ruling procedure.112 This possibility is already included in the information provided for national courts concerning the preliminary reference mechanism, which states that the referring court may, if it considers itself to be in a position to do so, briefly state its view on the answer to be given to the questions referred for a preliminary ruling.113

(D)  The National Court Gives Judgment A more radical option was considered in the Courts’ paper, which would have the effect of transforming the present system from one which is reference-based, to one which is more appellate in nature.114 A more radical variant of the system would be to alter the preliminary ruling procedure so that national courts which are not bound to refer questions to the Court of Justice would be required, before making any reference, first to give judgment in cases raising questions concerning the interpretation of Community law. It would then be open to any party to the proceedings to request the national court to forward its judgment to the Court of Justice and to make a reference for a ruling on those points of Community law in respect of which that party contests the validity of the judgment given. This would give the Court of Justice the opportunity of assessing, at the filtering stage, whether it needed to give its own ruling on the interpretation of Community law arrived at in the contested judgment. 111  Report by the Working Party (n 2) 18.    112  Weiler (n 3) 226. 113  Information Note (n 36) [23].    114  The Future of the Judicial System (n 1) 26.

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Such a procedure, resembling an appeal in cassation, would facilitate the task of the Court of Justice. It would enable the Court to give its ruling on the reference in full k­ nowledge of the national context, both factual and legal, in which the points of Community law raised in the case in question fall to be interpreted.

This proposal is interesting and has far-reaching implications. The Due Report was, however, strongly opposed to the change, stating that it ‘would debase the entire system of cooperation established by the Treaties between national courts and the Court of Justice’.115 It is, nonetheless, worth dwelling on the pros and cons of such a change. The argument in favour is that an appellate system is more characteristic of a developed federal or confederal legal system than is a reference system. In an appellate regime the court gives a decision that is binding on the parties, subject to appeal, which lies in the hands of the litigants, although it may be necessary to secure the leave of the court for the appeal. In a reference system as presently conceived the national court gives no decision prior to making the reference to the CJEU. A question is referred to the CJEU and the final decision is given by the national court when the answer is forthcoming from the CJEU. It is for the national court to decide whether to refer. The proposal under consideration would in effect change the regime from a reference system to an appellate one. It could be argued that the EU is ready for such a change. National courts have become more familiar with EU law and it may be time to move towards an appellate regime in which the national court gives judgment, subject to appeal to the CJEU or GC. There are also a number of difficulties attendant upon this change. The proposal would require Treaty amendment.116 To require national courts to decide the point of EU law would be to impose a burden that many lower tier courts would find difficult to discharge. It would be unlikely to limit the CJEU’s caseload, since there would, as acknowledged in the Courts’ paper,117 always be an incentive on the losing party before the national court to seek a reference to the CJEU, if only to defer enforcement of the judgment. It would also seem to involve overruling Foto-Frost.118 Many requests for preliminary rulings seek to challenge the validity of EU norms. It would seem to follow from this proposal that the national court could give judgment that the EU norm was invalid, which could then be contested before the CJEU. There is, moreover, a crucial ambiguity in the proposal in the Courts’ paper. The extract quoted earlier is framed in terms of a party to the proceedings ‘requesting’ the national court to refer its judgment to the CJEU, to enable the latter to rule on those 115  Report by the Working Party (n 2) 13. 116  Art 267 TFEU is framed in terms of a national court requesting a ruling from the CJEU where the national court considers that a decision on the question is necessary to enable it to give judgment. Under the proposal set out earlier, this criterion would, by definition, not be met. The national court would already have given its judgment, including on the points of EU law. Reference to the CJEU would happen thereafter at the behest of the parties. The very language of preliminary ruling would be inappropriate under this new regime. 117  The Future of the Judicial System (n 1) 26. 118  Case 314/85 (n 13); Lenaerts (n 28) 220–4.

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points of EU law when the correctness of the national court’s judgment is contested. Later the Courts’ paper talks in terms of the parties to an action being able to ‘require’ the national court to make a reference.119 This latter formulation appears to capture the essence of this proposal. The language of a ‘reference’ would no longer be suitable in such a regime. The transformation of Article 267 entailed by this proposal was ac­knowledged in the Courts’ paper.120 [S]uch a procedure would involve a fundamental change in the way in which the p ­ reliminary ruling system currently operates. Judicial co-operation between the national courts and the Court of Justice would be transformed into a hierarchical system, in which it would be for the parties to an action to decide whether to require the national court to make a reference to the Court of Justice, and in which the national court would be bound, depending on the circumstances, to revise its earlier judgment so as to bring it into line with a ruling by the Court of Justice. From the point of view of national procedural law this aspect of the system would doubtless raise problems which could not easily be resolved.

(E)  The Creation of Decentralized Judicial Bodies Another option would be to create decentralized judicial bodies responsible for dealing with preliminary rulings from courts within their territorial jurisdiction. The ­creation of regional courts to supplement the existing EU judicial architecture has been advocated in the past.121 The Courts’ paper left open the issue as to whether they should have the status of an EU or a national court.122 The discussion in the Due Report was, however, premised on the assumption that they would be national courts.123 This regime of decentralized courts was said to have the benefit of alleviating translation costs, since it was assumed that the parties to the case would be from that country. A  decentralized regime would also bring legal redress physically closer to citizens. The Courts’ paper and the Due Report were, however, concerned that decentralized courts would jeopardize the uniformity of EU law.124 Any reorganisation of the preliminary ruling procedure on a national or regional basis, regardless of whether jurisdiction is conferred on national or Community courts, involves a serious risk of shattering the unity of Community law, which constitutes one of the ­cornerstones of the Union and which will become still more vital and vulnerable as a result of the enlargement of the Union. Jurisdiction to determine the final and binding ­interpretation of a Community rule, as well as the validity of that rule, should therefore be vested in a single court covering the whole of the Union.

119  The Future of the Judicial System (n 1) 26. 120  Ibid 26. 121  J-P Jacque and J Weiler, ‘On the Road to European Union—A New Judicial Architecture: An Agenda for the Intergovernmental Conference’ (1990) 27 CMLRev 185. 122  The Future of the Judicial System (n 1) 28. 123  Report by the Working Party (n 2) 20–1. 124  The Future of the Judicial System (n 1) 28; Report by the Working Party (n 2) 21; The Role and Future of the European Court of Justice, A Report of the EC Advisory Board of the British Institute of International and Comparative Law, chaired by the Rt Hon The Lord Slynn of Hadley (1996) 101–4.

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The Due Report was against the creation of such bodies largely for this reason.125 The GC had, in earlier reports, been strongly opposed to the establishment of decentralized courts, arguing that such a development would be of no relevance or interest to the EU and would be costly.126 The Courts’ paper gave greater consideration to this institutional development. It suggested that there should be the possibility of a case going to the CJEU from one of the decentralized judicial bodies in order to meet the concern set out earlier. The proposal appeared to involve a mix of reference and appeal. Thus, the decentralized judicial body should have the power to refer a matter to the CJEU where the legal issue was of more general relevance for the unity or development of EU law. There should also be provision for ‘the possibility of appealing to the Court of Justice “on a point of general legal interest”, in accordance with detailed procedures to be laid down, against ­preliminary rulings given by those bodies’.127 Any conclusion on the desirability of decentralized bodies is dependent upon a number of issues. It would have to be decided whether such bodies would be part of the national judiciary, or whether they would be EU courts operating at a national or regional level. This issue was left open in the Courts’ paper. It would surely be better if they were EU courts. The principal argument for their being regarded as national courts is that the financial cost might then fall on the Member States rather than the EU. This consideration must be outweighed by other factors. Such courts should be regarded as Union courts. This best fits with the idea of building a developed EU judicial system below the CJEU, of the kind that exists in some other countries. It would be detrimental to this process to regard new courts as part of the national legal system, and this is so notwithstanding the fact that the national courts themselves are, as we have seen, EU courts in their own right in certain respects. There is the related but distinct issue of whether the decentralized bodies should operate on a national or regional level. The Courts’ paper was ambiguous in this respect. The primary impression was that such courts would operate within each Member State,128 but there were also references to reorganization on a national or regional basis. A regional form of organization would be preferable. In practical terms, it would almost certainly be more efficient, since some Member States would be too small to warrant such a court of their own.129 In normative terms, a regional regime would be preferable since it would obviate the danger that differences of view between such

125  Report by the Working Party (n 2) 21–2. 126  Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union— Contribution of the Court of First Instance for the Purposes of the 1996 Intergovernmental Conference, May 1995. 127  The Future of the Judicial System (n 1) 28–9. 128  This impression is reinforced by the desire to save on translation costs, the assumption being that if the courts were organized on a national basis then the proceedings could be in the national language. 129  Translation costs would not be that high since many cases would still arise between litigants who were from the same Member State. It should nonetheless be recognized that there would still be translation costs irrespective of whether such courts were organized on a regional or national basis since the litigants would not always be from the same country.

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courts would be cast as the ‘German v French view’, or the ‘UK v Italian’. This danger would be exacerbated if such courts were to be regarded as national rather than Union courts. This hazard would be much reduced if the courts were organized regionally rather than nationally.130 A further issue would be the relationship between such bodies and the GC. This is a complex issue, since the relationship would depend on other possible changes to the EU judicial architecture. Thus if the GC became a general court of first instance, with jurisdiction over direct actions under Article 263, and indirect actions under Article 267, it would be difficult to find a place for regional or decentralized courts, since the GC would hear indirect actions as well as direct actions. It would be possible in theory to think of decentralized judicial bodies being vested with jurisdiction over direct and indirect actions and hence replacing the GC. There is, however, little prospect of this occurring in practical terms. The GC is well established and would fight vigorously for its survival. It would also be possible in theory to conceive of an EU judicial architecture with the GC and decentralized judicial bodies. The GC might, for example, become the general first instance court for all direct actions, while decentralized judicial bodies would hear preliminary rulings, with the prospect of further recourse to the CJEU. There are, however, problems with this approach. Thus if indirect actions go to the decentralized bodies then they will often be dealing with cases concerned with the validity of EU norms brought by non-privileged parties who are unable to bring a direct action because of the restrictive standing rules. It is desirable that the GC should hear such cases, more particularly if it is regarded as the general first instance court for the EU in the context of direct actions.

8  The Constitutional Treaty and the Lisbon Treaty The Constitutional Treaty (CT) made significant changes in a number of areas, but not the Community judicial architecture. It is all the more regrettable that the Convention on the Future of Europe gave scant consideration to the role of the EU Courts. The Convention would have been the obvious locus for a thorough debate on the EU judicial system of a kind lacking hitherto. This is so irrespective of the conclusions that might have been reached from such a discourse. The debate never happened, there was no discourse and the CT simply took over, with minor modifications, the regime embodied in the Nice Treaty. The reason for this lies in the more general modus operandi of the Convention.131 Working groups were established to consider many issues prior to discussion in the 130  In the US, where a regional organization exists, there may be differences of view between the different circuits. These are, however, cast in just such terms: the 5th Circuit may, for example, be regarded as more liberal than the 2nd Circuit on a certain issue. 131  P Craig, ‘Constitutional Reform and Process in the EU: Nice, Laeken, the Convention and the IGC’ (2004) 10 EPL 653.

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plenary sessions. It was felt, however, that institutional reform could only be dealt with in the plenary, because particular issues such as the role of the European Council, and the composition of the Commission, were important and controversial. These deliberations did not begin until January 2003. They were divisive with strongly held divergent views being proffered. It also became apparent that the Convention was subject to a tight deadline for the production of a Draft Constitutional Treaty and that the Intergovernmental Conference (IGC) was unwilling to extend this. The net effect was that spring 2003 was principally taken up with fights about the main institutional issues, plus the drafting of provisions on topics that had been dealt with by working groups and on which consensus had been reached. There had, at this point, been no discussion about the EU Courts at all, and the Praesidium hurriedly convened a ‘Discussion Circle’ to consider judicial matters.132 The group was, however, subject to severe time constraints. There was no general overview of the EU judicial architecture. The group’s limited time was spent on specific issues, such as reform of the standing requirements for direct actions. These issues are important. This does not alter the fact that the Convention was a major missed opportunity. It should have been the locus for a wide-ranging discussion about the EU judicial system, including the allocation of power between the CJEU and GC, and the relationship between EU Courts and national courts. These are the key issues that affect the EU judicial architecture. The Convention would have been the natural forum for such a discourse. It did not happen. The provisions of the CT133 replicated, with minor modifications, the schema from the Nice Treaty. This schema was largely retained in the Lisbon Treaty.134 Article 19(1) TEU provided that ‘the Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts’. The General Court was the new name for the CFI, and specialized court was the new appellation for judicial panels. There was an interesting modification relating to the appointment of judges and Advocates General, whereby a panel reports on the suitability of candidates for these jobs.135 The heads of jurisdiction remained much as before, as did the division of jurisdiction between the EU Courts.136 There were some significant amendments to particular provisions, which largely follow those laid down in the CT. Thus, for example, Article 263 TFEU, which is the successor to Article 230 EC, now provides explicitly for review of the European Council, and the acts of bodies, offices, and agencies of the EU intended to produce legal effects for third parties. Article 263(4) TFEU also modified the standing provisions for non-privileged applicants in accord with the formulation laid down in the CT, thereby dispensing with the need to show individual concern in relation to a regulatory act that does not entail implementing measures.

132  Discussion Circle on the Court of Justice, CONV 543/03, Brussels, 7 February 2003. 133  [2004] OJ C310/1.    134  [2010] OJ C83/1. 135  Art 255 TFEU.    136  Arts 251–281 TFEU.

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9 Conclusion It remains to be seen whether the existing judicial architecture can be preserved. The strains posed by enlargement are likely to exacerbate the CJEU’s existing caseload. The reforms initiated by the Nice Treaty, taken over into the Lisbon Treaty, allow for reform in the ‘right direction’. Thus significant use could be made of the power to delegate preliminary rulings in certain areas to the GC. It should, nonetheless, be recognized that the existing provisions fail to provide a clear, principled structure for the EU judicial system overall. This could be done, as suggested earlier, with the GC being ac­knowledged as the general court of first instance for all actions, direct or indirect, irrespective of the nature of the claimant, with recourse to the CJEU in the manner set out earlier. It would be regrettable if this principled solution or something akin thereto, were only to be introduced because of an impending crisis in the workings of the EU judiciary. Vesterdorf argued convincingly that ‘in the long term, the CJEU should focus only on deciding the main constitutional issues and on safeguarding the consistency of EU law where necessary’,137 and the same theme was echoed by Forwood, who contended for a sensible system of allocation of judicial tasks ‘that would reserve to the highest Community court and give it time to reflect on only those cases that truly merit the attention of a “supreme” court’.138 These criteria can provide the foundation for a rational system of Union judicial architecture, which necessitates the grant of adequate judicial resources to the CJEU and GC in order that they can fulfil their assigned tasks under such a schema. The EU Courts appear, however, content with the recent reforms that have increased the number of judges in the GC, and seem disinclined to engage in any more far-reaching reform of the jurisdictional divide between the CJEU and the GC.

137  Vesterdorf (n 43).    138  Forwood, ‘The Court of First Instance’ (n 3) 36.

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11 Access 1 Introduction The previous chapters were concerned with the foundations of judicial review and judicial architecture. The focus now turns to principles of administrative law that are relevant for the way in which policy is delivered by the EU. This chapter is concerned with access. It is the natural starting point for ­consideration of administrative law doctrine. Any system of administrative law will have access points or gateways, which determine who can get into the system. There are two crucial access points in any legal regime. There will be procedural rules determining who is entitled to be heard or intervene before the initial decision is made, or who is entitled to be consulted before a legislative-type norm is enacted. There will also be rules of standing that determine who should be able to complain to the court that the initial decision-maker overstepped its powers. The judicial and legislative stance on these matters is crucial, and it is clear that the EU Courts make real connections concerning the ambit of these two access points, as do courts in other legal systems.1 A legal system may have very sophisticated tools for substantive judicial review, but if the access points or gateways are drawn too narrowly the opportunity for an individual to utilize such tools will perforce be limited. The discussion begins with the jurisprudence of the ECJ/CJEU and CFI/GC concerning the right to take part in the initial determination. It will be seen that the Courts have distinguished sharply between the right to be heard in relation to individualized decisions, and consultation and participation in relation to norms of a legislative nature. This will be followed by consideration of political initiatives to foster c­ onsultation in the EU legislative process. The focus then shifts to consideration of problems concerning access to court, and to which court, in cases of shared administration. The remainder of the chapter will deal with the other main access point, standing to seek judicial review. There will be a critical evaluation of the case law, discussion of the possible impact of the Charter of Rights, and consideration of the reforms made by the Lisbon Treaty.

1  R Stewart, ‘The Reformation of American Administrative Law’ (1975) 88 Harv L Rev 1667.

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2  Access, the Initial Determination, and the Courts The access point or gateway that is most immediately relevant concerns the ability to be heard or participate in the making of the initial determination by the EU a­ uthorities. The EU Courts have distinguished sharply in their approach to access with regard to individualized determinations and norms of a legislative nature.

(A)  Access, Individual Decisions, and the Right to be Heard The EU Courts have been activist in protecting access in relation to individual decisions, and imposed a right to be heard as a general rule of Union law, irrespective of whether this requirement was found in the relevant Treaty article, regulation, directive, or decision.2 In Transocean Marine Paint3 the ECJ held that there was a general rule that a person whose interests were perceptibly affected by a decision taken by a public authority must be given the opportunity to make his point of view known. The rules about hearings in the competition regulations were therefore statutory manifestations of this more general principle. The principle was reiterated in Hoffmann-La Roche, albeit with the more restrictive condition that the right to be heard was a fundamental principle of EU law in cases where sanctions might be imposed.4 The general trend of the case law has, however, been to require a hearing even where no sanction is imposed, provided that there is some adverse impact, or some significant effect on the applicant’s interests.5 2  D Curtin, ‘Constitutionalism in the European Community: The Right to Fair Procedures in Administrative Law’ in J O’Reilly (ed), Human Rights and Constitutional Law: Essays in Honour of Brian Walsh (Round Hall Press, 1992) 293; J Schwarze, ‘Developing Principles of European Administrative Law’ [1993] PL 229; G Nolte, ‘General Principles of German and European Administrative Law—A Comparison in Historical Perspective’ (1994) 57 MLR 191; J Schwarze, ‘Towards a Common European Public Law’ (1995) 1 EPL 227; K Lenaerts and J Vanhamme, ‘Procedural Rights of Private Parties in the Community Administrative Process’ (1997) 34 CMLRev 531; H Nehl, Principles of Administrative Procedure in EC Law (Hart, 1999) 70–99; I Rabinovici, ‘The Right to be Heard in the Charter of Fundamental Rights of the European Union’ (2012) 18 EPL 149; G della Cananea, Due Process of Law beyond the State: Requirements of Administrative Procedure (Oxford University Press, 2016). 3  Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, [15]. 4  Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, [9]; Case C-48/96 P Windpark Groothusen GmbH & Co Betriebs KG v Commission [1998] ECR I-2873; Case 189/10 GEA Group AG v European Commission, EU:T:2015:504, [67]. 5  Case T-450/93 Lisrestal v Commission [1994] ECR II-1177; Case C-32/95 P Commission v Lisrestal [1996] ECR I-5373; Case T-50/96 Primex Produkte Import-Export GmbH & Co KG v Commission [1998] ECR II-3773, [59]; Case C-462/98 P MedioCurso-Etabelecimento de Ensino Particular Ld v Commission [2000] ECR I-7183, [36]; Case C-395/00 Distillerie Fratelli Cipriani SpA v Ministero delle Finanze [2002] ECR I-11877, [51]; Case T-102/00 Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission [2003] ECR II-2433, [59]; Case C-349/07 Sopropé—Organizações de Calçado Lda v Fazenda Pública [2008] ECR I-10369, [37]; Case C-276/12 Sabou v Finanční ředitelství pro hlavní město Prahu, EU:C:2013:678, [38]; Cases C-584, 593 and 595/10 P European Commission v Kadi, EU:C:2013:518, [112]; Case C-566/14 Jean-Charles Marchiani v European Parliament, EU:C:2016:437, [51]; Rabinovici (n 2).

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The right to be heard was regarded as part of the fundamental rights jurisprudence and extended to anti-dumping proceedings in Al-Jubail.6 The ECJ held that it must be observed not only where it might lead to penalties, but also where the investigative proceedings prior to the adoption of the duty might directly and adversely affect the undertakings and entail adverse consequences for them. It held further that the provisions concerning hearings contained in the relevant regulation on dumping did not provide all the procedural guarantees that existed in national legal systems and therefore could be complemented by recourse to the fundamental right itself.7 These themes were taken up in Air Inter,8 where the CFI stated that the fundamental principle of the rights of the defence could not be excluded or restricted by any legislative provision. Respect for the principle must therefore be ensured both where there was no specific legislation and where legislation did exist, but did not take account of the principle. It is also significant that observance of the right to be heard can be raised by the Court of its own motion.9 The importance of the fundamental right to be heard was emphasized yet again in Kamino International10 where the CJEU held that the right to be heard was violated when there was no hearing prior to a decision demanding payment under customs legislation, notwithstanding that there was the possibility to express views during a subsequent administrative objection stage, if national legislation did not allow the addressees of such demands, in the absence of a prior hearing, to obtain suspension of their implementation until their possible amendment. The right to be heard before an individual measure is taken that would affect the person adversely is included in the Charter of Fundamental Rights,11 and the EU Courts increasingly make reference to this Charter provision.12 Article 41(2) of the Charter is, however, only applicable against EU institutions, and not the Member States. The CJEU has, nonetheless, held, drawing on the pre-Charter case law, that the right to be heard in the Charter is reflective of the previous general principle of law

6  Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, [15]. See also Cases T-33–34/98 Petrotub and Republica SA v Council [1999] ECR II-3837; Case C-458/98 P Industrie des poudres sphériques v Council and Commission [2000] ECR I-8147, [99]; Case C-141/08 P Foshan Shunde Yongjian Housewares & Hardware Co Ltd v Council [2009] ECR I-9147, [83]; Case T-410/06 Foshan City Nanhai Golden Step Industrial Co, Ltd v Council [2010] ECR II-879, [109]–[111]; Case T-260/11 Spain v European Commission, EU:T:2014:555, [62]. 7  Case C-49/88 Al-Jubail (n 6) [16]. 8  Case T-260/94 Air Inter SA v Commission [1997] ECR II-997, [60]; Case T-260/11 Spain v European Commission (n 6) [62]; Case T-114/13 P Cerafogli v European Central Bank, EU:T:2015:678, [32]; Case C-560/14 M v Minister for Justice and Equality Ireland and the Attorney General, EU:C:2017:101, [25]. 9  Case C-291/89 Interhotel v Commission [1991] ECR I-2257, [14]; Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, [67]. 10  Cases C-129–130/13 Kamino International Logistics BV and Datema Hellmann Worldwide Logistics BV v Staatssecretaris van Financiën, EU:C:2014:2041, [73]. 11  Charter of Fundamental Rights of the European Union [2010] OJ C83/2, Art 41(2). 12 Cases C-129–130/13 Kamino International (n 10) [29]; Case T-346/14 Yanukovych v Council of the European Union, EU:T:2016:497, [67]; Case T-153/15 Hamcho International v Council of the European Union, EU:T:2016:630, [115].

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concerning the rights of the defence and the right to be heard, and can, on that basis, be applied against Member States.13 The precise application of the right to be heard can be difficult where the administration of the particular scheme is divided or shared between the EU and the Member States, as in the context of customs or the Structural Funds. In such instances it can be problematic locating the right to be heard at national or Union level or an admixture of the two. Notwithstanding this, the ECJ concluded in Technische Universität München that the right to be heard in such an administrative procedure in the customs context required that the person concerned should be able to put his case and make his views known during the procedure before the Commission.14 A similar approach was taken in Lisrestal15 in the context of the European Social Fund. The administration of such Funds is, as we have seen,16 shared. The Commission issued a decision to the Portuguese ministry requiring the repayment of funding to Lisrestal, because it had mismanaged the funds. The Regulation gave no opportunity for the firm to comment before the decision was made, although this was given to the national ministry. The CFI held that the right to be heard as an aspect of the right of defence was applicable in all proceedings initiated against a person liable to culminate in a measure adverse to him. It was a fundamental principle of Community law that applied even in the absence of specific rules concerning the proceedings in question.17 The ECJ, confirming the CFI’s decision, stated that the right to be heard would apply because the measure would significantly affect the applicant’s interests, in this instance the loss of funding.18 The CFI in Air Inter stated that it must be determined whether the right to be heard had been observed either directly through the applicant’s dealings with the Commission, or indirectly through the national authorities, or through a combination of the two.19 Moreover, in Primex Produkte20 and Mehibas Dordtselaan21 the CFI emphasized that in the context of customs procedures administered in part at national level and in part at Community level it was especially important to safeguard the right to be heard, given that the Commission had discretion whether to accept the initial evaluation made by the national authorities. The EU Courts have striven to ensure that the right to be heard is properly protected where administration is shared between the EU and Member States. There are 13  Case C-249/13 Khaled Boudjlida v Préfet des Pyrénées-Atlantiques, EU:C:2014:2431, [30]–[34]; Case C-166/13 Mukarubega v Préfet de police and Préfet de la Seine-Saint-Denis, EU:C:2014:2336, [42]–[47]; Case T-190/12 Tomana v Council of the European Union and European Commission, EU:T:2015:222. 14  Case C-269/90 Hauptzollamt München-Mitte v Technische Universität München [1991] ECR I-5469, [25]; Case T-50/96 Primex Produkte (n 5). 15  Case T-450/93 Lisrestal, affirmed in Case C-32/95 P (n 5). 16  Ch 4. 17  Case T-450/93 Lisrestal (n 5) [42]; Cases C-48 and 60/90 Netherlands v Commission [1992] ECR I-565, [44]; Case C-135/92 Fiskano v Commission [1994] ECR I-2885, [39]; Case T-50/96 Primex Produkte (n 5) [59]. 18  Case C-32/95 P (n 5) [33]; Case T-102/00 Vlaams Fonds voor de Sociale Integratie (n 5) [60]. 19  Case T-260/94 Air Inter (n 8) [65]. 20  Case T-50/96 Primex Produkte (n 5) [60]. 21  Case T-290/97 Mehibas Dordtselaan BV v Commission ECR [2000] ECR II-15.

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nonetheless, continuing difficulties in making sure that the right to be heard is accorded at the appropriate level at which the decision is formed, and takes adequate account of the effects produced by the decision at each level, this difficulty being especially manifest in anti-terrorism cases.22 Commentators differ as to the extent of the problem. Thus, Leon and Bastos generally agree that the guiding principle should be to ensure that the hearing is provided at the level where the operative discretionary decision is made. Leon is critical of the EU Courts for taking differing approaches to the resolution of rights to a hearing in composite procedures in the context of the Structural Funds, customs, and anti-terrorism cases.23 Bastos is more positive, identifying three principles used by the EU Courts to determine the level at which hearings must be provided: ‘the primary contact rule’, demanding national authorities to provide a hearing in the first stages of composite procedures; ‘the rule of confirmation’, allowing an EU authority to refer back to a hearing already provided by a national authority if it agrees with the authority’s opinion; and the ‘rule of delegability’, whereby an EU authority can request that hearings are offered to private parties on its behalf, at national level.24 The importance of ensuring that a right to a hearing is protected adequately in the context of shared administration/composite procedures is central to the model rules proposed by ReNEUAL.25 Article 24 of Book III is entitled ‘Right to be heard in composite procedures’, and provides as follows. (1) The right to be heard must be respected at all stages of a composite ­procedure between the EU and the Member States leading to a decision in the manner set out in this article. The application of the right to be heard will depend on the division of responsibility in the decision-making process. (2) In a case of composite procedure, where an EU authority makes the decision it must comply with the procedural requirements in Article III-23. Where the decision is made by a Member State authority it must comply with the requirements of Article III-23 where sector-specific EU law renders the procedural rules in Book III applicable. In the absence of such sector-specific EU law, or any other EU law specifying applicable ­procedural requirements, the Member State authority will apply national rules of administrative procedure, which must comply with general principles of EU law concerning fair hearings. (3) In a case of composite procedure, the form and content of the hearing provided pursuant to Article III-23(5) by the public authority that makes the decision will be affected

22  C Eckes and J Mendes, ‘The Right to be Heard in Composite Administrative Procedures: Lost in Between Protection?’ (2011) 36 ELRev 651; S Alonso de Leon, Composite Administrative Procedures in the European Union (Iustel, 2017), Ch 5. 23  Leon (n 22) 216–39. 24  F Brito Bastos, ‘Beyond Executive Federalism: The Judicial Crafting of the Law of Composite Administrative Decision-Making’, PhD Thesis, EUI (2018) Ch 4. 25  P Craig, H Hofmann, J-P Schneider, and J Ziller (eds), ReNEUAL Model Rules on EU Administrative Procedure (Oxford University Press, 2017).

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by the extent to which the rights of the defence were adequately protected at a prior stage in the administrative proceedings by another public authority. (4) In a case of composite procedure, where the public authority making the decision is legally bound by a recommendation made by an EU authority, then the right to be heard must be adequately protected before the EU authority that makes the recommendation, including through application of the principles in Article III-23(3)–(5). Where sector-specific EU law renders Book III applicable to Member States, the preceding obligation applies mutatis mutandis where a Member State authority makes the recommendation. In the absence of such an EU provision, or any other EU law specifying applicable procedural requirements, the Member State authority will apply national rules of administrative procedure, which must comply with general principles of EU law concerning fair hearings. (5) In a case of composite procedure, where the EU authority’s decision is predicated on a recommendation made by another public authority and where there was no opportunity for a hearing before such a public authority, the right to be heard before the decision is taken shall include knowledge of the recommendation and the ability to contest its findings. Where sector-specific EU law renders Book III applicable to Member States, the preceding obligation applies mutatis mutandis where a Member State authority makes the decision pursuant to a recommendation made by another public authority. In the absence of such an EU provision, or any other EU law specifying applicable procedural requirements, the Member State authority will apply national rules of administrative ­procedure, which must comply with general principles of EU law concerning fair hearings. (6) For the avoidance of doubt, this article is also applicable to cases of composite procedure where EU law imposes legal obligations on Member State authorities to coordinate or co-operate action that leads to individual decisions.

(B)  Access, Legislative Norms, Consultation, and Participation The stance of the EU Courts is markedly different when it comes to access to the making of Union norms of a more legislative nature, or where the applicant is not the party directly affected by the relevant measure. The applicant’s claim in such instances will normally be couched in terms of a right to participate, be consulted, or intervene in the making of the provision. The EU Courts have consistently resisted such claims.26 They have denied consultation rights unless they are expressly provided by the relevant Treaty article, or by a regulation, directive, or decision governing the area in question. The Atlanta case is the leading authority.27 The applicant sought compensation for damage caused by a Community regulation concerning the bananas market. It argued,

26  J Mendes, Participation in EU Rulemaking: A Rights-Based Approach (Oxford University Press, 2011) Chs 4–5. 27  Case C-104/97 P Atlanta AG v Commission [1999] ECR I-6983; Case T-296/12 The Health Food Manufacturers’ Association and Others v European Commission, EU:T:2015:375, [98].

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inter alia, that the CFI had erred in finding that the right to be heard in an administrative procedure affecting a specific person could not be transposed to the process leading to a regulation, more especially because it was irrelevant to the individual concerned whether its legal situation was affected as a result of an administrative or a legislative procedure. The applicant sought to rely on Al-Jubail to show that the absence of a Treaty provision requiring consultation in relation to a legislative procedure did not allow a hearing to be dispensed with.28 The ECJ rejected the argument. It held that the case law according a right to be heard related only to acts of direct and individual concern to the applicant. It could not be extended to the procedure culminating in legislation involving a choice of economic policy and applying to the generality of traders concerned. The only obligations of consultation incumbent on the Union legislature were those laid down by the Treaty article in question.29 This approach has been reaffirmed by later authority. Thus in Bactria30 the ECJ held that the fact that a regulation dealing with biocidal products provided that a list of existing substances was to be drawn up with the help of information from producers did not mean that the Commission was required to hear producers such as the applicant when adopting the regulation. In Jégo-Quéré31 the ECJ concluded that there was no provision of Community law requiring the Commission when adopting the contested regulation to follow a procedure under which the applicant would be entitled to the right to be heard. The Atlanta principle was forcefully applied in Pfizer32 where the CFI held that the right to be heard when decisions were taken against a specific person could not be transposed to a legislative procedure leading to the adoption of a regulation, and that this was so notwithstanding the fact that the applicant was directly and individually concerned by the contested measure. In AJD Tuna33 the ECJ fastened on the wording of Article 41 of the Charter, which specifies a right to be heard before an individual measure adversely affecting the applicant is taken, to reinforce its conclusion that hearing rights do not cover measures of general application. The same approach is evident in the CFI’s interpretation of the Agreement on Social Policy. In UEAPME34 the CFI rejected a challenge to the Framework Directive on parental leave brought by the applicant association representing small and medium-sized undertakings. In the course of its judgment the CFI held that the applicant did not have a right to participate in the negotiation stage of the Agreement on Social Policy, nor did it have a right to participate in the negotiation of the framework agreement. The mere fact that the applicant contacted the Commission on several occasions asking to 28  Ibid [31]–[32]. 29  Ibid [35]–[39]. 30 Case C-258/02 P Bactria Industriehygiene-Service Verwaltungs GmbH v Commission [2003] ECR I-15105, [43]. 31  Case C-263/02 P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425, [47]. 32  Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305, [487]; Case T-70/99 Alpharma Inc v Council [2002] ECR II-3495, [388]. 33  Case C-221/09 AJD Tuna Ltd v Direttur tal-Agrikoltura u s-Sajd and Avukat Generali [2011] ECR I-1655, [49]. 34  Case T-135/96 UEAPME v Council [1998] ECR II-2335, [69]–[80].

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participate in the negotiations between other representatives of management and labour did not change matters, since it was those representatives and not the Commission which were in charge of the negotiation stage. The EU Courts have been similarly unwilling to draw any legal consequences from the fact of participation in the making of the legislative measure. Thus in Asocarne35 the ECJ held that the fact that a body set up for the defence of a collective interest had taken part in the preparation of a directive in circumstances where the relevant Treaty article accorded no right to participate in the preparation of the measure did not serve to give it any preferential treatment with regard to challenging the measure. The applicant lacked standing and the fact of its participation in the making of the measure made no difference.36 The same approach is evident in other cases. In Jégo-Quéré37 the fact that the applicant was the only fishing company to make proposals to the Commission when the regulation was being adopted did not make it individually concerned for the purposes of standing to challenge the measure. In Greenpeace38 the CFI, in deciding that the applicants lacked standing, stated that the fact that some applicants had submitted a complaint to the Commission concerning the Community funding of the power station did not give them standing, since the relevant Structural Funds’ regulations made no provision for individuals to be associated with the grant or implementation of such decisions. In Merck the CFI was similarly unequivocal:39 the fact that a person participated in the process leading to the adoption of a Union act did not distinguish that person individually in terms of standing to challenge the act, unless the relevant Community legislation laid down specific procedural guarantees for such a person.

(C)  Legal Access, Principle, and Policy The EU Courts’ jurisprudence on access embodies a normative choice. The right to be heard in relation to individual determinations is regarded as fundamental; it is not dependent on a foundation in a Treaty article, regulation, or directive; Union norms will be read subject to the right; and the Courts can raise the right of their own motion. The Courts’ stance in relation to participation or consultation in relation to norms of a 35  Case C-10/95 P Asociasión Española de Empresas de la Carne (Asocarne) v Council [1995] ECR I-4149, [39]. 36  The Union Courts have been willing to accord standing where the applicant was given rights to complain in the making of the initial decision, Case 26/76 Metro-SB-Großmärkte GmbH & Co KG v Commission [1977] ECR 1875; Case 169/84 Compagnie française de l’azote (COFAZ) SA v Commission [1986] ECR 391; Case T-435/93 ASPEC v Commission [1995] ECR II-1281; Case T-380/94 AIUFFASS v Commission [1996] ECR II-2169. 37  Case C-263/02 P Jégo-Quéré (n 31) [48]. 38 Case T-583/93 Stichting Greenpeace Council (Greenpeace International) v Commission [1995] ECR II-2205, [56]. 39  Case T-60/96 Merck & Co Inc, NV Organon and Glaxo Wellcome plc v Commission [1997] ECR II-849, [73].

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legislative nature is markedly different. Such rights will only exist where there is foundation in a Treaty article, regulation, directive, or decision; the Courts will not lightly interpret these norms as giving rise to such rights; and the fact of participation in their making will not increase the applicant’s chance of being accorded standing to seek judicial review. This distinction is reinforced by the reasoning used to differentiate between individual determinations and those of a legislative nature. The EU Courts have in effect ‘reasoned back’ from their jurisprudence on standing to seek judicial review to determine whether a norm should be recognized as individualized, and hence subject to the fundamental right to be heard in the making of the initial decision. The right to be heard before the decision is made will only be applicable when the decision is of direct and individual concern to the applicant. The difficulty of proving individual concern in relation to standing is well known and will be discussed later. The narrow definition of individual concern therefore reinforces the difficulty of arguing that rights to be heard in the form of consultation or participation should apply in the making of legislative norms, where those norms would not be regarded as being of individual concern to the applicant as judged by the criteria used in relation to standing. The normative choice embodied in the jurisprudence can be defended. The premise underlying the case law is that there is a real distinction between provisions that impact on a person in the form of an individualized determination, and those that impact through rules of a more generalized character. This dichotomy is accepted in many legal systems. It should be noted that even in the US the foundation for procedural rights in rulemaking is a statute, the Administrative Procedure Act 1946. It is not the Constitution, the courts having held that constitutional due process does not apply to rulemaking as opposed to adjudication.40 The normative choice is also defended on the ground that it is wrong to accord legal rights to those who press the claims of a particular group, as opposed to the general public interest. This argument is based on three related assumptions. The assumption that parties in the legislature represent the ‘objective public interest’, while groups who seek to participate outside the legislature press ‘narrow factional interests’ is overly simplistic. It fails to capture the reality from both perspectives. The assumption of inequality of group power in the participation process is, by way of contrast, well founded. It is, however, difficult to believe that less advantaged groups fare better where there are no participatory rights. The more powerful groups exert influence even where there are no formal rights, through the very fact of their power. The introduction of a more structured system of participatory rights gives less advantaged groups a chance to air their views. The argument is also premised on the assumption that the final decision is dictated by the arguments presented by those who are consulted. This assumption is 40  Bi-Metallic Investment Co v State Board of Equalization of Colorado, 239 US 441 (1915).

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not correct, legally or politically. The obligation is to give adequate consideration to those who proffer such views; it is not an obligation to adopt such views. It should be recognized that the distinction embedded in the case law is contestable. It may be entirely fortuitous whether a person is affected through an individualized determination, or through a rule. The individualized determination may in any event have precedential impact and establish a rule or principle for a category of cases that impact on a broad range of people: policy can be developed by ad hoc adjudication as well as through rules. Furthermore, the values used to justify procedural rights in individual adjudication are also applicable in the context of rulemaking. The twin rationales are instrumental and non-instrumental or dignitarian.41 The former justifies process rights because they render it more likely that a correct outcome will be reached on the substance of the case.42 The latter sees the justification as being a part of what it means to treat a person as a human being, with the corollary that it is right to accord a hearing before taking action that can deleteriously affect an individual.43 It is possible to support both, albeit in varying degrees. These rationales are also applicable in the context of rulemaking. The argument for participation is based in part on instrumental grounds, the assumption being that the resultant rule will better achieve its end if the views of interested parties are admitted. It is based in part on dignitarian grounds, the argument being that it affords a way in which people can take part in the process of governance, thereby enhancing legitimacy.44 This is of particular importance in the EU given the general concerns about legitimacy.45 There is, moreover, as Shapiro correctly notes, a connection between transparency and participation: ‘full transparency can only be achieved through participation or through dialogue as a form of participation’.46 It should also be recognized that according hearing rights in adjudication does not make up for the absence of participation rights when a norm of a legislative nature is made. It might be argued in response to the preceding discussion that the unwillingness of the EU Courts to require participatory rights when norms of a legislative nature are made does not matter, since an individual will be accorded a hearing when the relevant regulation is applied in an individual case. This does not withstand ­examination. Some regulations can take effect without any individualized determination. Thus a  regulation may specify fishing nets of a certain mesh. There will be no decision ­applying  the measure to a particular person, unless he violates the stipulated rule. 41  J Mashaw, Due Process in the Administrative State (Yale University Press, 1985); D Galligan, Due Process and Fair Procedures (Oxford University Press, 1996) 75–82. 42  J Resnick, ‘Due Process and Procedural Justice’ in J Pennock and J Chapman (eds), Due Process (Nomos, 1977) 217. 43  H L A Hart, Concept of Law (Clarendon Press, 1961) 156, 202; J Rawls, A Theory of Justice (Oxford University Press, 1973) 235; F Michelman, ‘Formal and Associational Aims in Procedural Due Process’ in Due Process (n 42) Ch 4; Mashaw (n 41) Chs 4–7. 44  C Pateman, Participation and Democratic Theory (Cambridge University Press, 1970); J Cohen, Constitution, Democracy and State Power: The Institutions of Justice (Edward Elgar, 1996). 45  P Craig, ‘Democracy and Rulemaking within the EC: An Empirical and Normative Assessment’ (1997) 3 ELJ 105; G de Búrca, ‘The Quest for Legitimacy in the European Union’ (1996) 59 MLR 349. 46  M Shapiro, ‘The Giving Reasons Requirement’ (1992) U Chic Legal Forum 179, 205.

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The argument is, however, defective even where the regulation is applied through individual determinations. The fact that a person is given a right to be heard concerning the application of the regulation to an individual case does not make up for the absence of the right to participate when the regulation was initially made. The object of according participation rights is to enable interested parties to have input into the content of the proposed measure with the instrumental objective that it might be improved, and with the non-instrumental objective of allowing those affected to take part in the process of governance to which they are subject. The inability to participate is not made good by affording a hearing when the measure is applied in a particular case. This ensures that a person is heard before the regulation is applied, whatsoever its content might be. It does not function as a surrogate method for influencing the content or merits of the regulation, nor does it address the non-instrumental value of participation. It should, moreover, be recognized that there will be many instances where the merits of the regulation made in the absence of participation will remain unchallengeable through doctrines of substantive review such as proportionality, equality, and the like, since the Courts will be reluctant to interfere with the discretionary policy choice embodied in the regulation. It is input into the content of this discretionary policy choice that interested parties hope to secure through participation in rulemaking, ­subject of course to procedural rules designed to regulate the fairness of this process. The preceding discussion reveals that advancement in participation rights is unlikely to come through the EU Courts. This is relevant to the discussion in earlier chapters, concerning rulemaking, agencies, and the Open Method of Coordination (OMC).47 The EU Courts have made it clear that participation rights must be found in the Treaty, or a provision made pursuant thereto. The parent regulations or directives pursuant to which implementing rules were made by the Comitology procedure normally contained no provision for participation by those other than in the Comitology committees, nor did the Comitology procedures themselves normally provide for wider consultation. There is a similar picture in relation to the OMC. There was much talk in the Lisbon process of involving broad sections of society. The Treaty articles and Union legislation that deal with the OMC in specific areas are less prescriptive. Thus in the employment context the Treaty specifies that the European Parliament, the European Economic and Social Committee (ECOSOC), the Committee of the Regions, and the Employment Committee should be consulted by the Council when it draws up the employment guidelines on a proposal from the Commission.48 Consultation of the social partners is felt to be desirable, but the Treaty merely provides that the Employment Committee in fulfilling its mandate shall consult management and labour,49 and even this provision would probably not suffice under the Court’s jurisprudence to give any particular management or labour organization a right to be consulted. It is of course true that participation and consultation can occur even if it is not backed by a legal right. We shall consider this later. What the law requires, or does

47  Chs 5, 6, 7.    48  Art 148 TFEU.    49  Art 150 TFEU.

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not require, is nonetheless important. It signals to the citizenry what they can and cannot expect from the law if they feel that the consultation in a particular instance was ineffective or non-existent. It signals to the Union institutions that they can provide de facto ­consultation secure in the knowledge that if this is not legally required in accord with the Courts’ jurisprudence it will not afford any legal rights to those taking part. It remains to be seen whether Article 11 TEU will make a difference in this respect.50 It is expressed in mandatory language. It states that the EU institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. The institutions must maintain an open, transparent, and regular dialogue with representative ­associations and civil society. It requires, moreover, that the European Commission carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. There is, however, no evidence thus far that Article 11 TEU has impacted on the previous jurisprudence denying participation rights in the context of rulemaking.

3  Access, the Initial Determination, and the Political Process The interrelationship between what the Courts mandate in relation to access and the making of the initial determination, and what the political process provides is interesting and instructive.

(A)  Rights to be Heard Accorded by EU Legislation It is clear that so far as individualized determinations are concerned the EU legis­ lature has responded to the Court’s strictures concerning the right to be heard, at least in some areas. Thus it is common to find that the principal regulation or ­directive governing an area will make provision for hearing rights. Having said this, it is also not uncommon to find, especially in areas where administration is shared between the Member State and the EU that the relevant legislation lags behind the demands imposed by the Union Courts, making no express provision for contact between the individual and the Commission. The political system, when it responds in such instances, will do so largely through formal legislation enshrining the process right.

50  J Mendes, ‘Participation and the Role of Law after Lisbon: A Legal View on Article 11’ (2011) 48 CMLRev 1849.

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(B) Rights to Participate or be Consulted Accorded by EU Legislation We have seen from the preceding discussion that the EU Courts have not been willing to impose requirements to participate in the making of legislative norms. They have held that such rights only exist where they can be founded on a Treaty article, or derived from a specific regulation or directive. Regulations and directives have granted such rights in a number of important areas. It should, however, also be recognized that many of the most prominent instances where this has occurred have entailed the imposition of rights to participate in relation to national regulatory bodies, rather than the Commission. This is exemplified by the regime applicable to telecommunications. Article 6 of the Framework Directive51 provides, subject to limited exceptions, that where national regulatory authorities intend to take measures in accordance with the Framework Directive, or specific directives, which have a significant impact on the market they must give interested parties the opportunity to comment on the draft measure within a reasonable period. The national regulatory authorities must publish their national consultation procedures and establish a single information point through which all current consultations can be accessed. The results of the consultation must be made publicly available, subject to exceptions for confidentiality. The Directive on Integrated Pollution Prevention and Control52 stipulated that the public should be given access to information concerning a permit application, in order to be able to comment thereon before a decision was reached.53 It provided further that where a Member State was aware that an installation was likely to have significant effects on the environment of another Member State, or where that other state so requested, the Member State in whose territory the application for a permit was made should forward the information required for a permit to the neighbouring state, and this served as the basis for consultation between the two states. The Member States also had the obligation to make this information available to the public in their respective countries and allow them to comment before a final decision was reached. This Directive was amended and strengthened by a more general Directive concerned with public participation and the environment.54 In addition to this amendment, the Directive makes provision for public participation in a number of areas. Member States 51  Directive of the European Parliament and of the Council 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) [2002] OJ L108/33, as amended by Directive 2009/140 [2009] OJ L337/37. 52  Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control [1996] OJ L257/26; Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (Codified Version) [2008] OJ L24/8. 53  Ibid Art 15. 54  Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/ EC [2003] OJ L156/17, Art 4.

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have an obligation to ensure that the public is given early and effective opportunities to participate in the preparation and modification or review of plans or programmes in a wide variety of areas concerned with the environment, including water, hazardous waste, packaging and packaging waste, and air quality.55 The Member State must ensure that the public is informed about proposals, their right to participate, and the body to whom comments should be sent.56 The Directive emphasizes that the public must have this opportunity to comment while all options are open and before decisions on the plans are made; that the resultant decision should take account of the comments received; and that reasons should be given for the decision reached.57 It is for the Member State to identify the public entitled to participate for these purposes and the detailed arrangements for the participation.

(C)  Participation, Consultation, Soft Law, and the Commission Formal law does, therefore, provide for participation rights in certain areas, especially those where Member States make plans pursuant to EU legislation. The Commission has, however, been reluctant to accord legally enforceable participation rights in relation to its own legislative or policy proposals. It has proceeded mainly through measures that are not legally binding, but which have nonetheless become more effective over time. The story is an interesting one. The European Council’s 1993 Inter-institutional Declaration on Democracy, Transparency and Subsidiarity58 laid the foundation for greater access to Community documentation. It also seemed to herald a new approach to participation in the making of Community legislation. It proposed the creation of a notification procedure, in which the Commission would publish a brief summary of the draft measure in the Official Journal. There would then be a deadline by which interested parties could submit their comments. The implications of this reform could have been far-reaching. There is a clear analogy with the US Administrative Procedure Act 1946 (APA). The APA established a notice and comment procedure whereby rules have to be published in the Federal Register, and the agency has to allow a period of time for notice and comment. The 1993 Declaration appeared to have borrowed directly from the US experience. The Commission’s response to the 1993 Declaration was, however, limited. It did not bring forward any general measure akin to the APA, and the discussion of participation rights in its report for the 1996 Intergovernmental Conference was ­exiguous.59 The Commission was clearly not minded to accept legally binding ­consultation rights.

55  Ibid Art 2(2). 56  Ibid Art 2(2)(a). 57  Ibid Art 2(2)(b)–(d). 58  It was adopted by the Commission, Council, and European Parliament on the margins of the 1993 Brussels European Council. M Westlake, The Commission and the Parliament: Partners and Rivals in the European PolicyMaking Process (Butterworths, 1994) 159–61. 59  Craig (n 45).

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The Commission, however, broadened consultation de facto. It made increasing use of Green and White Papers when important areas of EC policy were being developed, inviting comments on an ad hoc basis to particular legislative initiatives.60 The Commission generalized this approach in its 2002 Communication on Consultation.61 The Communication acknowledged the instrumental and non-instrumental rationales for consultation, stating that ‘good consultation serves a dual purpose by helping to improve the quality of the policy outcome and at the same time enhancing the involvement of interested parties and the public at large’.62 It set out a number of general principles that should inform the consultation process: participation, openness and accountability, effectiveness, and coherence.63 It laid down minimum standards for consultation. The content of the consultation should be clear and concise, including all necessary information to facilitate responses; it should be public, be available on the internet, and announced through a single access point; there should be adequate time for participation, the default position being that this should not be less than six weeks; there should be acknowledgement of contributions, the results should be displayed on the internet and there should be an explanation as to how the results were taken into account in the proposal; and where consultations were more focused care should be taken to ensure adequate coverage of those affected by the policy, those involved in its implementation, and bodies that have a direct interest in the policy.64 The Communication was an important step in fostering consultation within the EU. Its limitations should also be noted. Consultations tend to be used only for the more major policy initiatives.65 The principles and minimum standards are specifically stated not to be legally binding.66 They only apply to consultations ‘through which the Commission wishes to trigger input from interested parties to its policy-making prior to a decision by the Commission’.67 This serves to exclude: specific consultation frameworks provided for in the Treaties or in other EU legislation, such as the institutionalised advisory bodies and the social dialogue, thereby also excluding policymaking pursuant to the OMC;68 consultation under international agreements; and rulemaking subject to Comitology procedures.69 60  C Quittkat and B Finke, ‘The EU Commission Consultation Regime’ in B Kohler-Koch, D de Bièvre, and W Moloney (eds), Opening EU-Governance to Civil Society—gains and challenges, CONNEX Report Series No  5 (2008); B Kohler-Koch, ‘Does Participatory Governance Hold Its Promises?’ in B Kohler-Koch and L Fabrice (eds), Efficient and Democratic Governance in the European Union, CONNEX Report Series No 9 (2008); D Curtin and J Mendes, ‘Transparency and Participation: A Vista of Democratic Principles for EU Administration’ (2011) 137–8 Revue Française d’Administration Publique 101. 61  Towards a Reinforced Culture of Consultation and Dialogue—General Principles and Minimum Standards for Consultation of Interested Parties by the Commission, COM(2002) 704 final. 62  Ibid 5. 63  Ibid 15–18. 64  Ibid 19–22. 65  Ibid 15–16; https://ec.europa.eu/info/consultations_en. 66  Reinforced Culture of Consultation (n 61) 10, 15. 67  Ibid 15–16. 68  It is significant that the consultations listed for Employment and Social Affairs deal with important legislative matters, but do not touch the OMC process as it relates to the European Employment Strategy or social inclusion, http://ec.europa.eu/social/main.jsp?catId=700&langId=en. The areas in which the OMC operates are regarded as self-contained, even though the ability to participate in policymaking therein is far from perfect. 69  Reinforced Culture of Consultation (n 61) 16.

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It should, however, be acknowledged that the general pattern has been for an increase in the number of legislative initiatives subject to consultation,70 although there is variation as between DGs in this respect. The Commission sought to give more practical force to the aims of the 2002 Communication through ‘Your Voice in Europe’. This particular site has been superseded, but the basic idea of an internet-based site, with instruments to collect feedback from citizens, consumers, and business, has remained unchanged. The Commission regards the knowledge thereby gleaned as a way of shaping new policies and improving existing ones. There is a feedback mechanism to collect information from citizens etc about problems encountered with different EU policies. There is also an online consultation mechanism, operating through structured questionnaires allowing input on particular policy proposals. This technique for ­consultation is designed to make it easier for individuals to contribute, and to facilitate the Commission’s task of analysing the resulting data. The system is easy to use, and the website is well designed. It contains links to ­consultations that are currently ongoing in all areas of EU activity. The site also allows access to consultation exercises that have recently closed, with information about the results gleaned from the consultation and the follow-up to be undertaken. Information about consultations that have closed can be obtained more generally from the particular subject matter websites, which contain the results from the consultation exercise, including the questions posed and the responses received. On most occasions the Commission synthesizes the results, although not always so. It is more difficult to generalize about the impact of the consultation on the ultimate policy proposal.71 The impact of the consultation exercise on the resultant policy is even more difficult to determine when the subject matter is very broad, such as the efficacy of cohesion policy or the importance of nanotechnology for the EU.

(D)  Participation, Consultation, and Agencies The previous section concentrated on the provision of consultation and participation by the Commission. We should also be aware of agency practice. The regulations governing agencies differ in the extent to which they impose a legal requirement to consult or allow participation.72 Procedures to foster participation have, however, been adopted by some agencies even in the absence of a legal obligation. The European Aviation Safety Agency (EASA) has the most interesting and innovative practice in this regard.73 The EASA publishes a five-year rulemaking programme, and any person can propose that an item be included.74 The terms of reference of a particular rule are then set out, explaining the nature of the problem to be addressed, followed by the draft rule, in 70 http://ec.europa.eu/yourvoice/consultations/links/index_en.htm. 71  See n 60. 72  Ch 5. 73  Regulation (EC) 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency [2008] OJ L79/1. 74  EASA, Management Board Decision, 18-2015, 15 December 2015, https://www.easa.europa.eu/­documentlibrary/rulemaking-process-overview/rulemaking-explained.

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relation to which the agency conducts an impact assessment. Notice of the proposed rule is posted on the website and any person can comment through a standardized form. The comments are then aggregated in a comment response document (CRD), enabling interested parties to gain an overview of comments put forward by others. These comments are then used by the drafting group when finalizing the rule. The comments are reviewed by experts not directly involved in the drafting of the rule. The EASA is also assisted by a Safety Standards Consultative Committee, composed of representatives of organizations directly affected by the regulatory regime, and by the Advisory Group of National Authorities.

(E)  Access and the Political Process: Politics, Law, and Participation Some might be tempted in the light of the above to conclude that the Courts’ unwillingness to impose a legal obligation to consult or allow participation does not matter, since this has in any event been introduced through the political process. Others might incline towards the opposite position, and conclude that the present initiatives are no substitute for cognizable legal rights enforceable through the Courts. We should avoid both such extremes. There are, not surprisingly, pros and cons of the present situation. There are advantages to the present regime, whereby participation and consultation are secured through the political process. The system provides well-structured opportunities for the giving of views. It demonstrates the trite but important proposition that the absence of a legal obligation to do something does not mean that it will not be done. It can, moreover, avoid the excessive legalism attendant upon a legal regime to protect participatory rights. The dangers of such a regime are well known. It can lead to lengthy challenges to a regulatory norm, as groups seek to use the law to prevent its enactment, by arguing that their views were not sufficiently taken into account when the rule was made. In the worst case scenario this can lead to ‘paralysis by analysis’, whereby important regulatory provisions are held up in the courts for an inordinate time as the lawyers and judges pore over the provision to determine whether it is, for example, sustainable in the light of the available scientific evidence. There are, however, also disadvantages of the current system.75 It is reliant on the grace and favour of the Commission. It is the Commission that will decide which particular proposals should be put out for consultation. It is the Commission that will determine which types of rule should be subject to the consultative regime, the exclusion of delegated rulemaking pursuant to Comitology being a prominent example. The practical reality is that many primary regulations and delegated regulations are not touched by the consultation process. Where it is used the Commission will assess the results and decide on the best way forward. There is no legal mechanism for c­ hallenging the Commission’s conclusions, no opportunity to argue before the Courts that the conclusions did not reflect the preponderance of evidence placed before the Commission, 75  Mendes (n 26) Ch 9.

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or that they were weighted towards a particular interest group. This is because the EU Courts have made it clear that consultation or participation rights only exist when enshrined in positive law, whether this is a Treaty article, regulation, directive, or decision. The fact of having engaged in participation does not give the individual any privileged status to challenge the resulting rule. The reluctance to enshrine legally enforceable participation rights as against the Commission stands in marked contrast to the Commission’s willingness to impose such a regime on Member States. The asymmetry in this regard is exemplified by changes to the participatory requirements imposed on Member States in the context of pollution prevention and control. This regime was strengthened in 2003 by a provision entitled ‘access to justice’, which required Member States to provide access to a review procedure before a court of law, or other independent and impartial body, to enable challenge to the substantive or procedural legality of decisions that were subject to the public participation provisions of the Directive.76 This reinforcement of participation rights against the Member States may well be laudable. The Commission, however, shows no inclination to apply analogous precepts of ‘access to justice’ to itself. This is readily apparent from its response to comments received on the draft of its Communication about consultation, which had suggested that the consultation standards should be included in a legally binding document. The Commission’s response was peremptory.77 [A] situation must be avoided in which a Commission proposal could be challenged in the Court on the grounds of alleged lack of consultation of interested parties. Such an overlylegalistic approach would be incompatible with the need for timely delivery of policy, and with the expectations of the citizens that the European Institutions should deliver on substance rather than concentrating on procedures.

It can, however, be argued that the disadvantages of participation rights mentioned above are not the inevitable consequence of a legal regime for protecting process, but flow more from the Courts’ attitude towards substantive review. The dangers adverted to tend to occur when the Courts demand, for example, a degree of scientific support for a proposed rule which may not be available in the current state of scientific ­knowledge. The regulatory authorities may nonetheless justifiably conclude that measures are required now, since to wait until there is more perfect knowledge of the effects of a particular substance on the environment or health could be too late. It is perfectly possible for the Courts to safeguard the participatory process, while being cognizant of the limits that can reasonably be expected by way of evidential support for the measure. A via media is possible. The EU Courts could maintain their general proposition that consultation and participation rights must be sought from the political arm of government in a Treaty article, regulation, directive, or decision. They could continue 76  Dir 2003/35 (n 54) Art 4(4), inserting a new Art 15a to Dir 96/61 (n 52). 77  Reinforced Culture of Consultation (n 61) 10.

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to decline to impose participatory rights in the way that they impose a right to be heard in an individualized decision, which is applicable irrespective of whether there is foundation in positive law. The Courts could, nonetheless, modify their stance, by holding that if the political arm of government has chosen to afford consultation, even if not obliged to, then the Courts will monitor the fairness of the procedure. Some might feel that this does not go far enough, and that there should be parity between the right to be heard in individualized decisions and a right to be consulted in relation to legislative norms. There is force in this argument. It is, however, unlikely to be accepted by the Union Courts. Others might argue that if the proposed change were to occur then the Commission would simply pull back from its present consultation initiatives. This is possible. Few legal initiatives are risk-free. It would not, however, be an easy thing for the Commission to do. The Commission has made much of its ‘Your Voice in Europe’ strategy, and the subsequent consultation process, and justifiably so. To cut this programme, or to reduce its incidence, if the Courts were to signal a willingness to monitor the fairness of the consultation procedure would be difficult in the extreme. The Commission would be doubly vulnerable to criticism, on the grounds that it had cut a programme designed to give citizens more input into decision-making thereby enhancing the EU’s legitimacy, and that it had done so in order to avoid a modicum of legal accountability. Such a Commission strategy would be especially difficult in the post-Lisbon world given the inclusion of Article 11 TEU and the increased status given to participatory democracy in the Treaty reform. It must also be acknowledged that even if this suggestion were to be accepted it would only resolve the problem to a limited extent. This is because not all primary legislative activity is subject to consultation, and because delegated rulemaking and the OMC are largely excluded from such consultation exercises with the general public. It is not fortuitous that legal challenges concerning participation have tended to arise in relation to regulations, whether primary or delegated, that have a real impact on ­traders in a particular area, which have not been subject to consultation. It might be felt that practical problems preclude extension of process rights in this way. We  should, however, pause before reaching this conclusion. It did not appear to be a  self-evident objection to the European Council when it proposed the notice and comment scheme in 1993. The analogy drawn with notice and written comment serves, moreover, to confirm that participatory process rights do not have to take the form of trial-type oral hearings.

4  Access to Judicial Review: Complexities of Shared Administration The discussion thus far has been concerned with hearing rights and participation, which are the principal routes through which an individual can seek access when the initial determination is made. The section hereafter is concerned with access to judicial

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review, as determined by the standing criterion. The present section addresses the situation where administration is shared between Member States and the EU, which can lead to difficulties, in terms of locating the court before which a challenge should be brought. The problem is exemplified by Borelli,78 which remains a leading authority in this area. Borelli applied for agricultural aid from the Guidance Section of the European Agriculture Guidance and Guarantee Fund (EAGGF) to build an oil mill. It was for the national authorities to assess whether projects met the conditions specified for payment of funds. A necessary condition for the grant of such aid was positive support from the Member State, or region thereof, in this instance Liguria. This was not forthcoming, and hence the Commission refused to grant the aid. Borelli sought annulment of the Commission decision, arguing that the national measure on which it was based was vitiated by errors of fact. The matter was further complicated by the fact that, under Italian law, Liguria’s negative opinion was regarded as a preparatory measure, and was therefore excluded from judicial review. Borelli therefore argued that the final Commission decision should be annulled, since it embodied all the decisions of the institutions and bodies involved in the procedure. The ECJ disagreed. It held that under Article 173 EEC, the ECJ had no jurisdiction to rule on the lawfulness of a measure adopted by a national authority. That position was not altered by the fact that the contested measure was part of a Community decision-making procedure under which the decision of the national authority was binding on the Community institution. In those circumstances, any irregularity that might affect the opinion could not affect the validity of the decision by which the Commission refused the aid applied for.79 If the ECJ had stopped at that point, then the claimant would have had no legal court in which to pursue its claim, given that the matter was regarded as a preparatory measure under Italian law and hence not reviewable. The ECJ held, however, that it was for the national courts, after seeking a preliminary ruling if needed,80 [T]o rule on the lawfulness of the national measure at issue on the same terms on which they review any definitive measure adopted by the same national authority which is capable of adversely affecting third parties and, consequently, to regard an action brought for that purpose as admissible even if the domestic rules of procedure do not provide for this in such a case.

The case is, therefore, authority for the proposition that in cases of shared administration where the Member State makes a determination that is binding on the EU authority, then any challenge to the Member State decision must be forthcoming in national courts, and not before the ECJ. The reasoning in Borelli was followed in subsequent

78  Case C-97/91 Borelli SpA v Commission [1992] ECR I-6313. 79  Ibid [9]–[11]. 80  Ibid [13].

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cases,81 and it provoked a lively academic debate as to the correctness of the ECJ’s approach.82 The arguments against the ruling were, inter alia, that it intruded too greatly into national procedural autonomy by forcing the national court to review an issue that would not otherwise be reviewable; that it placed claimants in difficult situations, in terms of not knowing in which legal forum to bring its claim; and that it required national courts to review issues that would not have been reviewed by the ECJ, if ­analogous issues had come before it. The more positive view of the judgment is that the ECJ did the best that it could in the difficult circumstances presented by shared administration that characterized the case law. The ECJ does not have jurisdiction to annul decisions of national authorities via a direct action for judicial review. For it to have done so would prompt constitutional tensions with Member States. There was, to be sure, a Commission decision in the preceding cases, but where that decision simply adopted a prior decision from a Member State, and where the operative challenge was to the latter, then an action under what is now Article 263 TFEU would in effect force the CJEU to rule on the validity of national acts, which it is not competent to do. This left open the possibility of a ‘legal black hole’ in the sense that the claimant might have no legal forum in which to raise the validity claim, hence the insistence that the national court should hear the validity challenge at national level, assisted by a reference to the ECJ if need be. The preceding analysis is predicated on the scenario whereby the Member State makes the operative determination, which is binding on the Commission when it makes its determination. Where, by way of contrast, the Commission makes the substantive decision, then it will be reviewable before the CJEU, subject to the claimant meeting the test for standing, thereby satisfying the CJEU that it is directly and individually concerned, in the manner considered later. There is no doubt that composite procedures can pose difficult problems in ensuring that there is access to judicial review before a legal forum that is empowered to address the legality issues raised by the claimant. While the approach adopted by the ECJ in

81  Cases C-106 and 317/90 and 129/91 Emerald Meats Ltd v Commission [1993] ECR I-209; Case T-114/99 CSR PAMPRYL v Commission [1999] ECR I-3331; Case C-6/99 Association Greenpeace France v Ministère de l’Agriculture et de la Pêche [2000] ECR I-1651, [51]; Case C-64/05 P Sweden v Commission [2005] ECR I-11389, [91]–[92]; Case C-343/07 Bavaria NV and Bavaria Italia Srl v Bayerischer Brauerbund eV [2009] ECR I-5491, [55]–[57]. 82  R Caranta, ‘Sull’impugnabilità degli atti endoprocedimentali adottati dalle autorità nazionali nelle ipotesi di coamministrazione’ (1994) I Foro Amministrativo 752; A Türk, ‘Judicial Review of Integrated Administration in the EU’ in H Hofmann and A Türk (eds), Legal Challenges in EU Administrative Law: Towards an Integrated Administration (Edward Elgar, 2009), 218; H Hofmann, ‘Composite decision making procedures in EU administrative law’ in Hofmann and Türk, ibid 136; M Eliantonio, ‘Judicial Review in an Integrated Administration: the Case of “Composite Procedures”’ (2014) 7 Review of European Administrative Law 65; B Marchetti, ‘Il Sistema Integrato di Tutela’ in L de Lucia and B Marchetti (eds), L’amministrazione europea e le sue regole (Il Mulino, 2015) 197; F Brito Bastos, ‘The Borelli Doctrine Revisited: Three Issues of Coherence in a Landmark Ruling for EU Administrative Justice’ (2015) 8 Review of European Administrative Law 269; Leon (n 22) 274–90.

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Borelli was explicable for the reasons given earlier, this still leaves open the possibility of reform that will better protect claimants in such instances. Thoughtful suggestions in this respect are evident in the academic literature.83

5  Access to Judicial Review: Standing The discussion thus far has been concerned with access to the original decision-making process, both in relation to individualized determinations and norms of a legislative nature. The focus now shifts to access to judicial review where a party seeks to challenge such norms. There is an extensive case law and literature84 on standing to seek judicial review in EU law, especially in relation to non-privileged applicants. The discussion will begin with a brief overview of the case law, and will then focus on the more recent jurisprudence in UPA85 and Jégo-Quéré.86 This will provide the foundation for a normative assessment of the present law and for consideration of how far the Lisbon Treaty has alleviated the problems.

(A)  Locus Standi: The Background The complex case law on standing to contest the legality of EU norms is well known. A brief outline is given here to set the scene for discussion of more recent jurisprudence. Article 230 EC provided for direct review of legality. Member States, the European Parliament, Council, and Commission were regarded as privileged applicants and therefore had standing to challenge the legality of any acts. The Court of Auditors and

83  Leon (n 22) 273–94, 346–60. 84  A Barav, ‘Direct and Individual Concern: An Almost Insurmountable Barrier to the Admissibility of Individual Appeal to the EEC Court’ (1974) 11 CMLRev 191; C Harding, ‘The Private Interest in Challenging Community Action’ (1980) 5 ELRev 354; H Rasmussen, ‘Why is Article 173 Interpreted against Private Plaintiffs?’ (1980) 5 ELRev 112; R Greaves, ‘Locus Standi under Article 173 EEC when Seeking Annulment of a Regulation’ (1986) 11 ELRev 119; J Weiler, ‘Pride and Prejudice—Parliament v Council’ (1989) 14 ELRev 334; A Arnull, ‘Challenging EC Anti-Dumping Regulations: The Problem of Admissibility’ [1992] ECLR 73; C Harlow, ‘Towards a Theory of Access for the European Court of Justice’ (1992) 12 YBEL 213; P Craig, ‘Legality, Standing and Substantive Review in Community Law’ (1994) 14 OJLS 507; A Arnull, ‘Private Applicants and the Action for Annulment under Article 173 of the EC Treaty’ (1995) 32 CMLRev 7; M Hedemann-Robinson, ‘Article 173 EC, General Community Measures and Locus Standi for Private Persons: Still a Cause for Individual Concern?’ (1996) 2 EPL 127; N Neuwahl, ‘Article 173 Paragraph 4 EC: Past, Present and Possible Future’ (1996) 21 ELRev 17; J Cooke, ‘Locus Standi of Private Parties under Article 173(4)’ (1997) Irish Jnl of European Law 4; A Ward, Judicial Review and the Rights of Private Parties in EC Law (Oxford University Press, 2nd edn, 2007) Ch 6; A Arnull, ‘Private Applicants and the Action for Annulment since Codorniu’ (2001) 38 CMLRev 7; P Craig, ‘Standing, Rights and the Structure of Legal Argument’ (2003) 9 EPL 493; P Craig and G de Búrca, EU Law: Text, Cases, and Materials (Oxford University Press, 6th edn, 2015) Ch 14. 85  Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677. 86  Case C-263/02 P Jégo-Quéré (n 31).

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the European Central Bank (ECB) could bring actions to protect their prerogatives. Non-privileged applicants had to satisfy Article 230(4), which provided that, Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or decision addressed to another person, is of direct and individual concern to the former.

Direct challenge to the legality of EU norms by non-privileged applicants has proven extremely difficult. The Plaumann test87 has remained authoritative ever since the early 1960s. Persons other than those to whom a decision was addressed could only claim to be individually concerned if the decision affected them by reason of certain attributes peculiar to them, or by reason of circumstances in which they were differentiated from all other persons and by virtue of these factors distinguished them individually just as in the case of the person addressed. The applicant in the instant case failed because it practised a commercial activity that could be carried on by any person at any time. This made little sense pragmatically, since the existing range of firms is established by the ordinary principles of supply and demand: if there are two or three firms in the industry they can satisfy the current market demand. The number is unlikely to alter significantly if at all. The ECJ’s reasoning also rendered it impossible for an applicant to succeed, except in a very limited category of retrospective cases. The applicant failed because the activity of clementine-importing could be carried out by anyone at any time. It was, however, always open to the Court to contend that others could enter the industry, and hence to deny standing to existing firms. The difficulty of directly challenging EU norms in the form of regulations was equally marked. The Calpak test88 required the non-privileged applicant to show that the measure in question was not a real regulation, but that it was in reality a decision of individual concern to him. This was not easy, because of the abstract terminology test. The ECJ held that a real regulation was a measure that applied to objectively determined situations and produced legal effects with regard to categories of persons described in a generalized and abstract manner. The nature of the measure as a regulation was not called into question by the mere fact that it was possible to determine the number, or even identity, of those affected. The Court recognized that the purpose of allowing such challenge was to prevent the Union institutions from immunizing matters from attack by the form of their classification. If regulations were never open to challenge the institutions could classify matters in this way and secure that private individuals could never contest them. Article 230(4) sought to prevent this by permitting a challenge when the regulation was in reality a decision, which was of direct and individual concern to the applicant. This required, as acknowledged in Calpak, the Court to look behind the form of the measure, in order to determine whether in substance it really 87  Case 25/62 Plaumann & Co v Commission [1963] ECR 95. 88  Cases 789 and 790/79 Calpak SpA and Società Emiliana Lavorazione Frutta SpA v Commission [1980] ECR 1949; Case C-10/95 P Asocarne (n 35) [28], [30].

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was a regulation or not. The problem with the abstract terminology test was that rather than looking behind form to substance, it came very close to looking behind form to form. This was because it was always possible to draft norms in the manner specified by the abstract terminology test, and thus to immunize them from attack. This was especially so since the Court made it clear that knowledge of the number or identity of those affected would not prevent the norm from being regarded as a true regulation. The Codorniu case89 raised hopes that the standing rules for direct challenge were being liberalized, but the decision proved to have a limited impact. The ECJ affirmed the abstract terminology test as the criterion for deciding whether a regulation was a real regulation, rather than a decision, but held that this did not prevent the regulation from being of individual concern to some applicants. The test for whether an applicant was individually concerned was that laid down in Plaumann.90 It was for the applicant to show that the contested provision affected him by reason of certain attributes which were peculiar to him, or by reason of circumstances in which he was differentiated from all other persons. The hope raised by Codorniu was dashed by the realization that in most instances the Plaumann test would be interpreted in the same manner as in Plaumann itself. The fact that the applicant operated a trade which could be engaged in by any other person served to deny individual concern.91 The fact that the applicant was the only firm affected by the contested measure did not suffice to afford standing.92 Nor were the EU Courts willing to apply the more liberal case law from areas such as state aids, dumping, and competition to challenges outside those areas.93 If the Union Courts felt that an applicant should be regarded as individually concerned by a true regulation it required complex legal reasoning to square this with existing orthodoxy.94 Indirect challenge to contest the legality of EU norms was an imperfect substitute for more liberal standing rules for direct challenge. The narrow rules for standing in cases of direct challenge were often justified judicially by the existence of indirect challenge via Article 234 EC, since the individual could get to the ECJ via the national courts. Advocate General Jacobs in Extramet however pointed out the limits of indirect challenge.95 He noted that Article 230 contained no suggestion that the availability of annulment depended on the absence of an alternative means of redress in the national courts. Such a result would, in any event, have been far from satisfactory, since the existence of any domestic remedy would depend on national law. Advocate General Jacobs held furthermore that the indirect method of challenge had serious disadvantages by comparison with the direct action under Article 230. National courts lacked expertise in the subject and did not have the benefit of participation of the Council and Commission. The proceedings in national courts, combined with a reference under Article 234, could involve substantial delays and extra costs. The national courts had no jurisdiction to declare EU regulations invalid, and this made it likely that interim 89  Case C-309/89 Codorniu v Council [1994] ECR I-1853.    90  Case 25/62 Plaumann (n 87). 91  Craig and de Búrca (n 84).    92  Case T-13/99 Pfizer (n 32) [89]. 93  Craig and de Búrca (n 84).    94  Case T-13/99 Pfizer (n 32) [81]–[106]. 95  Case C-358/89 Extramet Industrie SA v Council [1991] ECR I-2501, AG Jacobs.

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measures would be necessary in some cases, even though the national courts might not be the appropriate forum for granting such measures. There were, in addition, ­procedural difficulties attendant upon indirect challenge. This was because a reference from a national court on the validity of a regulation did not always give the Court as full an opportunity to investigate the matter as would a direct action against the adopting institution. The ECJ’s general strategy was, however, to ignore the applicants’ difficulties in using indirect challenge. Thus in Asocarne96 the applicants argued that widespread structural delays in the Spanish judicial system should be taken into account when assessing standing for direct actions. The ECJ’s response, subsequently cited in many cases, was unequivocal: such circumstances could not alter the system of remedies provided by the Treaties, and could not justify a direct action where the standing conditions in Article 230(4) were not satisfied. The courts also limited the possibility for intervention in direct and indirect actions. Intervention rights are governed by Article 40 of the Statute of the Court of Justice: Member States and EU institutions can intervene as of right; private parties can do so only in cases between private parties and only where they can establish an interest. Intervention rights are not a substitute for standing, since someone must be granted standing before others can intervene. There is much to be said for using such rights to enable interest groups to make their views known when a case comes before the Court. It obviates the need for separate action on the same point; facilitates class actions; and makes it easier for interest groups to proffer their opinions. Intervention rights in judicial review actions can therefore be important as a means of facilitating public-interest litigation before the ECJ.97 The ECJ’s interpretation of Article 40 however limited this potential. Those seeking to intervene had to show that they were directly affected by the contested act, and establish an interest in the result of the case. The intervener had also to establish a direct, existing interest in the grant by the Court of the order sought, and not just an interest in the legal pleas advanced.98

(B)  UPA: The Advocate General’s Opinion In the UPA case99 an association of farmers, UPA, sought the annulment of Regulation 1638/98, which amended the common organization of the olive oil market. The CFI dismissed the application because the members of the association were not individually concerned by the Regulation under Article 230(4). UPA argued that it was denied effective judicial protection because it could not readily challenge the measure via Article 234. Advocate General Jacobs made an extensive analysis of the law relating to standing. He began with the right to effective judicial protection, which framed his analysis. 96  Case C-10/95 P Asocarne (n 35) [26]. 97  Harlow (n 84). 98  Cases C-151 and 157/97 P(I) National Power plc and PowerGen plc v British Coal Corp and Commission [1997] ECR I-3491; Case T-138/98 Armement Cooperatif Artisanal Vendeen (ACAV) v Council [1999] ECR II-1797. 99  Case C-50/00 P (n 85).

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The ability of an individual to contest the legality of an EU norm, indirectly or directly, was tested against this background right. The Advocate General considered whether this basic right could be adequately protected by indirect challenge via Article 234 EC. He was unequivocal in this regard: there were serious difficulties in regarding the preliminary reference as providing full and effective judicial protection against general measures.100 The applicant had no right under the preliminary ruling procedure to decide whether a reference was made, which measures were referred for review, or what grounds of invalidity were raised and thus had no right of access to the Court of Justice. The national court could not declare the measure invalid, because of the rule preventing national courts annulling EU norms.101 There could be cases where it was difficult or impossible for an applicant to challenge a general measure indirectly, for example where there were no challengeable implementing measures, or where the applicant would have to break the law in order to be able to challenge ensuing sanctions. Considerations of legal certainty favoured allowing a general measure to be reviewed as soon as possible and not only after implementing measures had been adopted. There were, moreover, procedural disadvantages for applicants who brought indirect challenges via Article 234. Advocate General Jacobs considered whether the problem could be overcome by expanding direct actions only where the particular legal system made the indirect action especially difficult. This ‘solution’ was rejected because it had no basis in the Treaty, it would require the Union Courts to interpret and apply rules of national law, a task for which they were not well prepared or competent, and would lead to inequality between operators from different Member States, with a consequential loss of legal certainty.102 He also discussed whether a ‘solution’ could be found through an obligation for national legal orders to ensure that references on the validity of general EU measures were available in their legal systems. He rejected such an approach, since it would, ‘leave unresolved most of the problems of the current situation such as the absence of remedy as a matter of right, unnecessary delays and costs for the applicant or the award of interim measures’.103 It would also be difficult to monitor and enforce, and would entail ‘far-reaching interference with national procedural autonomy’.104 Advocate General Jacobs therefore concluded that the only way to secure the e­ ffective right of judicial protection was to have a test for direct challenge based on substantial adverse impact. This would accord applicants ‘a true right of direct access to a court which can grant a remedy’.105 It would remove the anomaly under the current case law that the greater the number of persons affected, the less likely it was that there would be effective judicial review. This solution was not, said Advocate General Jacobs, ­precluded by the wording of Article 230 EC, nor by the fear of overloading the ECJ. 100  Case C-50/00 P (n 85) AG Jacobs, [102(1)]. 101  Case 314/85 Firma Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199. 102  Case C-50/00 P (n 85) AG Jacobs, [102(2)].    103 Ibid [102(3)].   104  Ibid [102(3)]. 105  Ibid [102(4)].

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The fact that the prior case law had stood for a long time should not be seen as an obstacle. The case law had become increasingly complex and unpredictable. It was out of line with more liberal developments in the Member States. Moreover, the ‘Court’s case-law on the principle of effective judicial protection in the national courts makes it increasingly difficult to justify narrow restrictions on standing before the Community Courts’.106 The Opinion was a classic example of the use of background rights as a mechanism for the reassessment of existing doctrine. The reality was that the right to effective judicial protection, although part of EU jurisprudence, had not featured significantly in the case law on locus standi. It had more commonly been part of the reasoning in cases concerned with the effectiveness of national remedial protection.107 The very fact that the right to effective judicial protection had not featured prominently in the case law on challenges to EU acts was one reason why that case law had continued to develop in the illiberal fashion.

(C)  UPA: The ECJ’s Reasoning The role afforded to the right to effective judicial protection in the Advocate General’s Opinion stands in sharp relief to the place of that right in the ECJ’s reasoning. The major premise of the ECJ’s reasoning was that the applicants had not fulfilled the standard requirements for locus standi under Article 230. They had not shown they were affected by the regulation by reason of certain attributes peculiar to them, or by reason of factual circumstances in which they were differentiated from all others, as required by the Plaumann test.108 The ECJ acknowledged that a measure of general application, such as a regulation, could be of individual concern to particular persons, but only where they were differentiated in the manner set out in the Plaumann test. The ECJ emphasized this by stating that if the Plaumann condition were not fulfilled then a natural or legal person could not seek the annulment of a regulation ‘under any circumstances’.109 The right to effective judicial protection entered the ECJ’s reasoning against the backdrop that the applicants had failed to meet the normal rules for locus standi. The ECJ held that it was necessary to see whether, ‘in those circumstances’, the applicant could ‘nonetheless’ have standing on the ground that the absence of a remedy before the national courts meant that there must, in the light of the right to effective judicial protection, be a direct action.110 The ECJ acknowledged that the right to effective judicial protection was a fundamental right, which was part of the EU legal order based on the rule of law. It read the existing locus standi rules against this fundamental right to see if those rules required amendment.111

106 Ibid [102(6)].   107  Craig and de Búrca (n 84) Ch 8. 108  Case C-50/00 P (n 85) [32], [34]–[36].    109  Ibid [37].   110  Ibid [33]. 111  Ibid [33], [38]–[39].

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The ECJ decided that no such amendment was warranted. It held that the Treaty established a complete system of legal remedies for challenging the legality of EU action.112 In relation to indirect challenges, it was for the Member States to ensure that they had in place a system of legal remedies that ensured respect for the right to ­effective judicial protection.113 In relation to direct challenge, the ECJ refused to extend standing under Article 230 EC where the rules of the particular national legal order meant that indirect challenge under Article 234 EC would not be possible. The Court felt, as did the Advocate General, that this would require the ECJ to examine national procedural law on a case-by-case basis. It was ill-equipped to do this, and it would entail too great an intrusion into national procedural autonomy.114 The ECJ concluded by reaffirming its major premise and the secondary, limited role accorded to the right to effective judicial protection.115 The Court declined to follow the Advocate General. The ECJ held that the applicants had failed to satisfy the legal requirements for standing in Article 230. While the meaning of individual concern must be interpreted in the light of the right of effective judicial protection this could only be in the context of defining the circumstances that could distinguish an applicant individually. An interpretation of individual concern in the light of the right to e­ ffective judicial protection could not have the effect of setting aside that condition, which was expressly laid down in the Treaty. This would be to go beyond the jurisdiction of the EU Courts, and would require a Treaty amendment. The contrast between the ECJ’s judgment and the Advocate General’s Opinion is marked. The ECJ paid heed to the right to effective judicial protection, but its role in the Court’s judgment was minimal. The Court began and ended its judgment with the Plaumann formula, and the fact that the applicants had been unable to meet this test. The right to effective judicial protection was accorded a secondary role, to determine whether some extension of standing was required or warranted. This secondary role was, moreover, interpretative in a minimalist sense. The right to effective judicial protection might influence the meaning of individual concern only in the limited sense of helping to define the circumstances that could distinguish an applicant individually, as exemplified by Codorniu.116 It could not have any greater impact, since this would, in the view of the Court, entail the setting aside of a Treaty condition. The ECJ in Jégo-Quéré followed its reasoning and decision in UPA.117 It ac­knowledged the right to effective judicial protection, but held once again that the Treaty established

112  Ibid [40]. 113  Ibid [41]–[42]. 114  Ibid [43]. 115  Ibid [44]–[45]. 116  Case C-309/89 Codorniu (n 89). 117  Case C-263/02 P Jégo-Quéré (n 31) [29]–[39]. See also Case C-258/02 P Bactria Industriehygiene-Service Verwaltungs GmbH v Commission [2003] ECR I-15105; Case T-213/02 SNF SA v Commission [2004] ECR II-3047; Case T-231/02 Gonnelli and AIFO v Commission [2004] ECR II-1051; Case T-139/01 Comafrica SpA and Dole Fresh Fruit Europe Ltd and Co v Commission [2005] ECR II-409; Cases T-236 and 241/04 EEB and Stichting Natuur en Milieu v Commission [2005] ECR II-4945; Case T-95/06 Federación de Cooperativas Agrarias de la Comunidad Valenciana v Community Plant Variety Office (CPVO) [2008] ECR II-31; Case T-309/02 Acegas-APS SpA v Commission [2009] ECR II-1809; Case T-16/04 Arcelor SA v European Parliament and Council [2010] ECR II-211, [100]–[123]; Case C-550/09 Criminal proceedings against E and F [2010]

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a complete system of legal protection through the combination of Articles 263 and 267. It was for the Member States to ensure that individuals should be able to challenge Union measures at national level, even where no implementing measures were involved. The criteria for standing under Article 230(4) EC would not be relaxed, even where it was apparent that the national rules did not allow the individual to contest the validity of the measure without having contravened it. The right to effective judicial protection could not, said the ECJ, have the effect of setting aside a condition expressly laid down by the Treaty. The ECJ rejected the alternative test proposed by the CFI,118 which the latter had given after the Opinion of Advocate General Jacobs in UPA, but before the Court’s decision.

(D)  A Complete System of Legal Protection: Indirect Challenge The ECJ framed its analysis in UPA and Jégo-Quéré on the premise that the Treaty provided for a complete regime of legal protection in terms of access to court, via Articles 234 and 230.119 There are, however, three major difficulties with the indirect challenge aspect of the regime of legal protection. First, the ECJ simply ignored the Advocate General’s analysis of the difficulties faced by individuals who seek to use what is now Article 267 TFEU. They are in part ­procedural: proceeding via the national court can have implications for the participation of the institutions that adopted the contested measure, delays, costs, the award of interim measures, and the possibility of third party intervention. They are in part inherent in the very nature of Article 267: it is a reference and not an appellate system. The applicant must therefore convince the national court that a reference is required, and may have to fight through more than one national court to achieve this result. The national court is, moreover, precluded from pronouncing the measure invalid, and hence the applicant will necessarily have to proceed to the CJEU, if the national court is willing to make the reference. The difficulties entailed by indirect challenge are also in part substantive: an individual may not be able to challenge the illegality of the measure in the national court without placing itself in contravention of the measure in question. The individual was, therefore, forced to act illegally and raise the invalidity of the measure by way of defence. Secondly, the ECJ, while not responding to these difficulties, sought to circumvent them by exhorting national courts, in accordance with what is now Article 4(3) TEU, to interpret national procedural rules governing the right of action so as to enable

ECR I-6213, [44]; Case T-279/11 T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission, EU:T:2013:299, [74]–[78]; Case C-524/14 P European Commission v Hansestadt Lübeck, EU:C:2016:971, [15]. 118  Case T–177/01 Jégo-Quéré et Cie SA v Commission [2002] ECR II-2365, where the CFI held that a person should be regarded as individually concerned by a Community measure of general application, if the measure affected his legal position, in a manner which was both definite and immediate, by restricting his rights or by imposing obligations. 119  Case C-50/00 P (n 85) [40].

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applicants to challenge Union norms of general application before the national courts. This strategy is, however, of limited utility. It cannot resolve the procedural difficulties adverted to earlier. It cannot overcome, although it might alleviate, the difficulties flowing from the discretionary nature of the Article 267 system, with the consequence that the applicant may be forced to fight through successive national courts. It provided no answer to the critique that it was wrong for an applicant to have to breach an  EU norm in order to challenge its validity. The ECJ’s reliance on what is now Article 4(3) was also open to the objection, voiced clearly by the Advocate General, that it would be difficult to monitor and enforce, and would require far-reaching interference with national procedural autonomy.120 Thirdly, the Article 267 mode of indirect challenge has undesirable consequences for the division of competence between the CJEU and the GC. The division of jurisdictional responsibility between the two courts has been largely ad hoc. The CFI was created to ease the workload of the ECJ. It was, therefore, natural to assign it certain types of case with a heavy factual quotient, such as competition and staff cases. The extension of the CFI’s jurisdictional competence to direct actions brought by individuals under Articles 230, 232, and 288 EC was a further move to ease the workload of the ECJ. The continuing problems of workload led to consideration of reform of the EU judicial system.121 The relevance of this for the present discussion is significant. Preliminary rulings have traditionally been the preserve of the ECJ, although this monopoly was modified by the Nice Treaty. The consequence is that indirect challenges to the validity of EU norms that arose via Article 234 EC went to the ECJ, where the very same issues would have been adjudicated on by the CFI if they had arisen via a direct challenge under Article 230 EC. This had the effect of increasing the CJEU’s workload. The CJEU’s scarce resources have been diverted to answering such preliminary rulings, which will often not involve any point of general importance of EU law. Challenges to the legality of EU norms will often be concerned with technical points. These legal issues must be answered. They do not, however, have to be addressed by the CJEU. The restrictive reading given to direct challenge under Article 263 TFEU, and the consequential pushing of cases through indirect challenge, has meant that these cases have ended up on the CJEU’s case docket. This has exacerbated the CJEU’s caseload, and forced it to spend time addressing issues that could perfectly well be dealt with by the GC. Thus even if Article 267 TFEU were not problematic from the perspective of the applicant, it would nonetheless be institutionally undesirable from the perspective of a rational allocation of function between the CJEU and the GC.

(E)  A Complete System of Legal Protection: Direct Challenge The prospect of reforming the case law on direct challenge via Article 263 TFEU raised two issues, legitimacy and practicality. These will be considered in turn. 120  Case C-50/00 P (n 85) AG Jacobs, [102(3)].    121  Ch 10.

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The Court in UPA and Jégo-Quéré believed that the boundaries of legitimate Treaty interpretation constrained any modification to the traditional case law on direct challenge. It held that the right of effective judicial protection could influence the application of individual concern, ‘by taking account of the various circumstances that may distinguish an applicant individually’.122 It could not, however, have the effect of ‘setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts’.123 More far-reaching reform required Treaty amendment.124 This argument is unconvincing. The ECJ has, as is well known, often stretched the meaning of Treaty articles, and the provisions of EU legislation, through teleological interpretation, in order to attain Union goals. It is, moreover, not readily apparent that a reading of individual concern of the kind proposed by Advocate General Jacobs would involve any transgression of the bounds of normal Treaty interpretation, let alone that it would be akin to Treaty amendment through judicial fiat. The Treaty requires and has always required the applicant to prove individual concern. It is the meaning to be given to that phrase that is the question in issue. The meaning accorded in Plaumann is certainly linguistically possible, even though the result was to limit very significantly the possibility of direct challenge. The fact that the Plaumann test is a possible reading of the text does not mean that any other interpretation would stray beyond the bounds of legitimate judicial interpretation. The ECJ in UPA gave no ­explanation as to why it felt that the Advocate General’s test would be incompatible with the wording of Article 230 EC. There is no reason why a test of substantial adverse impact could not be a legitimate reading of the requirement of individual concern. It is, therefore, fitting to consider practicality. While the ECJ in UPA said nothing about the practical consequences of a more liberal test one is left with the feeling that the ECJ was concerned with the workload problems of a more liberal test. The practical consequences of such a change are a legitimate cause for concern. They should not, however, preclude a shift to a test of substantial adverse impact or something similar thereto. This is so for four reasons. First, the EU prides itself on being a legal order based on the rule of law. It is axiomatic that there should therefore be proper mechanisms for the control of legality. A legal system may possess impressive principles of judicial review, but these will be of scant comfort to those who cannot access the system because the standing rules are unduly narrow. It is right and proper in normative terms that those who have suffered some substantial adverse impact should have access to judicial review. This is more especially so given that such a test is no more liberal than that which prevails in most domestic legal orders. Insofar as such a test would increase caseload by allowing actions to be brought that cannot be brought at present that is a proper consequence for a legal system that regards itself as being based on the rule of law.

122  Case C-50/00 P (n 85) [44].    123  Ibid [44].   124  Ibid [45].

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Secondly, there is in fact no reason why such a change should necessarily involve any dramatic net increase in the overall number of challenges to legality brought by nonprivileged applicants. The restrictive interpretation of Article 230 forced applicants to use Article 234 EC. The ECJ has, however, almost no control over the range of applicants that can challenge via Article 234, or the type of norm that can be challenged. The consequence of a more liberal interpretation of standing under what was Article 230 would have been to shift some of these cases back to direct challenge, and away from indirect challenge. It would thus give the EU Courts more scope for control through the determination of whether there was a substantial adverse impact. Thirdly, the implicit assumption seems to be that there would be numerous challenges to any individual regulation by applicants, each of whom claimed to have suffered substantial adverse impact. This does not accord with legal or practical reality. This is in part because there is the possibility of cases being joined. It is in part because once the CJEU or GC pronounced on the legality of the contested measure in relation to a claim brought by an applicant who was deemed to have suffered a substantial adverse impact that would be the end of the matter. The decision would resolve the issue in relation to any other possible claimant, unless they could raise some new legal argument that had not been addressed in the earlier case. Finally, it must also be recognized that the EU Courts can influence the number of actions that are brought through the standards of review that they apply. The concern over the potential flood of case law has been felt in particular in relation to norms promulgated under the Common Agricultural Policy and the like, where there will often be winners and losers from any regime of agricultural regulation. The Union Courts have, however, already signalled that they will not lightly find that such norms are disproportionate or discriminatory. The fact that applicants will have a relatively high hurdle to surmount in order to win on the substance of the case will have an impact on the number of actions brought, since applicants will calculate their chances of success before embarking on the expense of litigation.

(F)  Lisbon Treaty The framers of the Lisbon Treaty amended the rules on standing: individual concern is no longer required in relation to a regulatory act that is of direct concern and does not entail implementing measures. Article 263(4) TFEU now provides that: Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures

The significance of this reform depends on the meaning of ‘regulatory act’ and ‘implementing measure’.125 125  S Balthasar, ‘Locus Standi Rules for Challenges to Regulatory Acts by Private Applicants: The New Article 263(4) TFEU’ (2010) 35 ELRev 542.

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(i)  Regulatory Act The same term was used in the analogous provision in the Constitutional Treaty.126 Its meaning was uncertain, but the better view was that it applied only in relation to secondary norms and not to primary legislative acts.127 There is also uncertainty in relation to the meaning of regulatory act under the Lisbon Treaty. Legislative acts are those enacted by a legislative procedure, and can take the form of a regulation, ­decision, or  directive.128 A legislative act can delegate power to the Commission to adopt a ­non-legislative act, which may once again take the form of a regulation, decision, or ­directive, although it will normally be a regulation.129 These are termed delegated acts.130 There is also a separate category of implementing acts.131 The term ‘regulatory act’ does not fit easily with the Lisbon classification of legal acts. It could be construed broadly to cover any legally binding act, whether legislative, delegated, or implementing, provided that it does not entail implementing measures. It could be interpreted more narrowly to cover any legislative, delegated, or implementing act, provided that it takes the form of a regulation or decision that does not entail implementing measures. It could cover only delegated and implementing acts in the form of regulations or decisions, which do not entail implementing measures, or only delegated acts subject to the same condition. The CJEU held in Inuit132 that the term ‘regulatory act’ does not cover legislative acts. In reaching this conclusion it drew on the drafting history of the analogous provision in the Constitutional Treaty, which was said to indicate that the reform was not intended to touch the standing requirements for legislative acts. It felt also that the contrary conclusion would render the distinction drawn between ‘acts’ and ‘regulatory acts’ in Article 263(4) TFEU illusory. The Advocate General had, moreover, argued that regulatory acts should not cover legislative acts, because the latter possessed greater legitimacy through enactment via the ordinary legislature. The novel aspect of Article 263(4) whereby individual concern is dispensed with does not therefore apply to legislative acts. This constraint on the ambit of the reformed provision is more marked given the formalistic nature of the definition of legislative act in the Lisbon Treaty, which covers any act passed by a legislative procedure. It is, therefore, perfectly possible for there to be a ‘legislative act’ that applies to a very narrow group of applicants, which is de facto a closed group, where no one could challenge the measure because they would not

126  Art III-365(4) CT. 127  P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press, 2010) Ch 4. 128  Art 289 TFEU. 129  Art 290 TFEU. 130  Art 290(3) TFEU. 131  Art 291 TFEU. 132  Case C-583/11 P Inuit Tapiriit Kanatami v Parliament and Council, EU:C:2013:625; A Kornezov, ‘Shaping the New Architecture of the EU System of Judicial Remedies: Comment on Inuit’ (2014) 39 ELRev 251; C F Bergström, ‘Defending restricted Standing for Individuals to Bring Direct Actions against “Legislative” Measures’ (2014) 10 European Constitutional Law Review 481; P-A van Malleghem and N Baeten, ‘Before the Law Stands a Gatekeeper—Or, what is a “regulatory act” in Article 263(4) TFEU? Inuit Tapiriit Kanatami’ (2014) 51 CMLRev 1187.

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come within the scope of the reformed standing provision, they would hence have to show individual concern and would be unable to do so under existing case law.133 Where the exception in Article 263(4) TFEU does not apply an applicant will still need to show individual concern as that term has been interpreted in Plaumann and subsequent cases.134 This means that direct challenge in such cases will continue to be extremely difficult. Applicants will have to proceed indirectly via Article 267 TFEU and the Lisbon reforms have done nothing to address the difficulties with this method of challenge identified by Advocate General Jacobs in the UPA case. (ii)  Implementing Measure The liberalized standing rule will, moreover, only be applicable to a regulatory act that is of direct concern and does not entail implementing measures. It follows that the broader the meaning given to the concept of implementing act, the narrower is the scope of the exception in Article 263(4). Thus even if there is a regulatory act, the exception will not apply if there are deemed to be implementing measures, and it will be for the claimant to show individual concern in the Plaumann sense in order to maintain a direct action under Article 263(4). If the claimant fails in this respect, then it must challenge indirectly via the national courts using Article 267 TFEU. Telefónica gave a broad interpretation to the concept of implementing measure, thereby limiting the circumstances in which the liberalized rule can apply.135 The applicant challenged a Commission decision declaring a Spanish tax provision to be incompatible with the state aid rules. The Court rejected the applicant’s argument that the challenged measure was a regulatory act that did not entail implementing measures. It held that the Commission decision concerning the legality of the tax scheme was addressed solely to Spain and did not bind other persons. When Spain gave effect to that decision there would then be tax consequences for the applicant, and these constituted implementing measures ‘entailed’ by the Commission decision that could be challenged indirectly in national courts via Article 267. This broad interpretation of implementing measure has been confirmed in subsequent cases.136 Thus in Federcoopesca137 the GC held that the amendment to Article 263(4) TFEU is designed to apply only when the disputed act, in itself, irrespective of any implementing measures, alters the applicant’s legal situation. It followed, said the GC, that a finding that the disputed act did not, in itself, alter the applicant’s legal ­situation was sufficient to conclude that the third limb of Article 263(4) TFEU was inapplicable, without it being necessary to determine whether the act entailed ­

133  Case T-512/12 Front Polisario v Council, EU:T:2015:953, [68]–[72]. 134  Case T-601/11 Dansk Automat Brancheforening v European Commission, EU:T:2014:839, [50]–[52]. 135  Case C-274/12 P Telefónica SA v Commission, EU:C:2013:852; Case C-132/12 P Stichting Woonpunt v European Commission, EU:C:2014:100; Case C-541/14 P Royal Scandinavian Casino Århus I/S v European Commission, EU:C:2016:302. 136  Case C-553/14 P Kyocera Mita Europe BV v European Commission, EU:C:2015:805. 137  Case T-312/14 Federcoopesca v European Commission, EU:T:2015:472.

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i­mplementing measures in respect of the applicant.138 In T & L Sugars139 the CJEU held that decisions taken by national authorities were implementing acts for the ­purpose of Article 263(4), notwithstanding the mechanical nature of the national measures, which applied fixed coefficients set out in a Commission regulation. However, a more limited reading was adopted in Tilly-Sabco.140 The GC held that it was necessary to consider whether the regulatory act in question ‘entailed’ measures for its implementation, which meant that only measures that the EU organs or national authorities adopted in the normal course of events constituted implementation measures. If, in the normal course of events, the organs or bodies of the EU and the national authorities did not adopt any measure to implement the regulatory act, then that regulatory act did not ‘entail’ any implementing measures. It was not sufficient that the regulatory act ‘may entail’ implementing measures; it was necessary that it ‘entails’ implementing measures. It did not suffice that a claimant might be able, ‘in a contrived manner, to oblige the administration to adopt a measure that would be open to appeal, because such a measure is not a measure that the regulatory act “entails”.’141 It is clear, moreover, that whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring an action under Article 263(4) TFEU. It is, therefore, irrelevant whether the act in question entails implementing measures with regard to other persons.142 (iii) Evaluation The Lisbon Treaty liberalization has been a good deal less liberalizing than some might have hoped. The exclusion of legislative acts from the ambit of the reformed Article 263(4) has received most comment in this respect. It is, however, the interpretation accorded to ‘implementing measure’ that has an equally significant impact on the scope of the reform. There is force in the applicant’s contention in Telefónica that if any measure that a Member State is required to adopt in order to give effect to an EU act constitutes an implementing measure, however minor it may be, then a very wide ­variety of regulatory acts will be automatically excluded from the scope of the revised Article 263(4). The CJEU’s ruling de facto endorses that broad view by regarding the measures taken by Spain as a consequence of the illegality of the aid scheme to be implementing measures for these purposes. If the applicant cannot take advantage of the exception for regulatory acts that do not entail implementing measures, it must then prove Plaumann in order to bring a  direct action under Article 263, or challenge the national measures indirectly via an indirect action under Article 267. The former route leads to all the difficulties of

138  Ibid [28]–[29], [43]. 139  Case C-456/13 P T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission, EU:C:2015:284, [40]–[42]. 140  Case T-397/13 Tilly-Sabco v European Commission, EU:T:2016:8, [43]–[44]. 141  Ibid [45]. 142  Case C-274/12 P Telefónica (n 135) [30]; Case 552/14 P Canon Europa NV v European Commission, EU:C:2015:804, [45]; Case C-456/13 P T & L Sugars (n 139) [32].

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­ roving individual concern in accord with the Plaumann reasoning. The latter remains p beset by the difficulties with indirect actions pointed out cogently by Advocate General Jacobs, which remain unanswered by the CJEU. The new status quo is also unsatisfactory because the chosen reform was beset from the outset with studied ambivalence as to whether the object was to make the standing rules for direct actions more liberal, and thereby render the difficulties of indirect actions less problematic, or whether the raison d’être was simply to prevent an individual from having to break a law in order to challenge it. This ambiguity was present in the deliberations during the Constitutional Treaty. We should, however, be wary of drawing too heavily on that drafting history, given that the Discussion Circle concerning the EU Courts had very limited time for deliberation and consultation.143 The CJEU has interpreted the reform in the latter, narrow sense, which is unsurprising.144 I favour more liberal standing rules, and thus prefer the former reading of the reform. Truth to tell, however, that if the real objective were to liberalize standing then the new addition to Article 263(4) is not how it should be done. This is because it makes little sense in normative terms to deny the need for any individual concern in relation to some species of act, while insisting on some very strict showing of such concern for other types of act. If principled liberalization was the objective, then Advocate General Jacobs’ criterion of substantial adverse impact would be the preferred choice.

(G )  Charter of Rights The EU Charter of Fundamental Rights145 has not had much impact on the preceding analysis. Article 41 enshrines a right to good administration. Article 41(2) sets out certain more specific rights that are included in this right. Article 47 provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Standing rules are not explicitly mentioned in either Article. It would be open to the EU Courts, if they wished to do so, to regard these provisions as the basis for expanding the existing standing rules. This was, however, unlikely given the judicial approach to standing considered earlier, and given also the explanatory memorandum in relation to Article 47, which stated that there was no intent for this provision to make any change to the rules on standing other than those embodied in what is now Article 263(4) TFEU.146 The CJEU has duly interpreted the Charter as not

143  CONV 543/03, Discussion Circle on the Court of Justice, Brussels, 7 February 2003. 144  Case C-274/12 P Telefónica (n 135) [27]; Case T-397/13 Tilly-Sabco (n 140) [39]–[40]; Case T-312/14 Federcoopesca (n 137) [27]; Case C-456/13 P T & L Sugars (n 139) [29]. 145  [2000] OJ C364/01; [2010] OJ C83/389. 146  Charte 4473/00, Convent 49, 11 October 2000, 41; CONV 828/03, Updated Explanations Relating to the Text of the Charter of Fundamental Rights, 9 July 2003, 41; Explanations Relating to the Charter of Fundamental Rights, 14 December 2007 [2007] OJ C303/17.

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mandating any changes to the standing rules over and beyond those contained in Article 263(4).147 There is, nonetheless, an uneasy tension between the Charter rights and the standing rules for direct actions. The Charter accords individual rights, yet the application of the standing rules means that a person who claims that his rights have been infringed by EU law would normally not be able to meet the requirements of individual concern.148 There is something decidedly odd about the infringement of an individual right not counting as a matter of individual concern.

6 Conclusion It is clear that the scope of those entitled to take part in the making of the initial determination, and those entitled to challenge that determination before the courts remain contentious. The former has been shaped principally by the Courts, but has been influenced also by the political branch, more especially the Commission. There has been relatively little difficulty in relation to process rights and individual decisions, although the application of the right to be heard where administration is shared between the EU and the Member States has been problematic in certain instances. There continues to be greater difficulty in relation to process rights and norms of a legislative nature. It is by no means clear that the admixture of legal doctrine and political initiative has resolved this issue in a satisfactory manner, more especially given the broader concerns about legitimacy that are raised by consultation in rulemaking. The rules relating to standing remain problematic. This is the other main access point for those seeking to use administrative law doctrine. There has been a steady flow of cases where applicants have sought to challenge EU norms directly through Article 230(4) EC, the great majority of which failed. The EU Courts continue to insist that we have a complete system of legal protection through the combination of the direct and the indirect action. This conclusion is difficult to sustain from the perspective of the individuals concerned. It has also led to undesirable institutional consequences, since insistence on recourse to indirect actions that are then heard by the ECJ has exacerbated its workload and many such challenges to the validity of Union action do not warrant the time of the EU’s top court. The Lisbon reforms have had little impact on the ability to bring a direct action under Article 263(4), and claimants that cannot avail themselves of this liberalization will have to satisfy the rigorous Plaumann test. This was an almost insurmountable block hitherto, and there is no reason why it will prove any less so in the future.

147  Case C-583/11 P Inuit Tapiriit Kanatami (n 132) [97]; Case C-456/13 P T & L Sugars (n 139) [43]. 148  Case C-258/02 P Bactria (n 117) [48]–[51]; Case T-16/04 Arcelor (n 117) [102]–[105].

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12 Process 1 Introduction This chapter is concerned with process rights, and should be read in conjunction with the previous chapter on access. The sources of process rights are, as will become clear from the subsequent discussion, eclectic. Treaty articles, EU legislation, the Union Courts, the European Ombudsman, and the Commission have all contributed towards the enumeration of such process rights, drawing inspiration from national legal systems. The discussion that follows takes a broad view of process and addresses the topic from three perspectives. The initial perspective is concerned with discrete process rights and the way that they have been developed by the EU Courts and by Union legislation. The discussion begins with the right to be heard. There will be a brief recapitulation of the criteria for the applicability of this right, before considering its content. The focus then shifts to the obligation of diligent and impartial examination, and thereafter to the duty to give reasons. It is important to be clear about the relationship between these rights, since otherwise confusion will result: the ‘trigger’ for rendering these process rights applicable varies. It will be seen that, depending on the situation, the applicant might be entitled to all of these process rights—hearing, diligent examination, and reasons—albeit with the qualification that their content might vary with the specificities of the particular case. An applicant might, however, have a right to a diligent examination of the case, and a reasoned decision, but there might be no right to a hearing. The appropriate visual metaphor is, therefore, one of overlapping circles, where each circle represents a particular process right, with the consequence that if a fact pattern falls within a certain area the applicant will be entitled to the process rights accorded by the circles that overlap at that point. This part of the discussion will conclude with some observations about the possible impact of the right to good administration contained in the Charter of Fundamental Rights. The second perspective is concerned with process rights and sector-specific legislation. This helps us to understand how particular process rights fit together in a specific context. It sheds light on the interrelationship between process rights as developed by the EU Courts and the Union legislature. It also reveals the interaction between process rights accorded to the individual, and procedural rights and powers given to the

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administration, thereby serving as a counterweight to the asymmetry that characterizes much thought about process. The final perspective considers the way in which the meaning accorded to process rights has broader implications for the objectives of judicial review. There will be discussion of the extent to which the jurisprudence on reasons, access to the file, and the duty of diligent examination may evince movement, directly or indirectly, towards a dialogue between the individual and the decision-maker, requiring the latter to respond to arguments advanced by the former. There will also be analysis of the relationship between process rights, especially the duty to give reasons, and the intensity of substantive review, which serves as a fitting link between this chapter and that which follows.

2  Process and Hearing Any legal system will determine the applicability of the right to a hearing and the content of that right if a hearing is accorded. The previous chapter considered in detail the criteria for applicability of hearing rights, and the distinction between individualized determinations and norms of a legislative nature.1 There will, therefore, be a very brief summary of applicability of hearing rights in individualized determinations, followed by more detailed treatment of the content of hearing rights.

(A) Applicability It is important not to lose sight of the background principles that serve to justify ­procedural rights in individual adjudications. The twin rationales are instrumental and non-instrumental or dignitarian.2 The former justifies process rights because they render it more likely that a correct outcome will be reached on the substance of the case.3 The latter sees the justification as being a broader part of what it means to treat a person as a human being, with the corollary that a hearing should be given before taking action that can deleteriously affect an individual.4 It is perfectly possible to support both, albeit in varying degrees. 1  See above, 312–18. 2  J Mashaw, Due Process in the Administrative State (Yale University Press, 1985); D Galligan, Due Process and Fair Procedures (Oxford University Press, 1996) 75–82; O Mader, Verteidigungrechte im Europäischen Gemeinschaftsverwaltungsverfahren (Nomos, 2006); G della Cananea, ‘I procedimenti amministrativi dell’Unione Europea’ in M Chiti and G Greco (eds), Tratatto di diritto amministrativo europeo (Giuffrè, 2007) Vol I, 496–537; G della Cananea, Al di là dei confini statuali: principi generali del diritto pubblico globale (Il Mulino, 2009); G della Cananea, Due Process of Law beyond the State: Requirements of Administrative Procedure (Oxford University Press, 2016). 3  J Resnick, ‘Due Process and Procedural Justice’ in J Pennock and J Chapman (eds), Due Process (Nomos, 1977) 217. 4  H L A Hart, Concept of Law (Clarendon Press, 1961) 156, 202; J Rawls, A Theory of Justice (Oxford University Press, 1973) 235; F Michelman, ‘Formal and Associational Aims in Procedural Due Process’ in Due Process (n 3) Ch 4; Mashaw (n 2) Chs 4–7.

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The Union Courts have been activist in protecting process in relation to individualized decisions. They have imposed a right to be heard as a general principle of EU law, irrespective of whether this requirement was found in the relevant Treaty article, regulation, directive, or decision. The general trend of the case law has been to require a hearing even where no sanction is imposed, provided that there is some adverse impact, or significant effect on the applicant’s interests,5 and the EU Courts have adapted this criterion to the many instances where administration is shared between the EU and the Member States. The right to be heard has been held to be part of the fundamental rights jurisprudence.6 It cannot be excluded or restricted by any legislative provision, and the ­principle must be protected both where there is no specific EU legislation and also where legislation exists, but does not take sufficient account of the principle.7 Observance of the right to be heard can be raised by the Court of its own motion.8 The right to be heard before an individual measure is taken that would affect a person adversely is included within the Charter of Fundamental Rights.9

(B)  Content: General Approach All legal systems necessarily have to determine the content of the right to be heard. This will include matters such as the right to notice of the relevant decision; whether there is a right to an oral hearing or only a paper hearing; whether the hearing must precede the relevant decision or whether it can be given thereafter; whether there

5  Case T-450/93 Lisrestal v Commission [1994] ECR II-1177; Case C-32/95 P Commission v Lisrestal [1996] ECR I-5373; Case T-50/96 Primex Produkte Import-Export GmbH & Co KG v Commission [1998] ECR II-3773, [59]; Case C-462/98 P MedioCurso-Etabelecimento de Ensino Particular Ld v Commission [2000] ECR I-7183, [36]; Case C-395/00 Distillerie Fratelli Cipriani SpA v Ministero delle Finanze [2002] ECR I-11877, [51]; Case T-102/00 Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission [2003] ECR II-2433, [59]; Cases C-439 and 454/05 P Land Oberösterreich and Republic of Austria v Commission [2007] ECR I-7141, [36]; Case C-349/07 Sopropé—Organizações de Calçado Lda v Fazenda Pública [2008] ECR I-10369, [37]; Case C-89/08 P Commission v Ireland [2009] ECR I-11245, [50]; Case C-276/12 Sabou v Finanční ředitelství pro hlavní město Prahu, EU:C:2013:678, [38]; Cases C-584, 593 and 595/10 P European Commission v Kadi, EU:C:2013:518, [112]; Case C-249/13 Boudjlida v Préfet des Pyrénées-Atlantiques, EU:C:2014:2431, [31]–[40]; Case C-566/14 Jean-Charles Marchiani v European Parliament, EU:C:2016:437, [51]. 6  Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, [15]. See also Cases T-33–34/98 Petrotub and Republica SA v Council [1999] ECR II-3837; Case C-458/98 P Industrie des poudres sphériques v Council and Commission [2000] ECR I-8147, [99]; Cases C-402 and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351; Case C-141/08 P Foshan Shunde Yongjian Housewares & Hardware Co Ltd v Council [2009] ECR I-9147, [83]; Case T-410/06 Foshan City Nanhai Golden Step Industrial Co, Ltd v Council [2010] ECR II-879, [109]–[111]; Case T-260/11 Spain v European Commission, EU:T:2014:555, [62]. 7  Case T-260/94 Air Inter SA v Commission [1997] ECR II-997, [60]; Case C-383/13 PPU, M G and N R v Staatssecretaris van Veiligheid en Justitie, EU:C:2013:533, [35]; Case C-249/13 Boudjlida (n 5) [39]–[40]; Case C-560/14 M v Minister for Justice and Equality Ireland and the Attorney General, EU:C:2017:101, [25]. 8  Case C-291/89 Interhotel v Commission [1991] ECR I-2257, [14]; Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, [67]. 9  Charter of Fundamental Rights of the European Union [2000] OJ C364/1, Art 41(2).

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should be any right to discovery of documents or any right to cross-examination; whether the evidential rules applied in a normal trial should be modified or relaxed in their application to administrative decision-making; whether there can be any contact between the administration and one of the parties prior to the decision being made; whether causation should matter, in the sense that the reviewing court should consider if the hearing would have made a difference to the final outcome; whether there is a right to be represented by a lawyer; whether reasons should be given for the decision; and the meaning to be given to impartiality. Any legal system will also have to decide how to go about deciding these issues. There are a number of options.10 At one end of the spectrum is the all-embracing ­procedural code, which addresses such matters in detail. At the other end of the spectrum are ad hoc judicial decisions, with the courts deciding the issues on a case-by-case basis. There are various options in between. The courts may develop a general formula through which to determine the content of process rights.11 Legislation may stipulate the content of process rights for hearings of a certain type, for example those that are more formal in nature.12 The content of hearing rights can alternatively be determined by a mixture of ad hoc case law, combined with sector-specific legislation that applies the courts’ precepts and fleshes them out. The last of these most accurately captures the position in the EU. There is no general, detailed procedural code, in part because there were doubts as to whether the EU had competence to enact such a measure, although this difficulty has been obviated by the Lisbon Treaty.13 There is no explicit balancing formula of the kind embodied in the Mathews case in the US,14 although there may well be evidence of implicit balancing. There is no legislative stipulation of a set formula of process rights that must be applied to, for example, all formal adjudications. The reality is that the Courts have developed the content of process rights on a case-by-case basis. The judicial precepts have then been incorporated in sector-specific legislation and moulded to fit the needs of the area. The development of hearing rights by the Union Courts, and the way in which this has been filled out by sector-specific legislation, is especially interesting in the EU, given the fact that some national administrative law systems are grounded in the common law, others within the civil law tradition. This does not necessarily mean that there are differences in concrete doctrine as between such regimes, nor does it mean that the EU will simply ‘cut and paste’ from such systems when developing EU administrative law. 10  C Harlow, ‘Codification of EC Administrative Procedures? Fitting the Foot to the Shoe or the Shoe to the Foot’ (1996) 2 ELJ 3; M Shapiro, ‘Codification of Administrative Law: The US and the Union’ (1996) 2 ELJ 26; Cananea (n 2); G della Cananea, ‘Beyond the State: The Europeanization and Globalization of Procedural Administrative Law’ (2003) 9 EPL 563; P Craig, ‘Perspectives on Process: Common Law, Statutory and Political’ [2010] PL 275; J-B Auby (ed), Codification of Administrative Procedure (Bruylant, 2014); Cananea, Due Process (n 2). 11  See, eg, the approach adopted in relation to the content of constitutional due process in the US, Mathews v Eldridge, 424 US 319 (1976). 12  This is the methodology for formal adjudication and formal rulemaking under the Administrative Procedure Act 1946 in the US. 13  Art 298 TFEU. 14  See n 11.

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We should, nonetheless, be mindful of the fact that certain aspects of national administrative law doctrine will be grounded in assumptions derived from common law or civil law modes of thought, and these assumptions will not always cohere. The Union Courts therefore necessarily have to choose which mode of thought to prioritize when fashioning the detailed rules on hearing rights. With this cautionary note in mind, we can now examine certain of the key aspects of the right to a hearing.

(C)  Content: Notice and the Right to Respond The EU Courts have been assiduous in their insistence that notice should be given of the nature of the case and that the individual should have a right to respond to it. This is exemplified by Netherlands v Commission.15 The ECJ annulled a Commission decision finding that a Dutch law regulating postal services was in breach of what is now Article 106(1) TFEU. The Commission, before making the decision, had sent a telex to the Dutch government informing it that it believed the law to be in violation of Article 106(1) and the government responded. The ECJ held that the rights of the defence had been infringed because the telex had been cast in general terms, without setting out in detail the features of the national law that were felt to be in breach of EU law. The Court stated that the Member State must receive ‘an exact and complete statement of the objections which the Commission intended to raise against it’,16 and that the Member State must be ‘placed in a position in which it may effectively make known its views on the observations submitted by interested third parties’,17 in this case private messenger service organizations. It is clear, moreover, from Vlaamse Televisie Maatschappij18 that while the direct beneficiary of a state measure named in the law contested under Article 106 TFEU is not in the same position as the state itself, and must be regarded as a third party in this respect, it must, nonetheless, have a right to be heard where it is directly affected in economic terms by the Commission decision. The Commission was required to communicate formally with such an undertaking, informing it of the objections to the state measure and allowing it the opportunity to respond, although it did not have to afford the undertaking the opportunity to comment on the views of the Member State or third parties. The importance of notice is equally apparent from Fiskano.19 The applicant fishing company was penalized for fishing in EU waters without the requisite licence on the relevant dates, with the consequence that it would not be considered for a fishing licence for twelve months. The ECJ annulled the Commission decision on the ground that the right to be heard requires that any person ‘on whom a penalty may be imposed 15  Cases C-48 and 66/90 Netherlands and Koninklijke PTT Nederland NV and PTT Post v Commission [1992] ECR 565. 16  Ibid [45]. 17  Ibid [46]; Case C-301/87 France v Commission [1990] ECR I-307, [30]. 18  Case T-266/97 Vlaamse Televisie Maatschappij NV v Commission [1999] ECR II-2329, [32]–[37]. 19  Case C-135/92 Fiskano AB v Commission [1994] ECR I-2885.

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must be placed in a position in which he can effectively make known his view of the matters’ concerning the basis on which the Commission imposed the penalty.20 This same principle was evident in litigation concerning restrictive measures against suspected terrorists post 9/11. Thus in Kadi21 the ECJ held that because the Council had neither communicated to the persons concerned the evidence used against them to justify the restrictive measures, nor afforded them the right to be informed of that evidence within a reasonable period after they were enacted, those persons did not have the opportunity to make their point of view known and the right to be heard had not been respected. The nature of the right to respond was explicated in more detail in MDF,22 where the ECJ stated in the context of a competition violation that during the administrative procedure the undertaking must be afforded the opportunity to make known its views on the truth and relevance of the facts and the circumstances alleged and on the documents used by the Commission to show an infringement of the Treaty. It was held, moreover, in Commission v Ireland23 that the right to be heard also implied a right to be apprised of pleas in law raised by courts of their own motion and to discuss them. The EU Courts have also protected the right to notice and the right to respond in cases where administration is shared between the Commission and Member States. We have already seen that the Union Courts have protected the right to be heard in cases of shared administration.24 The content of the right in such cases is exemplified by Eyckeler.25 The case concerned remission of import duties. The regulatory scheme provided for an initial assessment by the national authority, which could reject the application of its own volition. If it believed the remission should be granted the national authority had to submit the matter to the Commission, which made the final decision. The regulatory scheme provided for contact between the individual concerned and the national administration, and between the national administration and the Commission, but there was no provision for a right to be heard by the applicant before the Commission. The CFI held that the rights of defence, including the right to be heard, 20  Ibid [40]. 21  Cases C-402 and C-415/05 P Kadi (n 6) [348]; Cases C-399 and 403/06 Hassan and Ayadi v Council and Commission [2009] ECR I-11393, [83]–[86]. 22  Cases 100–103/80 Musique Diffusion Française v Commission [1983] ECR 1825, [10]; Cases C-204–205, 211, 213, 217 and 219/00 P Aalborg Portland v Commission [2004] ECR I-123, [66]; Case C-89/08 P Commission v Ireland (n 5) [55]; Cases T-117 and 121/07 Areva v Commission [2011] ECR II-633, [246]–[248]; Case T-461/07 Visa Europe Ltd and Visa International Service v European Commission, EU:T:2011:181, [56]–[58]; Case T-42/07 Dow Chemical v Commission, EU:T:2011:357, [128]; Case T-189/10 GEA Group AG v European Commission, EU:T:2015:504, [67]–[70]. 23  Case C-89/08 P Commission v Ireland (n 5) [55]. 24  See above, 314–16. 25  Case T-42/96 Eyckeler & Malt AG v Commission [1998] ECR II-401; Case T-346/94 France-Aviation v Commission [1995] ECR II-2841; Case T-50/96 Primex Produkte (n 5) [57]–[70]; Cases T-186, 187, 190, 192, 210, 211, 216–218, 279–280, 293/97 and 147/99 Kaufring AG v Commission [2001] ECR II-1337, [151]–[162]; Case C-349/07 Sopropé—Organizações de Calçado (n 5) [37]–[39]; Case C-277/11 M, EU:C:2012:744; Case C-249/13 Boudjlida (n 5); Cases C-129–130/13 Kamino International Logistics BV and Datema Hellmann Worldwide Logistics BV v Staatssecretaris van Financiën, EU:C:2014:2041, [73]; Case C-560/14 M v Minister for Justice and Equality Ireland and the Attorney General, EU:C:2017:101.

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were fundamental whenever the contested measure could have an adverse impact on the individual, with the consequence that the applicant should be placed in a position from which he could effectively make his views known, at least as regards the matters taken into account by the Commission as the basis for its decision.26 The right to be heard will not necessarily require an oral hearing.27 The ECJ will normally leave it to the Commission to make the initial determination as to whether the hearing should be oral, or whether the opportunity to make written observations should suffice. It is, however, in principle open to the EU Courts to decide that the right to be heard requires, in the particular circumstances of the case, an oral hearing. Moreover, sector-specific legislation may stipulate that oral hearings should be required for some part of the decision-making process, as is the case in the context of competition.28

(D)  Content: Access to the File An important component of the right to be heard is access to the file. Access to the file may be relevant before the decision is made by the administration, or after it has been made when an applicant seeks to challenge the decision by judicial review. Access ­facilitates understanding of the evidentiary basis on which the decision is to be made or has been made, and of the reasoning underlying it, thereby placing the individual in a better position to be able to proffer counterarguments when exercising the right to be heard, or challenging the decision by way of judicial review. It is important to be mindful of the connection between access to the file, and access to documents as protected by Article 15(3) TFEU,29 which can function as alternate routes to the same goal.30 It will be seen that EU law, after some initial hesitation and subject to some reservations, accords access to the file as part of the rights of the defence. This is by way of contrast to, for example, the situation in the UK, where there is no such right of access to the file prior to the initial decision being taken. Nor is there any such right when seeking judicial review: the individual must apply for disclosure of documentation from the public body, and the UK courts have placed strict limitations as to when this will be ordered.31 A right of access to the file is, however, accorded in a number of Member States.32 The fact that EU law has sanctioned access when the initial decision is being made is to be welcomed as a valuable process right, as is the inclusion of this right as a component of the right to good administration in the Charter of Fundamental Rights.33 The initial jurisprudence was developed in relation to competition law, but has been extended to other areas. The application of the principle is not especially difficult where 26  Case T-42/96 Eyckeler (n 25) [76]–[78]. 27  J Schwarze, European Administrative Law (Sweet & Maxwell, revised edn, 2006) 1363–4; Case C-560/14 M v Minister for Justice (n 25). 28  See below, 374–80.    29 392–400. 30  Case C-139/07 P Commission v Technische Glaswerke Ilmenau GmbH [2010] ECR I-5885, [59]. 31  P Craig, Administrative Law (Sweet & Maxwell, 8th edn, 2016) Ch 26. 32  Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, 890–3, AG Leger. 33  Art 41(2), [2000] OJ C364/1, [2010] C83/389.

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the decision affects only one party, or a small number of parties. It can, however, be problematic when the administrative decision affects a multiplicity of parties, even more so where the litigation is complex and generates a large amount of documentation, as exemplified by some cases on horizontal cartels. The EU Courts have placed limitations on access in such instances, and these should be critically appraised. However, such limits have been necessitated because of the breadth of the initial ­principle concerning access to the file. The early jurisprudence on access arose in competition proceedings.34 The ECJ initially held in VBVB35 that there was no legal obligation to disclose the complete file, only those documents on which the Commission had based its decision. The Commission chose not to stick to the legal letter of this judgment, and permitted access, except where, for example, information covered by professional secrecy was involved. The CFI in Hercules36 gave legal force to this administrative practice. The Commission is obliged to make available all documents obtained in the course of the investigation, save where they involve business secrets of other undertakings, confidential information, or internal Commission documents.37 This was regarded as part of a wider principle of equality of arms, allowing addressees of a decision to examine the file so that they could effectively proffer their views on the evidentiary basis of the Commission decision.38 It was not for the Commission alone to decide which documents were ­useful to the undertakings. They should have the opportunity to examine them in order to determine their probative value for the applicants’ defence. The EU Courts might, however, decide not to annul for failure to grant access unless this adversely affected the right to a hearing. In any event, a right to access to the file is now included in the regulations governing competition.39 The right of access to the file is designed, therefore, to ensure effective exercise of the rights of the defence. Failure to respect the right of access during the procedure prior to adoption of a contested decision can, in principle, cause the decision to be annulled if the rights of defence of the undertaking concerned have been infringed.40 34  Schwarze (n 27) 1341–57; M Levitt, ‘Access to the File: the Commission’s Administrative Procedures in Cases under Articles 85 and 86’ (1997) 34 CMLRev 1413; C-D Ehlermann and B Drijber, ‘Legal Protection of Enterprises: Administrative Procedure, in particular Access to Files and Confidentiality’ [1996] ECLRev 375; H Nehl, Principles of Administrative Procedure in EC Law (Hart, 1999) Ch 5. 35  Cases 43 and 63/82 VBVB and VBBB v Commission [1985] ECR 19, [25]. 36  Case T-7/89 SA Hercules Chemicals NV v Commission [1991] ECR II-1711, [53]–[54]; Case T-65/89 BPB Industries plc and British Gypsum Ltd v Commission [1993] ECR II-389. 37  Commission Notice on internal rules of procedure for access to the file [1997] OJ 1997 C23/3, now overtaken by Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 EC, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation 139/2004 [2005] OJ 325/7. 38  Cases T-30–32/91 Solvay SA v Commission [1995] ECR II-1775; Cases T-36–37/91 ICI v Commission [1995] ECR II-1847, [93]; Case C-51/92 P Hercules Chemicals NV v Commission [1999] ECR I-4235; Case T-175/95 BASF Lacke & Farben AG v Commission [1999] ECR II-1581; Cases C-238, 244–245, 247, 250, 252 and 254/99 P Limburgse Vinyl Maatschappij v Commission [2002] ECR I-8375; Case T-5/02 Tetra Laval BV v Commission [2002] ECR II-4381, [89]–[91]. 39  See below, 375–7. 40  Case C-199/99 P Corus v UK, EU:C:2003:531, [126]–[127].

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This infringement is not remedied by the mere fact that access to the file was made possible during annulment proceedings in relation to the contested decision. Where access has been granted at that stage, the undertaking concerned must show not that, if it had had access to the non-disclosed documents, the Commission decision would have been different in content, but only that those documents could have been useful for its defence.41 It was originally thought that the right of access to the file was confined to competition proceedings. It is clear that this is no longer the case. The EU Courts have applied the reasoning from the competition cases in other contexts. Thus in Eyckeler the CFI reasoned by analogy from the competition cases and held that access to the file was equally important in challenging customs’ decisions. It stated that if the right to be heard was to be exercised effectively there must be access to non-confidential documentation relied on by the Commission when it made the contested decision.42 It was not open to the Commission to exclude documents that it did not consider relevant, since these might well be of interest to the applicant. It was held, moreover, that it would be a serious breach of the rights of the defence if the Commission could unilaterally exclude from the administrative procedure documents which might be detrimental to it.43 The ease with which the CFI reasoned by analogy from competition to customs signifies the generalization of access to the file as an aspect of the right to be heard,44 irrespective of the subject matter area in question, and this is in accord with the formulation in the Charter of Fundamental Rights.45 At the very least it renders it easier for applicants contesting decisions in other areas to argue that the right should be equally applicable, and places the onus on the Commission, if it is so minded, to show why this should not be so. The precise boundaries of access to the file were tested in complex litigation in Aalborg Portland.46 The case concerned a long-running Commission investigation into agreements and concerted practices engaged in by a number of European cement p ­ roducers. 41  Case C-609/13 P Duravit AG v European Commission, EU:C:2017:46, [99]–[100]. 42  Case T-42/96 Eyckeler (n 25) [79]–[80]. 43  Ibid [81]. See also Case T-50/96 Primex Produkte (n 5) [57]–[70]; Cases T-186–187/97 Kaufring (n 25) [185]; Case T-205/99 Hyper Srl v Commission [2002] ECR II-3141; Case T-53/02 Ricosmos BV v Commission [2005] ECR II-3173, [71]–[74]. 44  Cases C-584, 593 and 595/10 P Commission v Kadi, EU:C:2013:518, [98]–[99]; Case C-200/13 P Council of the European Union v Bank Saderat Iran, EU:C:2016:284, [75]; Case C-176/13 P Council of the European Union v Bank Mellat, EU:C:2016:96, [82]. 45  Art 41(2), which provides that the right to good administration includes ‘the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy’, [2010] OJ C83/389. 46  Cases C-204–205, 211, 213, 217 and 219/00 P Aalborg Portland (n 22). See also Case T-161/05 Hoechst GmbH v Commission [2009] ECR II-3555; Case T-58/01 Solvay SA v Commission [2009] ECR II-4781; Case T-66/01 ICI v Commission, EU:T:2010:255; Case C-407/08 P Knauf Gips KG v European Commission, EU:C:2010:389; Case T-186/06 Solvay SA v Commission, EU:T:2011:276; Case T-112/07 Hitachi v Commission, EU:T:2011:3871; Case T-151/07 Kone v Commission, EU:T:2011:365; Case T-197/06 FMC Corp v European Commission, EU:T:2011:282.

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The documentation supporting the alleged practices was very large. The Commission therefore did not append to the statement of objections the documents supporting its conclusions. It prepared a box of documents that was made available for each addressee relating to the statement of objections addressed to that firm. The Commission refused access to the chapters of the statement of objections which they had not received, and refused to grant access to all documents in the investigation file. The ECJ reiterated the right of access to the file, which meant that ‘the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation which may be relevant for its defence’,47 including incriminating and exculpatory evidence. This general principle was subject to a number of limitations. There was no access to business secrets and confidential information, but the Commission could not make a general reference to confidentiality to justify a total refusal to disclose documents in its file, nor could it give blank pages on the ground that they contained business secrets without providing a more comprehensible non-confidential version, or a summary of the documents.48 There was no general principle that the parties must receive copies of all documents taken into account in the case of other persons.49 There was no right for access to documentation that was irrelevant and bore no relation to the allegations of fact or law in the statement of objections.50 It was for the applicant to show that the result would have been different if incriminating evidence not communicated to the applicant had been relied on by the Commission in reaching its decision,51 although where the document not communicated was exculpatory it was only necessary to show that its non-disclosure was able to influence disadvantageously the Commission decision.52 It was for the CFI to make these determinations in the light of a provisional ­examination of certain evidence to see whether the documents ‘could have had a significance which ought not to have been disregarded’.53 The CFI in performing this task had used an ‘objective link’ criterion: there had to be some objective link between the document not disclosed and the finding against the relevant undertaking. The ECJ upheld this test.54 The application of the access principle to complex litigation of this kind is undoubtedly problematic. There are, as the applicants claimed in argument,55 difficulties in the CFI applying the objective link criterion, since it will not have the same knowledge and understanding of the situation as the Commission. There is also a sense in which the ECJ’s approach limits the force of the right of access to the file, given that the Commission’s failure to respect the right will only lead to annulment if the undertakings can discharge the burden of proof of showing that the documentation to which they were denied access would have made a difference. The ECJ’s approach is nonetheless explicable. It is reluctant to allow what may well be years of Commission 47  Cases C-204–205/00 P Aalborg Portland (n 22) [68]. 48  Case T-410/03 Hoechst GmbH v Commission [2008] ECR II-881, [152]–[153]. 49  Cases C-204–205/00 P Aalborg Portland (n 22) [70]. 50  Ibid [126]. 51  Ibid [73]. 52  Ibid [74]–[75]. 53  Ibid [76], [77], [101]. 54  Ibid [129]. 55  Ibid [115].

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investigation into a complex cartel to be overturned through annulment whenever the undertaking can point to something in the mass of documents that it did not have access to.

(E)  Content: Cross-Examination The EU Courts developed access to the file into an important component of the right to be heard, and this is so even when the right of access is read subject to the limits mentioned earlier. Access to the file does not, however, entail a duty on the Commission to allow an undertaking to call witnesses that the undertaking wishes to give evidence on its behalf.56 Nor does access to the file necessarily entail cross-examination on its content, the two issues being conceptually distinct. Thus in Aalborg Portland the ECJ held that the undertakings had no right to cross-examine a particular witness in relation to documents in the file at the investigative stage of the competition proceedings, since this was a purely administrative procedure.57 Cross-examination may, however, be afforded either directly or indirectly. The ability to cross-examine, or at least the ability to ask questions, may be granted directly by sector-specific legislation. Thus in the context of competition the Regulation provides that the hearing shall be conducted by a hearing officer, who may allow the parties to whom a statement of objections has been addressed, the complainants, other persons invited to the hearing, the Commission, and the Member States to ask questions during the hearing.58 It should be noted that even this provision is framed in discretionary terms: the hearing officer may allow such parties to ask questions. The Union Courts may infer a right to cross-examine from the provisions applicable in a particular area. Thus in de Compte59 the ECJ held that where a Disciplinary Board established under the Staff Regulations was empowered to order an inquiry in which each side could submit its case, and reply to the case put by the other side, this meant that if the Board decided to hear witnesses the official that was charged, or his representative, had to be given the opportunity to be present at the hearing, and to put questions to those witnesses. It was not sufficient merely to give the official a transcript of the hearing plus the ability to submit his views thereon. Access to the file may indirectly serve the same ends to some limited degree. The applicant who gains access to the file will learn the evidentiary basis of the decision reached. Where the applicant believes that there are flaws or errors in the evidence it will use its right to respond to highlight these defects. It will then be for the Commission

56  Cases T-109, 118, 122, 125, 126, 128, 129, 132 and 136/02 Bolloré SA and Others v Commission [2007] ECR II-947, [87]. 57 Ibid [197]–[200]; Cases T-122–124/07 Siemens AG Österreich and others v Commission [2011] ECR II-793, [233]–[234]; Case T-191/06 FMC Foret v Commission [2011] ECR II-2959, [139]. 58  Commission Regulation (EC) 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty [2004] OJ L123/18, Art 14(7). 59  Case 141/84 Henri de Compte v European Parliament [1985] ECR 1951.

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to provide a convincing counter-response, and if it does not do so the Court may conclude that there was a manifest error in the Commission’s reasoning.60

(F)  Content: Separation of Functions The decision-maker will, in reality, often be the Commission. This has prompted claims that the position of the Commission as prosecutor and judge is contrary to Article 6(1) ECHR. The ECJ rejected such arguments, although its reasoning has been terse. In Van Landewyck61 the Commission responded to this argument by stating that it could not be regarded as a tribunal for the purposes of Article 6(1) ECHR, since a criterion for the existence of a tribunal laid down by the European Court of Human Rights was that such a body should be independent of the executive, and given that the Commission was the repository of executive power within the EU it could not therefore be a tribunal for the purposes of Article 6(1). The ECJ appeared to accept this reasoning, but said little. It merely stated that the applicant’s argument was irrelevant, and that while the Commission was subject to procedural obligations it was not a tribunal within the meaning of Article 6(1) ECHR. The ECJ maintained this position in MDF,62 where the applicant argued that the contested competition decision was unlawful because the Commission combined the functions of prosecutor and judge, contrary to Article 6(1) ECHR. The ECJ rejected the argument in peremptory fashion, stating that the Commission was not a ‘tribunal’ within the meaning of Article 6 ECHR, while softening the conclusion by noting that during the administrative procedure before the Commission it was bound to observe the procedural safeguards of EU law. These included the right to a fair hearing, and the opportunity for the undertaking during the administrative procedure to make known its views on the truth and relevance of the facts alleged and on the documents used by the Commission to support its claim that there had been an infringement of the Treaty. The brevity of the ECJ’s reasoning is indicative of the sensitivity of the issue. There is a tendency for courts to dismiss arguments with the briefest of reasons where they feel that they are on shaky ground. The terse dismissal therefore represents, to borrow from Falstaff, ‘discretion being the better part of valour’, the message being say little lest if you say more it can get you into deeper difficulty. The problem with the ECJ’s reasoning is readily apparent when one considers the wording of Article 6(1) ECHR. This mandates that in the determination of civil rights or obligations or any criminal charge, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Commission’s reasoning in Van Landewyck, accepted by the ECJ, in effect put ‘the legal cart before the horse’. It was no answer to say that the Commission was not a tribunal independent of the executive, because Article 6(1) stipulates that where civil 60  Cases C-204–205/00 P Aalborg Portland (n 22) [79]. 61  Cases 209–215 and 218/78 Van Landewyck SARL v Commission [1980] ECR 3125, [79]–[81]. 62  Cases 100–103/80 Musique Diffusion Française (n 22).

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rights and obligations etc are in issue they must be decided by a tribunal that is independent. The ECJ might have avoided this conclusion by finding that application of the competition rules did not entail ‘civil rights or obligations’ for the purposes of Article 6(1). It is, however, doubtful whether this would have been consonant with the broad interpretation of this phrase in the Strasbourg jurisprudence.63 The requirement to prove a breach of a civil right or obligation is not a condition for Article 47 of the Charter of Fundamental Rights,64 although the ECJ has read it as the equivalent in EU law of Article 6 ECHR.65 The ECJ might, more promisingly, have fastened on the Strasbourg jurisprudence that has accepted determinations of civil rights and obligations by administrative authorities that are not independent, provided that there is adequate appeal or judicial review to a tribunal or court that does conform to Article 6(1).66 This was in effect the CFI’s reasoning in Enso Española.67 It reiterated the ‘orthodoxy’ that the Commission could not be regarded as a tribunal for the purposes of Article 6 ECHR. It held, however, that not only was the Commission bound to comply with the procedural guarantees under EU law, but that the CFI exercised full powers of judicial review over the Commission and the CFI was an independent and impartial court for the purposes of Article 6. Advocate General Sharpston also emphasized the curative effect of review by the CFI,68 and this theme was reiterated by the CJEU in the KME case.69 The Union administration and legislature have in any event responded to the concerns voiced by the applicants in the previous cases. Since 1982 the Commission has appointed a hearing officer to preside over the hearing and to ensure that the rights of the defence are properly protected. In 2001, the Commission issued a decision that strengthened the role of the hearing officer in the competition proceedings, and the present version dates from 2011.70 It acknowledged the importance of entrusting the proceedings to an independent person experienced in competition matters. This precept has been included in the regime that came into effect post-2003, with the oral hearings being conducted by an independent hearing officer.71

63  P van Dijk and G van Hoof, Theory and Practice of the European Convention of Human Rights (Kluwer Law International, 3rd edn, 1998) Ch 7, Part 6. 64  Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/17, Art 47. 65  Case C-385/07 P Der Grüne Punkt—Duales System Deutschland GmbH v Commission [2009] ECR I-6155, [177]–[179]; Case C-308/07 P Koldo Gorostiaga Atxalandabaso v European Parliament [2009] ECR I-1059, [41]–[42]. 66  P Craig, ‘The Human Rights Act, Article 6 and Procedural Rights’ [2003] PL 753. 67  Case T-348/94 Enso Española SA v Commission [1998] ECR II-1875, [60]–[65]; Case T-351/03 Schneider Electric SA v Commission [2007] ECR II-2237, [181]–[183]; Cases T-109, 118, 122, 125, 126, 128, 129, 132 and 136/02 Bolloré (n 56) [86]–[87]. 68  Case C-272/09 KME Germany v Commission, EU:C:2011:63, [67]–[70]. 69  Case C-272/09 KME Germany v Commission, EU:C:2011:810, [91]–[107]. 70  2011/695/: Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings [2011] OJ L275/29. 71  Reg 773/2004 (n 58) Art 14.

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While it has therefore been the EU administration and legislature that responded to the specific concerns raised by the applicants in the preceding cases, part of the EU Courts’ motivation for developing access to the file and the duty of diligent ­examination may well have been to foster process rights that would act as a counterweight to the power of the Commission, and more particularly to the combination of investigative, prosecutorial, and adjudicatory powers that it possesses in certain areas.72 This is more especially so, given that the recognition of these process rights for the individual means that the Union Courts can then monitor Commission compliance through judicial review.

(G)  Content: Causation All legal systems have to decide on the consequence of failure to observe process rights. The normal outcome is that the decision will be annulled, but courts may choose to qualify this conclusion, and can employ various juridical tools to do so. Thus, it might be held that failure to comply with a particular process right renders the decision voidable and not void, such that it will only be set aside where the consequences of the breach are especially serious.73 The distinction between mandatory and directory rights is also used, such that breach of the former will necessarily lead to the decision being overturned, whereas annulment will not follow automatically in relation to breach of the latter.74 A different juridical technique is to use causation and inquire whether the failure to accord the process right would have made a difference to the outcome of the case, and decline to annul if this is not proven. The EU Courts use causation with some f­ requency.75 It tends to be employed as a control device where breach of the process right might have far-reaching consequences. Thus causation has been used in cases concerned with access to the file, so as to justify not annulling a decision merely because an undertaking has not been given access to a particular document. There are dangers in the use of causation. The reviewing court may not be wellplaced to determine whether the decision would have been different if the procedural error had not occurred. The causation argument serves, moreover, to emphasize the 72  For recognition of this as a factor in the intensity of substantive review by the CFI of Commission competition decisions, see Judge B Vesterdorf, ‘Certain Reflections on Recent Judgments Reviewing Commission Merger Control Decisions’ in M Hoskins and W Robinson (eds), A True European: Essays for Judge David Edward (Hart, 2004) Ch 10. 73  Professional Air Traffic Controllers Organisation (PATCO) v Federal Labor Relations Authority, 685 F2d 547 (1982). 74  de Smith, Woolf, and Jowell, Judicial Review of Administrative Action (Sweet & Maxwell, 5th edn, 1995) 267–71. 75  See, eg, Case C-142/87 Belgium v Commission (Tubemeuse) [1990] ECR I-959; Case T-7/89 Hercules Chemicals NV v Commission [1991] ECR II-1711; Cases T-30-32/91 Solvay (n 38); Case T-290/97 Mehibas Dordtselaan BV v Commission [2000] ECR II-15; Cases C-204–205/00 P Aalborg Portland (n 22); Case C-383/13 PPU M G and N R (n 7) [40]; Cases C-129–130/13 Kamino International Logistics BV and Datema Hellmann Worldwide Logistics BV v Staatssecretaris van Financiën, EU:C:2014:2041, [80].

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instrumental rationale for process rights at the expense of the non-instrumental rationale. The assumption is that process rights are accorded to ensure the correctness of the substantive outcome, hence if the outcome would have been the same there is no need for annulment, thereby downplaying the importance of the non-instrumental or dignitarian value underlying process. We should, therefore, be cautious about too-ready a resort to causation. Where courts use it the dangers can be alleviated by paying close attention to the specifics of the causation test. It is especially important that the test is not set too high: it should be sufficient for the applicant to show that the process right that was denied might have made some difference to the outcome, and any uncertainties should be resolved in the applicant’s favour.

3  Process and the Duty of Care/Diligent and Impartial Examination (A)  Recognition of the Principle The ECJ developed early in its jurisprudence an obligation that care should be exercised, in particular when discretionary determinations were made in relation to individual cases.76 This jurisprudence was applied especially in the context of competition77 and state aids.78 The principle of care ‘establishes a duty on the administration carefully to examine the relevant factual and legal aspects of the individual case’.79 The case law will be examined here, and its broader implications will be considered later. In Nolle80 the applicant was an independent importer of goods on which an antidumping duty had been imposed and had actively taken part in the investigation leading to the imposition of the duty. The applicant contended that the normal value of the product should have been based on considerations pertaining in Taiwan rather than Sri Lanka. Advocate General Van Gerven stated that the Community institutions should be subject to a principle of care when applying broad discretionary powers to individual cases, and that this required the Commission to give serious consideration to the applicant’s suggestion.81 The ECJ followed the Advocate General’s line of reasoning. It questioned whether the ‘information contained in the documents in the case was considered with all the due care required’,82 and concluded that the applicant had

76  Cases 16–18/59 Geitling, Mausegatt and Prasident v High Authority [1960] ECR 17, 20; Case 14/61 Koninklijke Nederlandsche Hoogovens en Staalfabrieken NV v High Authority [1962] ECR 253; Schwarze (n 27) 1223–38; Nehl (n 34) Chs 8–9. 77  Case 56/65 Société Technique Minière (LTM) v Maschinenbau Ulm GmbH [1966] ECR 235, 248; Cases 56 and 58/64 Consten & Grundig v Commission [1966] 299, 374. 78  Case 120/73 Gebruder Lorenz GmbH v Germany [1973] ECR 1471, 1481. 79  Nehl (n 34) 107. 80  Case 16/90 Nolle v Hauptzollamt Bremen-Freihafen [1991] ECR I-5163. 81  Ibid 5175, AG Van Gerven. 82  Ibid [29].

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produced sufficient facts to raise doubts as to whether the choice of Sri Lanka as a reference country was really appropriate.83 The development of the principle of due care was given further impetus by the decision in Technische Universität München.84 The Technical University of Munich sought to import an electron microscope from Japan. Its application for exemption from customs duties was rejected because apparatus of equivalent scientific value was manufactured in the EU, this decision having been reached after having consulted experts in the area. The Bundesfinanzhof sought a preliminary ruling and made it clear that the ECJ’s deferential approach to the review of discretion involving the exercise of complex ­technical matters did not sit easily with the approach of the German courts.85 The ECJ held that where the Union institutions have a power of appraisal then respect for the rights guaranteed by the EU legal order was especially important. The rights guaranteed included the right of the person to make his views known, the right to have an ­adequately reasoned decision, and the duty of the competent institution to examine carefully and impartially all relevant aspects of the individual case. It was only in this way that the Courts could ‘verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present’.86 The ECJ annulled the contested decision on the ground that there was a breach of the duty of care by the Commission through its reliance on experts who did not possess the requisite t­echnical knowledge in the relevant area.87 Subsequent decisions, such as the British Airways case,88 further stressed the ­proximate connection between the duty to examine carefully and impartially all aspects of the case, and the obligation to give reasons, since the latter is a prerequisite to ensure that the former has been properly complied with.

(B)  Application of the Principle to Competition The principle was developed by the CFI, especially in relation to competition and state aids. In the context of competition, the principle of care operates both with respect to the decision whether to pursue an investigation, and as to the conduct of the investigation if it is pursued. The Commission is under a duty to consider a complaint submitted to it.89 The Commission has limited resources with which to pursue competition violations, the

83  Ibid [30]; Case T-167/94 Nolle v Council [1995] ECR II-2589. 84  Case C-269/90 Hauptzollamt München-Mitte v Technische Universität München [1991] ECR I-5469. 85  J Schwarze, ‘Developing Principles of European Administrative Law’ [1993] PL 229; G Nolte, ‘General Principles of German and European Administrative Law—A Comparison in Historical Perspective’ (1994) 57 MLR 191. 86  Case C-269/90 (n 84) [14]. 87  Ibid [135]; Case T-241/00 Azienda Agricola ‘Le Canne’ Srl v Commission [2002] ECR II-1251, [53]–[54]. 88  Cases T-371 and 394/94 British Airways plc and British Midland Airways Ltd v Commission [1998] ECR II-2405, [95]. 89  Case 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045.

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corollary being that it will pick and choose which infringements are worthy of its attention. It was made clear in Automec90 that the Commission cannot be compelled to conduct an investigation, and that the power to set priorities was an inherent part of the work of administration. The Commission was however obliged ‘to examine carefully the factual and legal aspects of which it is notified by the complainant’,91 in order to decide whether they indicated behaviour likely to distort competition, and the ECJ would verify whether this had been done. Where the Commission decided not to pursue a complaint then it should inform the complainant of its reasons.92 These had to be sufficient to enable the Court to review the lawfulness of the decision and make clear to the parties concerned the circumstances in which the Commission applied the Treaty. Where the Commission decided to conduct an investigation the principle of care applied once again, as was made clear in Asia Motor France II: the Commission must investigate with the degree of care that would enable it to assess the factual and legal considerations submitted by the complainant.93 To similar effect was the statement in Métropole, that while the Commission was not obliged to investigate each complaint lodged with it, it must in the absence of a duly substantiated statement of reasons conduct the investigation with ‘the requisite care, seriousness and diligence so as to be able to assess with full knowledge of the case the factual and legal particulars submitted for its appraisal by the complainants’.94 It is clear, moreover, from cases such as Volkswagen95 that the relevant duty is one of care and impartiality in the conduct of the investigation. The EU Courts have, however, emphasized limits of the requirement to give reasons: the Commission is not obliged to adopt a position on all the arguments relied on by the parties. It is sufficient if it sets out the facts and legal considerations having decisive importance for the decision.96 90  Case T-24/90 Automec Srl v Commission [1992] ECR II-2223; Case T-144/92 Bureau Européen des Médias de l’Industrie Musicale (BEMIM) v Commission [1995] ECR II-147; Case T-37/92 Bureau Européen des Unions Consommateurs and National Consumer Council v Commission [1994] ECR II-285; Cases C-359 and 379/95 P Commission and France v Ladbroke Racing Ltd [1999] ECR I-6265; Case C-449/98 P International Express Carriers Conference (IECC) v Commission, La Poste, UK and the Post Office [2001] ECR I-3875; Case T-432/05 EMC Development AB v European Commission, EU:T:2010:189, [59]–[60]; Case T-427/08 Confédération ­européenne des associations d’horlogers-réparateurs (CEAHR) v Commission, EU:T:2010:517, [157]–[160]; Case T-480/15 Agria Polska sp. z o.o. v European Commission, EU:T:2017:339, [38]; Case T-712/14 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v Commission, EU:T:2017:748, [33], [36]. 91  Case T–24/90 Automec (n 90) [79]. 92  Case T-77/95 RV Union Française de l’Express (Ufex), DHL International, Service CRIE and May Courier v Commission [2000] ECR II-2167, [42]. 93  Case T-7/92 Asia Motor France SA v Commission [1993] ECR II-669, [36]; Case T-154/98 Asia Motor France SA v Commission [2000] ECR II-3453, [53]–[56]; Case T-31/99 ABB Asea Brown Boveri Ltd v Commission [2002] ECR II-1881, [99]; Cases T-191, 212 and 214/98 Atlantic Container Line AB v Commission [2003] ECR II-3275, [404]. 94  Case T-206/99 Métropole Télévision SA v Commission [2001] ECR II-1057, [59]. 95  Case T-62/98 Volkswagen AG v Commission [2000] ECR II-2707, [269]. 96  Case T-7/92 Asia Motor (n 93) [31]; Case T-459/93 Siemens v Commission [1995] ECR II-1675, [31]; Case T-387/94 Asia Motor France SA v Commission [1996] ECR II-961, [104]; Case T-5/97 Industrie des poudres sphériques SA v Commission [2000] ECR II-3755, [199]; Case 187/99 Agrana Zucker und Stärk AG v Commission

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(C)  Application of the Principle to State Aids A two-stage investigative procedure operates in state aids and the EU Courts have used the principle of care to foster procedural justice in this area, as they have done in the context of competition.97 For monitoring of state aids to be effective, it is essential for the Commission to be notified of the existence of any aid proposal. It is for this reason that Article 108 TFEU establishes a two-stage procedure for state aids. Stage one concerns prior notification of any plan to grant aid and preliminary investigation by the Commission.98 The Commission must come to some preliminary view within two months.99 If there are serious difficulties in reaching a decision within this time then the Commission should proceed to the more complete review.100 This is important since other parties are ­entitled to be consulted under the formal investigation, but have no such rights in relation to the preliminary assessment.101 This can be problematic if the Commission finds that an aid is compatible with the internal market under the preliminary assessment, but an interested party disagrees and believes that the more thorough investigation should have been initiated. In William Cook102 the Court held that the procedural guarantees applicable to the more detailed investigation under Article 108(2) TFEU could, in such a situation, only be properly safeguarded if such parties were able to challenge a Commission decision concerning the preliminary investigation before the Court.103 Advocate General Tesauro framed his Opinion against the more general procedural precepts laid down in the Technische Universität München case,104 including the principle of care, although this aspect of the case was less fully developed by the ECJ. The CFI’s judgment in Sytraval105 represented a high point in the application of the principle of care. The applicant sought the annulment of a decision rejecting a complaint about a state aid. The CFI considered in detail the arguments advanced by the applicant in the light of the available evidence and compared this to the Commission’s findings. It held that the Commission was under a duty to give a reasoned answer to  each objection raised in the complaint.106 The CFI held further that when the Commission had obtained the information from its inquiries that it used to decide [2001] ECR II-1587, [84]; Case T-206/99 Métropole (n 94) [44]; Cases T-228 and 233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II-435, [280]. 97  Cases T-309, 317, 329 and 336/04 TV/2 Danmark A/S and Others v Commission [2008] ECR II-2935, [183]; Cases T-227–229, 265, 266 and 270/01 Territorio Histórico de Álava—Diputación Foral de Álava and Comunidad autónoma del País Vasco—Gobierno Vasco and Others v Commission [2009] ECR II-3029, [297]. 98  Art 108(3) TFEU. 99  Case 84/82 Germany v Commission (n 101). 100  Art 108(2) TFEU. 101  Case 120/73 Gebrüder Lorenz GmbH v Germany [1973] ECR 1471; Case 84/82 Germany v Commission [1984] ECR 1451. The Commission must also be notified of any amendment to the aid proposal: Cases 91 and 127/83 Heineken Brouwerijen BV v Inspecteur der Vennootschapsbelasting [1984] ECR 3435. 102  Case C-198/91 William Cook plc v Commission [1993] ECR I-2486; Case C-367/95 P Commission v Sytraval and Brink’s France SARL [1998] ECR I-1719, [40]–[41]. 103  L Hancher, ‘State Aids and Judicial Control in the European Communities’ [1994] ECLRev 134. 104  Case C-269/90 (n 84). 105  Case T-95/94 Sytraval and Brink’s France v Commission [1995] ECR II-2651. 106  Ibid [62].

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whether to proceed to the second, more detailed investigation the Commission came under an ‘automatic obligation to examine the objections which the complainant would certainly have raised if it had been given the opportunity of taking cognizance of that information’.107 Moreover, the Commission’s duty to give reasons for its decision might in certain circumstances require an exchange of views and arguments with the complainant, since the Commission needed to ascertain the complainant’s view of the information gathered by the Commission in the course of its inquiry, this being a corollary of the Commission’s obligation to deal diligently and impartially with the inquiry by eliciting all necessary views.108 The ECJ was far more circumspect when the Sytraval case was appealed.109 It held that the Commission was not under an obligation to conduct an exchange of views with the complainant: such an obligation could not be based on the duty to give r­ easons; the Commission was not obliged to give the complainant an opportunity to state its view during the preliminary inquiry; and the Commission’s duty in relation to the more formal investigation was limited to giving notice to such persons in order that they could submit their comments,110 there being no right to engage in an adversarial debate with the Commission.111 The ECJ also rejected the CFI’s decision insofar as the latter imposed an obligation on the Commission to examine of its own motion objections which the complainant would have raised had it been given the opportunity to take cognizance of the information obtained by the Commission in the course of its preliminary inquiry.112 Notwithstanding this finding, the ECJ concluded that the Commission might be obliged where necessary to extend its investigation of a complaint beyond mere examination of the facts and law brought to its attention by the complainant. The Commission could be required in the interests of sound administration of the rules on state aid to ‘conduct a diligent and impartial examination of the complaint, which may make it necessary for it to examine matters not expressly raised by the complainant’.113

(D)  Development and Limitation of the Principle The CFI did not seek to expand the principle of care or diligent and impartial administration in the way that it had in the Sytraval case. It took heed of the more restrictive reading given to the principle by the ECJ in that case. The CFI accepted that in the context of state aid interested parties other than the Member State responsible cannot claim a right to debate the issues with the Commission, and that this limitation applies even to the recipient of the aid.114 107  Ibid [66]. 108  Ibid [78]. 109  Case C-367/95 P Sytraval (n 102). 110  Ibid [58]–[59]. 111  Cases C-74 and 75/00 Falck SpA and Accialierie di Bolzano SpA v Commission [2002] ECR I-7869, [82]; Case C-290/07 Commission v Scott SA, EU:C:2010:480. 112  Case C-367/95 P Sytraval (n 102) [60]. 113  Ibid [62]. 114  Case T-198/01 Technische Glaswerke Ilmenau GmbH v Commission [2004] ECR II-2717, [192]–[199], upheld on appeal Case C-404/04 P Technische Glaswerke Ilmenau GmbH v Commission [2007] ECR I-1; Case T-68/03 Olympiaki Aeroporia Ypiresies AE v Commission [2007] ECR II-2911, [43]; Case T-62/08 ThyssenKrupp Acciai Speciali Terni SpA v Commission, EU:T:2010:268, [163].

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The CFI, nonetheless, tried to develop the principle in a rather different fashion in the max.mobil case.115 The essence of the applicant’s complaint was that it was adversely affected by an Austrian state measure which enabled Mobilkom, a company to which Austria had granted a monopoly, to abuse its dominant position on the relevant mobile telephony market, in breach of Article 106 TFEU. The Commission accepted part of the applicant’s complaint, but rejected it in part and the applicant sought the annulment of the Commission’s decision in this respect. The CFI conceptualized the p ­ rinciple of diligent and impartial treatment as but part of the broader right to sound administration recognized by the Charter of Rights.116 Since the present action is directed against a measure rejecting a complaint, it must be emphasized at the outset that the diligent and impartial treatment of a complaint is associated with the right to sound administration which is one of the general principles that are observed in a State governed by the rule of law and are common to the constitutional traditions of the Member States. Article 41(1) of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000 confirms that ‘[e]very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union’.

The Commission argued that the duty of diligent and impartial examination recognized by the earlier jurisprudence on competition was dependent on provisions of the Treaty, or secondary legislation, that accorded procedural rights to complainants, and that no such rights were formally granted to them in the context of Article 106 TFEU. The CFI held that the duty was nonetheless applicable. It stated that Article 106 should be read in conjunction with other Treaty articles on competition that granted ­procedural rights to complainants.117 This was reinforced by reliance on the general duty of supervision to which the Commission was subject,118 from which the CFI concluded that the ‘Commission’s general duty of supervision and its corollary, the obligation to undertake a diligent and impartial examination of complaints submitted to it, must apply as a matter of principle, without distinction’119 in the context of all the Treaty articles concerned with competition. Compliance with this duty should, moreover, be amen­ able to judicial review and an individual should be able to obtain an effective remedy as ‘confirmed’ by Article 47 of the Charter of Fundamental Rights.120 The CFI clearly pushed the boundaries of the duty of diligent examination further than hitherto.121 The application of the duty was viewed as a corollary of a more general duty of supervision; it could be implied from the wording of a Treaty article or 115  Case T-54/99 max.mobil Telekommunikation Service GmbH v Commission [2002] ECR II-313; Case T-211/02 Tideland Signal Ltd v Commission [2002] ECR II-3781, [37]; Cases T-228 and 233/99 Westdeutsche Landesbank (n 96) [167]. 116  Case T-54/99 max.mobil (n 115) [48]. 117  Ibid [51]. 118  Ibid [52]. 119  Ibid [53]. 120  Ibid [56]–[57]. 121  The CFI, however, made it clear that the precise manner in which the obligation was discharged could vary depending on the specific area to which the duty was applied and that the procedural rights accorded by the Treaties or secondary legislation were an important factor in this respect, ibid [53]. This was equally clear from the CFI’s approach in Technische Glaswerke to the application of the duty in the context of state aids,

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from the schema of the relevant part of the Treaty; and the duty once established had remedial consequences, providing the foundation for judicial review to vindicate the duty. It is equally clear that the ECJ was unwilling to read the duty as extensively as the CFI. The ECJ122 set aside the CFI’s judgment. It reached this conclusion by focusing more narrowly on the duties on the Commission under Article 106 TFEU. The ECJ acknowledged, in line with earlier authority, that individuals could in certain circumstances seek the annulment of a Commission decision addressed to a Member State under Article 106(3) EC if the conditions for standing under Article 263(4) TFEU were satisfied. It held, however, that the wording and place of Article 106(3) in the schema of the Treaty meant that the Commission was not obliged to bring proceedings against a Member State under that Article. The fact that the applicant had a direct and individual interest in the Commission’s decision by which it refused to act did not confer any right of action on the applicant, and the Commission’s letter by which it informed the applicant that it would not bring proceedings against Austria was in any event not regarded as an act producing legal effects and thus was not challengeable under Article 263. The ECJ stated that its conclusion was not at variance with the principle of sound administration, or any other principle of EU law. There was, said the ECJ, no general principle of EU law that required an undertaking to be given standing to challenge a refusal by the Commission to take action under Article 106(3). The precise impact of the case on the scope and incidence of the duty of diligent and impartial examination is debatable. The ECJ did not call into question any of the previous authority concerning this duty, nor did it directly contradict the CFI’s general statements linking the duty with the right to sound administration and the Charter of Rights. The ECJ’s judgment could therefore be viewed simply as a decision that turned on the interpretation of Article 106(3), combined with an orthodox narrow construction of standing criteria. The ECJ was, however, unwilling to take an expansive view of the duty of diligent examination akin to that of the CFI, and was unwilling to interpret particular Treaty articles against the backdrop of the duty of diligent examination. The ECJ and Advocate General Maduro123 were also disinclined to allow such a duty to circumvent the traditional remedial regime, more especially the limited rules on standing. It is clear in any event that the CFI remained willing to apply the more limited conception of the duty of care in other areas, in order to enhance the accountability of the Union administration. This is apparent from the Pfizer case,124 which involved a challenge to the withdrawal of authorization for an additive used in feeding stuffs for animals. The authorization had been withdrawn because of fears concerning the additive’s effect on resistance to bacteria by humans. The CFI held that the contested Regulation could be justified on the basis of the precautionary principle. It emphasized, however, where it accepted that the limits to the duty were set by the relevant Treaty articles, Case T-198/01 Technische Glaswerke Ilmenau (n 114) [191]–[199]. 122  Case C-141/02 P Commission v T-Mobile Austria GmbH [2005] ECR I-1283, [68]–[75]. 123  Ibid [56]–[57], AG Maduro. 124  Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305, [170]–[172].

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that procedural guarantees were important, including the duty of the competent institution to examine carefully and impartially all aspects of the individual case. It followed, said the CFI, that ‘a scientific risk assessment carried out as thoroughly as possible on the basis of scientific advice founded on the principles of excellence, transparency and independence is an important procedural guarantee whose purpose is to ensure the scientific objectivity of the measures adopted and preclude arbitrary measures’.125 This is evident yet again in the decision of the GC in Zoofachhandel Züpke.126 The GC held that where an EU institution has a wide discretion, review of administrative procedures was of fundamental importance, which included an obligation on the decision-making institution ‘to examine carefully and impartially all the relevant elements of the individual case and the obligation to give an adequate statement of the reasons for its decision’.127 This was particularly important, given that review on the merits was limited to proof of manifest error.128 The ECJ has also been willing to apply the duty of diligent and impartial ­examination to other areas, in order to enhance accountability. Thus, the principle has been applied in the context of review of anti-dumping duties.129 It has also been applied to harmon­ ization measures as exemplified by Netherlands v Commission,130 where the ECJ held that the duty applied to the Commission when deciding on Article 114(5) TFEU, which allows a Member State where necessary to introduce new national provisions concerning the environment, notwithstanding the passage of an EU harmonization measure pursuant to Article 114, in order to cope with problems particular to that Member State. The ECJ was influenced in this respect by the fact that the Member State had no right to be heard under Article 114(5).

4  Process and Reasons Process rights within the EU owe their origin to Treaty articles, Union legislation, and the jurisprudence of the EU Courts. The precise blend varies with the process right in question. A prime example of an important process right that was encapsulated in the original Treaty is the duty to provide reasons, which was originally found in Article 190 EEC and is now Article 296 TFEU. Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties

There are a number of policy rationales for the duty to provide reasons. From the perspective of affected parties, it makes the decision-making process more transparent, so 125  Ibid [172]. See also, Cases T-309, 317, 329 and 336/04 TV/2 Danmark (n 97) [183]; Case T-215/15 Azarov v Council, EU:T:2017:479, [137]. 126  Case T-817/14 Zoofachhandel Züpke GmbH v European Commission, EU:T:2016:157. 127  Ibid [107]. 128  Ibid [107]. 129  Case T-413/03 Shandong Reipu Biochemicals Co Ltd v Council [2006] ECR II-2243. 130  Case C-405/07 P Netherlands v Commission [2008] ECR I-8301, [55]–[57].

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that they can know why a measure has been adopted. From the perspective of the decision-maker, an obligation to give reasons helps to ensure that the rationale for the action has been thought through, since having to explain the reasons for a decision is always a salutary exercise. From the perspective of the CJEU, the existence of reasons facilitates judicial review, by, for example, enabling the Court to determine whether a decision was disproportionate. These policy arguments are reflected in the oft-repeated judicial statements that ­reasons inform the addressee of the decision of the factual and legal grounds on which it is based, thereby enabling the person to decide whether to seek judicial review, and facilitate the exercise of that review by the EU Courts. Thus, as the ECJ stated early in its jurisprudence,131 In imposing upon the Commission the obligation to state reasons for its decisions, Article 190 is not taking mere formal considerations into account but seeks to give an opportunity to the parties defending their rights, to the court of exercising its supervisory functions and to Member States and to all interested nationals of ascertaining the circumstances in which the Commission has applied the Treaty.

The scope of Article 296 TFEU is broad and applies to all legal acts, legislative, delegated, and implementing. This is noteworthy. The duty to give reasons varies in national law, but in most countries it is narrower than Article 296, which imposes a duty to give reasons not only for administrative decisions, but also for legislative acts. Many national legal systems do not impose an obligation to furnish reasons for legislative norms, or do so only in limited circumstances. The most common general formulation of the scope of the duty to give reasons can be taken from the Sytraval case.132 [I]t is settled case that the statement of reasons required by Article 190133 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its powers of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into

131  Case 24/62 Germany v Commission [1963] ECR 63, 69; Case T-7/92 Asia Motor France (n 93) [30]; Case T-387/94 Asia Motor France (n 96), [103]; Case 187/99 Agrana Zucker (n 96) [83]; Case T-241/00 Azienda Agricola (n 87) [54]; Case T-206/99 Métropole (n 94) [44]. 132  Case C-367/95 P Sytraval (n 102) [63]; Cases 296 and 318/82 Netherlands and Leeuwarder Papierwaren­ fabriek v Commission [1985] ECR 809, [19]; Case C-316/97 P European Parliament v Gaspari [1998] ECR I-7597, [26]; Case C-301/96 Germany v Commission [2003] ECR I-9919, [87]; Case C-76/00 P Petrotub SA and Republica SA v Council [2003] ECR I-79, [81]; Case C-89/08 P Commission v Ireland (n 5) [77]; Case C-280/08 Deutsche Telekom AG v European Commission [2010] ECR I-9555, [131]; Case T-24/05 Alliance One International, Inc v Commission, EU:T:2010:453, [149]; Case T-463/14 Österreichische Post AG v European Commission, EU:T:2016:243, [20]; Case T-796/14 Philip Morris Ltd v European Commission, EU:T:2016:483, [29]. 133  Now Art 296 TFEU.

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all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

The obligation to give reasons will normally require specification of the Treaty article on which the measure was based; the factual background to the measure; and the purposes behind it. This is exemplified by the Tariff Preferences case,134 where the ECJ annulled a Council measure in part because the legal basis of the measure had not been specified. In Germany v Commission135 the Court held that it was sufficient to set out in a concise, clear, and relevant manner the principal issues of law and fact upon which the action was based, such that the reasoning which led the Commission to its decision could be understood. Where a decision established a new principle, or applied it in a novel fashion, there would have to be sufficient reasons in the decision itself,136 but on some occasions the Court will sanction the incorporation of reasons from another instrument.137 The content of the duty will be affected by the scope of Article 296, applying as it does both to general legislative norms, and to individualized decisions. The degree of specificity will, therefore, depend upon the nature of the contested measure. In Beus138 the ECJ recognized that the requirement to state the reasons on which a measure was based would depend on its nature. In the case of a regulation it might suffice for the preamble to indicate the situation that led to its adoption, and the objectives it was intended to achieve. It was not necessary for the regulation to set out the factual basis of the measure, which was often complex, nor was it necessary for the relevant measure to provide a complete evaluation of those facts. Where a measure was of a general ­legislative nature it was necessary for the EU authority to show the reasoning which led to its adoption, but it was not necessary for it to go into every point of fact and law. Where the essential objective of the measure had been clearly disclosed there was no need for a specific statement of the reasons for each of the technical choices that had been made.139 The political reality is, nonetheless, that preambles to EU legislative acts have become longer over time, and provide reasons for all principal aspects of the measure. The Court may well demand greater particularity where the measure challenged is of an individual, rather than legislative nature. Thus, in Germany v Commission140 Germany produced an alcoholic drink called Brenwein, which was made from wine much of which was imported from outside the EU. The establishment of the common external tariff resulted in significant cost increases, and therefore the German government asked the Commission for permission to import 450,000 hectolitres of this wine at the old, lower rate of duty. The Commission acceded to this request in principle, but only 134  Case 45/86 Commission v Council [1987] ECR 1493. 135  Case 24/62 (n 131). 136  See, eg, Case 73/74 Papiers Peints de Belgique v Commission [1975] ECR 1491. 137  Case 16/65 Schwarze [1965] ECR 877. 138  Case 5/67 Beus [1968] ECR 83, 95; Case C-205/94 Binder GmbH v Hauptzollamt Stuttgart-West [1996] ECR I-2871. 139  Case C-122/94 Commission v Council [1996] ECR I-881, [29]; Case C-84/94 UK v Council [1996] ECR I-5755, [74], [79]. 140  Case 24/62 Commission v Germany (n 131); Case T-5/93 Tremblay v Commission [1995] ECR II-185.

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for 100,000 hectolitres. The Commission justified this decision on the grounds that there was ample wine production in the EU, and that the grant of the requested quota would lead to serious disturbances on the relevant product market. The ECJ found the Commission’s reasoning to be insufficiently specific concerning the size of any EU surplus, and that it was unclear why there would be serious disturbances in the market. The context in which individual decisions are taken will be important in determining the extent of the duty to give reasons. Thus, as we have seen in relation to competition, the EU Courts have held that in stating the reasons for its decisions the Commission is not obliged to adopt a position on all the arguments relied on by the parties. It is sufficient if it sets out the facts and legal considerations having decisive importance for the decision.141

5  Process and the Charter of Fundamental Rights We have, in the preceding discussion, touched on the right to good administration contained in Article 41 of the Charter of Fundamental Rights.142 Article 41 is directed towards the EU institutions, and thus is not in itself binding on Member States. It is, however, reflective of a general principle of EU law, which is binding on Member States when they act in the scope of EU law.143 It is important to reflect further on its significance for the development of process rights within EU law.144 Article 41 states that: 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. 2. This right includes: – the right of every person to be heard, before any measure which could affect him or her adversely is taken; – the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; – the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

141  See n 96. 142  [2000] OJ C364/1; [2010] OJ C83/389. 143  See, eg, Case C-604/12 HN v Minister for Justice, Equality and Law Reform, EU:C:2014:302, [49]–[50]; Case C-46/16 Valsts ieņēmumu dienests v ‘LS Customs Services’, SIA, EU:C:2017:839, [39]. 144  K Kanska, ‘Towards Administrative Human Rights in the EU. Impact of the Charter of Fundamental Rights’ (2004) 10 ELJ 296; A Ward, ‘Access to Justice’ in S Peers and A Ward (eds), The EU Charter of Fundamental Rights: Politics, Law and Policy (Hart, 2004) Ch 5; M Lais, ‘Das Recht auf eine gute Verwaltung unter besonderer Berücksichtigung der Rechtsprechung des Europäischen Gerichtshofs’ [2002] ZEuS S 448–82; M Bullinger, ‘Das Recht auf eine gute Verwaltung nach der Grundrechtscharta der EU’ in Festschrift für Winfried Brohm (C H Beck, 2002) S 25–33; P Craig, ‘Article 41’ in S Peers, T Hervey, J Kenner, and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Hart, 2014).

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The Charter was made binding by the Lisbon Treaty and has the same legal value as the Treaties (Article 6 TEU). The very fact that the right to good administration is contained in the Charter of Rights is significant. It emphasizes its importance as one component of citizens’ rights within a democratic polity, and reinforces the legitimacy of judicial imposition of procedural obligations on the Union administration. The right to good administration can function as an interpretive device, such that ambiguity in Treaty articles or EU legislation will be resolved in favour of the interpretation that best accords with the right. Non-compliance with the right to good administration can also serve as the ground for annulment. In most instances Article 41 will be regarded as confirming a principle already developed by the EU,145 which is not surprising given that the Charter was drafted as being declaratory of EU law. Article 41(1) is an ‘umbrella principle’, with some of the detailed facets spelled out through Article 41(2). The particular matters listed in Article 41(2) are not exhaustive and it is open to the EU Courts to reason from the general principle of Article 41(1) and develop more detailed aspects of process rights not mentioned in Article 41(2). Article 41 of the Charter should, moreover, be read in conjunction with the European Ombudsman’s Code of Good Administrative Behaviour.146 The Code is designed to elaborate the more specific administrative obligations that should flow from the right to good administration. These include non-discrimination, proportionality, objectivity, impartiality and independence, legitimate expectations, the right to be heard, the provision of reasons, and fairness. The principal responsibility for the detailed elaboration of process rights remains with the EU Courts, but the judiciary will be influenced in their interpretation by the wording of Article 41. They have considerable room for manoeuvre in deciding how broadly to interpret Article 41. The judiciary may use the generalized formulation in Article 41(1) as part of the justification for extending a particular process right. This is exemplified by the reasoning in max.mobil,147 where the CFI used Article 41(1) to help justify application of the principle of care, and this was so notwithstanding the fact that the principle is not specifically listed in Article 41(2), the CFI fastening on the concepts of impartiality and fairness within Article 41(1). Another Charter provision relevant for process is Article 47, which is concerned with the right to an effective remedy and to a fair trial. It provides, Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

145  Case T-19/07 Systran SA and Systran Luxembourg SA v European Commission, EU:T:2010:526, [79]; Case T-461/07 Visa Europe Ltd and Visa International Service v European Commission, EU:T:2011:181, [231]; Case C-166/13 Mukarubega v Préfet de police and Préfet de la Seine-Saint-Denis, EU:C:2014:2336, [43]; Case T-138/14 Randa Chart v European External Action Service, EU:T:2015:981, [111]–[113]. 146  European Ombudsman, The European Code of Good Administrative Behaviour (2015), https://www. ombudsman.europa.eu/resources/code.faces#/page/1. 147  Case T-54/99 max.mobil (n 115); Case T-211/02 Tideland Signal (n 115).

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Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

The explanatory memorandum148 stated that the first paragraph was based in part on Article 13 ECHR, and in part on the case law of the EU Courts. The second paragraph is based on Article 6 ECHR, but is drawn more broadly because it does not require the existence of a civil right or obligation before the right to a fair hearing is triggered. This broadening of Article 6 is to be welcomed given the difficulties that have beset the interpretation and application of the phrase ‘civil rights and obligations’.149 The third paragraph is drawn from the case law of the Strasbourg Court.

6  Process and Sector-Specific Legislation The discussion thus far has been concerned with particular process rights, such as the right to be heard, the right to reasons, and the like. It is, however, important to consider process rights from a rather different perspective, which is that of sector-specific legislation. This helps us to understand how the particular rights fit together in a specific context and the interrelationship between process rights as developed by the EU Courts and legislature. It also reveals the interaction between process rights accorded to the individual and procedural rights and powers given to the administration, thereby serving as a counterweight to the asymmetry that characterizes much thought about process. We tend automatically to conceptualize process in terms of rights given to the individual and this is reflected in the nomenclature, ‘the rights of the defence’. This is indeed the paradigmatic application of process rights. The classic process rights given to the individual quite properly have a higher status than the procedural rights and powers of the administration. The individual’s process rights are not dependent on positive grant by the EU legislature, and Union legislation will be read so as to conform to these fundamental procedural rights. The procedural powers and rights of the administration are almost always the product of EU legislation and they must be compatible with the Treaty and other fundamental rights, including the process rights of the individual. This can be acknowledged. It should not, however, prevent us from recognizing the importance of procedural rights and powers possessed by the administration, together with the consequential obligations that may be placed on individuals or Member States when EU policy is administered. EU legislation is often the ideal vehicle for the working 148  Charte 4473/00, Convent 49, 11 October 2000, 40–1; CONV 828/03, Updated Explanations Relating to the Text of the Charter of Fundamental Rights, 9 July 2003, 41–2; Explanations Relating to the Charter (n 64) 29–30. 149  Craig (n 66).

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out of these detailed rights. This can be exemplified by the legislation dealing with competition and state aids.

(A) Competition There were, until the new millennium, two foundations to the enforcement of EU competition law: agreements had, subject to certain exceptions, to be notified to the Commission, and the Commission had a monopoly over the application of Article 101(3) TFEU. The system was, in this sense, a centralized one, but there were, nonetheless, decentralized aspects. Articles 101 and 102 TFEU had direct effect. National courts could, therefore, apply Article 101(1), but could not grant an individual exemption under Article 101(3). The traditional approach came under increasing strain. The Commission did not have the resources to deal with all the agreements notified to it within a reasonable time, nor did it have the resources to adjudicate on anything but a handful of individual exemptions. The Commission therefore encouraged national courts to apply Articles 101 and 102. However, in the White Paper on Modernization150 it proposed a thorough overhaul of the enforcement regime. The present approach is based on more radical ­decentralization. Notification is abolished, as is the Commission’s monopoly over Article 101(3) TFEU. National courts and national competition authorities (NCAs) are empowered to apply Article 101 in its entirety, and the Commission concentrates its resources on novel problems, or egregious breaches of competition rules. The new regime was put in place through a Regulation in 2003.151 (i)  Individual Process Rights The classic elements of individual process rights are included in the new regulatory regime, as they were in the old.152 Reasons must be provided before the Commission undertakes an inspection.153 There is a right to a hearing for the undertakings concerned before the Commission takes a decision and the Commission must base its decision 150  White Paper on Modernization of the Rules Implementing Articles 85 and 86 of the EC Treaty, Commission Programme 99/27, 28 April 1999. There is a voluminous literature on the White Paper, see, eg, R Wesseling, ‘The Commission White Paper on Modernisation of EC Antitrust Law: Unspoken Consequences and Incomplete Treatment of Alternative Options’ [1999] ECLR 420; C-D Ehlermann, ‘The Modernization of EC Antitrust Policy: A Legal and Cultural Revolution’ (2000) 37 CMLRev 537; A Schaub, ‘Modernisation of  EC Competition Law: Reform of Regulation No 17’ in B Hawk (ed), Fordham Corporate Law Institute (Juris, 2000) Ch 10; I Forrester, ‘Modernisation of EC Competition Law’, ibid Ch 12; R Whish, and B Sufrin, ‘Community Competition Law: Notification and Exemption—Goodbye to All That’ in D Hayton (ed), Law’s Future(s): British Legal Developments in the 21st Century (Hart, 2000) Ch 8; D Gerber, ‘Modernising European Competition Law: A Developmental Perspective’ [2001] ECLR 122. 151  Council Regulation 1/2003/EC of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1; Report on the functioning of Regulation 1/2003, COM(2009) 206 final. 152  Case C-407/04 P Dalmine SpA v Commission [2007] ECR I-829; Case C-411/04 P Salzgitter Mannesmann GmbH v Commission [2007] ECR I-959. 153  Case T-340/04 France Télécom SA v Commission [2007] ECR II-573.

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only on objections on which the parties have been able to comment.154 The statement of objections must be notified to each of the parties and the Commission must set a time limit within which the parties may inform it in writing of their views.155 It is then open to the parties in their written submissions to set out all facts known to them which are relevant to their defence and to submit relevant documentation.156 The Commission must give parties to whom it has addressed a statement of objections the opportunity to develop their arguments at an oral hearing if they so request in their written submissions.157 Complainants must be closely associated with the proceedings. If the Commission or NCAs consider it necessary, they may also hear other natural and legal persons. Applications to be heard by such persons shall be granted where they show sufficient interest.158 The Commission may, where appropriate, invite such persons to develop their arguments at the oral hearing of the parties to whom the statement of objections has been addressed, and the Commission may, moreover, invite any other person to express its views in writing and attend the oral hearing and may invite them to express their views at the oral hearing.159 If a national court assists the Commission in an investigation then the national rules will be tested for conformity with the relevant general principles of EU law.160 The rights of defence of the parties concerned must be fully respected in the proceedings.161 They are entitled to access to the file, subject to the legitimate interest of undertakings in the protection of their business secrets.162 The right of access to the file does not extend to confidential information and internal documents of the Commission or NCAs. These provisions accord with the jurisprudence of the EU Courts.163 The Commission decision must contain reasons for the conclusion reached.164 There must be opportunity to challenge the Commission decision imposing fines within a reasonable period.165 The discussion thus far has been primarily concerned with the process rights of those undertakings alleged to have infringed the competition rules, although we have seen that other parties may take part to varying degrees in the decision-making process. The procedural rights of the complainant have been addressed more fully through a Regulation and a Commission Notice. The Commission made it clear that a complainant has a number of options:166 an action can be pursued in the national courts; a formal complaint can be lodged with the Commission; or the person may simply provide market information indicating 154  Reg 1/2003 (n 151) Art 27(1). 155  Reg 773/2004 (n 58) Art 10(1)–(2). 156  Ibid Art 10(3). 157  Ibid Art 12. 158  Reg 1/2003 (n 151) Art 27(3). 159  Reg 773/2004 (n 58) Art 13. 160 Case C-94/00 Roquette Frères SA v Directeur général de la concurrence and Commission [2002] ECR I-9011. 161  Reg 1/2003 (n 151) Art 27(2). 162  Reg 773/2004 (n 58) Arts 15–16; Commission Notice, On the Rules for Access (n 37). 163  See above, 354–8. 164  Cases T-374, 375, 384 and 388/94 European Night Services v Commission [1998] ECR II-3141. 165  Cases C-403 and 405/04 P Sumitomo Metal Industries Ltd v Commission [2007] ECR I-729. 166  Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty [2004] OJ C101/05, [3]–[4].

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competition infringements that can be logged on a Commission website. There are various process rights for persons with a legitimate interest167 who seek to lodge a formal complaint with the Commission pursuant to Article 7(2) of Regulation 1/2003. The Commission Notice unsurprisingly supports existing orthodoxy that the Commission does not have an obligation to take up all such complaints, given the ­limited nature of its resources and the relative importance of a complaint for the EU interest.168 The Commission, however, fully acknowledges the obligation derived from the case law169 that it must consider carefully the factual and legal issues brought to its attention by the complainant.170 The Commission will therefore carefully examine the complaint and may collect further information and have an informal exchange of views with the complainant. If it decides not to pursue the complaint it will give reasons to the complainant and allow comment thereon.171 Where the Commission decides to take the matter forward the complainant is provided with a copy of the non-confidential version of the statement of objections. The complainant is allowed to comment in writing and may be afforded the opportunity to express views at the oral hearing.172 The Commission has, however, emphasized pre-existing orthodoxy that proceedings of the Commission in competition cases are not adversarial as between the complainant and the companies under investigation, and hence ‘the procedural rights of the complainants are less far-reaching than the right to a fair hearing of the companies which are the subject of an infringement procedure’.173 (ii)  Procedural Rights and Powers Accorded to the Commission The regulatory regime also exemplifies the significance of procedural rights and ­powers accorded to the administration. The rationale underlying these rights and powers is not surprisingly instrumental, enabling the substantive goals of EU competition policy to be attained. It is axiomatic that the Commission must know of the competition infringement in order to take appropriate action. The Commission is empowered to request information from undertakings, competent authorities of Member States, and governments,174 and there are penalties for non-compliance.175 The Commission has power to inspect. The officials authorized by the Commission to conduct an inspection are empowered to enter any premises of the concerned undertakings. This includes the homes of directors, managers, and other staff members, insofar as it suspects that business records are located there. The officials can examine company books and business records, and take copies of, or extracts from, the documents. They can seal any premises or business records during the inspection. They can

167  Ibid [33]–[40]. 168  Ibid [41]–[45]. 169  See nn 90–95. 170  Commission Notice (n 166) [42], [53]. 171  Ibid [56]; Reg 773/2004 (n 58) Art 7(1). 172  Reg 773/2004 (n 58) Art 6. 173  Commission Notice (n 166) [59]; Case C-441/07 P Commission v Alrosa Co Ltd [2010] ECR I-5949. 174  Reg 1/2003 (n 151) Art 18. 175  Ibid Arts 18(3), 23.

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ask any staff member questions relating to the subject matter of the inspection.176 Inspections can be either voluntary or mandatory. Voluntary inspections require the Commission officials to produce a written authorization, which specifies the subject matter and purpose of the investigation, and also the possible penalties.177 Mandatory inspections are based on a decision ordering the investigation. The decision must state the subject matter and purpose of the investigation, the susceptibility to penalties, and the right to have the decision reviewed by the CJEU.178 The ­authorities of the Member State must afford the necessary assistance to the Commission in the event that the firm in question proves intractable. This can include police assistance.179 There are in addition significant procedural powers and obligations that flow from the fact that Regulation 1/2003 introduced a system of parallel competence by ­empowering NCAs and national courts to apply Articles 101 and 102 TFEU in their entirety.180 This is exemplified by the power granted to the Commission and NCAs to provide one another with any matter of fact or law, including confidential information, which can then be used in evidence,181 and the provisions facilitating assistance in investigations by NCAs in different Member States, coupled with the power given to the Commission to use a particular NCA in effect as its agent for the carrying out of inspections.182

(B)  State Aids The preceding discussion showed that state aids generated a significant body of case law dealing with procedure. This should now be read within the more general context of the legislative scheme established for the administration of this policy. The principal Regulation dates from 2015,183 the Preamble of which states that the purpose of the Regulation is to codify Commission practice that developed in the light of the jurisprudence from the EU Courts and thereby enhance transparency and legal certainty in relation to the procedures applied in relation to state aids.184 We have seen from the earlier discussion that Article 108 TFEU established a two-stage procedure for state aids: stage one is preliminary investigation by the Commission; stage two is the more complete review that applies if there are serious difficulties in reaching a preliminary decision within two months.

176  Ibid Arts 20–21. 177  Ibid Art 20(3). 178  Ibid Art 20(4). 179  Ibid Art 20(6). 180  Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC [2004] OJ C101/54; Commission Notice on cooperation within the Network of Competition Authorities [2004] OJ C101/43; Joint Statement of the Council and the Commission on the Functioning of the Network of Competition Authorities, available at http://ec.europa.eu/ competition/ecn/joint_statement_en.pdf. 181  Reg 1/2003 (n 151) Art 12. 182  Ibid Art 22. 183  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union [2015] OJ L248/9. 184  Ibid recs (1) and (2).

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The Regulation establishes a number of process rights for the benefit of the Member State and other interested parties. These relate to the initiation of the state aid rules, their application, and knowledge of the outcome. The process rights reflect the jurisprudence of the EU Courts and develop it in more specific detail. Thus it is open to any interested party to inform the Commission of any alleged unlawful aid or misuse of aid.185 The Commission must inform the party where it believes that there is insufficient material on which it can form a view, and when it takes a decision on the case concerning the subject matter of the information it must send a copy of the decision to the interested party. There are notice requirements for the formal investigative procedure.186 The decision to initiate this procedure must summarize the relevant issues of fact and law and include a preliminary assessment by the Commission as to why the Member State’s action constitutes aid and the Commission’s doubts as to its compatibility with the common market. The Member State and other interested parties are allowed to submit comments within a prescribed period, normally not longer than one month. The Member State granting the contested aid is allowed to see the comments and given the opportunity to respond to them.187 An interested party that has submitted comments and the beneficiary of the aid are sent a copy of the Commission’s decision where the Commission decides to close the formal procedure, and any interested party is entitled to a copy of other decisions made pursuant to the Regulation when it requests one.188 (ii)  Procedural Rights and Powers Accorded to the Commission It would be mistaken to think of the Regulation solely from the perspective of process rights for the individual. It also accords significant process rights to the Commission, which lead to obligations for the Member State or private parties. The rights granted to the Commission serve instrumental goals, by facilitating attainment of the substantive ends of state aid policy. They operate in differing ways in relation to the initiation of the state aid investigations, the way in which aid is used, and the uncovering of unlawful aid. Thus the Commission has the right to request information where it believes that the information provided by the Member State is incomplete, with the consequence that the Commission cannot properly undertake its preliminary review.189 The Member State’s duty to provide the information is given added teeth by stipulating in effect that if the information requested is not provided notification of the aid will be deemed withdrawn,190 leading to the strong likelihood that the aid will be illegal. Process rights and obligations during the currency of a state aid scheme are mainly directed towards ensuring that aid is used for its authorized purpose. Member States are obliged to submit annual reports on all aid schemes,191 and the Commission is

185  Ibid Art 24(2). 189  Ibid Art 5(1).

186  Ibid Art 6(1). 190  Ibid Art 5(3).

187  Ibid Art 6(2). 191  Ibid Art 26.

188  Ibid Art 24(3).

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empowered to monitor on site, including in this respect entering premises, examining records, and asking oral questions on the spot.192 Process rights play an equally important role in discovering unlawful aid. Where the Commission has information from whatever source indicative of unlawful aid, it shall if necessary request information from the Member State concerned which it is obliged to provide.193

7  Process, Care, Reasons, and Dialogue The discussion thus far has been concerned with process rights provided by EU law. It is clear, as stated at the outset, that an applicant might have the benefit of all such rights, but that this might not be so if, for example, the person does not satisfy the criteria for a hearing. It is for this very reason that the process rights must be ­considered separately. It is, however, perfectly consistent with this precept to recognize that the process rights can interrelate. The discussion within this section will deal with an important facet of this interrelationship, that between transparency, the duty of diligent and impartial examination, and the provision of reasons. Shapiro has explained the nature of the relationship and the tensions that can be engendered in this regard.194 The basic reason that the parties push and the ECJ resists dialogue lies in the difference between transparency and participation. Courts are likely to be initially hostile to demands for dialogue. Such requests are the last resort of regulated parties who have no substantive arguments left. Moreover, if dialogue claims are judicially accepted, they lead to a more and more cumbersome administrative process because the regulated parties will be encouraged to raise more and more arguments to which the agency will have to respond. If the only instrumental value for giving reasons is transparency, the courts will resist dialogue demands. One can discover an agency’s actions and purposes without the agency rebutting every opposing argument. . . . If the ECJ sticks closely to transparency as the sole goal of Article 190, the ECJ is unlikely to move towards a dialogue requirement. Yet participation in government by interests affected by government decisions presents an increasingly compelling value in c­ ontemporary society, particularly where environmental matters are involved. The ECJ has already, however unintentionally, opened one avenue for linking participation to Article 190 by stating that the Council need not give full reasons to the Member States where they have participated in the decisions. To be sure, these ECJ opinions are transparency-based. They require that those Member States already know what was going on because they were there. Nevertheless they create an opening for counter-arguments from complainants who were not present and claim that, therefore, they need the Commission to be responsive. In short, full

192  Ibid Art 27. 193  Ibid Art 12. 194  M Shapiro, ‘The Giving Reasons Requirement’ (1992) U Chic Legal Forum 179, 203–4. References to Art 190 EC should now be read as referring to Art 296 TFEU.

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t­ ransparency can only be achieved through participation or through dialogue as a form of participation.

The key issue is therefore the extent to which the jurisprudence on process rights ­considered earlier might be moving, directly or indirectly, towards a dialogue between the individual and the decision-maker, requiring the latter to respond to  arguments advanced by the former. This is a theme developed interestingly by Nehl in his study of administrative procedure in EU law, who, at the time of writing, perceived movement in this direction.195 There is, however, less evidence for this proposition now. This is in part because the case law has taken a step back from the tentative moves in this direction. The ECJ’s initial approach was cautious. In the Sigarettenindustrie case196 the Court held that, although what was Article 253 EC required the Commission to state its reasons, it was not required to discuss all issues of fact and law raised by every party during the administrative proceedings. It therefore dismissed the claim that the Commission had ignored the applicants’ arguments, none of which had featured in the decision. We have seen that ‘dents’ appeared in this orthodoxy, especially in the CFI’s case law and it was moreover the CFI that was at the front line in hearing direct actions brought by individuals seeking judicial review. The high point of this case law was the CFI’s decision in Sytraval,197 which if it had been upheld by the ECJ and if it had been extended to other areas of EU law, would have established a dialogue requirement. The reality is that neither happened. The ECJ reined in the CFI, and rejected the more far-reaching aspects of dialogue that the latter had advanced, even in the context of state aids. This was confirmed by later judgments that stressed that the process was not one of dialogic or adversarial debate.198 The ECJ emphasized that the Courts would not allow it to be turned into a broad dialogic process through an expansive reading of the duty of diligent administration. Nor would they allow this to occur through expansive interpretation of the duty to give reasons. Thus, as we have seen in relation to competition, the EU Courts have held that in stating the reasons for its decisions the Commission is not obliged to adopt a position on all the arguments relied on by the parties. It is sufficient if it sets out the facts and legal considerations having decisive importance in the context of the decision.199 If there is a countervailing tendency it is an indirect by-product of the jurisprudence on access to the file, which places the individual in a better position to know the arguments that should be advanced at the hearing, thereby leading to some obligation on the Commission to respond. 195  Nehl (n 34) 155–65. 196  Cases 240–242, 261–262 and 268–269/82 Stichting Sigarettenindustrie v Commission [1985] ECR 3831, [88]; Case 42/84 Remia BV and Nutricia BV v Commission [1985] ECR 2545. 197  Case T-95/94 Sytraval (n 105). 198  Cases C-74 and 75/00 Falck (n 111); Case T-198/01 Technische Glaswerke Ilmenau (n 114). 199  See cases cited at n 96.

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There is, however, another reason for being cautious about the extent to which the EU Courts might be willing to foster a dialogue requirement. This concerns the distinction between rulemaking and individualized determinations. The idea of dialogue in the US is primarily a feature of rulemaking. It emerged in part at least as a by-product of the notice and comment provisions of the Administrative Procedure Act 1946, with the courts requiring the agency to respond to important comments made by the parties before finalizing the draft rule.200 It is important not to lose sight of the fact that insofar as the EU Courts have moved towards dialogue, the case law has, by way of contrast, been exclusively concerned with individualized discretionary d ­ eterminations. It is, moreover, not fortuitous that the cases in which the EU Courts have been tempted to move furthest in this direction have been concerned with especially problematic decisions of this nature. Thus, it is questionable whether the CFI in Sytraval201 ever intended its reasoning to apply outside the specific circumstances of state aids, with its two-stage procedure and the disadvantages that could ensue for the individual if a complaint was dismissed at the preliminary stage at which the complainant could not participate. There is a strong vein running through the CFI’s judgment that seeks to develop the duty of diligent administration as a way of meeting this particular problem, and the ECJ curbed the more far-reaching aspects of this reasoning. The apposite point for present purposes is that neither the ECJ nor the CFI showed any inclination to develop a dialogue requirement in relation to rulemaking. To the contrary, as we have seen in the previous chapter,202 they have drawn a sharp distinction between rulemaking and individualized determinations, and have been very reluctant to develop process rights in relation to rulemaking, even in the form of bare consultation or participation, let alone in an extended form so as to foster dialogue.

8  Process and Substantive Review It is clear not only that process rights can interrelate, but also that there is an interrelationship between procedural and substantive review. It is fitting to touch on this here, since it is a theme that will be explored again in the chapters that deal with substantive review. The interconnection between procedural and substantive review can operate on a number of levels, two of which are especially significant.

(A)  Process Rights Facilitating Substantive Review It is readily acknowledged that process rights can facilitate substantive review. This is exemplified by the application of the duty of careful examination in Pfizer, where the 200  A Aman and W Mayton, Administrative Law (West Group, 2nd edn, 2001) Ch 2; M Shapiro, ‘APA: Past, Present and Future’ (1986) 72 Va L Rev 447. 201  Case T-95/94 Sytraval (n 105). 202  See above, 316–18.

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procedural duty served to justify the requirement of scientific advice with the aim of ensuring that the resultant regulation was not substantively arbitrary.203 The connection between process and substance is apparent once again in relation to reasons. Thus the rationale for the obligation to give reasons is in part that it will enable the Courts to determine whether the administration acted for improper purposes when reaching its decision. The EU Courts have emphasized that the reasons given must be sufficient to enable them to exercise their judicial review function, and they have scrutinized the Commission’s reasoning, annulling the decision if it did not withstand examination.204 There is in this sense a proximate connection between expansion of the duty to give reasons and closer judicial scrutiny of the administration’s reasoning process in order to discover a substantive error. This is neatly exemplified by Artegodan205 where the CFI held that it could review not only the relevant Commission determination, but also the opinion of the scientific committee on which the Commission’s determination was based.206 It could in this regard consider the reasons given by the committee, whether there was an understandable link between the medical evidence on which it relied and its conclusions and whether the committee had adequately explained its rejection of scientific evidence that was contrary to its own view.207 The nature of this connection must, nonetheless, be delineated with care. It is perfectly possible in principle for the Courts to demand more by way of reasons, but still to engage in low-intensity review on the substantive challenge, requiring some manifest error before annulling the decision. The reality is, however, that expansion of the process rights will at the least encourage the Courts to engage in more intensive substantive review, because they have more to work with and therefore feel more confident about asserting judicial control. It is common, as will be seen in later chapters, for courts to retain their original criterion of substantive review, such as manifest error, but to apply it more exactingly.

(B)  Process Rights as a Means to Consider the Substance of the Case The expansion of procedural review may alternatively encourage the Courts to set aside the contested decision on procedural grounds, in circumstances where the process rights have enabled the Court to have a look at the substance of the case. Nehl brings this out clearly in relation to the Court’s use of access to the file.208 Thus, if the administration did not accord full rights of access to the file, the CFI or ECJ could, as we have seen, consider whether the document was relevant for the individual’s case and whether its disclosure might have made a difference to the decision reached. This will 203  Case T-13/99 Pfizer (n 124) [171]–[172]. 204  See, eg, Case T-44/90 La Cinq SA v Commission [1992] ECR II-1; Case T-7/92 Asia Motor (n 93); Nehl (n 34) 142–6. 205  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan GmbH v Commission [2002] ECR II-4945. 206  Ibid [199]. 207  Ibid [199]–[200]. 208  Nehl (n 34) 53–4.

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require the Court to consider the Commission’s reasoning process in relation to the merits of the case.209 If the Court has doubts about the substantive reasoning, it may then choose to uphold the applicant’s procedural claim that it was denied proper access to the file.

9  A Code of Administrative Procedure The prospects of a more general code dealing with issues relating to administrative law were considered in an earlier chapter.210 The discussion in this section will be concerned with a code of administrative procedure.211 A properly drafted code can, as identified by Ziller and Mir, serve four main purposes. It can enhance the clarity of, and facilitate access, to the law; increase the coherence of principles and procedures; set up default procedures to fill gaps in existing law; and establish the functions of administrative procedure.212 There were doubts as to whether the EU has competence to adopt a general code. Competence to adopt sector-specific codes is based on the Treaty article governing the relevant substantive area. It was arguable that a code could be based on Article 352 TFEU, but the Commission President seemed to doubt the existence of such competence. The Lisbon Treaty introduced a new provision, Article 298 TFEU, which states that in carrying out their missions, the institutions, bodies, offices, and agencies of the Union shall have the support of an open, efficient, and independent European administration, and that legislative regulations can be enacted to attain this objective. It is contestable as to whether a general code that covered the Member States as well as the EU could be enacted pursuant to this Treaty Article.213 However, the 2016 proposal for a Regulation emanating from the European Parliament is confined to EU institutions and is based on Article 298.214 In 2013, the Committee on Legal Affairs of the European Parliament passed a resolution in favour of a law that would apply to all EU institutions, agencies, offices, and bodies in relation to direct administration and individual administrative 209  See, eg, Cases C-204–205/00 P Aalborg Portland (n 22). 210  See above, 276–9. 211  The European Ombudsman has a Code of Good Administration, The European Code of Good Administrative Behaviour (2015), https://www.ombudsman.europa.eu/resources/code.faces#/page/1. 212 J Ziller, ‘Is a Law of Administrative Procedure for the Union Institutions Necessary? Introductory Remarks and Prospects’, European Parliament, DG for Internal Policies, 2010; O Mir-Puigpelat, ‘Arguments in Favour of a General Codification of the Procedure Applicable to EU Administration’, European Parliament, DG for Internal Policies, 2011; http://www.reneual.eu/. 213  P Craig, ‘A General Law on Administrative Procedure, Legislative Competence and Judicial Competence’ (2013) 19 EPL 503; O Mir, ‘Die Kodifikation des Verwaltungsverfahrensrechts im Europäischen Verwaltungsverbund’ in J-P Schneider and F Velasco Cabrera (eds), Strukturen des Europäischen Verwaltungsverbunds (Duncker and Humblot, 2009) 206–9. 214 http://www.emeeting.europarl.europa.eu/committees/agenda/201601/JURI/JURI(2016)0111_1/ sitt-1388826.

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decisions,215 and this was affirmed by resolution of the European Parliament.216 The proposed EU law would establish default principles of administrative procedure where no sector-specific rule existed, but such sectoral rules should not provide less protection than the general procedural law. The proposal was for a set of principles such as legality, proportionality, non-discrimination, legitimate expectations, and the like to be set out at a relatively high level of generality, with more detailed specification of the process rights that should be applicable in terms of hearings, access to the file, reason giving, rights of the defence, and the like. The proposals advanced by ReNEUAL, a research network on EU administrative law, 217 were focused on process, but were more far-reaching. They went live online on 1 September 2014 and are contained in six ‘books’. Book 1 contains an introduction to the project and deals with general definitional issues that affect the scope of the rules. The subsequent books deal with procedures relating to rulemaking, single-case decisionmaking, contracts, mutual assistance between national administrations, and information management. The overall package of rules is regarded in methodological terms as ‘innovative codification’.218 This captures the idea that a new law can take over principles found in current laws, modify existing principles where this is felt to be desirable, and add new principles or rules where necessary. This should be seen in contrast to the more rigid ‘codification à droit constant’, where the objective is to p ­ roduce a consolidated version of existing legislation. The Legal Affairs Committee of the European Parliament returned to the issue in 2016, with a formal proposal for a Regulation based on Article 298 TFEU that was confined to administrative procedure in the context of individual decisions, made by EU institutions. It does not, therefore, cover procedures in relation to legislation, or the making of delegated or implementing acts, nor does it cover procedures of Member States when they act in the sphere of EU law.219 The recitals duly noted that ‘in a Union under the rule of law it is necessary to ensure that procedural rights and obligations are always adequately defined, developed and complied with’.220 The European Parliament noted, as had the ReNEUAL study, that the existing rules and principles on good administration were ‘scattered across a wide variety of sources: primary law, secondary law, case-law of the Court of Justice of the European Union, soft law and unilateral commitments by the Union’s institutions’,221 and that this rendered it difficult for citizens to understand their rights.222 The proposed Regulation is a 215  Committee on Legal Affairs, Draft Report with Recommendations to the Commission on a Law on Administrative Procedure of the European Union, 2012/2024, 21 June 2012, Rapporteur Luigi Berlinguer. 216  European Parliament Resolution of 15 January 2013 with recommendations to the Commission for a Law on Administrative Procedure, 2012/2024 INI, P7-TAPROV(2013)0004. 217  ReNEUAL is a network of over 100 scholars, academics, and practitioners interested in the field of European administrative and regulatory law, http://www.reneual.eu/. 218  ReNEUAL, Book I, [17], http://www.reneual.eu/. 219 Proposal for a Regulation of the European Parliament and of the Council on the Administrative Procedure of the European Union’s institutions, bodies, offices and agencies, http://www.emeeting.europarl. europa.eu/committees/agenda/201601/JURI/JURI(2016)0111_1/sitt-1388826, rec 15, Draft Art 2(2). 220  Ibid rec 2. 221  Ibid rec 3. 222  Ibid rec 5.

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default instrument: sector-specific regulations can make provision for procedures in a particular area, but such regulation should be interpreted in the light of the general Regulation, and the latter would provide rules that were not covered by sector-specific regulations, assuming that there was no inconsistency in this respect.223 The proposed Regulation, which draws, inter alia, on ReNEUAL Book 4, makes provision for the initiation of the procedure, management of the procedure, and conclusion of the procedure. There are, in addition, provisions dealing with rectification or withdrawal of administrative acts, information as to administrative acts, and administrative acts that are of general scope. The idea of some general code of administrative procedure is to be welcomed.224 We  should resist the temptation to regard EU rules of administrative procedure as merely technical issues. This is quite wrong. They embody and reflect constitutional values, which are intrinsically important, and can have a marked impact on outcomes.225 This is reflected in the European Parliament’s proposed Regulation, and was the very starting point of the ReNEUAL project, which was to determine how EU constitutional values broadly conceived could be translated into administrative procedure.226 The model rules on administrative procedure can enhance legal certainty, reduce the costs of designing procedural principles for different sectoral areas, and lower litigation costs where they flow from uncertainty as to the nature of the requisite procedural obligations. The current rules on EU administrative law are the result of an admixture of case law combined with sector-specific legislation, with the result that there is often significant fragmentation as between sectors. This is to be lauded if it is the result of considered thought as to the procedural requisites tailored for particular areas. While this is sometimes so, the reality in many instances is that it is the fortuitous result of what hard-pressed legislative drafters from a particular Commission DG chose to include in the legislative proposal, with the result being complexity as to the applicable rules and principles. Most EU lawyers, even specialists in this area, would be hard-pressed to articulate in detail the applicable rules on a range of issues that are central to single-case decisionmaking. These include the procedural norms that regulate the way in which applications should be made; the duties of the administration when in receipt of an application; the way in which complaints should be made; the duties of the administration when managing an administrative procedure; the administration’s powers of investigation and inspection; the rules that govern who can be a party to a hearing; the nature of the hearing that must be afforded; and the due process rules that pertain respectively to the EU and national administration when both play a central role in the final decision. The well-trained EU lawyer will, given sufficient time, be able to work out the answers to at least some of these issues. But that of course does not suffice to show that 223  Ibid rec 16, Draft Art 2(3). 224  P Craig, UK, EU and Global Administrative Law: Foundations and Challenges (Cambridge University Press, 2015) Ch 4. 225  D Curtin, H Hofmann, and J Mendes, ‘Constitutionalising EU Executive Rule-Making Procedures: A Research Agenda’ (2013) 19 ELJ 1. 226  ReNEUAL, Book I, [1], [12], [14], [20].

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the current system is adequate in the preceding sense, more especially if the EU lawyer is charging for his or her services, and the ‘meter’ is running while the research is being undertaken. We should not rest content with a system in which lawyers have to fathom out the answers to such basic issues afresh each time, even if, or perhaps more especially if, they are academics, or practitioners working pro bono. Nor should we rest content with a system in which hard-pressed administrators and draft legislators have to patch together a package of procedural rules, even assuming that they draw on what are perceived to be relevant rules from analogous areas. It is regrettable that the proposed legislative initiative is confined to single-case decision-making, given the strong normative arguments for increased process rights in relation to matters such as rulemaking. It is also regrettable that the proposed initiative does not cover Member States when they act in the sphere of EU law, more especially given the prevalence of shared administration in the delivery of EU policy. The proposed legislative initiative is, nonetheless, a good move in the right direction.

10 Conclusion The law on process has developed significantly since the inception of the EEC. It has been a development to which all the major players have contributed. The framers included certain process rights in the original EEC Treaty such as the duty to give ­reasons, and have added more since then. The EU legislature has made a significant contribution both in terms of sector-specific legislation, and through more generally applicable provisions concerning matters such as access to documentation. The CFI and the ECJ were at the forefront of this development, drawing on principles from common law and civil law systems alike and fashioning them to the needs of the EU. The European Ombudsman227 has contributed by formulating a code of good administrative behaviour. The different players have, moreover, worked symbiotically in developing the law on process. The paradigm may well be the articulation of principles by the CFI/GC and ECJ/CJEU, which are then taken up and developed in more detail through sectorspecific regulations or directives. There are, however, also instances in which the legislature has gone further than demanded by the EU Courts, and aspects of procedure where the Courts have been reticent in the absence of more specific imprimatur expressed through Treaty amendment or EU regulation. It should cause little surprise that the content of the process rights can be controversial. It is axiomatic that process rights are premised on certain underlying substantive values, and that people may well disagree as to the weight or blend of values that inform a particular process right. It is part of the function of academic discourse to reveal these values and engage in reasoned debate about them.

227  See n 146.

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13 Transparency 1 Introduction Transparency is an important principle in all democratic polities. The discussion begins by considering the different values served by transparency. The focus then shifts to the status of transparency in the pre-Lisbon world and the way in which the concept was accorded greater prominence in the last decade of the previous millennium. This is followed by consideration of the various ways in which transparency is protected in the Lisbon Treaty. The analysis then turns to examination of an important facet of transparency concerned with access to documents.

2  Values Served by Transparency Transparency is rightly regarded as central to a democratic polity.1 Access to the relevant documentation is crucial for understanding the reasons behind governmental action. It facilitates construction of a reasoned argument by those opposed to a measure. Access to documentation is, moreover, of the essence of democracy. Government should be accountable for its action, and this is difficult if it has a ‘monopoly’ over the available information. Individual citizens should be able to know the information held about them in order to check its correctness and the uses to which it is put. It is hoped furthermore that public disclosure of information will improve decision-making. There is an additional value served by transparency in the context of the EU. Transparency serves not only to foster the preceding values as between citizen and the EU, but also functions as a valuable method of ensuring that Member States adhere to their EU obligations. Thus it is common to find obligations placed on Member States 1  P Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal (Butterworths, 3rd edn, 2001); P Birkinshaw, Government and Information: The Law Relating to Access, Disclosure and Their Regulation (Tottel, 3rd edn, 2005); D Curtin and J Mendes, ‘Transparence et participation: des principes démocratiques pour l’administration de l’union européenne’ (2011) 137–8 Revue Française d’Administration Publique 101; D Curtin, ‘Judging EU Secrecy’, ACELG 2012-07; A Buijze, ‘The Six Faces of Transparency’ (2013) 9 Utrecht Law Review 3.

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to be transparent about, for example, their regulatory choices in order to facilitate ­evaluation of whether those choices comply with EU law.2 The notion of transparency encompasses a number of different features, such as the holding of meetings in public, the provision of information, and the right of access to documents. The latter right is the most developed in legal terms in the EU. Transparency is, therefore, connected with process more broadly than in relation to litigation, since it operates as an important safeguard for democracy and can foster critical evaluation of the decision-making process. While transparency is significant for ‘process writ large’ it can also be relevant for ‘process writ small’. Transparency viewed in terms of access to documents can provide information that will then form the basis for a legal challenge to an EU measure.

3  Transparency Pre-Lisbon Transparency is a value that became of increased importance post the Maastricht Treaty.3 The early years of the EEC were weak in terms of democracy, accountability, and accessibility to public scrutiny. Meetings of the Council were secretive and minutes were not published. The Commission was perceived as a distant and remote bureaucracy, and the Community processes as labyrinthine and opaque, populated by a bewildering number of committees. There was a greater focus on transparency in the 1990s, not least as a result of the near failure to have the Maastricht Treaty ratified in Denmark and France. This was particularly apparent during the Intergovernmental Conference (IGC) preceding the Amsterdam Treaty, where there was much discussion of the need to improve the openness and transparency of the Union, in order to make it more accessible to the public.4 Moreover, a number of Member States, such as the Netherlands, Denmark, and Sweden, increasingly objected to the secrecy surrounding the Council of Ministers, and were dissatisfied with the steps which the Council had taken.5

2  See, eg, Decision 2004/2241/EC of the European Parliament and of the Council of 15 December 2004 on a single Community framework for the transparency of qualifications (Europass) [2004] OJ L390/6; S Weatherill, ‘New Strategies for Managing the EC’s Internal Market’ (2000) 53 CLP 595, 608–17. 3  S Peers, ‘From Maastricht to Laeken: The Political Agenda of Openness and Transparency in the EU’ in V Deckmyn (ed), Increasing Transparency in the European Union (Maastricht EIPA, 2002); A Tomkins, ‘Transparency and the Emergence of a European Administrative Law’ (1999–2000) 19 YBEL 217. 4  J Lodge, ‘Transparency and Democratic Legitimacy’ (1994) 32 JCMS 343; G de Búrca, ‘The Quest for Legitimacy in the European Union’ (1996) 59 MLR 359. 5  D Curtin, ‘Betwixt and Between: Democracy and Transparency in the Governance of the European Union’ in J Winter et al (eds), Reforming the Treaty on European Union: The Legal Debate (Kluwer, 1996) 95; D Curtin, ‘Citizens’ Fundamental Right of Access to EU Information: An Evolving Digital Passepartout?’ (2000) 37 CMLRev 7; M Zbigniew Hillebrandt, D Curtin, and A Meijer, ‘Transparency in the EU Council of Ministers: An Institutional Analysis’ (2014) 20 ELJ 1.

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The Council and Commission adopted a joint Code of Conduct in 1993,6 which was implemented into their respective rules of procedure by decision.7 The 1993 Interinstitutional Declaration on Democracy, Transparency and Subsidiarity provided further impetus for reform, since it expressed at the highest possible level the EU’s commitment towards greater transparency.8 The Treaty of Amsterdam enshrined access to documents as a Treaty right. Article 1 EU, as amended by the Treaty of Amsterdam, stated that decisions should be taken as openly and as closely as possible to the citizen, and Article 255(1) EC enshrined a right of access to documents held by the European Parliament, Council, and Commission.9 Article 255(2) stipulated that the general principles concerning such access and the limits thereto should be determined by the Council, acting in accord with Article 251 EC, within two years of the entry into force of the Treaty of Amsterdam. Article 255(3) instructed each institution to adopt Rules of Procedure regarding access to documents. The legislation required by Article 255 EC was adopted in the form of a Regulation in 2001,10 following a number of earlier more specific decisions. The European Council agreed an overall policy on transparency in June 2006.11 All Council deliberations on legislative acts to be adopted by co-decision were, in ­principle, to be open to the public, as were the votes and explanations of votes by Council members. So too were the initial deliberations on legislative acts, other than those adopted by co-decision presented orally by the Commission, with the possibility of subsequent deliberations also being open to the public. The debate on the Commission’s annual work programme was also open to the public. The Commission launched a European Transparency Initiative in 2005.12 It brought together a range of issues dealing with transparency including:13 access to documents; separate registers relating to Comitology, experts, and interest representatives; civil society; and consultation. There is a Code of Conduct for those who seek to influence EU policy and decision-making process.14 There is also a transparency register that reveals what interests are being pursued, by whom, and with what budgets. The system is operated jointly by the European Parliament and the European Commission.15

6  Code of Conduct concerning access to Council and Commission documents [1993] OJ L340/41. 7  Council Decision 93/731/EC of 20 December 1993 on public access to Council documents [1993] OJ L340/43; Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents [1994] OJ L46/58; M Westlake, The Council of the European Union (Cartermill, 1995) 144–62. 8  M Westlake, The Commission and the Parliament: Partners and Rivals in the European Policy-Making Process (Butterworths, 1994) 159–61. 9  Art 255 EC was held to lack direct effect in Case T-191/99 Petrie v Commission [2001] ECR II-3677. 10  Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001, Regarding Public Access to European Parliament, Council and Commission Documents [2001] OJ L145/43. 11  Brussels European Council, 15–16 June 2006, Annex 1. 12 https://ec.europa.eu/info/about-european-commission/service-standards-and-principles/transparency_en. 13 https://ec.europa.eu/info/about-european-commission/service-standards-and-principles/transparency_en. 14 http://ec.europa.eu/transparencyregister/public/staticPage/displayStaticPage.do?locale=en&reference= CODE_OF_CONDUCT. 15 http://ec.europa.eu/transparencyregister/public/homePage.do.

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4  Transparency Post-Lisbon The Lisbon Treaty makes provision for transparency in a number of ways. The relevant provisions are found in the TEU and the TFEU. First, transparency features as a general objective of the EU. Article 1 TEU states that the Lisbon Treaty ‘marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen’. This is reiterated in Article 10(3) TEU, which provides that every citizen has the right to participate in the democratic life of the Union, and that decisions shall be taken as openly and as closely as possible to the citizen. Secondly, the Lisbon Treaty links transparency, dialogue, and consultation. Article 11(2) TEU states that the EU institutions shall maintain an open, transparent, and regular dialogue with representative associations and civil society. This is reinforced by Article 15(1) TFEU, which states that in order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices, and agencies shall conduct their work as openly as possible. Article 11(3) TEU requires the Commission to carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. Thirdly, transparency features in the legislative process. Thus, Article 16(8) TEU imposes an obligation on the Council to meet in public when it deliberates and votes on a draft legislative act. Article 15(2) TFEU renders the European Parliament subject to the same duty. Fourthly, the Lisbon Treaty retains the linkage between transparency and access to documents. Article 15(3) TFEU provides that: 3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph. The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks. The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulations referred to in the second subparagraph.

Fifthly, transparency is relevant for the Member States. Thus, for example, Treaty a­ rticles on free movement carry an obligation of equal treatment and this has been held to

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generate an obligation of transparency,16 and EU legislation frequently imposes an obligation of transparency on EU institutions and/or Member States. Sixthly, the more general picture concerning transparency from an institutional perspective is more mixed. The EU made a number of initiatives that enhanced transparency. The Commission adopted decisions in 201417 which meant that information on more than 11,000 bilateral meetings of Commissioners, Cabinet Members, and DirectorsGeneral with interest representatives has been made publicly available on the Europa website. In May 2016, the Commission adopted new rules on expert groups, reinforcing the transparency requirements and introducing synergies with the Transparency Register.18 The Council has become more transparent over time, although the pace of change in this respect slowed considerably after 2006.19 There are, however, concerns as to transparency in relation to the more general EU legislative process, in particular flowing from the institutionalization and generalization of the process of trilogues.20

5  Transparency and Access to Documents (A) Foundations Access to documents is an important aspect of transparency. The Community enacted a Regulation pursuant to Article 255 EC, the predecessor to Article 15(3) TFEU, in 2001,21 following a number of earlier more specific decisions. Regulation 1049/2001 improved the position on access to documents in several respects, by for example ­softening some of the exceptions and requiring a register of documents to be kept.22 The new legislation was implemented by the three EU institutions into their own rules of procedure,23 and has been applied to EU agencies.24 The right of 16  Case C-260/04 Commission v Italy [2007] ECR I-7083; Case C-203/08 Sporting Exchange Ltd v Minister van Justitie [2010] ECR I-4695; Case T-402/06 Spain v Commission EU:T:2013:445. 17  Commission Decision of 25 November 2014 on the publication of information on meetings held between Directors-General of the Commission and organisations or self-employed individuals (C(2014) 9048), and Commission Decision of 25 November 2014 on the publication of information on meetings held between Members of the Commission and organisations or self-employed individuals (C(2014) 9051). 18  Commission Decision C(2016) 3301 of 30 May 2016 establishing horizontal rules on the creation and operation of Commission expert groups. 19  Hillebrandt, Curtin, and Meijer (n 5). 20  D Curtin and P Leino, ‘In Search of Transparency for EU Law-Making: Trilogues on the Cusp of Dawn’ (2017) 54 CMLRev 1673. 21  Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission Documents [2001] OJ L145/43. 22  S Peers, ‘The New Regulation on Access to Documents: A Critical Analysis’ (2002) 21 YBEL 385; M Broberg, ‘Access to Documents: A General Principle of Community Law’ (2002) 27 ELRev 194; M de Leeuw, ‘The Regulation on Public Access to European Parliament, Council and Commission Documents in the European Union: Are Citizens Better Off?’ (2003) 28 ELRev 324. 23  Council Decision 2002/682/EC, Euratom of 22 July 2002 adopting the Council’s Rules of Procedure [2002] OJ L230/7; Commission Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure [2001] OJ L345/94. 24  K Lenaerts, ‘“In the Union We Trust”: Trust Enhancing Principles of Community Law’ (2004) 41 CMLRev 317, 321.

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access to ­documents is also enshrined in Article 42 of the Charter of Fundamental Rights.25 The European Ombudsman has been central to the development of openness and transparency as broader principles of law.26 He undertook an own-initiative inquiry into public access to documents addressed to fifteen Community institutions other than the Council and Commission.27 The Ombudsman concluded that failure to adopt rules governing public access to documents and to make those rules easily available to the public constituted maladministration. The consequence was that most other important EU bodies including the Court of Auditors, European Central Bank (ECB), and agencies adopted rules governing access to documents. The Ombudsman has, moreover, provided guidance on access to information via the Code of Good Administrative Behaviour.28

(B)  Initial Case Law The ECJ and CFI were generally supportive of transparency even before the Treaty of Amsterdam reforms, but they refrained from far-reaching statements of principle that would enshrine a general right of transparency or access to information. The CFI stressed in Carvel29 that when the Council exercised its discretion whether to release documents it must genuinely balance the interests of citizens in gaining access to ­documents, with the need to maintain confidentiality of its deliberations. It could not simply adopt a general blanket denial of access to a class of documents. In Netherlands v Council30 the Dutch government argued that the principle of openness of the legislative process was an essential requirement of democracy, and that the right of access to information was an internationally recognized fundamental human right. The ECJ confirmed the importance of the right of public access to information, and its relationship to the democratic nature of the institutions, but rejected the argument that such a fundamental right should not be dealt with purely as a matter of the Council’s internal Rules of Procedure. In Hautala, the ECJ upheld the CFI’s decision to annul the Council’s refusal to consider granting partial access to politically sensitive documents, but the ECJ declared that it was not necessary for it to pronounce on whether or not EC law recognized a general ‘principle of the right to information’.31 Nonetheless, despite the failure to articulate a general principle of transparency or a general right of access to information, the Courts played a significant role in elaborating

25  [2000] OJ C364/19. 26  I Harden, ‘The European Ombudsman’s Efforts to Increase Openness in the Union’ in V Deckmyn (ed), Increasing Transparency in the European Union (European Institute of Public Administration, 2002) 123. 27  616/PUBAC/F/IJH, [1998] OJ C44/9. 28  European Ombudsman, European Code of Good Administrative Behaviour, available at http://www. ombudsman.europa.eu/en/resources/code.faces. 29  Case T-194/94 Carvel and Guardian Newspapers Ltd v Council [1995] ECR II-2765; Case T-105/95 WWF UK (World Wide Fund for Nature) v Commission [1997] ECR II-313. 30  Case C-58/94 Netherlands v Council [1996] ECR I-2169, [31]–[36]. 31  Case C-353/99 P Hautala v Council [2001] ECR I-9565, [31].

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the content of the right of access to information contained in the procedural rules and legislative decisions of the institutions. Thus the CFI and the ECJ annulled a number of decisions of the Council and Commission refusing access to their documents, not on the ground that the institutions had breached a ‘general principle of transparency’, but on other grounds such as the automatic application of non-mandatory exceptions, the inappropriate use of the authorship rule, the refusal to consider partial access, or the inadequacy of the reasons given for refusal.32

(C)  Regulation 1049/2001 The present regime for access to documentation is governed by Regulation 1049/2001.33 It is, therefore, important to focus more closely on this Regulation and its i­nterpretation by the EU Courts. Any regime of access to information will contain provisions defining the institutions covered, the meaning of the term document, the beneficiaries of the scheme, and the exceptions that limit access. Regulation 1049/2001 follows this general pattern. Judicial interpretation of this Regulation has been ‘mixed’, with some good decisions, and others that are more contestable. This can be exemplified by focusing on key issues that have arisen in the Courts’ jurisprudence. (i)  Protecting the Reality of Access The Union Courts have been willing to protect the reality of access. This is evident from Hautala34 where the ECJ held that the right of access to documents included access to information contained in the document, not just the document itself. The ECJ held further that proportionality required the Council to consider partial access to a document that contained information the disclosure of which could endanger ­international relations and that derogation from the right of access should be limited to what was appropriate and necessary for achieving the aim in view. The aim pursued by the 32  See, eg, Case T-105/95 WWF (n 29); Case T-188/97 Rothmans International v Commission [1999] ECR II-2463; Case T-174/95 Svenska Journalistforbundet v Council [1998] ECR II-2289; Case C-353/99 P Kuijer v Council [2000] ECR II-1959; Case T-211/00 Kuijer v Council [2002] ECR II-485. 33  On the Implementation of the Principles in EC Regulation 1049/2001 Regarding Public Access to European Parliament, Council and Commission Documents, COM(2004) 45 final; L Cotino, ‘Theory and Reality of Public Access to EU Information’ in D Curtin, A Kellermann, and S Blockmans (eds), The EU Constitution: The Best Way Forward? (Kluwer, 2005) 233–44; J Heliskoski and P Leino, ‘Darkness at the Break of Noon: The Case Law on Regulation No 1049/2001 on Access to Documents’ (2006) 43 CMLRev 735; C Harlow, ‘Transparency in the European Union: Weighing the Public and Private Interest’ in J Wouters, L Verhey, and P Kiiver (eds), European Constitutionalism beyond Lisbon (Intersentia, 2009) 209–38; Curtin and Mendes (n 1). 34  Case C-353/99 P Hautala (n 31). See also Case C-41/00 P Interporc Im- und Export GmbH v Commission [2003] ECR I-2125, [42]–[44]; Case C-353/01 P Mattila v Commission [2004] ECR I-1073, [30]–[32]; Cases T-355 and 446/04 Co-Frutta Soc coop v European Commission [2010] ECR II-1, [124]; Case T-300/10 Internationaler Hilfsfonds eV v European Commission, EU:T:2012:247, [90]–[91]; Case T-380/08 Netherlands v Commission, EU:T:2013:480, [92]; Case T-301/10 Sophie in ’t Veld v European Commission, EU:T:2013:135, [107], [200]; Case C-127/13 P Strack v Commission, EU:C:2014:2250, [24]–[31]; Case T-534/11 Schenker AG v  European Commission, EU:T:2014:854, [111]–[115]; Case T-245/11 ClientEarth and the International Chemical Secretariat v European Chemicals Agency (ECHA), EU:T:2015:675, [229]; Case T-677/13 Axa Versicherung AG v European Commission, EU:T:2015:473, [115].

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Council in refusing access to the contested report could be achieved if the Council removed, after examination, the passages that might harm international relations. The CFI adopted the same approach in Verein für Konsumenteninformation,35 notwithstanding the volume of documentation involved. The applicant, VKI, was an Austrian consumer organization with legal capacity under Austrian law to bring actions on behalf of consumers where they had assigned rights to VKI. VKI sought access to documents held by the Commission concerning a cartel found to exist in the banking sector, in order to enable it to pursue legal actions in Austria for customers that might have been charged excessive rates of interest. The file was large and the Commission denied VKI’s request in its entirety, stating that the documents were ­covered by exceptions to the Regulation governing access, and that partial access was not possible since a detailed examination of each document would entail an excessive amount of work. The CFI held that the Regulation required the Commission in ­principle to carry out a concrete individual assessment of the content of the documents contained in the request, except where it was manifestly clear that access should be refused or granted. The refusal to undertake any concrete assessment was, therefore, in principle manifestly disproportionate.36 There could, said the CFI, be cases where, because of the number of documents requested, the Commission must retain the right to balance the interest in public access against the burden of work in order to safeguard the interests of good administration. This possibility was, however, only applicable in exceptional cases. The right of access, coupled with concrete individual examination, was the norm.37 The CFI acknowledged that the relevant file was large, but nonetheless annulled the Commission’s decision.38 (ii)  Interpretation of the Exceptions The effectiveness of any regime for access to information will be crucially affected by the exceptions contained in the legislation and the way in which they are interpreted by the courts. The exceptions in Regulation 1049/2001 are listed in Article 4. They vary in nature. Most are qualified by provisions allowing access even if the document relates to a protected interest where there is an overriding public interest in disclosure.39 There are, however, some exceptions that are mandatory, in the sense that access is prohibited where disclosure would undermine the relevant interest with no provision allowing access on grounds of public interest.40 We should be mindful of the difficulties that applicants can face when seeking to defeat an exception to access to documents. The applicant is required to proffer 35  Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121. See also, Case T-111/11 ClientEarth v European Commission, EU:T:2013:482, [65]–[68]; Case T-214/13 Rainer Typke v European Commission, EU:T:2015:448, [51]. 36  Ibid [100]. 37  Ibid [101]–[115]. 38  The obligation to assess each document will not, however, apply where it is clear that access to the file via Reg 1049/2001 conflicts with the policy underlying a different regulation, Case C-139/07 P European Commission v Technische Glaswerke Ilmenau GmbH [2010] ECR I-5885, [61]–[63]. 39  Reg 1049/2001 (n 10) Art 4(2)–(3). 40  Ibid Art 4(1).

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convincing reasons why the public interest necessitates overriding the exception in circumstances where the information that might sustain this argument is contained in documents that are protected and hence unseen.41 This is an endemic problem where freedom of information legislation contains qualified exceptions of the kind in issue here. The problem should nonetheless not be forgotten, since otherwise the hurdle faced by an applicant in proving an overriding public interest will prove too high. There are a number of juridical techniques open to courts when construing such exceptions. They can review the facts to determine whether the institution properly invoked the exception; they can decide on the legal meaning of an exception; and they can pass judgment on whether the public interest warrants disclosure. The EU Courts state repeatedly that exceptions to the right of access to documents should be interpreted narrowly. They have, moreover, emphasized the following general precepts when interpreting exceptions to access to documents.42 The mere fact that a case falls within an exception does not, per se, justify refusal of access to d ­ ocuments. It is incumbent on the Commission to explain how disclosure of that document could specifically and actually compromise the interest protected by the exception on which it relies; and the likelihood of that interest being compromised must be reasonably foreseeable and not purely hypothetical. However, it is possible for the institution concerned to base its decisions on general presumptions, which apply to certain categories of documents, as considerations of a generally similar nature are likely to apply to requests for disclosure relating to documents of the same nature. If an institution relies on an exception in Article 4, it must weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages stemming from increased openness, which enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. If an institution has refused access to a document, it must state reasons from which it is possible to understand whether the document requested does fall within the sphere covered by the exception relied on, and whether the need for protection relating to that exception is genuine.43 There have, however, been a number of contestable decisions, and the ECJ has in  general been more strident in protecting access than the CFI. The Sison case44 41  See, eg, Case C-562/14 P Sweden v European Commission, EU:C:2017:356, [55]–[57]. 42  Case T-2/03 VKI (n 35) [32]–[33], [69]; Case C-280/11 P Council of the European Union v Access Info Europe, EU:C:2013:671, [31]–[33], [72]–[73]; Case C-506/08 P Sweden v My Travel and Commission, EU:C:2011:496, [76]; Case 365/12 P Commission v EnBW, EU:C:2014:112, [64]–[65]; Case C-350/12 P Council v in’t Veld, EU:C:2014:2039, [51]; Cases 424 and 425/14 ClientEarth v European Commission, EU:T:2015:848, [59]; Case T-480/11 Technion—Israel Institute of Technology v European Commission, EU:T:2015:272, [44]– [47]; Case T-796/14 Philip Morris Ltd v European Commission, EU:T:2016:483, [53]–[55]; Case T-210/15 Deutsche Telekom AG v European Commission, EU:T:2017:224, [27]–[29]. 43  Case T-331/11 Besselink v Commission, EU:T:2013:499, [99]; Cases 424 and 425/14 ClientEarth (n 42) [32]–[33]. 44  Case C-266/05 P Jose Maria Sison v Council [2007] ECR I-1233.

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concerned the standard of judicial review.45 The applicant’s assets were frozen pursuant to a Regulation enacted to combat terrorism and he sought access to documentation that had placed him on the relevant list. The Council refused access because it would undermine public security and international relations, relying on Article 4(1) (a) of Regulation 1049/2001. The ECJ’s decision as to the limited scope of review made it difficult for the claimant to succeed. It held that the Council had a wide discretion in determining whether disclosure of documents relating to Article 4(1)(a) could undermine the public interest. This was more especially so given the sensitive nature of the documents covered by this exception. Review of the Council’s decision was, therefore, limited to verifying whether the procedural rules and the duty to state reasons had been complied with, whether the facts had been accurately stated, and whether there had been a manifest error of assessment or a misuse of powers. The fact that Article 4(1)(a) was a mandatory exception in the sense set out above served to reinforce the ECJ’s conclusion. In Sweden v Commission46 it was the legal meaning of an exception to Regulation 1049/2001 that came before the ECJ, and its judgment was more liberal than that of the CFI. The CFI47 held that Article 4(5) of Regulation 1049/2001, which provides that a Member State may request the Union institution not to disclose a document originating from that Member State without its prior agreement, constituted an instruction from the Member State to the EU institution not to disclose the relevant document. The ECJ on appeal decided that Article 4(5) did not confer on the Member State a general and unconditional right of veto. Article 4(5) must, said the ECJ, be delimited by Article 4(1)–(3), such that the Member State was afforded the opportunity to show why its documents fell within those exceptions. If the Member State felt that this was so there should be a dialogue between it and the EU institutions, in which it was for the Member State to provide reasons why the document came within Article 4(1)–(3). It was then for the relevant EU institution to record these reasons, so that an individual seeking access could understand why it had been denied, which would also facilitate any subsequent legal challenge. The Turco case48 concerned the legal meaning of an exception and the judicial approach to the balancing test. The ECJ was again more liberal than the CFI.49 The case 45  See also in relation to other exceptions, Cases T-391/03 and 70/04 Franchet and Byk v Commission [2006] ECR II-2023; Case T-264/04 WWF European Policy Programme v Council [2007] ECR II-911; Cases T-355 and 446/04 Co-Frutta Soc coop v European Commission [2010] ECR II-1. 46  Case C-64/05 P Sweden v Commission [2007] ECR II-11389. See also Case C-135/11 P IFAW Inter­nationaler Tierschutz-Fonds GmbH v European Commission, EU:C:2012:376, [52]–[62]; Case T-545/11 Stichting Greenpeace Nederland and PAN Europe v European Commission, EU:T:2013:523, [30]–[31]; Case T-344/15 France v European Commission, EU:T:2017:250, [29]–[37]. 47  Case 168/02 IFAW Internationaler Tierschultz-Fonds GmbH v Commission [2004] ECR II-4135. 48  Cases C-39 and 52/05 P Sweden and Turco v Council [2008] ECR I-4723. See also Cases C-514, 528 and 532/07 Sweden v API and Commission [2010] ECR I-8533; Case C-506/08 P Sweden (n 42); Case C-350/12 P Council v in’t Veld (n 42) [95]; Case T-710/14 Herbert Smith Freehills LLP v Council of the European Union, EU:T:2016:494, [42]–[45]; Case T-796/14 Philip Morris (n 42) [58]–[64]. 49  Case T-84/03 Turco v Council [2004] ECR II-4061.

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concerned the exception for legal advice contained in Regulation 1049/2001,50 which provides that the institutions shall refuse access to a document where disclosure would undermine the protection of court proceedings and legal advice, unless there is an overriding public interest in disclosure. Turco was refused access to documents from the Council legal service relating to a proposed directive on asylum. The Council justified its refusal to disclose by arguing that it could give rise to uncertainty as regards the legality of legislative acts adopted following such advice, and that disclosure would be premature since it might reveal the position taken by particular delegations and hence reduce their ability to reconsider their positions. The CFI held that the Council’s reasoning was justified, since if further information were given it could give rise to ‘lingering doubts as to the lawfulness of the legislative act in question’,51 and might expose the Council’s legal service to improper external influence.52 The CFI’s reasoning and result was regrettable. The fact that the legal service might express doubt as to the legality of a legislative act is not a good reason to deny access to its opinion, more especially if the Council chooses to press ahead with the measure notwithstanding those doubts. If there are qualms concerning the legality of a measure expressed by expert legal insiders, EU citizens should be able to know this. The fact that the ECJ overturned the CFI’s decision is, therefore, to be welcomed. The ECJ held that the exception was aimed at protecting an institution’s interest in receiving frank, objective, and comprehensive legal advice. The risk that this interest would be undermined had to be reasonably foreseeable and not purely hypothetical. If this might occur it was then incumbent on the Council to ascertain whether there was any overriding public interest justifying disclosure, which included the advantages of increased openness and citizen participation in the decision-making process, thereby leading to a more legitimate and accountable democratic system. The possibility for citizens to find out the considerations underpinning legislative action was a precondition for the effective exercise of their democratic rights. It was, in principle, open to the Council to base its decisions in that regard on general presumptions which applied to categories of documents, but it was incumbent on the Council to establish in each case whether those general considerations were in fact applicable to a specific document that it was asked to disclose. The ECJ was dismissive of the arguments that had convinced the CFI. Thus in relation to the Council’s fear that disclosure of an opinion of its legal service relating to a legislative proposal could lead to doubts as to the lawfulness of the legislative act concerned, the ECJ held that it was ‘precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated’.53 In relation to the Council’s argument that the independence of its legal service would be compromised by disclosure of legal opinions issued in the course of legislative procedures, the ECJ held that the Council relied ‘on mere 50  Reg 1049/2001 (n 10) Art 4(2). 51  Case T-84/03 Turco (n 49) [78]. 53  Cases C-39 and 52/05 P Sweden and Turco (n 48) [59].

52  Ibid [79].

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assertions, which were in no way substantiated by detailed arguments’.54 If there were improper pressure applied to those giving legal advice it would then be incumbent on the Council to take measures to stop this.55

(D) Conclusion The 2001 Regulation was undoubtedly a step forward compared to the pre-existing position, but there was nonetheless concern about its scope and the exceptions. We should, moreover, be aware of the practical dimension of Regulation 1049/2001. Curtin and Mendes capture this sentiment,56 noting that just as critical as the formal legal dimension is the quality, scope, and completeness of the information and documents that the institutions make available on the internet, since this is as far as most users get: either they get a ‘hit’ in terms of the document or information they are looking for or they do not. The Commission in its review of this Regulation noted that those who had benefited were mainly specialists and that increased efforts should be made to bring the Regulation to the attention of the general public.57 The review contained interesting data on success rates, with more than two out of every three applications receiving a positive response.58 It is clear that only a few of the exceptions are regularly invoked59 and the Commission, while generally satisfied with the exceptions, felt that they did not take adequate account of the inter-institutional nature of decision-making in the EC.60 It also expressed concern about the impact of unreasonable or repetitive applications.61 The Commission publishes an annual report on access to documents. The 2017 Report conveys a sense of current practice.62 In 2016, 18,523 new documents were added to the register of Commission Documents. The Commission received more than 6,000 initial applications for access to documents, and close to 300 confirmatory applications. Requested documents were fully or partially disclosed in 81.3 per cent of cases at the initial stage, and wider or even full access was granted in 52 per cent of cases reviewed at the confirmatory stage. Forty per cent of all applications originated from citizens, while 16 per cent emanated from academic institutions and think tanks, with NGOs and legal professionals also accounting for significant numbers of applications. In 2008, the Commission proposed a modified Regulation on access to documents,63 but the European Parliament was not happy with the proposal and suggested numerous

54  Ibid [63]. 55  Ibid [64]. 56  Curtin and Mendes (n 1). 57  COM(2004) 45 (n 33) [2.5]. 58  Ibid [3.11]. 59  Ibid [6.3]. 60  Ibid [3.4.4]. 61  Ibid [4.10]. 62 On the application in 2016 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, COM(2017) 738 final, 4. 63  Green Paper on Public Access to Documents held by the Institutions of the European Community. A Review, COM (2007) 185 final; Regarding Public Access to European Parliament, Council and Commission documents, COM(2008) 229 final.

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amendments.64 The proposal is stalled at the time of writing, and it remains to be seen whether a new Regulation emerges and if so what form it takes.65

6 Conclusion Developments such as Treaty articles on transparency, Regulation 1049/2001, and Article 42 of the Charter of Fundamental Rights, led Judge Lenaerts, writing extra-judicially, to conclude that ‘it can at present hardly be denied that the principle of transparency has evolved into a general principle of Community law’.66 This view is reinforced by the ECJ’s greater willingness to read EU legislation as subject to transparency, even where there is no explicit mention of this principle in the relevant articles of the legislation.67 Even if transparency is regarded as a general principle of EU law, the impact of this on citizens is crucially dependent on the detailed meaning accorded to the principle. The Courts’ jurisprudence when interpreting Regulation 1049/2001 is a timely reminder that we should look beyond general judicial statements of the need to afford real protection for the right of access to documents, to consider how the judiciary apply the detailed provisions of the legislation in concrete cases. It should not, m ­ oreover, be forgotten that there can be clashes between transparency and Charter rights, such as the protection of personal data.68

64  On the proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents, A6-0077/2009, Rapporteur Michael Cashman; T6-0114/2009; PE439/989, 12 May 2010, Rapporteur Michael Cashman. 65  For detailed analysis see the Statewatch website, http://www.statewatch.org/foi/observatory-access-reg2008-2009.htm and http://www.statewatch.org/analyses/proposals-for-greater-openness-peers-08.pdf; European Union Committee, Access to EU Documents, 15th Report 2008–9, HL Paper 108; I Harden, ‘The Revision of Regulation 1049/2001 on Public Access to Documents’ (2009) 15 EPL 239; Hillebrandt, Curtin, and Meijer (n 5) 2–3. 66  Lenaerts (n 24). 67  Cases C-154 and 155/04 The Queen, on the application of Alliance for Natural Health and Nutri-Link Ltd v Secretary of State for Health [2005] ECR I-6451, [81]–[82]; Cases T-246 and 332/08 Melli Bank plc v Council [2009] ECR II-2629, [146]. 68  Cases C-92 and 93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, EU:C:2010:662.

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14 Competence and Subsidiarity 1 Introduction The previous chapters were concerned with access, process, and transparency. We now turn to substantive review and it is natural to begin with competence and subsidiarity, more especially so because lack of competence is one of the specific grounds of judicial review in Article 263(2) TFEU. The EU is based on attributed power. The general principle is, and always has been, that the EU only has the competence conferred on it by the Treaties. Prior to the Lisbon Treaty, it was however difficult to decide on the limits of that competence. There were no general categories of competence, and thus the limits of competence in a specific area could only be discerned by paying close attention to the detailed Treaty provisions. There could be real disagreement as to whether the competence in a particular area was, for example, exclusive or shared. These difficulties were compounded by the fact that the scope of EU competence would have to take account of the case law interpreting the relevant Treaty provisions, and legislation made pursuant to those provisions. The difficulties were especially prominent in relation to Treaty articles that were broadly framed, such as Articles 95 and 308 EC. The existence and scope of EU competence were, therefore, key elements in the reforms that culminated in the Lisbon Treaty. There are now categories of competence specified in the Lisbon Treaty: the EU may have exclusive competence, shared competence, or competence only to take supporting, coordinating, or supplementary action. Legal consequences flow from this categorization, which will be examined later. There are, however, certain areas of EU competence that do not fall within these categories. We shall consider the extent to which the new regime clarifies the scope of EU competence and contains EU power. The Lisbon Treaty not only makes provision for the existence and scope of EU competence, but also for whether the competence should be exercised. This issue is governed by the principle of subsidiarity, which was initially introduced by the Maastricht Treaty. A revised version of the principle is contained in the Lisbon Treaty and a Protocol attached to the Treaty. The meaning and application of this concept can be problematic, as will be seen later.

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2  Impetus for Reform The EU can only act within the limits of the powers assigned to it. It has in that sense attributed competences. This principle was previously embodied in Articles 5(1) and 7(1) EC and has been reaffirmed by Article 5(2) TEU of the Lisbon Treaty, which states that: Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

It was, however, not easy prior to the Lisbon Treaty to specify with exactitude the ­division of competence between the EU and Member States,1 and was therefore an issue identified for further inquiry after the Nice Treaty 2000.2 It was felt that Article 5 EC provided insufficient protection for rights of Member States, and little safeguard against an increasing shift of power from the states to the EU. We should, nonetheless, be cautious about the assumption that the ‘competence ­problem’ was the result primarily of some unwarranted arrogation of power by the EU  to the detriment of states’ rights. The reality was that EU competence resulted from the symbiotic interaction of four variables: Member State choice as to the scope of EU  competence, as expressed in Treaty revisions; Member State, and since the Single European Act 1986 (SEA), European Parliament acceptance of legislation made pursuant to Treaty articles; the jurisprudence of the EU Courts; and decisions taken by the institutions as to how to interpret, deploy, and prioritize the power accorded to the EU.3 The Laeken Declaration4 specified in greater detail the inquiry into competence left  open after the Nice Treaty 2000. Four principal forces drove the reform process: clarity, conferral, containment, and consideration. The desire for ‘clarity’ reflected the concern that the Treaty provisions on competences were unclear, jumbled, and unprincipled. The idea of ‘conferral’ captured not only the idea that the EU should act within

1  A Dashwood, ‘The Limits of European Community Powers’ (1996) 21 ELRev 113; G de Búrca, ‘Setting Limits to EU Competences’, Francisco Lucas Pires Working paper 2001/02; U di Fabio, ‘Some Remarks on the Allocation of Competences between the European Union and its Member States’ (2002) 39 CMLRev 1289; A von Bogdandy and J Bast, ‘The European Union’s Vertical Order of Competences: The Current Law and Proposals for its Reform’ (2002) 39 CMLRev 227; P Craig, ‘Competence: Clarity, Conferral, Containment and Consideration’ (2004) 29 ELRev 323; S Weatherill, ‘Better Competence Monitoring’ (2005) 30 ELRev 23; F  Mayer, ‘Competences—Reloaded? The Vertical Division of Powers in the EU and the New European Constitution’ (2005) 3 I-CON 493; R Schutze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford University Press, 2009); L Azoulai (ed), The Question of Competence in the European Union (Oxford University Press, 2014). 2  Treaty of Nice, Declaration 23 [2001] OJ C80/1. 3  P Craig, ‘Competence and Member State Autonomy: Causality, Consequence and Legitimacy’ in H Micklitz and B de Witte (eds), The European Court of Justice and the Autonomy of Member States (Intersentia, 2012). 4  European Council, 14–15 December 2001, 21–2.

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the ­limits of the powers attributed to it, but also carried the more positive connotation that the EU should be accorded the powers necessary to fulfil the tasks in the enabling Treaties. The desire for ‘containment’ reflected the concern that the EU had too much power, and that it should be substantively limited,5 although as noted a significant factor in the distribution of competence was the conscious decision of the Member States to grant new spheres of competence to the EU. This is where the fourth factor came into play, ‘consideration’ of whether the EU should continue to have the powers that it  had been given in the past, a rethinking of the areas in which the EU should be able to act. The reality is that there was little systematic rethinking of the areas in which the EU should be able to act. The Convention on the Future of Europe did not conduct any root and branch reconsideration of all heads of EU competence. The general strategy was to take the existing heads of competence as given. The emphasis was on clarity, conferral, and containment.

3  Lisbon Strategy (A)  Categories and Consequences The Lisbon Treaty repeats with minor modifications the provisions in the Constitutional Treaty. The provisions are contained in the TEU and in the TFEU. Thus Article 4 TEU states that competences not conferred on the Union remain with the Member States. Article 5 TEU stipulates that the limits of Union competences are governed by the principle of conferral. It is, however, the TFEU that contains the main provisions on competence. There are categories of competence that apply to specified subject matter areas, and concrete legal consequences flow from such categorization. The principal categories are where the EU’s competence is exclusive, where it is shared with the Member States, where the EU is limited to supporting/coordinating action, with special categories for EU action in the sphere of economic and employment policy, and Common Foreign and Security Policy (CFSP). Article 2 TFEU provides that: 1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts. 2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise

5  Mayer, ‘Competences’ (n 1) 504–5.

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their competence to the extent that the Union has decided to cease exercising its competence. 3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide. 4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy. 5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas. Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States’ laws or regulations. 6. The scope of and arrangements for exercising the Union’s competences shall be determined by the provisions of the Treaties relating to each area.

(B)  Express and Implied power There are two important points that should be stressed before examining the particular categories of competence, which are applicable to all the subsequent discussion. First, there can be disagreement as to the ambit of a particular Treaty article, and this is so irrespective of the category of competence which applies to the area. Treaty a­ rticles may be drafted relatively specifically, or they may be framed in more broad open-­ textured terms. In either case, it is always possible for there to be disagreement about the ambit, scope, or interpretation of the relevant Treaty article, more especially when it is cast in broad terms.6 The ECJ has in general been disinclined to place limits on broadly worded Treaty articles. It can, however, do so. In Tobacco Advertising7 the ECJ held that a directive relating to tobacco advertising could not be based on Article 95 EC, which did not vest the Community legislature with a general power to regulate the internal market. A measure based on Article 95 must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market. A mere finding of disparities between national rules was insufficient to trigger recourse to this Article. While there are, therefore, limits to what is now Article 114 TFEU, subsequent case law has shown the ECJ’s willingness to accept use of this Article

6  See, eg, Case C-84/94 UK v Council [1996] ECR I-5755; Case C-233/94 Germany v European Parliament and Council [1997] ECR I-2405. 7  Case C-376/98 Germany v European Parliament and Council [2000] ECR I-8419; T Hervey, ‘Up in Smoke? Community (Anti)‑Tobacco Law and Policy’ (2001) 26 ELRev 101.

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as the legal basis for the enacted measure.8 Thus in the 2006 Tobacco Advertising case,9 the ECJ upheld the validity of a revised Directive on tobacco advertising, which included, subject to limited exceptions, prohibitions on advertising in the press and radio, and constraints on sponsorship by tobacco companies. The Court concluded that this could be adopted under what was Article 95 EC, since there were disparities between the national laws on advertising and sponsorship of tobacco products, which could affect competition and interstate trade. Secondly, the EU institutions may claim that a particular Treaty article contains an implied power to make a particular regulation. While the notion of implied power is well known in domestic and international legal systems, its meaning is more contestable. Under the narrower formulation, the existence of a given power implies the existence of any other power that is reasonably necessary for the exercise of the former. Under the wider formulation, the existence of a given objective implies the existence of power reasonably necessary to attain it. The narrow sense of implied power has long been accepted.10 The ECJ has however also embraced the wider formulation.11 Thus in the Environmental Crimes case,12 the ECJ acknowledged that at that time neither criminal law, nor criminal procedure fell within Community competence. It nonetheless held that when the application of effective, proportionate, and dissuasive criminal penalties by the competent national authorities was an essential measure for combating serious environmental offences, the EC could take measures relating to the criminal law of the Member States, which it considered necessary to ensure that Community rules on environmental protection were fully effective. The CFI has, however, held that it is only exceptionally that such implicit powers will be recognized, and in order to be so recognized they must be necessary to ensure the practical effect of the provisions of the Treaty or the basic regulation at issue.13

4  Exclusive Competence (A)  Basic Principles Article 2(1) TFEU establishes the category of exclusive competence, which carries the  consequence that only the Union can legislate and adopt legally binding acts. 8  Case C-377/98 Netherlands v Parliament and Council [2001] ECR I-7079; Case C-491/01 The Queen v Secretary of State for Health, ex p British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453; Case C-210/03 R v Secretary of State for Health, ex p Swedish Match [2004] ECR I-11893; Case C-270/12 UK v European Parliament and Council, EU:C:2014:18. 9  Case C-380/03 Germany v European Parliament and Council [2006] ECR I-11573. 10  Case 8/55 Fédération Charbonnière de Belgique v High Authority [1956] ECR 245, 280. 11  Cases 281, 283–285 and 287/85 Germany v Commission [1987] ECR 3203. 12  Case 176/03 Commission v Council [2005] ECR I-7879. 13  Case T-240/04 French Republic v Commission [2007] ECR II-4035, [37]; Case T-143/06 MTZ Polyfilms Ltd v Council [2009] ECR II-4133, [47].

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The Member States can only do so if empowered by the Union, or for the implementation of Union acts. The subject matter areas that fall within exclusive competence are set out in Article 3(1) TFEU: customs union; the establishing of the competition rules necessary for the functioning of the internal market; monetary policy for the Member States whose currency is the euro; the conservation of marine biological resources under the common fisheries policy; and the common commercial policy. Article 3(2) TFEU states that the  Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, or is necessary to enable the Union to exercise its internal competence, or insofar as its ­conclusion may affect common rules or alter their scope.

(B)  Area Exclusivity The areas specified in Article 3(1) that fall within the EU’s exclusive competence are limited. We have seen that a pressing concern in the Laeken Declaration and the Convention on the Future of Europe was to contain EU power. The domain of exclusive competence fares pretty well when judged by this criterion, given that the areas that come within this category are relatively discrete and the list is small. This is ­important because the consequences of inclusion are severe: Member States have no autonomous legislative competence and they cannot adopt any legally binding act. They can neither legislate, nor make any legally binding non-legislative act. The very creation of categories of competence inevitably means that there will be problems of demarcating borderlines between the different categories. Such problems can arise in demarcating the line between exclusive and shared competence. There are, for example, ambiguities about the relationship between the competition rules, which are a species of exclusive competence, and the internal market, which is shared competence, an issue that arose in connection with the EU unitary patent.14 There may also be difficult borderline problems between provisions relating to the customs union, and other aspects of the internal market, since the customs union falls within exclusive competence, while the internal market is shared competence. It may be difficult to decide whether a case is concerned with the customs union, tariffs, quotas, and the like, or whether it is really ‘about’ discriminatory taxation.15 There can in addition be disputes as to whether an act falls within common commercial policy or the internal market.16

14  Cases C-247 and 295/11 Spain and Italy v Council, EU:C:2013:240, [18]–[24]; P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press, 2010) 159–61. 15  Ch 18. 16  See, eg, Case C-137/12 Commission and European Parliament v Council, EU:C:2013:675; Opinion 3/15 Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled, EU:C:2017:114.

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(C)  Conditional Exclusivity The EU is also accorded exclusive competence to make an international agreement,17 provided that the conditions in Article 3(2) TFEU are met. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is ­necessary to enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope.

Article 3(2) TFEU should be read in conjunction with Article 216 TFEU. Article 216 is concerned with whether the EU has competence to conclude an international agreement. Article 3(2) deals with the related, but distinct, issue as to whether that competence is exclusive or not. Article 216 TFEU reads as follows. 1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope. 2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.

The catalyst for Article 216 TFEU was the report of the Working Group on External Action. Prior to the Lisbon Treaty, the EC Treaty accorded express power to make international agreements in certain limited instances,18 and this was supplemented by the ECJ’s jurisprudence delineating the circumstances in which there could be an implied external competence to make an international agreement. The Working Group recommended that there should be a Treaty provision that reflected this case law.19 This was embodied in the Constitutional Treaty, and taken over into the Lisbon Treaty as Article 216 TFEU. The breadth of Article 216 is readily apparent, and the reality is that it will be rare, if ever, for the EU to lack power to conclude an international agreement.20 The case law on the scope of the EU’s external competence, and the extent to which it is exclusive or parallel with that of the Member States, is complex.21 Article 3(2)

17  The EU has legal personality, Art 47 TEU. 18  Arts 111, 133, 174(4), 181, 310 EC. 19  CONV 459/02, Final Report of Working Group VII on External Action, Brussels, 16 December 2002, [18]. 20  See, eg, Case C-600/14 Germany v Council, EU:C:2017:935, [43]–[73]; Opinion 2/15 Free Trade Agreement with Singapore, EU:C:2017:376. 21  T Tridimas and P Eeckhout, ‘The External Competence of the Community and the Case-Law of the Court of Justice: Principle versus Pragmatism’ (1994) 14 YBEL 143; A Dashwood and C Hillion (eds), The General Law of EC External Relations (Sweet & Maxwell, 2000); P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (Oxford University Press, 2004); M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CMLRev 1347; P Koutrakos, EU International Relations Law (Hart, 2006); P Koutrakos, ‘Legal Basis and Delimitation of Competence in EU External Relations’ in M Cremona and B de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Hart, 2008) Ch 6; M Cremona, ‘Defining Competence in EU External Relations: Lessons from the Treaty

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TFEU stipulates three instances in which the EU has exclusive external competence. The interpretation of this provision is by no means easy.22 The complexity of the case law necessarily means that embodying the principles in a Treaty article was always going to be difficult. Article 3(2) read together with Article 216 TFEU comes close to eliding the EU’s power to act via an international agreement with the exclusivity of that power, an issue which preoccupied much of the case law in this area. (i)  External Competence and Exclusivity: Pre-Lisbon We need therefore to take a brief step back to the pre-Lisbon case law to understand the significance of Article 3(2) TFEU. The ECJ had for some considerable time recognized Community competence to conclude an international agreement where this was necessary to effectuate its internal competence, even where there was no express external competence.23 The issue of whether this implied external power was exclusive was treated as distinct from the existence of such power. Implied external competence could be exclusive or shared,24 but the criteria for the divide were not entirely clear.25 The ECJ’s formulations as to when exclusivity could arise were, however, far-reaching. Thus in ERTA the ECJ held that when the Community acted to implement a common policy pursuant to the Treaty, the Member States no longer had the right to take external action where this would affect the rules thus established or distort their scope.26 This position was modified in Kramer.27 The ECJ held that the EC could possess implied external powers even though it had not taken internal measures to implement the relevant policy, but that until the EC exercised its internal power the Member States retained competence to act, provided that their action was compatible with Community objectives. The scope of exclusivity was thrown into doubt in the Inland Waterways case,28 where the ECJ held that the EC could have exclusive external competence, even though it had not exercised its internal powers, if Member State action could place in jeopardy the Community objective sought to be attained.

Reform Process’ in A Dashwood and M Maresceau (eds), Law and Practice of EU External Relations: Salient Features of a Changing Landscape (Cambridge University Press, 2008) Ch 2; M Cremona, ‘External Relations and External Competence of the European Union: the Emergence of an Integrated Policy’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 2nd edn, 2011) Ch 9; M Cremona, ‘EU External Relations: Unity and Conferral of Powers’ in Azoulai (n 1) Ch 3. 22  Cremona, ‘Draft Constitutional Treaty’ (n 21); Craig (n 1). 23  See n 21; Case 22/70 Commission v Council [1971] ECR 263; Cases 3, 4 and 6/76 Kramer [1976] ECR 1279; Opinion 1/76 Draft Agreement Establishing a Laying-up Fund for Inland Waterway Vessels [1977] ECR 741; Opinion 2/91 Re the ILO Convention 170 on Chemicals at Work [1993] ECR I-1061; Opinion 2/94 Accession of the Community to the European Human Rights Convention [1996] ECR I-1759. 24  Opinion 1/03 Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2006] ECR I-1145, [114]–[117]. 25  Cremona, ‘External Relations’ (n 21); A Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in Dashwood and Hillion (n 21) 3. 26  Case 22/70 Commission v Council (n 23). 27  Cases 3, 4 and 6/76 Kramer (n 23). 28  Opinion 1/76 Inland Waterways (n 23).

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The ECJ pulled back from the very broad reading of exclusivity in the Inland Waterways case in Opinion 1/94 WTO Agreement.29 It held that exclusive external competence was in general dependent on actual exercise of internal powers and not their mere existence.30 The Inland Waterways case was distinguished on the ground that the EC’s internal objective could not be attained without making an international agreement and internal EC rules could not realistically be made prior to the conclusion of such an agreement.31 This rationale was held not to apply to the WTO case.32 This reasoning was followed in later decisions.33 Subsequent jurisprudence revealed that the ECJ construed broadly the idea of the EC having exercised its powers internally, and that the ECJ was also prepared to give a wide interpretation to the circumstances where this gave rise to exclusive external competence for the EC. This was apparent from the ‘open skies’ litigation, involving Commission actions against several Member States.34 The Commission alleged that Member States had infringed the Treaty by concluding bilateral ‘open skies’ agreements with the US, on the ground that the EC had exclusive external competence in this area. It argued that the EC had exclusive external competence in line with the ERTA ruling, because it had exercised its internal competence to some degree within the relevant area. The ECJ accepted this argument. The Council had adopted a package of legislation based on Article 80(2) EC. The ECJ held that the ERTA ruling could apply to internal power exercised in this manner and therefore the EC had an implied external competence. It followed that when the EC made common rules pursuant to this power, the Member States no longer had the right, acting individually or collectively, to undertake obligations towards non-Member States, which affected those rules or distorted their scope. The judgment confirmed the broad reading given to the phrase ‘affected those rules or distorted their scope’, since it was this that transformed external competence into exclusive external competence. The ECJ, in accord with prior case law, held that this would be so where the international agreement fell within the scope of the common rules, or within an area that was already largely covered by such rules, and this was so in the latter case even if there was no contradiction between the international commitments and the internal rules. EC legislative provisions relating to the treatment of nonMember State nationals, or expressly conferring power to negotiate with non-Member States, gave the EC exclusive external competence.

29  Opinion 1/94 Competence of the Community to Conclude International Agreements Concerning Services and the Protection of Intellectual Property, WTO [1994] ECR I–5267. 30  Ibid [77], [88]–[89]. 31  Ibid [85]–[86]. 32  Ibid [86], [99], [100], [105]. 33  See, eg, Opinion 2/92 Competence of the Community or one of its Institutions to Participate in the Third Revised Decision of the OECD on National Treatment [1995] ECR I-521. 34  Case C-466/98 Commission v UK [2002] ECR I-9427; Case C-467/98 Commission v Denmark [2002] ECR I-9519; Case C-468/98 Commission v Sweden [2002] ECR I-9575; Case C-469/98 Commission v Finland [2002] ECR I-9627; Case C-471/98 Commission v Belgium [2002] ECR I-9681; Case C-472/98 Commission v Luxembourg [2002] ECR I-9741; Case C-475/98 Commission v Austria [2002] ECR I-9797.

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The same general message emerged from the Lugano Opinion:35 implied external competence could be exclusive or shared, but where the EC had exercised its powers internally, then the ECJ would be inclined to conclude that this gave rise to exclusive external competence, whenever such exclusive competence was needed to ‘preserve the effectiveness of Community law and the proper functioning of the systems established by its rules’.36 (ii)  External Competence and Exclusivity: Post-Lisbon Article 3(2) TFEU specifies three situations in which the EU has exclusive external competence. The first is where conclusion of an international agreement is provided for by a legislative act of the Union. The wording is significant. Article 3(2) TFEU does not state that the Union shall have exclusive external competence where a Union legislative act says that this shall be so. Nor does it state that the EU shall have such exclusive external competence only in the areas in which it has an exclusive internal competence. It states that where the conclusion of an international agreement is provided for in a ­legislative act, the Union will have exclusive external competence. Thus express external empowerment to conclude an international agreement is taken to mean exclusive external competence, with the corollary that Member States are pre-empted from concluding any such agreement independently, from legislating or adopting any legally binding act. The same elision of external power and exclusive external power is evident in the second situation listed in Article 3(2) TFEU. There is, as we have seen, ECJ jurisprudence that accords the EU competence to conclude an international agreement where this is necessary to effectuate its internal competence, even where there is no express external competence.37 The effect of Article 3(2) TFEU is, nonetheless, that the EU has exclusive external competence to conclude an international agreement where it is ­necessary to enable the Union to exercise its competence internally, irrespective of the type of internal competence possessed by the EU. Taken literally this means that exclusive external competence to conclude an international agreement resides with the Union, where this is necessary for the exercise of internal competence, even where the internal competence is only shared, or even where the EU can only take supporting or coordinating action. It might be argued that any EU external competence to make an international agreement must be bounded by the nature of its internal competence in the relevant area. The effect of Article 3(2) TFEU would still be that the EU would have exclusive external competence to conclude an international agreement that was n ­ ecessary to enable the EU to exercise an internal competence, even where the internal competence only allowed supporting action, provided that the international agreement did not contain provisions that went beyond this type of action. The third of the situations mentioned in Article 3(2) TFEU is that the EU shall have exclusive competence insofar as the conclusion of an international agreement ‘may

35  Opinion 1/03 Lugano (n 24) [114]–[115].

36  Ibid [131].

37  See n 23.

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affect common rules or alter their scope’. This is in accord with the case law considered earlier, such that in many instances where the EU has exercised its power internally it will be held to have an exclusive external competence.38 The CJEU has persisted with a broad interpretation of this head of exclusive competence. It has held that there is a risk that common EU rules may be adversely affected by international commitments undertaken by the Member States, or that the scope of those rules may be altered, such as to justify an EU exclusive external competence, where those commitments fall within the scope of those rules.39 It is not necessary that the area ­covered by the international commitments and that of the EU rules coincide fully. It suffices in this respect that the international commitments fall within an area which is already covered to a large extent by such rules.40 Whether the EU is deemed to have exclusive competence will be determined by detailed analysis of the relationship between the international agreement envisaged and the EU law in force. That analysis must take into account ‘the areas covered, respectively, by the rules of EU law and by the provisions of the agreement envisaged, their foreseeable future development and the nature and content of those rules and those provisions, in order to determine whether the agreement is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish’.41 In many instances the EU will be deemed to have exclusive external competence as judged by this criterion. A rare exception is the Pringle decision,42 where the CJEU held that the European Stability Mechanism (ESM), an international agreement made by Member States designed to assist states in financial difficulty because of the euro crisis, did not affect the common rules on economic and monetary union, and therefore did not fall within the EU’s exclusive competence pursuant to Article 3(2). It is, however, clear that the CJEU did not wish to invalidate the ESM as made by the Member States. Cremona has argued convincingly that Article 3(2) ‘conflates the two separate questions of the existence of implied external competence and the exclusivity of that competence’,43 and that the combination of this Article when read with Article 216 TFEU is that implied shared competence could disappear. This does seem to be the outcome of the Treaty provisions, subject to the caveats mentioned earlier, and it is, as Cremona states, hard to defend in policy terms.44 The result is, moreover, difficult to square with the practical realities in this area.  Thus notwithstanding the broad judicial reading given to exclusive external

38 Case C-114/12 Commission v Council (Convention on the Rights of Broadcasting Organizations) EU:C:2014:2151; Opinion 1/13 Hague Convention on Child Abduction, EU:C:2014:2292. 39  Opinion 1/13 Accession of third States to the Hague Convention, EU:C:2014:2303, [71]; Case C-66/13 Green Network, EU:C:2014:2399, [29]; Opinion 3/15 Marrakesh (n 16) [105]. 40  Opinion 1/13 Accession of third States to the Hague Convention (n 39) [72]–[73]; Case C-66/13 Green Network (n 39) [30]; Opinion 3/15 Marrakesh (n 16) [106]–[107]. 41  Opinion 1/13 Accession of third States to the Hague Convention (n 39) [74]; Case C-66/13 Green Network (n 39) [33]; Opinion 3/15 Marrakesh (n 16) [108]. 42  Case C-370/12 Pringle v Government of Ireland, Ireland and the Attorney General, EU:C:2012:756, [100]–[106]. 43  Cremona, ‘Defining Competence’ (n 21) 61. 44  Ibid 62.

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competence, the reality was that prior to the Lisbon Treaty many external powers were shared between the Member States and the EU, through mixed agreements where power to conclude the agreement was shared with the Member States.45 This might be because the conditions in the case law for the EU’s exclusive external competence were not satisfied, where for example it had not adopted sufficient internal measures to accord it exclusive external competence.46 External competence might also be shared because the EU Treaty did not confer sufficient competence on the EU to ratify the agreement in its entirety, thereby requiring allocation as between the EU and the Member States of the power to conclude the agreement with nonMember States,47 or where the EU had some competence over the relevant area, but this was limited to laying down m ­ inimum requirements, thereby leaving Member States free to apply the rules flowing from the international agreement over and beyond this.48

5  Shared Competence (A)  Basic Principles Article 2(2) TFEU defines shared competence. The wording is important and Article 2(2) states that, When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

The areas that fall within shared competence are delineated in Article 4 TFEU. Shared competence is the general residual category, since Article 4(1) provides that the Union shall share competence with the Member States where the Treaties confer on it a competence that does not relate to the categories referred to in Articles 3 and 6 TFEU, which deal respectively with exclusive competence, and that where the Union is restricted to taking action to support, coordinate, or supplement Member State action. 45  D O’Keeffe and H Schermers (eds), Mixed Agreements (Martinus Nijhoff, 1983); M Cremona, ‘The Doctrine of Exclusivity and the Position of Mixed Agreements in the External Relations of the European Community’ (1982) 2 OJLS 393; M Cremona, ‘External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law’, EUI Working Paper, Law No 2006/22. 46  Opinion 1/94 (n 29) [99]–[105]; Opinion 2/00 Opinion Pursuant to Article 300(6) EC, Cartegena Protocol [2001] ECR I-9713, [45]–[46]. 47  Opinion 2/00 (n 46) [5]. 48  Opinion 2/91 (n 23) [16]–[21].

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This follows also from Article 4(2), which states that shared competence applies in the ‘principal areas’ listed, implying thereby that the list is not necessarily exhaustive. The idea that shared competence is the default position must, nonetheless, be read subject to the special category of competence dealing with economic and employment policy, Article 5 TFEU, and that dealing with foreign and security policy, Article 2(4) TFEU, Title V TEU. Article 4 TFEU states that, 1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6. 2. Shared competence between the Union and the Member States applies in the following principal areas: (a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public health matters, for the aspects defined in this Treaty. 3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs. 4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

There can be boundary problems between shared competence, and the other two principal categories, exclusive competence and the category where the EU is limited to taking supporting, coordinating, or supplementary action. Thus it is, for example, not easy to decide which aspects of social policy come within shared competence. There are also problems in ensuring a fit between Article 4(3) and (4) TFEU, which assume that the relevant areas fall within shared competence, and the detailed provisions in these areas, many of which are framed in terms of the EU supporting, coordinating, and supplementing Member State action.49

49  Craig (n 14) 167–71.

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(B) Pre-emption Article 2(2) TFEU stipulates that the Member State can only exercise competence to the extent that the Union has not exercised, or has decided to cease to exercise, its competence within any such area. Member State action is therefore pre-empted where the Union has exercised its competence, with the consequence that the amount of shared power held by the Member State in these areas may diminish over time. This conclusion must however be qualified in four ways. First, Member States will only lose their competence within the regime of shared power to the extent that the Union has exercised its competence.50 The scope of the EU’s competence within these areas can only be determined by considering the detailed provisions that divide power in areas as diverse as social policy, energy, the internal market, and consumer protection. Thus the real limits on Union competence must be found in the detailed provisions which delineate what the EU can do in the diverse areas where power is shared. Secondly, the pre-emption will only occur to the extent that the EU has exercised its competence in the relevant area. There are different ways in which the EU can intervene in a particular area.51 The EU may choose to make uniform regulations, it may harmonize national laws, it may engage in minimum harmonization, or it may impose requirements of mutual recognition. Thus, for example, where the EU chooses m ­ inimum harmonization, Member States will have room for action in the relevant area. The Member States were, nonetheless, sufficiently concerned as to the possible pre-emptive impact of Article 2(2) TFEU to press for the inclusion of the Protocol on Shared Competence,52 which seeks to reinforce the point made above. It provides that where the Union has taken action in an area governed by shared competence, ‘the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area’.53 It is, nonetheless, still possible for Union acts to cover the entire area subject to shared power, provided that the EU could do so under the relevant Treaty provisions. Thirdly, Article 2(2) TFEU expressly provides for the possibility that the EU will cease to exercise competence in an area subject to shared competence, the consequence being that competence then reverts to the Member States. A Declaration attached to the Treaty54 specifies different ways in which this might occur. The final qualification concerns Article 4(3) and Article 4(4) TFEU. The essence of both Treaty provisions is to make clear that the Member States can continue to exercise

50 Case C-373/11 Panellinios Syndesmos Viomichanion Metapoiisis Kapnou v Ypourgos Oikonomias kai Oikonomikon, EU:C:2013:567, [26]. 51  S Weatherill, ‘Beyond Preemption? Shared Competence and Constitutional Change in the European Community’ in D O’ Keefe and P Twomey (eds), Legal Issues of the Maastricht Treaty (Chancery Law Publishing, 1994) Ch 2; M Dougan, ‘Minimum Harmonization and the Internal Market’ (2000) 37 CMLRev 853; M Dougan, ‘Vive la Difference? Exploring the Legal Framework for Reflexive Harmonisation within the Single Market’ (2002) 1 Annual of German and European Law 13. 52  Protocol (No 25). 53  See also Declaration 18. 54  Declaration 18.

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power even if the EU has exercised its competence within these areas. Thus even if the EU has defined and implemented programmes relating to research, technological development, and space, this does not preclude Member States from exercising their competence in such areas. The same reasoning is applied in the context of development cooperation and humanitarian aid.

(C)  Scope and Variation Shared competence constitutes, subject to the above, the default position in relation to division of competence within the Lisbon Treaty, but that does not mean that the nature of the sharing will be the same in all the areas to which shared competence applies. The reality is that shared competence is simply an umbrella term, with the consequence that there is significant variation as to the division of competence in different areas of EU law. It follows that the precise configuration of power sharing in areas such as the internal market, consumer protection, energy, social policy, the ­environment, and the like can only be determined by considering the detailed rules that govern these areas, which are found in the relevant provisions of the TFEU. The sharing of power in relation to, for example, the four freedoms is very different from the complex world of power sharing that operates within the area of freedom, security, and justice (AFSJ). There are indeed significant variations of power sharing that operate within the AFSJ. There is no magic formula that applies to all areas of shared power that determines the precise delineation of power in any specific area. This is not a criticism, but rather the consequence of the fact that the EU has been attributed competence in different areas through Treaty amendments, coupled with the fact that the precise degree of power it has been accorded differs between these areas. This is recognized by Article 2(6) TFEU, which states that ‘the scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area’.

6  Supporting, Coordinating, or Supplementary Action (A)  Basic Principles The third general category of competence allows the EU to take action to support, coordinate, or supplement Member State action, without thereby superseding their competence in these areas, and without entailing harmonization of Member State laws (Article 2(5) TFEU).55 While the EU cannot harmonize the law in these areas, it can 55  R Schutze, ‘Co-operative Federalism Constitutionalized: The Emergence of Complementary Competences in the EC Legal Order’ (2006) 31 ELRev 167.

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pass legally binding acts on the basis of the provisions specific to them, and the Member States will be constrained to the extent stipulated by such acts. The meaning of supporting etc action, and hence the precise extent of EU power, varies somewhat in the different areas listed, but it is clear that the EU has a significant degree of power in these areas, albeit falling short of harmonization.56 The areas that fall within such competence are set out in Article 6 TFEU: protection and improvement of human health; industry; culture; tourism; education, vocational training, youth and sport; civil protection; and administrative cooperation. A bare reading of Article 6 TFEU gives the impression that the list is finite. This impression is, however, belied when reading the TFEU as a whole. It then becomes clear that there are other important areas in which the EU is limited, prima facie at least, to supporting etc action, notably in respect to some aspects of social policy,57 and certain facets of employment policy.58 The creation of categories of competence inevitably means that there will be boundary problems as between them. Thus, for example, regulation of the media might come under the internal market, which is shared competence, or it might be regarded as falling within culture, where only supporting etc action is allowed. There are, ­moreover, difficulties in deciding which aspects of social policy fall within shared competence, and which come within this category.

(B)  Scope and Variation It is important to understand the scope of EU power for areas that fall within this category. The meaning of EU action supporting, coordinating, or supplementing action by the Member States varies somewhat in the areas listed, but the general approach is as follows. Each substantive area begins with a provision setting out the objectives of Union action. Thus in relation to public health Article 168 TFEU lists, inter alia, the improvement of public health, prevention of illness, and the obviation of dangers to health. The EU is to complement national action on these topics. Member States have an obligation to coordinate their policies on such matters, in liaison with the Commission.59 The Commission can coordinate action on such matters by exchanges of best practice, periodic monitoring, and evaluation.60 The EU can also pass laws to establish ‘incentive measures’ designed to protect human health, and combat cross-border health scourges, subject to the mantra that this shall not entail harmonization.61 Thus while harmonization is ruled out, the EU still has significant room for intervention through ‘persuasive soft law’, in the form of guidelines on best practice, monitoring, and the

56  See, eg, Art 167 TFEU, culture; Art 168 TFEU, public health; Art 173 TFEU, industry. 57  Art 153 TFEU. 58  Art 147 TFEU. 59  Art 168(2) TFEU. 60  Art 168(2) TFEU. 61  Art 168(5) TFEU.

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like, and through ‘legal incentive measures’.62 The same combination of soft law and legal incentive measures falling short of harmonization can be found in the other areas within this category.63 The scope of EU power within these areas should not, however, be underestimated. The standard approach under the Lisbon Treaty is for the EU to be empowered to take measures to attain the objectives listed in that area. The language of the empowerment varies. It is sometimes framed in terms of taking ‘incentive measures’,64 on other occasions the language is in terms of ‘necessary measures’,65 in yet other instances the terminology is ‘specific measures’.66 The salient point is that whatsoever the precise terminology these measures constitute legally binding acts, normally passed in accord with the ordinary legislative p ­ rocedure. The boundary of this EU legislative competence is that such legal acts must be designed to achieve the objectives listed for EU involvement in the area. These objectives are, however, normally set at a relatively high level of generality, with the consequence that the EU is legally empowered to take binding measures provided that they fall within the remit of these broadly defined objectives and do not constitute harmonization of national laws. This is evident in relation to all areas that fall within this category of competence. The scope of EU legislative activity within these areas will be bounded by what is acceptable to the Member States in the Council and the European Parliament, but this does not alter the point being made here.

(C)  Legal Acts, Harmonization, and Member State Competence Article 2(5) TFEU provides that EU action designed to support, coordinate, or supplement Member State action does not supersede Member State competence.67 It also states that legally binding acts of the Union adopted on the basis of the provisions specific to these areas cannot entail harmonization of Member State laws. Thus, while the EU cannot harmonize the law in these areas, it can pass legally binding acts on the basis of the provisions specific to these areas. There are three important points that flow from this Treaty provision. First, where the EU passes such legal acts they will bind the Member States and their competence will be constrained to the extent stipulated by the legally binding act. Thus while Member State competence is not per se superseded merely because the EU has enacted legally binding acts, it will be constrained to the degree entailed by the EU legal act. It is clear, moreover, that the EU can pass legislative acts in these areas, 62  There are also aspects of public health that come within the shared power, where the scope for EU intervention is greater, Art 4(2)(k), Art 168(4) TFEU. 63  Art 165(4), Art 166(4) TFEU, education and vocational training; Art 167 TFEU, culture; Art 173(2)–(3) TFEU, industry; Art 195 TFEU, tourism; Art 196 TFEU civil protection. 64  Art 165(4), Art 166(4) TFEU, education and vocational training; Art 167(5) TFEU, culture; Art 168(5) TFEU, public health. 65  Art 196(2) TFEU, civil protection. 66  Art 195(2) TFEU, tourism; Art 173(3) TFEU, industry. 67  Case T-529/13 Balázs-Árpád Izsák and Attila Dabis v European Commission, EU:T:2016:282, [96].

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­ rovided that they do not entail harmonization and provided that there is foundation p for the passage of such laws in the detailed provisions of the TFEU. Secondly, the very meaning of harmonization is not entirely clear. The proscription of harmonization measures means that legally binding acts cannot be adopted pursuant to Article 114 TFEU. A legally binding act made in an area where the EU only has competence to support, coordinate, or supplement Member State action could not be made pursuant to Article 114, since this would be an admission that the objective was to harmonize national law, which is the very thing prohibited by Article 2(5) TFEU. This, however, only takes us so far. The EU may enact a legally binding act in an area covered by this category of competence, which is based on the relevant Treaty article authorizing the making of such acts. It may then be argued that the enacted measure is tantamount to harmonization of national law, even though it does not bear this imprint on the face of the measure. It would then be for the CJEU to decide whether in substance the contested measure constituted harmonization and was therefore caught by the limit in Article 2(5) TFEU. The line between a legitimate legally binding act that advances the objectives of the areas covered by this category of competence, and ­illegitimate harmonization of national laws, may be a fine one in a particular case. Thirdly, it should not be assumed that the consequences for the Member States of enactment of legally binding acts in these areas will necessarily be less far-reaching than harmonization. The assumption behind Article 2(5) TFEU is that harmonization of national laws is by its very nature more intrusive for Member States than other EU legal norms. This rationale may hold true, but it may not. It depends on the nature of the particular harmonization measure and the non-harmonization legally binding act.

7  Economic, Employment, and Social Policy (A)  Basic Principles A division between exclusive, shared, and supporting competence can be understood, notwithstanding the difficulties mentioned earlier. The creation of a particular head of competence to deal with economic and employment policy does little, however, to enhance the symmetry of the new scheme. The Lisbon Treaty has a separate category of competence for these matters. Article 2(3) TFEU states that ‘the Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide’. The detailed rules are then set out in Article 5 TFEU.68

68  The ‘fit’ between Art 2(3) and Art 5 TFEU is not perfect, insofar as the former refers to economic and employment policy, while the latter also covers social policy. There is, moreover, a difference in language, in

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1. The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies. Specific provisions shall apply to those Member States whose currency is the euro. 2. The Union shall take measures to ensure coordination of the employment p ­ olicies of the Member States, in particular by defining guidelines for these p ­ olicies. 3. The Union may take initiatives to ensure coordination of Member States’ social policies.

The explanation for this separate category was political. There would have been significant opposition to the inclusion of these areas within shared competence, with the consequence of pre-emption of state action when the EU exercised power within this area. It is equally clear that there were those who felt that the category of supporting, coordinating, and supplementary action was too weak. This was the explanation for the creation of a separate category, and its placement after shared power, but before the category of supporting, coordinating, and supplementary action. The boundary problems that we have seen in the preceding discussion are evident here too, particularly in relation to social policy. The difficulties in this area are especially marked, since certain aspects of social policy fall within shared competence, although it is not precisely clear which; other aspects appear to fall within the category of supporting, coordinating, and supplementary action, even though they are not within the relevant list; and there is in addition separate provision for social policy in the category being considered here. The reach of Article 5(3) TFEU and its relationship with the more detailed Treaty provisions on social policy is not clear. The most natural ‘linkage’ would seem to be Article 156 TFEU, which ­empowers the Commission to encourage cooperation between Member States and facilitate coordination of their action in all fields of social policy, albeit through soft law measures.69

(B)  Category and Legal Consequence The Treaty schema in Article 2 TFEU is in general premised on the ascription of legal consequences for EU and Member State power as the result of coming within a particular category of competence. Article 5 TFEU is an exception in this respect, since Article 2(3) TFEU does not spell out the legal consequences of inclusion within this category. It simply provides that the ‘Member States shall co-ordinate their economic and employment policies within the arrangements as determined by this Treaty, which the Union shall have competence to provide’. The legal consequences of inclusion within this category can, therefore, only be divined by considering the language of

that the EU is enjoined in mandatory language to coordinate economic and employment policy, whereas it is accorded discretion in relation to social policy. 69  The wording of the respective provisions does not, however, fit perfectly: Art 5(3) is framed in discretionary terms, ‘the Union may take initiatives’, while Art 156 TFEU is drafted in mandatory language, to the effect that the ‘Commission shall’ encourage the relevant cooperation and coordination.

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Article 5 TFEU, which is couched largely in terms of coordination, and by considering the detailed provisions that apply to these areas.

8  Common Foreign and Security Policy and Defence The three-pillar structure that characterized the previous Treaty has not been preserved in the Lisbon Treaty. There are, nonetheless, distinct rules that apply in the context of foreign and security policy, and this warrants a separate head of competence for this area. It is set out in Article 2(4) TFEU. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

The rules concerning the CFSP are set out in Title V TEU. Decision-making in this area continues to be more intergovernmental and less supranational by way of comparison with other areas of Union competence.70 The European Council and the Council dominate decision-making, and the legal instruments applicable to CFSP are distinct from those generally applicable for the attainment of Union objectives.71 Suffice it to say for the present that Article 2(4) does not specify which type of competence applies in the context of the CFSP. In truth none of the categories are a good fit. It is clearly not within exclusive competence, since it is not listed in Article 3 TFEU, and in any event the substance of the CFSP simply does not accord with the idea of exclusive EU competence. Nor is it mentioned in the list of those areas that are subject to supporting, coordinating, or supplementing Member State action in Article 6 TFEU. This would seem to imply that it falls within the default category of shared competence in Article 4 TFEU, even though not mentioned in the nonexhaustive list. The reality is, however, that the world of the CFSP may not readily fit within the frame of shared administration, insofar as this connotes pre-emption of Member State action when the EU has exercised its power in the area, nor does this idea cohere with Declarations appended to the Lisbon Treaty.72 If the CFSP is regarded as within shared administration, the point made earlier concerning the need for close examination of the respective powers of the EU and Member States, in order to be clear about the nature of the power sharing, is of especial significance.

70  Cremona (n 21).    71  Craig (n 14) Ch 10. 72  Declarations 13 and 14 on the common foreign and security policy.

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9  Broad Treaty Provisions: The ‘Flexibility’ Clause The discussion thus far has been concerned with the principal categories of competence established by the Lisbon Treaty. The discussion in this and the following section focuses on two particular Treaty provisions, Articles 352 and 114 TFEU, the successor provisions to Articles 308 and 95 EC. These provisions are broadly framed, and thus give the EU a potentially wide regulatory competence. Member State concern over the extensive use of these provisions was a principal factor behind Treaty reform in this area, and was reflected in the desire to ensure that EU power was contained. It is, therefore, important to see how far this has been achieved.

(A)  Article 308 EC Article 352 TFEU is the successor provision to Article 308 EC. It is important to understand the legal and political background to Article 308 EC in order to understand Article 352 TFEU. Article 308 EC provided that: If action by the Community should prove necessary to attain, in the course of the o ­ peration of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

Article 308 was a valuable legislative power, particularly when the Community did not possess specific legislative authority in certain areas. Thus, the Article was used to legitimate legislation in areas such as the environment and regional policy, before these matters were dealt with through later Treaty amendments.73 Article 308 EC required that the power should be used to attain a Community objective. Given, however, the breadth of the Treaty objectives, and given also the ECJ’s purposive mode of interpreting Community aims, these ‘conditions’ did not place a severe constraint on the Council. They were not, however, entirely devoid of meaning, and the ECJ on occasion held that Article 308 could not be used to legitimate Community action,74 although in the instant case it should be acknowledged that the ECJ was probably content to reach this conclusion, thereby avoiding subjecting itself to the ultimate authority of the European Court of Human Rights. The most problematic aspect of Article 308 EC was the condition that the Treaty had not ‘provided the necessary powers’,75 and therefore whether another Treaty article could be used instead of Article 308.76 This could be of particular significance where a

73  J Weiler, ‘The Transformation of Europe’ (1991) 100 Yale LJ 2403, 2445–6. 74  Opinion 2/94 Accession of the Community to the European Human Rights Convention [1996] ECR I-1759. Cf. Opinion 2/91 ILO Convention 170 on Chemicals at Work [1993] ECR I-1061. 75  Case 8/73 Hauptzollamt Bremerhaven v Massey-Ferguson [1973] ECR 897. 76  Case 45/86 Commission v Council (Tariff Preferences) [1987] ECR 1493; Case 165/87 Commission v Council [1988] ECR 5545; Case C-295/90 European Parliament v Council [1992] ECR I-4193; Case C-209/97

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specific Treaty article provided for more extensive involvement of the European Parliament than did Article 308, which only required consultation with the European Parliament.77 The other situation in which the choice between Article 308 EC and a more specific Treaty article could be significant was where there were differences in the voting rules under the respective articles. Article 308 required unanimity in the Council, whereas many other Treaty provisions demanded only a qualified majority.

(B)  Article 352 TFEU Article 308 EC was long viewed with suspicion by those calling for a clearer delimitation of Community competences, and in particular by the German Länder. Various calls for reform were made before and during Intergovernmental Conferences. This issue was placed on the post-Nice and Laeken agenda for reform of the EU. The Laeken Declaration expressly asked whether Article 308 EC ought to be reviewed, in the light of the twin challenges of preventing the ‘creeping expansion of competences’ from encroaching on national and regional powers, while allowing the EU to ‘continue to be able to react to fresh challenges and developments and . . . to explore new policy areas’.78 The Working Group on Complementary Competences recognized the concerns about the use of Article 308. The Group, nonetheless, recommended the retention of the Article in order that it could provide for flexibility in limited instances.79 The ­flexibility clause is now enshrined in Article 352 TFEU. 1. If action by the Union should prove necessary, within the framework of the ­policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament. 2. Using the procedure for monitoring the subsidiarity principle referred to in Article 5(3) of the Treaty on European Union, the Commission shall draw national Parliaments’ attention to proposals based on this Article. 3. Measures based on this Article shall not entail harmonisation of Member States’ laws or regulations in cases where the Treaties exclude such harmonisation.

Commission v Council [1999] ECR I-8067; Case C-377/98 Netherlands v Parliament and Council (n 8); Case C-436/03 European Parliament v Council [2006] ECR I-3733. 77  Case 45/86 Commission v Council [1987] ECR 1493; Case C-350/92 Spain v Council [1995] ECR I-1985; Case C-271/94 European Parliament v Council (Re the Edicom Decision) [1996] ECR I-1689. 78  Laeken Declaration (n 4) 22. 79 CONV 375/1/02, Final Report of Working Group V on Complementary Competencies, Brussels, 4 November 2002, 14–18.

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4. This Article cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy and any acts adopted pursuant to this Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on European Union.

Article 352(1) TFEU is framed broadly in terms of the ‘policies defined in the Treaties’, with the exception of the CFSP. It can, therefore, serve as the basis for competence in almost all areas of EU law.80 The General Court in Costantini, nonetheless, cautioned against using Article 352 TFEU to adopt provisions whose effect would, in substance, be to amend the Treaty without following the procedure which the Treaty provides for that purpose, and, on the facts, rejected the claim that the Commission was compelled to bring forward a proposal through Article 352 based on a European Citizens’ Initiative.81 The unanimity requirement means, moreover, that it will be more difficult to use this power in an enlarged EU, and Article 352 TFEU also requires the consent of the European Parliament, as opposed to mere consultation, as was previously the case under Article 308 EC. It is also important to recognize that the need for recourse to this power will diminish, given that the Lisbon Treaty created a legal basis for action in the areas where Article 308 EC had previously been used.82 The German Federal Constitutional Court was, nonetheless, concerned about the scope of Article 352 and stipulated that the exercise of any such competence constitutionally required ratification by the German legislature.83 The conditions in Article 352(2)–(4) are novel. The import of Article 352(2) is not entirely clear. Weatherill has argued that uniquely within the Lisbon Treaty it provides national parliaments with the opportunity to contest the existence of competence when legislative action is based on the flexibility clause, as opposed to other contexts where national parliaments can simply challenge on grounds of subsidiarity.84 This may be so. It does not, however, sit comfortably with the wording of Article 352(2), which is framed in terms of subsidiarity and is not suggestive of national parliamentary power to challenge the existence of competence. The more natural interpretation is that because the flexibility clause entails an exceptional use of EU legislative power, the Commission therefore has an additional obligation, viz to draw this to the attention of national parliaments, in order that they might contest it on the grounds of subsidiarity.

80  See, eg, Case C-270/12 UK v European Parliament and Council, EU:C:2013:562, AG Jääskinen; Cases C-103 and 165/12 European Parliament v Commission and Council, EU:C:2014:334, [110]–[111], AG Sharpston; A Dashwood, ‘Article 308 EC as the Outer Limit of Expressly Conferred Community Competence’ in C Barnard and O Odudu (eds), The Outer Limits of European Union Law (Hart, 2009). 81  Case T-44/14 Costantini v European Commission, EU:T:2016:223, [51]–[56]. 82  See, eg, energy, Art 194(2) TFEU; civil protection, Art 195(2) TFEU; economic aid to third countries, Arts 209(1), 212(2) TFEU; Case C-409/13 Council of the European Union v European Commission, EU:C:2015:217, [2]. 83 Lisbon Case, BVerfG, 2 BvE 2/08, from 30 June 2009, [326]–[328], available at http://www.bverfg. de/entscheidungen/es20090630_2bve000208.html. English translation available at http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html. 84  Weatherill (n 1).

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10  Broad Treaty Provisions: The Harmonization Clause The changes made by the Lisbon Treaty to what is now Article 352 TFEU, in particular the fact that express legislative competence is granted in the areas where the Article was used in the past, mean that this Article is likely to be less problematic in the future than it was previously. The Lisbon Treaty has, by way of contrast, done little to alleviate problems of ­‘competence creep’ in the terrain covered by Article 114 TFEU, which has not been changed. It is the main Treaty article used to enact harmonization measures. 1. Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

Concerns about over-extensive use of this legislative competence arose because it was felt that the EU was too readily assuming power to harmonize national laws based on mere national divergence, with scant attention being given to the impact, if any, of that divergence on the functioning of the internal market.85 The ECJ’s ruling in the Tobacco Advertising case86 appeared to signal some tightening up in this respect, but subsequent case law87 revealed softening of the ECJ’s position on this issue. It is now more willing to find that regulatory competence exists because divergent national laws constitute an impediment to the functioning of the internal market and EU harmonization contributes to the elimination of obstacles to the free movement of goods, or to the freedom to provide services, or to the removal of distortions of competition. Impact Assessment88 can, however, be used both politically and legally as a method of checking whether there really is a problem that requires harmonization at EU l­evel.89 Impact Assessment is a set of steps to be followed when policy proposals are prepared, alerting political decision-makers to the advantages and disadvantages of policy options by assessing their potential impacts. The results of this process are summarized and

85  Ibid; S Weatherill, ‘Competence Creep and Competence Control’ (2004) 23 YEL 1. 86  Case C-376/98 Germany v European Parliament and Council (n 7). 87  See nn 8–9; D Wyatt, ‘Community Competence to Regulate the Internal Market’ in M Dougan and S  Currie (eds), 50 Years of the European Treaties: Looking Back and Thinking Forward (Hart, 2009) Ch 5; S Weatherill, ‘The Limits of Legislative Harmonisation Ten Years after Tobacco Advertising: How the Court’s Case Law has become a “Drafting Guide”’ (2011) 12 German Law Journal 827. 88 Impact Assessment, COM(2002) 276 final; Impact Assessment-Next Steps, SEC(2004) 1377; Better Regulation and Enhanced Impact Assessment, SEC(2007) 926; Impact Assessment Guidelines, SEC(2009) 92; https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en. 89  Craig (n 14) 188–92.

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presented in an Impact Assessment Report,90 which is checked by an independent body, the Regulatory Scrutiny Board.91 This does not replace political decision-making, which remains the preserve of the College of Commissioners.92 A typical Impact Assessment will address a range of issues including: the nature and scale of the problem; the views of stakeholders; whether the EU should be involved; the objectives of any such involvement; the main policy options for reaching these objectives, including their relative effectiveness/efficiency; and the likely economic, social, and ­environmental impacts of those options. The Impact Assessment is not some panacea that will magically dispel concerns as to ‘competence creep’ or ‘competence anxiety’. It is, nonetheless, central to addressing these concerns. The Impact Assessment Report considers the very issues that are pertinent to this inquiry. This includes the justification for EU action in terms of, for example, the need for harmonization because of the impact of diverse national laws on the functioning of the internal market. It also includes the subsidiarity calculus, which is an explicit step in the overall Impact Assessment process,93 with a specific section devoted to verification of the EU’s right of action and justification thereof in terms of subsidiarity.94 The Impact Assessment strategy constitutes, therefore, a framework within which to address concerns as to competence anxiety. The strategy is not perfect, but it has been improved since its inception and assessments, both official95 and academic,96 have generally been positive. If the data in a particular Impact Assessment Report is felt to be wanting, then we should press for further improvement and not be satisfied with exiguous or laconic argument. The very fact that there is a framework within which these issues are now considered is, however, a positive step, which facilitates scrutiny as to the nature of the justificatory arguments and their adequacy. This should in turn facilitate judicial review.97 The CJEU should be willing to consider the adequacy of the reasoning for EU legislative action, and to look behind the formal legislative preamble to the arguments that underpin it

90  Impact Assessment Guidelines, SEC(2009) 92, 1.1. 91 https://ec.europa.eu/info/law/law-making-process/regulatory-scrutiny-board_en; http://ec.europa.eu/ transparency/regdoc/?fuseaction=ia. 92  Case C-477/14 Pillbox 38 (UK) Ltd, trading as Totally Wicked v Secretary of State for Health, EU:C:2016:324, [65]. 93  Impact Assessment Guidelines, SEC(2009) 92, 2.1, 2.3. 94  Ibid 5.2. 95  Evaluation of the Commission’s Impact Assessment System, Final Report—Executive Summary (Secretariat General of the Commission, April 2007); Impact Assessment Board Report for 2008, SEC(2009) 55; Court of Auditors, Special Report 3/2010, Impact Assessments in the EU Institutions: Do They Support Decision-Making? 96  European Policy Forum, ‘Reducing the Regulatory Burden: The Arrival of Meaningful Regulatory Impact Analysis’, City Research Series No 2 (2004); C Radaelli and F de Francesco, Regulatory Quality in Europe: Concepts, Measures and Policy Processes (Manchester University Press, 2007); C Cecot, R Hahn, A Renda, and L Schrefler, ‘An Evaluation of the Quality of Impact Assessment in the European Union with Lessons for the US and the EU’ (2008) 2 Regulation & Governance 405; A Alemanno, ‘A Meeting of Minds on Impact Assessment’ (2011) 17 EPL 485; A Renda, L Schrefler, G Luchetta, and R Zavatta, ‘Assessing the Costs and Benefits of Regulation’, CEPS Study for the European Commission (Secretariat General, 2013); Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making [2016] OJ L123/1, [12]–[18]. 97  K Lenaerts, ‘The European Court of Justice and Process-Oriented Review’ (2013) 31 YEL 3.

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derived from the Impact Assessment.98 The CJEU should be properly mindful of the Commission’s expertise as evinced in the Impact Assessment. It should also be cognizant of the precepts in the Treaty, which in the case of Article 114 TFEU condition EU intervention on proof that approximation of laws is necessary for the functioning of the internal market. If the justificatory reasoning to this effect in the Impact Assessment is wanting then the CJEU should invalidate the relevant instrument, and thereby signal to the political institutions that the precepts in the Treaty are to be taken seriously.

11 Subsidiarity (A) Pre-Lisbon Closely linked to the question of the ‘existence’ of competence is the principle of subsidiarity, which is intended to regulate the ‘exercise’ of competence. Subsidiarity was introduced in the Maastricht Treaty, and was intended to curb the ‘federalist’ leanings of the Community. The pre-Lisbon formulation was contained in Article 5 EC: The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.

The requirement in the first paragraph of Article 5 affirmed that the Community only has competence within the areas in which it has been given power. Article 5 also made it clear that subsidiarity would have to be considered only in relation to areas which did not fall within the Community’s exclusive competence, although it was in reality taken into account in relation to areas that came within the Community’s exclusive competence. The problem was that pre-Lisbon there was no simple criterion for determining the scope of the Community’s exclusive competence, since the Treaty was not framed in those terms. The Commission took a broad view of exclusive competence,99 and commentators differed considerably on the issue.100 98  The ECJ referred to the impact assessment in Case C-58/08 The Queen, on the application of Vodafone Ltd v Secretary of State for Business, Enterprise and Regulatory Reform [2010] ECR I-4999, [45], [55], [58], [65]; Case C-176/09 Luxembourg v European Parliament and the Council [2011] ECR I-3727, [65]; Case C-547/14 Philip Morris Brands SARL v Secretary of State for Health, EU:C:2016:325, [117], [132]; Case C-358/14 Poland v European Parliament and Council, EU:C:2016:323, [101], [109], [123]. 99  Bull EC 10-1992, 116; 1st Report of Commission on Subsidiarity, COM(94) 533. 100  AG Toth, ‘A Legal Analysis of Subsidiarity’ in D O’Keeffe and P M Twomey (eds), Legal Issues of the Maastricht Treaty (Chancery, 1994) 39–40; J Steiner, ‘Subsidiarity under the Maastricht Treaty’ in O’Keeffe and

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The subsidiarity principle had three components: the Community was to take action only if the objectives of that action could not be sufficiently achieved by the Member States; the Community could better achieve the action, because of its scale or effects; if the Community did take action then this should not go beyond what was necessary to achieve the Treaty objectives. The first two parts of this formulation entailed what the Commission termed a test of comparative efficiency,101 in the sense of determining whether it was better for action to be taken by the Community or the Member States, while the third part of the formulation brought in a proportionality test. The 1993 Inter-institutional Agreement on Procedures for Implementing the Principle of Subsidiarity required all three institutions to have regard to the principle when devising Community legislation. This was reconfirmed by the Protocol on the Application of the Principles of Subsidiarity and Proportionality attached to the Amsterdam Treaty,102 which set out in more detail the subsidiarity calculus. The idea that matters should be dealt with at the level closest to those affected is fine in principle, but there were many areas in which the comparative efficiency calculus favoured Community action, since the realization of the Community objectives often demanded Community action to ensure the uniformity of general approach that was important for attainment of a common market.103 There were, moreover, difficulties with the approach in the pre-Lisbon scheme, since it was relatively easy to argue that the functional interconnection between different regulatory areas warranted intervention at Community level.104 The very existence of Article 5 EC nonetheless had an impact on the existence and form of Community action. The Commission considered whether action really was required at Community level,105 and if this was so it would often proceed through directives rather than regulations.

(B) Post-Lisbon (i)  Subsidiarity Principle The subsidiarity principle has been retained in the Lisbon Treaty. It distinguishes between the existence of competence and the use of such competence, the latter being determined by subsidiarity and proportionality.106 The principles are embodied in Article 5(3)–(4) TEU.107 Twomey, ibid 57–8; N Emiliou, ‘Subsidiarity: Panacea or Fig Leaf?’ in O’Keefe and Twomey, ibid Ch 5, and ‘Subsidiarity: An Effective Barrier Against the “Enterprises of Ambition”?’ (1992) 17 ELRev 383. 101  Commission Communication to the Council and the European Parliament, Bull EC 10-1992, 116. 102  G de Búrca, ‘Reappraising Subsidiarity’s Significance after Amsterdam’, Jean Monnet Working Paper 7/1999, https://jeanmonnetprogram.org/archive/papers/99/990701.html. 103  Better Lawmaking 1999, COM(1999) 562 final, 2. 104  A Estella, The EU Principle of Subsidiarity and its Critique (Oxford University Press, 2002) 113–14. 105  Better Lawmaking 2000, COM(2000) 772 final, 4–8, 15–21. 106  Art 5(1) TEU. 107  J-V Louis, ‘National Parliaments and the Principle of Subsidiarity—Legal Options and Practical Limits’ in I Pernice and E Tanchev (eds), Ceci n’est pas une Constitution—Constitutionalization without a Constitution? (Nomos, 2009) 131–54; G Bermann, ‘National Parliaments and Subsidiarity: An Outsider’s View’, ibid 155–61; J Peters, ‘National Parliaments and Subsidiarity: Think Twice’ (2005) European Constitutional L Rev 68;

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3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol. 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

The Lisbon Treaty contains a Protocol on the Application of the Principles of Subsidiarity and Proportionality,108 which should be read in tandem with the Protocol on the Role of National Parliaments in the EU.109 The Subsidiarity Protocol only applies to draft legislative acts110 and does not cover delegated or implementing acts. It is possible that a detailed delegated act might be felt to infringe subsidiarity, but the Protocol provides no formal mechanism for checks by national parliaments on such measures. The Commission has, nonetheless, signalled that it will take account of subsidiarity concerns in relation to such measures in the context of political dialogue with national parliaments.111 (ii)  Subsidiarity Calculus The Subsidiarity Protocol imposes an obligation on the Commission to consult widely before proposing legislative acts.112 The Commission must provide a detailed statement concerning proposed legislation so that compliance with subsidiarity and proportionality can be appraised. The statement must contain some assessment of the financial impact of the proposals, and there should be qualitative and, wherever possible, quantitative indicators to substantiate the conclusion that the objective can be better attained at Union level.113 The Commission must submit an annual report on the application of subsidiarity to the European Council, the European Parliament, the Council, and to national parliaments.114 The CJEU has jurisdiction to consider infringement of subsidiarity under Article 263 TFEU, brought by the Member State, or ‘­notified

X  Grossot and S Bogojevic, ‘Subsidiarity as a Procedural Safeguard of Federalism’ in Azoulai (n 1) Ch 11; S  Blockmans, J Hoevenaars, A Schout, and J Marinus Wiersma, ‘From Subsidiarity to Better Governance: A Practical Reform Agenda for the EU’, CEPS Essay No 10 (2014). 108  Protocol (No 2) On the Application of the Principles of Subsidiarity and Proportionality. 109  Protocol (No 1) On the Role of National Parliaments in the European Union. 110  Subsidiarity and Proportionality Protocol (n 108) Art 3. 111  On Relations between the Commission and National Parliaments, COM(2011) 345 final, 4. 112  Subsidiarity and Proportionality Protocol (n 108) Art 2. 113  Ibid Art 5. 114  Ibid Art 9; COM(2011) 345 (n 111).

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by them in accordance with their legal order on behalf of their national Parliament or a chamber of it’.115 (iii)  Enhanced Role for National Parliaments The most important innovation in the Protocol on Subsidiarity is the enhanced role accorded to national parliaments. The Commission must send all legislative proposals to the national parliaments at the same time as to the Union institutions. The national parliaments must also be provided with legislative resolutions of the European Parliament, and positions adopted by the Council.116 The Protocol provides for varying responses from the EU institutions depending on the number of national parliaments that voice subsidiarity concerns about the proposed legislation. A national parliament or chamber thereof, may, within eight weeks, send the Presidents of the Commission, European Parliament, and Council a reasoned opinion as to why it considers that the proposal does not comply with subsidiarity.117 The European Parliament, Council, and Commission must take this opinion into account.118 Where non-compliance with subsidiarity is expressed by national parliaments that represent one-third of all the votes allocated to such parliaments, the Commission must review its proposal.119 The Commission, after such review, may decide to maintain, amend, or withdraw the proposal, giving reasons for the decision.120 Where a measure is made in accord with the ordinary legislative procedure, and at least a simple majority of votes given to national parliaments signal non-compliance with subsidiarity, then the proposal must once again be reviewed and although the Commission can decide not to amend it, the Commission must provide a ­reasoned opinion on the matter and this can, in effect, be overridden by the European Parliament or the Council. Thus the European Parliament acting by a majority of votes cast, or 55 per cent of members of the Council, can decide that the legislative proposal is not compatible with subsidiarity and that it should not be given further consideration.121 It should, however, be noted that while the Protocol imposes obligations on the Commission to ensure compliance with the principles of subsidiarity and proportionality, national parliaments are afforded a role only in relation to the former and not the latter. The reasoned opinion submitted by the national parliament must relate to subsidiarity. This is regrettable, as Weatherill rightly notes,122 since it is difficult to disaggregate the two principles, and insofar as one can do so there is little reason why national parliaments should not be able to proffer a reasoned opinion on proportionality as well as subsidiarity.

115  Ibid Art 8. 116  Ibid Art 4. 117  Ibid Art 6. 118  Ibid Art 7(1). 119  Ibid Art 7(2). This threshold is lowered to one-quarter in cases of acts concerning the area of freedom, justice, and security that are based on Art 76 TFEU. 120  Ibid Art 7(2). 121  Ibid Art 7(3). 122  Weatherill (n 1).

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(iv)  Political Control: Evaluation There are two points to bear in mind when assessing subsidiarity from a political perspective. They are related but distinct. The first is that there has, not surprisingly, been discussion as to how far the new controls accorded to national parliaments have really added to their power.123 The impact of these measures depends on the willingness of national parliaments to devote the requisite time and energy to the matter. The national parliament has to submit a reasoned opinion as to why it believes that the measure infringes subsidiarity. It will have to present reasoned argument as to why the Commission’s comparative efficiency calculus is defective. This may not be easy. It will be even more difficult for the requisite number of national parliaments to present reasoned opinions in relation to the same Union measure so as to compel the Commission to review the proposal. The Commission is, nonetheless, likely to take seriously any such reasoned opinion, particularly if it emanates from a larger Member State.124 The first instance where the requisite number of parliaments was secured to raise a yellow card was in relation to what was known as the ‘Monti II’ proposal concerning labour law. The Commission withdrew the proposal, albeit without admitting that it violated subsidiarity.125 The second point is equally if not more important, albeit much less discussed, which is that subsidiarity can lead to regulatory failure.126 Subsidiarity can mean either that the entirety of an EU objective could be sufficiently achieved at Member State level, or that aspects such as enforcement, oversight, etc, meet this criterion and should therefore be done by the Member States. The latter is more common than the former. If the EU decides to pursue a subsidiarity strategy it has choices as to how to do so: it might simply leave certain aspects of the regulatory regime to be dealt with at national level; it might specify EU rules to govern all aspects of the regulatory schema, but do so at a relatively high level of generality, thereby leaving more scope for national input and variation; or it might pursue an admixture of both strategies. This approach is, however, predicated on the feasibility of the divide between different aspects of a regulatory scheme, some of which are regulated at EU level, others of which are left to subsidiarity-based national rules. This might work, and indeed might be the optimal way to regulate the area. We cannot, however, assume that this is so. The reality 123  P Kiiver, ‘The Early-Warning System for the Principle of Subsidiarity: the National Parliament as a Conseil d’Etat for Europe’ (2011) 36 ELRev 98; P Kiiver, The Early Warning System for the Principle of Subsidiarity: Constitutional Theory and Empirical Reality (Routledge, 2012); A Cygan, ‘The Parliamentarisation of EU Decision-Making? The Impact of the Treaty of Lisbon on National Parliaments’ (2011) 36 ELRev 48; T van den Brink, ‘The Substance of Subsidiarity: The Interpretation and Meaning of the Principle after Lisbon’ in M Trybus and L Rubini (eds), The Treaty of Lisbon and the Future of European Law and Policy (Edward Elgar, 2012) Ch 9; D Jancic, ‘The Game of Cards: National Parliaments in the EU and the Future of the Early Warning Mechanism and the Political Dialogue’ (2015) 52 CMLRev 939. 124  Annual Report 2010 on Relations Between the Commission and National Parliaments, COM(2011) 345 final. 125  Annual Report 2012 on Subsidiarity and Proportionality, COM(2013) 566 final, [3]; F Fabbrini and K Granat, ‘Yellow Card but no Foul: The Role of the National Parliaments under the Subsidiarity Protocol and the Commission Proposal for an EU Regulation on the Right to Strike’ (2013) 50 CMLRev 115. 126  P Craig, ‘Subsidiarity: A Political and Legal Analysis’ (2012) 50 JCMS 72.

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is in many areas, such as telecommunications, energy, agriculture, and the Structural Funds, that the desire to foster subsidiarity, either by leaving certain aspects of the regulatory regime to national rules, or through EU rules that govern the relevant issues but are set at a high level of generality so as to allow for national choice, have led to regulatory failure, with the consequence that the rules have had to be revised and the level of EU control ratcheted-up. The de Larosière Report on failures in the regulatory regime concerning banking and securities provides merely one high-profile example of this.127 The tension between desire to make subsidiarity a reality and the need to address problems at the EU level in order to achieve its overall objectives is, however, ever present. It was recognized by President Barroso, who regarded subsidiarity as the translation of a democratic principle, aimed ‘at making public policy work to best effect in a Union built on solidarity’, while at the same time acknowledging that ‘the continental scale of Europe and the scale of our ambitions points inevitably towards taking the wide view, looking at the bigger picture’.128 (v)  Legal Control: Evaluation The Protocol provides for recourse to the CJEU for infringement of subsidiarity under Article 263 TFEU, in an action brought by the Member State. The Protocol also provides for the action to be notified by the state on behalf of the national parliament, and it remains to be seen how this works. There may be instances where the Member State has agreed in the Council to the EU measure, which the national parliament then regards as infringing subsidiarity. This is the rationale for the provision allowing the Member State to notify the action on behalf of its parliament. This still leaves open interesting questions as to how such a case will be argued. If the Member State has voted for the legislative act in the Council, it will be odd for it then to contend before the Court that the measure violates subsidiarity. If the legal action is to be a reality the Member State will not simply have to notify the action on behalf of its parliament, but also allow the parliament through its chosen legal advocate to advance its arguments that the measure does not comply with subsidiarity, even if the Member State does not agree with those arguments. This still leaves open the central issue, which is the intensity of the judicial review.129 The indications are that the ECJ will not lightly overturn EU action on the ground that it does not comply with subsidiarity. This is apparent in procedural terms from Germany v European Parliament and Council.130 The ECJ held that the duty to give reasons did not require that Community measures contain an express reference to the subsidiarity principle. It was sufficient 127  J de Larosière, The High Level Group on Financial Supervision in the EU (Brussels, 2009) [102]–[105], http://ec.europa.eu/internal_market/finances/docs/de_larosiere_report_en.pdf. 128  M Barroso, Political Guidelines for the Next Commission, European Commission, September 2009, 40–1. 129 C Panara, ‘The Enforceability of Subsidiarity in the EU and the Ethos of Cooperative Federalism: A Comparative Law Perspective’ (2016) 22 EPL 305. 130  Case C-233/94 Germany v European Parliament and Council (n 6) [26]–[28].

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that the recitals to the measure made it clear why the Community institutions believed that the aims of the measure could best be attained by Community action. The difficulty of overturning a measure in substantive terms is apparent from the Working Time Directive case.131 The UK argued that the Directive infringed subsidiarity, since it had not been shown that action at Community level would provide clear benefits compared with action at national level. The ECJ disposed of the argument briskly. It was, said the Court, the responsibility of the Council under Article 118a EEC132 to adopt minimum requirements to contribute to improvement of health and safety. When the Council found it necessary to improve the existing level of protection and to harmonize the law in this area while maintaining the improvements already made, achievement of that objective necessarily presupposed Community-wide action. A similarly ‘light’ judicial approach to subsidiarity review is evident in some other cases.133 The CJEU has, however, considered subsidiarity arguments in greater detail in some more recent cases, as exemplified by its decision in the Tobacco Flavours case, in which it considered in some detail the substantive and procedural dimensions of the claim, before rightly rejecting it on the facts of the case.134 There are undoubtedly difficulties with judicial review in this area. If the CJEU undertakes only very light-touch review, it is open to the criticism that it is effectively denuding the obligation in Article 5(3)–(4) of all content. If, by way of contrast, it takes a detailed look at the evidence underlying the Commission’s claim it will have to ­adjudicate on what may be a complex socio-economic calculus concerning the most ­effective level of government for different regulatory tasks. The difficulty of adjudicating on the substantive issue of comparative efficiency would, nonetheless, be alleviated if the Union Courts were to require more from the Commission in procedural terms. The obligation to give reasons could be used to require the Commission to disclose the qualitative and quantitative data that is meant to inform its reasoning pursuant to the Protocol. This would not solve all problems of substantive review, but it would provide the EU Courts with more to go on, as compared to their present reliance on the exiguous reasoning contained in the preamble to the contested measure. The development of Impact Assessment135 is significant in this context. It includes the subsidiarity calculus,136 with a specific section devoted to verification of the EU’s right of action in terms of subsidiarity.137 The very fact that there is a framework within 131  Case C-84/94 UK v Council (n 6) [46]–[47], [55]. 132  Now Art 154 TFEU. 133  Case C-377/98 Netherlands v Parliament and Council (n 8); Cases C-154–155/04 The Queen, on the application of Alliance for Natural Health and Nutri-Link Ltd v Secretary of State for Health [2005] ECR I-6451, [99]–[108]; Case C-491/01 British American Tobacco (n 8) [177]–[185]; Case C-103/01 Commission v Germany [2003] ECR I-5369, [46]–[47]; Case T-168/01 GlaxoSmithKline Services Unlimited v Commission [2006] ECR II-2969, [201]–[202]; Case T-326/07 Cheminova A/S v Commission [2009] ECR II-2685, [250]–[261]; Case C-58/08 Vodafone (n 98) [72]–[80]; Case C-518/07 Commission v Germany [2010] ECR I-1885, [52]–[55]. 134  Case C-358/14 Poland v European Parliament and Council, EU:C:2016:323, [111]–[127]; Case C-547/14 Philip Morris Brands (n 98) [213]–[227]. See also Case C-508/13 Republic of Estonia v European Parliament and Council, EU:C:2015:403. 135  See n 88. 136  Impact Assessment Guidelines, SEC(2009) 92, [2.1], [2.3]. 137  Ibid [5.2].

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which these issues are considered is a positive step, which facilitates scrutiny as to the nature of the justificatory arguments and their adequacy. This should in turn facilitate judicial review. If the justification for EU action contained in the Impact Assessment appears merely formal, scant, or exiguous then the CJEU should not hesitate to so conclude, thereby indicating that the enhanced role accorded to subsidiarity in the Lisbon Treaty will be taken seriously.138 (vi)  Subsidiarity: Evaluation Subsidiarity has always been an emotive subject, ever since its introduction in the Maastricht Treaty. This is true just as much for academics as for political players involved with the EU. Thus legal academics have criticized, with justification, the low-intensity judicial review undertaken by EU Courts when dealing with subsidiarity claims. There have been more far-reaching critiques, such as that by Davies,139 who argued that the subsidiarity inquiry is misplaced, and that the focus should rather be on whether the  challenged EU legislation is disproportionate by intruding too far into Member State values in relation to the objective sought to be attained by the EU legislation. Space precludes detailed analysis of these arguments.140 The following points should nonetheless be borne in mind when conducting a legal evaluation of subsidiarity. First, there have been relatively few legal challenges based on subsidiarity since its introduction into the Treaty, approximately thirty, which means roughly one per year. The real figure is lower than this, since some of the cases duplicate challenges made in other cases;141 some challenges were clearly misplaced given the nature of the Treaty provisions or EU regulatory scheme;142 some were misplaced because the EU was exercising exclusive competence, to which subsidiarity does not apply;143 while in yet ­others the Member State adduced no evidence to substantiate the subsidiarity argument.144 This leaves just over twenty cases in twenty years where there has been a real subsidiarity challenge. There have been thousands of regulations, directives, and decisions enacted during this period, with just over twenty subject to legal challenge. To put this figure in perspective, there will often be more than twenty legal challenges in a month based on some other ground of judicial review. Secondly, in a number of the ‘real’ cases the subsidiarity challenge was opposed by other Member States, who argued that the contested EU legislation was consistent with the subsidiarity principle. Any idea that Member States take a uniform view

138  J Oberg, ‘The Rise of the Procedural Paradigm: Judicial Review of EU Legislation in Vertical Competence Disputes’ (2017) 13 EuConst 248. 139  G Davies, ‘Subsidiarity: The Wrong Idea, in the Wrong Place at the Wrong Time’ (2006) 43 CMLRev 63. 140  Craig (n 126). 141  Case T-326/07 Cheminova (n 133). 142  Case T-65/98 Van den Bergh Foods Ltd v Commission [2003] ECR II-4653, [197]–[199]; Case T-420/05 Vischim Srl v Commission [2009] ECR II-3841, [221]–[223]; Case C-110/03 Belgium v Commission [2005] ECR I-2801, [56]–[58]; Case T-339/04 France Télécom SA v Commission [2007] ECR II-521, [77]–[82]. 143  Case T-461/13 Spain v Commission, EU:T:2015:891, [182]; Case T-122/15 Landeskreditbank BadenWürttemberg—Förderbank v European Central Bank, EU:T:2017:337, [65]. 144  Case C-64/05 P Sweden v Commission [2007] ECR I-11389, [74].

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c­ oncerning the application of subsidiarity in a particular case is untenable. It should also be recognized that some subsidiarity challenges have been brought by private ­parties and received no support from any Member State. This does not mean that such challenges were therefore misplaced. It does mean that no Member State supported the claim that the relevant EU legislation infringed subsidiarity. Thirdly, it is by no means clear that the ECJ’s decisions in the real subsidiarity cases were wrong, or that they would have been different if judicial review had been more intensive. It is too easy to reason from the premise that judicial review should be more searching, to the conclusion that the result would have been different. The premise is correct, but the conclusion is wrong. The result might be different, it might not. Thus even where the ­reasoning of the Advocate General was considerably more searching than that of the Court, as exemplified by Advocate General Maduro’s Opinion in Vodafone,145 the result was the same. The reality is that whether a particular judicial decision was right or wrong can only be determined by looking closely at the contested regulatory scheme and deciding whether it ‘passed’ the subsidiarity criterion. When judged from this perspective it is not self-­ evident that any of the challenged regulations should have fallen because of subsidiarity. Finally, it might be argued in the light of the above that the existing subsidiarity principle is defective, that the focus should be on whether the EU norm violates proportionality by infringing too greatly on Member State values and that if this were so then more cases would be brought by Member States and more might be successful.146 Space precludes detailed examination of this hypothesis.147 Suffice it to say the following for present purposes. It is not clear that any of the existing cases would or should have been decided differently even if this type of analysis had been applied by the EU Courts. There are, moreover, problems with this form of judicial scrutiny in terms of positive law, practical application, and at the conceptual level.

12 Conclusion EU competence is the result of the interaction of four variables: Member State choice as to the scope of EU competence, as expressed in Treaty revisions; Member State, and since the SEA, European Parliament acceptance of legislation that fleshed out the Treaty articles; the jurisprudence of the EU Courts; and decisions taken by the institutions as to how to interpret, deploy, and prioritize the power accorded to the EU. We should therefore be cautious about the assumption that the ‘competence problem’ was the result primarily of some unwarranted arrogation of power by the EU to the detriment of states’ rights. There were two principal objectives driving reform in this area: clarity as to the scope of EU competence and containment of EU power. The tripartite division in the Lisbon Treaty has gone some way towards greater clarity. The categories of exclusive 145  Case C-58/08 Vodafone (n 98) [27]–[36]; Case C-358/14 Poland (n 134). 147  Craig (n 126).

146  Davies (n 139).

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competence, shared competence, and competence to support, coordinate, or supplement Member State action are helpful in this respect. So too is the fact that the Lisbon Treaty specifies the legal consequences of assignment of a subject matter area to a particular category. There are, however, limits to what can be achieved through categorization. There will necessarily be problems of demarcating the boundaries of each category. The category of exclusive competence is relatively narrow insofar as it relates to areas that are stipulated as falling within this head of competence, but the scope of exclusive competence in relation to external relations is broader and problematic. Shared competence is the default position in the Lisbon Treaty. The broad range of areas that fall within shared competence means, however, that the informed observer can only determine the reality of this divide by looking at the detailed Treaty provisions that govern the relevant area. The nature of the divide will differ, often significantly, as between different areas that fall within the remit of shared competence. It also means that the informed observer who wishes to understand what the Member State is allowed to do in any such area will have to be acutely aware of whether and how the EU has exercised its power, since the Member States lose their competence to the extent that the EU has exercised its competence. The recognition of the category where the EU supports, coordinates, or supplements Member State action is to be welcomed. There are boundaries on EU competence in these areas, through the proscription on harmonization. The Treaty nonetheless allows persuasive soft law and binding hard law to achieve the objectives spelt out for each area. Such measures do not formally supersede Member State competence, but the legal reality is that such legally binding acts made by the EU will constrain Member State competence. The informed observer who wishes to understand the division between EU competence and that of the Member States will therefore have to be ­cognizant of the specific Treaty provisions that govern each of these areas, and of any EU legislation made pursuant thereto. The other principal concern driving reform in this area was the desire to contain EU power. This concern was based in large part on the broad use of what are now Articles 114 and 352 TFEU. The Lisbon Treaty renders problems based on Article 352 TFEU less likely in the future: it requires unanimity in the Council; consent from the European Parliament; national parliaments are specifically alerted to use of this provision; and the EU has been given specific legislative competence in the areas where Article 308 EC was used in the past. The Lisbon Treaty will, by way of contrast, do little to alleviate problems of ‘competence creep’ in the terrain covered by Article 114 TFEU. Impact Assessment can, however, be used both politically and legally as a method of checking as to whether there really is a problem that requires harmonization at EU level. The strengthening of the role of national parliaments in relation to subsidiarity is to be welcomed. It remains to be seen how effective this is in practice. The reality is that the Commission is likely to take seriously subsidiarity concerns voiced by Member States, especially the more powerful, and this is so even if the number of states voicing such concerns does not reach the levels to trigger the response mechanisms in the Protocol on subsidiarity and proportionality.

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15 Law, Fact, and Discretion 1 Introduction The discussion in the earlier chapters revealed the link between procedural and substantive judicial review. This chapter focuses on some central precepts of substantive review.1 The discussion begins with the meaning accorded to the concepts of law, fact, and discretion in EU law. This will be followed by examination of the test for review for questions of law. The focus then shifts to review of fact and discretion. The test for review and the meaning accorded to it in the early case law will be explicated. This will be followed by examination of the more recent jurisprudence, and it will be seen that the EU Courts have used the tests for review more intensively than hitherto, although there may be some modification of this in some recent case law. The final two sections of this chapter contain broader reflections on the standard of review emerging from the case law in relation to fact and discretion respectively.

2  Law, Fact, and Discretion (A) Introduction Substantive judicial review applies in relation to law, fact, and discretion. It is common for the test for review to differ depending upon which is in issue in any particular case. This necessarily requires distinctions to be drawn between law, fact, and discretion in  order that the test for review deemed to be appropriate by the legal system can be applied. 1  D Bailey, ‘Standard of Proof in EC Merger Proceedings: A Common Law Perspective’ (2003) 40 CMLRev 845; D Bailey, ‘Scope of Judicial Review under Article 81 EC’ (2004) 41 CMLRev 1327; R Caranta, ‘On Discretion’ in S Prechal and B van Roermund (eds), The Coherence of EU Law: The Search for Unity in Divergent Concepts (Oxford University Press, 2008), 185–215; A Fritzsche, ‘Discretion, Scope of Judicial Review and Institutional Balance in European Law’ (2010) 47 CMLRev 364; A Bouveresse, Le pouvoir discrétionnaire dans l’ordre juridique communautaire (Bruylant, 2010); J Mendes, ‘Discretion, Care and Public Interests in the EU Administration: Probing the Limits of Law’ (2016) 53 CMLRev 419; J Mendes, ‘Bounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU’ (2017) 80 MLR 443; J Oberg, ‘The Rise of the Procedural Paradigm: Judicial Review of EU Legislation in Vertical Competence Disputes’ (2017) 13 EuConst 248.

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The demarcation between law, fact, and discretion can, however, be problematic as any administrative lawyer will attest. There can be disagreement in analytical terms as to where the line should be drawn. It is, moreover, not uncommon for courts to demarcate on functional grounds: the labels law, fact, or discretion will be chosen to reflect judicial preconceptions as to how far the court wishes to intervene in a particular case. While recognizing this, it is nonetheless necessary to start with the analytical distinction, while being mindful that this will not always be determinative. It is sensible to begin in each instance with the paradigm instance of law, fact, and discretion, and then work outwards to the more problematic boundaries. The delineation between law, fact, and discretion is facilitated by having a clear conceptual idea of the way in which power is granted to administrative bodies. All such grants of power will take the form ‘if X you may or shall do Y’. It is common for there to be multiple X conditions, so that the grant of power states that if X1, X2, X3, X4 exists you may or shall do Y. The X conditions may entail matters of law, fact, or discretion, in the manner that will become clear in the course of the ensuing discussion. Thus to take an example, Article 107(1) TFEU is the foundational provision on state aids. It provides that if aid is granted by a Member State, or through state resources in any form whatsoever, and the aid distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, then the aid shall be incompatible with the common market. The obligation to prohibit state aid therefore only becomes applicable if a number of X conditions are fulfilled. There must be aid granted by the state, it must distort or threaten to distort competition, this distortion must result from favouring certain undertakings over others, and it must affect trade between Member States. Where these conditions are present then the Commission must do Y, in this instance prohibit the state aid, unless one of the exceptions listed in the Treaty is applicable. The application of these exceptions also follows the ‘if X, you may or shall do Y’ format. Thus Article 107(3)(a) TFEU states that if aid promotes the economic development of areas where the standard of living is abnormally low, or where there is serious underemployment, the Commission may consider it to be compatible with the common market. There are, therefore, once again X conditions that must be fulfilled, the aid must promote economic development, it must do so where the standard of living is abnormally low, or where there is serious underemployment. Where these conditions are met, the Commission may do Y, in this instance find the aid to be compatible with the common market.

(B) Law A paradigm question of law that arises in judicial review concerns the meaning of a term in a Treaty provision, regulation, directive, or decision. The term will commonly be one of the X conditions, although it is possible for such terms to appear at the Y  level. Courts will normally treat the meaning of terms such as state aid, worker,

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s­ ervices, goods, capital, agreement, and a thousand other such provisions that appear in the Treaty or rules made pursuant thereto as questions of law. The meaning of such terms cannot readily be regarded as a question of pure fact.2 The facts may tell one that a particular person undertook work where no pay was received, where there was a sharing of the benefits and burdens of running a community.3 Those facts do not, however, determine whether the person should be regarded as a worker for the purposes of free movement of workers. The facts may tell one that a retailer sold goods at a loss, but they do not resolve whether this should be treated as a measure equivalent to a quantitative restriction for the purposes of the free movement of goods.4 The meaning to be ascribed to worker, or measure equivalent to a quantitative restriction, will properly be treated as an issue of law, where a decision will have to be made in the light of existing case law, legal principle, and the perceived purposes of the provision in question. It is true that the legal meaning of the disputed term will be made in the light of facts. This is, however, to say no more than that Courts decide such issues on the basis of concrete cases that come before them.

(C) Fact Let us now turn to the meaning of fact. There is a tendency to treat fact as a ‘residual unitary category’, embracing cases where there is no issue of law or discretion. The paradigm is of a mistake relating to a primary fact, or direct inference therefrom, in the sense of an error pertaining to the existence of something said, done, or perceived. Closer examination reveals a more complex spectrum of situations covered by the terms fact or factual error.5 The paradigm is where a simple factual finding made by the decision-maker is challenged as being incorrect. This covers the case where the initial decision was premised on the existence of certain relatively simple or straightforward primary facts, such as whether a person was in a certain place at a certain time, or whether two firms met and exchanged information about future prices. There can, however, be cases involving more complex factual findings, which require more evaluative judgment. This is exemplified by many cases in competition law where the facts are multifaceted and difficult, and where there can be real differences of view as to the possible consequences flowing from them. There can also be cases where the primary decision-maker factually misinterpreted evidence presented at the hearing. A type of case that is related but distinct is where the initial decision-maker made a mistake of fact by failing to take account of 2  For discussion in the UK context, see W Wilson, ‘A Note on Fact and Law’ (1963) 26 MLR 609 and ‘Questions of Degree’ (1969) 32 MLR 361; E Mureinik, ‘The Application of Rules; Law or Fact?’ (1982) 98 LQR 587; J Beatson, ‘The Scope of Judicial Review for Error of Law’ (1984) 4 OJLS 22; T Endicott, ‘Questions of Law’ (1998) 114 LQR 292. 3  Case 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159. 4  Cases C-267 and 268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097. 5  P Craig, ‘Judicial Review, Appeal and Factual Error’ [2004] PL 788, 793–6.

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crucial evidence when it reached its initial decision, or where the decision was made on certain factual assumptions and the applicant seeks to show, sometimes through the admission of fresh evidence, that these were mistaken. We should also be mindful of the interrelationship between issues of fact and questions of law concerning the meaning of a term in a Treaty article, regulation, directive, or decision. The interpretation of the term worker or concerted practice should, for the reasons given earlier, normally be regarded as an issue of law. There will, however, also be instances where the essence of the claim is that the initial decision-maker made a factual error relating to the application of that term to the instant case. Thus the applicant may well accept the legal meaning of the term worker or concerted practice a­ rticulated by the Courts, and may also accept that the primary decision-maker attempted to apply that meaning to the facts of the case. The applicant may, nonetheless, maintain that the primary decision-maker made a factual error when applying the legal meaning of the relevant term. Thus it might be accepted by all parties to the case that the term worker can cover a person who is doing part-time work, subject to a de minimis qualification concerning the amount of work involved. A Member State might, nonetheless, argue that the claimant does not qualify under this definition, because it believes that the claimant is only giving one cello lesson a week, and therefore does not qualify as a part-time worker because of the de minimis qualification. The claimant then wishes to show that she has in fact been giving ten lessons per week, and also working as a trainee chef. To take another example, the legal concept of the private investor test might be accepted by all sides in determining whether there is state aid, but the applicant might then ­dispute the application of this legal concept to the facts of the particular case.6

(D) Discretion Discretion is a complex concept, on which there is a considerable philosophical literature. The administrative law systems of the Member States have developed their own conceptions of discretion,7 as exemplified by the distinction drawn in French law between discretionary power and tied power. The discussion that follows does not attempt to unravel the jurisprudential intricacies of discretion, nor survey the diverse meanings accorded to discretion in the national legal systems. The approach adopted here is to begin with the case law of the EU Courts and to identify the different senses in which discretion is employed within this jurisprudence. This has the advantage of focusing on the EU positive law that is most directly p ­ ertinent, while leaving room for more considered reflection about the use of discretion within that jurisprudence. The EU Courts have used the term discretion to cover a number of 6  Case T-152/99 Hijos de Andres Molina SA (HAMSA) v Commission [2002] ECR II-3049, [125]–[127]; Case T-36/99 Lenzing AG v Commission [2004] ECR II-3597; Case T-137/02 Pollmeier Malchow GmbH & Co KG v Commission [2004] ECR II-3541, [51]. 7  Mendes ‘Bounded Discretion’ (n 1) 451–9.

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­ ifferent situations. The case law will be explored more fully later, but the different d types of situation can be identified at this juncture. The first type of case can be termed classic discretion. This is where the relevant Treaty article, regulation, directive, or decision states that where certain conditions exist the Commission may take certain action. This is a case where the Treaty article or regulation etc states that if X1, X2, X3, X4 exists you may do Y. Thus in Westzucker,8 examined in detail later, the Regulation provided that when certain conditions were present denaturing premiums might be granted, but did not have to be. The ECJ characterized this as giving rise to Commission discretion in the grant of premiums. The EU Courts have also used the term discretion in a second type of case, where there are broadly framed conditions that have to be established before the power or duty can be exercised at all. The phrase jurisdictional discretion can be used to capture this type of situation. This is exemplified by Philip Morris Holland,9 which will be considered fully later. Suffice it to say for the present that the issue before the ECJ concerned the meaning to be attributed to the phrases ‘abnormally low’ and ‘serious under employment’, within what is now Article 107(3)(a) TFEU. The ECJ held that the Commission had discretion, the exercise of which involved economic and social assessments that had to be made in a Community context. Put in terms of the conceptual schema identified above, if X1, X2, X3, X4 exists you may or shall do Y, the discretion recognized in Philip Morris Holland resided in one of the X conditions. Article 107(3)(a) provides that if aid promotes the economic development of areas where the standard of living is abnormally low, or where there is serious underemployment, the Commission may consider it to be compatible with the common market. The dispute concerned the meaning to be given to ‘abnormally low’, and ‘serious under employment’, these being conditions that had to be met before the Commission’s power to declare such aid compatible with the common market became applicable. The ECJ was willing to characterize these conditions as involving discretion, which then had an impact on the standard of review applied. There is also a third type of situation where discretion can exist, even where the ­enabling Treaty article, regulation, directive, or decision is cast in mandatory terms. There will be many instances where this is not so. Where the relevant legislation provides ‘if X, you shall do Y’, and Y entails a specific measure, there will be no room for any meaningful discretion once the X conditions have been met. There are, however, other instances where the content of Y, the mandatory obligation, is cast in more general terms, thereby leaving some measure of discretion as to how it should be fulfilled. This is exemplified by the Common Agricultural Policy (CAP). Article 40 TFEU states that a common organization of agricultural markets shall be established, and in that sense imposes a mandatory duty. Article 40 TFEU further provides that the common organization is designed to attain the objectives set out in Article 39 TFEU. These objectives include an increase in agricultural productivity, a fair standard of living for the agricultural community, stable markets, availability of supplies, and fair prices for consumers. The many 8  Case 57/72 Westzucker GmbH v Einfuhr- und Vorratsstelle für Zucker [1973] ECR 321. 9  Case 730/79 Philip Morris Holland BV v Commission [1980] ECR 2671.

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detailed rules made pursuant to the CAP are designed to attain these objectives. It is, however, clear that the objectives in Article 39 that guide implementation of the common organization of markets are set out at a high level of generality and that there can be tensions between, for example, a fair standard of living for farmers and reasonable prices for consumers. There is, therefore, an obligation to establish a common organization of agricultural markets, coupled with a broad range of objectives that are to inform the way in which this is done. It is, therefore, unsurprising that the EU Courts have repeatedly held that the Commission and Council have discretion in determining the priority between these objectives when making rules under the CAP,10 and in determining the best way that the overall objectives can be achieved.11

3  Review of Legal Issues (A)  The General Approach: Substitution of Judgment The discussion in the previous section has laid some foundations for the meaning ascribed to law, fact, and discretion. It does not tell us what the standard of review should be in each of these categories. For this we need to press further. There is little overt discussion in the EU jurisprudence about the test for review of issues of law. This is so even though questions of law will frequently arise in the course of judicial review. The initial decision-maker, normally the Commission, will be accorded power to do certain things on certain conditions. The conditional grant of power may be contained in a Treaty article or in Union legislation. A claimant will contend that the Commission has committed an error in the interpretation of the conditions that establish its power over the relevant topic. It will be argued, for example, that the financial a­ ssistance given by a Member State does not constitute state aid and therefore that the EU rules on the matter are inapplicable; it will be contended that the Commission erred in the meaning given to the term concerted practice for the purpose of competition law; or disputes will arise over the construction of the term monetary measure, the argument being whether this can also include an economic measure. It will be for the EU Courts to decide on the existence of such errors, and it will be for the EU Courts to decide on the appropriate test for review to be employed in such circumstances. Their general approach is simply to substitute judgment on these questions of law. The CJEU or GC will lay down the meaning of the disputed term, and if the Commission interpretation is at variance with this then it will be annulled. Thus the entire jurisprudence on, for example, the meaning of state aid, concerted practice, and many other such issues is premised on the EU Courts substituting their judgment and providing the legal meaning that the term should bear.12 10  See, eg, Case 59/83 SA Biovilac NV v EEC [1984] ECR 4057. 11  See, eg, Case C-180/96 UK v Commission [1998] ECR I-2265, [60]. 12  See, eg, in relation to the meaning of ‘state aid’, Case C-387/92 Banco de Crédito Industrial SA (Banco Exterior de España SA) v Ayuntamiento de Valencia [1994] ECR I-877; Case C-39/94 Syndicat français de

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We should, nonetheless, pause to note that there are a range of possibilities concerning the test for review. Courts may apply a correctness test, whereby they substitute judgment on the meaning of the contested term. This is generally the approach adopted in civil law systems, and in some common law systems. It is, therefore, unsurprising that the Union Courts have adopted this mode of thought. It is regarded as axiomatic that courts decide issues of law, in the sense of substituting judgment on the meaning of the contested term for that of the primary decision-maker, and it would be seen as constitutional heresy to suggest otherwise. The EU Courts have taken this approach even where the disputed term relates to a topic, such as state aids, competition, or agriculture where the Commission has responsibility for the application of the regime and has developed considerable expertise over the relevant subject matter. It should, nonetheless, be recognized that there are other options open to courts when choosing the test for review of issues of law.13 They might choose to apply a more nuanced test exemplified by the approach of the US courts.14 The leading decision is Chevron,15 where the Supreme Court drew the following distinction. If a court reviewing an agency’s construction of a statute decided that Congress had a specific intention on the legal meaning of the particular issue, then the court will substitute judgment for that of the agency and impose the meaning Congress intended. If, however, the reviewing court decided that Congress had not directly addressed the point of statutory construction, the court did not simply impose its own construction on the statute. Rather, if the statute was silent or ambiguous with respect to the specific issue, the question for the court was whether the agency’s answer was based on a permissible construction of the statute. In answering this question the reviewing court might uphold the agency finding even though it was not the interpretation the court itself would have adopted, and even though it was only one of a range of permissible such findings that could be made.16 Moreover, the Supreme Court also held that the delegation to an agency of the determination of a particular issue might well be implicit rather than explicit, and that in such instances ‘a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency’.17 The Canadian courts have also taken a more nuanced approach to review of issues of law, which is somewhat different from that of the US courts. The case law is rich and l’express international (SFEI) v La Poste [1996] ECR I-3547; Case T-106/95 Fédération française des sociétés d’assurances (FFSA) v Commission [1997] ECR II-229; Case C-75/97 Belgium v Commission [1999] ECR I-3671; Case C-53/00 Ferring SA v Agence centrale des organismes de sécurité sociale (ACOSS) [2001] ECR II- 9067; Cases T-127, 129 and 148/99 Territorio Histórico de Álava—Diputación Foral de Álava v Commission [2002] ECR II-1275; Case T-152/99 HAMSA (n 6) [159]. See, eg, out of the many cases concerning competition law, Case T-41/96 Bayer AG v Commission [2000] ECR II-3383; Case C-138/11 Compass-Datenbank GmbH v Republik Österreich, EU:C:2012:449. 13  P Craig, ‘Judicial Review of Questions of Law: A Comparative Perspective’ in S Rose-Ackerman and P Lindseth (eds), Comparative Administrative Law (Edward Elgar, 2nd edn, 2017) Ch 23. 14  A Aman and W Mayton, Administrative Law (West, 2nd edn, 2001) 471–505. 15  Chevron USA Inc v NRDC, 467 US 837 (1984). 16  Ibid 842–3. 17  Ibid 844. The sphere of application of the Chevron test has, however, been complicated by United States v Mead Corporation, 533 US 218 (2001).

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complex.18 The courts will on some occasions use a correctness test, while on others they will employ a reasonableness or rational basis test. They will take account of functional considerations, such as the expertise of the tribunal, the rationale for its existence, and the nature of the contested issue in deciding between the two,19 rather than employing the criteria used in the US case law. The approach of the Canadian courts has ebbed and flowed, and while some judges favour a test based on correctness, others prefer one which allows greater latitude for agency interpretation, as expressed through some form of reasonable test.20 The legislature has also intervened in some provinces, setting out in statutory form the relative capacities of courts and tribunals.21 It is clear that each approach is premised on different assumptions. The premise underlying substitution of judgment for questions of law is that courts should be the arbiters of all legal meaning; that primary decision-makers should be controlled; and that substitution of judgment on questions of law is, therefore, the proper standard of review. The premise underlying the approach in some other systems is that the courts must exercise control over questions of law made by the initial decisionmaker; that this may sometimes be through substitution of judgment; but that this does not have to be the test in all instances, since adequate control can be maintained through some lesser standard of review cast in terms of rationality and the like. The rationale for this greater flexibility in the standard of review is the belief that the agency making the initial determination may well have significant knowledge, ­expertise, and understanding of the relevant legal issue. Thus if a generalist court is faced with the meaning of the term ‘employee’ in labour law legislation there may be good reason to accord respect to the interpretation of that term by the agency charged with applying the legislation, and subject it to review for rationality rather than substitution of judgment.22 This brief discussion is intended to illustrate the choices open to courts when faced with questions of this nature. The virtue of comparative law resides in the way that it can reveal different modes of dealing with the same issue and challenge preconceptions that might previously have been taken as ‘given’. It does not, however, mean that the established orthodoxy in any particular system will or should change as a result of the ­comparative insight, more especially because that orthodoxy might well be based on con­stitutional assumptions that are different from those prevailing in another system.

18  P Daly, ‘Deference on Questions of Law’ (2011) 74 MLR 694. 19  Union des Employes de Service, Local 298 v Bibeault [1988] 2 SCR 1048; Public Service Alliance of Canada v Attorney General of Canada [1991] 1 SCR 614; Dunsmuir v New Brunswick [2008] 1 SCR 190; D Mullan, ‘Dunsmuir v New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s Try Again!’ (2008) 21 Canadian Jnl of Administrative Law and Practice 117. 20 Madame Justice L’Heureux-Dubé, ‘The “Ebb” and “Flow” of Administrative Law on the “General Question of Law”’ in M Taggart (ed), The Province of Administrative Law (Hart, 1997) Ch 14. 21  See, eg, in relation to British Columbia, Administrative Tribunals Act, SBC 2004, c 45. I am grateful to Geoffrey Gomery for bringing this to my attention. 22  National Labour Relations Board v Hearst Publications, Inc, 322 US 111 (1944).

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(B)  The General Approach: Qualifications Substitution of judgment on questions of law remains a cornerstone of judicial review in the EU. It would, however, be mistaken to think that this approach is unqualified. The EU Courts have tempered the force of this proposition in ways that would be readily recognized by scholars and practitioners of administrative law. The Union Courts have been willing to characterize certain X conditions contained in the relevant Treaty article, regulation, decision, or directive as involving discretion rather than pure questions of law. This was, as we have seen, the approach taken in Philip Morris Holland.23 This technique will tend to be used where there are complex economic and social assessments that lie within the Commission’s expertise. The consequence is that review is cast in terms of manifest error rather than correctness, although as we shall see later, the meaning ascribed to this test has altered over time. It is also open to the EU Courts to characterize the contested issue as pertaining to the factual application of a legal concept to the circumstances of an individual case. Where this is so the focus will be on the factual foundation and evidentiary basis for the finding made by the Commission, and it will be accorded some margin of discretion when determining whether the facts justify the application of the legal concept. Thus in Pfizer,24 examined in detail later, the CFI was faced with a challenge to a Regulation that removed an additive from the list of substances that could be used in animal feeds. The CFI held that where a Community authority was required to make complex assessments in the performance of its duties, its discretion also applied to some extent to the establishment of the factual basis of its action, and that where the Community institutions were required to undertake a scientific risk assessment and evaluate complex scientific facts judicial review must be limited. The Court should not substitute its assessment of the facts for that of the Community institution, but should confine its review to manifest error, misuse of power, or clear excess in the bounds of discretion.25 It will, however, be seen that the intensity of review in such types of case has increased in more recent jurisprudence.

4  Review of Fact and Discretion: Three Interpretations of the Test We have already considered different senses of the term discretion, and we now look more closely at the test for review of fact and discretion. The general legal mantra is that the court should not substitute its judgment for that of the initial decision-maker on issues of fact and discretion. The applicant must show some manifest error, misuse of power, or clear excess in the bounds of discretion in order for the court to intervene. 23  Case 730/79 Philip Morris Holland BV (n 9). 24  Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3303; Case T-70/99 Alpharma Inc v Council [2002] ECR II-3495. 25  Case T-13/99 Pfizer (n 24) [169].

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It will be seen that although the ‘formal test’ has remained constant its interpretation has altered over time. The test for review has been used in three different ways, with the crucial variant being the intensity of review. The first way is exemplified by the early case law. The ECJ applied the test for review of fact and discretion, especially that of manifest error, with a very light touch, such that it was difficult for the applicant to succeed. The ECJ would characteristically deal with the allegation of manifest error within a few brief paragraphs and dismiss the claim unless there was some flagrant or egregious error on the face of the decision. The second mode of interpretation is evidenced by some more recent case law. The formal test for review remains the same, but manifest error is imbued with ­considerably more vigour by the GC and endorsed by the CJEU, as evidenced by a willingness to review the factual findings and reasoning process far more closely in order to determine whether the requisite manifest error exists. The third way in which the test for manifest error has been interpreted is apparent in other more recent CJEU decisions. The hallmark of these cases is that the ­interpretation of the manifest error test is more searching than the first mode of i­nterpretation, but less than the second, although doubts remain as to whether there are differences in intensity of review as between the CJEU and the GC.

5  Review of Fact and Discretion: Early Case Law and Low-Intensity Review The discussion within this section focuses on the early case law, the type of discretionary determination in issue, the legal test used by the ECJ and the way in which it was applied. The hallmark of this early case law was that the ECJ accorded, in effect, a ­double meaning to the term ‘manifest error’: in order to succeed the claimant had to show that error was manifest in the sense of obvious, and that it was manifest in the sense of serious. The very fact that the ECJ was disinclined to consider in any detail the evidentiary foundations for the claimant’s allegations made it all the more difficult for the claimant to succeed.

(A)  Classic Discretion The Westzucker case26 dates from 1973 and has been oft-quoted since then. It was an indirect action for judicial review brought under Article 177 EC, now Article 267 TFEU. The applicant challenged a Commission Regulation that set the denaturing premium for sugar at zero. This in effect suspended the premium, which the applicant

26  Case 57/72 Westzucker (n 8).

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was, not surprisingly, unhappy about. It is necessary to understand the bare framework of the regulatory regime in order to appreciate the ECJ’s reasoning. Council Regulation 1009/6727 was the basic Regulation for the common organization of the sugar market. Article 9(2) stated that intervention agencies may grant ­denaturing premiums for sugar rendered unfit for human consumption; Article 9(7) authorized the Council to enact further rules for the application of this scheme; and Article 9(8) provided that the Commission should lay down the detailed rules for the application of Article 9. The Council duly enacted more detailed rules pursuant to Article 9(7),28 and the Commission in turn exercised its power under Article 9(8) to lay down more specific rules, taking into account the criteria contained in the Council’s later enactment. It was this Commission Regulation that was challenged by the applicant. The case raised judicial review of discretionary power in its paradigm form. Discretion was apparent at two levels in the regulatory scheme, both of which were recognized by the ECJ. There was a primary discretion because Article 9(2) stated that intervention agencies may grant denaturing premiums. The Commission Regulation was, therefore, not susceptible to challenge merely because it reduced the premium to zero, since there was no obligation to grant any premium at all.29 There was also a secondary discretion, in the form of criteria indicating how the primary discretion should be exercised. These criteria were laid down by the Council when enacting further rules for the application of the denaturing scheme,30 and the Commission took these into account when passing the Regulation subject to challenge. The criteria were, however, broad and open textured, including matters such as the level of intervention prices, the foreseeable market prices for animal feeding stuffs that would compete with denatured sugar, the costs of denaturing, the nutritional value of competing animal feeding stuffs, and the whole of the sugar surplus available for denaturing in the Community. The applicant’s challenge was to the way in which the Commission had exercised this discretion by setting the denaturing premium at zero. The ECJ was clear that the Commission’s significant freedom of evaluation meant that it was not for the Courts to substitute their judgment for that of the Commission. Judicial review was limited to deciding whether there was a patent error, or misuse of power.31 It is also important in the light of later case law to appreciate how the ECJ applied the test of patent error. The ECJ was brief in this respect, devoting but one paragraph of its judgment to the issue.32 It contented itself with stating that the applicant’s allegations revealed no indication of such an error or misuse of power. The 27  Council Regulation 1009/67EEC of 18 December 1967 on the common organisation of the market in sugar [1967] OJ L308/1. 28  Council Regulation 768/68/EEC of 18 June 1968 establishing the general rules for the denaturation of sugar used for animal feed [1968] OJ L143/12. 29  Case 57/72 Westzucker (n 8) [6]. 30  Reg 768/68 (n 28) Art 2. 31  Case 57/72 Westzucker (n 8) [14]. 32  Ibid [15].

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applicant had argued that the sugar market was not being reorganized at the relevant time and that there was a continuing surplus of sugar requiring the maintenance of the denaturing premiums. The ECJ accepted that the existence of a surplus had been proven, but held that this did not affect the Commission’s freedom of evaluation to decide how best to eliminate it. The patent error test was, therefore, applied with a light touch.

(B)  Jurisdictional Discretion The early jurisprudence also provides prominent examples of the ECJ being faced with broadly framed conditions that had to be established before the relevant power could be exercised. The phrase jurisdictional discretion is designed to capture this type of situation. The matter arose frequently in the context of the CAP and is exemplified by the decision in Racke.33 It was an indirect challenge from the German courts to the validity of certain regulations concerning monetary compensation amounts (MCAs). The MCA system was introduced to cope with the consequences of exchange-rate movements over and beyond their normal parities.34 Such movements could lead to serious difficulties for the functioning of the common market, because there could be a difference between the value of the national currency as affected by the exchange-rate movements and the intervention prices laid down by the Community on the basis of the official parity. This would then affect the operation of the intervention regime in that state, and the MCA system was designed to forestall such difficulties by allowing the state concerned to apply MCAs in trade with other Member States and third countries. Article 1 of Regulation 974/7135 provided that if for the purposes of commercial transactions a Member State allowed the exchange rate of its currency to fluctuate by a margin wider than that permitted by international rules, and if such monetary measures lead to ­disturbances in trade in agricultural products, it shall be authorized to charge or grant MCAs on certain types of products. The applicant challenged Commission Regulations applying the MCA regime to wine. It argued that the Commission failed to observe the condition in the basic Regulation that the authorization to charge or grant MCAs could only be exercised when changes in the exchange rates of currencies would bring about disturbance in trade in agricultural products.36 The ECJ rejected the argument. It held that it was for the Commission, assisted by the management committee, to decide on the existence of the risk of disturbance. This 33  Case 98/78 Firma A Racke v Hauptzollamt Mainz [1979] ECR 69. 34  Council Regulation 974/71/EEC of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States [1971] OJ L106/1. 35  Reg 974/71 (n 34). 36  Ibid Art 1(2).

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involved evaluation of a complex economic situation, and therefore the Commission plus management committee had a wide measure of discretion. The ECJ would only intervene if there was a manifest error, a misuse of power, or some other clear excess in the bounds of its discretion.37 The application of this test for review was, as in Westzucker, brief. The ECJ, once again, devoted but one paragraph to the matter, in which it noted that the Commission had provided the facts justifying the contested measure, and that the Commission had specified factors leading it to conclude that there was a serious risk of disturbance to the wine market.38 Judicial review based on manifest error was done with a light touch, the ECJ concluding that it did not appear that the Commission had committed a ­manifest error, or that it had exceeded the bounds of its discretion under the relevant rules. The same approach is apparent in other agricultural cases where there was discretion in the conditions that had to be established before the power or duty could be exercised. Thus in CNTA39 the applicant complained of the withdrawal of MCAs. The Court held that the Commission possessed a large degree of discretion in determining whether alterations in monetary values as a result of exchange-rate movements might lead to such disturbances in trade and therefore whether MCAs were warranted. The same reasoning is evident in the Deuka case.40 The applicant sought to test the legality of a particular Regulation under which premiums payable on wheat were modified. It was argued that this was illegal, because the basic Regulation only permitted adjustments ‘where the balance of the market in cereals is likely to be disturbed’.41 The Court rejected the claim. It stated that the Commission had a ‘significant freedom of evaluation’ in deciding on both the existence of a disturbance, and the method of dealing with it. The ECJ would only intervene if there were a patent error or a misuse of power, and the Court quickly reached the conclusion that no such error existed.42

(C)  Jurisdictional Discretion plus Classic Discretion In the cases considered in the previous category the relevant Community regulations set out broadly framed conditions that had to be established before the power could be exercised, but then mandated that the power should be exercised when those conditions were met. Thus the MCA regime provided that Member States shall be authorized to charge MCAs where the conditions specified in the basic Regulation existed. There are also instances where the Treaty provisions or regulations set out broadly framed conditions that had to be established before the power could be exercised, but 37  Case 98/78 Racke (n 33) [4]–[5]. 38  Ibid [6]. 39  Case 74/74 Comptoir National Technique Agricole (CNTA) SA v Commission [1975] ECR 533, [21]. 40  Case 78/74 Deuka, Deutsche Kraftfutter GmbH, B J Stolp v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1975] ECR 421, 432. 41  Council Regulation 172/67/EEC of 27 June 1967 on general rules governing the denaturing of wheat and rye of bread making quality [1967] OJ 130/2602, as amended by Regulation 644/68 [1968] OJ 1968 L 122/3, Art 1. 42  Case 78/74 Deuka (n 40) [8]–[9].

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then provided that the Commission might authorize certain action, but did not make this mandatory. In such instances there is a combination of jurisdictional discretion combined with classic discretion. This is exemplified by the legal provisions concerning state aids. The basic principle is that state aid is contrary to EU law, since it distorts the ideal of a level playing field between competitors in different Member States. The Commission is, however, afforded power to authorize state aid in certain circumstances. Thus Article 107(3)(a) TFEU provides that ‘aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment’ may be considered to be compatible with the single market. Proof that the aid will have this effect is, therefore, a condition precedent for the Commission to exercise its discretion as to whether to authorize the aid. The meaning of this provision came before the ECJ in Philip Morris Holland.43 The Dutch government gave aid to a tobacco manufacturer. The Commission found that the aid did not come within Article 107(3)(a), and this was challenged by the applicant. It argued that the Commission was wrong to hold that the standard of living in the relevant area was not ‘abnormally low’, and was wrong to conclude that the area did not suffer serious ‘under employment’ within the meaning of Article 107(3)(a). The ECJ rejected the argument. It held that the Commission had discretion, the exercise of which involved economic and social assessments that had to be made in an EU context.44 The Commission had advanced good reasons for assessing the standard of living and serious underemployment in the relevant area, not with reference to the national average in the Netherlands, but in relation to the EU level. This approach is evident in other decisions concerning state aids, made pursuant to Article 107(3)(c) TFEU. This provides that ‘aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest’ may be compatible with the single market. This Article is the provision through which a state can seek to justify aid to a particular depressed region as judged by national criteria. This nationally based criterion is not, however, unqualified. It is still necessary to consider the impact of the aid on inter-Union trade, and its sectoral repercussions at EU level. The Article was considered in Glaverbel.45 The Belgian government gave aid to certain glass producers. The Commission found that the aid did not come within Article 107(3). This was because the aid, which was for periodic plant renovation, did not satisfy the requirement that there must be economic development of the relevant sector, without this adversely affecting trading conditions to an extent contrary to the common interest. The applicant argued that the Commission had misinterpreted the Treaty Article. The ECJ rejected the claim. It held that the Commission’s reasoning was comprehensible, and that the Commission should be accorded a power of appraisal 43  Case 730/79 Philip Morris Holland (n 9). 44  Ibid [24]; Case 310/85 Deufil GmbH & Co KG v Commission [1987] ECR 901, [18]. 45  Cases 62 and 72/87 Exécutif régional wallon and SA Glaverbel v Commission [1988] ECR 1573.

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when applying the criteria in Article 107(3)(c). The applicant had not shown that the Commission had misused its powers or committed a manifest error, and hence the claim was dismissed.46

(D)  Contrast and Similarity The test for review applied in the preceding cases was the same, but this should not mask the fact that in analytical terms the discretion operated at different levels in the three types of case. This does not mean that the ECJ was wrong to apply the same test in the three situations. It does mean that we should be aware that it did so. In Westzucker we had the paradigm instance of primary discretion, denaturing premiums may be granted, coupled with secondary discretion as to a complex array of factors that should be taken into account in deciding whether the primary discretion should be exercised or not. In Racke the evaluative discretion existed within the conditions that triggered application of the MCA regime, and where these conditions were met the application of that regime was mandatory. This is clear from Article 1 of Regulation 974/71 set out ­earlier.47 The charge or grant of MCAs was, therefore, conditioned on proof of the existence of disturbance in trade in agricultural products. This was acknowledged by the ECJ in Racke,48 and in CNTA where the ECJ held that ‘the option for Member States to apply compensatory amounts may only be exercised where the monetary measures in question would lead to disturbances to trade in agricultural products’.49 In the Philip Morris Holland-type of case the evaluative discretion existed once again within the conditions that triggered the application of the rules allowing state aids, but even where the particular condition was met the Commission still possessed discretion as to whether to authorize the aid or not.50

(E)  Discretion: Positive and Normative Reflections The word discretion undoubtedly has somewhat different connotations in different national legal systems. This is matched by diversity of academic opinion as to the ‘correct’ meaning and application of this legal concept. There will, therefore, doubtless be those who disagree with the use of the word discretion to cover the different types of situation analysed earlier. A pause for reflection is, nonetheless, warranted for positive and normative reasons. In positive legal terms it is clear that the ECJ used the word discretion to cover all three types of case discussed thus far. It did so in Westzucker to capture the fact that 46  Ibid [21], [31]–[34]. 47  Reg 974/71 (n 34). 48  Case 98/78 Racke (n 33) [3]. 49  Case 74/74 CNTA (n 39) [19]. 50  See also in the context of competition law, Cases 56 and 58/64 Établissements Consten SaRL and GrundigVerkaufs-GmbH v Commission [1966] ECR 299, 347; Case 42/84 Remia BV v Commission [1985] ECR 2545, [34]; Cases 142 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, [62].

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denaturing premiums might, but did not have to be, given, and to capture also the complex range of variables to be taken into account by the Commission when deciding whether to give such a premium and at what level.51 It employed the language of discretion in Racke in the context of an open-textured condition that had to be satisfied before the power could be authorized: the need to find a disturbance in trade in agricultural products entailed the evaluation of a complex economic situation that gave the Commission a ‘wide measure of discretion’ and that in reviewing the ‘legality of the exercise of such discretion’ the Courts should use the test of manifest error.52 In Philip Morris Holland the ECJ was faced with an open-textured condition that had to be met as a condition precedent to possible approval for aid. It framed its judgment in terms of the Commission having discretion the exercise of which involved economic and social assessment.53 In normative terms, the paradigm of discretion may well be what was termed the classic case, as exemplified by Westzucker: the enabling legislation states that a particular benefit may be given. This is the legislature according the initial decision-maker a choice as to whether to exercise the power or not. All legal systems build in constraints as to how the discretion should be exercised, whether cast in terms of rationality or proportionality, respect for fundamental rights, and the like. This does not, however, alter the fundamental precept that a choice has been given as to whether to exercise the relevant power and if so how. It should be recognized that the discretion that was the subject matter of litigation in the other types of case was different. Analytical clarity is important in this respect and the preceding discussion has been designed with this in mind. These cases concerned the interpretation of open-textured terms in the enabling legislation that were a condition precedent before the power could be exercised at all. The issue in Racke and other such cases was whether this particular condition was satisfied or not. The ECJ was willing to characterize the condition as discretionary because it entailed complex economic evaluation that the Commission plus management committee was best suited to determine, subject to light review through the test for manifest error. The Court could have undertaken an extensive re-evaluation of the factual and legal issues, in order to determine whether such circumstances existed. This would, however, have been time-consuming. It would have encouraged applicants to ask the Court to second-guess evaluations made by the Community institutions. It would, moreover, have involved intensive review of measures that were often adopted under severe time constraints, or in situations where there was an urgent need for measures to combat a temporary problem in the market.54 It is not surprising that the ECJ was unwilling to engage in such searching exercises during the early years of the EEC, more especially when it was the only judicial body that could determine the validity of Community regulations. The ECJ’s readiness to 51  Case 57/72 Westzucker (n 8) [6], [13]–[14]. 52  Case 98/78 Racke (n 33) [5]. 53  Case 730/79 Philip Morris Holland (n 9) [24]. 54  Lord Mackenzie Stuart, The European Communities and the Rule of Law (Stevens, 1977) 91, 96.

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conceptualize open-textured terms in the enabling legislation that were a condition precedent before the power could be exercised as discretionary, and to accord the Commission the authority to appraise and evaluate whether there was, for example, a risk of disturbance to the market, is therefore readily explicable.

6  Review of Fact and Discretion: Later Case Law and High-Intensity Review A cursory glance at later case law on review of fact and discretion might lead the observer to conclude that little if anything had changed. Cases such as Westzucker and Racke continue to be cited. The criteria for review are formally the same. Manifest error, misuse of power, or a clear excess of the bounds of discretion remain the grounds of review, with the corollary that the EU Courts do not substitute judgment. A closer look at the judicial reasoning reveals a rather different picture. It is clear that while retaining the established grounds of review the EU Courts, and more especially the GC, have been applying these with greater intensity than hitherto, in some cases at least. This is, as will be seen later in the discussion, a common phenomenon in national legal systems. The reasons for this will be considered in due course. The Union Courts have used the concept of manifest error far more rigorously than hitherto, as can be exemplified by focusing on some of the leading decisions.

(A)  Risk Regulation: Pfizer The Pfizer case55 concerned a challenge by the applicant company to a Regulation that withdrew authorization for an additive to animal feeding stuffs. The additive in question, virginiamycin, was an antibiotic that was added in very small quantities to animal feed in order to promote growth. The rationale for the withdrawal of the authorization was the fear that such additives could reduce the animals’ resistance to antibiotics, and that this lessening of resistance could be transmitted to humans. This would then reduce the effectiveness not only of that particular antibiotic, but might also limit the efficacy of antibiotics of the same class. Pfizer argued forcefully that this could not be proven in the light of the scientific evidence. The CFI held that the Council and Commission could proceed through the precautionary principle, even if the scientific evidence could not prove unequivocally the dangers in the use of additives. There will be detailed treatment of the precautionary principle as a separate topic later.56 It is, however, the way in which the test for review was applied that is of prime ­concern here. The CFI proceeded in line with orthodoxy. It cited the well-established case law that in matters concerning the CAP the Community institutions had a broad 55  Case T-13/99 Pfizer (n 24); Case T-70/99 Alpharma Inc v Council [2002] ECR II-3495. 56  Ch 21.

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­ iscretion and hence judicial review should be confined to whether exercise of the d discretion was vitiated by a manifest error, misuse of power, or clear excess in the bounds of discretion.57 The CFI also referred58 to settled case law to the effect that where a Community authority was required to make complex assessments in the ­performance of its duties, its discretion also applied to some extent to the establishment of the factual basis of its action.59 It followed, said the CFI, that in a case such as the present where the Community institutions were required to undertake a scientific risk assessment and evaluate complex scientific facts judicial review must be limited. The Court should not substitute its assessment of the facts for that of the Community institution, but should confine its review to manifest error, misuse of power, or clear excess in the bounds of discretion.60 The CFI reasoned in line with established orthodoxy, and the applicant lost on the facts. The case, nonetheless, exemplifies a shift in the approach to judicial review as compared to the early jurisprudence of the ECJ. This becomes apparent when we look more closely at the CFI’s method when dealing with the applicant’s arguments concerning factual error and manifest error. (i)  Pfizer and Factual Error Pfizer made numerous allegations of factual error against the Community institutions. It might be thought in the light of the test set out earlier that the CFI would deal with such matters very swiftly, given that the applicant had to prove some form of manifest error. This intuition would be reinforced by the early jurisprudence discussed previously, where the ECJ would normally take no more than one or two paragraphs to conclude that there was no error of sufficient magnitude to warrant annulment of the contested measure. The contrast with the CFI’s judgment is marked: it devoted thirty-nine pages to this issue, or if you prefer it in this way, 125 paragraphs of its judgment. The applicant’s principal argument was that the Regulation was tainted by various factual errors. The most important aspect of this argument was that the Commission and Council had disregarded and distorted the findings of the Scientific Committee for Animal Nutrition (SCAN) which was established to assist the Commission at the latter’s request on all scientific questions relating to the use of additives in animal nutrition. SCAN had, at the Commission’s request, looked into the possible harmful effects of virginiamycin, and analysed the Danish claims in this respect. It concluded that there was no new evidence to substantiate the transfer of resistance to antibiotics from animals to humans; that while the development of bacterial resistance to antibiotics 57  Case T-13/99 Pfizer (n 24) [166]. 58  Ibid [168]. 59  Case 138/79 Roquette Frères v Council [1980] ECR 3333, [25]; Cases 197, 200, 243, 245 and 247/80 Ludwigshafener Walzmühle Erling KG v Council and Commission [1981] ECR 3211, [37]; Case C-27/95 Woodcock District Council v Bakers of Nailsea [1997] ECR I-1847, [32]; Case C-4/96 Northern Ireland Fish Producers’ Association (NIFPO) and Northern Ireland Fishermen’s Federation v Department of Agriculture for Northern Ireland [1998] ECR I-681, [41]–[42]. 60  Case T-13/99 Pfizer (n 24) [169].

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was a cause for concern, the data provided by the Danish authorities did not justify the action taken by Denmark to preserve streptogramins as therapeutic agents of last resort in humans; and that the use of virginiamycin as a growth promoter did not constitute an immediate risk to public health in Denmark. The CFI rejected the argument. It found that the Commission and Council had not ignored SCAN’s findings, even though it had not accepted its final conclusions. It held further that the Commission was not bound under the relevant legislation to adopt SCAN’s conclusions. Where the Commission chose not to accept its conclusions it had, however, to provide reasons at a scientific level commensurate with that of the opinion in question.61 The fact that the Commission did not have to accept SCAN’s conclusions was, said the CFI, justified by the Commission’s political responsibility and democratic legitimacy, and political control by the European Parliament. This was by way of contrast to SCAN. It had scientific legitimacy but ‘this was not a sufficient basis for the exercise of public authority’.62 The CFI decided that the Council, when ratifying the Commission’s opinion, gave reasons for not accepting the SCAN conclusions, drawing on SCAN’s own reasoning and on reports from other specialist national, international, and Community bodies.63 The CFI also rejected the argument that the Commission and Council had distorted the SCAN opinion. The arguments and counterarguments on this issue were lengthy. They cannot be analysed in detail here. Suffice it to say that the CFI considered each of the allegations of distortion in turn, devoting thirty-four paragraphs of its judgment to the issue. The CFI subsequently focused on another allegation of factual error, this being that the contested Regulation was influenced by a new study produced by the Danish authorities after the SCAN opinion and that the Council and Commission should have sought a further opinion from SCAN on this matter. The CFI held that there was no obligation to undertake a second consultation. The CFI distinguished previous cases64 on the ground that the relevant legislation was ambiguous as to whether consultation was mandatory or not. The judicial conclusion that the consultation should be deemed to be mandatory in all circumstances was a purposive interpretation of ambiguous legislation, which was inapplicable to the instant case where it was clear that ­consultation with SCAN was discretionary.65 This finding was, however, qualified, the CFI holding that it would only be in exceptional circumstances where there were sufficient guarantees of scientific objectivity that the Community institutions might, when assessing complex scientific facts, proceed without obtaining an opinion from the relevant Community committee on the new scientific material. The CFI, moreover, rejected the Council and Commission’s argument that consultation with a different committee, the Standing Committee, sufficed in this respect, since it was a regulatory Comitology committee and hence should be regarded as ‘a political body representative of the Member States and not as an independent scientific body’.66 The CFI, nonetheless, 61  Ibid [199]. 62  Ibid [201]. 63  Ibid [204]. 64  Case C-212/91 Angelopharm GmbH v Freie Hansestadt Hamburg [1994] ECR I-171, [31]–[41]. 65  Case T-13/99 Pfizer (n 24) [262]–[266]. 66  Ibid [283].

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c­ oncluded that the Council and Commission were aware of the limitations of the new study when taking it into account, and the study was in any event only regarded as part of the evidence in favour of the contested regulation.67 (ii)  Pfizer and Discretion The CFI spent, as we have seen, considerable time reviewing allegations of factual error advanced by the applicant. This still left a further important issue: it was necessary for the CFI to decide whether ‘the Community institutions made a manifest error of assessment when they concluded, on the basis of those facts, that the use of virginiamycin as a growth promoter constituted a risk to human health’.68 In other words, even though the applicant company had failed to establish factual error, it could still argue that the Community institutions manifestly erred when deciding on the basis of those facts that there was sufficient ground to ban the additive. The CFI emphasized once again that in assessing whether the scientific evidence enabled the Community institutions to conclude that there was a risk associated with the use of virginiamycin as a growth promoter, the role of the court was limited: it was not to substitute judgment; it was limited to finding a manifest error, misuse of power, or clear excess of discretion; and any determination of such errors must be made on the basis of the material available to the Community institutions when the contested Regulation was made.69 The CFI, nonetheless, considered in detail the argument proffered by the applicant company. To put matters in perspective, the CFI devoted twentyeight pages or ninety-two paragraphs of the judgment to this matter, which contrasts markedly with the one or two paragraphs found in the earlier jurisprudence. The applicant company maintained that human resistance to antibiotics of the streptogramin class did not have adverse effect on human health. The CFI was unconvinced for a number of reasons. The SCAN findings were related to Denmark, rather than the Community level. It was, moreover, clear from studies at national, Community, and international level, that resistance to antibiotics was perceived as a major problem in human medicine. It was, therefore, proper for the Community institutions to develop a cautious approach designed to preserve the effectiveness of certain antibiotics used in human medicine, even though when the contested Regulation was made they were relatively little used in that sphere.70 The applicant company also argued that the Community institutions were not ­entitled, on the basis of the available scientific data, to find a link between use of virginiamycin as an additive in feeding stuffs and the development of antibiotic resistance in humans. The argument and counterargument was complex. Suffice it to say that the CFI examined these claims in some detail, and concluded that the Community institutions had a scientific basis on which to find the linkage.71 The CFI also gave close consideration to the company’s argument that the scientific data was not sufficient to warrant the challenged Regulation. It concluded against the company, holding that the

67  Ibid [298].

68  Ibid [311].

69  Ibid [322]–[324].

70  Ibid [341].

71  Ibid [369].

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precautionary principle justified the measure, even though there was no scientific certainty, more especially given that a full risk assessment would not have been possible in the time available.72 (iii)  Subsequent Case Law The GC has continued to review risk regulation quite intensively, considering closely the alleged manifest error.73 Thus, while the GC has held that to succeed in a claim for manifest error relating to facts the evidence adduced by the applicant must be sufficient to make the factual assessments used in the contested decision implausible, it has also held, drawing on ECJ case law,74 that it was nonetheless incumbent on the EU Courts to establish whether the evidence relied on was factually accurate, reliable, and consistent, whether the evidence contained all the information that had to be taken into account in order to assess a complex situation, and whether it was capable of substantiating the conclusions drawn from it.75 The ECJ has, by way of contrast, not generally reviewed for manifest error with such intensity in preliminary reference cases. The possible explanation for this will be considered later. The review in such cases has, nonetheless, been more searching than in the early case law, and is best regarded as exemplifying the intermediate intensity review considered later.76

(B) Competition: Tetra Laval (i)  The CFI A second area in which high-intensity review is evident relates to competition. The CFI annulled several merger decisions and was seriously critical of the Commission. Thus in Airtours77 the judgment was long, over 100 pages, and involved complex issues of competition law. The CFI engaged in detailed scrutiny of the Commission’s reasoning and concluded that it was vitiated by manifest error.

72  Ibid [381]–[384], [389], [393], [401]. 73  See, eg, Case T-475/07 Dow AgroSciences Ltd v European Commission, EU:T:2011:445, [102]–[208]; Case T-291/04 Enviro Tech Europe Ltd and Enviro Tech International, Inc v European Commission, EU:T:2011:760, [47]– [65]; Case T-456/11 International Cadmium Association (ICdA) v European Commission, EU:T:2013:594, [41]– [71]; Case T-333/10 Animal Trading Company (ATC) BV v European Commission, EU:T:2013:451, [84]–[95]. 74  Case C-525/04 P Spain v Lenzing, EU:C:2007:698, [57]; Case C-405/07 P Netherlands v Commission, EU:C:2008:613, [55]. 75  Case T-475/07 Dow AgroSciences (n 73) [151]–[152]; Case T-204/11 Spain v European Commission, EU:T:2015:91, [32]–[34]. 76  Case C-77/09 Gowan Comércio Internacional e Serviços Lda v Ministero della Salute, EU:C:2010:803; Case C-343/09 Afton Chemical Ltd v Secretary of State for Transport, EU:C:2010:419; Case C-15/10 Etimine SA v Secretary of State for Work and Pensions, EU:C:2011:504, [69]–[82]; Case C-14/10 Nickel Institute v Secretary of State for Work and Pensions, EU:C:2011:503, [61]–[77]. 77  See, eg, Case T-342/99 Airtours plc v Commission [2002] ECR II-2585, [294].

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The tone of the CFI’s judgment in Tetra Laval78 was less trenchant, but the result was the same, annulment of a major Commission merger decision. The Commission prohibited a conglomerate merger79 between Tetra Laval, a leading manufacturer of cartons for liquid food, and Sidel, a company that designed and made production and packaging equipment systems, particularly those used for a certain type of plastic bottle. The rationale for the prohibition was that the merger could strengthen Tetra’s dominant position in the market for certain carton packaging machines and for aseptic cartons, and that it could create a dominant position in the market for particular packaging equipment. The merged entity’s future dominant position in two closely related markets would be likely to reinforce its position in both, raise barriers to entry, and minimize the significance of existing competitors, thereby leading to a monopolistic structure for the market as a whole. The Tetra Laval decision was, like that in Airtours, long and complex, the judgment coming close to 140 pages. The CFI reiterated the Commission’s discretionary margin in assessments of an economic nature,80 but emphasized also that it was for the Commission to show that the merger created or strengthened a dominant position and that if it could not do so the merger must be approved.81 The CFI found that it had not discharged this burden. The CFI’s reasoning is interesting in this respect. On some occasions, it identified what it regarded as a flaw in the Commission’s reasoning, for example concerning the possible horizontal and vertical effect of the merger on the creation of a dominant position, and then characterized this as a manifest error of assessment.82 On most occasions, the CFI’s conclusions were framed in terms of the Commission decision not being proven to the ‘requisite legal standard’, in the sense that the evidence proffered by the Commission was insufficient as a matter of law to show that a dominant position would emerge.83 On yet other occasions, the CFI combined the previous modes of reasoning, holding that the contested decision did not prove the possible creation of a dominant position to the requisite legal standard, and that therefore it followed that there had been a manifest error. Thus the CFI stated by way of conclusion that,84 It follows from all of the foregoing that the contested decision does not establish to the requisite legal standard that the modified merger would give rise to significant anti-­ competitive conglomerate effects. In particular, it does not establish to the requisite legal standard that any dominant position would be created on one of the various relevant PET packaging equipment markets, and that Tetra’s current position on the aseptic carton market would be strengthened. It must therefore be concluded that the Commission committed a manifest error of assessment in prohibiting the modified merger on the basis of the evidence relied on in the contested decision relating to the foreseen conglomerate effect. 78  Case T-5/02 Tetra Laval BV v Commission [2002] ECR II-4381. 79  This is a merger between two firms normally operating at the same level, for example manufacturing or retailing, but where the firms operate in different markets. 80  Case T-5/02 Tetra Laval (n 78) [119]. 81  Ibid [120]. 82  Ibid [140]–[141]. 83  Ibid [214], [235], [251], [254]–[256], [333]. 84  Ibid [336].

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The significance of these different modes of reasoning will become apparent when we reflect on the impact of the more recent jurisprudence on the test for manifest error. (ii)  The Commission The Commission was not surprisingly ‘stung’ by the CFI’s decisions considered earlier, and appealed the Tetra Laval case to the ECJ. A measure of the ‘heat’ generated by this issue is apparent from the Commission’s ground of appeal, which stated that the CFI had distorted the content of the contested decision. The Commission’s argument focused directly on the appropriate standard of judicial review.85 It contended that the CFI erred by invoking a standard of review that was self-contradictory and inconsistent with Article 263 TFEU and with Article 2 of the Merger Regulation, by purporting to apply review based on manifest error while in reality applying a different standard. The Commission argued further that the actual standard of review applied by the CFI exceeded the role of the Union Courts in reviewing the Commission, by substituting the CFI’s view for that of the Commission on a number of central points. The meaning accorded to manifest error of assessment had, said the Commission, significantly raised the level of proof required for a conglomerate merger and went beyond what could be regarded as review for legality. This was especially so given the CFI’s emphasis on the need for the Commission to ‘convince’ the Court, rather than the necessity for the applicant to show a manifest error, and this new approach had led the CFI to substitute its assessment for that of the Commission. (iii)  Judge Vesterdorf A measure of the significance attached by both sides to the standard of review is that Judge Vesterdorf, President of the CFI, wrote extra-judicially to defend the CFI’s judgments, albeit making clear that he was writing in his personal capacity.86 Vesterdorf rejected the charge that the CFI had adopted a new approach to the review of Commission merger decisions, stating that it had rather ‘adjusted the normal approach to reviewing competition decisions so as to take account of the peculiarities of the merger cases’.87 Such cases required a prospective analysis of the relevant markets and this involved two stages. The merger had to be assessed on existing material facts, including the present ­position of the relevant undertakings and of competing undertakings. The CFI should, said Vesterdorf, ‘examine closely and without constraint whether the Commission has got the material facts right’,88 and this included ‘direct factual inferences drawn therefrom’.89

85  Case 12/03 P Appeal brought by the Commission against the judgment delivered by the CFI in Case T-5/02 [2003] OJ C70/7. 86  Judge B Vesterdorf, ‘Certain Reflections on Recent Judgments Reviewing Commission Merger Control Decisions’ in M Hoskins and W Robinson (eds), A True European: Essays for Judge David Edward (Hart, 2003) Ch 10. 87  Ibid 137. 88  Ibid 138. 89  Ibid 139.

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The second stage of the inquiry required the Commission to evaluate the likely effects of the merger on the competitive situation in the relevant markets. It was for the Commission to show, as mandated by the Merger Regulation, that the merger would create or strengthen a dominant position, and that it would have significant negative effects on competition. Vesterdorf acknowledged that the Commission had a margin of discretion in this respect. The margin of appreciation was nonetheless a ‘function of the degree of discretion involved’:90 a greater margin would be accorded to pure economic assessments, rather less to inferences drawn from primary facts concerning the likely creation or strengthening of a dominant position. It is clear that Vesterdorf regarded the CFI’s intervention in cases such as Airtours and Tetra Laval as justified because the Court was reviewing primary facts and inferences therefrom.91 It is equally clear that his motivation for more searching review was based in part on the need to allay criticism from academics and practitioners about the role of the Commission as investigator, prosecutor, and judge in competition cases.92 Vesterdorf ’s summation of the proper scope of review afforded scant comfort to the Commission.93 [I]f the Commission presents a case for or against a merger . . . in a contested decision in  which, for example, it has clearly overlooked, underestimated or exaggerated relevant economic data, drawn unconvincing, in the sense of implausible, direct inferences from primary material facts or adopted an erroneous approach to assessing material facts, such failings may, depending on their cumulative effect in the context of the circumstances of the case viewed as a whole, suffice to constitute, for the purpose of the CFI’s review of the relevant overall economic analysis, a manifest error of assessment. On the other hand, if no such or very few or insignificant such errors are found, then the CFI, even if it would not have subscribed to the Commission’s economic assessment of the foreseeable effects of the merger and/or the adequacy of the commitments offered, should uphold the Commission’s findings.

(iv)  The ECJ The ECJ’s judgment in Tetra Laval94 upheld the CFI’s decision. Many of the Commission’s claims were dismissed because the issues concerned assessment of evidence by the CFI, which the ECJ held did not raise any issue of law and were therefore not ­susceptible to appeal.95 The ECJ’s reasoning concerning review of fact is contained in the following paragraph.96 Whilst the Court recognises that the Commission has a margin of discretion with regard to economic matters, that does not mean that the Community courts must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the Community courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the i­nformation

90  Ibid 140. 91  Ibid 140. 92  Ibid 118, 143. 93  Ibid 143. 94  Case C-12/03 P Commission v Tetra Laval [2005] ECR I-987. 95  Ibid [104], [131]–[132], [145]. 96  Ibid [39].

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which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. Such a review is all the more ­necessary in the case of a prospective analysis required when examining a planned merger with conglomerate effect.

The ECJ concluded that the CFI had conducted its review in the manner required of it as measured against the role of the EU Courts set out in the preceding paragraph. The CFI had, said the ECJ, explained and set out reasons why the Commission’s conclusions ‘seemed to it to be inaccurate in that they were based on insufficient, incomplete, insignificant and inconsistent evidence’.97 In reaching this conclusion the ECJ held that the CFI ‘observed the criteria to be applied in exercising the Community courts’ power of judicial review and, accordingly, complied with Article 230 EC’.98 (v)  Subsequent Case Law The EU Courts have continued to endorse the Tetra Laval test for review in subsequent cases,99 although the ECJ has also been willing to find that the GC erred in law when applying this test.100 This test for review is not confined to merger cases, but is also applied in cases concerning abuse of a dominant position under Article 102 TFEU and is used by the GC to engage in detailed scrutiny of the applicant’s claims,101 even if the  applicant ultimately loses.102 The Commission for its part continues to express ­concern that the GC is overstepping its remit in the way in which it interprets the manifest error test.103

(C)  Fundamental Rights: Kadi A third area in which there is evidence of high-intensity review for manifest error concerns fundamental rights, at least in relation to cases concerning the freezing of assets of suspected terrorists pursuant to the placing of such people on the list held by the UN 97  Ibid [48]. 98  Ibid [49]. 99  Case T-282/06 Sun Chemical Group BV, Siegwerk Druckfarben AG and Flint Group Germany GmbH v Commission [2007] ECR II-2149, [60]; Case C-413/06 P Bertelsmann AG and Sony Corp of America v Independent Music Publishers and Labels Association (Impala) [2008] ECR I-4951, [144]–[145]; Case T-145/06 Omya AG v Commission [2009] ECR II-145, [32]; Case T-48/04 Qualcomm Wireless Business Solutions Europe BV v Commission [2009] ECR II-2029, [91]–[92]; Case T-342/07 Ryanair Holdings plc v Commission, EU:T:2010:280; Case T-321/05 AstraZeneca AB and AstraZeneca plc v European Commission, EU:T:2010:266, [33]; Case T-471/11 Éditions Odile Jacob SAS v European Commission, EU:T:2014:739, [136]; Case C-295/12 P Telefónica SA and Telefónica de España SAU v European Commission, EU:C:2014:2062, [54]. 100  Case C-413/06 P Bertelsmann (n 99) [95], [102], [133], [150]. 101  See, eg, Case 201/04 Microsoft Corp v Commission [2007] ECR II-3601, [88]–[89], [102]–[1367]; Case T-427/08 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v European Commission, EU:T:2010:517, [65]–[121]. 102  See, eg, Case T-321/05 AstraZeneca (n 99) [34]–[294]; Case T-446/05 Amann & Söhne GmbH & Co KG and Cousin Filterie SAS v Commission, EU:T:2010:165, [53]–[106]; Case T-155/06 Tomra Systems ASA and Others v Commission, EU:T:2010:370. 103  Case C-441/07 P Commission v Alrosa Co Ltd, EU:C:2010:377, [115]; Cases C-501, 513, 515 and 519/06 P GlaxoSmithKline Services Unlimited v Commission [2009] ECR I-9291, [141], [143].

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Sanctions Committee. The GC has grappled with the appropriate standard of review ever since the seminal ECJ decision in Kadi.104 The issue has been considered in a number of GC judgments,105 the most prominent of which was Kadi II.106 The decision is especially interesting because of the extensive discussion of the appropriate standard of review. In the light of the ECJ’s ruling in Kadi, France obtained from the UN Sanctions Committee the reasons why it had placed Kadi on the list that led to the freezing of his assets. The reasons given were that Kadi had belonged to an organization closely linked to Al-Qaeda, and participated in the funding and planning of its operations. This was accepted by the EU authorities, who informed Kadi that he would be listed once again in the EU regulation concerning the freezing of assets. Kadi sought judicial review, and argued that this should encompass the evidentiary basis underlying the reasons given by the UN Sanctions Committee. He maintained that the provision of reasons by the UN Committee did not suffice, and that judicial review should test whether there was some probative evidence underlying the reasons. The Commission, Council, France, and the UK argued that judicial review should be limited to manifest error narrowly construed, such as an error concerning the identity of the person whose assets were frozen, and that it was not for the EU, via judicial review, to question the evidential basis on which the UN Sanctions Committee had proceeded.107 The GC disagreed. It held that such review would not fulfil the requirements of the ECJ’s judgment in Kadi, which demanded ‘full review’ of the contested measure.108 The GC interpreted ‘full review’ in this context to mean intensive scrutiny. This meant that review was available on any of the grounds in Article 263(2) TFEU. It meant, moreover, that while the EU Courts should not substitute their own assessment for that of the competent EU institution, the Courts must not only establish whether the evidence relied on was factually accurate, reliable, and consistent, but should also ascertain whether that evidence contained all the relevant information to be taken into account in order to assess the situation, and whether it was capable of substantiating the conclusions drawn from it.109 Judicial review in this context extended therefore to assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment was based.110 The GC further emphasized that the Council could not base its decision to freeze funds on information communicated by a Member State, if the said Member State  was not willing to authorize its communication to the EU Courts, since the 104  Cases C-402 and 415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351. 105  Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II-4665, [154], [155], [159]; Case T-256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3019, [141]– [143]; Case T-284/08 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3487, [74]–[75]. 106  Case T-85/09 Kadi v European Commission [2010] ECR II-5177. 107  Ibid [96]. 108  Cases C-402 and 415/05 P Yassin Abdullah Kadi (n 104) [326]–[327]. 109  Case T-85/09 Kadi (n 106) [142]. 110  Ibid [143].

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c­ onsequence would be that the GC would be unable to review the lawfulness of the ­contested decision, and hence the applicant’s right to effective judicial protection would be infringed.111 The case was appealed to the CJEU,112 which endorsed intensive review, but did not agree with the entirety of the GC’s reasoning. The CJEU held that respect for the rights of the defence and the right to effective judicial protection meant that the relevant EU authority must disclose to the person concerned the summary of reasons for listing provided by the Sanctions Committee; enable him effectively to make known his observations on that subject; and examine, carefully and impartially, whether the ­reasons alleged are well founded, in the light of the observations presented by that person and any exculpatory evidence that may be produced by him.113 Respect for those rights also implied that it was for the EU Courts, via judicial review, to decide whether the reasons proffered by the UN Sanctions Committee were sufficiently detailed and specific, and whether the facts underlying those reasons had been established:114 ‘judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those ­reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated’.115 The EU Courts could request information from the EU authority to undertake this examination. If the EU authority was unable to provide it, the EU Courts would then base their decision solely on the material which had been disclosed to them, and if that material was insufficient to sustain a finding that a reason was well founded, the EU Courts should disregard that reason as a possible basis for the contested decision to list or maintain a listing.116 It was necessary for at least one of the reasons mentioned in the summary provided by the UN Sanctions Committee to be sufficiently detailed, specific, and substantiated, such that it could in itself support the listing decision. If this was not so, then the EU decision would be annulled.117 The CJEU, nonetheless, concluded that the GC had erred in law, since the GC had held that respect for Kadi’s rights had been infringed when the Commission failed to disclose to Kadi and to the GC information concerning the reasons for maintaining Kadi’s listing, when it was clear that the Commission was not in possession of that information and evidence.118 The fact that Kadi and the EU Courts did not have such information did not constitute, as such, an infringement of the rights of the defence or the right to effective judicial protection, provided that at least one reason given by the 111  Ibid [145]. 112  Cases C-584, 593 and 595/10 European Commission v Kadi, EU:C:2013:518. See also Case C-176/13 P Council of the European Union v Bank Mellat, EU:C:2016:96, [109]–[112]; Case C-200/13 P Council of the European Union v Bank Saderat Iran, EU:C:2016:284, [98]–[100]; Case C-330/15 P Tomana v Council of the  European Union and European Commission, EU:C:2016:601, [98]; Case C-72/15 PJSC Rosneft Oil Co v Her Majesty’s Treasury, EU:C:2017:236, [106], [121]; Case C-79/15 P Council of the European Union v Hamas, EU:C:2017:584, [48]–[49]. 113  Cases C-584, 593 and 595/10 Kadi (n 112) [111], [112], [114], [135]. 114  Ibid [136]. 115  Ibid [119]. 116  Ibid [120]. 117  Ibid [130], [137]. 118  Ibid [138].

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UN Sanctions Committee was sufficiently detailed, specific, and substantiated, such that it could in itself support the listing decision.119 The CJEU, nonetheless, upheld the GC’s ruling, because none of the allegations presented against Kadi in the summary provided by the Sanctions Committee were such as to justify the adoption, at European Union level, of restrictive measures against him, ‘either because the statement of ­reasons is insufficient, or because information or evidence which might substantiate the reason concerned, in the face of detailed rebuttals submitted by the party concerned, is lacking’.120

7  Review of Fact and Discretion: Modern Case Law and Medium-Intensity Review While there are, therefore, cases that evidence high-intensity review for manifest error, the general theme apparent in the modern case law is that review is more searching than in the early jurisprudence, but less intensive than in the cases considered earlier. The EU Courts, in particular the GC, will examine the claim that the decision was vitiated by manifest error in greater depth and detail as compared to the early case law, even though it is not easy for applicants to succeed in these cases. This approach can be exemplified through consideration of cases in important areas that require analysis of fact and exercise of discretion.121

(A)  Common Policies There have been numerous cases dealing with review of fact and discretion in relation to common EU policies in agriculture, fisheries, and transport. Thus in Italy v Council122 the Italian government sought the annulment of a Council Regulation made pursuant to the common fisheries policy limiting total allowable catch for blue fin tuna. It argued that the criteria for allocating percentages of total allowable catch were manifestly 119  Ibid [139]–[149]. 120  Ibid [163]. 121  See also Case T-462/04 HEG Ltd and Graphite India Ltd v Council [2008] ECR II-3685—dumping; Case T-299/05 Shanghai Excell M&E Enterprise Co Ltd and Shanghai Adeptech Precision Co Ltd v Council [2009] ECR II-573—dumping; Case T-49/06 Interpipe Nikopolsky Seamless Tubes v Council [2009] ECR II-383—dumping; Case T-300/07 Evropaïki Dynamiki—Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission, EU:T:2010:372—public procurement; Case C-232/14 Portmeirion Group UK Ltd v Commissioners for Her Majesty’s Revenue & Customs, EU:C:2016:180—dumping; Cases C-376 and 377/15 P Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co Ltd v Council of the European Union, EU:C:2017:269—dumping; Cases C-248, 254 and 260/15 P Maxcom Ltd v City Cycle Industries, EU:C:2017:62—dumping; Case C-643 and 647/15 Slovak Republic and Hungary v Council of the European Union, EU:C:2017:631—immigration. 122  Case C-120/99 Italy v Council [2001] ECR I-7997; Case C-390/95 P Antillean Rice Mills NV and others v Commission [1999] ECR I-769, [48]; Case C-289/97 Eridania SpA v Azienda Agricola San Luca di Rumagnoli Viannj [2000] ECR I-5409, [48]–[49]; Case C-176/09 Luxemburg v European Parliament and Council, EU:C:2011:290; Case C-128/15 Spain v Council of the European Union, EU:C:2017:3.

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inappropriate, because they were based on information about catches for one year, and not even the most recent year, rather than figures for catches over several years. The ECJ found that there was no rule requiring that catch quotas should be based on more than one year of fishing, and that in any event it found that the Council had used figures for two years. It then referred to the settled case law that the EU legislature has considerable discretion when evaluating a complex economic situation, as was so in the CAP and the Common Fisheries Policy. This discretion ‘is not limited solely to the nature and scope of the measures to be taken, but also, to some extent, to the finding of basic facts’.123 Review should, therefore, be confined to manifest error, misuse of power, or a clear excess in the bounds of discretion. The ECJ concluded briefly that the Italian government had not shown that the Council acted in a manifestly inappropriate way when it exercised its discretion.124 In Omega Air125 the claimant sought the annulment of part of a Regulation setting the by-pass ratio for certain types of plane. The by-pass ratio affected the noise levels of the aircraft. The ECJ held that it was not for the EU Courts to substitute their judgment for that of the legislature in relation to the Common Transport Policy. Review must therefore be confined to the trilogy of manifest error, misuse of power, or clear excess in the bounds of discretion. Such review should, moreover, take full account of the discretion of the EU legislature when assessing a complex economic situation, which was relevant not only in relation to the scope and nature of the provisions to be adopted, but also to a certain extent to the findings as to basic facts, ‘especially in the sense that it is free to base its assessment, if necessary on findings of a general nature’.126 The ECJ then reviewed the by-pass ratio in accord with these strictures, and concluded that the Council had sound reasons for choosing the by-pass ratio, which was simpler and hence more workable than other tests. The approach taken to fisheries and transport has, not surprisingly, been replicated in relation to agriculture. In Niemann127 the claimant company challenged a Commission Regulation laying down detailed rules for the application of a parent Regulation concerned with the grant of aid for skimmed milk and skimmed milk powder intended for use in animal feed. It argued that the Commission Regulation infringed certain limits established in the earlier Regulation. The ECJ prefaced its inquiry into this vires issue with more general comments about the CAP.128 It noted that the Commission must be in a position to act quickly under the CAP and therefore it was legitimate for the Council to confer wide discretion on the Commission, the limits of which should be determined by the general aims of this form of market organization. The ECJ noted also that the EU institutions have a wide discretion in relation to the CAP, the corollary 123  Ibid [44]. 124  See also Case C-304/01 Spain v Commission [2004] ECR I-7655, [23]–[25]. 125  Cases C-27 and 122/00 R v Secretary of State for the Environment, Transport and the Regions, ex p Omega Air Ltd [2002] ECR I-2569. 126  Ibid [65]. 127  Case C-14/01 Molkerei Wagenfeld Karl Niemann GmbH & Co KG v Bezirksregierung Hannover [2003] ECR I-2279. 128  Ibid [38]–[39].

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being that review should be limited to manifest error, misuse of power, and clear excess of discretion. The ECJ accepted that the contested Regulation, which required in effect that skimmed milk had to be incorporated into feeding stuffs or made into powder before qualifying for aid, was restrictive. It found nonetheless within a few paragraphs that there was no manifest error on the ground that the contested Regulation made it easier to ensure that the product was in fact used for animal feeds, thereby diminishing abuse of the overall objectives of the scheme.129 Nonetheless even in agriculture cases, the EU Courts will not infrequently, as in Bayer Crop Science,130 Hungary v Commission,131 and France v Commission132 engage in far more detailed review when considering manifest error than in the early case law, even if the applicant fails to convince the Court that such an error exists.

(B)  State Aids The early case law contained numerous applications for review of fact and discretion in the context of state aids. It is, therefore, interesting to see the approach taken by the EU Courts to such challenges in more recent jurisprudence. The Union Courts have continued to limit judicial review in this area.133 The cases,134 nonetheless, reveal more searching scrutiny of the facts and the discretionary determinations than was apparent in the early case law in this area, although falling considerably short of the intensity of review found in the competition cases. There have been frequent attempts to review what was termed earlier, ‘classic discretion’: the decision made by the Commission as to whether to authorize aid where the Treaty accords it a discretion provided that certain conditions are met. In Salzgitter135 the applicant sought the annulment of a Commission decision concerning aid to the steel industry. It had refused to authorize the aid in part because Germany had produced no plan for any reduction in production capacity in the Salzgitter group. The CFI held that the Commission had discretion to determine whether the aid was necessary to achieve the objectives of the Coal and Steel Treaty. Legality review was therefore limited to determining whether there was clear excess of discretion, manifest error of assessment of the facts, misuse of power, or abuse of process. It was for the applicant to 129  Ibid [40]–[45.] See also Case C-369/95 Somalfruit SpA and Camar SpA v Ministero delle Finanze and Ministero del Commercio con l’Estero [1997] ECR I-6619, [50]; Case C-99/99 Italy v Commission [2000] ECR I-11535, [26]; Case C-87/00 Nicoli v Eridania SpA [2004] ECR I-9357, [37]–[40]; Case C-96/15 Saint Louis Sucre v Directeur général des douanes et droits indirects, EU:C:2016:450, [52]. 130  Case T-75/06 Bayer CropScience AG and others v Commission [2008] ECR II-2081. 131  Case T-310/06 Hungary v Commission [2007] ECR II-4619. 132  Case T-549/13 French Republic v European Commission, EU:T:2016:6. 133  Case C-525/04 P Spain v Lenzing [2007] ECR I-9947, [57]; Case C-290/07 P Commission v Scott SA, 2 September 2010, [66]. 134  See, eg, Case T-25/04 González y Díez, SA v Commission [2007] ECR II-3121; Case T-20/03 Kahla/ Thüringen Porzellan GmbH v Commission [2008] ECR II-2305; Cases T-254, 270 and 277/00 Hotel Cipriani SpA and Others v Commission [2008] ECR II-3269. 135  Case T-308/00 Salzgitter AG v Commission [2004] ECR II-1933.

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adduce evidence that would suffice to make the Commission’s factual assessments implausible. It had not done so, and nor did the Commission’s conclusion about production capacity amount to a manifest error.136 The CFI will, nonetheless, examine more closely than hitherto whether there has been a manifest error of assessment. Thus in Graphischer137 the applicant contested a Commission decision reducing the amount of state aid that it would receive under what is now Article 107(3)(c) TFEU. The rationale was that some of the relevant restructuring work had been started before the aid had been authorized by the Commission, and the aid could not therefore be said to have induced the applicant to attain the objectives in that Treaty Article. The CFI repeated the normal precepts about limited judicial review of the complex economic assessments involved in state aid.138 It held, however, that while a firm could not be certain of state aid until it was authorized by the Commission, the mere fact that part of the work had been undertaken prior to that authorization did not preclude a finding that inducement for the work flowed from a promise of aid by the national authorities. It was, therefore, necessary to decide whether such an inducement existed in the present case, and the Commission should have taken account of the precise communications emanating from the national authorities, combined with the urgency of the applicant’s situation. The CFI examined the facts in some detail against this criterion, found that there had been a manifest error of assessment by the Commission, and concluded also that the error had a ­decisive effect on the outcome of the case. There have also been a number of challenges to what was termed earlier ‘jurisdictional discretion’, capturing the situation where one of the X conditions for the exercise of power is framed in terms that are held to accord a discretion to the Commission. In Freistaat Sachsen139 the ECJ considered a challenge to a Commission decision concerning aid to Volkswagen for investment in the new German Länder post reunification. The applicants challenged the decision on the ground that the Commission had misapplied what is now Article 107(3)(b) TFEU, which provides that aid may be considered compatible with the common market if it is to remedy a serious disturbance in the economy of a Member State. The ECJ rejected the argument in part because the question of whether German reunification caused a serious disturbance in the economy of Germany involved complex assessments of an economic and social nature ‘which fall within the exercise of the wide discretion which the Commission enjoys 136  Ibid [136]–[145]. See also Case T-288/97 Regione Autonoma Friuli-Venezia Giulia v Commission [2001] ECR II-1169, [74]; Case C-113/00 Spain v Commission [2002] ECR I-7601, [67]. 137 Case T-126/99 Graphischer Maschinenbau GmbH v Commission [2002] ECR II-2427. See also Case T-68/05 Aker Warnow Werft GmbH and Kvaerner ASA v Commission [2009] ECR II-355; Case T-233/11 Hellenic Republic v European Commission, EU:T:2015:948; Case T-473/12 Aer Lingus Ltd v European Commission, EU:T:2015:78; Case T-219/14 Regione autonoma della Sardegna v European Commission, EU:T:2017:266; Case C-414/15 P Stichting Woonlinie and Others v European Commission, EU:C:2017:215; Case T-671/14 Bayerische Motoren Werke AG v European Commission, EU:T:2017:599. 138  Case T-126/99 Graphischer Maschinenbau (n 137) [32]. 139 Cases C-57 and 61/00 P Freistaat Sachsen and Volkswagen AG and Volkswagen Sachsen GmbH v Commission [2003] ECR I-9975.

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under’ the Article.140 It was not for the EU Courts to substitute their assessment for that of the Commission: review was, therefore, confined to ensuring that the facts were materially accurate, that there was no manifest error, and no misuse of power.141 The applicants had, moreover, not put forward concrete evidence capable of establishing that the Commission had made a manifest error when it reached the conclusion that German reunification did not in itself constitute a ground for applying Article 107(3) (b). The need for the applicant to adduce evidence to counter the factual and discretionary assessments made by the Commission has been emphasized by the Court on a number of occasions.142

(C)  Structural Funds The pattern identified thus far of review going beyond that found in the early cases, but falling short of that in the recent competition cases, is also apparent in the context of the Structural Funds. In Associação Comercial de Aveiro143 the applicant challenged a Commission decision reducing the amount of assistance granted to it for vocational training. The reduction had been made because a national audit revealed that the applicant had charged for certain expenditure that was ineligible. The operative Regulation provided that where European Social Fund assistance had not been used in accordance with the conditions stipulated, the Commission had discretion to suspend, reduce, or withdraw the assistance. The CFI held that this required the Commission to undertake an evaluation of complex facts and accounts, which gave it a considerable measure of discretion, the corollary being that review should be confined to manifest error in assessing the ­relevant information. It concluded that no such manifest error existed, but it was nonetheless willing to examine in some detail the criteria used by the Commission when determining the amount of eligible expenses.144

8  Review of Fact and Discretion: Misuse of Power Little mention thus far has been made of judicial review for misuse of power. This is an acknowledged head of review for fact and discretionary power. It is pleaded frequently before the EU Courts, although it is rarely successful. The meaning ascribed to this concept has remained largely constant over time. The ECJ has consistently held that there is a misuse of power if it appears, on the basis of 140  Ibid [169]. 141  Ibid [169]. 142  Case C-456/00 France v Commission [2002] ECR I-11949, [47]; Case T-199/99 Sgaravatti Mediterranea Srl v Commission [2002] ECR II-3731, [69]; Case T-198/01 Technische Glaswerke Ilmenau GmbH v Commission [2004] ECR II-2717, [168], [171]; Case C-91/01 Italy v Commission [2004] ECR I-4355, [55]. 143  Case T-81/00 Associação Comercial de Aveiro v Commission [2002] ECR II-2509. 144  Ibid [51]–[68].

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objective, relevant, and consistent factors that an institution adopted a measure with the exclusive or main purpose of achieving an end other than that stated, or evading a procedure specifically provided by the Treaty for dealing with the circumstances of the case.145 This head of review is, therefore, primarily directed towards the purpose of the challenged measure rather than its content.146 It is for the applicant to adduce objective evidence that the EU institution has misused its power.147 Thus the claim that a Commission decision on state aid constituted misuse of power because the real purpose was to attain tax harmonization was rejected since the applicant failed to present objective evidence for the allegation.148 The CFI similarly rejected a claim for misuse of power in the sugar sector, stating that the applicant had failed to proffer evidence that the contested regulation was not enacted to deal with deterioration in that sector.149 The applicant failed to convince the CFI that the Commission had misused its power by allegedly neglecting the interests of competition and favouring public postal services over express mail services operated by private undertakings.150 Nor was the applicant in a staff case able to convince the Court that a report on his work efficiency and effectiveness that graded him lower than previous reports was a misuse of power. The CFI was not persuaded by the argument that bad relations with his superiors had influenced their evaluation and hence was a misuse of power.151 The determination as to whether there has been a misuse of power will necessarily require evaluation of the scope and purpose of the relevant Treaty article, or EU legislation on which the contested measure was based. This provides the foundation for deciding whether the contested measure was adopted to attain some other end than that stated or to evade a procedure laid down by the Treaty. This is exemplified by Wirtschaftsvereinigung Stahl.152 The applicants argued that the Commission had authorized aid to a steel firm in breach of the criteria set out in the 145  Cases T-244 and 486/93 TWD Textilwerke Deggendorf GmbH v Commission [1995] ECR II-2265, [61]; Case C-48/96 P Windpark Groothusen GmbH & Co Betriebs KG v Commission [1998] ECR I-2873, [52]; Case C-301/97 Netherlands v Council [2001] ECR I-8853, [153]; Cases T-344–345/00 CEVA Sante Animale SA and Pharmacia Enterprises SA v Commission [2003] ECR II-229, [71]–[73]; Case C-452/00 Netherlands v Commission [2005] ECR I-6645, [114]; Case C-407/04 P Dalmine SpA v Commission [2007] ECR I-829, [99]–[100]; Cases T-227-229, 265, 266 and 270/01 Territorio Histórico de Álava—Diputación Foral de Álava and Comunidad autónoma del País Vasco—Gobierno Vasco v Commission [2009] ECR II-3029, [213]; Case T-390/08 Bank Melli Iran v Council [2009] ECR II-3967, [50]; Case T-348/14 Yanukovych v Council of the European Union, EU:T:2016:508, [123]; Case T-287/15 Tayto Group Ltd v European Union Intellectual Property Office, EU:T:2017:443, [79]. 146  Case T-52/99 T Port & Co KG v Commission [2001] ECR II-981, [56]. 147  Case C-407/04 P Dalmine (n 145) [100]; Case T-390/08 Bank Melli Iran (n 145) [50]; Case T-49/07 Sofiane Fahas v Council, 7 December 2010, [88]. 148  Cases C-186 and 188/02 P Ramondin SA and others v Commission [2004] ECR I-10653, [42]–[48]. 149  Cases T-332 and 350/00 Rica Foods (Free Zone) NV and Free Trade Foods NV v Commission [2002] ECR II-4755, [203]. 150  Cases T-133 and 204/95 International Express Carriers Conference v Commission [1998] ECR II-3645, [179]–[196]. 151  Case T-23/91 Maurissen v Court of Auditors [1992] ECR II-2377, [28]–[34]. 152  Case T-244/94 Wirtschaftsvereinigung Stahl and others v Commission [1997] ECR II-1963, [31]–[47].

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Aid Code for the steel industry adopted under the ECSC. They contended that the Commission had thereby misused its power by favouring that firm in a manner not allowed by the Code and that it had covertly modified the Code. The CFI rejected the argument. It held that the Aid Code was not designed to cover the type of case in issue and that aid could be validly given pursuant to Article 95 ECSC. There was no evidence that in authorizing the aid the Commission had sought to evade the Aid Code. In Compagnie Maritime Belge153 the CFI rejected a claim alleging misuse of power by the Commission when it fixed the fine for a competition violation taking into account the amount of the fine imposed on another undertaking in the same sector. The CFI stated that this was necessary and legitimate to secure consistency in the application of competition law. Successful claims for misuse of power are rare, but a claimant will have more chance of succeeding if something akin to detournment de pouvior can be shown, as in Giuffrida.154 The applicant sought the annulment of a decision appointing Martino to a higher grade in the Community service, pursuant to a competition in which he and Martino were the two contestants for the post. He claimed that the competition was in reality an exercise to appoint Martino to the job, the rationale being that Martino had already been performing the duties associated with the higher grade. The Court quashed the appointment, stating that the pursuit of such a specific objective was contrary to the aims of the recruitment procedure, and was, therefore, a misuse of power. Internal promotions should be based on selecting the best person for the job, rather than preselecting a particular candidate to whom the job would be given.

9  Fact, Standard of Proof, and Standard of Review The case law analysed above has thrown into sharp relief judicial review of fact and discretion. The former will be considered here, the latter in the section that follows. The proper scope of judicial review of fact is an issue that arises in any system of administrative law. The answer will be dependent on both normative and practical considerations. Some will applaud the decisions of the EU Courts in the merger cases, seeing them as an application of the rule of law and a fitting counterweight to the power of the Commission. Others might deprecate the test embodied in the case law, viewing it as crossing the line between review for legality and substitution of judgment. A properly reasoned reaction to the jurisprudence requires us to enhance our understanding of two issues that arise in relation to review of fact that should be distinguished. There is the standard of proof to be required of the initial or primary decision-maker before it makes the decision. There is the standard of judicial review applied by the

153 Cases 24–26 and 28/93 Compagnie Maritime Belge Transports SA and others v Commission [1996] ECR II-1201, [238]. 154  Case 105/75 Giuffrida v Council [1976] ECR 1395.

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reviewing court in deciding whether the primary decision-maker has met the standard of proof required of it. Failure to distinguish between these issues can cause confusion.

(A)  The Standard of Proof Required of the Primary Decision-Maker It is axiomatic that the existence or not of a factual error will be affected by the standard of proof demanded in relation to the facts, when the primary decision-maker makes the contested decision. There are a range of standards from which to choose, including high degree of probability, probability, possibility, sufficiency, a requirement that the evidence should be convincing, or that there should be a preponderance of evidence to sustain the action taken.155 It is common for legal systems to require different standards of proof depending on the nature of the issue, as exemplified by the higher standards demanded in criminal as opposed to civil actions. There may be disagreement as to what the standard of proof ought to be in any particular case. It is, nonetheless, right and proper for the reviewing court to determine the standard of proof required for the establishment of facts by the primary decision-maker. This is exemplified by the competition cases. In Airtours the CFI elaborated the standard of proof that should be required in the instant case, which was concerned with the creation or strengthening of a collective dominant position by a merger. The CFI reiterated the legal test for collective dominance.156 It then focused on the standard of proof required to meet this legal test. The CFI drew on the ECJ’s decision in Kali & Salz,157 but the ECJ did not specify exactly what the standard of proof should be. The CFI nonetheless used the ECJ’s decision as the foundation for a test based on the need for the Commission to show ‘convincing evidence’ that a merger would create or strengthen a situation of collective dominance.158 The CFI in Tetra Laval endorsed and applied the convincing evidence test.159 When the case was appealed to the ECJ the Commission argued that the convincing evidence test was a misreading of Kali & Salz, and the Commission pressed instead for a standard of proof framed in terms of the need to show ‘cogent and consistent evidence’.160 The ECJ held, however, that the CFI had not erred in law when it ‘specified the quality of the evidence which the Commission was required to produce’161 for this type of case, and specifically endorsed the convincing evidence test.162 This demonstrates the disagreement that can arise as to what the standard of proof ought to be in any particular case.163 It is, nonetheless, right and proper for the 155  The Administrative Procedure Act 1946, s 556(d) has been interpreted as establishing preponderance of evidence as the general standard of proof, Steadman v SEC, 450 US 91 (1981); Director, Office of Workers’ Compensation Programs, Department of Labor v Greenwich Collieries Director, 114 S Ct 2251 (1994). 156  Case T-342/99 Airtours (n 77) [62]. 157  Cases C-68/94 and 30/95 France, SCPA and EMC v Commission [1998] ECR I-1375, [222]. 158  Case T-342/99 Airtours (n 77) [63]. 159  Case T-5/02 Tetra Laval (n 78) [155]. 160  Case C-12/03 P Tetra Laval (n 94) [26]–[27]. 161  Ibid [45]. 162  Ibid [41]. 163  For detailed consideration of what the standard of proof should be in merger cases, see Bailey, ‘Standard of Proof ’ (n 1).

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r­ eviewing court to determine the standard of proof required for the establishment of facts by the primary decision-maker. The court should establish this clearly, since it is essential to ensure legal certainty for both applicants and the Commission alike.

(B)  The Standard of Judicial Review Applied by the Court There is, however, a further aspect to the inquiry. This is the role that should be played by the reviewing court in deciding whether the standard of proof has been met or not. To put the same point in another way, the standard of proof tells us the degree of likelihood that must be established in relation to factual findings when the primary decisionmaker makes its initial decision. It does not tell us the standard of judicial review applied by the court in deciding whether the primary decision-maker has met the standard of proof required of it. It is the latter that tells us how far the reviewing court should ­reassess findings of fact made by the primary decision-maker to decide whether the standard of proof for the initial decision has been attained or not. The distinction between the standard of proof required of the initial decision-maker and the standard of judicial review when assessing whether the former has been met is important conceptually in legal systems.164 The standard of proof required of the primary decision-maker will frame the test for review applied by the court, but the latter is nonetheless distinct from the former. Thus, it might be decided that the standard of proof for certain Commission action should be probability, such that a chemical could only be prohibited if it was probable that it would cause harm. This would still leave open the standard to be applied by the reviewing court when determining whether the facts and evidence before the Commission sufficed to establish the requisite probability. It might be felt that the test for review should, for example, be cast in terms of substantial evidence: the court would then consider whether the primary decision-maker had substantial evidence to justify the conclusion that there was a probability of the chemical causing harm such as to warrant Commission intervention.165 It is important that review does not collapse into substitution of judgment. Consider the preceding example, where the standard of proof demanded of the primary decision-maker is that there should be a probability that a chemical might cause harm before it could be banned. It is not for the reviewing court to decide whether, if it had been the primary decision-maker, it would have concluded that such a probability existed. This would be substitution of judgment by the reviewing court for the view taken by the primary decision-maker. The reviewing court must instead develop a standard of review that will allow it to assess whether the person making the initial decision had enough evidence to warrant its conclusion that the chemical would probably be harmful. The test for such review might be that the evidence used by the

164  For clear recognition of this distinction in US law, see Aman and Mayton (n 14) 234–6; Steadman (n 155). 165  Aman and Mayton (n 14) 453–71.

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­ ecision-maker to justify the finding of probability was, for example, substantial or d ­sufficient, even if the reviewing court might not itself have reached that conclusion had  it been charged with the initial decision. This is especially so given that the ­existence of facts and evidence might be contestable, more particularly when the ­contested decision is a complex one.

(C) The Standard of Judicial Review Applied by the Court: The Meaning of Manifest Error The reader might well accept the reasoning thus far, but feel that the answer as to the standard of review is obvious: it is manifest error. It is undeniable that manifest error is the standard of review generally applied by the EU Courts. We must, however, press further and consider how the test was applied. In Tetra Laval166 the CFI held that the contested decision did not establish to the requisite legal standard that the modified merger would give rise to significant anticompetitive conglomerate effects, and that ‘it must therefore be concluded that the Commission committed a manifest error of assessment in prohibiting the modified merger on the basis of the evidence relied on in the contested decision relating to the foreseen conglomerate effect’.167 The legal standard of proof demanded of the initial decision-maker was the convincing evidence test.168 The CFI’s decision was, therefore, that because the Commission had not established to the requisite legal standard, which was the convincing evidence test, that the merger would give rise to significant anticompetitive conglomerate effects, it should therefore be concluded that the Commission had committed a manifest error of assessment in prohibiting the merger. The same reasoning is evident in Vesterdorf ’s analysis.169 This, however, comes close to eliding the standard of proof required of the Commission for the making of its merger decision with the standard of review applied by the Court in assessing its legality. The latter performs merely a conclusory role, expressive of the CFI’s view that the evidence advanced by the Commission was not convincing: the convincing evidence test was the standard of proof required of the Commission when it made its initial determination, and the CFI held that because this test was not met, therefore there was a manifest error of assessment. This does not tell us what test the CFI was bringing to bear in deciding that the evidence was ­unconvincing. It should be recalled that it is not for the reviewing court to decide whether, if it had been the primary decision-maker, it would have concluded that the evidence was convincing, since this would be substitution of judgment. To put the same point another way, the conclusory finding of manifest error is dependent upon some criterion for assessing whether the Commission evidence was convincing or not. In the absence of some articulated criterion the conclusory label 166  Case T-5/02 Tetra Laval (n 78). 167  Ibid [336]. 168  Ibid [155]. 169  Vesterdorf (n 86) 143.

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manifest error could be used to justify intervention in almost any circumstances. It would be open to a reviewing court to substitute judgment for that of the Commission, decide that in the court’s view the evidence was unconvincing, and then conclude that because it found that the evidence was unconvincing there had therefore been a ­manifest error of assessment. It is, however, generally accepted that courts should not when reviewing legality substitute judgment about the relevant factual matter for that of the initial factfinder. The court is not well equipped or well placed to undertake de novo review. The finding and evaluation of facts is quintessentially a matter accorded to the initial decision-maker, who will normally have dealt with many such cases and hence have developed an understanding and expertise in the relevant area that a generalist court cannot match. It would, moreover, be inappropriate for the courts to exercise de novo judgment in circumstances where the initial decision-maker has conducted an oral hearing, and evaluated the cogency of witnesses, which process the reviewing court will rarely wish or be able to replicate. If it did so with any degree of frequency, and made a de novo judgment in cases where the factual issues were complex, then this would moreover seriously overburden the courts. This is acknowledged by the EU Courts, which have repeatedly stated that their role is not to substitute judgment on facts.170 This still leaves open the issue of what test the EU Courts were bringing to bear in deciding that the evidence was unconvincing in a case such as Tetra Laval. The CFI and ECJ would undoubtedly deny that they were substituting judgment for that of the Commission, as to whether there was convincing evidence that the merger would create or strengthen a dominant position. They would point to the recognition in cases such as Airtours that the Commission had discretion with regard to assessments of an economic nature.171 This was endorsed by the ECJ in Tetra Laval, but it was also heavily qualified. It held that the EU Courts should not refrain from reviewing matters of an economic nature, but must rather establish whether the evidence relied on was ­factually accurate, reliable, and consistent and also whether that evidence contained all the information which must be taken into account in order to assess a complex ­situation and whether it was capable of substantiating the conclusions drawn from it.172 It is, however, evident that the primary facts and inferences drawn therefrom in cases of this kind involve complex assessments. The determination of whether the evidence is factually accurate, reliable, and consistent requires evaluation, not simply observation. This is a fortiori so in relation to issues such as whether the evidence contains all the information that must be taken into account in order to assess a complex situation, and whether the evidence is capable of substantiating the conclusions drawn from it. The need for complex assessment is equally present when deciding on the ‘various chains of cause and effect with a view to ascertaining which of them are the 170  This proposition has been stated in EU judgments too numerous to mention, eg Case T-13/99 Pfizer (n 24) [168]. 171  Case T-342/99 Airtours (n 77) [64]. 172  Case C-12/03 P Tetra Laval (n 94) [39].

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most likely’.173 It is, however, precisely in relation to these more complex findings, where the facts are multifaceted and difficult, requiring a greater degree of evaluative judgment, that there can be real differences of view as to the facts and the possible consequences flowing from them.174 It is not clear how much real margin of appreciation is accorded to the Commission in relation to such matters. The President of the CFI, writing extra-judicially, opined that there was a margin of discretion, but that this was a ‘function of the degree of discretion involved’,175 such that a greater margin would be accorded to pure economic assessments, rather less to inferences drawn from primary facts concerning the likely creation or strengthening of a dominant position. It is, however, clear that in reality the CFI in Tetra Laval gave not just ‘rather less’, but very little margin of appreciation to the Commission in relation to such matters. The ECJ’s judgment contains little guidance in this respect.

(D)  The Standard of Judicial Review for Fact: Future Prospects Judicial review of fact and evidence in EU law continues to evolve. There is but little doubt that the recent jurisprudence will generate more case law testing the application of the precepts laid down. Four points can be made in this regard. (i)  Standard of Proof The EU Courts should be as clear as possible as to the standard of proof that is required of the initial decision-maker when making the contested decision. It is right that this matter should be determined by the EU Courts, but this carries a judicial obligation to specify as clearly as possible what the requisite legal standard actually is within any particular area. Legal certainty for applicants and the Commission demands this. (ii)  Standard of Judicial Review Any conclusion as to whether the EU Courts were right to annul the Commission in a case such as Tetra Laval is dependent on a view, explicit or implicit, as to the standard of review that should apply in such cases. There is a pressing need for clarity as to the standard of review that is currently being applied. The repeated articulation of manifest error conceals more than it reveals. It is clear that the test as applied by the EU Courts has evolved a long way from the early jurisprudence. It captures far more than the decision that is facially or self-evidently wrong. The test, as currently used in relation to facts, allows the Court to decide either that a single factual mistake is serious enough to be characterized as a manifest error, or that a series of less important errors should when aggregated be regarded as giving rise to a 173  Ibid [43]. 174  The EU courts can commission an expert report as done in Cases C-89, 104, 114, 116, 117 and 1­ 25–9/85 Ahlström Osakeyhtiö v Commission [1993] ECR I-1307, but this does not alter the point being made. 175  Vesterdorf (n 86) 140.

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manifest error. This may only become evident after searching inquiry. The manifest error test can, moreover, be used in a conclusory manner in the sense articulated ­earlier. (iii)  A Differential Standard of Judicial Review Courts reason by analogy and distinguish cases where there are cogent reasons for differential treatment. The case law on judicial review of fact for manifest error reveals, as seen earlier, low-, high- and medium-intensity review. There is little express recognition of this by the EU Courts, but it is the reality nonetheless. Thus, while it would be possible for the ECJ to ‘cut and paste’ the passages embodying high-intensity review from Tetra Laval176 or Kadi177 to areas such as common policies or the Structural Funds it is very unlikely to do so. It is then necessary for the EU Courts to find some principled basis for distinguishing the areas where they are willing to engage in more intensive factual scrutiny from those where they are not. It might be argued that factual scrutiny in the context of common policies should continue to be less intensive because, for example, the facts have been found by the legislature, because they are based on complex economic projections, because the facts are less easily separable from the discretionary policy choices that inform the CAP, or for a conjunction of all these reasons. Related considerations might be thought to distinguish state aid. The determination of whether there is, for example, a serious ­disturbance in the economy of a Member State necessarily requires factual estimation and evaluation of complex economic data. Considerations of this nature have indeed been taken into account by the EU Courts. Thus, in a series of cases concerned with common policies they have moved beyond saying merely that limited review is warranted because of the broad discretion accorded to the EU institutions in these areas. They have in addition articulated a rationale for limited review that is more explicitly normative in nature, stating that review must be limited where the EU institutions ‘have to reconcile divergent interests and thus select options within the context of the policy choices which are their own responsibility’.178 This is an especially salient concern in the context of policies such as the CAP, where Article 39 TFEU sets out a number of general objectives that can clearly clash. The tensions that this can produce became evident in the ‘banana litigation’. The ECJ forcefully pointed out that the Council had to reconcile the conflicting interests of Member States that produced bananas, which favoured policies enabling their agricultural populace to dispose of their produce to avoid economic hardship; and other Member States that

176  Case C-12/03 P Tetra Laval (n 94) [39]. 177  Case T-85/09 Kadi (n 106); Cases C-584, 593 and 595/10 Kadi (n 112). 178  Case C-41/03 P Rica Foods (Free Zone) NV v Commission [2005] ECR I-6875, [54]. The same formulation can be found in earlier cases, see, eg, Case C-280/93 Germany v Council [1994] ECR I-4973, [90]–[91]; Case C-150/94 UK v Council [1998] ECR I-7235, [87]; Case C-17/98 Emesa Sugar (Free Zone) NV v Aruba [2000] ECR I-675, [53]; Case C-301/97 Netherlands v Council (n 145) [74]–[75].

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did not produce the fruit and simply sought on behalf of their consumers unlimited access to third country production at the best available price.179 It is clear, by way of contrast, that the most searching application of manifest error review has been in the contexts of risk regulation, competition, and fundamental rights. The considerations that have shaped the more intensive review in these areas are eclectic. In the context of risk regulation, the EU judiciary doubtless recognize the controversy surrounding the precautionary principle that informs EU policy, such that intensive review of risk assessment is designed to allay fears that the precautionary principle will be used as a disguised mode of arbitrary trade restriction. In the context of competition, it has been driven in part by the criticisms voiced about the role of the Commission as prosecutor, judge, and jury, and thus more intensive review for ­manifest error is seen as counterweight in this respect. In the context of fundamental rights, the high-intensity interpretation of manifest error has been driven by limitations on review of the Security Council resolutions that form the basis for EU regulations freezing the assets of particular individuals. (iv)  Judicial Review and Institutional Capacity The obligations placed on EU Courts by high-intensity factual review are significant. If the EU Courts fail to discharge these burdens the very legitimacy of judicial intervention will be called in question. Thus if the EU Courts take seriously the injunction placed on them by the ECJ to review facts in complex cases, but then attempt to do so too briefly, their credibility will be undermined, more especially if the judgments lead to the annulment of Commission decisions. We should, moreover, be aware of the relative burden borne by the GC and CJEU respectively. High-intensity factual review normally translates into lengthier judgments, as seen earlier. The task falls principally on the GC, which hears annulment actions brought by individuals. When cases are taken on appeal the CJEU will only review for questions of law, and this excludes re-evaluation of the way in which the GC assessed the factual evidence. It remains to be seen whether the GC can sustain the demands imposed by high-intensity factual review, and whether it has the institutional capacity to produce judgments in such detail, even with the increase in the number of judges resulting from the 2015 reforms. Indirect challenges to the validity of EU norms are, however, only heard by the CJEU. It is already overburdened with work, and would not view with equanimity the task of producing very long judgments investigating the factual correctness of an EU decision. There is, nonetheless, a tension if the CJEU engages in less intensive review under Article 267 TFEU than that undertaken by the GC under Article 263 TFEU where the substance of the case is the same. The intensity of review would be d ­ ependent on the fortuity whether the matter was heard via a direct or indirect challenge, thereby further undermining the claim that the barriers to direct actions do not prejudice

179  Case C-280/93 Germany v Council (n 178) [92].

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claimants.180 There is some indication that this is occurring. Thus, we have already noted that CJEU decisions in cases such as Gowan and Afton Chemical181 reflected medium-intensity review for manifest error, as opposed to the detailed high-intensity scrutiny undertaken by the CFI in Pfizer.182 This might be interpreted to mean that the CJEU deprecates the higher level of scrutiny. It might alternatively mean that the CJEU simply does not have the institutional capacity to engage in such in-depth review.

10  Discretion, Manifest Error, and Hard Look (A)  Substantive Review and Judicial Choice: Two Techniques The discussion in the previous section focused on judicial review for factual error. We now turn to review of discretion. The Courts have repeatedly stated that they do not substitute judgment on the exercise of discretion for that of the initial decision-maker, and that their role is limited to finding a manifest error, misuse of power, or clear excess in the bounds of discretion. This standard formula must, however, be treated with caution. This is in part because substantive review of discretionary d ­ eterminations will often take place via proportionality. The reason for caution with respect to the standard formula resides also in the interpretation of test for manifest error. Many cases will not be decided on the basis of proportionality, but will turn on the Union Courts’ assessment as to whether there has been a manifest error in the way that the discretion has been exercised. The meaning accorded to manifest error is, therefore, crucial in such instances, and the discussion that follows will deal with this aspect of substantive review. It might well be helpful to take a step back before moving forward. It is axiomatic that if courts operating in any system of administrative law wish to expand the scope of substantive review they can do so in one of two ways. They might choose to add new heads of substantive review to those currently available within that system, a classic example being the recognition of proportionality review. They might also expand the reach of substantive review by taking existing heads of review and giving them a more expansive interpretation than hitherto. The techniques can be used in tandem. The latter however has ‘attractions’ for the judiciary. It is, other things being equal, easier for courts minded to expand substantive review to preserve the impression of continuity with existing doctrine if they continue to use well-recognized heads of review, while at the same time imbuing them with greater force than hitherto. This approach obviates the need for the type of judicial self-inquiry that normally attends

180  It might be argued that this problem is apparent rather than real since detailed factual review in indirect actions should be undertaken by the national court making the reference. It is, however, doubtful whether a generalist national court would have the expertise or capacity for this type of in-depth factual scrutiny. 181  Case C-77/09 Gowan (n 76); Case C-343/09 Afton Chemical (n 76). 182  Case T-13/99 Pfizer (n 24).

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the decision as to whether to introduce a new head of review to the existing armoury. It will, moreover, often be the case that investing existing heads of review with more vigour will only became apparent when the task has been judicially accomplished. Reflection on the new status quo, whether by academics or courts, will therefore take place against the backdrop of an already developed jurisprudence that embodies the modified meaning given to the ‘classic’ head of review. It is, in that sense, ex post facto, as compared with the judicial and scholarly discourse that attends the decision as to whether to introduce a new head of review, which will normally be ex ante.

(B)  Substantive Review and Judicial Choice: US Law The point made above can be neatly exemplified by a brief glance at US law. Under the Administrative Procedure Act 1946 (APA), agency findings can be set aside if they are ‘arbitrary, capricious or an abuse of discretion’.183 The arbitrary and capricious test was, therefore, a principal tool for substantive review of discretion. Judicial interpretation often matched the facial language of the test. Plaintiffs faced an uphill task to convince a reviewing court that an agency decision really was arbitrary and capricious. The test was narrowly interpreted, it being sufficient for the agency to show some minimal connection between the statutory goal and its discretionary choice.184 The plaintiff had to demonstrate some manifest irrationality before the court would intervene. Thus as Shapiro states, ‘in fact in the 1940s and ‘50s, rules almost never failed the arbitrary and capricious test’,185 with New Deal judges being very reluctant to say that New Deal bureaucrats had failed ‘the APA sanity test, that is had done something arbitrary and capricious’.186 The label ‘hard look’ developed because the courts began to desire more control than allowed by this limited reading of the arbitrary and capricious test.187 In State Farm188 the Supreme Court founded its intervention on the arbitrary and capricious test, but then gave a broader reading to that phrase than that in earlier case law. The court accepted that it should not substitute its judgment for that of the agency. It could,

183  Administrative Procedure Act 1946, s 706(2)(a). 184  Aman and Mayton (n 14) 519–29; S Breyer, R Stewart, C Sunstein, and M Spitzer, Administrative Law and Regulatory Policy (Aspen Law & Business, 5th edn, 2002) 415. 185  M Shapiro, ‘Codification of Administrative Law: The US and the Union’ (1996) 2 ELJ 26, 28. 186  Ibid 33. 187  Greater Boston Television Corp v Federal Communications Commission, 444 F2d 841, 850–3 (DC Cir 1970), cert denied 403 US 923 (1971); Environmental Defense Fund Inc v Ruckelshaus, 439 F2d 584 (DC Cir 1971); H  Leventhal, ‘Environmental Decision Making and the Role of the Courts’ (1974) 122 U Pa L Rev 509; R Stewart, ‘The Reformation of American Administrative Law’ (1975) 88 Harv L Rev 1667; R Stewart, ‘The Development of Administrative and Quasi-Constitutional Law in Judicial Review of Environmental Decision Making; Lessons From the Clean Air Act’ (1977) 62 Iowa L Rev 713; A Aman, ‘Administrative Law in a Global Era: Progress, Deregulatory Change & The Rise of the Administrative Presidency’ (1988) 73 Corn L Rev 1101. 188  Motor Vehicle Manufacturers Assn v State Farm Mutual Automobile Insurance Co, 463 US 29, 42–3 (1983). The case was concerned with the adequacy of an agency’s explanation for rescinding a regulation ­concerned with passive restraints in motor vehicles.

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­ owever, intervene if any of the following defects were present: if the agency relied on h factors which Congress had not intended it to consider; failed to consider an important aspect of the problem; offered an explanation which ran counter to the evidence before the agency; was so implausible that it could not be sustained; failed to provide a record which substantiated its findings; or where the connection between the choice made by the agency and the facts found was not rational. The hard look doctrine, therefore, represented a shift from a previously more ­minimal substantive review, where judicial intervention would occur only if there was serious irrationality, to one where the courts would interfere where the broader list of defects set out above are present. Controversial issues touching on the merits can arise. Deciding whether a particular consideration is relevant can often be difficult in complex cases. The hard look test proved to be a powerful tool, because of the insistence on the provision of reasons, the demand for a more developed record and a judicial willingness to assess the cogency of the reasoning process used by the agency when it made its initial determination. This is not to say that the test was unproblematic. There have been problems resulting from an excessive demand for information and justification by the courts, which led some to coin the phrase ‘paralysis by analysis’. This brief excursus into US law reveals the judicial creativity in giving meaning to substantive review, transforming the arbitrary and capricious test from a relatively minimal longstop to catch clear arbitrariness into a more potent tool for substantive control over discretion. The reasons why the US courts transformed substantive review in this manner were eclectic. There was, as Shapiro notes, an increasing distrust of technical expertise combined with a greater willingness to engage in more serious review of technocratic decision-making.189 This was combined with increasing ­emphasis placed on the importance of transparency and participation in the making of the initial decision or rule.190 This placed before a reviewing court a wider range of arguments about the content of the contested norm, thereby facilitating closer review of the cogency of the reasoning used by the agency. Shapiro captures well the resulting transformation.191 American judges deferred to administrators in the 1950s. By the 1970s they deferred to no one. In the 1950s they openly said, who are we, as laymen to overturn expert administrative judgments. By the 1970s judges were saying, we are partners with administrators in administrative rule-making and indeed the senior partners with the final say. It was not the APA that had changed. Nor did the review provisions of new statutes significantly alter APA doctrine. What had changed was the judges’ belief in the relative capacity of administrators and judges to make the right decisions. This change in judicial beliefs runs too startlingly parallel to broad changes in political alignments and general world view to deny the connection between the two.

189  Shapiro (n 185) 33–6. 191  Shapiro (n 185) 36.

190  Stewart, ‘The Reformation of American Administrative Law’ (n 187).

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The change in judicial belief of which Shapiro speaks is not, however, fixed in stone. There is evidence that the US courts have, more recently, applied the arbitrary and capricious test less intensively than the hard look version thereof.192

(C)  Substantive Review and Judicial Choice: Manifest Error It is interesting to reflect on the development of manifest error in EU law in the light of the preceding discussion. The label manifest error, like that of arbitrary and capricious, is suggestive of review that will only be used as a longstop to catch extreme and obvious forms of substantive error. This was the way in which the concept was commonly used in the early years of the Community, with the Courts being very reluctant to set aside decisions on this ground. The ECJ gave scant attention to the Commission’s reasoning when reviewing the contested decision and the Court was normally content with one or two brief paragraphs before finding that there was no manifest error. Low-intensity review for manifest error prevailed. The later jurisprudence reveals a different picture. The EU Courts continue to repeat the classic formulation to the effect that they do not substitute judgment, and that review of discretion must be limited to a finding of manifest error, misuse of power, and clear excess of discretion. There is, however, little doubt that review of discretion in areas such as the common policies, agriculture, fisheries, and transport, has become more rigorous than in the early years of the Community’s existence. It is now of medium intensity and the EU Courts will inquire more closely into the reasoning process and the resulting decision. An applicant will, nonetheless, still face an uphill struggle to convince an EU Court to overturn a CAP regulation for manifest error in the way that the discretion was exercised. This must, however, be seen against the backdrop of the Treaty provisions in these areas, which are characterized by objectives set at a high level of generality that can conflict inter se.193 In other areas, as seen earlier, the transformation of manifest error has been more marked and the EU Courts undertake significantly more intensive review of the ­reasoning used by the Commission when assessing whether the contested provision can survive judicial scrutiny. This change is reflected also in the way in which the GC has asserted control over the reasoning process used by the scientific committees that feed into the regulatory process. It will be common for the Commission to rely heavily on such committees when making regulations or decisions. In one such case the CFI held that the ‘Community judicature may be called on to review, first, the formal legality of the Committee for Proprietary Medicinal Products scientific opinion and, second, the Commission’s exercise of its discretion’.194 While the 192  J Gersen and A Vermeule, ‘Thin Rationality Review’ (2016) 114 Mich L Rev 1355. 193  See cases cited at n 178. 194  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan GmbH v Commission [2002] ECR II-4945, [199]. The case was upheld on appeal, but the ECJ did not consider this issue, Case C-39/03 P Commission v Artegodan GmbH [2003] ECR I-7885.

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CFI acknowledged that it could not substitute its view for that of the CPMP, it could consider the reasons proffered by the CPMP and whether there was an understandable link between the medical evidence relied on by the CPMP and its conclusions. It was, moreover, incumbent on the CPMP to refer to the main scientific reports on which it had relied and to explain why it disagreed with, for example, divergent scientific opinion presented by the undertakings concerned in the case.195 Given that the Commission would normally accept the opinion of the scientific committee, and had done so in the instant case, it followed that if judicial review was to be meaningful the CFI should be able to consider the reasoning used by the CPMP.196 The tools used to modify review for manifest error in the EU bear some analogy to those used in the US, subject to the caveats discussed later. Thus the EU Courts will look closely at the discrete parts of the Commission reasoning process in order to see whether they make sense, they will consider the evidentiary foundations for the Commission’s argument and will assess the cogency of the Commission’s overall conclusions in the light of this judicial scrutiny. Consideration of the reasoning process is therefore used to facilitate substantive review. This is exemplified by the application of the duty of careful examination in Pfizer, where the procedural duty served to justify the requirement of scientific advice, with the aim of ensuring that the resultant regulation was not substantively arbitrary.197 The connection between process and substance is apparent once again in relation to ­reasons. Thus, the rationale for the obligation to give reasons is in part that it will enable the Courts to determine whether the administration acted for improper purposes, or took irrelevant considerations into account, when reaching its decision. The CFI emphasized that the reasons given must be sufficient to enable it to exercise its judicial review function, and it scrutinized the Commission’s reasoning, annulling the decision if it did not withstand examination.198 There is, therefore, a proximate connection between expansion of the duty to give reasons and closer judicial scrutiny of the administration’s reasoning process in order to discover a substantive error. While it is possible for courts to demand more by way of reasons, but still to engage in low-intensity substantive review, the reality is that expansion of process rights encourages courts to engage in more intensive substantive review, because they have more to work with and therefore feel more confident about asserting judicial control.

195  Ibid [199]–[200]. 196  The CFI did not state how this fitted with the standard requirement that for an act to be reviewable it must be binding on and capable of affecting the legal interests of the applicant. It could, however, have argued that the mandatory consultation of the CPMP rendered its opinion, which was then adopted by the Commission, an integral part of the legally binding decision made by the Commission, and was therefore reviewable. This was the approach taken in Case T-326/99 Olivieri v Commission and EMEA [2003] ECR II-6053, [55]. 197  Case T-13/99 Pfizer (n 24) [171]–[172]. 198  See, eg, Case T-44/90 La Cinq SA v Commission [1992] ECR II-1; Case T-7/92 Asia Motor France SA v Commission [1993] ECR II-669; Cases T-374, 375, 384 and 388/94 European Night Services v Commission [1998] ECR II-3141.

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There is, however, an important difference between the modern application of ­ anifest error in the EU and the hard look version of the arbitrary and capricious test m in the US. The latter was fuelled in part by the protection afforded to participation when rules of a legislative nature are made by agencies. The APA required the agency to respond to comments made by the parties before finalizing the draft rule. This furnished the courts with contrasting views on the cogency of the rule and a significant dossier of evidence when it was challenged by way of judicial review. The courts, therefore, had ready-made material on which hard look review could bite. The contrast with EU law in this respect is marked. The EU does not have an APA and the EU Courts have resisted attempts to develop participation rights in relation to the making of the initial rule in the absence of an obligation to consult in a Treaty ­article or EU legislation.199 This has a twofold impact on manifest error. It means that there is less material readily available from the making of the initial rule on which to test its cogency in the reviewing court. The applicant can present such arguments at the review stage, but this does not undermine the contrast, since in an APAtype regime there will be a wealth of material available not only from the applicant who seeks review, but also from others who lodged comments when the rule was drafted. The difference also means that part of the rationale for harder look review in the US falls away in the EU. In the US the harder look has been justified in part by the desire to protect participation rights embodied in the APA, the argument being that such rights will be undermined if the agency could simply go through the motions of listening to people while not really taking their views into account when making the final rule. The hard look interpretation of the arbitrary and capricious test was designed, therefore, to allow the reviewing court to evaluate the agency’s reasoning process to make sure that the comments that flowed from participatory rights were taken s­ eriously. This incentive for a more intensive reading of manifest error in the EU may be present when consultation rights are mandated in a particular instance. It will, subject to the qualification below, be absent in other cases, precisely because there will not be participatory rights to be protected in this manner. This naturally leads to reflection as to the reasons why the EU Courts have, subject to the preceding caveats, developed the test of manifest error to be a more searching tool for review than it was in the early years of the Community’s existence. This must necessarily be a matter for speculation, but a number of arguments can nonetheless be posited. First, the application of manifest error with a light touch in the early years was likely influenced by the ECJ’s reticence in overturning norms in the new Community order, more especially when they were brokered through hard-fought battles in the legislative arena. The EU is now firmly established and the Union Courts may well justifiably feel that it can withstand annulment of some of its initiatives, without thereby sending shockwaves through the system as a whole.

199  See above, Ch 11.

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Secondly, more intensive deployment of manifest error in relation to discretion and fact may also be explicable in terms of legitimacy. There has, as is well known, been much discourse on the legitimacy of the EU and on accountability of its decisions. Imbuing the manifest error test with greater force, and thereby bolstering substantive review, is one way in which to enhance the accountability of those who made the initial decision and hence increase the legitimacy of the resulting norms.200 Thirdly, the creation of the CFI was also important in this respect. It was established to ease the burden on the ECJ. Its initial jurisdiction was for complex cases with a heavy factual quotient, which required in-depth scrutiny of facts and attention to the reasoning of the primary decision-maker. These skills could be carried over when its jurisdiction was expanded to cover all direct actions brought by non-privileged applicants. The CFI was, therefore, well placed to engage in more intensive substantive review. This is reflected in the view expressed by Advocate General Vesterdorf that the creation of the CFI as a court of both first and last instance for the examination of facts in the cases brought before it was ‘an invitation to undertake an intensive review in order to ascertain whether the evidence on which the Commission relies in adopting a contested decision is sound’.201

11 Conclusion The meaning accorded to the concepts of law, fact, and discretion is central to judicial review in any regime of administrative law. It should, therefore, come as no surprise that this is equally so for the EU. Nor should we be surprised to find that the meaning given to central concepts in substantive review such as manifest error has evolved over time. This too is common within national legal systems. The relationship that does and should prevail between reviewing court and initial decision-maker in relation to law, fact, and discretion may be contested in any administrative law system, and the EU is no exception in this respect as evidenced by the recent jurisprudence.

200  Indeed, it might, for example, be contended, contrary to what was said earlier, that the very fact that the EU Courts have refused to recognize participation rights in the making of the original decision or rule, unless such rights have been granted by a Treaty article or EU legislation, provides a reason why the Courts are willing to engage in more searching scrutiny by way of judicial review. On this reading, review would enhance the legitimacy of the contested provision by enabling claimants to challenge its precepts in circumstances where they were unable to have input into the making of the original provision. 201  Case T-7/89 Hercules v Commission [1991] ECR II-867, I.B.1; Case C-344/98, Masterfoods Ltd v HB Ice Cream Ltd [2000] ECR I-11369, AG Cosmas, [54].

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16 Rights 1 Introduction The Lisbon Treaty rendered the Charter of Fundamental Rights legally binding, thereby resolving an issue that had been left open since the Charter was initially drafted almost a decade earlier. The discussion begins with a brief account of the evolution of fundamental rights in the EC, followed by the genesis and drafting of the Charter. The status accorded to the Charter in the Lisbon Treaty is examined, as is the EU’s obligation to accede to the ECHR. The focus then turns to the Charter itself. It is beyond the scope of this chapter to analyse every Charter provision, since that would require a book dedicated to human rights. The approach is therefore to provide a brief overview of the content of the Charter, with attention thereafter being on important issues that arise from Title VII, which contains general provisions concerning the interpretation and application of the Charter. The discussion concludes by examining some of the broader implications of the Charter for the profile and legitimacy of judicial review within the EU.

2  Charter of Fundamental Rights (A)  Fundamental Rights: Origins and Development The evolution of the fundamental rights’ jurisprudence is well known.1 The original Treaties contained no express provisions concerning the protection of human rights. 1  M Dauses, ‘The Protection of Fundamental Rights in the Community Legal Order’ (1985) 10 ELRev 398; A Cassese, A Clapham, and J Weiler (eds), European Union: The Human Rights Challenge (Nomos, 1991); A  Clapham, ‘A Human Rights Policy for the European Community’ (1990) 10 YEL 309; K Lenaerts, ‘Fundamental Rights to be Included in a Community Catalogue’ (1991) 16 ELRev 367; J Weiler, ‘Thou Shalt not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-Community Nationals—a Critique’ (1992) 3 EJIL 65; J Coppel and A O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 12 Legal Studies 227; G de Búrca, ‘Fundamental Human Rights and the Reach of EC Law’ (1993) 13  OJLS 283; P Twomey, ‘The European Union: Three Pillars without a Human Rights Foundation’ in D  O’Keeffe and P Twomey (eds), Legal Issues of the Maastricht Treaty (Wiley, 1994) 121; J Weiler and

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This may have been a reaction to the failure of the ambitious attempts to create a European Political Community (EPC) in the mid-1950s,2 which convinced advocates of closer integration to scale down their plans. The 1957 EEC Treaty focused on economic integration and contained no mention of human rights. The absence of human rights may also have been because the framers did not realize that the EEC Treaty, with its economic focus, could encroach on traditionally protected fundamental human rights. This was belied by subsequent events. It quickly became apparent that Community action could affect social and political, as well as economic, issues. The expansion of Community competences attendant upon successive Treaty amendments reinforced this. It was the ECJ that developed what amounted to an unwritten charter of rights.3 The ECJ’s early approach was unreceptive to rights-based claims.4 It was Internationale Handelsgesellschaft which secured fundamental rights within the Community legal order.5 The applicant, a German import–export company, argued that a Community Regulation, which required forfeiture of a deposit if goods were not exported within a specified time, was contrary to principles of German constitutional law. The ECJ’s response was a mixture of stick and carrot. It forcefully denied that the validity of a Community measure could be judged against principles of national constitutional law. It then held that respect for fundamental rights formed an integral part of the general principles of Community law protected by the ECJ, which would decide whether the deposit system infringed these fundamental rights. In subsequent case law the ECJ emphasized that it would draw inspiration from the constitutional traditions of the Member States, international human rights treaties,6 and the ECHR.7 The early case law was concerned with the compatibility of Community norms with fundamental rights. The ECJ later confirmed that these rights could be binding on the Member N  Lockhart, ‘ “Taking Rights Seriously” Seriously: The European Court and its Fundamental Rights Jurisprudence’ (1995) 32 CMLRev 579; S O’Leary, ‘The Relationship between Community Citizenship and the Protection of Fundamental Rights in Community Law’ (1995) 32 CMLRev 519; N Neuwahl and A Rosas (eds), The European Union and Human Rights (Kluwer, 1995); P Alston, with M Bustelo and J Heenan (eds), The EU and Human Rights (Oxford University Press, 1999); S Greco, ‘I diritti fondamentali nella costituzione europea’ (2001) Rivista Italiana di Diritto Pubblico Comunitario 187; A Ferraro, ‘Il ruolo della Corte di Giustizia delle Comunità Europee nell’elaborazione ed evoluzione comunitaria dei diritti fondamentali dell’uomo’ (2003) Rivista Italiana di Diritto Pubblico Comunitario 1356. 2  G de Búrca, ‘The Evolution of EU Human Rights Law’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 2nd edn, 2011) Ch 16. 3  B de Witte, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’ in Alston (n 1) Ch 27. 4  Case 1/58 Stork v High Authority [1959] ECR 17; Cases 36, 37, 38 and 40/59 Geitling v High Authority [1960] ECR 423; Case 40/64 Sgarlata and others v Commission [1965] ECR 215. 5  Case 11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. 6  Case 149/77 Defrenne v Sabena [1978] ECR 1365. 7  See, eg, Case 4/73 Nold v Commission [1974] ECR 491; Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727; Case C-235/99 The Queen v Secretary of State for the Home Department, ex p Kondova [2001] ECR I-6427; Case C-25/02 Rinke v Arztekammer Hamburg [2003] ECR I-8349; Cases C-465/00, 138 and 139/01 Rechsnungshof v Österreichischer Rundfunk and others [2003] ECR I-4989.

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States when they acted within the sphere of Community law,8 provided that there was some real connection with EC law.9 The ECJ did not make the sole contribution to the evolution of human rights within the Community. The Treaty contained certain provisions that would find a place in any modern Bill of Rights. Non-discrimination on the grounds of nationality was secured by Article 12 EC, and also in the Treaty provisions on free movement. Gender equality was protected by Article 141 EC.10 The ECJ’s approach to fundamental rights was cloaked with legitimacy in a declaration of the three principal Community institutions on 5 April 1977.11 They emphasized the importance of fundamental rights, as derived from the constitutions of the Member States and the ECHR, and stated that they would respect them in the exercise of their powers. This was followed by several other non-binding political initiatives. These included a Joint Declaration of the three institutions in 1986; various Declarations and Resolutions on Racism and Xenophobia by the European Council;12 a Declaration of Fundamental Rights and Freedoms by the European Parliament in 1989;13 a Community Charter of Fundamental Social Rights, signed by eleven of the then twelve Member States in 1989;14 as well as references in the Preamble to the Single European Act 1986 (SEA) to the ECHR, the European Social Charter, and to ‘equality and social justice’. Treaty amendments contributed to the profile of fundamental rights within the legal order. The Amsterdam Treaty was especially important in this respect. Article 6(1) EU was strengthened so as to provide that the Union was founded on the principles of liberty, democracy, and respect for human rights and fundamental freedoms. Article 6(2) EU stipulated that the Union should respect fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions of the Member States as general principles of law. It was made justiciable by Article 46(d) EU. Article 7 EU enabled the Council to suspend certain Member State rights, where it committed serious and persistent breach of the principles set out in Article 6(1) EU. The Amsterdam Treaty also added an important new head of legislative competence, Article 13 EC, to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation.15 8  Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651; Case 5/88 Wachauf v Germany [1989] ECR 2609; Cases C-74/95 and 129/95 Criminal Proceedings against X [1996] ECR I-6609; Case C–260/89 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas [1991] ECR I-2925, [43]; Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-368, [24]; Case C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279, [40]–[41]; Cases C-482 and 493/01 Orfanopoulos v Land Baden-Wurttemberg [2004] ECR I-5257, [97]–[98]; Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU [2008] ECR I-271, [70]. 9  Case C-144/95 Maurin [1996] ECR I-2909; Case C-299/95 Kremzow v Austria [1997] ECR I-2629; Case C-309/96 Annibaldi v Sindaco del Commune di Guidonia and Presidente Regione Lazio [1997] ECR I-7493. 10  C Barnard, ‘Gender Equality in the EU: A Balance Sheet’ in Alston (n 1) Ch 8. 11  [1977] OJ C103/1; K Bradley, ‘Reflections on the Human Rights Role of the European Parliament’ in Alston (n 1) Ch 26. 12  See, eg, [1986] OJ C158/1, Bull EC 5-1990, 1.2.247, Bull EC 6-1991, I.45, and Bull EC 12-1991, I.19. 13  [1989] OJ C120/51. 14  COM(89) 471 final. 15  L Flynn, ‘The Implications of Article 13—After Amsterdam Will Some Forms of Discrimination be More Equal than Others?’ (1999) 36 CMLRev 1127; G de Búrca, ‘The Role of Equality in European Community Law’

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(B)  Charter: Genesis and Drafting Prior to the Charter the protection of rights was, nonetheless, fragmented and piecemeal, thereby making it more difficult for the citizenry to understand the legal status quo.16 Moreover, the very fact that the scope of Community power had increased considerably made the promulgation of some form of Community bill of rights more pressing. It is a basic tenet of liberal democratic regimes that a quid pro quo for governmental power is the existence of rights-based constraints on the exercise of that power. This fundamental idea is just as applicable to the EU as to traditional nation states. Thus, even if the ECJ had not been ‘pressed’ into recognizing fundamental rights by the threat of revolt from the German and Italian courts, it would, in all likelihood, have realized the necessity for such limits on governmental power of its own accord, more especially because it was at that time developing administrative law controls on Community action. While the ECJ laid the groundwork for rights-based protection, the decision to draft a Charter meant that consideration could be given to the range of rights which should be recognized, and enabled a spectrum of views to be taken into account when doing so, thereby enhancing the legitimacy of the resulting document.17 The immediate catalyst for the Charter of Fundamental Rights came from the European Council. In June 1999 the Cologne European Council18 decided that there should be a Charter of Fundamental Rights to consolidate the fundamental rights applicable at Union level and to make their overriding importance more visible to EU citizens.19 The Charter was to contain fundamental rights and freedoms, as well as the basic procedural rights guaranteed by the ECHR. It was to embrace the rights derived from the constitutional traditions common to the Member States that had been recognized as general principles of Community law. It was also made clear that the Charter should include economic and social rights. The institutional structure for the discussions about the Charter was laid down in the Tampere European Council in October 1999.20 It was decided to establish a body called the Convention. It consisted of representatives of the Member States, a member of the Commission, Members of the European Parliament, and representatives from in S O’Leary and A Dashwood (eds), The Principle of Equal Treatment in EC Law (Sweet & Maxwell, 1997) 13–34. 16  A Vitorino, ‘The Charter of Fundamental Rights as a Foundation for the Area of Freedom, Justice and Security’, Centre for European Legal Studies, Exeter Paper in European Law No 4 (2001) 12–14. 17  See, however, J Weiler, ‘Editorial: Does the European Union Truly Need a Charter of Rights?’ (2000) 6 ELJ 95. 18  3–4 June 1999. 19  J Dutheil de la Rochère, La Charte des droits fondamentaux de l’Union européene (2001); G de Búrca, ‘The Drafting of the European Charter of Fundamental Rights’ (2001) 26 ELRev 126; M Chiti, ‘La Carta Europea dei diritti fondamentali: una Carta di carattere funzionale?’ (2002) Rivista Trimestrale di Diritto Pubblico 1; M Maduro, ‘The Double Constitutional Life of the Charter of Fundamental Rights of the European Union’ in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Hart, 2003) 272–6; G de Búrca and J Beatrix Aschenbrenner, ‘European Constitutionalism and the Charter’ in S Peers and A Ward (eds), The EU Charter of Fundamental Rights: Politics, Law and Policy (Hart, 2004) Ch 1; J Schonlau, Drafting the EU Charter: Rights, Legitimacy and Process (Palgrave, 2005). 20  15–16 October 1999.

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national parliaments. The first meeting took place in December 1999. The Convention was instructed to conclude its work in time for the Nice European Council in December 2000. The discussion in the Convention was therefore conducted in parallel with the Intergovernmental Conference (IGC) concerning the institutional consequences of enlargement that led to the Nice Treaty. The draft Charter was submitted by the Chairman of the Convention, Roman Herzog, to President Chirac, who held the Presidency of the European Council, on 5 October 2000.21 It was considered at an informal meeting of the European Council at Biarritz on 14 October 2000.22 The Charter was accepted, and this was reinforced at the Nice European Council. The Charter was drafted so as to be legally binding. Its precise legal status was, however, left undecided in Nice. It is important, at this juncture, to stress two things about the genesis of the Charter. In substantive terms, the catalyst was the heads of state meeting in the European Council. Some of the press coverage painted the Charter as yet another example of expansionism by some reified entity called the EU, with the Commission playing a Machiavellian role in the process. This is wrong. The Commission was in favour of the initiative, but it was launched by the Member States. It was the Member States meeting in the European Council that set the broad terms for the Charter, more particularly the fact that it should include social and economic, as well as traditional civil rights, although it should also be acknowledged that this broad remit had been recommended by an independent group of experts in February 1999. Indeed given that the development of fundamental rights had hitherto been in the hands of the Community Courts there is force in Maduro’s observation that the drafting of the Charter represented ‘the political process taking back into its own hands the definition of the system and catalogue of fundamental rights in the EU’.23 In procedural terms, the deliberations of the Convention were transparent with discussion papers readily available on the website. There were public meetings in which individuals, NGOs, and the like were invited to submit their views. It is, moreover, worth noting how much was achieved within such a short time. The Convention had to submit a document to the Nice European Council in December 2000. This meant that it had only one year in which to forge a far-reaching document that would be acceptable to the fifteen Member States. In reality the period in which it had to complete its work was even shorter than this. The members of the Convention recognized that the Charter would have to be ready by autumn 2000, in order that it could be presented to the heads of state prior to the Nice European Council. The framing of the Charter has therefore much to commend it as an exercise in efficient and inclusive governance. This is so even though the process was not perfect with regard to, for example, the inclusion of civil society or the power wielded by the Praesidium and Secretariat.24 21  Charte 4960/00, Convent 55, 26 October 2000. 22  Charte 4955/00, Convent 51, 17 October 2000. 23  Maduro (n 19) 276. 24  de Búrca (n 19); de Búrca and Aschenbrenner (n 19); O De Schutter, ‘Europe in Search of its Civil Society’ (2002) 8 ELJ 198.

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We should, nonetheless, be mindful of a duality in the Charter project, which is captured well by Maduro.25 [T]he Charter of Fundamental Rights of the European Union represents a constitutional paradox. It reflects an emerging trend to agree on the use of the language of constitutionalism in European integration without agreeing on the conception of constitutionalism underlying such language. For some, the Charter is the foundation upon which to build a true constitutional project for the European Union. It will promote the construction of a European political identity and mobilize European citizens around it. For others, the Charter is simply a constitutional guarantee that the European Union will not threaten the values of the Member States. It is a constitutional limit to the process of European integration. The Charter reflects this tension between its conception as a constitutional instrument for polity building and its conception as a simple consolidation of the previous fundamental rights acquis aimed at guaranteeing regime legitimacy. These two conceptions confronted each other in the drafting of the Charter and are reflected in many of its provisions.

(C)  EU: Human Rights Policy The Charter is the primary focus of this chapter, but does not constitute the entirety of EU human rights policy. Indeed the most far-reaching concern voiced prior to the Charter was the need for the Community to develop a more general, coherent human rights policy,26 particularly when contrasted to the EU’s external policy in this regard,27 and to think beyond the judicial focus. An EU Network of Independent Experts on Fundamental Rights was created in 2002, and a Fundamental Rights Agency in 2007.28 Space precludes examination of the general human rights policy for the EU,29 since it raises a plethora of more particular concerns relating to diverse areas where the EU operates and proper discussion of these matters would require a book in itself. Suffice it to say for the present that the debate about a human rights policy for the EU raises three general issues that cut across particular subject matter areas: competence, content, and desirability. 25  Maduro (n 19) 269. 26  P Alston and J Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights’ in Alston (n 1) Ch 1. See also A von Bogdandy, ‘The European Union as a Human Rights Organization: Human Rights and the Core of the European Union’ (2000) 37  CMLRev  1307; G de Búrca, ‘Convergence and Divergence in European Public Law’ in P Beaumont, C Lyons, and N Walker (eds), Convergence and Divergence in European Public Law (Hart, 2002) Ch 8; N Nic Shuibhne, ‘The European Union and Fundamental Rights: Well in Spirit but Considerably Rumpled in Body?’, Ibid Ch 10. 27  B Simma, J Beatrix Aschenbrenner, and C Schulze, ‘Human Rights Considerations in Development Co-operation’ in Alston (n 1) Ch 18; A Williams, ‘Enlargement of the Union and Human Rights Conditionality: A Policy of Distinction?’ (2000) 25 ELRev 601; L Bartels, Human Rights Conditionality in the EU’s International Agreements (Oxford University Press, 2005). 28  http://fra.europa.eu/en; The Fundamental Rights Agency, Public Consultation Document, COM(2004) 693 final; Commission Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights, COM(2005) 280 final; Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights [2007] OJ L53/1. 29 https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu_en.

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3  Lisbon Treaty (A)  Charter: Status and Place The Nice Treaty did not, as we have seen, resolve the legal status of the Charter. This issue was addressed in the Convention on the Future of Europe. The status of the Charter of Fundamental Rights, and its position in the constitutional architecture of the Constitutional Treaty, was clear. The Charter was ‘recognized’ in Article I-9 CT and the entire text became Part II of the Constitutional Treaty, which also mandated that the EU should accede to the ECHR.30 The European Council of June 2007 signalled a rethinking of the way in which the Charter would be dealt with,31 and its conclusions laid the foundations for the relevant provisions in the Lisbon Treaty. The status of the Charter is dealt with in Article 6(1) TEU. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

The Charter itself is not, therefore, incorporated in the Lisbon Treaty, but it is accorded the same legal value as the Treaties. It can be used against EU action including ­legislation32 and against Member States when they are ‘implementing’ EU law.33 The Lisbon Treaty is premised on the version of the Charter as amended by the IGC in 2004,34 and this version was reissued in the Official Journal.35 Notwithstanding the clear wording of Article  6(1) TEU and of the Charter,36 the Member States, nonetheless, re-emphasized in a Declaration attached to the Lisbon Treaty37 that the Charter does not extend the field of application of Union law beyond the powers of the Union, or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties. The UK and Poland negotiated a Protocol designed to limit the application of the Charter in certain respects38 and its impact will be considered later. 30  Art I-9(2) CT. 31  Brussels European Council, 21–22 June 2007, Annex 1, 17, 27. 32  Cases 92–93/09 Volker und Marcus Schecke and Eifert, 9 November 2010; Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL v Conseil des Ministres, 1 March 2011. 33  See below, 503–8. 34  Brussels European Council, 21–22 June 2007, 25, fn 21. 35  Charter of Fundamental Rights of the European Union [2007] OJ C303/1; Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/17. The Charter was reissued with the Lisbon Treaty, [2010] OJ C83/2. 36  Art 51(2) Charter of Fundamental Rights. 37  Declaration 1 concerning the Charter of Fundamental Rights of the European Union. 38  Protocol (No 30) on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom.

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The approach adopted by the Lisbon Treaty to the Charter is ‘messier’ than that in the Constitutional Treaty. The clear constitutional architecture of Article I-9 CT, combined with inclusion of the Charter as Part II of the Constitutional Treaty, was not replicated in the Lisbon Treaty. Insofar as the objective was to prevent the Lisbon Treaty from becoming too cumbersome by inclusion of the Charter within the main fabric of the Treaty, this is belied by the fact that it is accorded the same legal value as the Treaties, and hence any adviser will necessarily have it to hand when considering the legality of EU law, or national law that ‘implements’ EU law. It is likely that the changes in this respect were motivated by the political need at EU level to show that the Lisbon Treaty differed in certain ways from the Constitutional Treaty, even if in legal reality the force of the Charter under the Lisbon Treaty will be the same as it would have been under the Constitutional Treaty. It might be argued that there was no need for the EU to have its own Charter, more especially given the obligation to accede to the ECHR contained in the Lisbon Treaty. We shall see in the next section that accession has been halted because the CJEU held that the Accession Agreement was not compatible with EU law, but even if the EU does accede to the ECHR, this does not obviate the need for the EU to have its own Charter. This is so for both substantive and jurisdictional reasons. In substantive terms, a political entity with the power of the EU should, as a matter of principle, be subject to rights-based constraints on the exercise of that power. The absence of such constraints was the source of the initial revolt by the German and Italian courts, which served as the catalyst for the introduction of the ECJ’s fundamental rights jurisprudence. The Charter has enhanced the EU’s political legitimacy by furnishing its citizens with a comprehensive, transparent document that includes a broad range of rights. The Charter was premised on the political choice made by the heads of state in the European Council that it should cover social and economic, as well as more traditional civil and political rights. The ECHR covers only some of the rights included in the Charter, and for that reason accession would not obviate the need for the EU’s own document enshrining the rights that it believes are worthy of protection. Moreover, the Charter protection accorded to certain civil rights differs from that in the ECHR, as exemplified by the broader remit of the Charter protection for equality. In jurisdictional terms, accession to the ECHR would not render moot the choices open to citizens as to how they protect their human rights. This point would hold true even if the EU’s Charter had been an exact copy of the ECHR. This is because of the differing impact of the EU and ECHR Treaties in at least some states, as exemplified by the UK. The supremacy doctrine is a central principle of EU law. The UK courts have held that even primary legislation that is inconsistent with EU law can be declared inapplicable to the instant case. Such legislation will be ‘disapplied’ by the national court.39 The status of the ECHR is different. Under the Human Rights Act 1998, where primary legislation is incompatible with Convention rights, the court can issue a 39  R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603; R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1.

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­ eclaration of incompatibility.40 This declaration does not, however, affect the validity d of the legislation. It serves to send the legislation back to the political forum, with the expectation that Parliament will remove the offending provision. There is, therefore, an incentive for those minded to challenge primary legislation to do so through EU rights where that is possible.

(B)  ECHR: Status and Place (i) ECHR: Obligation to Accede The relationship between the EU and the ECHR was much debated, but prior to the Lisbon Treaty the formal legal position was that the EU did not have authority to join the ECHR.41 This ruling was controversial, but the issue was addressed by the Lisbon Treaty. Article 6(2) TEU stipulates that the Union shall accede to the ECHR, and that such accession shall not affect the Union’s competences as defined in the TEU and TFEU. The EU is, therefore, not merely empowered to accede to the ECHR, but has a duty to do so, although it is a duty without a specific ‘time line’. Many commentators advocated the step,42 as did Working Group II of the Convention on the Future of Europe.43 While Article 6(2) TEU did not specify a time, the Stockholm Programme was framed in terms of rapid accession by the EU to the ECHR.44 A Protocol attached to the Lisbon Treaty45 states that the agreement relating to accession to the ECHR must make provision for preserving the specific characteristics of the Union and Union law. This is, in particular, with regard to the arrangements for  the Union’s possible participation in the control bodies of the ECHR, and the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.46 The Protocol repeats the injunction that accession to the ECHR does not affect EU competences or the powers of its institutions,47 and seeks to preserve derogations made by Member States pursuant to Article 15 ECHR and reservations made by

40  Human Rights Act 1998, ss 2–4. 41  Opinion 2/94 On Accession by the Community to the ECHR [1996] ECR I-1759; G Harpaz, ‘The European Court of Justice and its Relationship with the European Court of Human Rights: the Quest for Enhanced Reliance, Coherence and Legitimacy’ (2009) 46 CMLRev 105. 42  Vitorino (n 16); Assembly of the Council of Europe (n 228); House of Lords Select Committee on European Union, Eighth Report, EU Charter of Fundamental Rights (HL 67, 2000); S Fredman, C McCrudden, and M Freedland, ‘The EU Charter of Fundamental Rights’ [2000] PL 178, 180; K Lenaerts and E de Smijter, ‘The Charter and the Role of the European Courts’ (2001) 8 MJ 90, 99–101; A Arnull, ‘From Charter to Constitution and Beyond: Fundamental Rights in the New European Union’ [2003] PL 774, 785–7. 43  CONV 354/02, Final Report of Working Group II, 22 October 2002, 11. 44  The Stockholm Programme—An Open and Secure Europe Serving and Protecting the Citizen, Council 16484/1/09, Brussels, 25 November 2009, [2.1]; Delivering an area of freedom, security and justice for Europe’s citizens, Action Plan Implementing the Stockholm Programme, COM(2010) 171. 45  Protocol (No 8) Relating to Article 6(2) of the Treaty on European Union on the Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms. 46  Ibid Art 1. 47  Ibid Art 2.

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Member States in relation to their membership of the ECHR.48 The injunction that accession to the ECHR should be arranged in such a way as to preserve the specific features of Union law is repeated in a Declaration appended to the Lisbon Treaty, which also emphasizes the existence of regular dialogue between the CJEU and the European Court of Human Rights, stating that such dialogue could be reinforced when the Union accedes to that Convention.49 The conceptual status accorded to ECHR rights is dealt with in Article 6(3) TEU, which provides that the fundamental rights, as guaranteed by the ECHR, and as they result from the constitutional traditions common to the Member States, constitute general principles of EU law. This approach follows that in the Constitutional Treaty.50 It has been argued in the past that the very fact that the ECJ conceived of fundamental rights in terms of general principles meant that they were accorded less force than if they had been conceptualized as rights, as they are within Member States.51 This critique was, however, largely misconceived. It elided the conceptual basis through which the ECJ read fundamental rights into the Community legal order, with the interpretation of those rights within that order. The window through which fundamental rights were brought into EC law was as general principles of law. This was in accord with Article  6(1) EU and Article  230 EC, the latter laying down the grounds for judicial review, which include breach of the Treaty or any rule of law relating to its application. Fundamental rights were regarded as one such rule of law, as were principles such as proportionality, legitimate expectations, and the like. However, when read into the Treaty, the fundamental rights were interpreted in the same general manner as in domestic legal orders, and this was so notwithstanding the fact that there could be disagreement as to the interpretation of a right in a particular case. The precise terms on which the EU accedes to the ECHR was the subject of negotiation, but an agreement was reached.52 Negotiations began in July 2010 and a draft text was concluded in April 2013, which had to be accepted by the EU and the Council of Europe. The Commission concluded that the draft Agreement between the ECHR and the EU was compatible with EU law, and this view was shared by the twenty-four Member States that submitted opinions, and by the Council and the European Parliament. The CJEU disagreed, and held that the draft Agreement could not be accepted in its present form.53 The EU’s obligation to accede to the ECHR was, said the CJEU, subject to conditions: it must not affect the Union’s competences as defined in the Treaties;54 48  Ibid Art 2. 49  Declaration 2 on Article 6(2) of the Treaty on European Union. 50  Art I-9(3) CT. 51  L Besselink, ‘Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union’ (1998) 35 CMLRev 629, 633–8. 52 Draft Legal Instruments on the Accession of the European Union to the European Convention on Human Rights, CDDH-UE (2011)16, 19 July 2011; T Lock, ‘EU Accession to the ECHR: Implications for Judicial Review in Strasbourg’ (2010) 35 ELRev 777; T Lock, ‘Walking on a Tightrope: The Draft Accession Agreement and the Autonomy of the EU Legal Order’ (2011) 48 CMLRev 1025; Arnull (n 42) 788–9. 53  Opinion 2/13 Accession of the European Union to the European Convention for the Protection of Human Rights, EU:C:2014:2454. 54  Art 6(2) TEU.

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the accession agreement must preserve the specific characteristics of the EU and EU law, and must not affect Article 344 TFEU;55 and accession must be arranged so as to preserve the specific features of EU law. These conditions were intended, said the CJEU, to ‘ensure that accession does not affect the specific characteristics of the EU and EU law’.56 The characteristics included those arising from the very nature of EU law: the fact that EU law stems from an independent source of law, the Treaties; its primacy over national law; and the direct effect of many of its provisions. They also included certain substantive and institutional features of the EU.57 It followed that ‘the autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of [EU] fundamental rights be ensured within the framework of the structure and objectives of the EU’.58 The CJEU concluded against this backdrop that the draft Agreement could not be accepted for five reasons. First, the Accession Agreement was inconsistent with the specific characteristics and autonomy of EU law.59 Secondly, accession was inconsistent with Article 344 TFEU, which provides that Member States must not submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.60 Thirdly, the CJEU held that there were difficulties with the co-respondent mechanism, which was a new mechanism whereby both the EU and a Member State could be parties to an ECtHR case, even where only one had been initially named as a party to the action.61 Fourthly, the procedures in the Accession Agreement for prior involvement of the CJEU were said to be problematic. Finally, it was held that there were problems with the Accession Agreement insofar as it accorded the Strasbourg Court with jurisdiction over the Common Foreign and Security Policy, which was excluded from the jurisdiction of the CJEU. Opinion 2/13 did not in general receive a ‘good press’ from the academic community, and the advent of blogs meant that critical voices were aired almost contemporaneously with publication of the CJEU’s judgment.62 The judgment is complex and contains much that is designed to protect the autochthony of EU law, as perceived by the CJEU, from outside influence.63 Suffice it to say the following in the present context. The very definition of the ‘specific characteristics of the Union and Union law’ that are to be preserved64 requires creative judgment. It is not self-evident. It could be defined ‘thinly’ or ‘thickly’, with important consequences either way. Thus other things being equal, the thicker the definition of this ambiguous phrase, the more substantial is the notion of the autonomy of EU law, and the more difficult it will be for the EU to 55  Lisbon Treaty, Protocol No 8. 56  Opinion 2/13 (n 53) [164]. 57  Ibid [171]–[177]. 58  Ibid [170]. 59  Ibid [189]–[192]. 60  Ibid [208]. 61  Ibid [215]–[235]. 62  A collection of the blog references can be found in D Halberstam, ‘ “It’s the Autonomy Stupid!” A Modest Defense of Opinion 2/13 on Accession to the ECHR, and the Way Forward’, University of Michigan, Public Law and Legal Theory Paper No 432 (2015) fn 3. 63  P Craig, UK, EU and Global Administrative Law: Foundations and Challenges (Cambridge University Press, 2015) 507–21; E Spaventa, ‘The Protection of Fundamental Rights in the European Union after Opinion 2/13’ (2015) 22 MJ 35. 64  Protocol No 8, Art 1.

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accede to the ECHR. The CJEU’s judgment is, moreover, imbued with contestable conceptions of jurisdictional and substantive autonomy, which profoundly shaped the reasoning and outcome.65 The reality is that, for the medium term, accession is not going to take place, notwithstanding the continued existence of the Treaty obligation to accede. (ii)  ECHR: Relationship between EU and ECHR Prior to Accession Pending any accession, the relationship between the EU and the ECHR will be governed by existing case law, subject to the possibility of any change in that respect, resulting from Opinion 2/13. From the perspective of the CJEU, the ECHR has always been regarded as an important source of inspiration for its decisions on fundamental rights.66 However, the formulaic approach, now oft-repeated by the CJEU, constrains the applicability of the ECHR. Thus, the CJEU states that while Article 6(3) TEU confirms that fundamental rights recognized by the ECHR constitute general principles of EU law, and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law.67 The consequence is that the validity of EU measures should be tested solely against the relevant Charter articles that secure in EU law the protection conferred by the ECHR provisions.68 From the perspective of the European Court of Human Rights the leading decision on the relationship between fundamental rights protection afforded by the EU and the ECHR was the Bosphorus case.69 The Strasbourg Court held that it was legitimate for contracting parties to the ECHR to transfer power to an international organization such as the EU, even if the organization was not itself a contracting party under the ECHR. The state contracting party, however, remained responsible for all acts and omissions of its organs, irrespective of whether they were the result of domestic law, or the need to comply with an international obligation flowing from membership of an international organization. If this were not so then the state’s obligations under the ECHR could be evaded when power was transferred to an international organization.

65  Craig (n 63). 66  Case C-94/00 Roquette Frères SA v Directeur général de la concurrence, de la consommation et de la ­repression des fraudes and Commission [2002] ECR I-9011, [29]; Cases C-238, 244, 245, 247, 250–252 and 254/99 P Limburgse Vinyl Maatschapij (LVM) and Others v Commission [2002] ECR I-8375, [273]–[275]. 67  Case C-617/10 Åklagaren v Hans Åkerberg Fransson, EU:2013:C:105, [44]; Case C-295/12 P Telefónica and Telefónica de España v Commission, EU:C:2014:2062, [41]. 68  Case C-398/13 P Inuit Tapiriit Kanatami v European Commission, EU:C:2015:535, [45]–[46]. 69  App No 45036/98 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland, ECtHR (2005); I  Canor, ‘Primus Inter Pares: Who is the Ultimate Guardian of Fundamental Rights in Europe?’ (2000) 25 ELRev 3; C Costello, ‘The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe’ [2006] Human Rights L Rev 1.

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State action taken in compliance with such international obligations could, nonetheless, be justified as long as the relevant international organization was considered to protect fundamental rights ‘as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides’.70 The Strasbourg Court made it clear that ‘equivalent’ meant comparable, not identical and that the finding of equivalence might alter if there was a relevant change in fundamental rights’ protection by the international organization.71 Where equivalent protection was provided by the international organization, there was a presumption that a state had not departed from the ECHR when it did no more than implement legal obligations flowing from its membership of that international organization. This presumption could be rebutted if it could be shown in the circumstances of a particular case that the protection of Convention rights was manifestly deficient.72 The Strasbourg Court found that the protection afforded to fundamental rights by the EU was equivalent in the preceding sense and that the protection afforded in the instant case was not manifestly deficient so that the presumption was not rebutted.73 The Strasbourg Court, however, also emphasized that a ‘State would be fully responsible under the Convention for all acts falling outside its strict international legal obligations’,74 that numerous Convention cases had confirmed this, and that such cases concerned review by the Strasbourg Court ‘of the exercise of State discretion for which EC law provided’.75 Detailed discussion of this exception, interpretation of which is problematic, can be found elsewhere.76 The Strasbourg Court would not have agreed with much of Opinion 2/13. The ECtHR President, speaking shortly after Opinion 2/13 had been delivered, expressed disappointment at the Opinion and declared firmly that, ‘the important thing is to ensure that there is no legal vacuum in human rights protection on the Convention’s territory, whether the violation can be imputed to a State or to a supranational institution’.77 It therefore remains to be seen whether it shows less inclination to treat the EU as offering an equivalent level of protection as the ECHR, and/or whether it treats the exception set out in the previous paragraph more expansively than hitherto. It should be remembered in this respect that concurring opinions in Bosphorus expressed reservations about the majority approach. They expressed concern about the replacement of a case-by-case review of compliance with a largely abstract review of the organization’s general system of ‘equivalent protection’ for human rights; and they questioned whether the narrow locus standi rules for private parties before the CJEU were compatible with Article 6(1) ECHR.

70  Bosphorus Hava Yollari (n 69) [155]. 71  Ibid [155]. 72  Ibid [156]. 73  Ibid [165]–[166]. 74  Ibid [157]. 75  Ibid [157]. 76  P Craig, EU Administrative Law (Oxford University Press, 2006) Ch 14. 77  http://www.echr.coe.int/Documents/Speech_20150130_Solemn_Hearing_2015_ENG.pdf. For a commentary, see T Lock ‘Will the Empire Strike Back? Strasbourg’s Reaction to the Accession Opinion’, http://www. verfassungsblog.de/en/will-empire-strike-back-strasbourgs-reaction-cjeus-accession-opinion/.

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The reality is, moreover, that post-Bosphorus, the Strasbourg Court has indirectly reviewed EU action for compatibility with the ECHR on numerous occasions, and has shown itself quite willing to conclude that the presumption of equivalence is inapplicable, and to apply its normal standard of review. Thus, it has drawn on the exception set out earlier, to condemn operation of the EU asylum system, and it has held that since the states had discretion to decide whether to deal with an asylum application, even if it was not their responsibility under the EU Regulation, the action was not strictly required by EU law and hence the presumption of equivalence would not apply.78

4  Charter Content There was, as might be imagined, considerable debate concerning the content of the Charter. It will, however, be easier to understand this against the backdrop of the finished document.79 A bare outline of the structure of the Charter will be given here,80 with more detailed discussion of selected issues later.81 Title I of the Charter is labelled Dignity, and contains five articles. Article 1 states that human dignity is inviolable and that it must be respected and protected. Article 2 protects the right to life and outlaws the death penalty. The right to the integrity of the person is enshrined in Article 3. This covers physical and mental integrity, Article 3(1). It also deals with medical practices, forbidding, inter alia, reproductive cloning of human beings and eugenics. Torture and inhuman and degrading treatment or punishment are prohibited in Article 4. Article 5 prohibits slavery, forced labour, and the trafficking in human beings. Title II of the Charter covers Freedoms, and contains fourteen articles. The right to liberty and security of the person are guaranteed in Article 6; respect for private and 78  See, eg, App No 30696/09 MSS v Belgium and Greece, judgment of the Grand Chamber, 21 January 2011; App No 29217/12 Tarakhel v Switzerland, judgment of the Grand Chamber, 4 November 2014; http://www. echr.coe.int/Documents/FS_Dublin_ENG.pdf. See also App no 12323/11 Michaud v France, judgment, 6 December 2012. 79  Charter of Fundamental Rights (n 35). 80  A Heringa and L Verhey, ‘The EU Charter: Text and Structure’ (2001) 8 MJ 11; C McCrudden, ‘The Future of the EU Charter of Fundamental Rights’, Harvard Jean Monnet Working Paper No 10/01; Lord Goldsmith, ‘A Charter of Rights, Freedoms and Principles’ (2001) 38 CMLRev 1201; P Craig, ‘The Community, Rights and the Charter’ (2002) 14 ERPL 195. 81  E Eriksen, J Fossum, and A Menéndez (eds), ‘The Chartering of Europe’, Arena Report No 8/2001; K Feus (ed), An EU Charter of Fundamental Rights: Text and Commentaries (Federal Trust, 2000); Hervey and Kenner (n 19); Peers and Ward (n 19); I Pernice and R Kanitz, ‘Fundamental Rights and Multilevel Constitutionalism in Europe’, WHI Paper 7/04 (2004), http://www.whi-berlin.de/documents/whi-paper0704.pdf; I Pernice, ‘The Treaty of Lisbon and Fundamental Rights’ in S Griller and J Ziller (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Springer, 2008) 235–56; J Dutheil de la Rochère, ‘The Protection of Fundamental Rights in the EU: Community of Values with Opt-out?’ in I Pernice and E Tanchev (eds), Ceci n’est pas une Constitution—Constitutionalisation without a Constitution? (Nomos, 2009) 119–29; S Peers, T Hervey, J Kenner, and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Hart, 2014).

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family life in Article 7; protection of personal data in Article 8; the right to marry and found a family in Article 9; freedom of thought, conscience, and religion in Article 10; freedom of expression and information in Article 11; freedom of assembly and association in Article 12; freedom of the arts and sciences in Article 13; the right to education in Article 14; freedom to choose an occupation and the right to engage in work in Article  15; freedom to conduct a business in Article  16; the right to property in Article 17; the right to asylum in Article 18; and protection in the event of removal, expulsion, or extradition in Article 19. Title III deals with Equality, and has seven articles. Equality before the law is covered by Article 20. Article 21(1) prohibits discrimination based on a variety of grounds such as sex, race, colour, and sexual orientation, while Article 21(2) prohibits discrimination on the grounds of nationality. Respect for cultural, religious, and linguistic diversity is dealt with in Article 22; gender equality in Article 23; children’s rights in Article 24; the rights of the elderly in Article 25; and the integration of those with disabilities in Article 26. Title IV is concerned with Solidarity and contains twelve articles. Article 27 covers workers’ right to information and consultation; Article 28 the right of collective bargaining; Article 29 right of access to placement services; Article 30 protection against unjustified dismissal; and Article 31 fair and just working conditions. Article 32 prohibits child labour and deals with protection of young people at work. Article 33 is concerned with the protection of family life and the reconciliation of work with the family. Article 34 deals with social security; Article 35 with health care; Article 36 with access to services of general economic interest; Article 37 with environmental protection; and Article 38 with consumer protection. Title V is entitled Citizens’ Rights, and has eight articles. The right of Union citizens to vote and stand for election to the European Parliament is covered by Article 39, and the corresponding right to stand for municipal elections in Article  40. The right to good administration is enshrined in Article  41; access to documents in Article  42; the right to refer maladministration to the Ombudsman in Article 43; the right to petition the European Parliament in Article 44; freedom of movement and residence in Article 45; and diplomatic protection in Article 46. Title VI deals with Justice. There are four articles. The right to an effective remedy and fair trial is provided in Article 47, and the presumption of innocence in Article 48. The proscription of retrospective criminal penalties is dealt with in Article 49, and the right not to be punished twice for the same offence is found in Article 50. Title VII contains General Provisions which pertain to the Charter as a whole. Article  51(1) defines the scope of application of the Charter, while Article  51(2) is designed to prevent new EU competences flowing from the Charter. The scope of the guaranteed rights is covered by Article 52. Article 53 addresses the ‘level of protection’ for rights, and is concerned with the relation between the Charter, national law, international law, and international agreements. The final provision of the Charter, Article 54, contains a prohibition on abuse of rights. This chapter will not seek to consider the detailed interpretation of all rights contained in the Charter. That would require a book about human rights law. The principal

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focus will be on the General Provisions in Title VII, since these Articles raise important issues concerning the scope and reach of the Charter.

5  Reach of the Charter (A)  Union Institutions: Verticality and Horizontality (i) Textual Argument: Treaty Interpretation Charter rights seem only to have a vertical impact. The governing provision is Article 51(1) of the Charter, which stipulates that, The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

Treaty articles can by way of contrast have direct effect, which can be horizontal and hence bind private parties, as well as vertical, binding the state. The same is true for regulations and decisions. Directives by way of contrast can lead to vertical but not horizontal direct effect, although doctrines such as indirect effect and the like can produce similar results.82 The importance of this difference can be exemplified in the context of equality. Article 23 of the Charter stipulates that equality between men and women must be ensured in all areas, including employment, work, and pay. It will, in accord with Article 51(1) of the Charter, have a vertical impact and bind the Union institutions and the Member States when they are implementing Union law. It will not bind private parties such as employers. The most proximate Treaty provision is Article 157 TFEU, which has both vertical and horizontal direct effect, with the consequence that it can be relied on against the state and private parties.83 While the Charter appears to have only a vertical dimension we should pause to consider a more radical reading of Article 51(1). The second sentence thereof provides that Charter rights are addressed to, inter alia, Union institutions, which must respect the rights, observe the principles, and promote the application thereof. The paradigm is Union legislation or executive action that infringes a right, with a subsequent annulment action brought by the aggrieved individual. This is the classic vertical application of constitutional rights to protect private autonomy. It should, however, be noted that the Union Courts are Union institutions84 and are bound to ‘respect the rights, observe the principles and promote the application 82  P Craig and G de Búrca, EU Law: Text, Cases, and Materials (Oxford University Press, 6th edn, 2015) Ch 7. 83  There are differences in the wording between Art 157 TFEU and Art 23 of the Charter, but they do not alter the point being made in the text. 84  Art 13 TEU.

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thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties’. There is nothing that expressly limits this obligation to cases brought against public authorities, whether at Union or national level. It might therefore be argued that this obligation is equally applicable where an individual seeks to rely on a Charter right against another private individual, provided that the subject matter falls within EU law. If this were the case, then the Charter would have horizontal direct effect or something close thereto. This reading might, however, seem too radical. It could be argued that if this were the intent then the Article could have been drafted explicitly to make this clear. There is nothing in the explanatory memorandum to give the impression of horizontal direct effect.85 This analysis might, nonetheless, be accepted in a somewhat weaker form, as the justification for indirect horizontal effect, in the manner discussed later. It is, however, clear that even if the radical reading is regarded as too far-reaching, the CJEU might be willing to accord horizontality to a particular Charter provision. This would not be surprising, given that the CJEU had previously been willing to conclude that Treaty provisions addressed to Member States could also impose obligations on individuals,86 and had also ruled that general principles of law could in certain circumstances have horizontal direct effect.87 The issue of horizontality came directly before the Court in the AMS case.88 The question was whether Article 27 of the Charter concerning the rights of workers to be informed and consulted could be invoked by an employee against a private employer. While the Court on the facts of the case ruled that Article 27 was insufficiently specific to create an obligation on an employer to include certain categories of worker for the purposes of calculating staff numbers, it left open the larger question of  whether a sufficiently precise provision of the Charter could be binding on an ­individual.89 (ii)  Normative Argument: Choice and Tension Any legal system that protects fundamental rights has to decide how far those protections are to apply. The view that protection of rights should only apply vertically is premised, as Hunt has argued, on a ‘rigid distinction between the public and private 85  Charte 4473/00, Convent 49, 11 October 2000, 46; CONV 828/03, Updated Explanations Relating to the Text of the Charter of Fundamental Rights, 9 July 2003, 45–6; Explanations Relating to the Charter (n 35) 16. 86  See, eg, Case 43/75 Defrenne v Sabena [1976] ECR 455; Case C-281/93 Angonese v Cassa di Risparmio di Bologna [2000] ECR I-4134. 87  Case C-144/04 Mangold [2005] ECR I-9981; Case C-555/07 Kücükdeveci EU:C:2010:365. 88  Case C-176/12 Association de médiation sociale (AMS) v Union locale des syndicats CGT, Laboubi, EU:C:2014:2. 89  Ibid [44]–[49]; D Leczykiewicz, ‘Horizontal Application of the Charter of Fundamental Rights’ (2013) 38 ELRev 38 479; N Lazzerini, ‘(Some of) the fundamental rights granted by the Charter may be a source of  obligations for private parties: AMS’ (2014) 51  CMLRev  907; E Frantziou, ‘Case C-176/12 AMS: Some Reflections on the Horizontal Effect of the Charter and the Reach of Fundamental Employment Rights in the European Union’ (2014) 10 EuConst 332; C Murphy, ‘Using the EU Charter of Fundamental Rights against Private Parties after AMS’ [2014] EHRLR 170.

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sphere and presupposes that the purpose of fundamental rights protection is to preserve the integrity of the private sphere against coercive intrusion by the state’.90 Legal relations between individuals are, by way of contrast, seen as part of private autonomy, with the consequence that the choices individuals make about how to live their lives and deal with each other should not be dictated by the state. The view that rights-based protections should apply even as between private parties is premised ultimately on the hypothesis that all legal relations are constituted by the state, in the sense that the law itself is constructed and supported by the state.91 Viewed from this perspective, choices are constantly being made through legal rules as to the limits on private freedom of action. Legal rules frequently impose limits on private choice whether in the sphere of contract, tort, property, or restitution. When the matter is viewed in this light the formal divide between the public and private sphere begins to crumble. The issue becomes which types of restraint on private action are felt to be normatively warranted. It becomes more difficult to argue that rights-based protections should have no application in the private sphere, more especially since power which is nominally private may be just as potent as power which is formally public. Even if constitutional rights are applied horizontally there may well be differences in the way they would be interpreted in public and private contexts. The Charter embodies a choice in this respect and the choice seems to be to accord the rights only a vertical dimension, subject to the possible more radical reading considered earlier. This is readily explicable in ‘political’ terms. There is little doubt that agreement on the Charter would have been considerably more difficult if its scope of application had been horizontal as well as vertical, more especially so given the broad range of rights included in the Charter. The ‘solution’ embodied in Article 51(1) does, however, give rise to tensions if it is read as being restricted to the vertical dimension. There is an uneasy tension in normative terms between the solely vertical scope of the Charter rights, when compared to the vertical and horizontal scope of some Treaty articles. The very fact that the comparable Treaty article is thought suited to a horizontal as well as a vertical application sits uneasily with the proposition that the analogous Charter right is limited to a vertical impact. It could be argued by way of response that the distinction is justified, since a Treaty article will only have horizontal direct effect if it satisfies the requirements of that doctrine: it must be intended to confer rights on individuals and must be sufficiently clear, precise, and unconditional. There are, however, many Charter rights that would satisfy these criteria and they could in any event be made a condition for horizontal application of Charter rights. There is, furthermore, a strain between those Charter rights that have some readily identifiable provision in other parts of the Treaty, and those that do not. Where there 90  M Hunt, ‘The “Horizontal Effect” of the Human Rights Act’ [1998] PL 423, 424. 91  A Clapham, Human Rights in the Private Sphere (Oxford University Press, 1993); P Alston (ed), Non-State Actors and Human Rights (Oxford University Press, 2005).

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is some comparable provision with horizontal direct effect the individual can rely on it in an action against another private party. This is perforce not possible where there is no readily identifiable provision in the Treaty that deals with the same subject matter as the Charter right. There is, moreover, an uneasy practical tension between the vertical scope of the Charter and the wording of some of the rights contained therein. Thus Article 24(2) of the Charter provides that ‘in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration’. The Article imposes a substantive obligation, inter alia, on private institutions, even though the general field of application of the Charter is limited to Union institutions and Member States when implementing Union law. This tension might be reconciled by allowing an action to compel a public body to ensure that the private institution complies with the obligation contained in this Article. The issue might be addressed more generally by considering ways in which Charter rights might have an impact on private parties, notwithstanding the limits imposed by Article 51(1). It is to this issue that we now turn. (iii) Indirect Horizontal Effect: Textual and Normative Dimensions It is clear that a legal system might decline to afford ‘direct horizontal effect’ to rights contained in a constitutional document, but be willing nonetheless to give them some limited ‘indirect horizontal effect’. Canadian, German, and UK jurisprudence indicate that the values and principles enshrined in the protection of rights may have an influence on the rules applicable as between private parties.92 It would, therefore, be possible in principle for courts to use Charter rights as interpretive guides when construing the rules applicable as between private parties. It should be noted that Article 51(1) states that the Charter provisions are addressed to Union institutions, which must ‘respect the rights, observe the principles and promote the application thereof ’. The Union Courts are clearly Union institutions and are therefore bound by this precept. There is, moreover, nothing to suggest that this precept is only relevant when a case involves a public authority. It could be argued that giving Charter rights a degree of indirect horizontal effect fits with the injunction that Charter rights should be respected, observed, and promoted. A similar argument could be made in relation to national courts. Member States are bound by the Charter when implementing Union law. This includes national courts, which would therefore also be subject to the injunction to respect, observe, and promote the application of Charter rights, irrespective of whether the case involves a public authority or not.

92  Hunt (n 90); B Markesinis, ‘Privacy, Freedom of Expression and the Horizontal Effect of the Human Rights Bill: Lessons from Germany’ (1998) 114 LQR 47; A Young, ‘Remedial and Substantive Horizontality: The Common Law and Douglas v Hello! Ltd’ [2002] PL 232; G Phillipson, ‘The Human Rights Act, “Horizontal Effect” and the Common Law: A Bang or a Whimper’ (1999) 62 MLR 824.

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(B)  Member States: Verticality and Horizontality (i) Implementation: Text and Interpretation Article  51(1) states that the Charter provisions are addressed to the Member States only when they are implementing Union law. Various formulations of the circumstances in which Member States would be bound by Charter provisions were put forward in the Convention that drafted the Charter.93 The meaning of the word ‘implementing’ is crucial in the current formulation. The narrow interpretation was that Member States were only bound by the Charter when acting as agents in the application of EU law and where implementing an EU directive, and not in other instances where EU Courts had held that the fundamental rights’ jurisprudence bound the Member States.94 The broader construction was that Member States were bound by the Charter whenever they acted within the scope of EU law,95 although there was attendant debate as to what more specifically this connoted.96 This was supported by the fact that the CJEU had in its prior jurisprudence used the phrase ‘implementing Community rules’ as synonymous with Member State action that fell within the scope of Community law, and by the Charter explanatory memorandum,97 which must be given due regard when interpreting Charter rights.98 The narrow view would in addition have led to formalistic distinctions between situations where Member States were bound by the Charter and those where they would not. The broader interpretation of Article 51 was, moreover, assumed to be correct by UK courts.99 The scope of application of Article 51 was confirmed in favour of the wider view in Åkerberg Fransson.100 The case concerned the applicability of Article 50 of the Charter, which provides that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’ The Swedish court asked whether national enforcement mechanisms for an EU VAT Directive were compatible with Article  50. The Directive allowed Member States to impose obligations they

93  de Búrca (n 19) 136–8. 94  L Besselink, ‘The Member States, the National Constitutions and the Scope of the Charter’ (2001) 8  MJECL 68; D Thym, ‘Charter of Fundamental Rights: Competition or Consistency of Human Rights Protection in Europe?’ [2002] Finnish Yearbook of International Law 11. 95  R Alonso Garcia, ‘The General Provisions of the Charter of Fundamental Rights’ (2002) 8 ELJ 492, 495–6; P Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CMLRev 945; P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press, 2010) Ch 6. 96  K Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 EuConst 375; M Safjan, ‘Areas of Application of the Charter of Fundamental Rights of the European Union: Fields of Conflict?’, EUI Working Paper No 2012/22; T von Danwitz and K Paraschas, ‘A Fresh Start for the Charter: Fundamental Questions on the Application of the European Charter of Fundamental Rights’ (2012) 35 Fordham ILJ 1396. 97  Charte 4473/00, Convent 49, 11 October 2000, 46; CONV 828/03, Updated Explanations (n 85) 45; Explanations Relating to the Charter [2007] OJ C303/17, 16. 98  Art 6(1) TEU. 99  RFU v Consolidated Information Services [2012] UKSC 55, [28]; R (Zagorski) v Secretary of State for Business, Innovation and Skills [2011] HRLR 6 140, [66]–[71]. 100  Case C-617/10 Åkerberg Fransson (n 67).

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deemed necessary for the correct collection of the tax and for prevention of evasion. Sweden adopted a system of tax and criminal penalties, which allowed judges to impose criminal sanctions on persons who had already been sanctioned by the tax authorities, albeit the judge in the criminal proceedings could deduct the administrative penalty from the criminal sanction. Sweden argued that the case did not fall within Article 51(1), because the national law was not directly implementing a provision of EU law. The CJEU rejected the argument. It held that Article 51 confirmed the Court’s case law relating to the extent to which Member State action had to comply with EU fundamental rights. This was ‘in all situations governed by European Union law, but not outside such situations’,101 this being borne out by the Explanations attached to the Charter.102 Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.

The CJEU further held that Sweden was acting in the scope of EU law in the instant case, because the tax and criminal penalties were imposed, in part at least, for nonpayment of VAT, which was governed by EU law. The fact that the national legislation upon which those tax and criminal penalties are founded was not adopted to transpose the EU Directive did not alter this conclusion, because it was designed to penalize an infringement of the Directive and was therefore intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union.103 The CJEU was, however, willing to accord the national court some latitude in the application of fundamental rights. It held that where the case is not determined entirely by EU law national courts can apply national standards of protection on fundamental rights, subject to the twin caveats that the level of protection provided for by the Charter and the primacy, unity, and effectiveness of EU law are not undermined.104 It held, moreover, that the mere coexistence of tax penalties and criminal sanctions would only infringe Article 50 if the tax penalty could itself be regarded as criminal in nature, and this was a matter to be decided by the national court in the light of criteria laid down by the CJEU. The decision in Åkerberg Fransson was welcomed by some academics,105 and criticized by others.106 It also prompted extra-judicial criticism from the President of the 101  Ibid [19]. 102  Ibid [21]. 103  Ibid [28]. 104  Ibid [29]. 105  See, eg, D Sarmiento, ‘Who’s Afraid of the Charter? The Court of Justice, National Courts and the New Framework of Fundamental Rights Protection in Europe’ (2013) 50 CMLRev 1267; Judge Christopher Vajda, ‘The Application of the EU Charter of Fundamental Rights: Neither Reckless nor Timid?’, University of Edinburgh, School of Law, Research Paper Series No 2014/47. 106  See, eg, F Fontanelli, ‘The Implementation of European Union Law by Member States under Article 51 of the Charter of Fundamental Rights’ (2014) 20 CJEL 193; M Dougan, ‘Judicial Review of Member State

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German Constitutional Court,107 and led the First Senate to state in a decided case that just because a provision has some connection with the abstract scope of EU law, or incidentally interacts with EU law, is not sufficient to trigger the application of the Charter.108 The criticism has been echoed extra-judicially by Lord Mance,109 and been voiced by the House of Commons’ European Scrutiny Committee.110 The critique is based on the argument of Advocate General Cruz Villalón, that the relevant Swedish law was not enacted to implement the 2006 VAT Directive. The Advocate General, while cognizant of the legal fact that the Directive had to be adequately enforced, felt that this was insufficient to regard the case as coming within ‘implementation’ for the purposes of Article  51 of the Charter, given that the relevant Swedish rules on administrative and criminal enforcement for tax evasion were general in scope. The Charter provisions are only applicable where the Member State is acting within the scope of EU law, and there must therefore be some ‘lock on’ to EU law before a claimant can make use of the Charter. The CJEU has in the past rejected claims because the link is too tenuous.111 There will inevitably be differences of view as to whether a Member State can be regarded as acting in the scope of EU law so as to trigger application of the Charter. The CJEU’s reasoning112 can, nonetheless, be defended on principled grounds. Article 51 renders the Charter applicable to Member States when they are implementing Union law, which includes the directive itself and other obligations held by the CJEU to flow from it. Directives impose obligations on Member States, and accord them choice as to form and methods of implementation, provided that the objectives of the directive are attained within the time specified for implementation. A Member State may choose among any of the following non-exhaustive list of methods to implement the obligations in a directive. It might simply copy out the entirety of the directive into national law; it might enact a short law adopting the directive; it might use existing national legal rules and apply them to all or certain parts of the directive; it might use an admixture of primary and secondary law to implement different parts of the directive. It would be wrong in principle, generate considerable uncertainty, and lead to formalism for the application of the Charter to Member States to turn on the precise method of implementation chosen. Action under the General Principles and the Charter: Defining the “Scope of Union Law”’ (2015) 52 CMLRev 1201. 107  President A. Voßkuhle, ‘European Integration and the Bunderverfassungsgericht’, Sir Thomas More Lecture, Lincoln’s Inn, 31 October 2013. 108  1 BvR 1215/07, Judgment of 24 April 2013. 109  Lord Mance, ‘Destruction or Metamorphosis of the Legal Order?’, World Policy Conference, Monaco, 14 December 2013, 9–10. 110  House of Commons, European Scrutiny Committee, The Application of the UK Charter of Fundamental Rights in the UK: A State of Confusion (HC 979, 2014). 111  See, eg, Case C-299/95 Kremzow v Austria [1997] ECR I-2629; Case C-291/96 Criminal Proceedings against Grado and Bashir [1997] ECR I-5531; Case C-309/96 Annibaldi v Sindaco del Commune di Guidoma [1997] ECR I-7493; Case C-333/09 Noël v SCP Brouard Daude [2009] ECR I-205. 112  Case C-617/10 Åkerberg Fransson (n 67) [24]–[28].

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The VAT Directive in Åkerberg Fransson dated from 2006, but was the culmination of earlier directives dating back more than thirty years. The prior case law was clear that the VAT Directives imposed an obligation on Member States to take all legislative and administrative measures appropriate for ensuring collection of VAT due on their territory and for preventing evasion.113 It follows that correct implementation of the Directive requires Member States to have some regime for penalizing those who evade VAT. A national legal system may choose to fulfil this obligation in a number of ways: it might include such provisions in the national primary law through which the directive is implemented into national law; it might do so through an additional primary law; it might use secondary law; it might draw on existing national law and apply it to fulfil the obligation from the directive. These options are open to the Member State precisely because a directive allows Member States choices as to methods of implementation. The fact that Sweden chose to use an existing national law to fulfil the obligation flowing from the Directive was, therefore, perfectly legitimate. It would, however, be contrary to principle if the application of the Charter to the Member State were to turn on the method chosen for fulfilling the obligations flowing from the Directive. The determinative issue is not, therefore, whether the Swedish law in Åkerberg Fransson was enacted to implement the VAT Directive, but whether it was being used to implement the obligations flowing from the Directive, which it clearly was.114 The contrary conclusion is untenable, since it would mean that the Charter would be triggered if a Member State chose to implement the relevant obligations by, for example, enacting discrete legal provisions on enforcement solely in relation to the EU VAT Directive, but it would not be applicable if the Member State chose to meet the obligations through application of existing enforcement rules to EU VAT, even though the content of the rules is the same. The interaction between national law and EU law was, moreover, not merely incidental in Åkerberg Fransson. VAT is a primary source of EU revenue, and the penalty regime for evasion is therefore central to that revenue base. Statements to the effect that Åkerberg Fransson was wrong because the applicability of the double jeopardy principle in that case did not bear on implementation of an EU obligation are not explained and do not withstand examination.115 This criticism of the judgment is not sound, nor does it answer the reasoning in the Court’s judgment or the preceding analysis. The ruling in Åkerberg Fransson must, in any event, be seen in the light of the subsequent case law. The CJEU has reaffirmed the principle in that case, to the effect that the Charter is applicable to Member State action that falls within the scope of EU law.116 113  Case C-132/06 Commission v Italy [2008] ECR I-5457, [37], [46]; Case C-367/09 SGS Belgium [2010] ECR I-10761, [40]–[42]. 114 Case C-617/10 Åkerberg Fransson (n 67) [28]; Case C-218/15 Paoletti v Procura della Repubblica, EU:C:2016:748, [17]–[18]; Case C-682/15 Berlioz Investment Fund SA v Directeur de l’administration des ­contributions directes, EU:C:2017:373, [40]. 115  The European Scrutiny Committee (HC 979, 2014) [167]. 116  Case C-258/13 Sociedade Agrícola e Imobiliária da Quinta de S Paio Lda v Instituto da Segurança Social IP, EU:C:2013:810, [18]–[20]; Case C-390/12 Proceedings brought by Robert Pfleger, EU:C:2014:281, [31]–[35];

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It  has however, in accord with its earlier jurisprudence, rejected numerous claims where there was no sufficient connection to EU law to justify application of the Charter to national measures.117 It has also provided more guidance as to the meaning of acting within the scope of EU law. This is exemplified by the ruling in Siragusa,118 where the reference concerned the legality of an Italian order requiring the claimant to dismantle work carried out in breach of a law protecting the cultural heritage and the landscape. There was some connection with EU law, since the national legislation sought to protect the landscape, which was an aspect of EU environmental protection. The CJEU nonetheless held that the concept of ‘implementing Union law’ in Article 51 required a degree of connection above and beyond the fact that the matters covered were closely related, or that one such matter had an indirect impact on the other. Its reasoning was informed by reference to the objectives of protecting fundamental rights in EU law, which was to ensure that those rights were not infringed in areas of EU activity, whether through action at EU level or through national implementation of EU law. The latter coverage was necessary in order to avoid a situation in which the level of protection of fundamental rights varied according to the national law involved, such as to undermine the unity, primacy, and effectiveness of EU law. In order to determine, in the light of these principles, whether national legislation involved implementation of EU law for the purposes of the Charter, the CJEU held that a number of factors should be considered: whether the national legislation was intended to implement a provision of EU law; the nature of that legislation and whether it pursued objectives other than those covered by EU law, even if it was capable of indirectly affecting EU law; and whether there were specific rules of EU law on the matter or capable of affecting it. It was also necessary to consider the nature of the relevant EU provisions, such that if they did not impose any obligation on the Member State with regard to the situation in the proceedings at national level, then the Charter would not be applicable to the national legislation. Applying these principles to the instant case, the CJEU concluded that the Charter was not applicable to the Italian legislation. Neither the Lisbon Treaty, nor the relevant directives, contained specific obligations to protect the landscape akin to those found in Italian law. Furthermore, the objectives of the EU legislation were not the same as those in the Italian law, notwithstanding the fact that landscape was a factor to be taken Case C-206/13 Siragusa v Regione Sicilia—Soprintendenza Beni Culturali e Ambientali di Palermo, EU:C:2014:126, [21]–[22]. 117  See, eg, Case C-498/12 Pedone v N, EU:C:2013:76; Case C-14/13 Cholakova v Osmo rayonno upravlenie pri Stolichna direktsia na vatreshnite rab, EU:2013:C:374; Case C-258/13 Sociedade Agrícola e Imobiliária da Quinta, EU:C:2013:810; Case C-56/13 Érsekcsanádi Mezőgazdasági Zrt v Bács-Kiskun Megyei Kormányhivatal, EU:C:2014:352; Case C-265/13 Marcos v Korota SA and Fondo de Garantía Salarial, EU:C:2014:187; Cases C-614/12 and 10/13 Dutka v Mezőgazdasági és Vidékfejlesztési Hivatal, EU:C:2014:30; Case C-496/14 Statul român v Tamara Văraru, EU:C:2015:312; Case C-395/15 Daouidi v Bootes Plus SL, EU:C:2016:917; Case C-321/16 Maria Isabel Harmon v Owen Pardue, EU:C:2016:871. 118 Case C-206/13 Siragusa (n 116) [23]–[33]. See also Case C-198/13 Hernández v Reino de España (Subdelegación del Gobierno de España en Alicante), EU:C:2014:2055, [34]–[37]; Case C-177/17 Demarchi Gino Sas v Ministero della Giustizia, EU:C:2017:656.

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into consideration in assessing the impact of a project on the environment under the directives. The Italian law was not, therefore, implementing rules of EU law and the Charter was inapplicable. The fears expressed in some quarters that Åkerberg Fransson would lead to application of the Charter in relation to national action in an ever-widening array of cases have not therefore been borne out by the subsequent jurisprudence. The Court has rejected peremptorily numerous such actions by way of order, without recourse to a full hearing, on the ground that there was no connection with EU law. It has also given more indication as to the meaning that the term implementing EU law should bear in this context. It should, moreover, not be forgotten that the ruling in Åkerberg Fransson left latitude to the national courts in deciding on the application of fundamental rights where EU law did not cover the entire terrain, subject to the caveat that the level of protection provided for by the Charter and the primacy, unity, and effectiveness of EU law were not undermined. This may well not satisfy some who feel that EU law is still too far-reaching in this respect. It is then necessary to provide a reasoned justification as to why the fortuitous decision as to how a Member State chooses to implement EU law should be determinative of whether the EU Charter is applicable or not. (ii)  Implementation: Verticality and Horizontality The preceding discussion about verticality and horizontality is relevant in relation to Member States as well as Union institutions. It is clear in principle that the obligation on Member States in Article 51(1) applies to central authorities, regional and local bodies, and the explanatory memorandum is cast in these terms.119 The obligation must also be incumbent on national courts, which have the duty to ‘respect the rights, observe the principles and promote the application thereof in accordance with their respective powers’. An individual could argue in an action against a national public body that it had breached a Charter right in the way that it had implemented a directive. Whether a Charter right could be invoked in an action against another individual before a national court in circumstances where EU law was applicable raises the same issue about horizontality considered earlier. The ‘radical reading’ of Article  51(1) would countenance this, but the objections to this reading would be equally pertinent here. There remains the possibility that some Charter rights would be invested with horizontality, and the argument set out earlier for some measure of indirect horizontal effect would be equally applicable.

6  Competence and the Charter There was concern during the negotiations that led to the Charter that it might broaden the scope of EU competence or power. The concern was addressed by Article 51(2), 119  Explanations Relating to the Charter (n 35) 16.

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which originally stipulated that the Charter does not establish any new power or task for the Community or Union, or modify powers and tasks defined by the Treaties. This was reaffirmed by Working Group II at the Convention on the Future of Europe, which proposed to make this clearer through an amendment to Article 51(2).120 Article 51(2) now provides that, The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.

The ‘fit’ between Article 51(2) and the substantive provisions of the Charter may be questioned.121 Much turns on the precise meaning accorded to the key words ‘power or task’. These words could be interpreted to mean a new head of legislative competence. If viewed in this way Article 51(2) prohibits interpretation of the Charter such as to afford new or modified legislative competence to the Union.122 The application of this precept may, however, be problematic given the uncertainties concerning competence under the Lisbon Treaty.123 It is, moreover, important to note that the denial of new heads of legislative competence would not preclude, for example, claims to new social entitlements from the EU ‘on the basis of fundamental social rights so long as those claims can be satisfied through the exercise of an existing competence’.124 The Charter will, in any event, add to the matters that can be taken into account when determining the legality of Union action.125 It can be accepted that the fact that the Charter, for example, protects religious freedom in Article  10 will not of itself accord the EU any new legislative competence in this area, although it may exercise any such competence as it has under existing provisions. The recognition of freedom of religion in Article  10 will, nonetheless, be relevant in assessing the legality of Union legislation, even where it does not seek to regulate religion as such, but may be felt to impinge directly or indirectly on the protected right. This is equally true of all Charter rights. The point is especially significant in relation to those rights that were wholly or partly based on international conventions and the like, rather than primarily on existing Treaty provisions.126 Thus Article 24 concerned with the protection of children, was said to be based on the New York Convention on the Rights of the Child 1989, which had been ratified by the Member States. The provision within the Article that children may express their views freely could affect the legality of Union or state action. It is, however, doubtful whether there would be a ground for such reasoning under

120  CONV 354/02, Final Report of Working Group II, 22 October 2002, 5. 121  Maduro (n 19) 277. 122  Explanations Relating to the Charter (n 35) 16; Charte 4423/00, Convent 46, 31 July 2000, 35; Charte 4473/00, Convent 49, 11 October 2000, 46–7. 123  P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press, 2010) Ch 5. 124  Maduro (n 19) 286 and 289. 125  Case C-400/10 PPU McB, EU:C:2010:544, [51], [59]. 126  See, eg, Arts 1, 3, 8, 18, 12(1), 21(1), 24, 49.

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existing EU law. The same point can be made about other Charter provisions, such as the proscription of eugenics and cloning in Article 3.127 These rights could affect the interpretation and validity of Union acts that are alleged to infringe them. The Charter might also have a validating, rather than potentially invalidating, impact on the legality of EU action. Thus while Article 51(2) might make it difficult for the EU to adopt legislation specifically requiring the social partners or CEN and CENELEC to observe fundamental rights, it would not necessarily preclude attaching human rights considerations based on the Charter to action founded on other competences. It would, as Bernard states, be possible for the Council in deciding whether to adopt a Union act to implement an agreement between the social partners under Article  155 TFEU ‘to consider whether the agreement complies with the Charter’, and when mandating the European Committee for Standardization (CEN) or European Committee for Electrotechnical Standardization (CENELEC) to adopt standards to implement directives ‘it would be appropriate to include human rights clauses in the contract, where relevant’.128 It is, moreover, clear that the line between prohibition and positive action can be a fine one. The ECtHR jurisprudence contains several instances where a basic prohibition is held to generate a duty of positive action by the state authorities.129 The right might not generate legislative competence, but might well require some positive action by Union and/or Member State authorities to safeguard the right in question. There is some recognition of a positive duty to act on the EU institutions to protect fundamental rights, but this was in the context of an EU scheme that gave a discretionary power to act, the ECJ taking the view that this power should be triggered where fundamental rights were at stake.130

7  Rights, Principles, and the Charter (A)  Rights and Principles: Rationale for the Divide The classic form of rights-based action is for an individual to rely on a provision in the Charter in order to challenge the legality of a legislative, executive, or administrative norm, and to do so via judicial review either directly or indirectly. Certain Charter provisions have, however, been held to embody principles rather than rights, and this may have consequences for judicial review. 127  Explanations Relating to the Charter (n 35) 2; Charte 4473/00, 5, where the source of this provision is said to be the Convention on Human Rights and Biomedicine adopted by the Council of Europe. However, in January 2001 only ten Member States had signed the Convention and only three had ratified it. 128  N Bernard, ‘A “New Governance” Approach to Economic, Social and Cultural Rights in the EU’ in Hervey and Kenner (n 19) 260. 129  See nn 143, 144, 145. 130  Case C-68/95 T Port GmbH & Co KG v Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I-6065, [37]–[41].

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The catalyst for discussion of the rights–principles dichotomy was the broad range of rights—political, social, and economic—enshrined in the Charter, in accord with the remit given to the Convention established to draft the Charter by the European Council in Cologne and Tampere. There was, not surprisingly, much discussion within the Convention about the structure of the Charter as a whole,131 and the particular place of social and economic rights therein.132 The issue was addressed directly by Commissioner Vitorino, the Commission representative to the Convention that drafted the Charter.133 He distinguished between rights enforceable in the courts and principles that could be relied on against official authorities, and said that this was the basis for a consensus in the Convention, particularly as regards social rights. The Commissioner argued that rights could be pleaded directly in the courts. Principles, by way of contrast, were mandatory in relation to the authorities which had to comply with them when exercising their powers, and could be used as a basis for censuring their acts. Private individuals would not, however, be able to bring a legal action to enforce them. Vitorino admitted that the Charter did not, at that time, state explicitly what was to be regarded as a right and a principle. He concluded, however, that there is ‘a right where the holder is clearly designated and that there is a principle where the Union is referred to as having to respect or recognize a specific value such as a healthy environment or protection of consumers’.134 Future practice and case law would, he said, refine this dichotomy. This issue was addressed, albeit indirectly, by the Convention in two explanatory memorandums.135 Thus health care and access to services of general economic interest were, for example, said to be principles and not rights. This issue was considered again in Working Group II of the Convention on the Future of Europe, which considered the issue of rights. It recommended a modification to the effect that provisions of the Charter that contained principles might be implemented by legislative and executive acts taken by the EU institutions, and by acts of the Member States when implementing EU law. They were, however, to be judicially cognizable only in the interpretation of such acts when ruling on their legality.136 The suggestions of Commissioner Vitorino and the Working Group were taken up in the final version of the Constitutional Treaty and in the Lisbon Treaty. Article 52(5) of the Charter now provides that The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their 131  See, eg, Charte 4428/00, Contrib 282, 20 July 2000; Charte 4423/00, Convent 46, 31 July 2000; Charte 4470/00, Convent 47, 14 September 2000. 132  See, eg, Charte 4383/00, Convent 41, 3 July 2000; Charte 4401, Contrib 258, 4 July 2000. 133  Vitorino (n 16) 25–6; Case C-176/12 Association de médiation sociale (AMS) v Union locale des syndicats CGT, Laboubi, EU:C:2013:491, [47]–[49], AG Cruz Villalón. 134  Vitorino (n 16) 26. 135  Charte 4423/00, Convent 46, 31 July 2000, 24; Charte 4473/00, Convent 49, 11 October 2000, 31–2. 136  CONV 354/02, Final Report of Working Group II, 22 October 2002, 8.

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respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

(B)  Rights and Principles: Nature of the Divide This necessarily raises the issue as to which Charter articles will be regarded as rights, and which as principles. Commissioner Vitorino and the Working Group believed that it would be for the CJEU to decide on this. This must be correct in terms of principle, although the Explanatory Memorandum provided some guidance in this respect.137 It specifies as principles the ‘rights’ of the elderly in Article 25, integration of those with disabilities in Article 26, and environmental protection in Article 37. Article 27, dealing with the provision of information to, and consultation of, workers, has also been held to embody a principle.138 The Memorandum acknowledges that in some instances an article of the Charter may contain elements of a right and of a principle, giving as examples gender equality in Article 23, family and professional life in Article 33, and social security and social assistance in Article 34.139 It will then be for the CJEU to delineate the divide between rights and principles, taking into account this guidance. We should, however, resist falling into two common errors when thinking about this divide. It is tempting to think that there is an equation between rights and the civil/political Charter provisions, and principles and the social/economic provisions of the Charter. This would be mistaken. The matter is more complex.140 Many of the Charter provisions dealing with social matters can properly be thought of as rights, capable of individual legal enforcement. The following are merely examples. The right to paid annual leave in Article 31(2) was held by Advocate General Tanchev to be a right not a principle.141 The injunction in Article  29 that everyone has the right to a free placement service provides another such example. There is no reason why an individual should not be able to bring a legal rights-based claim against a state that sought to charge for such services. The same is true for the right to working conditions which respect the health, safety, and dignity of the worker (Article 31). This is amenable to an individual rights-based legal claim by a particular worker that, for example, the conditions of his employment by the Union were unsafe. The injunction against unfair dismissal in Article 30 provides a further example. This provision, like a number of others, stipulates that this protection operates in accordance with ‘Union law and national law and practices’. This does not, however, preclude interpretation of the relevant article as an enforceable right. Thus, if a Member State agency was implementing Union law and 137  Explanations Relating to the Charter (n 35) 19. 138  Case C-176/12 Association de médiation sociale (AMS) (n 133) [52]–[56], AG Cruz Villalón. 139  Case C-647/13 Office national de l’emploi v Marie-Rose Melchior, EU:C:2014:2301, [60], AG Mengozzi. 140  P Alston, ‘The Contribution of the EU Fundamental Rights Agency to the Realization of Economic and Social Rights’ in P Alston and O De Schutter (eds), Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency (Hart, 2005) 161–5. 141  Case C-214/16 Conley King v The Sash Window Workshop Ltd and Richard Dollar, EU:C:2017:439, [52].

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dismissed a worker in breach of relevant Union legal norms and national law, it would violate the article. There is no reason why this should not be cognizable by a court as a legal right. It is equally tempting to think in terms of an equation between rights and prohibition, and principles and positive action. This too would be mistaken. It is true that the classic response to an individual rights claim is to prohibit the state or Union from intruding on the protected sphere of private autonomy defined by the right. It is equally true that there are principles that require positive action, by the legislative or executive branch of government, such that failure to take the requisite action is a cause for censure, but not the basis for a legal action. It is, nonetheless, clear that a right can be infringed by inaction as well as action,142 and that protection of a right can require positive action by the state or other public body. The ECtHR jurisprudence provides ample examples of the derivation of positive obligations from Convention rights.143 The positive obligation imposed on the state may be designed to ensure the effective exercise of the right.144 It may require the state to act so as to prevent a third party from interfering with the right.145 The Strasbourg case law has been mainly concerned with positive obligations in the context of civil or political rights, since that is the principal remit of the ECtHR. The same arguments could readily be made in relation to the civil rights in the Charter, and positive obligations could also attach to Charter social rights. The argument would have to be considered on its merits in relation to the particular social right in question, but there is no reason in principle why it should not be accepted. If, for example, an employer were to dismiss employees for seeking to conclude a collective agreement, the state could, pursuant to Article 28, have a positive obligation to secure this right against the actions of the private party,146 provided that the relevant action fell within the scope of Union law.

(C)  Rights and Principles: Consequences of the Divide (i) Rights and Principles: The Basic Divide We should tread carefully when considering the legal consequences of the distinction between rights and principles. Charter provisions that are deemed to be rights will be judicially enforceable by individuals. This can arise in two kinds of case. There may, on the one hand, be instances where 142  Human Rights Act 1998, s 6(6). 143  A Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart, 2004); S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press, 2008). 144  Airey v Ireland (1979–80) 2 EHRR 305; Markcx v Belgium (1979–80) 2 EHRR 330. 145  X and Y v Netherlands (1986) 8 EHRR 235; López Ostra v Spain (1995) 20 EHRR 513; Plattform ‘Ärzte für das Leben’ v Austria (1991) 13 EHRR 204; Young, James and Webster v UK (1982) 4 EHRR 38. 146  The converse argument succeeded before the Strasbourg Court in Young, James and Webster (n 145) where the Court accepted that the state could be required, under Art 11, to take action to prevent an employer from dismissing employees who did not wish to join a union.

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the individual claims that the EU has provided insufficient protection for the right, and this may be so even in the absence of Union action. This is borne out by the Explanatory Memorandum, which states by implication that rights may give rise to claims for positive action by the Union or Member States when implementing Union law.147 The majority of cases will, on the other hand, be those where the Union has taken action and the individual argues that it is inconsistent with a Charter right, and hence should be annulled, or that it should be interpreted in a particular way because of a Charter right. Proportionality will commonly be integral to the determination of rights-based claims, more especially when the public body puts forward a defence to the infringement of a right. The CJEU will apply strict proportionality review in cases where the  right is regarded as of special importance. This is exemplified by Digital Rights Ireland,148 which involved a challenge to provisions of a Directive that mandated retention of data for the purposes of crime prevention and detection. It was argued that this infringed respect for private life and communication under Article 7 of the Charter, the protection of personal data under Article 8, and respect for freedom of expression under Article 11, more especially because the data that had to be retained was very detailed. It was also argued that the provisions on data retention were inconsistent with the system for protection of privacy enshrined in other directives. The CJEU held that the Data Retention Directive prima facie infringed Articles 7 and 8 of the Charter. It did not, however, affect the essence of the right, and limits were justified in the public interest, which included crime prevention and detection. It was, therefore, necessary to decide whether the limits were proportionate. The CJEU elaborated the test for judicial review in the following terms.149 With regard to judicial review of compliance with those conditions, where interferences with fundamental rights are at issue, the extent of the EU legislature’s discretion may prove to be limited, depending on a number of factors, including, in particular, the area concerned, the nature of the right at issue guaranteed by the Charter, the nature and seriousness of the interference and the object pursued by the interference. . . . In the present case, in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right caused by Directive 2006/24, the EU legislature’s discretion is reduced, with the result that review of that discretion should be strict.

Charter provisions characterized as principles differ in two respects in terms of legal consequences. An individual cannot claim that the Union must take positive action in the absence of Union legislation or executive action.150 This follows directly from

147  Explanations Relating to the Charter (n 35) 19. 148  Cases 293 and 594/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources, EU:C:2014:238; Case C-362/14 Maximillian Schrems v Data Protection Commissioner, EU:C:2015:650, [78]; O Lynskey, ‘The Data Retention Directive is incompatible with the rights to privacy and data protection and is invalid in its entirety: Digital Rights Ireland’ (2014) 51 CMLRev 1789. 149  Explanations Relating to the Charter (n 35) [47]–[48]. 150  Case T-600/15 Pesticide Action Network Europe (PAN Europe) v European Commission, EU:T:2016:601, [48].

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the wording of Article 52(5), which provides that Charter principles may be fulfilled through legislative or executive action and are judicially cognizable only when Union Courts interpret such acts and rule on their legality.151 The other legal difference that flows from characterization as a principle rather than a right is that where the Union has taken legislative or executive action to implement the Charter principle there may be more room for argument as to whether such action respects the principle of, for example, integration of those with disabilities. (ii)  Principles: The Ambiguity of Article 52(5) There is, however, an ambiguity latent in Article 52(5). It is clear that it is applicable when legislation or executive action seeks to give it more concrete expression.152 However, a narrow interpretation would dictate that the Courts can only take cognizance of such principles when interpreting or ruling on the legality of acts that directly seek to implement such principles. If this view were to be adopted, such cognizance could only be taken when a Union or Member State act could be said to implement directly the Charter principle on, for example, the integration of those with disabilities, or consumer protection. This interpretation draws support from the wording of Article  52(5), which states that principles shall be judicially cognizable only in the interpretation of ‘such acts and in the ruling on their legality’. The phrase ‘such acts’ refers to the acts ‘implementing’ the relevant principle through legislative or executive action. There are, however, two difficulties with this interpretation. First, it does not fit with the Explanatory Memorandum, which exemplifies the judicial role in relation to Charter principles by analogy to existing jurisprudence on the precautionary principle and principles used in agricultural law.153 These principles do not only apply when the challenged act is designed directly to implement those principles. Thus, the precautionary principle was used to contest the legality of, for example, a Community act withdrawing the authorization of a particular product;154 to challenge the legality of the regime for genetically modified foods;155 and to assess the legality of Member State action concerning marketing requirements for vitamins.156 The challenged acts in these cases were not designed directly to implement the relevant principle, but it was nonetheless used to test the legality of the measure. Secondly, the narrow interpretation would, as noted by Advocate General Cruz Villalón, entail an element of circularity: if the reference to ‘such acts’ applied exclusively to implementing legislative acts giving substance to the principle, there would be 151  Explanations Relating to the Charter (n 35) 19; CONV 828/03, CONV 828/03, Updated Explanations (n 85) 51. 152  Case C-176/12 Association de médiation sociale (AMS) (n 133) [60]–[66], AG Cruz Villalón. 153  Explanations Relating to the Charter (n 35) 19. 154  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan GmbH v Commission [2002] ECR II-4945. 155  Case C-236/01 Monsanto Agricoltura Italia SpA v Presidenza del Consiglio dei Ministri [2003] ECR I-8105. See also Case C-6/99 Association Greenpeace France v Ministère de l’Agriculture et de la Pêche [2000] ECR I-1651, [40]–[44]. 156  Case C-95/01 Criminal Proceedings against John Greenham and Leonard Abel [2004] ECR I-1333.

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a vicious circle: ‘those implementing legislative acts would be reviewed in the light of a principle whose content, as stated in Article 27 of the Charter, is precisely that which is determined by those implementing legislative acts’.157 The Advocate General concluded that,158 It is therefore necessary to consider that the scope of the acts whose interpretation and review is allowed by the second sentence of Article 52(5) differs from and is broader than that of the legislative acts giving specific expression to a principle. Specifically, all those implementing acts which go beyond the substantive and direct expression of the ‘principle’ will be the acts which may be relied on before the courts together with the other implementing acts. Otherwise, both Article 27 and its judicial guarantee in the second sentence of Article 52(5) of the Charter would be rendered ineffective.

The better view is therefore that Charter provisions regarded as principles could be taken cognizance of when interpreting or ruling on the legality of Union acts, irrespective of whether the Union act was directly implementing the relevant principle or not. Where a Charter provision is characterized as a principle the individual will still be able to argue that the legislative or executive norm should be interpreted in the way best designed to enhance the relevant principle.159 It should, moreover, be noted that Article 52(5) of the Charter countenances taking cognizance of Charter principles when ruling on the legality of Union acts or Member State acts when implementing Union law. A claimant who felt that the challenged action gave insufficient protection to the Charter principle could then contest its legality on that ground, or on the basis of, for example, proportionality. This is supported by the Explanatory Memorandum, which exemplifies the judicial approach to Charter principles by reference to existing case law on the precautionary principle and certain principles in agricultural law.160 This jurisprudence enables the Union Courts to assess conformity with, for example, the precautionary principle either in a direct action for judicial review, or indirectly via a preliminary reference, with the consequence that if the Union or Member State action fails to comply with the relevant principle it is annulled.161 If this is so then the legal consequences of the divide between rights and principles may be less dramatic than might initially be thought. In both instances the paradigm claim will be one where an individual seeks to challenge Union norms, whether of a legislative or executive nature. Where such a norm violates a Charter right, this will constitute the individual’s cause of action in the judicial review claim. Where the norm relates to a Charter principle, it will be interpreted in the way that best effectuates that

157  Case C-176/12 Association de médiation sociale (AMS) (n 133) [67]–[71], AG Cruz Villalón. 158  Ibid [70]. 159  Case C-470/12 Photovost, EU:C:2013:844, [66], AG Wahl; Case C-214/16 Conley King (n 141) fn 45, AG Tanchev. 160  Explanations Relating to the Charter (n 35) 19. 161  Ch 20; Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305; Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 154).

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principle. This does not mean that it will be easy for the applicant to succeed in such cases. Much will depend on the relative specificity of the principle, and the content of the legislative or executive action to which it is applied.

8  Limitations and the Charter (A)  Limitation of Rights: Prior Jurisprudence The precise test for limitation of rights hitherto applied by the EU Courts was not absolutely clear.162 Suffice it to say for present that the general test applied by the ECJ was that such a limitation was allowed provided that it corresponded to objectives of general interest pursued by the Community and did not constitute with regard to the aim pursued a disproportionate and unreasonable interference that undermined the very substance of the right.163 Having said this, the ECJ had in some other cases employed a test closer to that used by the ECtHR.164 A high-profile example of the ECJ’s approach was Schmidberger.165 The Austrian government gave implicit permission for a demonstration by an environmental group on the Brenner motorway, the effect of which was to close it for thirty hours. Schmidberger ran a transport firm and argued that the closure of the motorway was in breach of EU law on free movement of goods. The issue for the ECJ was the relation between Article 28 EC on free movement, and freedom of expression and assembly as protected by Articles 10 and 11 ECHR and the Austrian Constitution. The ECJ reaffirmed that Article 28 EC required the state to refrain from imposing obstacles to free movement of goods, and also to take all necessary action to ensure that free movement was not impeded by the acts of private parties.166 The failure by the Austrian government to ban the demonstration was, therefore, prima facie a breach of Article 28 EC, unless it could be objectively justified.167 The justification proffered by the government was respect for the right to freedom of expression and assembly guaranteed by the ECHR and the Austrian Constitution. The ECJ accepted this justification. It held that Member States and the Community were both required to respect fundamental rights, and that therefore those rights could justify a restriction of other Community obligations, even a fundamental freedom such as free movement of goods.168 The ECJ noted, however, that Articles 10 and 11  ECHR protecting freedom of expression and assembly were not absolute. They could be limited, provided that the restrictions corresponded to objectives of general

162  Craig (n 76) Ch 16. 163  Case 5/88 Wachauf (n 8) [18]; Case C-292/97 Kjell Karlsson [2000] ECR I-2737, [45]. 164  S Peers, ‘Taking Rights Away? Limitations and Derogations’ in Peers and Ward (n 19) 142–9. 165  Case C-112/00 Schmidberger Internationale Transporte und Planzüge v Austria [2003] ECR I-5659. 166  Ibid [59], reaffirming Case C-265/95 Commission v France [1997] ECR I-6959. 167  Ibid [64]. 168  Ibid [74].

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interest and did not constitute disproportionate and unacceptable interference that impaired the very substance of the right.169 It was, therefore, necessary to decide whether the restrictions placed on Community trade were proportionate in the light of  the relevant fundamental rights. The ECJ held that they were: the disruption of Community trade was for a limited time on a limited route; it was in pursuit of a genuine environmental aim; it was not designed to keep foreign goods out of a particular state; efforts had been made to limit the disruption caused by the demonstration; and a ban on the demonstration would have been an unacceptable limit on the right to peaceful demonstration.170

(B)  Limitation of Rights: Article 52(1) The criterion in the Charter is set out in Article 52(1), which specifies the conditions in which a Charter right can be limited. Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.

The Explanatory Memorandum confirms that this wording is based on the ECJ’s case law. It also states that the reference to general interests recognized by the Union covers the objectives mentioned in Article  3 TEU, and other interests protected by specific provisions of the Treaties, such as Article 4(1) TEU and Articles 35(3), 36, and 346 TFEU.171 The formulation in Article 52(1) combines criteria some of which, such as proportionality, are similar to those used by the Strasbourg Court, others of which owe their origin to German law, such as the requirement that the essence of the right should be protected.172 These criteria were present in the ECJ’s case law.173 There are, nonetheless, important issues concerning the interpretation of this Article. (i) General Limitation v Specific Limitation The Charter enshrines a general limitation clause, whereas the ECHR’s limitations are attached to certain rights, others of which are not capable of derogation. Peers has, however, correctly pointed out that Article 52(1) does not state that any Charter right can be limited, but rather that if such rights are limited the conditions laid down in the article apply.174 It would, therefore, be open to the ECJ to conclude that certain Charter rights are not open to limitation or derogation. The ECJ recognized in Schmidberger175 that the ECHR rights to life and freedom from torture were non-derogable. The ECJ 169  Ibid [80]. 170  Ibid [83]–[94]. 171  Explanations Relating to the Charter (n 35) 16. 172  de Witte (n 3) 880. 173  Case 5/88 Wachauf (n 8) [18]; Case C-292/97 Karlsson (n 163) [45]. 174  Peers (n 164) 163. 175  Case C-112/00 Schmidberger (n 165) [80].

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stopped short of expressly stating that EU law would preclude derogation from such rights, but this is a reasonable inference. The Charter formulation makes no reference to the needs of a democratic society, although given that the EU is founded on respect for democracy, human rights, and the rule of law,176 it is therefore as Peers argues ‘hard to see how limitations on human rights can be justified without taking account of the element of democracy’.177 (ii)  Criteria for Limitation: I An additional difference between the Charter test and that in the ECHR is that the former allows limitations ‘only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others’, as compared with the more discrete justifications found in Articles 8–11 ECHR. The breadth of the possible justifications allowed by the Charter test is exemplified by the Explanatory Memorandum, which construed reference to ‘general interest’ to cover objectives mentioned in Article  3 TEU and other interests protected by specific provisions of the Treaties, such as Article 4(1) TEU and Articles 35(3), 36, and 346 TFEU.178 The relationship between Article  52(1) and Article  52(3) insofar as limitation of rights is concerned is important in this context. Article 52(3) provides that the ‘meaning and scope’ of Charter rights that correspond to ECHR rights should be the same. This should include the rules on limitations and this is supported by the Explanatory Memorandum.179 Thus for rights falling in this category, Union legislation limiting such rights must comply with the ECHR rules on limitations. The EU is, however, permitted by Article  52(3) to provide more extensive protection. It would therefore be possible for the limitation conditions laid down in Article 52(1) to apply in addition to those of the ECHR for Charter rights that correspond to ECHR rights, assuming that the Charter limitation was read as granting more extensive protection than application of the ECHR rules on limitations in the instant case.180 (iii) Criteria for Limitation: II The Charter stipulates that any limitation on the exercise of a right or freedom must be provided for by law.181 This requirement implies that the legal basis which permits the restriction of the right must be sufficiently clear and precise, such that it affords a measure of legal protection against any arbitrary interferences by the public body.182 The limitation must also respect the essence of the right or freedom. The meaning accorded to this is particularly important. The formulation is derived from German

176  Art 2 TEU. 177  Peers (n 164) 168. 178  Explanations Relating to the Charter (n 35) 16. 179  Ibid 17. 180  K Lenaerts and De Smijter, ‘A “Bill of Rights” for the European Union’ (2001) 28 CMLRev 273, 292–3. 181  Case C-407/08 P Knauf Gips KG v Commission, EU:C:2010:389, [91]; Case T-132/07 Fuji Electric Co v Commission, EU:T:2011:344, [159]. 182  Case C-419/14 WebMindLicenses kft, EU:C:2015:832, [81], [91].

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law.183 It captures the important idea that a restriction should not be deemed lawful if it undermines the essence of the guaranteed right. It was part of the test for limitation of rights hitherto applied by the ECJ. However, its application by the EU Courts was often subtly different from their German counterparts. The ECJ would commonly conclude that the restriction was lawful, provided that it did not infringe the essence of that right.184 Whether intended or not, the wording of the ECJ’s formulation was that restrictions would be lawful, provided that they did not constitute a disproportionate and intolerable interference that impaired the substance of the right. This gave the relevant phrase a different role from that accorded to it by the German courts. The interpretation of this phrase within the Charter is, therefore, especially important. It should be interpreted in accord with its German origins and the structure of Article  52(1) facilitates this. The Article makes it clear that any limitation must respect the essence of the right, and that even if it does it will still only be lawful if proportionate, necessary, and in the general interest. This was the interpretation accorded to Article 52(1) in Schecke.185 The ECJ held that an obligation to publish personal data relating to beneficiaries of agricultural aid was in the general interest in that it enhanced transparency and accountability. It was, nonetheless, a disproportionate invasion of Articles 7 and 8 of the Charter, because it was applied without drawing a distinction based on criteria such as the periods during which aid was received, its frequency, nature, and amount. This was also the approach in Watson,186 where the CJEU held that the relevant EU Directive, read in the light of Article 52(1), must be interpreted as precluding national legislation which, for the purpose of fighting crime, provided for the general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication. Such national legislation exceeded what was strictly necessary and could not be justified in a democratic society. (iv) Criteria for Limitation: III A further interpretive issue that arises concerning Article 52(1) is whether the margin of appreciation is applicable in this context. The rationale for its use in the ECHR

183  de Witte (n 3) 880. 184  Case C-491/01 R v Secretary of State for Health, ex p British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453; Cases C-20 and 64/00 Booker Aquaculture Ltd and Hydro Seafood GSP Ltd v Scottish Ministers [2003] ECR I-7411; Cases C-184 and 223/02 Spain and Finland v European Parliament and Council [2004] ECR I-7789. 185  Cases C-92–93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, EU:C:2010:662; Case C-305/05 Ordre des barreaux francophones et germanophone v Conseil des ministres [2007] ECR I-5305, [49], AG Maduro. 186  Cases C-203 and 698/15 Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson, EU:C:2016:970, [107], [112]. See also Case C-477/14 Pillbox 38 (UK) Ltd v Secretary of State for Health, EU:C:2016:324, [161]; Case C-419/14 WebMindLicenses (n 182) [69]; Opinion 1/15 Draft agreement between Canada and the European Union—Transfer of Passenger Name Record data from the European Union to Canada, EU:C:2017:592; Case T-262/15 Kiselev v Council of the European Union, EU:T:2017:392, [69]–[71].

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is that  it enables the Strasbourg Court to take cognizance of the different views on morality and the like prevalent in the diverse countries that are signatories to the Convention. This argument would be inapplicable in relation to rights-based review of Union institutions undertaken by the ECJ. It would, however, be open to the ECJ to develop an autonomous concept of deference to Union institutions when assessing rightsbased arguments, as exemplified by the approach of the UK courts under the Human Rights Act 1998.187 While this would be possible, such deference is not a common feature in constitutional adjudication by the courts of most Member States, and would therefore be unlikely to be adopted by the ECJ when reviewing acts of the Union institutions for compatibility with Charter rights. It should, nonetheless, be acknowledged that the ECJ has often reached the same result, albeit by different means. It commonly found that, for example, property rights and rights to pursue a trade were not absolute. It then considered whether the restrictions imposed by the measure corresponded to objectives of general interest pursued by the Union and whether they constituted a disproportionate and intolerable interference, which impaired the very substance of the rights guaranteed.188 This approach thereby enabled the ECJ to give weight to the views of the EU institutions by treating EU legislation encapsulating those views as pursuing objectives of Union interest, and through adjudication on the proportionality criterion. This leaves the possible application of a margin of appreciation when the Charter is applied to the Member States. It has been argued that a margin of appreciation is not warranted here, principally on the ground that there are already a number of ways in which national diversity can be taken into account.189 There is some force in this argument, but the contrary view is preferable. The rationale for according Member States some margin of appreciation is applicable when Member States are, for example, derogating from EU law. It enables the strength of national preferences on issues as diverse as abortion190 or pluralism of the press to be given due weight.191 This is particularly so given that cases on derogations may entail a balance between a fundamental right, such as freedom of the press or assembly, and an EU freedom such as free movement of goods.192 The ECJ has been willing to accord Member States a margin of appreciation 187  P Craig, Administrative Law (Sweet & Maxwell, 8th edn, 2016) Ch 18. 188  Case 265/87 Schräder HS Kraftfutter GmbH & Co KG v Hauptzollamt Gronau [1989] ECR 2237, [15]; Case C-280/93 Germany v Council [1994] ECR I-4973, [78]; Case C-200/96 Musik Metronome GmbH v Music Point Hokamp GmbH [1998] ECR I-1953, [21]; Case C-293/97 R v Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex p Standley [1999] ECR I-2603, [54]. 189  Peers (n 164) 168. 190  Case C-159/90 SPUC v Grogan [1991] ECR I-4685. 191  Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-368. 192  In Case C-112/00, Schmidberger (n 165) [82], [89], the ECJ spoke of the wide margin of discretion of  the Austrian government in balancing freedom of assembly and freedom of trade, albeit the ECJ then undertook a reasonably searching proportionality analysis of its own; the margin of appreciation was expressly referred to in Case C-274/99 P Connolly v Commission [2001] ECR I-1611, although it was not applied to the facts.

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in assessing derogations from the four freedoms,193 and there is no reason why it should cease to do so under the Charter.194 This argument is reinforced by Article 52(3): Charter rights that correspond to those in the ECHR must be given the same meaning and scope. The margin of appreciation has an impact on the meaning accorded to a particular right. It would moreover be odd for the margin of appreciation to apply to some Charter rights, those that correspond to the rights in the ECHR, but not to other rights in the Charter.

9  Treaty and Charter Interpretation of rights-based provisions is often complex because of contestability as to the meaning of the particular rights and their application in concrete circumstances. These difficulties are exacerbated in the EU because the Charter subsists alongside the TEU and TFEU, many of the provisions of which touch on the same subject matter as Charter rights.195 This issue was addressed by Article 52(2), which states that ‘rights recognized by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties’.196 The Explanatory Memorandum states that Article 52(2) refers to rights which were expressly guaranteed in the EC Treaty and have been recognized in the Charter, and which are now found in the TEU or TFEU, notably the rights derived from Union citizenship. The Memorandum emphasizes that Charter rights remain subject to the conditions and limits applicable to the Union law on which they are based, and for which provision is made in the Treaties and that the Charter does not alter the system of rights conferred by the EC Treaty and taken over by the Treaties.197 The Memorandum attached to Article 52(2) however gives no list of Charter rights that are based on existing Treaties. The matter is addressed in relation to explanations of particular Charter rights, but inconsistently. Thus comments on some Charter articles state expressly that they are based on a Treaty provision and that Article 52(2) applies;198 the comments on other Charter rights state that they are based wholly or 193  Case C-124/97 Laara, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v Finland [1999] ECR I-6067; Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609. 194  K Lenaerts, ‘EU Values and Constitutional Pluralism: The EU System of Fundamental Rights Protection’ [2014] Polish Yearbook of European Law 135. 195  G de Búrca, ‘Fundamental Rights and Citizenship’ in B de Witte (ed), Ten Reflections on the Constitutional Treaty for Europe (Robert Schumann Centre for Advanced Studies, 2003) 29–44. 196  See, eg, Case C-650/13 Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde, EU:C:2015:648, [40]–[45]; Case C-444/15 Associazione Italia Nostra Onlus v Comune di Venezia, EU:C:2016:978, [62]–[63]; Case C-284/15 Office national de l’emploi (ONEm) v M, EU:C:2016:220, [33]–[35]; Case T-618/15 Voigt v European Parliament, EU:T:2017:821, [80]. 197  Explanations Relating to the Charter (n 35) 16. 198  Arts 15(3), 39, 40, 41(4), 42, 43, 44, 45(1), and 46; Peers (n 164) 155.

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partly on a Treaty provision, but make no reference to Article 52(2).199 Three types of problem will therefore arise in deciding on the reach of Article 52(2).

(A)  Application: Charter Rights and Treaty Rights The initial difficulty will be to decide in relation to which Charter rights there are Treaty provisions. This will not be easy, more especially given that, as noted earlier, the Explanatory Memorandum specifies that certain rights are based on a Treaty article, without any link to Article 52(2). The difficulties can be exemplified in relation to discrimination, which was considered by Lenaerts and de Smijter.200 The Charter deals with this in Article  21(1), which prohibits discrimination on grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation. This is broader than Article 19 TFEU in a number of ways. The list in Article 21(1) is more extensive and it prohibits discrimination on the listed grounds, whereas Article 19 TFEU merely empowers Union action to tackle discrimination. The framers of the Explanatory Memorandum were cognizant of tensions between Article 21(1) of the Charter and Article 19 TFEU, but the resolution of these difficulties was neither clear nor convincing. The Explanatory Memorandum states that Article 21(1) ‘draws on’ Article 19 TFEU, as well as Article 14 ECHR.201 It states that there is no ‘contradiction or incompatibility’ between Article  21(1) and Article  19 TFEU, because the latter confers power to adopt legislative acts, including harmonization, to combat the listed forms of discrimination, and such legislation may cover action of Member State authorities and relations between private individuals in any area within the limits of the Union’s powers. This is contrasted with Article  21(1), on the grounds ‘that it does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas’,202 and only covers discrimination by Union institutions and by Member States when they are implementing Union law. The Memorandum concludes by stating that Article  21(1) does not, therefore, alter the extent of powers granted under Article 19 TFEU. The reality is, however, that the list in Article 21(1) of the Charter is broader, not narrower, than that in Article 19 TFEU, and the Charter prohibits such discrimination. The Charter does not authorize legislative acts, and is in this respect narrower than Article 19 TFEU, but this does not alter the respects in which Article 21(1) is broader than Article 19 TFEU. 199  Arts 11(2), 18, 21(2), 22, 23, 32, 34(1), 35, 37, and 38; Peers (n 164) 155–6. 200  Lenaerts and Smijter (n 180) 283–9. 201  Explanations Relating to the Charter (n 35) 8, as well as Art 11 of the Convention of Human Rights and Biomedicine as regards genetic heritage. 202  Explanations Relating to the Charter (n 35) 8.

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The solution proposed by Lenaerts and de Smijter was complex, but they argued in  essence that the grounds listed in Article  21(1) which are not in Article  19 TFEU are not based on the latter, and therefore Article 52(2) is inapplicable.203 They contended that this was probably also true for the listed grounds common to both provisions where the Council had not yet taken any measures. When the Council had exercised its power under Article 19 TFEU they argued that the Union act would serve as a basis for construing the scope of the corresponding right recognized by Article 21(1).

(B)  Application: Charter Rights and Union Legislation There is a further difficulty concerning the relationship between Charter rights and Union regulations, directives, etc. Article 52(2) specifies that Charter rights for which provision is made in the Treaties must be exercised under the conditions and limits defined by those Treaties. It is, however, common for a Treaty provision to be set in general terms and for the more specific conditions for its exercise to be laid down in  legislation. The issue is, therefore, whether Article  52(2) is applicable in these instances, such that conditions and limits contained in a regulation or directive would then impose constraints on the interpretation of an analogous Charter right. This in turn depends on whether the Charter right could be said to be based on the Treaty in  such instances. The issue is further sharpened by the fact that certain Charter rights are said in the Explanatory Memorandum to be based wholly or partly on Union legislation.204 It is clear as a matter of principle that the legislation must be intra vires the Treaty article on which it is based. If conditions are imposed on the Treaty article which are inconsistent with it then the legality of the legislation could be contested on that ground. It might be argued that in the converse case, where the regulation or directive is not open to challenge on this ground, that therefore any conditions to the right could be said to be defined by the Treaties and hence the Charter right would have to be interpreted subject to those limits. This is a possible view. It is, however, unconvincing and would be regrettable. We should remember that the fundamental rights doctrine as developed by the ECJ was used to challenge the legality of Community regulations, directives, and the like. This was premised on a normative hierarchy in which fundamental rights were superior to Community legislation and hence operated as a ground of judicial review. Thus under the fundamental rights regime that preceded the Charter the meaning given to those rights was not bounded by conditions laid down in Community legislation. To the contrary, the legality of Community legislation and any conditions laid down therein was tested for conformity with fundamental rights as developed by the Community Courts. This is exemplified by the jurisprudence on the right to be heard, where it was 203  Lenaerts and Smijter (n 180) 284–5.

204  Arts 5(3), 11(2), 23, 31(1)–(2), and 32.

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held that provisions concerning hearings contained in a regulation could be complemented by recourse to the fundamental right itself.205 The rights of the defence could not be excluded or restricted by any legislative provision and respect for the right to be heard should be ensured both where there was no specific legislation and where legislation existed, but did not take sufficient account of the right.206 It would, therefore, be a retrograde step to interpret the Charter as reversing this normative hierarchy, such that conditions laid down by Union legislation defined the boundaries of Charter rights, more particularly given that the Charter has the same value as the Treaties,207 and therefore in normative terms sits above Union legislation. It follows that it should be open to the CJEU to read any conditions or limits to a Treaty article laid down in legislation made pursuant thereto in the light of the Charter right when assessing the legality of those conditions.208 This is more especially so where the Treaty article is open textured, and does not in terms specify particular limits or conditions for its exercise. The interpretation of the Charter right should not be subject to Article 52(2) and should not be formally bounded by the conditions laid down in the Union legislation. The extension of Article 52(2) to the latter would diminish the sense of Charter rights as constitutional rights and risk ossifying their interpretation by the conditions attached to legislation. The situation may, however, be different where the relevant Treaty article expressly states that limits to the right granted shall be determined by EU legislation. This is the case with regard to Article 15(3) TFEU, in relation to access to documents. In such circumstances, Article 52(2) means that the corresponding Charter right will be read subject to the limits laid down by the relevant EU legislation. This was affirmed in Deutsche Telekom.209 The GC held that when considering an alleged infringement of Article 42 of the Charter relating to the right of access to documents, and Article 15(3) TFEU, the latter provision expressly stated that the right of access to documents was subject to principles and the conditions laid down by EU legislation, including in this respect Regulation 1049/2001.210 It followed that, in accordance with Article  52(2), the Charter right to access to documents was subject to the limits flowing from Regulation 1049/2001, unless the Regulation was itself attacked for incompatibility with the Charter.211 It can, moreover, also be accepted, consistently with the preceding argument, that where the Union legislature has given considered thought to the more particular meaning to be accorded to a right laid down in a Treaty article and expressed this 205  Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, [15]. See also Cases T-33-34/98 Petrotub and Republica SA v Council [1999] ECR II-3837; Case C-458/98 P Industrie des poudres sphériques v Council and Commission [2000] ECR I-8147, [99]. 206  Case T-260/94 Air Inter SA v Commission [1997] ECR II-997, [60]. 207  Art 6(1) TEU. 208  It is moreover the case that the requirements of the general limitation clause in Art 52(1) of the Charter would be applicable in such a situation. Thus it would, for example, be necessary show that such limitations respected the essence of the relevant right. 209  Case T-210/15 Deutsche Telekom AG v European Commission, EU:T:2017:224, [113]. 210  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43. 211  Ibid [114].

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through legislation, the CJEU should treat this with respect and should not lightly find this to be inconsistent with the Charter right.

(C)  Application: Charter Rights and the Courts’ Jurisprudence A further difficulty with the application of Article 52(2) is whether it applies to the courts’ jurisprudence. We need to tread carefully here. There will be many instances where the conditions and limits of a particular Treaty article will only become apparent in the light of case law from the Union Courts. Thus the meaning of state aid, competition, agreement, and many other prominent terms in Treaty provisions that serve to define their scope will only become apparent through judicial interpretation. In such instances it is natural to think of Article 52(2) applying, subject to the Charter right being based on the relevant Treaty article. Where this is met then the definition of the conditions and limits for application of the relevant Treaty article should include the Courts’ jurisprudence defining them. There are, however, other instances where the right or principle is in reality created by the Courts and where it is based on an open-textured or generally worded Treaty article. Consider in this respect the possible relation between Article 52(2) and Article 41 of the Charter, concerned with the right to good administration. Article 41(1) imposes an obligation on Union institutions to be impartial in the handling of the affairs of every person, and to deal with them in a reasonable time. Article 41(2) then provides that the right in Article 41(1) shall be taken to include the ‘right of every person to be heard, before any individual measure which would affect him or her adversely is taken’. It also includes the right of access to the person’s file, subject to exceptions for confidentiality, and the obligation to give reasons. Article  41(3) covers damages actions against the Union, and the right to communicate to the Union institutions in a person’s own language is guaranteed in Article 41(4). The Explanatory Memorandum212 makes it clear that the rights contained within Articles 41(1) and most of Article  41(2)213 are  derived from the Courts’ case law. The Memorandum also states that the rights contained in Article  41(3)–(4) are, in accordance with Article  52(2), to be applied under the conditions and within the limits defined by the Treaties.214 This leaves open the issue of principle as to whether Article  52(2) can or should apply to such Charter rights based on the Courts’ jurisprudence. The wording of the Article, framed in terms of rights ‘for which provision is made’ in the Treaties, is ambiguous in this respect. This could be read to include rights derived from case law that is conceptually based on Article 19 TEU and Article 263 TFEU.215 The wording 212 Explanations Relating to the Charter (n 35) 12; Charte 4423/00, Convent 46, 31 July 2000, 27; Charte 4473/00, Convent 49, 11 October 2000, 36–7. 213  The obligation to give reasons, the third indent of Art 41(2), is based on Art 253 EC. 214  Explanations Relating to the Charter (n 35) 12; Charte 4473/00, Convent 49, 11 October 2000, 37; CONV 828/03, Updated Explanations (n 85) 37. 215  Art 19 TEU (ex Art 220 EC) is the foundational provision in relation to the ECJ and provides that the Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed. Art

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of Article 52(2) states, however, that Charter rights based on the Treaties must be exercised ‘under the conditions and within the limits defined by those Treaties’. The Treaties do not define the conditions and limits to rights fashioned by the CJEU, except in the attenuated sense that all of its jurisprudence constitutes an interpretation of some Treaty provision. Where, however, the Union Courts read extensive principles into vaguely framed Treaty articles it is strained to say that the Treaty article itself established the conditions and limits to the exercise of that right. We should, when addressing this issue, not lose sight of the underlying point of principle. Thus even if one subscribes to the thesis that in formal terms the Courts’ jurisprudence is premised on some Treaty article, the salient issue is whether conditions and limits placed on principles or rights derived by the judiciary from broadly framed Treaty articles should necessarily constrain the interpretation of the analogous Charter right. It is one thing to say that Charter rights must respect the conditions and limits defined by the Member States when they ratified the Treaty. It is another thing altogether to say that where Charter rights owe their origin to the Courts’ jurisprudence, the interpretation of the Charter right must forever be constrained by the limits and conditions of that jurisprudence. It should also be acknowledged that even if it was felt that Charter rights based on the Courts’ jurisprudence should be constrained by the limits and conditions in that case law, this would not impede a creative Court minded to develop the law in the relevant area. Such a Court could if it so wished simply develop its traditional case law under the Treaties so as to make it conform to the interpretation that it would like to give to the relevant Charter right. The actual coverage of Article  41 raises further questions about the relationship between it and Article 52(2). Article 41(1) is the lex generalis, and Article 41(2) the lex  specialis, which sets out three specific rights which are said to be included in Article 41(1). It seems, therefore, that the rights listed in Article 41(2), which all relate to the hearing by the initial decision-maker, are not exhaustive. There is nothing explicitly within Article 41 that is directed towards judicial review, either the rules on standing, or the grounds thereof. It might be contended that this is because the Article as a whole is directed towards obligations imposed on the initial decision-maker. This will not withstand examination, since Article  41(3), concerning damages actions against the EU, directly addresses the individuals’ remedial rights when an error in the original decision has been made. It is axiomatic that judicial review, leading to annulment, and damages actions leading to compensation, are both methods of recourse when an error in the initial decision has occurred. It will, therefore, be interesting to see whether there are attempts made to base claims concerning judicial review on Article 41(1).

263 TFEU (ex Art 230 EC) sets out the grounds for judicial review, which include breach of the Treaty or any rule of law relating to its application, and it was this that served as the window for the ECJ to read into the EC Treaty many of the principles of good administration.

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(D)  Principle: To Replicate or Not to Replicate It might be felt in the light of the above that it would have been more sensible to avoid replication in the Charter of provisions found elsewhere in the Treaties. There is force in this argument.216 The avoidance of replication would, however, have required the identification of rights found in the Charter that already exist in the Treaties and the removal thereof. This would not have been easy, as the preceding discussion revealed. It would, moreover, be very odd for a Charter of Fundamental Rights not to include, for example, important provisions concerning equality on the ground that the existing Treaties covered the issue. This point is reinforced by the possibility that over time the Charter rights may come to have a higher status de facto than other Treaty provisions.

10  ECHR and Charter (A)  Approach: Charter Rights that Correspond to ECHR Rights The relation between the Charter and the ECHR was an issue that occupied much time in the drafting process.217 The result is encapsulated in Article 52(3), which provides that Charter rights that correspond to rights guaranteed by the ECHR shall have the same scope and meaning as those in the ECHR. This is subject to the caveat that Union law can provide more extensive protection.218 Article 52(3) requires the identification of those rights which ‘correspond’ to those guaranteed by the ECHR. The task is facilitated by guidance from the drafting process, and was addressed by the Explanatory Memorandum. It concluded that the right to life, the prohibition of torture, the prohibition on slavery and forced labour, the right to liberty and security, respect for private and family life, freedom of thought, conscience, and religion, freedom of expression and information, freedom of assembly and association, right to property, protection in the event of removal, expulsion, or extradition, and the presumption of innocence and right of defence, had the same meaning and scope as the corresponding articles of the ECHR.219 There are, however, Charter articles where the relationship with ECHR rights is more complex,220 albeit for different reasons.221 Some Charter rights, such as Article 5 dealing with slavery and forced labour, are based on an ECHR right in part, but go beyond it, by expressly prohibiting trafficking in human beings. Other rights, such as 216  A Arnull, ‘From Charter to Constitution and Beyond: Fundamental Rights in the New European Union’ [2003] PL 774, 778–9. 217  See, eg, SN 3340/00, 29 June 2000; Charte 4423/00, Convent 46, 31 July 2000; Charte 4961/00, Contrib 356, 13 November 2000; P Lemmens, ‘The Relationship between the Charter of Fundamental Rights of the EU and the ECHR: Substantive Aspects’ (2001) 8 MJ 49. 218  This was reconfirmed by CONV 354/02, Final Report of Working Group II, 22 October 2002, 7. 219  Explanations Relating to the Charter (n 35) 17–18; Charte 4473/00, Convent 49, 11 October 2000, 49. 220  Explanations Relating to the Charter (n 35) 18. 221  Case C-203 and 698/15 Watson (n 186) [129].

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Article  8 dealing with personal data, are based on more than one source, in this instance  a Treaty article plus directive, as well as an ECHR right. Yet other Charter rights modify the analogous ECHR right. This is exemplified by Article 9, which countenances the possibility of marriage by those of the same sex, where this is permitted by the relevant national law. There are also instances where the Charter article is based on more than one source, and modifies the relevant ECHR right. This is so for the right to education, and for the important right to equality. This complexity is recognized by the Explanatory Memorandum, which lists Charter articles where the meaning is the ‘same’ as the corresponding ECHR right, but the scope is wider.222

(B)  Consequence: Same Meaning and Scope The other major injunction in Article 52(3) is that the meaning and scope of Charter rights that correspond to ECHR rights should be the same as those laid down in the ECHR.223 It should be noted that earlier versions of the Charter were crucially different in this respect, requiring only that the meaning and scope of such Charter rights were ‘similar’ to the corresponding ECHR right.224 This would have given rise to significant problems of interpretation. While the present formulation does not refer expressly to the case law of the Strasbourg Court this must be implicit in the injunction that the meaning and scope of Charter rights corresponding to rights contained in the ECHR should be the same. This view is supported by the Explanatory Memorandum,225 and by the ECJ.226 It should, however, be recognized that the present formula, requiring the interpretation of corresponding rights to be the same, may still be problematic. This will especially be so in areas where the ECHR jurisprudence on the point is unclear, or where the point is a novel one, as emphasized by comments from the Council of Europe observers on the drafting of the Charter.227 They expressed concern that the Charter would generate a large increase in the number of preliminary references, and that this would raise the risk that CJEU decisions would be at variance with those of the Strasbourg Court. This in turn would lead to courts of Member States being under mutually inconsistent Treaty obligations. Harmony between the Charter and the ECHR could, they said, only be secured if the EU acceded to the ECHR,228 which, as we have seen, has yet to occur. 222  Explanations Relating to the Charter (n 35) 18. The list contains Arts 9, 12(1), 14(1), 14(3), 47(2)–(3), 50 and the case law on aliens. 223  Case C-400/10 PPU McB, EU:C:2010:544. 224  Charte 4423/00, Convent 46, 31 July 2000, 36. 225  Explanations Relating to the Charter (n 35) 17. 226 Cases 92–93/09 Schecke (n 185) [51]–[52]; Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Germany, EU:C:2010:811, [35]. 227  Charte 4961/00, Contrib 356, 13 November 2000, 3. 228  Ibid 3–4. This view was echoed by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, Charte 4499/00, Contrib 349, 4 October 2000.

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The CJEU has, moreover, put a gloss on Article 52(3) in its more recent case law, stating that the ECHR does not constitute, as long as the EU has not acceded to it, a legal instrument which has been formally incorporated into EU law, with the consequence that analysis of whether an EU measure is consistent with fundamental rights is undertaken solely in the light of the fundamental rights guaranteed by the Charter. The CJEU has, in addition, emphasized that the explanations relating to Article 52(3) state that it is intended to ensure the necessary consistency between the Charter and the ECHR, without thereby adversely affecting the autonomy of Union law and that of the Court of Justice of the European Union.229

11  National Constitutions and the Charter We have already considered the extent to which Member States are bound by the Charter. There are, however, further provisions that serve to define the relationship between the Charter and fundamental rights at national level.

(A)  National Constitutions: Interpretive Obligation Working Group II of the Convention on the Future of Europe recommended a new provision,230 which was added to the Charter by the Constitutional Treaty. Article  52(4) of the Charter states that ‘insofar as this Charter recognizes fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions’. It imposes an interpretive obligation on courts and legislature alike. The obligation is one which the institutions would in any event be minded to comply with, at least as a starting point. The interpretive duty is triggered when the Charter recognizes fundamental rights as they result from the constitutional traditions common to the Member States, and the duty is one of harmonious interpretation, rather than identity of result. However, as we have seen, there is a stricter duty in relation to Charter rights that correspond to those contained in the ECHR, and many of these rights will also be found in national constitutions. There is, moreover, the fact that the particular conception or meaning accorded to a right can vary as between Member States. This does not present an insuperable problem because the obligation is one of harmonious interpretation rather than identity of result. There will, nonetheless, be cases where the construction of a Charter right might 229  Case C-617/10 Fransson (n 67) [44]; Case C-398/13 Inuit (n 68); Case C-601/15 PPU J N v Staatssecretaris van Veiligheid en Justitie, EU:C:2016:84, [45]–[47]; Case C-294/16 PPU JZ, EU:C:2016:610, [50]; Case C-543/14 Ordre des barreaux francophones et germanophone and Others v Conseil des ministers, EU:C:2016:605, [23]; Cases C-217 and 350/15 Criminal proceedings against Massimo Orsi and Luciano Baldetti, EU:C:2017:264, [15]. 230  CONV 354/02, Final Report of Working Group II, 22 October 2002, 7–8.

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arise in a case concerning Member State implementation of EU law, where, as in ERT231 or Familiapress,232 another Member State’s laws are directly implicated in the action. It is possible for an interpretation of the Charter right to affect adversely the constitutional right protected by one Member State, while the contrary construction would be regarded as constitutionally objectionable by the other state. In these circumstances the CJEU will necessarily have to make difficult choices.

(B)  National Constitutions: Substantive Obligation Article  53 is entitled ‘Level of Protection’. It deals with the interrelationship of the Charter and other bodies of law. The aim of this provision was said to be to maintain the level of protection ‘currently afforded within their respective scope by Union law, national law and international law’.233 Special mention was made of the ECHR because of its importance. Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.

The present discussion will concentrate on the relation between the Charter and Member States’ constitutions. It should be noted at the outset that there is an ambiguity as to the meaning of the phrase ‘in their respective spheres of application’. It appears to mean that nothing in the Charter should be interpreted as restricting or adversely affecting human rights recognized in the respective areas to which public international law, international agreements, and Member State constitutions apply. It therefore delineates the spheres of application of human rights norms derived from these other areas. This raised concerns that the supremacy of EU law might be jeopardized,234 in part because of the absence of a supremacy clause in the Charter, in part because jurisprudence from German and Italian courts had not in the past been premised on the assumption that their human rights norms only applied within a limited field, being that to which EU rules did not apply. It had been premised rather on the assumption that such national constitutional protection continued to be generally applicable, but that national courts might choose not to exercise their jurisdiction if satisfied that the protection of rights within the EU legal order was sufficient.235 231  Case C-260/89 (n 8). 232  Case C-368/95 (n 8). 233  Explanations Relating to the Charter (n 35) 19; Charte 4473/00, Convent 49, 11 October 2000, 50. 234  J Liisberg, ‘Does the Charter of Fundamental Rights Threaten the Supremacy of Community Law?’ (2001) 38 CMLRev 1171. 235  Re Wunsche Handelsgesellschaft, Decision of 22 October 1986 [1987] 3 CMLR 225; J Frowein, ‘Solange II’ (1988) 25  CMLRev  201; W Roth, ‘The Application of Community Law in West Germany: 1980–1990’ (1991) 28 CMLRev 137; SpA Granital v Amminsitazione delle Finanze, Decision 170, 8 June 1984; SpA Fragd v Amminstrazione delle Finanze, Decision 232, 21 April 1989 (1989) 72 RDI; R Pettricione, ‘Italy: Supremacy of

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These concerns should, however, be kept in perspective.236 The approach of, for example, the German courts has softened in the last two decades. The Bundesverfassungsgericht emphasized that the level of protection provided by the ECJ could differ from that of the German courts in individual cases and that it was only if the overall level of protection generally fell below a minimum acceptable level would the German courts reassert their control function.237 There is, therefore, from the perspective of German constitutional law less of a problem than hitherto about the delineation of the respective spheres of application of EU law and national law in relation to fundamental rights. It should, however, also be noted that the Bundesverfassungsgericht’s decision238 on the Lisbon Treaty contained strictures concerning the inability of the EU to impinge on areas that were regarded as central to German constitutional identity. It is clear, moreover, that the CJEU is adamant that Article 53 will not jeopardize the supremacy of EU law. It held in Melloni that Article 53 meant that the application of national standards of protection of fundamental rights must not compromise the level of protection provided for by the Charter or the primacy, unity, and effectiveness of EU law.239 The case concerned the European Arrest Warrant (EAW) and the circumstances in which a state could refuse to execute a warrant issued by another state. The circumstances in which the former state could refuse to execute the EAW were amended in 2009, through what became Article  4a(1) of Framework Decision 2002/584.240 The 2009 amendment provided that if a person convicted in absentia was aware, in due time, of the scheduled trial and was informed that a decision could be handed down if he did not appear for the trial or, being aware of the scheduled trial, gave a mandate to a lawyer to defend him at the trial, the executing judicial authority was required to surrender that person, and could not make the surrender subject to there being an opportunity for a retrial of the case at which he was present in the issuing Member State. This was problematic from the perspective of the executing state, Spain, since its Constitutional Tribunal had held that the Spanish Constitution required that there should be some opportunity for retrial of the case in the issuing state, which was Italy, where the original conviction was given in absentia, even if the accused was represented by a lawyer when that initial conviction occurred. The reason why Melloni was Community Law over National Law’ (1986) 11 ELRev 320; G Gaja, ‘New Developments in a Continuing Story: The Relationship between EEC Law and Italian Law’ (1990) 27 CMLRev 83; P Craig, ‘National Courts and Community Law’ in J Hayward and A Menon (eds), Governing Europe (Oxford University Press, 2003) Ch 2. 236  Maduro (n 19) 296–7. 237  D Thym, ‘Charter of Fundamental Rights: Competition or Consistency of Human Rights Protection in  Europe?’ [2002] Finnish Yearbook of International Law 11, 15–16; J Schwarze, ‘A German View on the European Charter of Fundamental Rights: Effect on the Bundesverfassungsgericht’ (2001) 3 CYELS 407, ­411–17; F Hoffmeister, ‘Case Note’ (2001) 38 CMLRev 791. 238  Lisbon Case, BVerfG, 2 BvE 2/08, 30 June 2009, available at http://www.bverfg.de/entscheidungen/ es20090630_2bve000208.html. English translation available at http://www.bundesverfassungsgericht.de/ entscheidungen/es20090630_2bve000208en.html. 239  Case C-399/11 Stefano Melloni v Ministerio Fiscal, EU:C:2013:107; Opinion 2/13 (n 53) [188]. 240 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender ­procedures between Member States (2002/584/JHA) [2002] OJ L190/1.

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absent from the trial in Italy was that he had been arrested and was on bail before being sent to Italy for trial, but broke his bail conditions and absconded. The CJEU held that Article 4a(1) of the Framework Decision was compatible with the right to an effective judicial remedy and a fair trial, and the rights of the defence, protected respectively by Articles 47 and 48(2) of the Charter. This interpretation of Charter rights was, said the CJEU, consistent with the case law of the European Court of Human Rights, pursuant to Article 6 ECHR.241 The CJEU then considered the most difficult aspect of the case, which concerned the fact that the Spanish Constitutional Tribunal had held that Article 4a(1) was contrary to Spanish conceptions of fundamental rights. The national court asked whether Article 53 of the Charter must be interpreted as allowing the executing Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by the executing state’s constitution. The CJEU rejected the argument. It held that Article 53 could not allow the Spanish authorities to make execution of the EAW contingent upon conditions other than those laid down in Article 4a(1), even though the extra condition stemmed from an interpretation of the Spanish Constitution by the Spanish Constitutional Tribunal.242 The national court had, said the CJEU, interpreted Article 53 as a general authorization to a Member State to apply the standard of protection of fundamental rights guaranteed by its constitution when it was higher than that in the Charter and, where necessary, to give it priority over EU law. This interpretation of Article  53 could not, said the CJEU, be accepted, since it would ‘undermine the principle of the primacy of EU law inasmuch as it would allow a Member State to disapply EU legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution’.243 What Article 53 countenanced was rather that national conceptions of fundamental rights could be applied when a Member State implemented EU law, provided that the level of protection provided for by the Charter, as interpreted by the CJEU, and the primacy, unity, and effectiveness of EU law were not thereby compromised. The CJEU reiterated its settled view that the primacy of EU law applied against all national law, including its constitutional law.244 It sought to justify application of this precept in the instant case by adverting to the purpose of the EU amending legislation. It was intended to remedy difficulties with the mutual recognition of decisions given in the absence of the person concerned at his trial, which arose from differences between the Member States in the protection of fundamental rights. The amending legislation thus constituted harmonization of the conditions for execution of an EAW where a conviction was given in absentia, ‘which reflects the consensus reached by all the 241  Case C-399/11 Melloni (n 239) [49]–[50]. 243  Ibid [58]. 244  Ibid [59].

242  Ibid [56]–[64].

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Member States regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant’.245 It was not, therefore, open to a particular Member State to make surrender of a person convicted in absentia dependent on a condition not contained in the amending legislation, even where it felt that this was required to safeguard its constitutional conception of the right to a fair trial. The Melloni judgment was controversial, which was unsurprising. This was reflected in the starkly different academic assessments of the case. The positive reading of the decision was proffered by Sarmiento, who argued that Melloni, together with Åkerberg Fransson, represented a principled reading of the Charter, and embodied a normatively defensible division of authority between the CJEU and national constitutional courts in relation to the application of fundamental rights.246 There were, however, many negative reactions to Melloni, exemplified by that of Besselink, who criticized the ruling for jeopardizing national protections of fundamental rights, for misreading Article  53 of the Charter, and for placing concerns about EU primacy above those of fundamental rights protection.247 There is, therefore, no doubt that Melloni threw into sharp relief the tension between EU law and national constitutional rights. It generated questions about the vertical relationship of the respective legal orders. It invited inquiry as to the limits of EU norms when they clashed with national constitutional and administrative precepts. An answer to such inquiry is disarmingly simple, viz that the judgment was wrong and that the primacy of EU law is indeed bounded by national conceptions of constitutional rights. This response is possible, but does not do justice to the normative complexity of the scenario in the Melloni case. This was not a simple case where fundamental rights were protected by the national constitutional order, and undermined by the EU that lacked such protections. The factual reality in Melloni was very different, since the Spanish government supported enactment of the contested EU amendment to the EAW, and there was, moreover, disagreement as between the Spanish courts as to what the right to a fair trial demanded when the trial was held in absentia. The normative reality was also very different. This was a case where there was contestation, within a regime of mutual recognition for arrest warrants, as to what should be the protection for the right to a fair trial and rights of the defence where a trial was held in absentia. The meaning of a right can be contestable within a particular legal system. This is a fortiori the case where legislation that impacts on rights is enacted for the twenty-eight Member States that constitute the EU. It is axiomatic that Member States might differ in this regard, since the answer necessarily entails complex balancing of the rights of the accused, the rights of the victim, and the respective interests of the issuing and executing states. The 2009 amendment to the EAW system was the considered EU legislative response to this problem. It had been discussed and voted on by 245  Ibid [62]. 246  Sarmiento (n 105). 247  L Besselink, ‘The Parameters of Constitutional Conflict after Melloni’ (2014) 39 ELRev 531.

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the Member States, was consistent with ECHR jurisprudence, and was susceptible to judicial review.248 To contend that national constitutional rights of the kind posited in Melloni should per se be accorded priority would, therefore, mean that there would be twenty-eight national constitutional veto points. It would mean, moreover, that any such veto could be exercised, even if it was inconsistent with, for example, the constitutional conception of a right to a fair trial held by another Member State, such as that which issued the arrest warrant. It would, by parity of reasoning, mean that the veto could also be exercised if a particular state took a different view as to the balance between, for example, liberty and equality, or liberty and security, from that taken by other states that was embodied in EU legislation, even if exercise of that veto could have important consequences for nationals from other Member States. This does not mean that it would never be justified for a Member State to rely on national conceptions of constitutional rights when challenging EU legislation. There may be cases where it is legitimate to question the sufficiency of the rights-based safeguards in the EU legislation as compared to those embodied in the national constitution. The mere fact that the rights-based protections differ should not, however, suffice in this respect, for the very reason set out above, viz that the EU legislation will embody the considered views of twenty-eight Member States that might have differing views that are legitimate on the meaning of, for example, free speech or the right to a fair trial. It would have to be shown that there was some more structural or systemic infirmity with the EU measure to warrant reliance on the particular conception of a right embodied in a national constitution, or that the national interpretation accorded to that right really was reflective of national identity in that particular state. It should, moreover, be emphasized that legislation of the kind contested in Melloni is not immune from rights-based challenge. It is open to judicial review via a direct action, or an indirect challenge emanating from a national court through a preliminary ruling. It will be subject to scrutiny for compliance with the Charter in the same way as  any other EU legal norm. In reaching its conclusion as to whether the contested measure is compliant with the Charter, the CJEU will properly take account of the fact that the measure constitutes the considered view of the EU political institution or institutions that were involved with its passage. These views will not be determinative of whether the measure is in accord with the Charter right, but they are deserving of respect when the Court reaches its decision.

12  International Law and the Charter We have seen that Article 53 addresses the relationship between the Charter and fundamental rights as recognized and protected by, inter alia, international law. Space precludes detailed elaboration of the relationship between international law and 248  Lenaerts (n 194).

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EU law in relation to fundamental rights,249 but the nature of the difficulties can be exemplified by the Kadi case,250 which highlights the pressing need for administrative law safeguards at the international level.251 The applicant challenged a Community Regulation that froze the funds of those suspected of supporting Al-Qaeda. The Regulation was passed pursuant to Security Council Resolutions, which established a Sanctions Committee to designate those who should be subject to such freezing orders. This Committee obtained its information from states and regional organizations and the names placed on the list were reviewed after twelve months. The applicant’s name was included on the list and his assets in the EU were frozen in accord with the Community Regulation. He argued that he was never involved in the provision of financial support for terrorism and that his fundamental rights were infringed by the Regulation. The ECJ held that the EC was based on the rule of law, and could not therefore avoid review of conformity of its acts with the EC Treaty. An international agreement could not affect the allocation of powers fixed by the Treaties or the autonomy of the Community legal system. It was not for the Community judiciary to review the lawfulness of a resolution of an international body, even if it was limited to examination of the compatibility of that resolution with jus cogens. The Community Courts should rather review the lawfulness of the implementing Community measure, including full review for compliance with EC fundamental rights. The ECJ held that the right to be heard did not, in this type of case, require communication to a person before a name was placed on the list as being subject to freezing of assets, since this would jeopardize the objectives of the Regulation. The right to be heard was, however, violated because the Regulation provided no opportunity for those listed to challenge their inclusion, or to test the evidentiary basis thereof, within a reasonable time after being listed. This same infirmity also constituted breach of the right to an effective legal remedy, and to the right to property.

13  UK/Poland Protocol and the Charter (A)  Protocol: Content The UK and Poland negotiated a Protocol252 designed to limit the application of the Charter in certain respects.253 The Protocol contains a lengthy preamble, which, inter 249  G de Búrca, ‘The European Court of Justice and the International Legal Order after Kadi’, Jean Monnet Working Paper No 1/09; T Tridimas and J Gutierrez-Fons, ‘EU Law, International Law, and Economic Sanctions against Terrorism: The Judiciary in Distress?’ (2009) 32 Fordham ILJ 660. 250  Cases C-402 and 415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351. 251  B Kingsbury, N Krisch, and R Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 LCP 15. 252  Protocol (No 30) On the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom. 253  Brussels European Council, 29–30 October 2009, Annex 1.

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alia, reaffirms that Article 6 TEU requires the courts of the UK and Poland to interpret and apply the Charter in accord with the explanations referred to in that Article. The Preamble moreover ‘notes’ the wish of Poland and the UK to clarify certain aspects of the application of the Charter. The Protocol has two substantive articles. Article 1(1) states that the Charter does not extend the ability of the Union Courts, or any court or tribunal of Poland or of the UK, to find that the laws, regulations or administrative provisions, practices, or action of Poland or of the UK are inconsistent with the fundamental rights, freedoms, and principles that it reaffirms. Article 1(2) further states that for the avoidance of doubt nothing in Title IV of the Charter, which concerns solidarity rights, creates justiciable rights applicable to Poland or the UK except insofar as Poland or the UK has provided for such rights in its national law. Article 2 provides that insofar as a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the UK to the extent that the rights or principles that it contains are recognized in the law or practices of Poland or of the UK.

(B)  Protocol: Political Background In political terms, the UK’s insistence on the Protocol is problematic. The UK had, two years earlier, signed the Constitutional Treaty, which included the Charter, and did so without any such reservations of the kind found in the Protocol attached to the Lisbon Treaty. It can, therefore, be assumed that had the Constitutional Treaty ratification process not been stopped as a result of the negative referenda in France and the Netherlands, the UK government would have campaigned for the Constitutional Treaty, including the Charter, notwithstanding the absence of any opt-out or reservation. The relevant terrain had not altered in the ensuing two years, and the rationale for the Protocol is in that sense unclear. The ‘official view’ is that the government engaged in some rethinking of the possible impact of the Charter on UK business, in particular relating to the solidarity rights contained in Title IV, although insofar as this was so it is of course highly contestable whether Charter rights should be limited in this manner. It is, however, difficult to avoid the conclusion that the inclusion of the Protocol was motivated as much if not more by the government’s desire to show that the Lisbon Treaty differed in certain respects from the Constitutional Treaty, and that therefore a referendum on the former was not necessary.

(C)  Protocol: Legal Effect We need to tread carefully when considering the legal effect of the Protocol, and to distinguish between a broad and a narrow view. The ‘broad view’ of Article 1(1) of the Protocol would be that the Charter creates no  legally enforceable rights that can be pleaded against the UK or Poland, either

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before Union or national courts. This view is not, however, sustainable when read in the light of the Protocol as a whole. If the intent had been for the Protocol to create a complete opt-out for the UK and Poland in relation to the entire Charter, then this could have been simply done. It would only have required a single article, suitably and simply worded to achieve this result. If this had been the intent behind Article 1(1) of  the Protocol, then Article  1(2) and Article  2 would have been legally redundant. There would, by definition, have been no need for anything to have been said about, for  example, solidarity rights not being enforceable against the UK and Poland if Article 1(1) constituted a complete opt-out from the entirety of the Charter. It should, moreover, be noted that the very wording of Article 2 assumes that the Charter applies to the UK and Poland. The broad view is also inconsistent with the wording of the Preamble to the Protocol, in which the contracting parties ‘note’ that the UK and Poland wish to clarify ‘certain aspects of the application of the Charter’, and ‘reaffirm’ that ‘references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter’. These extracts from the Preamble, and especially the latter, contradict a reading of the Protocol as a complete opt-out. The ‘narrow view’ focuses on the precise wording of Article 1(1), which states that the Charter does not ‘extend the ability’ of Union or national courts to find that national laws etc are inconsistent with rights reaffirmed by the Charter. On this view Article 1(1) has less impact.254 The EU Courts could, prior to the Charter, consider the legality of Community measures, and Member State action where it fell within the sphere of EU law, for violation of fundamental rights. The matter would often arise in the context of a preliminary ruling from a national court, which had the duty to consider the legality of, for example, Member State action for compliance with EU law, including fundamental rights. Viewed from this perspective the Charter does not ‘extend the ability’ of Union or national courts to find that national laws etc are inconsistent with Charter rights. Thus, Article 1(1) affirms established orthodoxy, and reaffirms the injunction in Article 51(2) that the Charter does not extend the field of application of EU law. It fits, moreover, with the statement in the Preamble that the UK and Poland wish to clarify certain aspects of the application of the Charter. Article 1(2) is, by way of contrast, a substantive limit, which reduces the impact of Title IV of the Charter concerning solidarity rights.255 So too more generally is the stipulation in Article 2 that insofar as a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the UK to the extent that the rights or principles that it contains are recognized in the law or practices of those countries. It should, nonetheless, be noted that the crucial wording is ‘recognized in the law or  practices’ of the UK and Poland, and that this wording provides the CJEU with

254  House of Lords Select Committee on the European Union, 10th Report of 2008, [5.84]–[5.111]. 255  C Barnard, ‘The “Opt-Out” for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’ in Griller and Ziller (n 81) 257–83.

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interpretive discretion as to when a Charter right might be regarded as recognized by the law or practice of that country. The ‘narrow view’ was affirmed by the CJEU in the NS case.256 It held that Article 1(1) of the Protocol did not call into question the applicability of the Charter in the UK or in Poland, and this was confirmed by the recitals in the Preamble to that Protocol. Article 1(1) should, therefore, be regarded as explaining Article 51 of the Charter with regard to the scope thereof, and was not intended to exempt Poland or the UK from the obligation to comply with the provisions of the Charter, or to prevent a national court of one of those Member States from ensuring compliance with those provisions. This coheres with legal practice in the UK, whereby there has been increasing recourse to the Charter in litigation.257 It should, moreover, be remembered that the Protocol does not in itself affect the acquis communautaire, including the fundamental rights jurisprudence that preceded the Charter. It would, therefore, still be open to claimants to rely on this body of established law if they could not rely directly on the Charter because of the limits imposed by the Protocol.

14  Remedies and the Charter Rights demand remedies. This is an obvious proposition, but important nonetheless. It is axiomatic, as Van Gerven states, that ‘fundamental rights are only truly respected when the legal order concerned makes them enforceable against those who have breached them’.258 An individual may seek redress for a violation of fundamental rights through a national legal system, the ECHR, or EU law, and Van Gerven provides a comprehensive overview of the possibilities open to the aggrieved individual. The present discussion will focus on legal remedies under EU law, although we should be cognizant of the possibilities of also using the Open Method of Coordination.259 The principal remedies are review of legality leading to annulment of the offending measure, and damages liability. Review of legality can be direct through Article 263 TFEU, or indirect through Article 267 TFEU. The main obstacle for direct actions hitherto has been the narrow criterion for standing. There has always been an uneasy tension between Charter rights and the standing rules for direct actions, and this has been thrown into sharp relief by the fact that the Charter is now legally binding. The Charter accords ‘individual rights’, yet the 256  Cases C-411 and 493/10 NS v Secretary of State, EU:C:2011:865, [119]–[122]. 257  R Clayton and C Murphy, ‘The Emergence of the EU Charter of Fundamental Rights in United Kingdom Law’, King’s College London Dickson Poon School of Law, Legal Studies Research Paper Series Paper No 2014-30. 258  W Van Gerven, ‘Remedies for Infringements of Fundamental Rights’ (2004) 10 EPL 261. 259 G de Búrca, ‘The Constitutional Challenge of New Governance in the European Union’ (2003) 28  ELRev  814; O De Schutter, ‘The Implementation of Fundamental Rights through the Open Method of Coordination’ in O De Schutter and S Deakin (eds), Is the Open Coordination of Employment and Social Policies the Future of Social Europe? (Bruylant, 2005) 279–342.

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application of the standing rules meant that a person who claimed that such rights were infringed by EU law was often not able to meet the requirements of ‘individual concern’. There was something decidedly odd about the infringement of an individual right not counting as a matter of individual concern. The ECJ touched on this in Bactria,260 where the applicant argued that it should be regarded as individually concerned by a Community Regulation because it affected its  property and data protection rights. The ECJ briefly concluded that the alleged infringement of the applicant’s property right was insufficient to distinguish it individually for the purposes of standing. This conclusion was sustainable in formalistic terms, since the Regulation could equally have affected the property rights of other operators in the area. This merely served to demonstrate the limits of the formalistic reasoning. The fact that a regulation might affect equally a number of traders did not alter the fact that the effect in each such case was on the claimant’s individual right. Thus Bactria failed to resolve or indeed recognize the tension between individual rights and individual concern. The deliberations in the Convention on the Future of Europe on standing were considered earlier,261 such that the criterion in Article 263(4) TFEU was altered, so as to provide that, Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

The novelty of the provision is that individual concern does not have to be shown for regulatory acts that are of direct concern to a person and do not entail implementing measures. Liberalization of this kind is to be welcomed, and goes some way to meet the difficulties exemplified by the existing case law. The difficulties of construction concerning Article 263(4) TFEU were considered earlier.262 The reformed standing rules will, however, not do much to alleviate the problems faced by individuals in securing standing to challenge EU legislative acts on rights-based grounds, given the limits placed on the reformed rules.263 The claimant will in many instances still be forced to bring right-based challenges by recourse to indirect challenge to Union acts under Article 267 TFEU. It remains to be seen what impact if any the Charter might have. Article 41 enshrines a right to good administration, which is said to inhere in every person. Article 41(2) sets out certain more specific rights that are included in this right. Article 47 provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Standing rules are not explicitly mentioned in either Article. 260 Case C-258/02 P Bactria Industriehygiene-Service Verwaltungs GmbH v Commission [2003] ECR I-15105, [48]–[51]; Case T-16/04 Arcelor SA v European Parliament and Council, EU:T:2010:54, [103]. 261 Ch 11.   262 342–6.   263 342–6.

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It would be open to the Union Courts, if they wished to do so, to regard these provisions as the basis for expanding the existing standing rules. However, the Explanatory Memorandum stated in relation to Article 47 that there was no intent for this provision to make any change to the rules on standing other than those embodied in Article 263(4),264 and the EU Courts have not therefore developed standing based on Article 47. It would have been possible to make special provision for rights-based actions by drawing on the Verfassungsbeschwerde in German law, or the recurso de amparo in Spanish law. They are subsidiary procedures in the sense that a direct complaint to the Constitutional Court is possible where it can be shown that the ordinary courts have failed to uphold the applicant’s constitutional rights. The applicant has to show some personal, direct, and present effect from the contested measure, but this criterion has not prevented thousands of such complaints each year to the German and Spanish Constitutional Courts.265 However, as de Witte has argued, if the criterion for standing were broadened there would be no need for such a mechanism in relation to challenge to Union acts.266 It would, by way of contrast, have had a marked impact on judicial review of Member State action for violation of fundamental rights, since it would have allowed the aggrieved individual to bring an action before the Union Courts without the need for a preliminary reference by a national court.267 De Witte nonetheless concluded against the creation of a European amparo. Liability in damages is the other main remedy that might be sought for violation of fundamental rights. The general principles that govern Union liability under Article 340 TFEU and Member State liability under the Francovich doctrine268 apply here. Thus, provided that the applicant can show that the provision was intended to confer rights on individuals, breach, causation, and damage then liability will ensue. It may well be necessary to show a sufficiently serious breach where the contested measure entailed the exercise of meaningful discretion. Damages will not readily be available in relation to Charter provisions judged to be principles rather than rights, since such provisions are intended to guide legislative and executive action rather than confer rights on individuals.

15  Conclusion: Judicial Review, Legitimacy, and the Charter It is fitting to conclude this chapter by reflecting more generally on the impact of the Charter on judicial review.

264  Explanations Relating to the Charter (n 35) 13; Charte 4473/00, Convent 49, 11 October 2000, 41; CONV 828/03, Updated Explanations (n 85) 41. 265  de Witte (n 3) 894. 266  Ibid 895. 267  Ibid 895–6. 268  Cases C-6 and 9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357.

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(A)  Charter: The Profile of Judicial Review The fact that the Charter is rendered binding by the Lisbon Treaty will alter the profile of judicial review within the EU, and pose new challenges for the Union Courts. They have hitherto fashioned the fundamental rights jurisprudence and been required to adjudicate on complex and contentious issues. The role of rights-based claims within judicial review will, nonetheless, expand, forcing the Union Courts to adjudicate on an increasing number of complex claims relating to both Union and national action. An analogy with developments in the UK is interesting. The UK enacted the Human Rights Act in 1998 and it came into effect in 2000. Prior to that the UK courts had made it clear that fundamental rights were embedded in the common law and would be protected by the UK courts in judicial review actions. The advent of the Human Rights Act 1998 nonetheless transformed judicial review in the UK. There has been a significant expansion in the number of cases that raise rights-based arguments in the context of judicial review actions. The ‘message’ or ‘lesson’ from this is that enshrining fundamental rights in statutory form has a marked impact on the extent to which they will be relied on in legal actions. This is not surprising. Claimants are likely to feel on more secure foundations when relying on a statute that clearly lists rights and has received Parliament’s imprimatur. In the EU there has been a ‘common law-style’ development of fundamental rights by the Community Courts since the 1970s. The number of such cases nonetheless remained limited. Claimants, Advocates General, the CFI, and to a lesser extent the ECJ relied on the Charter for interpretative guidance even prior to the Lisbon Treaty. The fact that the Charter became legally binding by the Lisbon Treaty increased the profile of rightsbased claims within judicial review actions. Claimants can point to a clear set of rights, which are legally binding on EU institutions and Member States when they act within the sphere of EU law. The Union Courts have been faced by a change in the profile of judicial review actions, with an increasing number of such claims having a strong rightsbased component. There are still obstacles to such actions within the EU whether directly or indirectly, and these obstacles will limit the number of actions that can be brought. There are, however, three reasons why the overall number of cases will increase, and many will entail rights-based arguments in reliance on the Charter.269 First, this is because of modification of the standing rules for direct actions, whereby the Lisbon Treaty, following in this respect the Constitutional Treaty, has loosened the grip of individual concern that has been such a block to actions hitherto, although the significance of this change remains uncertain for the reasons given earlier.270 Secondly, it is because of the very breadth of the Charter. The developments in the UK occurred in the context of incorporating provisions of the ECHR into UK law.

269  See also Council Guidelines on methodological steps to be taken to check fundamental rights compatibility at the Council’s preparatory bodies, 13390/14, Brussels, 29 September 2014; Council, Implementation of the Charter of Fundamental Rights, 11415/14, Brussels, 9 July 2014. 270 342–6.

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The  list of rights in the ECHR is considerably narrower than that included in the Charter, and that is so notwithstanding the fact that some of the Charter provisions are deemed to be principles rather than rights. The very breadth of the Charter provisions will, therefore, fuel claims testing their meaning, scope, and interpretation. Thirdly, the number of rights-based claims involving complex issues has increased because of the ‘de-pillarization’ of the Third Pillar. The Area of Freedom, Security and Justice (AFSJ) was brought within the general framework of EU law, including judicial control. Many AFSJ measures involve conflicts with classic civil and political rights. The Community Courts, prior to the Lisbon Treaty, did their best to maintain control over measures enacted under the Third Pillar, but even this teleological interpretation of their jurisdictional capacities left gaps in judicial protection. The fact that the AFSJ is, subject to transitional provisions, brought within the general framework of the EU legal and political order, including the applicability of the Charter, is therefore likely to generate rights-based claims before the Union Courts and require them to grapple with complex issues concerning the interplay between civil and political rights and the needs of a political order seeking to impose controls over matters ranging from asylum to terrorism.

(B)  Charter: The Legitimacy of Judicial Review The Charter may also have a ‘second order’ impact. The fundamental rights jurisprudence of the Community Courts has generally been regarded in positive terms. Some commentators criticized the ECJ for not taking rights seriously, but the fact that the ECJ articulated a fundamental rights case law was generally regarded as legitimate in enhancing the accountability of the EC. The fact that the ECJ thereby struck down Community legislation was not regarded as especially problematic, primarily because such legislation was often democratically deficient, since there was little if any input from the European Parliament. The maxim that the ‘Commission proposes, the Council disposes’ captured the legislative process prior to the SEA. The counter-majoritarian objection voiced against rights-based constitutional review in some legal orders, viz, that a court is replacing its judgment over the meaning of contestable rights for that of the democratically elected legislature, did not therefore apply in the EC when the fundamental rights jurisprudence was developing, given that the legislation subject to review had limited democratic credentials. We should note the change that the Lisbon Treaty made in this respect. Many of the provisions challenged before the Union Courts are made in accord with the ordinary legislative procedure with input from the Commission, Council, and European Parliament. The extension of the ordinary legislative procedure, and the symbolic change in name from that of co-decision, has strengthened the European Parliament’s role in the EU political order and further enhanced the democratic legitimacy of EU legislation. The interpretation of Charter rights may well be contestable and there will inevitably be cases in which the Union Courts substitute their view for that of the legislature on the meaning and interpretation of such a right. The counter-majoritarian aspect of constitutional review will, therefore, be more apparent than hitherto.

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There are various responses that could be made to this point, and there is a veritable wealth of literature on this theme.271 It could be argued that courts are justly accorded the ultimate role in the protection of rights within a democratic polity, which should be conceived not just in simple majoritarian terms. It could be maintained that the preoccupation with the legitimacy of constitutional review is a peculiarly common law phenomenon, and that it does not feature prominently within the academic or judicial discourse in civil law countries. On this view the fact that under the Lisbon Treaty the Union Courts will ever more frequently be reviewing legislative acts that have received considered input from the players in the ordinary legislative procedure will have little if any impact on the legitimacy of judicial review. This may be so, time will tell. We should, nonetheless, at the very least be aware of the changed circumstances in which fundamental rights review will take place under the Lisbon Treaty.

271  See, eg, R Dworkin, Law’s Empire (Fontana, 1986); R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford University Press, 1996); J Waldron, Law and Disagreement (Oxford University Press, 1999); J Waldron, ‘The Core Case against Judicial Review’ (2006) 115 Yale LJ 1346; R Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007); E Muir, ‘The Fundamental Rights Implications of EU Legislation: Some Constitutional Challenges’ (2014) 51  CMLRev  219; D Guđmundsdóttir, ‘A Renewed Emphasis on the Charter’s Distinction between Rights and Principles: Is a Doctrine of Judicial Restraint More Appropriate?’ (2015) 52 CMLRev 685.

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17 Equality 1 Introduction The previous chapter analysed the role played by rights in the EU legal order and their impact on judicial review. This chapter is concerned with equality and the way in which it has been shaped by Union legislation and the Courts’ jurisprudence. The principle of equality and the prohibition of discrimination are found within a number of Treaty articles,1 but the ECJ held that these were merely specific enunciations of the general principle of equality as one of the fundamental principles of EU law,2 which must be observed by any court.3 It is important to recognize that there are a number of conceptions of equality. Thus formal equality, or equality as consistency, dictates that like should be treated alike and that different cases should be treated differently. This important precept is integral to equality law in most legal systems, including the EU. It does not, however, dictate any particular substantive result, and can be met whether people are treated equally badly or equally well.4 Equality of results, by way of contrast, ‘goes beyond a demand for consistent treatment of likes, and requires instead that the result be equal’, thereby ­recognizing that ‘apparently identical treatment can in practice reinforce inequality because of past or on-going discrimination’.5 There are, however, as Fredman notes, ambiguities in the meaning accorded to results for these purposes. The focus might be on the particular individual, it might be on the group to which the individual belongs, or it might be on equality of outcome designed to overcome under-representation of a particular group within certain types of employment.6 Equality of opportunity constitutes a third conception of equality, and is a via media between formal equality and equality of result. Using the metaphor of a race, equality of opportunity is premised on the assumption that real equality cannot be achieved if individuals begin this race from different starting points. There are, once again, difficulties with the more precise meaning of this conception of equality, with some emphasizing its procedural dimension,

1  K Lenaerts, ‘L’égalité de traitement en droit communautaire’ (1991) 27 CDE 3. 2  Cases 117/76 and 16/77 Ruckdeschel v Hauptzollamt Hamburg-St Annen [1977] ECR 1753, [7]. 3  Case 8/78 Milac GmbH v Hauptzollamt Freiburg [1978] ECR 1721, [18]. 4  S Fredman, Discrimination Law (Oxford University Press, 2nd edn, 2011) 8–19. 5  Ibid 14. 6  Ibid 14–17.

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and others placing greater emphasis on substance so as to ensure that ‘persons from all sections of society have a genuinely equal chance of satisfying the criteria for access to a particular social good’.7 We shall return to these ideas in due course. This chapter is not intended to provide exhaustive treatment of equality in all areas of EU law. That would require a book in itself. The object is rather to consider five major areas where equality is of particular importance, to analyse the interplay between the social and economic rationales for equality, to reveal the more particular conception of equality that prevails in the areas studied, and to consider the implications that this has for the standard of judicial review and the relationship between adjudication and legislation as methods for attaining equality.

2  The Four Freedoms, Nationality, and Equal Treatment (A)  Economic and Social Rationales The interplay between the economic and the social rationale for equality is readily apparent in the four freedoms. These have always been central to the EU and nondiscrimination on grounds of nationality lies at the core of these provisions. The ambit of the Treaty articles has extended beyond discrimination and much comment has been devoted to discerning their outer limits.8 This should not, however, mask the fact that non-discrimination on grounds of nationality remains of central importance for  the four freedoms. It is equally important to recognize the economic and social rationales that underlay these provisions. The basic economic object is to ensure the optimal allocation of resources within the EU, by enabling factors of production to move to the area where they are most valued. Thus, for example, labour is one factor of production. It may be that it is valued more highly in some areas than in others. This would be so if there were an excess of supply over demand for labour in southern Italy, and an excess of demand over supply in certain parts of Germany. In this situation labour is worth more in Germany than it is in Italy. The value of labour within the EU is, therefore, maximized if workers are free to move to the area where they are most valued and such movement is not impeded by discrimination on grounds of nationality. The same idea is applicable to freedom of establishment. If a firm established in Italy believes that it could capture part of the German market if it were allowed to set up in business there, then it should not be prevented from so doing by German rules that discriminate on grounds of nationality. 7  Ibid 19. 8  P Craig and G de Búrca, EU Law: Text, Cases, and Materials (Oxford University Press, 6th edn, 2015) Chs 18–23; C Barnard, The Substantive Law of the EU: The Four Freedoms (Oxford University Press, 5th edn, 2016).

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There has, however, always been a social as well as an economic rationale underlying the proscription of discrimination on grounds of nationality within the four freedoms. This is, at its most fundamental, the idea that it should be regarded as natural that, for example, workers should be employed or firms should carry on business in Member States other than their home state, and that when they did so they could not be treated in a disadvantageous manner as compared with nationals of that state. This was integral to the very idea of a ‘community’. There are of course barriers to the realization of this ideal, some practical, others cultural in nature. This can be accepted, while at the same time recognizing that the four freedoms are designed to facilitate this integration. The subsequent discussion reveals the interplay between the economic and social rationales for free movement and equal treatment cast in terms of non-discrimination on grounds of nationality.

(B)  Discrimination and Equal Treatment It may be helpful at this stage to recall briefly the strident approach taken by the Union Courts to nationality discrimination. The jurisprudence in relation to workers and goods attests to the judicial approach. Thus the ECJ has been especially keen to stamp out direct discrimination in relation to workers and held that provisions of the French Maritime Code, which required a certain proportion of the crew of a ship to be of French nationality, were contrary to what is now Article 45 TFEU. The ECJ stated that the Article was directly applicable in the legal system of the Member States, and rendered inapplicable all contrary national law.9 The ECJ also stressed the importance of equal treatment through an expansive reading of indirect discrimination on grounds of nationality, holding that a condition of eligibility for a benefit which is more easily satisfied by national rather than by nonnational workers is likely to fall foul of the Treaty. Proof of indirect discrimination does not require the applicant to prove that a national measure in practice affected a higher proportion of foreign workers, but merely that the measure was ‘intrinsically liable’ to affect migrant workers more than nationals.10 This will be so where benefits are made conditional, in law or fact, on residency or place of origin requirements that can more easily be satisfied by nationals as opposed to non-nationals.11 Language

9  Case 167/73 Commission v French Republic [1974] ECR 359; Case C-185/96 Commission v Hellenic Republic [1998] ECR I-6601; Case C-318/05 Commission v Germany [2007] ECR I-6957; Case C-94/08 Commission v Spain [2008] ECR I-160; Case C-460/08 Commission v Greece, EU:C:2009:774. 10  Case C-237/94 O’Flynn v Adjudication Officer [1996] ECR I-2617; Case C-278/94 Commission v Belgium [1996] ECR I-4307; Case C-276/07 Nancy Delay v Università degli studi di Firenze, Istituto nazionale della previdenza sociale (INPS) [2008] ECR I-3635. 11  Case 15/69 Württembergische Milchverwertung-Südmilch-AG v Salvatore Ugliola [1970] ECR 363; Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153; Case C-419/92 Scholz v Universitaria di Cagliari [1994] ECR I-505; Case C-15/96 Kalliope Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg [1998] ECR I-47; Case C-187/96 Commission v Hellenic Republic [1998] ECR I-1095; Case 35/97 Commission v Belgium

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requirements for certain posts may also be indirectly discriminatory, since it is likely that a far higher proportion of non-nationals than nationals will be affected by them, although such requirements can be imposed where warranted by the nature of the post to be filled.12 The same strident approach to nationality discrimination, direct and indirect, is apparent in the case law on free movement of goods. The ECJ has been particularly harsh on discriminatory rules in the form of import or export restrictions, holding that import or export licences are caught by Article  34 TFEU,13 as are provisions which subject imported goods to requirements that are not imposed on domestic products.14 Article  34 has also been held to prohibit action by a state that promotes or favours domestic products to the detriment of competing imports. This may occur where the Member State engages in a campaign to promote the purchase of domestic as opposed to imported goods;15 where a Member State has rules on the origin-marking of certain goods thereby allowing consumers to manifest prejudice against foreign products;16 where public procurement rules are structured so as to favour domestic producers;17 or where the discrimination in favour of domestic goods is evident in administrative practice, as opposed to formal rules.18

(C) Equal Treatment and the Interplay Between the Economic and Social Rationale The ECJ’s strident approach towards nationality discrimination is well known. It is interesting to reflect further on the way in which the economic and social rationales for equal treatment play out in certain areas. Space precludes exhaustive treatment of this issue in all areas of free movement. The interplay can, nonetheless, be exemplified by focusing on the meaning accorded to the term worker, the benefits afforded to workers within the host state, and the interpretation given to the public service exception in the context of the free movement of workers.

[1998] ECR I-5325; Case C-355/98 Commission v Belgium [2000] ECR I-1221; Case C-87/99 Zurstrassen v Administration des Contributions Directes [2000] ECR I-3337; Case C-369/07 Commission v Germany [2009] ECR I-7811. 12  Case 379/87 Groener v Minister for Education [1989] ECR 3967. 13  Cases 51–54/71 International Fruit Co v Produktschap voor Groenten en Fruit (No 2) [1971] ECR 1107; Case 68/76 Commission v French Republic [1977] ECR 515; Case C-54/05 Commission v Finland [2007] ECR I-2473. 14  Case 154/85 Commission v Italy [1987] ECR 2717; Case 4/75 Rewe-Zentralfinanz v Landwirtschaftskammer [1975] ECR 843; Case 53/76 Procureur de la République Besançon v Bouhelier [1977] ECR 197. 15  Case 249/81 Commission v Ireland [1982] ECR 4005. 16  Case 207/83 Commission v UK [1985] ECR 1201; Case 12/74 Commission v Germany [1975] ECR 181; Case 113/80 Commission v Ireland [1981] ECR 1625. 17  Case 72/83 Campus Oil Ltd v Minister for Industry and Energy [1984] ECR 2727; Case C-21/88 Du Pont de Nemours Italiana SpA v Unità sanitaria locale No 2 di Carrara [1990] ECR I-889; Case 45/87 Commission v Ireland [1988] ECR 4929. 18  Case 21/84 Commission v France [1985] ECR 1356.

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(i)  The Definition of Worker The ECJ emphasized from the outset that the term worker was to be given an autonomous Union definition, and was not dependent on characterization by national law.19 It has continued to give an expansive reading to the EU concept of worker. Thus in Antonissen20 the ECJ gave a teleological interpretation to what is now Article 45 TFEU, so as to include those seeking work. It acknowledged that the Article was worded so as to give EU nationals the right to move freely when accepting offers of employment actually made, and that the right to stay in the territory of a Member State was stated to be for the purpose of employment. It held, nonetheless, that Article 45 should not be interpreted so as to exclude the right to move freely to look for work, since this strict interpretation ‘would jeopardize the actual chances that a national of a Member State who is seeking employment will find it in another Member State, and would, as a result, make that provision ineffective’.21 The ECJ concluded that the rights enumerated in Article 45 were not exhaustive and that they included the right to move freely in order to seek employment.22 In Levin23 the ECJ affirmed that part-time work could come within what is now Article 45 TFEU, even where the sum earned did not equal the minimum wage prevailing in the Netherlands, subject to the caveat that the employment activity had to be genuine and excluded activities on such a small scale as to be regarded as purely marginal and ancillary. The ECJ held that the freedom to take up employment was ­important not just for the creation of a single market, but for the worker to raise her standard of living, even if the worker did not reach the minimum level of subsistence in a particular state.24 Advocate General Slynn noted the increasing dependence on part-time work, especially in times of unemployment. He emphasized that the exclusion of part-time work from the protection of Article  45 would exclude not only women, the elderly, and disabled who, for personal reasons might wish only to work part-time, but also women and men who would prefer to work full-time, but were obliged to accept part-time work. The ECJ persisted with this broad interpretation of the term worker in later cases concerning part-time work and in cases where the worker was remunerated in kind,25 19  Case 75/63 Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten [1964] ECR 177. 20  Case C-292/89 R v Immigration Appeal Tribunal, ex p Antonissen [1991] ECR I-745. 21  Ibid [12]. 22  The status of an EU national searching for work is not exactly the same as a person who is actually employed, although the law in this area is developing, Case C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR I-2703; Case C-258/04 Office national de l’emploi v Ioannidis [2005] ECR I-8275. 23  Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035. 24  Ibid [15]. 25  Case 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741; Case 66/85 Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121; Case 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159; Case C-357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027; Case C-456/02 Trojani v Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECR I-7573; Case C-109/04 Kranemann v Land Nordrhein-Westfalen [2005] ECR I-2421; Case C-228/07 Jörn Petersen v Landesgeschäftsstelle des Arbeitsmarktservice

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although there are limits in this respect.26 The general rule is, moreover, that the purpose for which the employment is undertaken will not be relevant in determining whether a person is a worker. Provided that the employment is genuine and not marginal it will benefit from Article 45.27 The interplay between the economic and social rationales for equal treatment and non-discrimination on nationality grounds can be seen in this case law. In economic terms, the ruling in Antonissen28 broadened the ambit of Article 45, since if nationals could move to another Member State only when they already had an offer of employment, the number of people who could move would be relatively small, and many workers who could seek employment on arrival in a Member State would be prevented from so doing. In Levin,29 and the subsequent jurisprudence, there is recognition that the nature of the employment relationship is changing, with a shift towards part-time work. To exclude such work from the ambit of Article 45 would seriously limit its reach, more especially because a worker might move from part-time work to full-time employment. The judgments also evince concern with the social dimension of free movement of workers and equal treatment. The right to move to look for work served to diminish the varied impact of Article 45 on different categories of workers, since other things being equal, it would normally be those in higher paid or professional employment who would have a job offer before moving to another Member State, by way of contrast to unskilled or semi-skilled workers who might be more likely to secure employment after arrival in the host Member State. The social dimension is also apparent in the right for the worker to raise her standard of living, even if she did not reach the ­minimum level of subsistence in a particular state. To exclude part-time work from Article 45 would indirectly discriminate against women who were more likely to work part-time, and against others who chose to limit the number of hours they worked. The emphasis throughout the jurisprudence that the level of remuneration did not matter, subject to the condition that the employment was genuine and not de minimis, emphasized that a person should be free to move within the EU as a worker, notwithstanding the fact that the pay had to be supplemented by other monetary resources. (ii)  The Benefits Given to Workers The discussion thus far has focused on the way in which the interpretation accorded to  the term worker reflected the economic and social rationales underlying non-­ Niederösterreich [2008] ECR I-6989, [45]; Case C-94/07 Andrea Raccanelli v Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV [2008] ECR I-5939; Case C-232/09 Dita Danosa v LKB Līzings SIA, EU:C:2010:674. 26  Case C-138/02 Collins (n 22) [26]–[33]. 27  There are cases where some account has been taken of the purpose of the employment, Case 344/87 Bettray v Staatssecretaris van Justitie [1989] ECR 1621, although this decision was interpreted narrowly in Case C-456/02 Trojani (n 25) [18]–[22]. The purpose of the employment was also of some relevance in Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205, which should however be read in the light of Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignes-Louvain-la-Neuve (CPAS) [2001] ECR I-6193, [34]–[35]. 28  Case C–292/89 (n 20). 29  Case 53/81 (n 23).

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discrimination on grounds of nationality. The benefits afforded to workers provide further interesting evidence of the same theme. The content of these benefits has been determined by an admixture of EU legislation as overlaid by judicial interpretation. The principal secondary legislation was Regulation 1612/68,30 which was replaced by Regulation 492/2011,31 although most of the operative rights remained the same. Article 1 set out the right of Member State nationals to take up employment in another Member State under the same conditions as its nationals, while Article 2 prohibited discrimination against such workers in relation to contracts of employment. A range of  discriminatory practices, such as quotas for foreign workers, special recruitment ­procedures, measures limiting advertising of vacancies, and special registration procedures were prohibited by Articles 3 and 4, subject to an exception for genuine linguistic requirements. A national of another Member State who sought employment was ­entitled to the same assistance from employment offices as that given to their own nationals seeking work (Article 5). Discriminatory vocational or medical criteria for recruitment and appointment were proscribed by Article 6. Article 7(1) provided that a worker from another Member State could not be treated differently from national workers in relation to conditions of employment, such as remuneration, dismissal, or reinstatement; Article  7(2) stipulated that such workers should enjoy the same social and tax advantages as nationals; Article  7(3) required equal access to vocational training; and Article 7(4) rendered void any discriminatory provisions of collective or individual employment agreements. Equality in relation to trade union rights with nationals was guaranteed by Article 8, and equality in relation to rights and benefits concerning housing was established by Article 9. There are also protections for family members and children. The economic rationale for Regulation 1612/68 is readily apparent. The economic objective of free movement, to facilitate the optimal allocation of employment resources in the EU as a whole, would have had little impact if Member States had been able to discriminate about the matters proscribed by the Regulation. The imposition of quotas or discriminatory provisions concerning employment would have denuded the right to free movement of substance. The same is true in relation to matters such as access to vocational training and the like. The provisions dealing with workers’ families were equally important, since many workers would have been dissuaded from seeking employment in another Member State if they could not be accompanied by their immediate family, or if those family members could be treated disadvantageously in relation to matters such as education.

30  Council Regulation 1612/68/EEC of 15 October 1968 on freedom of movement for workers within the Community [1968] OJ L257/2, OJ 1968 Spec Ed 475. Arts 10 and 11 were replaced by provisions of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of the citizens of the Union and their families to move and reside freely within the territory of the Member States, amending Regulation 1612/68, and repealing Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96 [2004] OJ L158/77. 31  Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union [2011] OJ L141/1.

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There were, however, also prominent social objectives underlying Regulation 1612/68 and its successor Regulation 492/2011. This is evident from particular provisions, such as those dealing with workers’ families, which were framed so as to foster the stability and cohesiveness that comes when people move as a family unit, thereby alleviating the social problems that can occur when families are divided for considerable periods of time. A more fundamental social objective can also be discerned running throughout the Regulation. This is that once a person fulfils the conditions for being a worker there should, as a matter of principle, be equality of treatment within the society where the person is working. The worker from another Member State should not be treated as ‘second class’ by way of contrast to nationals of that state. This is reflected in the wording of the Preamble to the Regulation, which speaks of the need for equality of treatment in fact and law in order that freedom of movement can be exercised in freedom and dignity. This imperative has influenced the interpretation of different provisions of the Regulation. This is exemplified by Michel S32 in the context of Article 12 of Regulation 1612/68. The disabled son of an Italian employee, who had worked in Belgium until he died, sought benefits under Belgian legislation to enable disabled Belgian nationals to recover their ability to work. The ECJ held that the claim could not be based on Article 7(2) of Regulation 1612/68, holding that this only covered benefits connected with employment. It held, however, that the claim could be based on Article 12. The ECJ drew inspiration from the reference to freedom and dignity in the Preamble to conclude that the list of educational arrangements for workers’ children in Article 12 was not exhaustive, and that it could also cover the Belgian disability benefit. The social objective of not treating workers from other Member States as second class also informed the ECJ’s activist jurisprudence when interpreting ‘social and tax advantage’ in Article 7(2) of Regulation 1612/68. The very generality of this provision enabled applicants to use it to challenge the discriminatory application of certain ­benefits by Member States that were not dealt with by other specific provisions of the Regulation. In the seminal Cristini case33 the ECJ made it clear, contrary to its earlier ruling in Michel S, that Article 7(2) was not limited to benefits connected with employment. The Italian widow of an Italian worker in France was refused a reduction card for rail fares for large families because of her nationality. The defendant contended that the benefits in Article 7 were restricted to those connected with the contract of employment. The ECJ held to the contrary, stating that the term ‘social advantages’ in Article 7(2) should not be interpreted in this limited manner. Given the equality of treatment which the provision sought to achieve, ‘the substantive area of application must be delineated so as to include all social and tax advantages, whether or not 32  Case 76/72 Michel S v Fonds national de reclassement handicapés [1973] ECR 457. See also Case 9/74 Casagrande v Landeshauptstadt München [1974] ECR 773; Case C-7/94 Landesamt für Ausbildungsförderung Nordrhein-Westfalen v Lubor Gaal [1996] ECR I-1031. 33  Case 32/75 Fiorini (neé Cristini) v Société nationale des chemins de fer français [1975] ECR 1085.

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attached to the contract of employment, such as reductions in fares for large ­families’.34 There are limits to Article 7(2).35 This does not undermine the fact that Article 7(2) covers all social and tax advantages, not just those linked to employment, and even when they are of indirect rather than of direct benefit to the worker. The basic imperative is that once a person is deemed to be an EU worker then she must be placed on an equal footing with nationals from that Member State. The social advantages accorded to workers may be a matter of national policy, but when that policy decision is made the benefit will accrue to all those working in that state, including nationals from other Member States. The ECJ will be resistant to claims that the benefit or advantage should be reserved for nationals of the host state. Thus in Reina, Germany granted an interest-free ‘childbirth loan’ to German nationals to stimulate the birth rate of the population. This was held to be a social advantage within Article 7(2), with the consequence that an Italian couple in Germany, one of whom was a worker, were eligible for the loan.36 The defendant argued that the refusal to grant a loan did not hinder mobility of workers within the EU, and that since it was a matter of demographic policy it could be limited to those of German nationality. The ECJ rejected the argument and held that the loan was a social advantage, since its main aim was to alleviate the financial burden on low-income families and the fact that there were also demographic objectives did not preclude the application of EU law. (iii)  The Public Service Exception The interrelationship between the economic and social rationales for equal treatment and non-discrimination on grounds of nationality is also apparent in the ­interpretation accorded to Article  45(4) TFEU, which stipulates that Article  45 shall not apply to ‘employment in the public service’.37 In Sotgiu38 the ECJ echoed its stance in relation to the definition of worker, by stating that it would define the meaning of the public service exception. It would not be bound by national definitions of public service since ‘these legal designations can be varied at  the whim of national legislatures and cannot therefore provide a criterion for

34  Ibid [13]. See also Case 63/76 Inzirillo v Caisse d’Allocations Familiales de l’Arrondissement de Lyon [1976] ECR 2057; Case 94/84 Office national de l’emploi v Joszef Deak [1985] ECR 1873. 35 Case 316/85 Centre public d’aide sociale de Courcelles v Lebon [1987] ECR 2811, [12]; Case 207/78 Ministère Public v Even and ONPTS [1979] ECR 2019; Case C-315/94 De Vos v Bielefeld [1996] ECR I-1417. Compare Case 15/69 Württembergische Milchverwertung-Südmilch AG v Salvatore Ugliola [1970] ECR 363. 36  Case 65/81 Reina v Landeskreditbank Baden-Württemberg [1982] ECR 33; Case C-111/91 Commission v Luxembourg [1993] ECR I-817; Case C-237/94 O’Flynn (n 10); Case C-185/96 Commission v Greece [1998] ECR I-6601; Case C-212/05 Hartmann v Freistaat Bayern [2007] ECR I-6303; Case C-213/05 Geven v Land Nordrhein-Westfalen [2007] ECR I-6347. 37  J Ziller, ‘Free Movement of European Union Citizens and Employment in the Public Sector’ (2010), available at http://ec.europa.eu/social/main.jsp?catId=465&langId=en; Cross-Border Mobility of Public Sector Workers (DG III/Austrian Federal Chancellery, 2006), http://www.eupan.eu/files/repository/15_Cross_ border_mobility_of_public_sector_workers_2nd_Edition.pdf. 38  Case 152/73 Sotgiu (n 11) [5].

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i­nterpretation appropriate to the requirements of Community law’.39 The Member States could not, therefore, deem a particular post to be ‘in the public service’ by the name or designation given to that post, or by the fact that its terms were regulated by public law. The Member States were not, however, minded to concede lightly that the ECJ had an interpretive monopoly over the meaning of public service, nor were they willing to accept that national conceptions of public service should not control or strongly influence the interpretation of Article 45(4). They returned to the attack in Commission v Belgium.40 Belgian nationality was required as a condition of entry for posts with Belgian local authorities and public undertakings, regardless of the nature of the duties to be performed, including unskilled railway workers, hospital nurses, and night-watchmen. Belgium argued that Article 45(4), by way of contrast to Article 51 TFEU, embodied an institutional test, such that the criterion for application of the exception was the institution within which the worker was employed, rather than the nature of the work. Belgium argued, ­moreover, that when the Treaties were drafted there was no EU concept of the ­objectives and scope of public authorities and that the Member State governments had wished the conditions of entry to public office to remain their preserve. The ECJ was unmoved by this argument. The fact that nationality was a necessary condition for entry to any post in the public service of a Member State, and that this condition had constitutional status in certain states, was not determinative. The need for the ‘unity and efficacy’ of EU law meant that the interpretation of concepts such as employment in the public service could not be left to the discretion of Member States, even if the state’s rules were of a constitutional nature.41 The ECJ held that the exception removed from the ambit of Article 45 a series of posts which involved direct or indirect participation in the exercise of powers conferred by public law, and duties designed to safeguard the general interests of the state or of other public authorities. These posts ‘presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality’.42 The scope of the derogation in Article 45(4) had to be determined in the light of this objective. This could be difficult where Member State authorities were involved in activities that were not typical public service functions. To extend the public service exception to posts that did not involve any association with tasks belonging to the public service properly so called, ‘would be to remove a considerable number of posts from the ambit of the principles set out in the Treaty and to create inequalities between Member States according to the different ways in which the State and certain sectors of economic life are organized’.43 It was not, therefore, open to a Member State to bring activities of an economic or social nature within the exception simply by including them in the scope of the public 39  Ibid [5]. 40  Case 149/79 Commission v Belgium [1980] ECR 3881. 41  Ibid [18]–[19]; Case C-473/93 Commission v Luxembourg [1996] ECR I-3207, [38]. 42  Ibid [10]. 43  Ibid [11].

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law of the state, and taking responsibility for their performance. The ECJ’s key criterion was that the exception applied to posts that required a specific bond of allegiance and mutuality of rights and duties between state and employee. Such posts had to involve participation in the exercise of powers conferred by public law, and should entail duties designed to safeguard the general interests of the state.44 These requirements are best regarded as cumulative.45 In a subsequent ruling the ECJ found that the majority of the posts did not satisfy these criteria.46 The Court has reaffirmed its approach in later cases.47 It has emphasized the need for the Member State seeking to rely on the exception to proffer specific arguments as to why the task undertaken relates to the exercise of powers conferred by public law and is concerned with safeguarding the general interests of the state. The interplay between the economic and social objectives underlying equality in relation to free movement is evident in this case law. The economic rationale for the restrictive interpretation of the exception is not hard to divine. The broader the reach of the exception, the narrower is the ambit of the principle in Article 45. If the exception were to be liberally interpreted, then there would be a significant diminution in the range of employment relationships where workers could rely on equality guarantees. This was of particular concern, given the breadth of the conception of public service traditionally applied within some Member States. Deference to national conceptions of public service would, moreover, necessarily lead to inequalities between Member States. These twin concerns were reflected in the case law, where the ECJ voiced concern that an institutional reading of the exception that was tied to national conceptions of public service would remove a considerable number of posts from the ambit of the Treaty and create inequalities between Member States depending on the different ways in which the state and economic life were organized.48 The strength of feeling generated by the case law in this area attests to the social dimension of the public service exception. The institutional test advocated by certain Member States, whereby the criterion for application of the public service exception was the institution within which the worker was employed, rather than the nature of the work itself, embodied a view as to when it was legitimate for the Member States to require nationality as a condition for employment. It was underpinned by the idea that ‘the legitimate interests of the State can best be served and protected by the recruitment 44  See also the Commission’s view on the type of posts that would qualify for the public service exception, [1988] OJ C72/2. 45  Case 66/85 Lawrie-Blum (n 25) [27]; Case C-473/93 Commission v Luxembourg [1996] ECR I-3207, [18], AG Léger. There are however formulations that cast the conditions in the alternative, Case 225/85 Commission v Italy [1987] ECR 2625, [10]. 46  Case 149/79 Commission v Belgium II [1982] ECR 1845. 47  Case 225/85 Commission v Italy (n 45); Case 66/85 Lawrie-Blum (n 25) [28]; Case 33/88 Allué and Coonan v Università degli Studi di Venezia [1989] ECR 1591; Case C-213/90 ASTI v Chambre des employés privés [1991] ECR I-3507; Case C-4/91 Bleis v Ministère de l’Education Nationale [1991] ECR I-5627; Case C-270/13 Haralambidis, EU:C:2014:2185. 48  Case 149/79 Commission v Belgium (n 40) [11].

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of the State’s own nationals to perform certain tasks on its behalf ’.49 It reflected a deeprooted conviction ‘that the public service is an area in which the State should exercise full sovereignty’.50 The ECJ’s rejection of the institutional test, and its adherence to a functional criterion, challenged the prevalent Member State view. The challenge was based not merely on the undesirable economic consequences for the EU that would follow if the Member States’ view were to be accepted. The ECJ’s juridical stance also embodied a social view as to when it was legitimate for nationality to be regarded as a condition of employment. The functional test was premised on the assumption that this would only be so where the character of the post required the reciprocal bond of allegiance which is said to be characteristic of nationality. This test denied, by its very nature, that all posts in the public service as traditionally conceived by Member States should necessarily be reserved to nationals of that state. It required Member States to think the unthinkable, that in the EU it might well be the case that, for example, the best qualified applicant for a job as an economist in the public service might be a national from another Member State; and that where the post did not require the reciprocal bond of allegiance that characterized nationality the applicant should be able to put forward her credentials for the job on an equal footing with nationals from the state in which she sought employment. The struggles over the ambit of the public service exception therefore cast into sharp relief the extent to which Union conceptions of equal treatment would force Member States to reconsider the reserved domain where nationality could still be a condition for employment. Advocate General Mancini captured this in typically strident tone, when he remarked that while an extremist disciple of Hegel might truly think that access to posts like nursing should be denied to foreigners, ‘anyone who does not regard the State as “the march of God in the world” must of necessity take the contrary view’.51 The limits of the preceding argument should be recognized. The ECJ’s jurisprudence did not stop Member States from seeking to advance their broader conception of the public service exception, as attested to by the steady flow of cases on this issue.52 The national culture in certain Member States, whereby public servants are commonly recruited from those who followed a certain pattern of education within that system, constitutes a further de facto barrier for those competing from outside. This can be acknowledged and serves to show the constraints on change that can be effectuated through law, and more particularly through adjudication.

49  D O’Keeffe, ‘Judicial Interpretation of the Public Service Exception to the Free Movement of Workers’ in D Curtin and D O’Keeffe (eds), Constitutional Adjudication in European Community and National Law (Butterworths, 1992) 105. 50  Case 307/84 Commission v France [1986] ECR 1725, 1727, AG Mancini. 51  Ibid 1733. See also G Mancini, ‘The Free Movement of Workers in the Case-Law of the European Court of Justice’ in Curtin and O’Keeffe (n 49) 67. 52  Case C-473/93 Commission v Luxembourg [1996] ECR I-3207; Case C-173/94 Commission v Belgium [1996] ECR I-3265; Case C-290/94 Commission v Greece [1996] ECR I-3285; Case C-405/01 Colegio de Oficiales de la Marina Mercante Española v Administración del Estado [2003] ECR I-10391; Case C-47/02 Anker, Ras and Snoek v Germany [2003] ECR I-10447.

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The importance of the economic and social dimension to the ECJ’s case law should, nonetheless, also be recognized. A quantitatively large sector of employment would have been immune from the demands of equal treatment if the Member States’ view of the public service exception had been accepted, and this would have been detrimental given the economic objective of equal treatment in Article 45. Acceptance of the institutional reading of the public service exception would, moreover, have perpetuated a view as to when it was legitimate for nationality to be a condition of employment that would have been detrimental to the social objectives underlying free movement. The preservation of national identity may well be a legitimate national aim, but that interest could be safeguarded by other means and did not justify the general exclusion of foreign nationals from the public service.53

3  Article 18 TFEU, Nationality, and Equal Treatment (A)  Economic and Social Rationales The preceding discussion has been concerned with nationality and equal treatment in  the context of the four freedoms. The general prohibition on discrimination in Article 18 TFEU is, however, important for equal treatment in its own right. Article 18 is cast in the following terms. Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary ­legislative procedure, may adopt rules designed to prohibit such discrimination.

The economic and social rationales for non-discrimination on grounds of nationality identified when discussing the four freedoms are also central to the general proscription of nationality discrimination in Article 18. The relationship between these rationales is brought out clearly by Advocate General Jacobs in the Phil Collins case.54 The fundamental purpose of the Treaty is to achieve an integrated economy in which the factors of production, as well as the fruits of production, may move freely and without distortion, this bringing about a more efficient allocation of resources and a more perfect division of labour. The greatest obstacle to the realization of that objective was the host of discriminatory rules and practices whereby the national governments traditionally protected their own producers and workers from foreign competition. Although the ­abolition of discriminatory rules and practices may not be sufficient in itself to achieve the high level of economic integration envisaged by the Treaty, it is clearly an essential prerequisite. 53  Case C–473/93 (n 52) [35]. 54  Case C-92/92 Phil Collins v Imtrat Handelsgesellschaft mbH [1993] ECR I-5145, 5163.

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The prohibition of discrimination on grounds of nationality is also of great symbolic importance, inasmuch as it demonstrates that the Community is not just a commercial arrangement between the governments of the Member States but is a common enterprise in which all the citizens of Europe are able to participate as individuals . . . No other aspect of Community law touches the individual more directly or does more to foster that sense of common identity without which the ‘ever closer union among the peoples of Europe’, proclaimed in the preamble to the Treaty, would be an empty slogan.

While it is, therefore, clear that there are economic and social rationales underlying Article 18, the scope of its application is problematic, as will be apparent from the subsequent discussion. We can, nonetheless, identify a number of different types of case where Article 18 has been used.

(B) Article 18 TFEU as an Interpretive Device in Relation to the Four Freedoms There are a number of cases where Article  18 has been used as an interpretive tool when considering the four freedoms. It was recognized early in the ECJ’s jurisprudence that the principle of equal treatment on grounds of nationality underpinned and united the four freedoms.55 The Court has drawn on Article 18 when deciding on a range of issues concerning the four freedoms. Space precludes detailed treatment, but the judicial approach can be discerned from some prominent examples. Thus in Angonese56 the ECJ drew on what is now Article 18 TFEU to reinforce the conclusion that Article 45 TFEU had horizontal direct effect. Angonese was an Italian national whose mother tongue was German. He was resident in Bolzano in Italy, but studied in Austria between 1993–7. He applied to take part in a competition for a post with a private bank in Bolzano, the Cassa di Riparmio. A condition for entry to the competition imposed by the bank was a certificate of bilingualism in Italian and German. The bank was allowed to impose such requirements by a collective agreement with national savings banks in Italy, but an individual bank was free as to whether to impose such conditions at all. The certificate was issued by the public authorities in Bolzano after an examination held only in that province. The national court found that Angonese was bilingual, and that there could be practical difficulties for non-residents of Bolzano to obtain the certificate in good time. Angonese did not obtain the certificate and the bank refused to admit him to the competition for the post. Angonese argued that the bank’s requirement for the certificate was contrary to what is now Article 45. The ECJ held that the principle of non-discrimination in relation to workers was drafted in general terms and was not specifically addressed to the Member States. It pointed to case law showing that the prohibition of discrimination on nationality

55  Case 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299. 56  Case C-281/98 Roman Angonese v Cassa di Riparmio di Bolzano SpA [2000] ECR I-4139.

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applied not only to the actions of public authorities, but also to other rules aimed at regulating in a collective manner gainful employment and the provision of services, since obstacles to freedom of movement would be compromised if the abolition of state barriers could be neutralized by obstacles resulting from the exercise of powers by  associations not governed by public law.57 Since working conditions in different Member States were sometimes governed by formal law and sometimes by agreements between private parties, it could create inequality in the application of Article 45 if it were limited to discriminatory acts of public authorities. The ECJ reinforced this ­conclusion by adverting to other provisions of the Treaty, such as Article 157 TFEU, which while formally addressed to Member States, had been held applicable to all agreements intended to regulate paid labour collectively, as well as to contracts between ­individuals.58 The Court concluded that such considerations must be applicable to Article 45, which laid down a fundamental freedom and constituted a specific application of the general prohibition of discrimination contained in Article 18. The use of Article 18 to reinforce the desired reading of a specific Treaty article concerning free movement is apparent once again in Cowan.59 A British tourist in France was refused state compensation for victims of violent crime, which was available to nationals and to residents. The ECJ referred to the general prohibition on ­discrimination ‘within the scope of application of this Treaty’ in Article 18, and to its earlier ruling that tourists were covered by Article 56 TFEU as recipients of services.60 It held that when Union law guaranteed a natural person the freedom to go to another Member State, the corollary was that the person was protected from harm in that state on the same basis as nationals and persons residing there. The prohibition of discrimination was, therefore, applicable to recipients of services as regards protection against the risk of assault and the right to obtain compensation provided for by national law when that risk materialized.61

(C) Article 18 TFEU as Protector of the Objectives Underlying the Four Freedoms There is another series of cases that is related to that considered above, but it nonetheless constitutes a distinct category. The distinguishing feature in this second group is that Article 18 is used as the principal mechanism for attacking national measures that are discriminatory on grounds of nationality, where the contested measures could undermine the objectives of the provisions concerning free movement. The case law on security for costs provides a good example of this use of Article 18. 57  Case 36/74 Walrave and Koch [1974] ECR 1405; Case C-415/93 Union Royale Belge des Sociétés de Football Association and others v Bosman [1995] ECR I-4921. 58  Case 43/75 Defrenne v Société anonyme belge de navigation aérienne [1976] ECR 455. 59  Case 186/87 Cowan v Trésor public [1989] ECR 195. 60  Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377. 61  Case 186/87 (n 59) [17]; Case C-45/93 Commission v Spain [1994] ECR I-911.

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In Kronenberger62 the applicants were an English partnership and sought payment for goods supplied to a German company that had gone into liquidation. The applicants were required to furnish security for costs under the German rules of civil procedure. This obligation was, subject to exceptions, imposed on foreign nationals who brought proceedings before the German courts, when such a request was made by the defendant. The case was decided by using Article  18. The ECJ acknowledged that the proscription of discrimination on grounds of nationality within Article 18 only applied ‘within the scope of application of this Treaty’. It was, therefore, necessary to decide whether the German rule about security for costs that applied to foreign nationals bringing actions in Germany came within the scope of application of the Treaty. The Court accepted that Member States could, in the absence of Union legislation, lay down rules of civil procedure for the bringing of actions, but held that EU law nonetheless imposed limits on Member State competence. Such legislative provisions ‘may not discriminate against persons to whom Community law gives the right to equal treatment or restrict the fundamental freedoms guaranteed by Community law’.63 The ECJ’s reasoning thus far did not furnish any specific ground for finding that the discrimination fell within the scope of application of the Treaty. The Court filled this gap by making clear the connection between the contested rule of civil procedure and the four freedoms.64 It must be held that a national procedural rule, such as the one described above, is liable to affect the economic activity of traders from other Member States on the market of the State in question. Although it is, as such, not intended to regulate an activity of a commercial nature, it has the effect of placing such traders in a less advantageous position than nationals of that State as regards access to its courts. Since Community law guarantees such ­traders free movement of goods and services in the common market, it is a corollary of those ­freedoms that they must be able, in order to resolve any disputes arising from their ­economic activities, to bring actions in the courts of the Member State in the same way as nationals of that State.

The ECJ reinforced its ruling by holding that national legislative provisions that fell within the scope of application of the Treaty were by reason of their impact on intraCommunity trade in goods and services ‘necessarily subject to the general principle of non-discrimination’ contained in Article 18 ‘without there being any need to connect them with the specific provisions’ concerning free movement of goods and services.65 It was sufficient in this regard if the impact on trade in goods and services was i­ ndirect.66 The prohibition on discrimination contained in Article  18 required that persons governed by EU law and nationals of the Member State concerned should be treated ‘absolutely equally’.67 The defendant unsuccessfully argued that the German rule was 62  Case C-323/95 Hayes and Hayes v Kronenberger GmbH [1997] ECR I-1711; Case C-43/95 Data Delecta Aktiebolag and Forsberg v MSL Dynamics Ltd [1996] ECR I-4661. 63  Kronenberger (n 62) [13]. 64  Ibid [14]. 65  Ibid [16]. 66  Ibid [17]. 67  Ibid [18].

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justified where orders for judicial costs could not be enforced in the plaintiff ’s domicile, since it thereby prevented a plaintiff from bringing an action without running any risk if he should lose the case. The ECJ rejected the argument for a number of reasons, including the fact that the German rule was disproportionate to the objective pursued. The use of Article  18 TFEU to protect the objectives underlying the provisions ­concerned with free movement is also the best explanation of the Phil Collins case.68 The applicant was the singer who sought to prevent the sale in Germany of a bootleg recording of his concert in the US. Under German law its nationals would have been afforded relief in such circumstances, but this was not available for non-Germans. The  ECJ held that this was discrimination on grounds of nationality in breach of Article  18. This Article was directly effective and could be relied on in the national courts. The ECJ reasoned that copyright and related rights fell within the ambit of the Treaty because they could distort competition and hinder trade and that this brought the subject ­matter of the action within the scope of Article 18.69

(D)  Article 18 TFEU and the Implementation of EU Legislation Article  18 is also important in relation to the implementation of EU legislation. The condition precedent for the application of Article 18, that the discrimination must operate within the scope of application of the Treaty, is generally not problematic in this area, since the very fact that the EU has legislated, and that the Member State is implementing the legislation, will mean that Article 18 will be applicable, assuming that the Union legislation is within the EU’s competence. The Pastoors case furnishes a good example of the application of Article 18 in the context of Regulations designed to improve working conditions and road safety in the  road transport sector. The Member States were required to adopt the laws or administrative provisions needed to implement Community measures in relation to penalties imposed for breach of the Regulations. Belgium implemented the Regulations by providing that the offender could either pay 10,000 Belgian francs per breach immediately, which would normally extinguish the prosecution, or the offender could submit to criminal proceedings. This latter option was, however, subject to the condition that where the offender had no official or permanent residence in Belgium he was required to lodge a deposit of 15,000 Belgian francs per breach to cover the amount of any fine plus legal costs, in default of which the vehicle was impounded. The ECJ held that the Belgian rule was in breach of Article 18. It was not framed in terms of nationality, but rather in terms of residence. It was, however, indirectly discriminatory, since far more foreign nationals would be caught by it. It would only ever catch Belgian nationals if they did not live in Belgium. The ECJ rejected the Belgian government’s claim that the rule was objectively justified on the grounds that greater costs were involved in actions against non-residents 68  Case C-92/92 Phil Collins (n 54).

69  Ibid [22]–[28].

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and it was more difficult to enforce decisions. The Court accepted that some differential treatment based on these factors might be justified, since it would prevent non-resident offenders from opting for continuation of ordinary criminal proceedings, with no intention of taking part, or of complying with the findings. However, the Belgian rule was excessive, since the deposit demanded was 50 per cent higher than the penalty levied when the immediate payment option was chosen, and because the ­security demanded of non-residents was levied for each breach, even though all such breaches would normally be dealt with in the same criminal proceedings.70

(E) Article 18 TFEU, Gravier, and the ‘Scope of Application’ of the Treaties The cases considered thus far have shown how the ECJ used Article 18 in a number of ways, primarily to reinforce the four freedoms and to ensure that EU legislation was applied in an equal manner. The condition for the application of Article 18, that the discrimination should be within the ‘scope of application’ of the Treaty, is however open to differing interpretations, since much depends on the extent to which the subject matter falls within the Treaty. This is evident from Gravier.71 She was a French art student who was charged an enrolment fee (minerval) for a course in strip-cartoon art in Liège in Belgium, which Belgian nationals were not required to pay. She claimed exemption from the minerval, and argued that it was inconsistent with what is now Article 18. There was competence in relation to vocational training, but this was limited to supporting and supplementing Member State action. The treatment accorded to Gravier was unequal and the ­discrimination was based on nationality. The key issue was whether the subject matter fell within the scope of application of the Treaty. The ECJ held that it did. The Court accepted that although educational organization and policy were not entrusted to the Community institutions, access to and participation in courses of instruction and apprenticeship, in particular vocational training, were not unconnected with Community law. It pointed to Community provisions concerning access to vocational training by workers and children of workers, but these did not avail Gravier since she was not a worker or a child of a worker. The ECJ, therefore, focused more directly on what is now Article 166 TFEU, which concerns Community involvement with vocational training, and noted that it e­ mpowered the Council to lay down general principles for implementing a common vocational training policy capable of contributing to the harmonious development of the national economies and of the common market. It concluded that the common vocational training policy referred to in Article 166 was ‘gradually being established’,72 and that it ‘constituted an indispensable element of the activities of the Community, whose objectives include inter alia the free movement of persons, the mobility of labour, and 70  Ibid [25].

71  Case 293/83 Gravier v City of Liège [1985] ECR 593.

72  Ibid [23].

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the improvement of the living standards of workers’.73 Access to vocational training promoted free movement of persons by enabling them to obtain a qualification in the Member State where they intended to work and by allowing them to complete their training in the Member State whose training programmes included the desired subject of study. It followed, said the Court, that the conditions of access to vocational training fell within the scope of the Treaty, and hence that the imposition of a minerval on non-national students as a condition of access to such training was contrary to Article 18. The ruling in Gravier was contentious. The Danish and UK governments intervened and argued that Article 18 should not be read so as to prevent a Member State from treating its own nationals more favourably in the area of education, particularly as regards access to education, scholarships, and grants and other social facilities provided for students, since on these issues each Member State had special responsibilities to its own nationals. The ECJ rejected such arguments with regard to payment of the minerval. However in Lair74 and Brown75 the Court ruled that while the conditions for access to vocational training, including university studies, fell within the scope of the Treaty for the purpose of Article 18, assistance given by Member States to its nationals when they undertook such studies, nonetheless fell outside the Treaty, at the stage of development of Community law then prevailing, except to the extent to which such assistance was intended to cover charges relating specifically to access to vocational training, such as registration and tuition fees. The ECJ has, as will be seen later, departed from its rulings in Lair and Brown through reliance on the Treaty provisions concerning citizenship. The present discussion is not directly concerned with the scope of EU involvement with educational policy. The salient point for our purposes is rather the way in which the case law in this area reveals the latitude afforded to the ECJ in the interpretation of Article 18 and more especially the meaning given to the key phrase ‘scope of application of the Treaties’. The Gravier decision showed the Court’s willingness to construe this phrase broadly in order that the principle of non-discrimination on grounds of nationality could apply, notwithstanding the fact that the scope of Community competence in the area was limited to taking action that was supportive of and supplementary to that of the Member States, and notwithstanding the fact that even within these confines Community vocational policy was only gradually being established.

(F) Article 18 TFEU, Citizenship, and the ‘Scope of Application’ of the Treaties The expansive reading given to the ‘scope of application’ of the Treaty evident in Gravier has been developed in later cases. The driving force in this case law has been the ­provisions

73  Ibid [23]. 74  Case 39/86 Lair [1988] ECR 3161. 75  Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205.

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on citizenship, more especially Articles 20 and 21 TFEU. It is the interpretation accorded to these Articles, and the symbiotic relationship between them and Article 18, which has expanded the principle of equal treatment on grounds of nationality.76 Article  20 TFEU establishes citizenship of the Union. It provides that every person who is a national of a Member State shall be a citizen of the Union and that Union citizenship shall complement and not replace national citizenship. Citizens of the Union enjoy the rights conferred by the Treaty and are subject to the duties that it imposes. Article 21 TFEU is of particular significance for present purposes. 1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. 2. If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. 3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social ­security or social protection. The Council shall act unanimously after consulting the European Parliament.

The cases discussed in this section are complex and it is therefore important to understand the reason for this complexity. We have already seen that the ‘trigger’ for the application of Article 18 is that the discrimination must occur within the ‘scope of application of the Treaties’. The interpretation of this condition can, as seen, be d ­ ifficult, which is exacerbated when the linkage with the Treaty is based on citizenship and Article 21, since the right to reside and move freely in this Article is ‘subject to such ­limits and conditions laid down in the Treaties and the measures adopted to give them effect’. The ECJ has, nonetheless, used four juridical techniques, sometimes ­independently, sometimes in tandem, to expand the reach of the citizenship provisions and the sphere to which Article 18 will apply. First, it has been willing to apply Union citizenship to situations where the citizen is lawfully resident within the Member State in accord with that Member State’s law. Thus, even where the applicant does not satisfy the conditions laid down by other Treaty articles or Union legislation, and cannot therefore rely on Article 21, he or she will be held to be within Article 20 and benefit from Article 18, provided that the applicant is lawfully resident in the particular Member State, and provided that the subject matter of the action comes within the scope of the Treaty ratione personae and ratione 76  S O’Leary, ‘Nationality Law and Community Citizenship: A Tale of Two Uneasy Bedfellows’ (1992) 12 YBEL 353; S O’Leary, ‘Putting Flesh on the Bones of European Union Citizenship’ (1999) 24 ELRev 68; R White, ‘Free Movement, Equal Treatment and Citizenship of the Union’ (2005) 54 ICLQ 885.

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materiae. This juridical technique is exemplified by the rulings in Martínez Sala77 and Trojani,78 although it has been qualified by the ruling in Dano.79 Secondly, the right to move and reside for EU citizens in Article 21 is subject to the limits and conditions laid down in the Treaty and EU legislation. The ECJ has interpreted such limits narrowly, thereby enabling applicants to benefit from Article 21 and Article 18. This juridical technique is evident in Grzelczyk80 and Bidar.81 Thirdly, the ECJ has given a broad reading to the right to move and reside for the purposes of Article 20 and 21 TFEU, rendering this applicable where there has been no actual physical movement and thereby blurring the line between cross-border and internal situations for the purposes of EU law. This technique is exemplified by Zambrano.82 Finally, the Court has used the introduction of the citizenship provisions into the Treaty as a reason for rethinking and expanding the interpretation given to other Treaty articles or EU legislation, thereby expanding the scope of equal treatment and Article 18. The ruling in Collins83 provides a clear example of this, as does that in Bidar. (i)  The First Juridical Technique: Martínez Sala, Trojani, and Dano The original approach to citizenship was cautious. The ECJ made clear in Uecker84 that citizenship was not intended to extend the scope ratione materiae of the Treaty to cover internal situations with no link with Community law. However in d’Hoop, the ECJ held that the applicant could rely on what is now Article  21 TFEU to contest national ­legislation that granted the right to a tideover allowance only to its nationals who completed their secondary education in Belgium, since this could dissuade such a person from availing herself of educational opportunities in other Member States.85 The willingness to make use of Article 21 in conjunction with Article 18 is also evident in Bickel & Franz.86 The case was concerned with German and Austrian nationals subject to criminal proceedings in Italy. They requested use of German in the proceedings, in accord with the rights granted to German-speaking Italians resident in that Italian province. The ECJ ruled that Article 18 applied, and stressed that the accused were not only potential recipients of services, but also that they were exercising their right to free movement as European citizens based on Article 21. 77  Case C-85/96 María Martínez Sala v Freistaat Bayern [1998] ECR I-2691. 78  Case C-456/02 Trojani (n 25). 79  Case C-333/13 Dano v Jobseeker Leipzig, EU:C:2014:2358. 80  Case C-184/99 Grzelczyk (n 27). 81  Case C-209/03 The Queen (on the application of Bidar) v London Borough of Ealing and Secretary of State for Education [2005] ECR I-2119. 82  Case C-34/09 Ruiz Zambrano v ONEM [2011] ECR I-1177. 83  Case C-138/02 Collins (n 22). 84  Cases C-64/96 and 65/96 Land Nordrhein-Westfalen v Uecker and Jacquet v Land Nordrhein-Westfalen [1997] ECR I-3171. 85  Case C-224/98 D’Hoop v Office national de l’emploi [2002] ECR I-6191; Case C-148/02 Carlos Garcia Avello v Belgium [2003] ECR I-11613. 86  Case C-274/96 [1998] ECR I-7637, [15].

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It was, however, Martínez Sala87 that showed the real potential for the conjunction between what is now Article  18 and Article  21 TFEU. The applicant was a Spanish national who had lived in Germany since 1968. She had undertaken work at various times, but since 1989 she had received social assistance. Until 1984 she had obtained residence permits from the German authorities, but thereafter she merely had documents saying that the extension of her permit had been applied for. She was issued with  a residence permit in 1994. In 1993, when she did not possess a permit, she applied for a child-raising allowance. Her application was rejected because she did not have German nationality, a residence entitlement, or a residence permit. The ECJ considered whether Community law precluded a Member State from requiring nationals of other Member States to have a residence permit in order to receive a child allowance. It was clear that this requirement was discriminatory on grounds of nationality,88 provided that the subject matter fell within the scope of application of the Treaty. The German government argued that it did not. The Court held that a child-raising allowance was within the scope ratione materiae of the Treaty, and that if she were found to be a worker or an employed person she would be within the Treaty ratione personae.89 The Commission argued that, even if she was not a worker, she could come within the personal scope of the Treaty as a citizen because of Article 21. The ECJ held that it was not necessary to decide whether the applicant could rely on Article 21 in order to obtain a ‘new right’ to reside in Germany, since she had been authorized to reside there, although she had been refused a residence permit.90 The fact that she was a national of a Member State lawfully residing in the territory of another Member State brought the applicant within the scope ratione personae of the citizenship provisions of the Treaty,91 with the consequence that Article 20(2) TFEU applied, and she had the rights and duties of a citizen laid down by the Treaty, including the right in Article 18 not to suffer discrimination on grounds of nationality within the scope ratione materiae of the Treaty.92 It followed that the requirement of a formal residence permit imposed on non-German nationals was contrary to what is now Article 18 TFEU. The essence of the Court’s reasoning was, therefore, as follows. The applicant’s right to reside was based not on Article 21, but on the fact that Germany had authorized her residence. This brought her within the citizenship provisions of the Treaty, and entitled her, in accordance with Article 20(2), to the rights and duties of citizenship, including the right not to be discriminated against on grounds of nationality within the scope ratione materiae of the Treaty. The fact that her right to reside was not based on Article  21 meant that the Court did not have to confront the limiting conditions therein. Under the relevant regulations, child allowances were given to workers or employed persons. The ECJ was willing to find that such an allowance fell within the scope ratione materiae of the Treaty, disaggregating the condition that under the 87  Case C-85/96 (n 77). See also Case C-411/98 Angelo Ferlini v Centre hospitalier de Luxembourg [2000] ECR I-8081; Case C-135/99 Ursula Elsen v Bundesversicherungsanstalt [2000] ECR I-10409, [34]. 88  Ibid [54]. 89  Ibid [57]–[58]. 90  Ibid [60]. 91  Ibid [61]. 92  Ibid [62].

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r­ elevant regulations non-discrimination in relation to such benefits applied to workers or employed persons, and concluding that the duty not to discriminate in relation to such benefits attached also to citizenship. The potency of the juridical technique in Martínez Sala is clear from Trojani.93 The applicant was a French national who lived in Belgium in a Salvation Army hostel, where he did various jobs in return for board, lodging, and some pocket money. He  applied for the minimex, the minimum subsistence allowance, but was refused because he was not a Belgian national and did not qualify as an EU worker. The ECJ discussed whether he could be regarded as a worker, but it is the citizenship aspect that is relevant. The ECJ held that the applicant had a prima facie right to reside in Belgium as a Union citizen based on Article 21. It acknowledged that this was not unconditional and that the right to reside was subject to limitations laid down by the Treaty or EU legislation, including the conditions in Directive 90/364:94 Member State nationals wishing to reside in the host state had to have sickness insurance and sufficient resources to avoid becoming a burden on the social assistance system of that state. The  ECJ accepted that it was the lack of such resources that led the applicant to claim the minimex. The applicant did not, therefore, derive a right to reside in Belgium based on Article 21, since he lacked the resources that were a condition for exercise of this right.95 It proved premature for Belgium to signal victory in the case, since the ECJ found in favour of the applicant, notwithstanding what it had said thus far. It reached this conclusion by focusing, as in Martínez Sala, on the fact that the applicant was lawfully resident in Belgium as attested by the residence permit given to him by the Belgian municipal authorities.96 This lawful residence made Article 18 applicable. This was so despite the fact that a Member State might make the existence of sufficient resources a condition of lawful residence, and that it might decide that the lack of such resources meant that a person no longer fulfilled the conditions of the right to reside. Article 18 TFEU was, nonetheless, applicable while the applicant was lawfully resident in accord with national law. The provision of the minimex fell within the scope of the Treaty ratione materiae, the applicant was discriminated against on grounds of nationality and hence the Belgian rule was contrary to Article 18. This reasoning is problematic. The reality, both legal and political, is almost certainly that the applicant was regarded as lawfully resident by the Belgian authorities because of Directive 90/364 and subject to the conditions therein. The effect of the judgment is that failure to fulfil the financial conditions in the Directive meant that the applicant could not take advantage of what is now Article 21 TFEU combined with Article 18 TFEU. This same failure did not, however, prevent the applicant from using Article 18 on the assumption that he was lawfully resident in Belgium, notwithstanding the fact 93  Case C-456/02 Trojani (n 25). 94  Council Directive 90/364/EEC of 28 June 1990 on the right of residence [1990] OJ L180/26. 95  Case C-456/02 Trojani (n 25) [36]. 96  Ibid [37]–[46].

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that his lawful residence in Belgium was dependent on the conditions in the Directive. The ECJ accepted that Belgium could decide that the applicant no longer fulfilled the conditions for lawful residence, because of lack of resources. The effect of the judgment was, nonetheless, to disaggregate the right to reside granted by Belgium because of the Directive, from the financial conditions attached thereto and allow the applicant to claim the very type of financial resources that the Directive made a precondition for the right to reside.97 The CJEU, however, pulled back somewhat from the previous rulings in Dano.98 The case involved a non-economically active Romanian woman who had moved with her son to live in Germany for a number of years, had been granted a residence certificate of unlimited duration, and was in receipt of certain basic social benefits. She sought to challenge the rejection of her application for a ‘special non-contributory cash benefit’ by relying on the prohibition of discrimination on grounds of nationality in Article 18 TFEU and Article  24 of Directive 2004/38. Article  7 of the Directive, however, also contained provisions stating that economically inactive persons must have sufficient resources in order not to be a burden in the state to which they had moved. The CJEU held that this provision was enforceable against the applicant. She had not met the condition and could not now claim benefits under German law. Thus, in Martínez Sala, Trojani, and Brey, the Court had held that so long as EU citizens were lawfully resident within a host Member State according to national law, they could invoke the EU principle of non-discrimination on grounds of nationality to claim equal access to those social benefits available to nationals purely on the basis of their nationality or residence. By way of contrast, in Dano, the CJEU adopted a stricter reading of Article 24 of the Directive: to claim entitlement to social assistance benefits on an equal footing with nationals under Article  18 TFEU and Article  24 of the Directive, the EU citizen had to be lawfully resident in compliance with the terms of the Directive and not just under the terms of national law. The possession of lawful national residence, as was the case in Martínez Sala and Trojani did not suffice to ground a claim of equal treatment alongside national residents. It was also necessary for the citizen to satisfy the criteria for lawful residence under Directive 2004/38. The decision has been followed in later cases.99 (ii)  The Second Juridical Technique: Grzelczyk and Bidar The judgment in Grzelczyk100 also made reference to the fact that the applicant was lawfully resident in Belgium, but the decision is of interest for the way in which it ‘read 97  See also Case C-140/12 Brey, EU:C:2013:565, [44]–[45]. 98  Case C-333/13 Dano (n 79); D Thym, ‘When Union Citizens Turn into Illegal Migrants: The Dano Case’ (2015) 40 ELRev 249; P Rodière, ‘Quel droit de circulation en Europe pour les personnes inactives et démunies?’ (2015) 218 Journal de droit européen 146. 99  Case C-67/14 Jobcenter Berlin Neukölln v Nazifa Alimanovic, EU:C:2015:597, [49]–[50]; Case C-299/14 Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto, EU:C:2016:114, [36]–[53]; Case C-308/14 European Commission v UK, EU:C:2016:436, [68], [80]. 100  Case C-184/99 Grzelczyk (n 27).

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down’ conditions in other EU legislation that could limit the force of what is now Article 21 TFEU. The applicant was a French national studying in Belgium. He worked part-time during his initial three years of study, but in his fourth year he applied to the CPAS for payment of the minimex, the non-contributory minimum subsistence allowance. The CPAS granted this, but then withdrew it after the Belgian minister decided that Grzelczyk was not entitled to it since he was not a Belgian national. The minimex had been held to be a social advantage for workers within the context of Regulation 1612/68, but the ECJ approached the case on the assumption that the applicant was not a worker. The ECJ, nonetheless, decided that Belgium’s action was contrary to EC law. It ­reasoned that a Belgian student, even though not a worker, who was in the same ­situation as the applicant would get the minimex. The case thus involved nationality ­discrimination and would come under Article 18 TFEU, provided that it came in the scope of application of the Treaty. It was, therefore, necessary to read Article 18 in conjunction with the Treaty provisions on citizenship to determine its sphere of a­ pplication. The Court made clear its approach to those provisions when it stated that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, ­enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly p ­ rovided for’.101 It drew on Martínez Sala for the proposition that an EU citizen l­ awfully resident in the territory of a host Member State could rely on Article 18 TFEU in all situations that fell within the scope ratione materiae of EU law. This included the ­exercise of the fundamental freedoms guaranteed by the Treaty, and the exercise of the right to move and reside freely in another Member State, as conferred by Article 21 TFEU. The ECJ then considered the fact that the right to reside and move conferred by Article 21 was subject to limits and conditions laid down by the Treaty and measures adopted to give it effect. This was relevant since Directive 93/96102 required that students who were nationals of a different Member State had to show that they had sufficient resources to avoid becoming a burden on the social assistance system of the host Member State. This would seem to be a condition that would limit the application of Article 21 in this case, but the ECJ avoided this conclusion by reading the Directive narrowly.103 It held that the Directive did not require resources of a specific amount, nor that those resources should be evidenced by particular documents.104 The ECJ concluded that while a Member State might take the view that a student who had recourse to social assistance no longer fulfilled the conditions for a lawful right to reside established by the Directive, it could not take this view automatically in every 101  Ibid [31]. 102  Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students [1993] OJ L317/59. 103  Case C-184/99 Grzelczyk (n 27) [38]–[46]. 104  The ECJ distinguished Dir 93/96, from Dir 90/364, saying that the latter did indicate the minimum level of income that persons must have to avail themselves of the Dir, ibid [41]. This explains why the ECJ in Case C-456/02 Trojani (n 25) did not feel able to decide the case on the basis of what is now Art 21 TFEU.

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case, more especially because the Directive did not prevent a student from receiving social security benefits. The applicant’s right to reside under Article 21 was not, therefore, limited by other EU legislation and hence the discriminatory Belgian provision was caught by Article 18 TFEU. The juridical technique exemplified by Grzelczyk can, however, place real strains on the normal canons of statutory interpretation, even when judged by the interpretive methodology used by the EU Courts. This is evident from Bidar.105 The ECJ’s judgment is a blend of the second and third of the juridical techniques set out earlier, but it is use of the former that was controversial. The applicant was a French national who had been resident in the UK since 1998 in order to accompany his mother who was undergoing medical treatment. Bidar began a university course, received assistance with tuition fees from the UK government, but was refused a student loan because he was not settled in the UK as required by the UK rules. He claimed that this refusal was contrary to what is now Article 18 TFEU. The key issue was whether any ­discrimination fell within the scope of application of the Treaty for the purposes of Article 18. The ECJ stated that the scope of application of the Treaty for the purposes of Article 18 had to be assessed in conjunction with the Treaty provisions on citizenship, and repeated the ‘Grzelczyk principle’ that citizenship was destined to be the fundamental status of Member State nationals. A citizen of the EU who was lawfully resident in the host state could rely on Article  18 in all situations that fell within the scope ratione materiae of EU law. Those situations included the exercise of the fundamental freedoms guaranteed by the Treaty, and the exercise of the right to move and reside conferred by Article 21. The prior case law that held maintenance grants and the like to be outside the scope of the Treaty106 was said to have been overtaken by subsequent Treaty developments, notably the introduction of the citizenship provisions and those dealing with education and vocational training. The ECJ provided little by way of detailed justification as to why these developments should be taken to have undermined the prior case law. The mere fact that the EU has some limited competence in the field of education tells one little about whether the provision of maintenance grants falls within the scope of application of the Treaty. This is more especially so, given that the prevailing EU legislation and that about to come into effect, excluded the provision of such assistance. The way in which the Court dealt with both reveals the strains that its teleology placed on normal canons of statutory construction. The then current rules were embodied in Directive 93/96, Article 3 of which specifically stated that the Directive did not establish any right for a student to receive a maintenance grant from the host state. The defendant, supported by other intervening states and the Commission, not unnaturally argued that this constituted a limitation on the consequences of the right to reside for the purposes of Article  21, with the ­corollary that such grants were outside the scope of the Treaty.

105  Case C-209/03 Bidar (n 81).

106  Case 39/86 Lair (n 74); Case 197/86 Brown (n 75).

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The ECJ’s response was brief and unconvincing.107 It held that while a student could not base any right to maintenance on Directive 93/96, this did not preclude a student who, by virtue of Article 21 combined with Directive 90/364, was lawfully resident in a Member State from relying on Article 18 TFEU. This ‘evasion’ of the limitation in Directive 93/96 does not withstand examination. It was this Directive that regulated the position of a person qua student who resided in another Member State and defined the rules about grants. It expressly stated that such residence gave rise to no right to maintenance payment. On any normal reading, this constituted a limitation of the consequences of the right to reside for the purposes of Article 21 TFEU. The rules about maintenance grants are now embodied in the Citizenship Directive,108 which came into effect in April 2006. Article 24(1) enshrines a general right to equal treatment for Union citizens residing on the basis of the Directive, subject to such ­specific provisions as might be found in the Treaty and secondary law. Article 24(2) is an express derogation from Article 24(1) and states that the host state is not obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting of student grants or loans to persons other than workers, the self-employed, persons who retain such status, and members of their families. Notwithstanding this wording, the ECJ read this provision as reinforcing its conclusion that Treaty developments in relation to education and citizenship justified its ­finding that maintenance grants and loans were within the scope of application of the Treaty. It said that Article 24(2) defined the content of Article 24(1) in more detail and that by so doing the EU legislature had taken the view that the grant of such aid was within the scope of the Treaty.109 This is not in accord with the language and meaning of Article 24. The natural reading of Article 24 taken as a whole is that it preserves the status quo ante, in the sense that it expressly provides that equal treatment does not extend to student grants and loans. It is difficult to see how the EU legislature could have expressed this more clearly. Article 24(2) is explicitly cast as a derogation from Article 24(1). It does not show that the grant of such assistance is within the scope of application of the Treaty. It shows exactly the opposite. Indeed the ultimate logic of the Court’s reasoning would be the decidedly odd proposition that any provision of EU law, primary or secondary, which contained an exception or derogation limiting its scope would be held to support the conclusion that the subject matter of the exception was nonetheless in the scope of application of the Treaty.110

107  Case C-209/03 Bidar (n 81) [45]–[46]. 108  Dir 2004/38 (n 30). 109  Case C-209/03 Bidar (n 81) [43]. Compare however Case C-233/14 European Commission v Netherlands, EU:C:2016:396. 110  The ECJ accepted that it was legitimate for a Member State to make assistance for maintenance costs dependent on the student showing a certain degree of integration with the host state, but found that the UK rules prevented a student such as the applicant from showing such integration, ibid [54]–[63].

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(iii)  The Third Juridical Technique: Zambrano and McCarthy The ECJ has also extended the reach of the citizenship provisions by giving a broad reading to the right to move and reside for the purposes of Articles 20 and 21 TFEU. The traditional position has been that purely internal situations do not come within the scope of the Treaties. The ECJ’s jurisprudence on citizenship has cast doubt on the scope of this limitation.111 The case of Zambrano involved the non-EU parents of two EU-citizen children born and resident in Belgium, who had never left that Member State.112 Eight Member States argued that the situation should be characterized as ‘wholly internal’, such that EU law on citizenship was not applicable. Advocate General Sharpston argued that EU citizenship was not integrally bound up with movement between Member States, and was willing to disaggregate the right to reside and the right to move. The ECJ held in a very brief judgment that Article  20 TFEU precluded national measures which deprived EU citizens ‘of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’.113 The refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children were nationals and resided, and also a refusal to grant such a person a work permit, had such an effect.114 This was because such a refusal would mean that the children who were EU citizens would have to leave the EU with their parents. This would also follow if the EU did not grant the parent a work permit, since he could not then provide for his family. The case has potentially wideranging implications for national migration policy. The precise scope of the ruling is, however, not free from doubt, and has been qualified by subsequent cases. Thus, in McCarthy the ECJ rejected the claim of an EU citizen with Irish and British nationality, who had only ever lived in the UK, of a right of residence deriving from EU law.115 She sought this right of residence as an EU citizen under the Treaty, or under Directive 2004/38, so that her husband, a Jamaican national, would enjoy derived residence rights. The ECJ rejected her claim under Directive 2004/38 and Article 21 of the Treaty. The Court ruled that Article 3(1) of Directive 2004/38 was not applicable to an EU citizen who had never exercised her right to freedom of movement and who had always resided in a Member State of which she was a national. The ECJ held that the fact that McCarthy had never exercised her right to freedom of movement did not in itself mean that she was in a wholly internal situation as far as the Treaty was concerned. It followed its ruling in Zambrano, to the effect that Article 20 TFEU precluded national measures that deprived EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status, even where they were nationals of the Member State in question and had never exercised free movement rights.116 However, the ECJ distinguished McCarthy on its facts from Zambrano. It concluded that UK law in McCarthy did not, by contrast with Zambrano, oblige her

111  Craig and de Búrca (n 8) Ch 23. 112  Case C-34/09 Zambrano (n 82). 113  Ibid [42]. 114  Ibid [43]. 115  Case C-434/09 McCarthy v Home Secretary, EU:C:2011:277. 116  Ibid [47].

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to leave the territory of the EU, nor was it likely to impede exercise of her freedom of movement in the future. The Court continued to limit the force of Zambrano in some later cases. It emphasized that the citizenship provisions do not confer autonomous rights on third country nationals. Any such rights are derived, in the sense that they are only applicable if the refusal to grant them would place in jeopardy the rights of the Union citizen.117 The  ruling, nonetheless, continues to pose difficulties concerning the scope of the exception whereby EU law does not apply to a wholly internal situation.118 (iv)  The Fourth Juridical Technique: Collins The final juridical technique in the case law on Article 18 and citizenship is exemplified by Collins.119 The applicant, an Irish national looking for work in the UK, contended that the requirement in UK legislation that a person claiming a jobseeker’s allowance must be habitually resident in the UK was contrary to the principle of equal treatment. It was clear from existing case law that those seeking work came within Article 45 TFEU, and were entitled to equal treatment in relation to access to employment, albeit not in relation to social and tax advantages, but the provisions dealing with access to employment in Regulation 1612/68120 said nothing expressly about financial benefits. The ECJ stated that these provisions must, however, be read in the light of what is now Article 18 TFEU and the Treaty articles on citizenship. It reiterated the Grzelczyk principle about EU citizenship becoming the fundamental status of Union citizens, with the correlative proscription of discrimination on grounds of nationality.121 When construed in this light, the ECJ concluded that it was no longer possible to exclude from the scope of Articles 18 and 45(2) a financial benefit that was intended to facilitate access to employment in the labour market. The UK legislation, although based on residence, was indirectly discriminatory, but the Court accepted that it could be objectively justified, provided that it did not go beyond what was necessary to attain the underlying objective.

(G) Conclusion The jurisprudence on Article 18 and the citizenship provisions throws into sharp relief the Court’s role in the interpretation of broadly framed Treaty provisions and the ­interplay between the EU Courts and EU legislature in the development of this area of the law. Article  12 in conjunction with the citizenship provisions has been used to break down the pre-existing dichotomy between free movement qua worker and free

117  Case C-256/11 Dereci [2011] ECR I-11315; Case C-87/12 Ymeraga, EU:C:2013:291; Case C-304/14 Secretary of State for the Home Department v CS, EU:C:2016:674, [21]–[33]; Case C-165/14 Rendón Marín v Administración del Estado, EU:C:2016:675, [69]–[75]; Case C-133/15 H C Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank, EU:C:2017:354. 118  Craig and de Búrca (n 8) Ch 23. 119  Case C-138/02 Collins (n 22). 120  Council Regulation 1612/68 (n 30) Arts 2, 5. 121  Case C-138/02 Collins (n 22) [61].

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­movement qua citizen. The corollary has been greater emphasis on the social, as opposed to the economic, rationale for free movement. This is not controversial in and of itself. It is indeed the very raison d’être of the citizenship provisions in the Treaty and also underlies the Citizenship Directive. It is, however, equally clear that the Treaty provisions, while according greater rights to citizens qua citizens, are explicitly premised on the assumption the citizen’s right to move and reside are subject to limits and conditions derived from the Treaty and EU legislation. The issue is how far rules that distinguish between nationals of the host state, and other Member State nationals who are not workers, should be allowed to persist in relation to matters such as the payment of benefits, grants, and the like. The contentious nature of the issue is readily apparent from the observations submitted to the Court. Thus, for example, in Grzelczyk122 the Belgian, French, Danish, and UK governments all submitted arguments that were strongly opposed to the conclusion reached by the ECJ. While the detailed arguments differed, the common thread was that the discrimination fell outside the scope of the Treaty and hence Article 18 was inapplicable, that Article 18 read together with Articles 20 and 21 TFEU should not be interpreted such as to accord Union citizens greater rights than those conferred in more specific Treaty articles and Union legislation, and that the citizenship provisions should not be used to sidestep limits on rights contained in EU legislation. Similar arguments were made in the other cases considered earlier. The Court’s willingness to persist in the face of this opposition bears testimony to the importance that it attaches to the idea that Union citizenship should be the fundamental status of Member State nationals, with the consequence that those who are in the same situation enjoy the same treatment irrespective of their nationality, subject to such exceptions as are expressly provided for. This telos underpinned and drove the more detailed legal analysis, and the Court was not inclined to find that an exception existed. The juridical techniques discussed earlier were the tools used to achieve this objective. There is clearly room for differing views in this domain. Some might feel that the case law running from Martínez Sala to Bidar is warranted either as a justifiable reading of the Treaty text, or because of the telos underlying this jurisprudence, or from an admixture of both arguments. On this view, any difficulties in the judicial reasoning when judged from a textual perspective might be regarded as warranted given the importance of the outcome sought by the Court. A more cautious view is, however, possible. The content of the desired telos must be determined in part at least from the relevant Treaty articles. These tell us that the Member States were willing to accord greater rights to citizens qua citizens, but they make it equally clear that this is subject to limits and conditions to be found elsewhere in the Treaty or EU legislation. These limits and conditions speak to the degree of ‘social solidarity’ that the Member States have been willing to accept between their

122  Case C-184/99 Grzelczyk (n 27).

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own nationals and other EU nationals who are not workers. It should, moreover, be recognized that while the Citizenship Directive improved the rights accorded to citizens, it retained distinctions between the position of citizens and workers and reiterated a number of the limits on benefits that existed in previous EU legislation. It has, however, been increasingly difficult for Member States to rely on such limits or conditions. The Court employed the juridical technique from Martínez Sala/Trojani and concluded that since the applicant was lawfully resident under Member State law there was no need to rely on Article 21 and hence any limits in other Treaty articles or EU legislation were irrelevant. The Court also deployed the juridical technique in Grzelczyk/Bidar, and read down any limits to the Article 21 right to move and reside. The ECJ also gave an expansive interpretation to the right to move and reside as in Zambrano, and in Collins it reinterpreted the consequences that flowed from, for example, Article 45 in the light of the citizenship provisions. There is, by way of counterpoise, indication in cases such as Dano, McCarthy, and Dereci of the Court pulling back from some of the broader implications of its earlier case law, mindful of the social and financial consequences of citizenship and free movement for Member States. There is no doubt that the subject matter in this area raises difficult issues concerning the boundaries of social solidarity in the EU.123

4  Common Policies, Equal Treatment, and Constraints on Regulation (A)  The Regulatory Role of Equal Treatment The discussion thus far has been concerned with equal treatment and nationality. We have seen that non-discrimination in relation to nationality is central to the economic ideal of a single market in which there is a level playing field allowing the free interplay of market forces with the aim of moving closer to the optimum allocation of resources for the EU. It also serves broader social goals relating to the creation of a community 123  S O’Leary, ‘Nationality Law and Community Citizenship: A Tale of Two Uneasy Bedfellows’ (1992) 12 YBEL 353; S O’Leary, ‘Putting Flesh on the Bones of European Union Citizenship’ (1999) 24 ELRev 68; R White, ‘Free Movement, Equal Treatment and Citizenship of the Union’ (2005) 54 ICLQ 885; C Barnard, ‘EU Citizenship and the Principle of Solidarity’ in M Dougan and E Spaventa (eds), Social Welfare and EU Law (Hart, 2005) Ch 8; A Pieter van der Mei, ‘EU Law and Education: Promotion of Student Mobility versus Protection of Education Systems’ in Dougan and Spaventa, ibid Ch 10; M Dougan, ‘Fees, Grants, Loans and Dole Cheques: Who Covers the Costs of Migrant Education within the EU’ (2005) 42 CMLRev 943; J Mather, ‘The Court of Justice and the Union Citizen’ (2005) 11 ELJ 722; K Hailbronner, ‘Union Citizenship and Access to Social Benefits’ (2005) 42 CMLRev 1245; M Dougan, ‘The Constitutional Dimension to the Case Law on Union Citizenship’ (2006) 31 ELRev 613; D Kochenov ‘The Right to Have What Rights?’ (2013) 19 ELJ 502; A Tryfonidou, ‘Redefining the Outer Boundaries of EU Law: The Zambrano, McCarthy and Dereci Trilogy’ (2012) 18 EPL 493; S Iglesias Sanchez, ‘Fundamental Rights and Citizenship of the Union at a Crossroads’ (2014) 20 ELJ 464; H Van Eijken, EU Citizenship and the Constitutionalization of the European Union (Europa Law Publishing, 2015).

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among the Member States of the Union, this being evident in the case law and ­legislation on workers and even more so in the jurisprudence on citizenship. There are, however, areas where the normal market mechanisms do not apply or are heavily qualified. The principle of non-discrimination performs what More aptly terms a regulatory role in these areas, in that it constrains the regulatory choices that can be made by the administration.124 This was particularly evident in the European Coal and Steel Community (ECSC), where the governing institutions set or influenced many decisions relating to pricing and output. These decisions were subject to the principle of non-discrimination.125 The ECJ made clear in its early jurisprudence that it adhered to the basic Aristotelian concept of discrimination, holding that discrimination could exist where either ­comparable situations were treated differently, or where dissimilar situations received comparable treatment.126 The most prominent examples of interventionist economic policy in the EU are the common policies, most notably the Common Agricultural Policy (CAP) where prices and output have been set or strongly influenced by EU regulations.127 The proscription of discrimination should be viewed against the more general Treaty articles concerning the CAP, since it is only by doing so that its role can be adequately understood. Article 39 TFEU is the foundational provision of the CAP. It is of a broad discretionary nature and sets out a range of general objectives to be served by the CAP. They include increase in agricultural productivity, with the object of ensuring a fair standard of living for the agricultural community; the stabilization of markets; assuring the availability of supplies; and reasonable prices for consumers. These objectives can clash with each other.128 The Commission and Council, therefore, have to make difficult discretionary choices. Whether the resultant choices discriminate between producers may be contentious. The ECJ has accepted that the EU institutions have considerable choice as to how to balance these objectives.129 The principle of non-discrimination must, therefore, be viewed against this background. Article 40(2) TFEU provides that, The common organisation established in accordance with paragraph 1 may include all measures required to attain the objectives set out in Article  39, in particular regulation of  prices, aids for the production and marketing of the various products, storage and ­carryover arrangements and common machinery for stabilising imports or exports. 124  G More, ‘The Principle of Equal Treatment: From Market Unifier to Fundamental Right’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999) 530–5. 125  Arts 3(b), 4(b), 60(1), and 70(1) ECSC. 126  Case 14/59 Sociétés des fonderies de Pont-á-Mousson v High Authority [1959] ECR 215; Cases 7 and 9/54 Groupement des industries sidérurgiques Luxembourgeoises v High Authority [1955–6] ECR 53; Cases 8/55 Fédération charbonnière de Belgique v High Authority [1954–6] ECR 292. 127  See Ch 4 for discussion of the regime of shared administration that pertains in this area. 128  Case 34/62 Germany v Commission [1963] ECR 131; Case 5/67 Beus v Hauptzollamt München [1968] ECR 83. 129  Cases 197–200, 243, 245 and 247/80 Ludwigshafener Walzmühle Erling KG v Council [1981] ECR 3211; Case 8/82 KG in der Firma Hans-Otto Wagner GmbH Agrarhandel v Bundesanstalt für Landwirtschaftliche Marktordnung [1983] ECR 371; Case 283/83 Firma A Racke v Hauptzollamt Mainz [1984] ECR 3791.

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The common organisation shall be limited to pursuit of the objectives set out in Article 39 and shall exclude any discrimination between producers or consumers within the Union. Any common price policy shall be based on common criteria and uniform methods of calculation.

A necessary condition for an applicant to invoke successfully the principle of nondiscrimination in Article 40(2) is that it is in a comparable situation to that of another producer or consumer and is being treated differently, or that it is in a different ­situation and is being treated in the same manner. Comparability is a necessary, but not sufficient, condition for successful invocation of Article 40(2). The applicant will also have to rebut arguments concerning objective justification. Thus the defendant, normally the Commission and/or the Council, may argue that the differential treatment was objectively justified in order to attain one of the objectives in Article 39. We should, however, bear in mind Schwarze’s cautionary note in this respect.130 Thus in some decisions the starting point has been a purely formal consideration of the relationship between the objects being compared, in order to test, on the basis of objective criteria, whether the objects in question are ‘like’ or ‘unlike’. Other decisions, in contrast, have not initially considered the compared objects themselves at all, but have immediately looked at the question whether the equal or unequal treatment complained of is ‘objectively justified’.

(B) Comparability and Objective Justification: Ruckdeschel and Royal Scholten-Honig The interplay between comparability and objective justification can be seen in leading cases that arose for determination early in the ECJ’s jurisprudence.131 In Ruckdeschel132 the applicants contested Community Regulations concerning production refunds for the manufacture of products derived from maize. They argued that the Regulations should be annulled because they did not grant the same refund when maize was used for the manufacture of quellmehl as when it was used to make starch. The production refund for quellmehl had been abolished, while that for starch had been maintained, and the applicants claimed that this constituted discrimination contrary to what is now Article 40(2). The original rationale for granting refunds was that quellmehl and starch were interchangeable. The premise underlying the Regulation

130  J Schwarze, European Administrative Law (Office for Official Publications of the European Communities and Sweet & Maxwell, 1992) 563–4. 131  See also Case 13/63 Italian Republic v Commission [1963] ECR 165; Case 79/77 Firma Kühlhaus Zentrum AG v Hauptzollamt Hamburg-Harburg [1978] ECR 611; Case 230/78 Eridania-Zuccherifici nazionali v Ministre de l’Agriculture et des Forêts [1979] ECR 2749; Case 8/82 Wagner v BALM [1983] ECR 371; Case C-150/95 Portugal v Commission [1997] ECR I-5863; Case C-127/07 Société Arcelor Atlantique et Lorraine and Others v Premier ministre and others [2008] ECR I-9895. 132  Cases 117/76 and 16/77 Ruckdeschel (n 2).

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that withdrew the refund for quellmehl was that the possibility of substituting the ­former for the latter was felt to be ‘economically slight, if not non-existent’.133 The ECJ noted that the wording of Article 40(2) prohibited discrimination between producers of the same product, but did not specifically address the relationship between different industrial or trade sectors in the sphere of processed agricultural products. It, nonetheless, held that the prohibition of discrimination was ‘merely a specific enunciation of the general principle of equality which is one of the fundamental principles of Community law’.134 This required that ‘similar situations shall not be treated differently unless differentiation is objectively justified’.135 The ECJ then considered whether the products could be regarded as comparable and held in favour of the applicants, because the Council and Commission had produced no new technical or economic data to substantiate their view that the products should no longer be regarded as interchangeable, given that previous Regulations had been premised on the assumption that they were substitutes. The ECJ then considered whether the contested Regulations could be objectively justified. The defendants argued that the abolition of the refund was justified because quellmehl was no longer used for human consumption, but rather for animal feed. The ECJ rejected this defence, stating that the Council and Commission had produced no evidence for this and that even if such evidence existed it would only have justified removal of the refund in respect of the quantities of quellmehl put to such use. The Regulations therefore breached the principle of non-discrimination. The interplay between comparability and objective justification is apparent once again in Royal Scholten-Honig.136 The applicants were producers of isoglucose, which was a sweetener produced from starch. They contested the legality of Regulations imposing a production levy. The rationale for the levy was that isoglucose was regarded as a substitute for sugar, and sugar producers were subject to a production levy in order to reduce the sugar surplus on the Community market. The ECJ accepted that isoglucose and sugar were comparable in liquid form, and that it would be wrong for the former to have a competitive advantage over the latter. It noted, however, that the production levy imposed on isoglucose manufacturers affected their entire production, whereas the levy on sugar manufacturers was calculated on only part of their production. It was, therefore, prima facie discriminatory. The Council and Commission contended that there was objective justification for the difference, because isoglucose was not subject to the same production constraints as sugar and because the charges borne by isoglucose manufacturers were comparable to those of sugar producers. The ECJ rejected this defence because the reality was that 60 per cent of the production levy was in fact borne by sugar beet growers, not the manufacturers, and because it was open to sugar manufacturers to reduce the ­incidence

133  Ibid [6]. 134  Ibid [7]. 135  Ibid [7]. 136 Cases 103 and 145/77 Royal Scholten-Honig v Intervention Board for Agricultural Produce [1978] ECR 2037.

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of the levy by reducing production, whereas this was not so readily open to isoglucose producers, given the way in which their levy was calculated.

(C)  Comparability, Objective Justification, and Arbitrariness It is common when reading the case law in this area to find reference to arbitrariness. Schwarze rightly points out that the concept is used in relation to the initial ­determination of comparability and to the requirement of objective justification.137 The role played by the concept in these areas differs. The ECJ’s reference to arbitrariness when discussing comparability is to reinforce the requirement that comparability be determined objectively. The ECJ has repeatedly emphasized the need for there to be objective differences between producers or consumers in order to warrant differential treatment, and it has on occasion reinforced this by stating that a decision would be arbitrary if there were no such objective ­differences.138 Thus, in an early case dealing with the ECSC, Groupement des Hauts Fourneaux,139 the ECJ stated that equality of treatment concerning economic rules did not prevent different prices being fixed in accord with the particular situation of consumers, provided that this corresponded to a difference in the situation of such persons. If there was no objectively established basis for the distinction, it would be ‘arbitrary, discriminatory and illegal’.140 It did not follow that economic rules were ­discriminatory or unfair, where the differential treatment flowed from the different operating conditions of those affected. Moreover, the fact that the relevant rules gave the undertakings some discretion did not mean that the criterion for distinguishing between them lost its objective nature and hence was arbitrary, since the resulting ­factual differences stemmed from their dissimilar operating conditions, and not from any legal inequality inherent in the contested decision.141 The concept of arbitrariness when used in relation to objective justification will often function in a conclusory fashion, denoting the Court’s finding that there was no such justification for a measure that was prima facie discriminatory.142 In similar vein, the Court concluded that where there was such justification the measure would not be arbitrary. Denkavit143 exemplifies this usage of arbitrariness. The German government r­ evalued the German mark, which led to losses of income for German agriculture. A Council Regulation, passed in the light of this revaluation, provided that aid up to a certain amount would be compatible with the common market, and Germany enacted a law whereby compensation was given to agricultural undertakings through a reduction in

137  Schwarze (n 130) 574–5. 138  See, eg, Case 16/61 Acciaieriere Ferriere e Fonerie di Modena v High Authority [1962] ECR 289, 306; Case 230/78 Eridania (n 131) [18]; Case 8/82 Wagner (n 131) [19]–[21]. 139  Case 8/57 Groupement des Hauts Fourneaux et Aciéries Belges v High Authority [1957–8] ECR 245. 140  Ibid 256. 141  Ibid 257. 142  See, eg, Case 106/81 Julius Kind AG v EEC [1982] ECR 2885, [22]. 143  Case 139/77 Denkavit Futtermittel GmbH v Finanzamt Warendorf [1978] ECR 1317.

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the turnover tax that would otherwise have been payable. The applicant argued that the term agricultural producer within the Council Regulation should include industrial breeders of livestock as defined by German tax law, as well as agricultural livestock breeders, and that any differential treatment between the two groups was d ­ iscriminatory. The ECJ held that what is now Article  39 TFEU did not exclude the possibility of  ­differential treatment between various agricultural sectors, provided that they were  based on objective criteria and were not arbitrary. It followed that although Article 40(2) prohibited discrimination between producers, differential treatment constituted discrimination only if it was arbitrary. This was not so here because there was an ­objective justification for the differential treatment, since agricultural livestock breeders used their own fodder and were therefore subject to the risks inherent in working the land. This was not the case for industrial livestock breeders, who bought their animal feed on national or international markets. They could, therefore, when the currency was revalued, obtain such feed from abroad at advantageous prices.144 There are, however, cases where arbitrariness plays a more meaningful, substantive role in its own right. In these cases, it is indicative of the intensity of review that will be applied to CAP measures, more especially when they are adopted in situations where time is of the essence. We have already seen that the EU Courts tend to apply relatively low-intensity review to discretionary determinations made under the CAP.145 This is reflected in the approach to claims based on discrimination. Judicial use of the term arbitrary betokens the type of error that the applicant must prove in order to succeed. Thus in Merkur,146 the applicant alleged discrimination because monetary compensation amounts (MCAs) had not been fixed for its products. These MCAs were designed to compensate for exchange-rate movements where they would lead to disturbances in trade in agricultural products. The ECJ held that the differential treatment would not violate the principle of non-discrimination unless it was arbitrary.147 It was clearly influenced in reaching this conclusion by the fact that the regime for MCAs was designed to cope with an emergency situation and that it had to be applied to a broad range of products within tight time limits. The fact that some decisions might appear in hindsight to be debatable in economic terms did not suffice to prove discrimination and the Court would intervene only if the determination was manifestly erroneous.148 The same approach is evident in other cases, such as Wuidart,149 where the ECJ held that judicial review for compliance with the principle of non-discrimination must take account of the fact that in matters concerning the CAP, the Community legislature had a broad discretion imposed on it by the relevant Treaty articles, and that where it was obliged to assess the future effect of rules which could not be accurately foreseen, its assessment would only be open to criticism if it was manifestly incorrect in the light of the information available when the rules were adopted. 144  Ibid [16]–[17]. 145  Ch 15. 146  Case 43/72 Merkur GmbH & Co KG v Commission [1973] ECR 1055; Case 49/79 Pool v Council [1980] ECR 569; Case 281/82 Unifrex v Commission and Council [1984] ECR 1969. 147  Ibid [22]. 148  Ibid [24]. 149  Cases 267–285/88 Wuidart v Laiterie coopérative eupenoise société coopérative [1990] ECR I-435.

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(D) Conclusion It is not easy for the applicant to win in this area. Claims often fail either because the Union Courts find that there is no comparability between the applicant and another party, or because the differential treatment is objectively justified. The difficulties faced by applicants are exacerbated by the low-intensity review and by the fact that attainment of an integrated market may well require differential treatment of previously compartmentalized markets.150 Thus as Barents states, ‘the overriding objective of market integration and common management allows for a considerable difference in treatment of operators’.151 This necessarily limits the regulatory role played by ­equality within this area. It will be interesting to see whether the changing nature of the CAP, with the shift away from price support to income support, leads to modification in the judicial approach.

5  Article 157, Sex Discrimination, and Equal Treatment (A)  Economic and Social Rationales The discussion thus far has been concerned with discrimination on grounds of nationality within the four freedoms and in the context of Article 18 TFEU, and with the role played by equal treatment in the context of common policies. The focus now turns to sex discrimination. This is a complex topic in its own right and it is not possible within the confines of this chapter to give more than an overview of some of the central issues in this area. Sex discrimination is part of social policy. The scope of the EU’s competence evolved over time,152 and the extent to which it should have competence remains contested. The principal issue is how far EU involvement in social policy, including sex discrimination, should be rationalized in market-oriented terms and how far it should be perceived as having a social dimension independent thereof. Thus as Bell states,153 Two theoretical models of European social policy may be identified. First, there is the ­market integration model which prescribes a limited social policy for the European Union. This is predicated on the assumption that the primary goal of the Union is to achieve

150 Case 153/73 Holtz & Willemsen v Council [1974] ECR 675; Case 2/77 Hoffman’s Stärkefabriken v  Hauptzollamt Bielefeld [1977] ECR 1375; Case C-280/93 Germany v Council [1994] ECR I-5039, [74]; Case C-56/94 SCAC v Associazione dei Produttori Ortofrutticoli [1995] ECR I-1769; Case C-150/95 Portugal v Commission [1997] ECR I-5863. 151 R Barents, ‘Recent Developments in Community Case Law in the Field of Agriculture’ (1997) 34 CMLRev 811, 842. 152  C Barnard, ‘EU Social Policy, From Employment Law to Labour Market Reform’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 2nd edn, 2011) Ch 21. 153  M Bell, Anti-Discrimination Law and the European Union (Oxford University Press, 2002) 6–7. Italics in the original.

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e­ conomic integration. Therefore the EU only intervenes in the social sphere when this is required to support and sustain the smooth functioning of the common market. Essentially this is a model for a social policy dependent on the economics of European integration. Alternatively, there is a model of social policy as an independent policy objective for the EU, foreseeing a social policy as vibrant and autonomous as the Union’s activities in the economic sphere. This is centred around a role for the Union as a guarantor of fundamental social rights and may be described as the social citizenship model. It is within these policy frameworks that EU anti-discrimination law has developed.

The market-integration model is exemplified by the rationale for what is now Article 157 TFEU. It is generally accepted that this Article was included in the original Treaty primarily to meet French fears that its goods would be disadvantaged as compared to those produced in other Member States, since France had more stringent rules on equal pay for men and women and felt that this might make its goods more expensive, and hence less competitive, if other Member States were not subject to the same constraints.154 The original rationale for Article 157 was therefore primarily market-oriented, although the ECJ emphasized the social dimension in its jurisprudence. The market-integration model was driven more generally by fears of social dumping, whereby those economies with low social standards would gain an unfair competitive advantage. The reality of this fear might well be questioned,155 but perception of social dumping as giving some economies an illegitimate competitive advantage has been a recurring one within the EU. The market-integration model also served as the foundation for the Court’s jurisprudence under Article  106 TFEU, limiting the Member States’ ability to maintain state monopolies in areas such as employment placement services and the supply of labour,156 although in later case law the Court has been more willing to accept that there is a defensible reason for the special rights accorded to the state entity.157 The social citizenship model, by way of contrast, denies that social policy should be seen simply as supplementing economic integration, and ‘prescribes for the EU a role as the guarantor of fundamental human and social rights’.158 While there is disagreement as to the precise content of these rights, the core idea is that social policy should not be perceived as necessarily linked to the ‘market citizen’.159 The aspirations of

154  Barnard (n 152). 155 S Deakin and F Wilkinson, ‘Rights vs Efficiency? The Economic Case for Transnational Labour Standards’ (1994) 23 ILJ 289. 156  Case C-179/90 Merci Convenzionali Porto di Genova SpA v Siderurgica Gabrielli SpA [1991] ECR I-5889; Case C-41/90 Höfner and Elser v Macrotron GmbH [1991] ECR I-1979; Case C-55/96 Job Centre coop arl [1997] ECR I-7119; Case C-258/98 Criminal Proceedings against Carra [2000] ECR I-4217. 157  Case C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-5751; Cases 147–148/97 Deutsche Post AG v Gesellschaft fur Zahlungssyteme mbH and Citicorp Kartenservice GmbH [2000] ECR I-825; Case C-340/99 TNT Traco SpA v Poste Italiane SpA [2001] ECR I-4109; Case C-475/99 Ambulanz Glöckner v Landkreis Südwestpfalz [2001] ECR I-8089. 158  Bell (n 153) 12. 159  M Everson, ‘The Legacy of the Market Citizen’ in J Shaw and G More (eds), New Legal Dynamics of the European Union (Oxford University Press, 1995) 73–90.

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a­ dvocates of the social citizenship model have been fuelled by developments such as the recognition by the ECJ that the right not to be discriminated against on grounds of sex was a fundamental human right, the observance of which it would ensure;160 the Social Charter 1989; the expansion of competence in the area of social policy;161 the citizenship provisions analysed earlier;162 the addition of Article 19 TFEU empowering the EU to take action to combat discrimination on a wide variety of grounds; and provisions in the Charter of Fundamental Rights of the European Union.163 There are, however, limits to the foregoing provisions, some of which contain ­important exceptions.164 It is for this reason that Bell remarks that ‘whilst the social citizenship model has evolved as a theoretical alternative to the market integration model, in practice it remains more an aspiration than a reality’.165 We should also be mindful of the relationship between the social citizenship model and precepts of equality and discrimination. A broad reading of discrimination of the kind contained in Article  19 TFEU and Article 21(1) of the Charter would generally be supported by advocates of this model. The social citizenship model is, however, capable of embracing social rights in the field of, for example, labour law that are not concerned with equality as such. The development of equality in the context of social policy has come from an admixture of judicial and legislative intervention, and elements of the market-integration and social-citizenship models can be seen in the case law and legislation. In the ­post-Lisbon world the Charter plays an increasingly prominent role.166

(B)  Equal Pay It was the Courts that gave the initial impetus to gender discrimination and pay,167 and their decisions exemplify the interplay between the economic and social rationales underlying this area of the law. In Defrenne168 the applicant, who was an air hostess, brought an action for ­discrimination against her employer Sabena, because she was paid less than male ­colleagues for the same job. The issue was whether Article 119 EEC, now Article 157 TFEU, should have direct effect. This question should, said the ECJ, be considered in 160  Case 149/77 Defrenne v Société anonyme belge de navigation aérienne (No 3) [1978] ECR 1365, [26]–[27]; Cases 75 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, [16]; Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143, [19]; Case C-25/02 Rinke v Arztekammer Hamburg [2003] ECR I-8349, [25]–[26]. 161  Arts 136, 137 EC. 162  Arts 17–22 EC. 163  [2000] OJ C364/1. 164  Art 153(5) TFEU. 165  Bell (n 153) 15–16. 166  Cases 92–93/09 Volker und Marcus Schecke and Eifert, EU:C:2010:662; Case C-236/09 Association Belge des Consammateurs Test-Achats ASBL v Conseil des Ministres, EU:C:2011:100. 167  S Prechal and N Burrows, Gender Discrimination Law of the European Community (Dartmouth, 1990); T Hervey and D O’Keefe, Sex Equality in the European Union (Wiley, 1996); C Hoskyns, Integrating Gender— Women, Law and Politics in the European Union (Verso, 1996); A Dashwood and S O’Leary, The Principle of Equal Treatment in European Community Law (Sweet & Maxwell, 1997); Bell (n 153); E Ellis and P Watson, EU Anti-Discrimination Law (Oxford University Press, 2nd edn, 2014). 168  Case 43/75 Defrenne v Société anonyme belge de navigation aérienne [1976] ECR 455.

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the light of the ‘nature of the principle of equal pay, the aim of this provision and its place in the scheme of the Treaty’.169 The ECJ held that there were two aims underlying this Article. The market-integration objective was designed ‘to avoid a situation in which undertakings established in States which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra-Community competition as  compared with undertakings established in States which have not yet eliminated ­discrimination against women workers as regards pay’.170 The second aim was social in nature: Article 119 ‘forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasized by the Preamble to the Treaty’.171 This double aim, economic and social, was indicative of the foundational role played by the principle of equal pay.172 This conclusion reinforced the Court’s resolve that Article 157 should have direct effect, notwithstanding the fact that it was couched in general terms and required further elaboration through Community legislation. The ECJ therefore drew a distinction between direct discrimination, which could be identified solely through the criteria of equal work and equal pay referred to by Article 157, and indirect discrimination that could only be identified through more detailed implementing provisions. The Court’s willingness to identify the principle embodied in Article 157 and to hold that direct discrimination that violated this principle could give rise to direct effect, bears testimony to the importance it attached to the social as well as the economic aims of gender equality, more especially given that Community ­legislation to elaborate on this basic precept was slow in coming given the malaise that beset the legislative process at that time. In Schröder173 the ECJ went further, holding that the social objective underlying Article 157 took precedence over the economic. The case was concerned with entitlement to membership of an occupational pension scheme by part-time workers, most of whom were women. If the social aim were accorded priority, then it would be permissible for German law to apply the equal pay principle retroactively so as to permit part-time workers access to such a scheme. If, however, the economic aim were to take priority the opposite result might be reached, since it was argued that by allowing ­retroactive membership of the scheme German firms would be placed at a competitive disadvantage as compared with those in other Member States. The ECJ reiterated the twin objectives of what is now Article 157 TFEU that had been elaborated in Defrenne. It then pointed to subsequent decisions where it had held that the right not to be discriminated against on grounds of sex was a fundamental human right, whose observance the Court had a duty to ensure.174 The ECJ concluded

169  Ibid [7]. 170  Ibid [9]. 171  Ibid [10]. 172  Ibid [12]. 173  Case C-50/96 Deutsche Telekom v Schröder [2000] ECR I-743. 174  Ibid [56], citing Case 149/77 Defrenne III [1978] ECR 1365, [26]–[27], Cases 75 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, [16], and Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143, [19].

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in the light of this that the economic aim of Article 141, namely the elimination of distortions of competition between undertakings established in different Member States, ‘is secondary to the social aim pursued by the same provision, which constitutes the expression of a fundamental human right’.175 The law concerning gender discrimination and pay also exemplifies the interrelationship between judicial and legislative initiatives in developing equality law. The principles concerning equal pay were further elaborated through Directive 75/117.176 This was replaced by Directive 2006/54,177 which has consolidated a number of the equality directives in this area. The substance of Directive 75/117 has however remained largely unaltered. Directive 2006/54 requires the elimination of sex discrimination in pay in cases involving the same work, or work to which equal value is attributed, and to require job-classification schemes to be free from discrimination.178 Member States are required to abolish such discrimination and to ensure that any breach of the equal pay principle in collective agreements or contracts is rendered void or amended. There is a chapter in the consolidating legislation on ‘promotion of equal treatment’, through dialogue with social partners and NGOs and through the establishment of equality bodies, which replaces the previous positive obligation to take appropriate measures to ensure that the equal pay principle is observed.179 Directive 2006/54 also contains more extensive provisions than the earlier Directive on remedies, enforcement, and compliance.180 These provisions incorporate various aspects of the Court’s case law, such as the rule that there can be no prior ceiling on damages,181 that the burden of  proof shifts to the defendant where the plaintiff can establish facts which raise a  ­presumption of direct or indirect discrimination,182 and that penalties must be ­‘effective, proportionate and dissuasive’. It fell to the ECJ to interpret the Treaty and the provisions of the Directives. The ECJ’s general stance was to interpret the Treaty and Directives, procedurally and substantively, so as to ensure that their objectives were fulfilled. The decision in Commission v UK183 exemplifies the procedural dimension of the Court’s approach. The Commission argued that the UK had failed to ensure an a­ dequate 175  Ibid [57]. 176  Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women [1975] OJ L45/19. 177  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23. 178 Case 237/85 Rummler [1986] ECR 2101; S Fredman, ‘EC Discrimination Law: A Critique’ (1992) 21  ILJ  119, 123; Case C-400/93 Royal Copenhagen, Specialarbejderforbundet i Danmark v Dansk Industri [1995] ECR I-1275. 179  Dir 2006/54, Title III, Ch 2. 180  Dir 2006/54, Title II, Chs 1 and 3. 181  Case C-271/91 Marshall v Southampton and South-West Hampshire Area Health Authority (No 2) [1993] ECR I-4367; Case C-180/95 Draehmpaehl v Urania Immobilienservice [1997] ECR I-2195. 182  Case 109/88 Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECR 3199. 183  Case 61/81 Commission v UK [1982] ECR 2601, [9].

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job-classification system for assessing work of equal value. The ECJ ruled that if there was disagreement concerning application of the equal pay principle, a worker should have a right of access to an appropriate authority which could give a binding ruling on whether or not the work had the same value as other work. The Danfoss ruling provides a further example of the way in which judicial ­interpretation of procedure reinforced the practical efficacy of the Directive.184 The employer in this case paid the same basic wage to employees in the same wage group, but also awarded individual pay supplements, which were calculated on the basis of mobility, training, and seniority. Two female employees worked in different wage groups, and within these two groups it was shown that a man’s average wage was higher than that of a woman. The ECJ found that the individual pay supplements were applied in such a way that it was impossible for a woman to identify the reasons for a difference between her pay and that of a man doing the same work. The employees did not know the criteria used in relation to pay supplements, and were therefore unable to compare the various components of their pay with those of their colleagues’ pay in the same wage group. The pay system was in this respect ‘totally lacking in transparency’,185 with the consequence that female employees could establish differences from male employees only in relation to their average pay. The principle of equal pay would, therefore, be deprived of ­effectiveness ‘if the effect of adducing such evidence was not to impose upon the employer the burden of proving that his practice in the matter of wages is not in fact discriminatory’.186 It was for the Member States to make the necessary adjustments to national rules on the burden of proof where these were necessary for the effective implementation of the principle of equality.187 The ECJ thus reversed the normal burden of proof in order to safeguard the efficacy of the principle of equal pay. It did so notwithstanding the fact that a Commission proposal from 1988 for a Directive on reversing the burden of proof in sex discrimination cases had been blocked in the Council.188 It was to take nearly another decade before a directive was successfully enacted.189 The ECJ has also interpreted the substantive reach of the Treaty and Directives in order to ensure that the underlying objectives are secured. Space precludes detailed treatment of this issue. Suffice it to say for the present that it is evident in, for example, the expansive interpretation accorded to the concept of pay.190 It is also apparent in the jurisprudence on indirect discrimination, the outlines of which can be examined here. Such discrimination can occur where the challenged rule has the effect of d ­ isadvantaging a much larger percentage of one sex, even though it is not framed in terms of gender. 184  Case 109/88 Danfoss (n 182); J Shaw, ‘The Burden of Proof and the Legality of Supplementary Payments in Equal Pay Cases’ (1990) 15 ELRev 260; Case 318/86 Commission v France [1988] ECR 3559. 185  Case 109/88 Danfoss (n 182) [11]. 186  Ibid [13]. 187  Ibid [14]. 188  [1988] OJ C176/5. 189  Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex [1998] OJ L14/6. 190  Craig and de Búrca (n 8) Ch 24.

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After earlier doubts, the ECJ made it clear in Jenkins191 that indirect discrimination could fall within what was Article  119 EEC. The applicant was a part-time female employee of Kingsgate, and was paid a lower hourly rate than her full-time male ­colleagues performing the same work. The category of part-time workers was exclusively or predominantly comprised of women, but the defendant argued that the differential rates of pay were the result of distinguishing factors other than gender. The ECJ ruled that differential rates of pay did not per se violate Article 119, provided that those rates were applied to workers belonging to either category without distinction based on sex. There would, therefore, be no breach if the pay differences were attributable to factors that were objectively justified and did not relate to discrimination based on sex.192 This would be the case if the pay differences were intended to encourage full-time work irrespective of the sex of the worker. However, the Court acknowledged that women might find it difficult to work the minimum hours required for full-time work, and ruled that in such circumstances Article 119 could bite if the employer’s pay policy could not be explained by factors other than discrimination based on sex.193 The ­determination of this issue was left to the national court. Subsequent EU legislation affirmed the concept of indirect discrimination.194 In a case such as Jenkins the same task was undertaken by part-time and full-time workers. It is more difficult to sustain a claim of indirect discrimination where the work done by women and men is different and the claim is that the women’s task is undervalued in comparison to that done by men.195 Indirect discrimination is capable of objective justification. The issue is often left to the national court, but the ECJ has nonetheless provided guidance on the matter. The Court’s case law shows that purported justifications cast in abstract, general terms are unlikely to succeed, more especially when they are not backed up by meaningful empirical evidence.196 Its jurisprudence also reveals something close to a proportionality analysis, as exemplified by Bilka.197 The ECJ ruled that exclusion of part-time workers from membership of an occupational pension scheme would be contrary to what is 191  Case 96/80 Jenkins v Kingsgate (Clothing Productions) Ltd [1981] ECR 911. 192  Ibid [11]. 193  Ibid [13]. 194  Dir 97/80 (n 189) Art 2(2) provides that: ‘indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex’. 195  Case 127/92 Enderby v Frenchay Health Authority and the Secretary of State for Health [1993] ECR 5535; Case C-236/98 JämställdhetsOmbudsmannen v Örebro läns landsting [2000] ECR I-2189. 196  Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH [1989] ECR 2743; Case 184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR 297; Case C-243/95 Hill and Stapleton v Revenue Commissioners [1998] ECR I-3739; Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, [71]–[76]. Compare Case C-17/05 Cadman v Health & Safety Executive [2006] ECR I-9583, [33]–[39]. 197  Case 170/84 Bilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607. See also Case 171/88 Rinner-Kühn (n 196); Case 33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR 2591; Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Bötel [1992] ECR I-3589; Case C-457/93 Kuratorium für Dialyse und Nierentransplantation v Lewark [1996] ECR I-243; Case C-278/93 Freers and Speckmann v Deutsche Bundespost [1996] ECR I-1165; Case C-236/98 JämO (n 195) [61]–[62].

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now Article 157 TFEU where the great majority of such workers were women, who would have real difficulties working full-time, and where the exclusion could not be explained by factors that excluded discrimination on grounds of sex. This would not be so if there were some objective justification based on factors unrelated to gender. The employer sought to justify the measure on the ground that it was intended to discourage part-time work, since such workers often refused to work in the late afternoon and on Saturdays. The object was, therefore, to make full-time employment more attractive in order to ensure an adequate workforce during those periods, hence allowing such workers to take part in the pension scheme. The ECJ left it to the national court to determine the plausibility of this explanation, but gave guidance as to how the national court should go about its task. It was for the national court to consider whether the measures chosen by the employer corresponded to a real need on its part, whether they were appropriate with a view to achieving the objectives pursued, and were necessary to attain that end.198 If this inquiry produced an affirmative answer, the fact that the measures affected more women than men was not sufficient to show infringement of Article 157. It should be acknowledged that while the onus of proving objective justification rests on the defendant, it may be difficult for the claimant to rebut the argument advanced, more especially when the justification is cast in terms of the market. Thus the ECJ ruled that the needs of the market might constitute adequate justification, where the increase in pay was attributable to the need to attract suitable candidates to the less popular job.199 Commentators have been justly critical of the way in which the concept of objective justification has been used to defeat claims to indirect discrimination in some cases.200 The ECJ has, however, been willing to look closely at the objective justifications proffered by Member States and employers for practices that are indirectly discriminatory. It has been increasingly less willing to accept purported justifications cast in abstract, general terms and it has subjected justifications that are prima facie plausible to closer scrutiny in terms of the suitability and necessity of the contested measure.201

(C)  Equal Treatment The interrelationship between case law and EU legislation that we saw in the context of equal pay is evident once again in relation to equal treatment. Article 119 EEC specified from its inception equality in pay as between men and women, but it did not, until the Treaty of Amsterdam, refer expressly to equal treatment in terms other than pay. The ECJ in Defrenne II202 was, as seen earlier, willing to interpret Article 119 broadly so as to give it direct effect in relation to pay, and the Court highlighted the economic 198  Case 170/84 Bilka-Kaufhaus (n 197) [36]. 199  Case 127/92 Enderby (n 195). 200  Fredman (n 178) 125; E Szyszczak, ‘L’Espace Social Européenne: Reality, Dreams or Nightmares?’ [1990] German Yearbook of International Law 284, 296. 201  See cases at n 196. 202  Case 43/75 Defrenne (n 168).

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and social aims underlying this Article. There were, however, limits to judicial activism. Thus, in Defrenne III203 the applicant argued that the discriminatory compulsory termination of her employment at the age of 40 was contrary to Article 119 EEC, but the Court ruled that it was not possible to extend the Article to aspects of employment other than pay. This gap was filled by Directive 76/207 on equal treatment,204 and the fact that it was enacted pursuant to Article 308 EC is indicative of uncertainty as to whether it could have been made under any more specific Treaty article. The Directive was designed to ensure equal treatment between men and women in relation to access to employment and promotion, vocational training, and working conditions. It was replaced by Directive 2006/54.205 The general rule is the prohibition of direct and indirect ­discrimination on grounds of sex. Directive 76/207 contained three ‘exceptions’ to this prohibition: an occupational qualification provision, a ‘pregnancy and maternity’ provision, and a positive action provision. Directive 2006/54 now treats only the occupational qualification provision in Article  14(2) as an exception, while the other two provisions are affirmatively expressed. Positive action is now dealt with in Article 3 of Directive 2006/54, which provides that ‘Member States may maintain or adopt measures within the meaning of Article 157(4) of the Treaty with a view to ensuring full equality in practice between men and women in working life’. The earlier provision on protection of women in the event of pregnancy or maternity has been replaced by Article 15 of Directive 2006/54, which provides that a woman on maternity leave is to be entitled to return to equivalent employment on no less favourable terms and to benefit from any improvement in  working conditions to which she would have been entitled during her absence. Article 16 provides that Directive 2006/54 is ‘without prejudice to the right of Member States to recognise distinct rights to paternity and/or adoption leave’. This is not the place for detailed exegesis on the judicial interpretation of the Directives and the exceptions contained therein.206 The remainder of this section will rather focus on two high-profile issues that demonstrate the contested boundaries of the principle of equal treatment. (i)  The Limits of Equal Treatment: Affirmative Action The protection of equality inevitably raises the contentious issue of whether there can be affirmative action in order to remove previous inequalities. There is a rich ­theoretical literature on the legitimacy of affirmative action. Those opposed argue that equality 203  Case 149/77 Defrenne III (n 160). 204  Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/40. 205  Dir 2006/54 (n 177). 206  Case 165/82 Commission v UK [1983] ECR 3431; Case 318/86 Commission v France [1988] ECR 3559; Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651; Case C-273/97 Sirdar v Army Board [1999] ECR I-7403; Case C-285/98 Kreil v Bundesrepublik Deutschland [2000] ECR I-69.

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must be symmetrical, that past wrongs to a group cannot be remedied via measures that disadvantage individuals and that there is a moral equivalence between laws designed to subjugate a race or gender and those that distribute benefits on the basis of race or gender. This critique of affirmative action is, as Fredman notes, based on a particular conception of equality and rests on three basic propositions.207 First, it assumes that justice is defined a priori and applies in all societies regardless of the particular distribution of benefits, historical or social context . . . If discrimination on grounds of gender or race is unjust, it must be unjust whether it creates extra burdens on a group already disadvantaged, or whether it redistributes those burdens to a previously privileged group. Equality must therefore be symmetrical. Secondly, this critique of ­affirmative action assumes the primacy of the individual. Group characteristics such as sex or race must, on this view, always be disregarded in distributing benefits such as jobs or promotion; instead, individuals must be rewarded only on the basis of individual merit. Conversely, burdens should only be allocated on the basis of individual responsibility. Thus individuals may only be treated as responsible for their own actions; they should not be held accountable for more general societal wrongs . . . Finally, this conception of equality asserts that the state should be neutral as between citizens, favouring no-one above any other. Thus official policies giving preferential treatment to women or blacks are evidence of an impermissible partiality on the part of the state.

The assumptions underlying this symmetrical, individualist view of equality are, as Fredman makes clear, highly contestable, and have been opposed by those who advance a substantive, non-individualistic conception of justice and by those who argue from the premise of equal opportunity.208 It is common for courts to decide on the permissible limits of affirmative action. They may or may not be assisted by legislative measures, but even where they exist the courts will have to adjudicate on the meaning of such provisions. In the EU the legislature addressed the issue of affirmative action in Directive 76/207, by stipulating that it was without prejudice to measures to promote equal opportunity for men and women, ‘in particular by removing existing inequalities which affect women’s opportunities’ in the areas covered by the Directive.209 It fell to the EU Courts to decide on the scope of this exception and the decisions were controversial. This was especially so in relation to the ruling in Kalanke.210 The case concerned a German regional law that contained the weakest form of affirmative action, the ‘tiebreak’, such that where candidates of different sexes shortlisted for promotion were equally qualified, priority should be given to women in sectors where they constituted less than half of the staff. The ECJ’s conclusion was shaped by the fact that it viewed Article 2(4) of Directive 76/207 as ‘derogating’ from the right to equal treatment, the consequence being that it should be strictly interpreted. This tendentious premise 207  S Fredman, ‘Affirmative Action and the Court of Justice: A Critical Analysis’ in J Shaw (ed), Social Law and Policy in an Evolving European Union (Hart, 2000) 172–3. 208  Ibid 173–6. 209  Dir 76/207 (n 204) Art 2(4). 210  Case C-450/93 Kalanke v Freie Hansestadt Bremen [1995] ECR I-3051.

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c­ oloured the remainder of its reasoning. Thus, the Court held that national rules that guaranteed women absolute and unconditional priority for appointment or promotion went beyond the exception in Article 2(4). This exception only allowed for equality of opportunity, and did not sanction measures such as the German regional law that were designed to attain equality of result.211 The Kalanke judgment provoked fierce academic comment and proved an embarrassment to the Commission, which had been supportive of affirmative action. The ECJ took the opportunity offered by the Marschall case212 to limit the force of Kalanke. Marschall concerned a German regional law, which provided that where there were fewer women than men in a higher grade post in a career bracket, women were to be given priority for promotion in the event of equal suitability, competence, and professional performance, unless reasons specific to an individual male candidate tilted the balance in his favour. The ECJ confirmed that a rule guaranteeing ‘absolute and unconditional priority’ for women was impermissible,213 but held that the rule in the instant case that allowed for individual consideration of circumstances could come within Article  2(4).214 The Court was influenced in reaching this conclusion by its ­recognition that even where male and female candidates were equally qualified, the former tended to be promoted in preference to the latter ‘because of prejudices and stereotypes concerning the role and capacities of women in working life and the fear, for example, that women will interrupt their careers more frequently, that owing to household and family duties they will be less flexible in their working hours, or that they will be absent from work more frequently because of pregnancy, childbirth and breastfeeding’.215 The mere fact that a male candidate and a female candidate were equally qualified did not, therefore, mean that they had the same chances,216 and a national rule such as that in issue could ‘thus reduce actual instances of inequality which may exist in the real world’.217 The very fact that the Court in Marschall was willing to limit the force of Kalanke was welcomed. It is, however, difficult, as Fredman notes,218 to see what difference the savings clause would make in practice. By definition the male applicant could not claim to be more meritorious, since the German law in Marschall was premised on the assumption of equal merit. Other distinguishing features that might be proffered by the male candidate to tilt the balance in his favour, such as age or status as breadwinner, could well be regarded as indirectly discriminatory to women, and the Court in Marschall expressly cautioned against allowing this to happen.219 The ECJ persisted with the formulaic approach developed in Marschall in Badeck.220 The affirmative action programme in this case was more far-reaching and sophisticated than in the earlier cases. The ECJ, nonetheless, found that it was compatible with 211  Ibid [22]–[23]. 212  Case C-409/95 Hellmut Marschall v Land Nordrhein-Westfalen [1997] ECR I-6363. 213  Ibid [32]. 214  Ibid [33]. 215  Ibid [29]. 216  Ibid [30]. 217  Ibid [31]. 218  Fredman (n 207) 179. 219  Case C-409/95 Hellmut Marschall (n 212) [33]. 220  Case C-158/97 Badeck v Landesanwalt beim Staatsgerichtshof des Landes Hessen [1999] ECR I-1875.

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Directive 76/207, because it did not automatically and unconditionally give priority to women who were equally qualified with men applying for the same posts, and because the candidates were subject to an objective assessment that took into account their specific personal situations.221 The Court was not, however, willing to accept the more far-reaching affirmative action programme in Abrahamsson.222 The issue, as framed by the referring court, was whether legislation was compatible with Article 2(4) of Directive 76/207 under which a candidate for a public post who belonged to the under-represented sex and possessed sufficient qualifications for that post must be chosen in preference to a candidate of the opposite sex who would otherwise have been appointed, where this was necessary to secure the appointment of a candidate of the under-represented sex and the difference between the respective merits of the candidates was not so great as to give rise to a breach of the requirement of objectivity in making appointments. The ECJ, following Badeck, accepted that it was legitimate to take account of criteria for appointments which generally favoured women, where the objective was to achieve substantive, rather than formal, equality by reducing de facto inequalities in society and thereby prevent or compensate for disadvantages in the professional career of persons belonging to the under-represented sex, provided that these criteria were transparent and amenable to review. The ECJ felt that this was not, however, the case here, since a candidate for a public post belonging to the under-represented sex and possessing sufficient qualifications for that post had to be chosen in preference to a candidate of the opposite sex who would otherwise have been appointed, where that was necessary for a candidate belonging to the under-represented sex to be appointed. This amounted, said the Court, to granting an automatic preference to candidates belonging to the under-represented sex, provided that they were sufficiently qualified, subject only to the proviso that the difference between the merits of the candidates of each sex was not so great as to result in a breach of the requirement of objectivity in making appointments. It held that the scope and effect of that condition could not be precisely determined, and that the appointment system did not contain provision for an ­objective assessment that took account of the specific personal situations of all the candidates. The Swedish legislation could not, therefore, come within Article 2(4) of the Directive. The cases considered above were concerned primarily with the scope of Article 2(4) of Directive 76/207. The relationship between this provision and Article 157(4) TFEU is uncertain. It provides that ‘with a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers’. In Abrahamsson the ECJ ruled that this could not save the Swedish legislation because the selection method was disproportionate to the aim pursued.223 The ECJ reached the 221  Ibid [23]. 223  Ibid [55].

222  Case C-407/98 Abrahamsson v Fogelqvist [2000] ECR I-5539.

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same conclusion in Briheche. It left open the possibility that Article 157(4) might allow affirmative action that would not be allowed under Article 2(4) Directive 76/207, but held that it did not sanction action that was disproportionate to the aim pursued.224 Moreover, in Roca Álvarez the ECJ held that neither Article  157(4) TFEU, nor Article  2(4) of Directive 76/207, would permit a law which provided that female employees who are mothers could take leave during the first nine months following the child’s birth, while male employees who are fathers were not entitled to the same leave unless the child’s mother was also an employed person.225 The Court concluded that a measure of this kind was liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties.226 The key criteria in the case law are that measures intended to give priority to women will take the benefit of Article 2(4) of Directive 76/207 and be regarded as compatible with EU law if they do not automatically and unconditionally give priority to women when women and men are equally qualified, and the applicants are subject to objective assessment which takes account of the specific personal circumstances of all candidates. It seems from Badeck and Abrahamsson that this formula may, in principle, also be applicable where the criteria for appointment are not based on the applicants being equally qualified. This will, however, only be so if the Court is satisfied that the conditions under which the less qualified female applicant can be appointed are capable of objective and precise assessment, and the Court is likely to look more closely at the extent to which the system allows the personal circumstances of all applicants to be taken into account. The amendments made to Directive 76/207 altered the wording of Article  2(4). Article  3 of Directive 2006/54 now provides that ‘Member States may maintain or adopt measures within the meaning of Article  157(4) of the Treaty with a view to ensuring full equality in practice between men and women in working life’. It remains to be seen whether this leads to any change in the interpretation of Article 2(4). The new wording renders it less likely for there to be cases that fail under the Directive, but succeed under the Treaty, since the revised wording expressly links the two more closely than hitherto. (ii)  The Limits of Equal Treatment: Sex and Sexual Orientation The limits of the equal treatment regime were tested in a rather different manner in a series of cases dealing with gender reassignment and sexual orientation. In P v S227 the applicant was dismissed from his employment after undergoing ­gender reassignment. The ECJ held that this was covered by the Equal Treatment Directive. It reasoned that sex equality was a fundamental human right and that it 224  Case 319/03 Briheche v Ministre de l’Intérieur, Ministre de l’Éducation and Ministre de la Justice [2004] ECR I-8807, [31]. 225  Case C-104/09 Roca Álvarez v Sesa Start España ETT SA, EU:C:2010:561. 226  Ibid [36]–[37]. 227  Case C–13/94 P v S (n 160).

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could not, therefore, be restricted to discrimination based on the fact that the applicant was a person of one sex or the other. If a person was dismissed on the ground of gender ­reassignment, he or she was in effect being treated less favourably by comparison with persons of the sex to which he or she belonged prior to the reassignment. To allow such discrimination would fail to respect the dignity and freedom to which he or she was entitled, which the Court had the duty to safeguard.228 The ECJ, nonetheless, placed limits on the ambit of the Equal Treatment Directive in Grant, where it ruled, contrary to the Opinion of the Advocate General, that the ­prohibition on discrimination on grounds of sex within what was Article 141 EC did not cover discrimination on grounds of sexual orientation.229 The applicant was a female employee who claimed discrimination because she was refused travel concessions for her same-sex partner, where such concessions had been granted to her predecessor and his partner of the opposite sex. The ECJ held that there was no direct discrimination, since a male employee ­cohabiting with a same-sex partner would also have been refused the concessions. It  then considered whether those living in stable relationships with a person of the same sex were in the same situation as those who were in stable relationships with a person of the opposite sex. The ECJ looked at Member State laws and the ECHR, and took account of the fact that the EC had not adopted rules on the issue. It concluded that in the present state of EC law stable relationships between those of the same sex were not regarded as equivalent to those between persons of opposite sex. The ECJ was content to pass responsibility in this area back to the political branch of the EC to take action under the new Article 13 EC.230

6  Article 19 TFEU, the Race and Framework Directives, and Equal Treatment (A)  Economic and Social Rationales The judicial reticence to confront issues of sexual orientation, and the ECJ’s desire that such matters should be dealt with in the political forum, is more readily explicable since what is now Article 19 TFEU gave the EU competence to legislate in this and other areas. Article 19 provides, 1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in 228  Ibid [20]–[22]; C Barnard, ‘P V S: Kite Flying or a New Constitutional Approach’ in Dashwood and O’Leary (n 167) 59–79. 229  Case C-249/96 Grant v South-West Trains Ltd [1998] ECR I-621. 230  Ibid [47]–[48]. See also Cases C-122 and 125/99 P D and Sweden v Council [2001] ECR I-4319.

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accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat d ­ iscrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. 2. By way of derogation from paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of Union incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1.

It is generally accepted that Article 19 TFEU, couched as it is in terms of empowering action, does not have direct effect.231 While Article 19(1) requires unanimity in the Council, Article 19(2) provides for qualified majority voting in the Council and use of the ordinary legislative procedure for incentive measures that do not entail harmonization. Article 19 can, however, only be used ‘within the limits of the powers’ conferred on the EU by the Treaty. There has been considerable academic debate about the meaning of this phrase,232 but the better view is that the term ‘powers’ in the English version signifies ‘competences’, which is the wording used in a number of other language versions of the Treaty.233 This still leaves open the thorny issue of the scope of EU competence.234 Experience with the judicial interpretation of the ‘scope of application’ of the Treaty for the purposes of Article 18 TFEU indicates that the EU Courts are unlikely to strike down legislation enacted pursuant to Article 19 on the ground that it exceeds the bounds of EU competence. They are likely to fasten on the existence of some direct Union competence over the relevant area, even if it is attenuated, and conclude that this suffices for the purposes of legislation enacted under Article  19. An alternative juridical option is to emphasize the linkage between the content of the Article 19 measure and fulfilment of the internal market.235 The economic and social rationales underlying EU equality law in other areas are apparent here also. The economic focus is highlighted by the fact that the Framework Directive,236 enacted pursuant to what is now Article  19 TFEU, is concerned with ­combating discrimination in employment and occupation. The scope of the Race Directive237 is, however, broader, covering not only employment and working ­conditions, but also social protection, including social security and health care, social ­advantages, 231  L Flynn, ‘The Implications of Article 13 EC—After Amsterdam will Some Forms of Discrimination be More Equal than Others?’ (1999) 36 CMLRev 1127; L Waddington, ‘Testing the Limits of the EC Treaty Article on Non-Discrimination’ (1999) 28 ILJ 133; Bell (n 153) 125. 232  Flynn (n 231) 1135; Waddington (n 231) 136; Bell (n 153) 131–4. 233  Bell (n 153) 134. 234  Ch 14. 235  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, Preamble, [11]; Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22, Preamble, [9]. See however Bell (n 153) 136–43, for possible competence problems with the Directives passed under Art 19. 236  Council Dir 2000/78 (n 235). 237  Council Dir 2000/43 (n 235).

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education, and access to and supply of goods and services available to the public, including housing. It should also be recognized that even where the Directives address employment issues, they will in practice commonly have little connection with interstate trade or movement of workers, and will avail workers within their own state. Thus, as Bell states, ‘whilst the Directives do not contradict the objectives of market integration, they are not central to this project’.238 The social dimension underlying Article 19 and the Directives enacted pursuant thereto is, therefore, just as important, perhaps more so, than any economic imperative. The Directives are not perfect and we should therefore be cautious about regarding them as heralding a new era based on  fundamental human rights. This can be accepted, while recognizing also the ­rights-based foundations of this legislation.

(B)  The Race and Framework Directives The structure of the Race Directive and the Framework Directive is similar and there is also much commonality in terms of content. There are, however, differences between the two, some of which flow from differences in subject matter, others of which are the result of legislative choice about the remit of the respective provisions. The purpose of the Race Directive is to advance equal treatment by combating ­discrimination on grounds of race or ethnic origin. Discrimination may be direct, where a person is treated less favourably than another in a comparable situation on grounds of race or ethnic origin. Indirect discrimination is also proscribed, and is defined to cover cases where an apparently neutral provision, criterion, or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless it is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.239 Harassment that is related to racial or ethnic origin is deemed to constitute discrimination.240 Member States must take the necessary measures to ensure that laws, regulations, etc contrary to the Directive are abolished, and that provisions in individual or collective agreements and the like that are inconsistent with the Directive are declared void or amended.241 There must be sanctions for breach of the Directive, and these must be effective, proportionate, and dissuasive.242 The Directive applies to all persons within the public and private sectors, although there are qualifications for third country nationals,243 and, as we saw earlier, it covers discrimination relating to employment and a broad range of other matters.244 There are exceptions similar in nature to those found in the Equal Treatment Directive. Thus differences of treatment based on genuine occupational requirements are allowed,245 and there is provision for positive action to prevent or compensate for disadvantages

238  Bell (n 153) 193. 241  Ibid Art 14. 245  Ibid Art 4.

239  Dir 2000/43 (n 235) Art 2(2)(b). 242  Ibid Art 15. 243  Ibid Art 3(2).

240  Ibid Art 2(3). 244  Ibid Art 3(1).

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linked to racial or ethnic origin.246 Member States are obliged to provide judicial and/ or administrative procedures for enforcement of the Directive,247 and must take the necessary measures to put in place a system where the normal burden of proof is reversed once the applicant has shown facts from which it could be presumed that discrimination had occurred.248 There are provisions to prevent victimization of complainants, to provide for dissemination of information, to promote social dialogue, and mandate the designation of a body or bodies to promote equal treatment irrespective of race or ethnic origin.249 The Framework Directive is designed to combat discrimination in relation to religion or belief, disability, age, or sexual orientation.250 Many of its provisions are the same as those in the Race Directive. The scope of the Framework Directive is however, as noted earlier, narrower. It is confined to access to employment, access to vocational training, employment and working conditions, and membership of organizations ­concerned with the workplace or a profession.251 Payments made by social security schemes and the like are expressly excluded.252

7 Conclusion It is interesting to reflect more generally on the conception of equality used by the EU Courts, and the implications that this has for the standard of judicial review and the interrelationship of legislation and adjudication. The ECJ has been most strident in relation to nationality discrimination, both in the context of the four freedoms and in the interpretation accorded to Article 18 TFEU. This is unsurprising given the centrality of non-discrimination on grounds of nationality to the EU legal and political order. While the Courts’ jurisprudence certainly covers formal equality, it has in reality transcended this conception. The Union Courts are not indifferent as to whether individuals are treated equally well or equally badly so far as nationality is concerned. Their jurisprudence has moved beyond this towards equality of result or outcome, at least so far as the particular individual is concerned. The immediate objectives have been the removal of impediments to movement based directly or  indirectly on nationality, and the provision of benefits afforded by the host state irrespective of nationality. These are instrumental to the more fundamental aim of ensuring that nationals ­living and working in another Member State can truly function as equals in familial, social, and economic terms with nationals of the host state. The ECJ has to this end given an expansive reading to direct and indirect discrimination when adjudicating on the four freedoms. It has been similarly strident in its jurisprudence on Article  18 TFEU, more especially that entailing citizenship. The corollary of this approach has 246  Ibid Art 5. 247  Ibid Art 7. 248  Ibid Art 8. 250  Dir 2000/78 (n 235) Art 1. 251  Ibid Art 2(1).

249  Ibid Arts 9–13. 252  Ibid Art 2(3).

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been intensive judicial review, which would in legal systems that use the language be cast in terms of strict scrutiny. The judicial stance taken towards nationality discrimination has also had implications for the relationship between legislation and adjudication. The ECJ has given an expansive reading to EU legislation, in order to ensure that nationals from other Member States really are placed, so far as possible, in the same position as nationals of the host state, as exemplified by the expansive case law on social advantage. It has also been willing to break down barriers of nationality discrimination, even where EU ­legislation indicated limits to the extent to which the Member States were willing to embrace ‘social solidarity’ and accord benefits to those from other Member States, as exemplified by case law on Article 18 and citizenship. This approach is in marked contrast to the conception of equality that prevails where equality operates as a constraint on EU regulatory initiatives, in particular those within the common policies such as the CAP. The prevailing concept of equality is that of formal equality, or equality as consistency. This conception of equality is dependent on threshold determinations as to whether two individuals are relevantly alike, and on the need to find a comparator who has been treated more favourably than the applicant.253 These problems are vividly revealed by the case law, and the applicant company will not uncommonly fail because the ECJ decides that it was not similarly situated to that of the alleged comparator. The application of formal equality is, moreover, significantly affected by low-intensity judicial review, as evidenced by the need to show that the criterion in the challenged legislation was arbitrary, and the use made of objective justification to rescue regulatory norms that are prima facie discriminatory. This lowintensity review in turn reflects judicial perceptions about the relationship between legislation and adjudication in relation to common policies, with the ECJ aware of the difficult regulatory choices made by the Union legislature and hence unwilling lightly to overturn such policies. The conception of equality that is prevalent in the context of sex discrimination and Article 19 TFEU is somewhat different again. It is also rather more complex. It clearly embraces formal equality, but it does not encompass equality of result, as evident from the jurisprudence on affirmative action.254 The EU Courts have, however, endorsed equality of opportunity in relation to gender discrimination, at least so far as that signifies the removal of some obstacles to the advancement of women, and EU legislation, as exemplified by the Equal Treatment Directives and the Race Directive, makes provision for bodies at national level to promote and support equal treatment. The ECJ’s approach to judicial review, and the relationship more generally between adjudication and legislation, has been nuanced. Where it felt on secure ground, in terms of the ­primary Treaty article or EU legislation, it applied the principles contained therein vigorously and closely scrutinized Member State action. Where, however, it was less secure in this respect, it awaited legislative intervention, more especially if it believed

253  Fredman (n 4) 7–9.

254  Case C-450/93 Kalanke (n 210) [22]–[23].

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that there were complex practical or moral issues that were best resolved through ­legislation. Thus, by way of example, the ECJ engaged in intensive review in cases concerning equal pay, while being unwilling to read Article 157 as covering equal treatment, and it spoke of gender equality as a fundamental right, while leaving the development of the law concerning sexual orientation to the legislature.

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18 Legal Certainty and Legitimate Expectations 1 Introduction The connected concepts of legal certainty and legitimate expectations are to be found in many legal systems, although their precise legal content may vary.1 These concepts are used in a number of different ways and it is important to distinguish them in order to avoid confusion. Legal certainty and legitimate expectations are general principles of EU law and hence are binding not only on EU institutions, but also on Member States when they act in the scope of EU law.2 The discussion begins with the basic precept of legal certainty and the constraints placed on EU norms that have an actual retroactive effect. This is followed by d­ifferentiation of other types of case where legal certainty and legitimate expect­ ations are ­utilized and the rationale for affording legal protection. The remainder of the chapter analyses the law and policy applicable in these differing areas includ­ ing revocation of lawful and unlawful decisions; individual representations; repre­ sentations and changes of policy; departure from existing policy; and unlawful representations.

1  S Schonberg, Legitimate Expectations in Administrative Law (Oxford University Press, 2000); G Greco, ‘Sovvenzioni e tutela dell’affidamento’ (2000) Rivista Trimestrale di Diritto Pubblico 375; S Calmes, Du Principe de Protection de la Confiance Légitime en Droits Allemand, Communautaire et Français (Dalloz, 2001); S Antoniazzi, ‘Recenti conferme della Corte di giustizia circa la ricostruzione di un principio ­fondamentale di tutela dell’affidamento nell’ordinamento comunitario’ (2002) Rivista Italiana di Diritto Pubblico Comunitario 1130; J Schwarze, European Administrative Law (Sweet & Maxwell, revised edn, 2006) Ch 6; T Tridimas, The General Principles of EU Law (Oxford University Press, 2nd edn, 2006) Ch 6; J-B Auby and D Dero-Bugny, ‘Les Principes de Sécurité Juridique et de Confiance Légitime’ in J-B Auby and J Dutheil de la Rochère (eds), Droit Administratif Européen (Bruylant, 2007) 473–91; A Massera, ‘I  principi generali’ in M Chiti and G Greco (eds), Trattato di Diritto Amministrativo Europeo (Giuffrè, 2nd edn, 2007) 316–32. 2  See, eg, Case C-362/12 Test Claimants in the Franked Investment Income Group Litigation v Commissioners of Inland Revenue, EU:C:2013:834, [44]–[49]; Case 427/14 Valsts ieņēmumu dienests v ‘Veloserviss’ SIA, EU:C:2015:803, [39]; Case C-332/14 Wolfgang und Dr Wilfried Rey Grundstücksgemeinschaft GbR v Finanzamt Krefeld, EU:C:2016:417, [49].

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2  Legal Certainty: The Clarity of EU Rules The ECJ has consistently held that the principle of legal certainty is a fundamental principle of EU law which requires, in particular, that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obliga­ tions are and may take steps accordingly.3 This principle was reaffirmed and applied in Intertanko.4 The applicant claimed that a provision of a Directive that made marine polluters liable if there was serious negligence violated the principle, but the ECJ ­disagreed. It held that this standard of liability applied to an indeterminate number of situations that it was impossible to envisage in advance, and not to specific conduct capable of being set out in detail in a legislative measure of EU or of national law. Such concepts were, moreover, used in national legal systems. Furthermore, a trader cannot place reliance on there being no legislative amend­ ment, but can only call into question the arrangements for the implementation of such an amendment. The national legislature should, however, take account of the particu­ lar situations of traders and provide, where appropriate, adaptations to the application of the new legal rules.5

3  Legal Certainty and Actual Retroactivity: Procedural and Substantive Constraints The most obvious application of legal certainty is in the context of rules with an ‘actual retroactive’ effect. This covers the situation where a rule is applied to events that have already been concluded.6 This may occur either where the date of entry into force pre­ cedes the date of publication, or where the EU norm applies to circumstances which have been concluded before its entry into force. The arguments against allowing such measures to have legal effect are compelling. A basic tenet of the rule of law is that people ought to be able to plan their lives, secure in the knowledge of the legal consequences of their actions. This central precept is 3 Case 169/80 Administration des douanes v Société anonyme Gondrand Frères and Société anonyme Garancini [1981] ECR 1931, [17]; Case C-143/93 Gebroeders van Es Douane Agenten BV v Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431, [27]; Case C-110/03 Belgium v Commission [2005] ECR I-2801, [30]; Case C-158/06 Stichting ROM-projecten v Staatssecretaris van Economische Zaken [2007] ECR I-5103, [25]; Case T-240/04 France v Commission [2007] ECR II-4035, [48]–[49]; Case T-94/98 Alferink v Commission [2008] ECR II-1125, [65]; Case C-201/08 Plantanol GmbH & Co KG v Hauptzollamt Darmstadt [2009] ECR I-8343; Case 324/14 X-Steuerberatungsgesellschaft, EU:C:2015:827, [59]; Case C-72/15 PJSC Rosneft Oil Co v Her Majesty’s Treasury, EU:C:2017:236, [162]–[167]; Case T-180/15 Icap plc v European Commission, EU:T:2017:795, [193]–[195]. 4  Case C-308/06 The Queen (on the application of Intertanko) v Secretary of State for Transport [2008] ECR I-4057, [69]–[80]. 5  Case C-98/14 Berlington Hungary Tanácsadó és Szolgáltató kft v Magyar Állam, EU:C:2015:386, [76]–[80]. 6  Schwarze (n 1) 1120.

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violated by the application of measures that were not in force when the actual events took place. These concerns are particularly marked in the context of criminal penalties, since the effect may be to criminalize activity that was lawful when it was undertaken. The application of retrospective rules may also be extremely damaging in commercial circumstances, upsetting the assumptions on which important transactions were based. It is, therefore, unsurprising that national legal systems are very opposed to application of rules in this manner. The EU is no different in this respect. The basic principle was enunciated in Racke.7 The Commission had introduced monetary compensatory amounts for a product by a Regulation, and then in two further Regulations altered the amounts. Each of the ­relevant Regulations provided that they would apply fourteen days before they were published. The Court held that it was a fundamental principle of the EU legal order that a measure should not be applicable to those concerned before they had the ­opportunity to make themselves acquainted with it.8 The Court then drew out the implications for retroactive measures.9 Although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be ­otherwise where the purpose to be achieved so demands and where the legitimate ­expectations of those concerned are duly respected.

The Court has, in accordance with this proviso, upheld the validity of retroactive m ­ easures, particularly in the agricultural sphere where they were necessary to ensure market stability, or where the retroactivity placed the individual in a more favourable position.10 The general principle is, therefore, that a new rule of law applies from the entry into force of the act introducing it. It does not apply to legal situations that have arisen and become definitive under the old law, but does apply to their future effects, and to new legal situations. This assumption may be displaced only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal applica­ tion, but this is subject to the principle of the non-retroactivity of legal acts. Procedural rules are generally taken to apply from the date on which they enter into force, while substantive rules will normally be interpreted as applying to situations existing before their entry into force only insofar as it clearly follows from their terms, their objectives, 7  Case 98/78 Firma A Racke v Hauptzollamt Mainz [1979] ECR 69. See also Case C-34/92 GruSa Fleisch GmbH & Co KG v Hauptzollamt Hamburg-Jonas [1993] ECR I-4147; Cases C-74 and 75/00 P Falck SpA and Acciaierie di Bolzano SpA v Commission [2002] ECR I-7869; Case C-459/02 Willy Gerekens and Association agricole pour la promotion de la commercialisation laitière procola v Luxembourg [2004] ECR I-7315; Case C-376/02 Stichting ‘Goed Wonen’ v Staatssecretaris van Financiën [2005] ECR I-3445, [33]; Case T-357/02 Freistaat Sachsen v Commission [2007] ECR II-1261, [94]–[95]; Case C-161/06 Skoma-Lux sro v Celní ředitelství Olomouc [2007] ECR I-10841, [37]–[41]; Case C-410/09 Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2011:294, [23]–[29]; Cases T-229 and 276/11 Lord Inglewood v European Parliament, EU:T:2013:127, [32]; Case T-471/11 Éditions Odile Jacob SAS v European Commission, EU:T:2014:739, [102]–[103]. 8  Case 98/78 Racke (n 7) [15]. 9  Ibid [20]. 10  Case T-7/99 Medici Grimm KG v Council [2000] ECR II-2671.

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or their general scheme that such an effect must be given to them.11 The normal pre­ sumption is, however, against the validity of retroactive measures. This manifests itself in both interpretive and substantive terms. In interpretive terms, the Court has made it clear that it will construe norms as hav­ ing retroactive effect only if this clearly follows from their terms, or from the objectives of the general scheme of which they are a part. The general principle of construction is, therefore, against giving rules retroactive impact. Thus in Salumi,12 the ECJ held that the general rule of construction for substantive provisions was that they should only be interpreted as applying to situations existing before their entry into force insofar as this clearly followed from the terms of the relevant provision, or from the general scheme of which they were a part. This interpretation ensured respect for the principles of legal certainty and the protection of legitimate expectations, ‘by virtue of which the effect of Community legislation must be clear and predictable for those who are subject to it’.13 In substantive terms, the Court will strike down measures that have a retroactive effect where there is no pressing Union objective, or where the legitimate expectations of those affected by the measure cannot be duly respected. Thus in Meiko-Konservenfabrik14 the ECJ struck down a Regulation that retroactively subjected the payment of aid to the forwarding to the national intervention agency of the contract made between producer and processor of the relevant goods, since the date fixed for the forwarding of the con­ tracts could not reasonably have been anticipated by the parties. In Skoma-Lux15 the ECJ held that a customs Regulation could not be applied against a company in a new Member State, whose language was an official language, before the Regulation had been translated and published in the Official Journal. This substantive control is even more marked where the retroactivity leads to the imposition of criminal penalties, as in Kent Kirk.16 Criminal proceedings were brought in the UK for infringement of fisheries legislation. During the course of these proceed­ ings the question arose whether Council Regulation 170/83 of 25 January 1983, by which, with retroactive effect from 1 January 1983, national measures contravening Community law prohibitions on discrimination were approved by way of transitional arrangements, could retroactively validate national penal provisions. The ECJ held that, even leaving aside the legality of the retroactivity of the Council Regulation, such retroactivity could not validate ex post facto national penal measures that imposed 11  Cases 212–217/80 Amministrazione delle Finanze dello Stato v Srl Meridionale Industria Salumi [1981] ECR 2735, [9]; Case C-334/07 P Commission v Freistaat Sachsen, EU:C:2008:709; Case C-596/13 P European Commission v Moravia Gas Storage as, EU:C:2015:203, [32]–[33]. 12  Cases 212–217/80 Salumi (n 11). 13  Ibid [10]. See also Case C-400/98 Finanzamt Goslar v Brigitte Breitsohl [2000] ECR I-4321; Case C-396/98 Grundstückgemeinschaft Scholßstraße GbR v Finanzamt Paderborn [2000] ECR I-4279; Case C-110/03 Belgium v Commission [2005] ECR I-2801, [73]; Case T-25/04 González y Díez, SA v Commission [2007] ECR II-3121, [58]; Case T-348/04 Société internationale de diffusion et d’édition SA (SIDE) v Commission [2008] ECR II-625, [52]–[56]; Case C-256/07 Mitsui & Co Deutschland GmbH v Hauptzollamt Düsseldorf [2009] ECR I-1951; Case C-596/13 P European Commission v Moravia Gas Storage as, EU:C:2015:203, [33]–[39]. 14  Case 224/82 Meiko-Konservenfabrik v Federal Republic of Germany [1983] ECR 2539. 15  Case C-161/06 Skoma-Lux (n 7). 16  Case 63/83 Regina v Kent Kirk [1984] ECR 2689.

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penalties for an act which was not punishable at the time it was committed. The prin­ ciple that penal provisions could not have retroactive effect was common to the Member States and was enshrined in Article 7 ECHR.17 Where there is a pressing Union objective and where the legitimate expectations of those concerned are duly respected, then retroactivity may, exceptionally, be accepted in the non-criminal context. This is exemplified by Fédesa.18 The applicants argued that the challenged Directive was in breach of the principle of non-retroactivity, since it was adopted on 7 March 1988 and stipulated that it was to be implemented by 1 January 1988. The ECJ drew a distinction between the retroactive effect of penal provisions and retroactive effect outside the criminal sphere. The ECJ reaffirmed Kent Kirk concern­ ing the retroactive effect of penal provisions, but it held that the Directive in Fédesa did not impose criminal liability. The ECJ ruled further that the Directive did not contravene the principle of non-­ retroactivity. It had been adopted to replace an earlier Directive that had been annulled. The time frame of the challenged Directive was necessary in order to avoid a ­temporary legal vacuum, where there would be no EU legislation to back up the Member States’ exist­ ing implementing provisions. The ECJ concluded that there was no infringement of legit­ imate expectations, since the earlier Directive was only annulled because of a procedural defect. Those affected by the national implementing legislation could not expect the Council to change its attitude on the substance of the Directive during the short time between the annulment of the first Directive and the notification of the second Directive.19 It is clear, moreover, from Gerekens20 that this exception, whereby rules can excep­ tionally take effect from a point in time before publication when the purpose to be attained so demands provided that the legitimate expectations of those concerned are duly respected, can apply to national rules implementing Union law.

4  Legal Certainty, Legitimate Expectations, and Apparent Retroactivity: Types of Case and Rationale for Protection (A)  Types of Case Problems of legal certainty and legitimate expectations can arise in a variety of circum­ stances in addition to cases where legislation has an actual retroactive effect. In some 17  Ibid [21]–[22]. See also Cases C-189, 202, 205, 208 and 213/02 P Dansk Rørindustri A/S v Commission [2005] ECR I-5425, [202]; Case C-3/06 P Groupe Danone v Commission [2007] ECR I-1331, [87]–[88]; Case T-59/02 Archer Daniels Midland Co v Commission [2006] ECR II-3627, [41]–[49]; Case C-550/09 Criminal proceedings against E and F, EU:C:2010:382, [59]. 18  Case C-331/88 R v Minister for Agriculture, Fisheries and Food, ex parte Fédesa [1990] ECR 4023. 19  Ibid [47]. See also Case T-157/14 JingAo Solar Co Ltd v Council of the European Union, EU:T:2017:127, [156]–[157]; Case T-160/14 Yingli Energy (China) Co Ltd v Council of the European Union, EU:T:2017:125, [156]. 20  Case C-459/02 Willy Gerekens (n 7) [21]–[34].

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other situations there is apparent retroactivity. This covers the scenario where the legal act takes effect for the future, but has an impact on past events that were not yet ­definitively concluded.21 The Member States are also bound to comply with legal ­certainty and legitimate expectations when implementing EU law.22 It is important to distinguish the different types of case that raise issues concerning legal certainty and legitimate expectations. (a) A public authority makes a formal decision concerning a person or a ­limited group of persons and then seeks to revoke that decision. (b) A representation is relied on by a person or a group, and the administration later makes a decision that is inconsistent with the representation. (c) A general norm or policy choice, which an individual or group has relied on, is replaced by a different policy choice. (d) A general norm or policy choice is departed from in the circumstances of a ­particular case. These different types of case raise somewhat different considerations. Thus, for ­example, in cases of the second type there is an unequivocal representation made to a person and this carries a particular moral force. Moreover, holding the public body to such a representation is less likely to have serious consequences for the administration as a whole. Cases falling into the third category are, by way of contrast, generally regarded as more problematic for reasons to be discussed later. Different principles of judicial review may therefore be appropriate. The fact that principles of review will have to be tailored for different types of case should not mask the fact that they raise similar underlying problems.

(B)  Rationale for Protection This leads to the rationale for affording legal protection. The moral arguments against allowing laws to have actual retroactive effect are straightforward. Cases of apparent retroactivity are more problematic, because the administration must have the power to alter its policy for the future, even though this may have implications for the conduct of private parties, which has been planned on the basis of the pre-existing legal regime. There are, nonetheless, a variety of arguments for protecting individuals in such c­ ases.23

21  It can, however, be difficult to distinguish cases of actual and apparent retroactivity, Case C-162/00 Land Nordrhein-Westfalen v Beata Pokrzeptowicz-Meyer [2002] ECR I-1049; Cases C-189, 202, 205, 208 and 213/02 P Dansk Rørindustri (n 17) [198]–[232]. 22  Cases C-31–41/91 SpA Alois Lageder v Amministrazione delle Finanze dello Stato [1993] ECR I-1761, [33]; Case C-107/97 Criminal Proceedings against Max Rombi [2000] ECR I-3367, [65], [67], [73]; Cases C-80– 82/99 Flemmer v Council and Commission [2001] ECR I-7211, [59]–[60]; Case C-62/00 Marks & Spencer plc v Commissioners of Customs & Excise [2002] ECR I-6325, [44]; Case C-495/00 Azienda Agricola Giorgio v AIMA [2004] ECR I-2993, [40]; Case C-201/08 Plantanol (n 3); Cases C-230–231/09 Hauptzollamt Koblenz v Kurt und Thomas Etling in GbR, EU:C:2011:271, [74]. 23  Schonberg (n 1) Ch 1.

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There is the argument based on fairness in public administration. The essence of the argument is captured by Sedley J in a UK case concerning substantive legitimate ­expectations.24 [T]he real question is one of fairness in public administration. It is difficult to see why it is any less unfair to frustrate a legitimate expectation that something will or will not be done by the decision-maker than it is to frustrate a legitimate expectation that the applicant will be listened to before the decision-maker decides whether to take a particular step. Such a doctrine does not risk fettering a public body in the discharge of public duties because no  individual can legitimately expect the discharge of public duties to stand still or be ­distorted because of that individual's peculiar position.

It may also be argued that the law should provide protection for legitimate ­expectations because of reliance. Schonberg puts the argument as follows.25 [A] public authority’s freedom to take action in the public interest is limited to the extent that it causes harm to particular individuals. If a public authority has induced a person to rely upon its representations or conduct, realising that such reliance was a real possibility, it is under a prima facie duty to act in such a way that the reliance will not be detrimental to the representee. The authority must honour the expectations created by its representa­ tion or, at least, compensate the person affected for his reliance loss.

Reliance may well be part of the rationale for protecting legitimate expectations. It ­cannot, however, be the only reason for according protection, because there may be circumstances where legal protection should be given even though there was no actual reliance by the claimant. This is particularly so in relation to the fourth category of case mentioned earlier. The administration may well be prevented from departing from its existing policy in relation to a particular individual even though there was no actual reliance, for reasons of equality and because of the principle that like cases should be treated alike. It may, moreover, be fortuitous whether there was any reliance causing actual detriment short of the moral harm that flows from having one’s expectations disappointed. While there are therefore limits to reliance as the foundation for ­legitimate expectations, the existence of loss caused by detrimental reliance induced by the public authority is, nonetheless, still a good reason why the law should afford protection in cases where such justified reliance exists. The rationale for affording protection can also be supported by rule of law ­considerations. The concept of legal certainty underlies much of continental and EU thinking.26 It is connected to mainstream thinking about the formal conception of the rule of law, with its concern for autonomy and the ability to plan one’s life.27 This is important where an expectation is the basis for a decision as to how to plan one’s life. A further rationale for the protection of legitimate expectations is that it fosters good administration and trust in government. The preceding discussion has considered 24  R v Ministry of Agriculture, Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, 724. 25  Schonberg (n 1) 10. 26  Schwarze (n 1) Ch 6. 27  J Raz, Ethics in the Public Domain (Oxford University Press, 1994) Ch 17.

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a­ rguments for the protection of legitimate expectations that focus on the individual. Such protection can, however, also benefit the public authority. Thus as Schonberg states,28 [A]dministrative power is more likely to be perceived as legitimate authority if exercised in a way which respects legitimate expectations. Perceived legitimate authority is more efficacious because it encourages individuals to participate in decision-making processes, to co-operate with administrative initiatives, and to comply with administrative ­regulations. Greater compliance will in turn improve the administration’s ability to solve co-ordination problems, and that may actually make its exercise of authority more legitimate. The accept­ ance of principles of administrative law, which require authorities to respect legitimate expectations, is therefore not merely in the interest of individuals. It is, very much, in the interest of the administration itself.

There are, therefore, powerful arguments for the protection of legitimate expectations. The protection of legitimate expectations does not, however, mean that the govern­ ment’s ability to alter policy will be unduly fettered. There are four reasons why this fear is misplaced. First, the applicant must prove the requisite expectation on the facts of the case. This is, as will be seen later, not easy. The mere fact that there has been some change of policy does not mean that those who operated under the old policy will be able to prove the existence of such an expectation. The principle of legitimate expectations does not, moreover, generally prevent new rules from applying to the future conse­ quences of situations which arose under earlier rules.29 Secondly, even if the applicant is able to prove the substantive legitimate expectation this does not mean that she wins. This is only the first step in the analysis. There is a second legal step, in which the courts inquire whether the public body had sufficient reasons to depart from the expectation. Thirdly, even if the applicant wins this does not necessarily mean that the develop­ ment of policy is ossified, because the applicant’s claim will often have a temporal dimension: the issue will be when the new policy should take effect, not whether it should take effect at all. Fourthly, the government may acknowledge the problems created by change in policy, as shown by the existence of transitional or pipeline provisions when a new policy is adopted. Given that this is so, the courts should be able to review their existence and adequacy.

5  Revocation of Lawful Decisions (A)  The General Principle: Favourable Decisions Bind All legal systems have to consider the legal effect of formal decisions made by the administration. The issue is whether the decision will be regarded as binding on the administration and the extent to which the administration can revoke it. 28  Schonberg (n 1) 25.

29  Case C-168/09 Flos SpA v Semeraro Casa e Famiglia SpA, EU:C:2011:29, [53].

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The issue arose early in the Courts’ jurisprudence in the Algera case.30 The applicant was a temporary employee with the Common Assembly, who was then appointed to a permanent position by a decision of the board that dealt with employment matters. The Assembly, seven months later, then changed its mind, largely because of an industrial dispute in which the applicant had been involved. It sought to dismiss her, which entailed a revocation of the employment decision with prospective effect. The ECJ began by wisely noting a ‘vicious circle’ that should be avoided. This consisted of asserting a vested right and then inferring that the right could not be revoked. This reasoning was, the ECJ noted, circular, since if the right conferred by the administrative measure could be uni­ laterally revoked it would not therefore constitute a vested right. The ECJ held that if the appointment decisions were legal they constituted individual administrative measures, which gave rise to individual rights. It then considered whether such measures could be withdrawn. The ECJ drew on principles from French and German law and held that,31 It emerges from a comparative study of this problem of law that in the six Member States an administrative measure conferring individual rights on the person concerned cannot in principle be withdrawn, if it is a lawful measure; in that case since the individual right is vested, the need to safeguard confidence in the stability of the situation thus created pre­ vails over the interests of an administration of reversing its decision. This is true in particu­ lar of the appointment of an official.

The EU Courts have used different linguistic formulations to capture the criterion that triggers this legal protection against revocation. Some decisions use the formula that a legal measure that confers rights or similar benefits cannot be revoked. This was the linguistic formula used in cases such as Verli-Wallace.32 The ECJ held that an applicant who had been allowed to sit for a competitive staff examination had a personal right to take part and this could not be withdrawn by a subsequent decision that she was not entitled to take part. The retroactive withdrawal of a legal measure that conferred rights or similar benefits was contrary to EU law.33 This same formulation is evident in Lagardère and Canal.34 The applicants challenged a Commission decision revoking an earlier decision holding that a concentration was compatible with the common mar­ ket. The CFI stated that the earlier decision granted the applicants subjective rights and that the case therefore fell within the principle that retroactive withdrawal of a legal measure that conferred individual rights, or similar benefits, was contrary to general principles of EU law.35 In other cases the Court used the language of favourable administrative act, as in de Compte.36 The applicant who had been employed by the European Parliament suffered 30  Cases 7/56 and 3–7/57 Algera v Common Assembly [1957] ECR 39. 31  Ibid 55. See also Cases 42 and 49/59 SNUPAT v High Authority [1961] ECR 53, 78; Case 111/63 ­Lemmerz-Werke v High Authority [1965] ECR 677. 32  Case 159/82 Verli-Wallace v Commission [1983] ECR 2711. 33  See also Case T-123/89 Chomel v Commission [1990] ECR II-131, [34]. 34  Case T-251/00 Lagardère SCA and Canal+ SA v Commission [2002] ECR II-4825. 35  Ibid [139], [142]. 36  Case C-90/95 P Henri de Compte v European Parliament [1997] ECR I-1999.

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from mental illness. A medical committee decided that this was work-related in accord with the relevant staff rules. Acting on this report, the appointing committee then decided in January 1991 that the applicant should receive compensation. Three months later in April 1991 the appointing authority revoked this decision on the ground that it had been based on an erroneous interpretation of occupational injury. It argued that it was, therefore, entitled to revoke the earlier decision with retroactive effect. The ECJ held that retroactive withdrawal of a favourable administrative act was generally s­ ubject to very strict conditions. There was nothing to suggest that de Compte had provoked the earlier decision through false information. It followed that legitimate expectations as to the legality of a favourable administrative act, once acquired, could not subsequently be undermined, and there was no public policy interest that overrode the beneficiary’s interest in the maintenance of a situation which he was entitled to regard as stable.37 There is no indication that the EU Courts intend any difference from these alterna­ tive formulations. The very fact that the triggering criterion cast in terms of rights also includes ‘other similar benefits’ indicates that the Courts are not intending to limit the applicability of the legal protection to rights stricto sensu. It is clear, moreover, that the EU Courts take a relatively broad view of what constitutes a favourable decision or a benefit similar to a right. Thus, a decision reducing the size of a quota as compared to that given by an earlier decision fell within the principle since the initial decision had conferred a benefit.38 The decision will not, however, be irrevocable until it is communicated to the person concerned. It is this rather than the date when the initial decision was adopted that is controlling, since the addressee will not have any legitimate expectation until he or she knows of the decision.39 It is equally clear that the binding effect of formal decisions and hence the p ­ rohibition on retroactive revocation applies only in relation to unfavourable decisions. The prin­ ciple of legitimate expectations does not, therefore, preclude the Commission from reassessing a decision imposing a fine on a member of a cartel.40

(B)  Qualifications to the General Principle: Consent and Fraud The general principle that formal decisions cannot be revoked retroactively is subject to a number of qualifications. It is clear that the parties can consent to revocation of the initial decision. This is, as Schonberg states, ‘unsurprising, since the protection of legal certainty and legitimate expectations, which underpin the principle of irrevocability, does not require decisions to be upheld against the wishes of those affected’.41 37  Ibid [35]–[40]. 38  Case 14/81 Alpha Steel v Commission [1982] ECR 749. 39  Case C-90/95 P Henri de Compte (n 36) [36]; Case T-416/04 Kontouli v Council [2006] ECR II-A-2 897, [162]; Case F-51/07 Philippe Bui Van v Commission, EU:F:2010:108. 40  Case T-227/95 Assidoman Kraft Products AB v Commission [1997] ECR II-1185, [90]–[92]. 41  Schonberg (n 1) 79.

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The position is similarly clear in relation to those cases where the initial decision was  obtained by fraud or deception.42 There is no moral rationale for allowing a person to claim a ‘legitimate’ expectation based on an initial decision that was obtained by fraud or deception. To the contrary, there is every reason to allow the administration to take another decision correcting the mistake induced by the indi­ vidual’s fraud. The EU Courts have taken a broad view of this exception, allowing revocation not only where there has been fraud, but also where the decision rests on wrong or incom­ plete information from the persons concerned.43 Thus in Euroagri44 the CFI stated in relation to aid granted under the Structural Funds that information provided by the applicant was important in assessing the validity of the project for funding. If it was subsequently proved that ‘the information did not correspond to the facts, the award decision is vitiated by an error of fact and must therefore considered to be unlawful’.45 This illegality could then justify retroactive withdrawal of the aid. There is, however, a danger in pressing the equation between fraud and misrepre­ sentation too far. There is a real difference between fraud and innocent misrepresenta­ tion. There may well, therefore, be reasons for limiting powers of revocation if the misinformation was innocent.46 This should at the very least be a significant factor taken into account in the balancing process when deciding whether retroactive with­ drawal of an illegal benefit should be allowed.

(C)  Qualifications to the General Principle: Conditional Decisions The initial decision may also be revoked where it was granted subject to conditions. If  these conditions were not met, but the failure did not render the initial decision unlawful, then the case would fall within the fraud/deception exception on the assump­ tion that it was the applicant that misled the administration. If the conditions were never met and there was no such wrongdoing by the applicant then, assuming that non-fulfilment of the conditions rendered the initial decision unlawful, the case would fall within the category of unlawful decisions, considered later. There can, however, be cases where the initial decision was conditional, where the facts satisfied those conditions when the initial decision was made, but where they no longer do so because of subsequent events. Prospective revocation of the decision is clearly an option in these circumstances. This was the result reached in Herpels,47 albeit indirectly. The applicant received a separation allowance because he lived in Brussels and worked in Luxembourg. He was transferred back to Brussels in 1968, but c­ ontinued to receive the allowance until the mistake was revealed in 1976. The ECJ held that while 42  Case C-26/16 Santogal M-Comércio e Reparação de Automóveis Lda v Autoridade Tributária e Aduaneira, EU:C:2017:453, [76]. 43  Cases 42 and 49/59 SNUPAT (n 31). 44  Case T-180/01 Euroagri Srl v Commission [2004] ECR II-369, [87]. 45  Ibid [87]. 46  Schonberg (n 1) 80. 47  Case 54/77 Herpels v Commission [1978] ECR 585.

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retroactive revocation of an erroneous decision was subject to strict conditions, such a decision could always be revoked for the future.48 There can also be cases where it is clear that the initial decision was subject to certain conditions that had to be met, and where the determination of whether those condi­ tions had been met could not be unequivocally decided until a later date. Where it is found at the later date that the conditions have not been fulfilled there is no breach of legitimate expectations when the Commission enforces such conditions strictly. This is exemplified by Interhotel-Sociedade.49 The applicant had been given a grant from the European Social Fund (ESF) for vocational training. The scheme under the ESF was for  the Commission, when it approved an application, to give an advance, with the remainder of the payment given on completion of the assignment, subject to approval by national authorities and in certain circumstances by the Commission that the task  had been completed in accord with the terms of the award initially given. The Commission refused to pay the full amount to the applicant on completion of the assignment, because certain expenditure had not been mentioned in the initial appli­ cation and other expenditure had not been properly documented. The CFI held that the Commission could reduce the final payment on both grounds without infringing the principle of legitimate expectations. The ESF rules provided for the possibility of financial assistance being recovered where the conditions for payment had not been fulfilled, and by parity of reasoning the applicant acquired no definitive right to full payment if the conditions were not met.50 It is, however, equally clear from Interhotel-Sociedade that the applicant must be able to know the conditions attached to the assistance granted. Thus the CFI also ­considered the legality of a reduction of the final payment to the applicant on the ground that certain expenses had not been allowed in the approval decision. The CFI found for the applicant on this point. It held that the approval decision communicated to the applicant indicated only the total amount granted and the number of persons approved. The Commission’s assessment concerning the eligibility of the proposed expenses was not brought to the applicant’s notice before completion of the project. In these circumstances, notwithstanding the fact that the rules did not require such details to be communicated to the applicant, the CFI held that it would breach legit­ imate expectations and legal certainty to reduce the final payment on this ground, since the beneficiary of the aid was not in a position to identify the detail of the items approved.51

48  Ibid [38]. 49  Case T-81/95 Interhotel-Sociedade Internacional de Hoteis SARL v Commission [1997] ECR II-1265. 50  Ibid [42], [46]–[47], [61]–[62]. See also Case T-126/97 Sonasa-Sociedade de Seguranca Ld v Commission [1999] ECR II-2793, [47], [59]; Cases T-46 and 151/98 CEMR v Commission [2000] ECR II-167, [68]–[70]; Cases 141–142 and 150–151/99 Vela Srl and Tecnagrind SL v Commission [2002] ECR II-4547, [224], [317], [391]; Case T-137/01 Stadtsportverband Neuss eV v Commission [2003] ECR II-3103, [46], [82], [84], [86]; Case T-180/01 (n 44); Case T-500/04 Commission v IIC Informations-Industrie Consulting GmbH [2007] ECR II-1443, [93]. 51  Case T-81/95 Interhotel-Sociedade (n 49) [49]–[59]; Cases T-46 and 151/98 CEMR (n 50) [72].

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(D)  Qualifications to the General Principle: Change of Policy The issue of whether the original decision is revocable can also arise when there has been a general change in policy, which has a marked impact on the decision initially made. Academic opinion tends to be against the ability to revoke the initial decision in such circumstances.52 This is a sound conclusion in terms of principle: if a decision was lawful at the time that it was made it should not in general be capable of being revoked either retroactively or prospectively merely because of a change of policy. This statement of principle assumes that the initial decision was not subject to ­conditions, express or implied. Where such conditions are expressly attached to the ­original decision, and the conditions are undermined by the change of policy, then the benefit may in principle be subject to prospective revocation. The same would be true if the conditions to which the initial decision was subject flowed from a statutory provision in force when that decision was made. These qualifications do not, however, affect the general proposition that a ­favourable, unconditional decision that has been duly notified to the applicant should not be able to be revoked merely because the decision-maker would, in the light of subsequent change in policy, have assessed the facts differently when making the original decision. If there were a later statutory provision that specifically allowed revocation in such circumstances it should in principle be open to challenge for breach of legitimate expectations. It is, however, not easy to find specific case law authority for the general principle set out above. The principle can nonetheless be supported inferentially by case law from three related areas. First, it coheres with the reasoning concerning the revocation of decisions in the seminal Algera case,53 which laid the foundations for the Courts’ jurisprudence in this area. It is also consistent with later case law, such as the Interhotel-Sociedade case,54 and CEMR,55 where the CFI affirmed the binding nature of matters approved in the ­original decision. While this case law is therefore consistent with the general principle propounded above, it was not specifically concerned with the situation where the Commission sought to justify revocation of the decision because of a shift in policy. Secondly, support for the general principle can also be found in the case law con­ cerned with retroactivity considered earlier.56 It is clear from this jurisprudence that the Union Courts are opposed to legislation that has an actual retroactive effect. This is so even in a non-criminal context, and retroactivity will only exceptionally be permit­ ted when there is a pressing EU objective and where the legitimate expectations of those concerned are duly respected. The paradigm situation to which this presumption applies is where activity that was generally lawful at the time that it was undertaken is rendered retrospectively unlawful by a later EU measure. That presumption should apply a fortiori when there is a formal decision that is sought to be revoked ­retroactively on account of a change in policy embodied in later legislation. 52  Schonberg (n 1) 81, 88; Schwarze (n 1) 1023–4. 53  Cases 7/56 and 3–7/57 Algera (n 30). 54  Case T-81/95 Interhotel-Sociedade (n 49). 55  Cases T-46 and 151/98 CEMR (n 50) [72]. 56  See above, at 601–4.

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Thirdly, the general principle adumbrated earlier can also be supported by the case law concerning changes of policy in the context of representations. This jurisprudence will be examined later.57 Suffice it to say for the present that the EU Courts have empha­ sized the mutability of policy, and thus it is not easy for an applicant who has relied on a policy embodied in an earlier general norm to claim a legitimate expectation when it is replaced by a later legislative norm. It is, however, evident that the EU Courts are also willing to recognize exceptional cases where legitimate expectations arise from the earlier provision, even where the expectation was based on something falling short of  a  formal decision. The normative argument for recognizing such a legitimate ­expectation is all the stronger when it is based on a formal decision. The general principle should therefore be that a favourable, unconditional decision that has been duly notified to the applicant should not be able to be revoked merely because the decision-maker would, in the light of subsequent change in policy, have assessed the facts differently when making the original decision. Retroactive revoca­ tion should normally be unlawful, and there would have to be very exceptional cir­ cumstances to warrant this. The onus should also be firmly on the defendant to justify any prospective revocation in the light of the change in policy. It should be for the defendant to show that the original decision is inconsistent with the new policy adopted. It would be for the Courts to decide whether this argument was prima facie sustainable, and assuming an affirmative answer, it would then be for the Courts to balance the harm to the applicant’s legitimate expectation flowing from the original decision with the public interest embodied in the new policy initiative. The balancing exercise will be considered in more detail later.58

6  Revocation of Unlawful Decisions (A)  The Nature of the Problem: Legality v Justice The discussion thus far has been concerned with the extent to which lawful decisions are revocable. We now consider the position where the initial decision is unlawful. This is an endemic problem faced by all legal systems. The tension between legality and individual justice is readily apparent. There is clearly a public interest in ensuring that the administration does not make decisions that are unlawful. The legal limits to the exercise of power are laid down in Treaty articles, regulations, and the like. If the administration makes a decision that is unlawful it is overstepping these limits, and there is therefore a public interest in ensur­ ing that such decisions can be overturned, more especially where the illegality can have a marked impact on third parties. It is, however, equally apparent that if unlawful decisions are always deemed to have no legal effect and can be retroactively revoked this can lead to serious consequences 57  See below, at 625–7.

58  See below, at 636–9.

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for the person who relied on the tainted decision. The legal rules that are applied to individuals will often be complex. The precise boundaries to the lawful exercise of power may not be evident even to the most assiduous of individuals dealing with gov­ ernment. Legal experts may differ as to the dividing line between lawful and unlawful exercise of power, and there may be differences of view between judges as to whether a particular measure falls on the lawful or the unlawful side of the divide. It is precisely because of the contending interests that are at play in this area, legality and individual justice, that there is a need for an approach that seeks to balance them in the circumstances of particular cases. This is in fact the general approach adopted by the EU Courts, as will be seen below.

(B)  Illegality and Legality: The Divide The burden of proving that the initial measure was illegal rests with the person that is seeking to withdraw it. In Lagardère and Canal59 the CFI found that a Commission decision in June 2000 declaring that a concentration was compatible with the common market gave the applicants subjective rights, more especially because the Commission approved certain ancillary restrictions notified to it as being necessary for the imple­ mentation of the concentration. The Commission then made a decision in July 2000 to the effect that the earlier decision was incorrect, and that the later decision was more consistent with the Commission’s past decisions and case law on ancillary restrictions. The CFI held that ‘the institution responsible for the act has the burden of proving the illegality of the withdrawn act’, and that it is ‘for that institution to prove that the other conditions for retrospective withdrawal are fulfilled’.60 The Commission had not shown that the earlier decision was illegal and it should not, therefore, have withdrawn it ­retrospectively.

(C)  Retroactive Revocation: Balancing The EU’s case law on the revocability of illegal decisions developed from decisions concerning the European Coal and Steel Community (ECSC).61 In Algera62 the ECJ, having considered German, French, and Italian law, concluded that an illegal adminis­ trative measure could be revoked retroactively, provided that this occurred within a reasonable period of time. It was, however, the SNUPAT case63 that developed this area of the law most fully. The scrap metal scheme imposed a levy on such metal, subject to an exception for scrap that resulted from a company’s own production. A competitor of SNUPAT, Hoogovens, received scrap from a company in its business group and it was decided 59  Case T-251/00 Lagardère SCA and Canal+ SA (n 34). 60  Ibid [141]. 61  Schwarze (n 1) 991–1025. 62  Cases 7/56 and 3–7/57 Algera (n 30) 55; Case T-25/04 González y Díez (n 13) [97]. 63  Cases 42 and 49/59 SNUPAT (n 31).

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that this benefited from the exemption for scrap coming from one’s own production. SNUPAT failed to receive a similar exemption for scrap coming from its business group, and therefore asked the administration to revoke retroactively the exemption granted to Hoogovens. This did not happen and therefore SNUPAT sought judicial review. The ECJ decided that the exemption granted to Hoogovens was unlawful and then considered whether it should be retroactively revoked. The Court stated that neither the principle of legal certainty nor that of legality could be applied in an absolute ­manner. Consideration should be given to both principles. Which principle prevailed in a particular case would depend on ‘a comparison of the public interest with the ­private interests in question’.64 In the instant case the relevant interests were,65 On the one hand, the interest of the beneficiaries and especially the fact that they might assume in good faith that they did not have to pay contributions on the ferrous scrap in question, and might arrange their affairs in reliance on the continuance of this position. On the other hand, the interest of the Community in ensuring the proper working of the equalization scheme, which depends on the joint liability of all undertakings consuming ferrous scrap; this interest makes it necessary to ensure that other contributors do not ­permanently suffer the financial consequences of an exemption ­illegally granted to their competitors.

The ECJ referred the decision on this balance of interests back to the High Authority, although this decision would itself be subject to judicial review. It is, however, clear from later cases that the EU Courts are willing to undertake this balancing. They will take into account the nature of the illegality, whether the illegal decision gave rise to any legitimate expectations for the person concerned, the impact that retroactive ­withdrawal of the decision would have on the individual, the effect on third parties, and the time that has elapsed between the initial decision and the attempt to revoke it. It is not easy for the individual to succeed, but this has occurred. In Consorzio Cooperative d’Abruzzo66 the applicant sought the annulment of a Commission decision that reduced by approximately one billion lire the amount of assistance granted from the European Agricultural Guidance and Guarantee Fund (EAGGF). The decision reducing the amount of assistance occurred two years after the earlier decision granting the applicant the higher amount. The Commission argued that retroactive revocation was justified because the earlier decision had been legally erroneous. The ECJ disagreed. It held that withdrawal of an unlawful measure was only permissible provided that the withdrawal occurred within a reasonable time, and provided that the Commission gave sufficient regard to how far the applicant might have been led to rely on the lawfulness of the measure.67 Retroactive revocation failed on both counts in this case. Two years had elapsed between the initial decision and the

64  Ibid 87. 65  Ibid 87; Case 14/61 Hoogovens v High Authority [1962] ECR 253. 66  Case 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005. 67  Ibid [12]; Case C-508/03 Commission v UK [2006] ECR I-3969, [68].

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later decision reducing the aid. This was not a reasonable period of time, since the Commission could have discovered and corrected its error far sooner. Moreover, the applicant was justified in relying on the legality of the initial decision, since the irregularities were not discernible. The ECJ also found that the balancing favoured the applicant in de Compte.68 It will be recalled that the defendant sought to justify the retroactive withdrawal of an earlier decision on the ground that it was illegal, being based on an erroneous interpretation of occupational injury. The ECJ rejected the defence. It held that an illegal measure could be retroactively withdrawn within a reasonable period of time, but that the right to withdraw was restricted by the need to respect the legitimate expectations of the beneficiary of the measure, who had been led to rely on its lawfulness. In this instance the applicant was entitled to have confidence in the apparent legality of the measure that the defendant now sought to revoke. There was nothing to suggest that the appli­ cant had ‘provoked’ the earlier decision through false or incomplete information. Nor was there any public policy interest in overriding the beneficiary’s justifiable belief in the maintenance of a situation that he was entitled to regard as stable. Confidence in the apparent legality of the measure was an important factor in Lagardère and Canal.69 The CFI held, as we have seen, that the initial decision was not  in fact unlawful and could not therefore be withdrawn retrospectively. It held, ­moreover, that even if the original decision had been tainted with illegality concerning the meaning of ancillary restriction this would still not have justified retroactive with­ drawal. Any inconsistency in the meaning of ancillary restrictions was not so manifest as to raise doubts for the applicants when they received the original decision, which seemed untainted by any error. There was nothing to give rise to doubts as to its legality in the minds of the applicants as careful business undertakings. Retroactive withdrawal would, therefore, be contrary to the applicant’s legitimate expectations.70 By way of contrast, an applicant will fail in the balancing test where it is unable to demonstrate any legitimate expectation flowing from the original measure. It is clear that an applicant will be unable to demonstrate a legitimate expectation to trigger the balancing test where it has been guilty of illegality, as in Conserve Italia.71 The applicant had been granted assistance from the EAGGF. It was discovered that the applicant had broken the rules by purchasing equipment prior to the approval of the aid. The Commission cancelled the assistance and this was held to be within its powers under the relevant Structural Fund regulations. The ECJ firmly rejected the applicant’s argu­ ment concerning legitimate expectations. It reiterated the principle that an illegal act advantageous to an individual could be withdrawn retroactively, provided that it did not infringe legal certainty or legitimate expectations. The ECJ then noted that given that this was possible where the beneficiary of the aid did not contribute to its illegality, 68  Case C-90/95 P Henri de Compte (n 36); Case T-416/04 Kontouli (n 39) [161]–[170]; Case F-51/07 Philippe Bui Van v Commission, EU:F:2010:108. 69  Case T-251/00 Lagardère SCA and Canal+ SA (n 34). 70  Ibid [146]–[150]. 71  Case C-500/99 P Conserve Italia Soc Coop arl v Commission [2002] ECR I-867.

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the possibility of retroactive withdrawal applied a fortiori where the illegality was attributable to the applicant.72 An applicant will also find it difficult to succeed where the illegality that besets the measure is obvious, thereby undermining any legitimate expectation in its continu­ ance. Thus in Cargill73 the ECJ reiterated the principle that the right to withdraw an  illegal measure retroactively was qualified by the need to fulfil the legitimate ­expectations of the beneficiary who had been led to rely on its lawfulness. It found, however, that the measure in question was revoked within three months of the defect becoming apparent. Moreover, the defect in the measure was so obvious that several traders had contacted the Commission when it was published in order to bring the error to its attention. The prudent trader could not therefore have been led to rely on the lawfulness of a measure containing such an error. The applicant’s chances of success will be further diminished where it is unable to show any reliance on the lawfulness of the measure later found to be illegal, more espe­ cially if it cannot show any adverse effect by the lapse of time between the original measure and its later rectification. Alpha Steel74 exemplifies this point. The applicant company was granted a steel quota for a certain period, which it challenged as being unlawful. When these proceedings had begun the Commission replaced the contested decision with another decision, on the ground that the former had been made errone­ ously. The later decision, nonetheless, fixed the quota at a lower level than the earlier decision. The applicant argued that the Commission could not withdraw a decision that was the subject of a legal action and replace it with one that was even more ­detrimental to it. The ECJ disagreed. It applied the principle from Algera,75 to the effect that withdrawal of an unlawful measure was permissible if it occurred in a reasonable time, and provided that regard was had as to how far the applicant might have been led to rely on the lawfulness of the measure. The ECJ found that the applicant had not relied on the lawfulness of the earlier decision. To the contrary, it had challenged its  legality and was aware also of the Commission’s misgivings about the original ­decision. Nor had the applicant shown that it was affected adversely by the time that had elapsed before the later decision, which had in any event been made reasonably promptly given that the Commission had to process data concerning a large number of ­undertakings.76

(D)  Prospective Revocation: Balancing The discussion thus far has been concerned with retroactive revocation of unlaw­ ful  measures and the balancing test that the EU Courts undertake. It is now 72  Ibid [90]. 73  Case C-365/89 Cargill BV v Produktschap voor Margarine, Vetten en Olien [1991] ECR I-3045, [18]; Case C-248/89 Cargill BV v Commission [1991] ECR I-2987, [20]. 74  Case 14/81 Alpha Steel (n 38). 75  Cases 7/56 and 3–7/57 Algera (n 30). 76  Case 14/81 Alpha Steel (n 38) [11]–[12].

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­ ecessary to consider the position with respect to prospective revocation of unlawful­ n measures. The positive law is not entirely clear. There are some judicial statements indicating that prospective revocation is always possible, simply as a matter of principle.77 There are other judgments that are more nuanced or ambiguous. Thus the formulation in Herpels was that while retroactive revocation of a wrongful or erroneous decision was subject to strict conditions, revocation of such a decision for the future was always ­possible.78 This could mean that prospective revocation would always be possible, and  that it would not be subject to conditions. It could, alternatively, mean that ­prospective revocation would always be possible, subject to less strict conditions than those ­applicable for retroactive revocation. The latter interpretation is preferable in terms of principle. Prospective revocation will, other things being equal, be less dramatic for the applicant than retroactive revo­ cation. It is, however, readily apparent that prospective revocation might cause consid­ erable hardship to the individual. Take the de Compte79 case by way of example. The applicant might well have changed his circumstances in reliance on the representation that he could receive benefits for occupational stress, such that it would no longer be possible for him to return to work in the European Parliament, or in any similar ­occupation. If this were so, it would be scant comfort for him to be told that while his  ­benefits for occupational stress could not be revoked retroactively, they could nonetheless be withdrawn prospectively. There may be cases where the facts are differ­ ent, and where the payment of a benefit that turns out to be unwarranted can be ­withdrawn prospectively without undue hardship for the recipient. A balancing test for cases of prospective revocation would, however, allow such matters to be determined in individual cases. It should, moreover, be recognized that to allow prospective revocation without any consideration for the position of the applicant could undermine the rules about retroactive revocation considered earlier. Thus, it would be scant comfort for the appli­ cants in a case such as Lagardère and Canal80 to be told that while the decision author­ izing their concentration could not be withdrawn retroactively, it could be withdrawn prospectively. There is, therefore, no reason why the same type of balancing exercise that applies to retroactive revocation should not be applicable here. The Courts should be equally willing to weigh the legality interest against the justice interest so far as it relates to the  individual. They should take account of whether the original measure gave rise to ­legitimate expectations and whether the prospective revocation occurred within a reasonable time. The nature of the test should, therefore, be the same as that applicable to retroactive revocation, but the Courts might apply it less strictly because the case was concerned with prospective as opposed to retrospective revocation.

77  Case 15/60 Simon v High Authority [1961] ECR 115, 123. 78  Case 54/77 Herpels (n 47) [38]. 79  Case C-90/95 P Henri de Compte (n 36). 80  Case T-251/00 Lagardère SCA and Canal+ SA (n 34).

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7  Departure from Individual Representations The discussion thus far has been concerned with revocation of formal decisions. We now turn to cases where an individual claims a legitimate expectation flowing from a specific representation made to that person or group. A number of conditions have to be satisfied before a claim of this kind can succeed.

(A)  The Nature of the Representation: Precise and Specific Assurance The general principle is that protection of legitimate expectations extends to any indi­ vidual who is in a situation from which it is clear that, in giving precise and specific assurances,81 the Union institutions caused that person to entertain justified hopes.82 There are no strict rules as to the form of the representation.83 It can arise from letters,84 faxes,85 reports,86 communications,87 administrative practice,88 codes of conduct,89 and the like.90 A legitimate expectation cannot, however, arise from the unilateral action of the person seeking to plead the expectation.91 The crucial issue for the applicant is, however, to show that the representation, in whatever form it was issued, was sufficiently precise and specific to give rise to a ­legitimate expectation. It is this hurdle that applicants have found difficult to surmount, since the EU Courts will not readily find that this criterion has been met.92 This is apparent from consideration of cases arising in a variety of different areas. 81 Case T-72/99 Meyer v Commission [2000] ECR II-2521; Case T-290/97 Mehibas Dordtselaan BV v Commission [2000] ECR II-15. 82  Case T-489/93 Unifruit Hellas EPE v Commission [1994] ECR II-1201; Case T-534/93 Grynberg and Hall v Commission [1994] ECR II-595; Case T-456/93 Consorzio Gruppo di Azioni Locale Murgia Messapica v  Commission [1994] ECR II-361; Case C-537/08 P Kahla Thüringen Porzellan GmbH v Commission, EU:C:2010:769, [63]; Case C-545/11 Agrargenossenschaft Neuzelle eG v Landrat des Landkreises Oder-Spree, EU:C:2013:169, [22]–[26]; Cases T-50 and 69/06 RENV II Ireland and Aughinish Alumina Ltd v European Commission, EU:T:2016:227, [213]; Case C-560/15 Europa Way Srl and Persidera SpA v Autorità per le Garanzie  nelle Comunicazioni, EU:C:2017:593, [78]–[79]; Case C-411/15 P CFPR v European Commission, EU:C:2017:11, [134]. 83  Schonberg (n 1) 120–2. 84  Case 144/82 Detti v ECJ [1983] ECR 2439. 85  Cases T-46 and 151/98 CEMR (n 50) [79]–[80]. 86  Case 265/85 Van den Bergh en Jurgens and Van Dijk Food Products v Commission [1987] ECR 1155. 87  Case T-7/89 Hercules v Commission [1991] ECR II-1711, [53]–[55]. 88  Case T-310/00 MCI, Inc v Commission [2004] ECR II-3253, [112], provided that the administrative prac­ tice is not contrary to legislation in force and does not involve the exercise of discretion. 89  Case C-313/90 CIRFS v Commission [1993] ECR I-1125. 90  Cases 424–425/85 Frico v VIV [1987] ECR 2755, [32]–[33]. 91  Case T-107/02 GE Betz, Inc, formerly BetzDearborn Inc v OHIM [2004] ECR II-1845, [87]. 92  See, eg, Case T-65/98 Van den Bergh Foods Ltd v Commission [2003] ECR II-4653, [186]; Case T-223/00 Kyowa Hakko Kogyo Co Ltd and Kyowa Hakko Europe GmbH v Commission [2003] ECR II-2553, [38]–[54]; Case T-283/02 EnBW Kernkraft GmbH v Commission [2005] ECR II-913; Cases 213–214/01 Österreichische Postsparkasse AG and Bank für Arbeit und Wirtschaft AG v Commission [2006] ECR II-1601, [210]–[213]; Case  C-47/07 P Masdar (UK) Ltd v Commission [2008] ECR I-9761, [76]–[87]; Case C-414/08 P Sviluppo Italia Basilicata SpA v European Commission, EU:C:2010:165, [107]; Case C-566/14 P Marchiani v European Parliament, EU:C:2016:437, [77]–[78].

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In Innova Privat-Akademie93 the applicant sought damages for loss caused by the Commission’s decision not to award a grant to finance a feasibility study for the setting up of a joint venture for professional training in India. Such grants could be given ­pursuant to a scheme designed to promote investment by operators in areas such as Asia and Latin America. The applicant claimed that the Commission’s decision was unlawful because it violated legitimate expectations that the Commission would approve the grant, this expectation being said to flow from faxes sent by the Commission. The CFI reiterated the principle that the protection of legitimate expectations extended to any individual in a situation where the EU authorities had given precise and uncon­ ditional assurances that caused the applicant to entertain the legitimate expectation. It denied, however, that this test was met in the instant case. The relevant faxes did not, said the CFI, contain a precise assurance that the grant would be given. They merely indicated a provisional conclusion and contained an explicit statement that the formal decision would follow thereafter. In Alpharma94 the applicant challenged the withdrawal of authorization for certain additives in feeding stuffs and argued that the withdrawal was in breach of legitimate expectations. The applicant acknowledged that it could not have a legitimate e­ xpectation that the EU would never exercise its discretionary power to withdraw the authorization of this particular feeding stuff if it were in the interest of public health to do so. It claimed, nonetheless, that the fact that the relevant Directive established a surveillance pro­ gramme to assess possible problems about resistance to antibiotics induced by additives in animal feed created a situation in which it could reasonably expect that no decision banning its additive would be taken before the results of the programme were known. The applicant argued that these expectations were encouraged by a Commission letter and by statements made by the Agriculture Commissioner. The CFI found to the con­ trary. It held that neither the Directive, nor the surveillance programme set up by the Commission, gave any indication that a decision to withdraw the authorization for additives would be conditional on completion of the research. The Court held that there was sufficient evidence for the EU institutions to conclude that the additive constituted a risk to health that warranted the taking of protective measures. This justified accord­ ing priority to human health over the conclusion of research in progress, even though the research had been initiated by the EU and led to considerable expense for the indus­ try.95 The CFI also rejected the argument for legitimate expectations based on the Commission’s letter and statements by the Commissioner for Agriculture on the ground that neither gave the precise and specific assurance claimed by the applicant.96 In Martinez97 a number of MEPs formed a group called TDI (Technical Group of Independent Members). Its declared purpose was to ensure that all MEPs were able to 93 Case T-273/01 Innova Privat-Akademie GmbH v Commission [2003] ECR II-1093; Case C-443/07 Mediavilla v Commission [2008] ECR I-10945, [89]–[91]. 94  Case T-70/99 Alpharma Inc v Council [2002] ECR II-3495. 95  Ibid [375]–[377]. 96  Ibid [378]–[379]. 97  Cases T-222, 327 and 329/99 Jean-Claude Martinez, Charles de Gaulle, Front National and Emma Bonino v European Parliament [2001] ECR II-2823.

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exercise their parliamentary mandates, but the members of TDI retained their political independence from each other. The European Parliament decided that TDI did not fulfil the requirements for a political grouping as laid down by the European Parliament’s rules of procedure, because the TDI’s members did not share any political affiliation. The members of TDI argued that other ‘technical’ groups had been established in the European Parliament over the past twenty years and therefore there was a legitimate expectation that TDI should be regarded as a political group within the Parliament. The CFI rejected the argument based on past practice, on the ground that the other groups established differed from TDI, since they did not reject the notion of shared political affinity. This past practice could not therefore give rise to any specific assur­ ance in the minds of the founders of TDI that it would be accepted as a group within the European Parliament. The great majority of claims for breach of legitimate expectation fail because the applicant cannot establish the requisite precise and specific assurance. There are, how­ ever, instances where this aspect of the claim has been held to be met. Thus in Embassy Limousines98 it was held that there could be a breach of legitimate expectations where a company submitting a tender was encouraged to make irreversible investments in advance of the contract being awarded, and thereby to go beyond the risks inherent in  making a bid. In CEMR99 the CFI held that the Commission could not, without ­infringing legitimate expectations, reduce the budgetary allocation for a project financed from the Structural Funds where the relevant work had been included in the original budget that had been accepted by the Commission. A legitimate expectation was also sustained in the MCI case, where the CFI held that parties to a merger had a legitimate expectation that a letter they had written indicating that they would not proceed with the merger in its current form would result in closure of the file, in accord with the Commission’s prior administrative practice that had been made public and in the absence of indications to the contrary.100 A further example is apparent from state aids. In ARAP101 the ECJ held that when the Commission had before it a specific grant of aid alleged to have been made pursuant to a previously authorized scheme, it could not at the outset examine it directly in relation to the Treaty. It should rather examine whether the aid was covered by the general scheme. If  it did not do so, the Commission could, whenever it examined an individual aid measure, go back on its decision approving the general aid scheme, which had already been examined in the light of the primary Treaty articles. This would jeopardize the ­principles of legitimate expectations and legal certainty. It is, moreover, clear that in exceptional circumstances delay by the Commission in seeking the recovery of aid that has been granted in breach of the Treaty provisions may give rise to a legitimate

98 Case T-203/96 Embassy Limousines & Services v European Parliament [1998] ECR II-4239; Case T-271/04 Citymo SA v Commission [2007] ECR II-1375, [138]–[156]. 99  Cases T-46 and 151/98 CEMR (n 50). 100  Case T-310/00 MCI (n 88). 101  Case C-321/99 P Associação dos Refinadores de Açúcar Portugueses (ARAP) v Commission [2002] ECR I-4287, [83].

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e­ xpectation in the recipient of the aid so as to prevent the Commission seeking to recover it.102

(B)  The Conduct of the Representee: The Prudent Trader An applicant’s claim for breach of legitimate expectations will fail if the conduct com­ plained of could have been foreseen by a prudent, discriminating, and well-informed trader. Thus in Van den Bergh103 the applicants were producers of edible fats who claimed to have suffered loss as a result of the implementation of a Christmas butter scheme, which was designed to reduce excess stocks of butter by reducing prices. The applicants claimed that the introduction of this scheme was in breach of the principle of l­ egitimate expectations. They argued that the Commission had stated publicly on a number of occasions that such schemes were not capable of reducing the available stocks and therefore that they had no reason to expect that the Commission would introduce such a scheme again. The ECJ found that the Commission had not given an undertaking that such schemes would never be used again, and had at the most indicated that they would be used in moderation. In such circumstances ‘the possibility could not be excluded that a further Christmas butter scheme would be operated and a prudent and discriminating trader ought to have taken that possibility into account’.104 The plea of breach of legitimate expectations therefore failed. The demands placed on the trader to be prudent, discriminating, and well informed have led to the failure of many claims for legitimate expectations, more especially in the areas where common policies operate, such as agriculture, fisheries, and transport. The rules in these areas are frequently changed to cope with factors that affect these markets. It is, therefore, especially difficult to sustain a claim for legitimate ­expectations, since the Union Courts will expect the prudent trader to factor the possibility of such change into their own market calculations.105 It is clear, moreover, that the trader must be legally as well as factually well informed, even though this can be very demanding. Thus in Behn,106 the applicant had imported paper from non-Member States and had paid customs duties of 3 and 7.5 per cent in reliance on the rates laid down in the customs tariff manual published by the German

102  Cases C-74 and 75/00 P Falck (n 7) [140]; Case C-298/00 P Italy v Commission [2004] ECR I-4087, [90]. 103  Case 265/85 Van den Bergh en Jurgens (n 86). 104  Ibid [45]. 105 Case 78/77 Luhrs v Hauptzollamt Hamburg-Jonas [1978] ECR 169; Case 127/78 Spitta & Co v Hauptzollamt Frankfurt/Main-Ost [1979] ECR 171; Case C–350/88 Delacre v Commission [1990] ECR I-395; Case T–489/93 Unifruit Hellas (n 82); Case T-336/94 Efisol SA v Commission [1996] ECR II-1343; Cases T–466, 469, 473, 474 and 477/93 O’Dwyer v Council [1996] ECR II-2071; Cases T-142 and 283/01 Organización de Productores de Túnidos Congelados (OPTUC) v Commission [2004] ECR II-329; Case C-342/03 Spain v Council [2005] ECR I-1975, [48]; Cases C-182 and 217/03 Belgium and Forum 187 ASBL v Commission [2006] ECR I-5479, [147]; Case C-519/07 P Commission v Koninklijke FrieslandCampina NV [2009] ECR I-8945, [84]; Case T-290/12 Poland v European Commission, EU:T:2015:221, [55]–[56]. 106  Case C-80/89 Behn Verpackungsbedarf GmbH v Hauptzollamt Itzehoe [1990] ECR I-2659.

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Finance Ministry. The rates that should have been paid were, however, 3.2 and 8 per cent, and the German customs office sought payment of the difference. The appli­ cant resisted and argued that he could not reasonably have detected the error made in the German manual, and therefore should not have to pay the extra amount. The EU customs legislation provided a defence to claims for payment couched in these terms.107 The referring court was clearly sympathetic to the applicant and questioned whether the vigilance demanded of the individual might be excessive, insofar as he would be expected to be better informed than the German Finance Ministry and Customs Office as to the applicable rates. The ECJ did not share this sympathy: the ‘applicable Community tariff provisions constituted the sole relevant positive law as from the date of their publication in the Official Journal of the European Communities, and every­ one was deemed to know that law’.108 It was therefore for the trader to read the Official Journal and acquaint himself with the relevant rules. While the obligation for a trader to be prudent and well informed will be of particu­ lar significance in cases concerned with common policies, it can also be a difficult hurdle to overcome in other types of case. This is evident from Alpharma.109 We have already seen that the applicant failed to convince the CFI that there had been any pre­ cise and specific undertaking. The CFI reinforced this by finding that Alpharma could have foreseen the possibility that the authorization of its product as an additive would be withdrawn. It held that Alpharma as a prudent and discriminating operator in the pharmaceutical sector knew, or should have known, that where authorization was granted under the relevant Directive it could be withdrawn where there was a risk to human health. This possibility was, said the CFI, made all the greater by reports from international, EU, and national bodies and from scientific publications, all of which should have put the company on notice as to the possibility of Community action removing the authorization. It is clear that the EU Courts take a strict view of what traders and indeed EU employees110 should foresee. Schonberg has rightly questioned the strictness of this approach.111 While this view may be suitable for the largest and most well-informed economic o ­ perators, many smaller and less experienced operators are, as a result of increasing European ­integration, involved in cross-border trade. There is arguably room for a more flexible and liberal approach towards such operators and private individuals who rely upon statements from the Community administration.

107  Council Regulation 1697/79/EEC of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment of goods entered for a customs procedure involving the obligation to pay such duties [1979] OJ L197/1, Art 5(2). 108  Case C-80/89 Behn (n 106) [13]. 109  Case T-70/99 Alpharma (n 94) [380]; Cases C-13–16/92 Driessen en Zonen v Minister van Verkeer en Waterstaat [1993] ECR I-4751, [33]–[35]; Case T-264/07 CSL Behring GmbH v European Commission and European Medicines Agency (EMA), EU:T:2010:371, [121]. 110  Case 3/83 Abrias v Commission [1985] ECR 1995, [23]–[27]; Cases T-576–582 Browet v Commission [1994] ECR II-677, [46]. 111  Schonberg (n 1) 128.

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(C)  The Conduct of the Representee: The Legitimacy of the Claim The conduct of the applicant claiming that there is a legitimate expectation will also be relevant. There are three types of factor that should be distinguished in this respect. First, the EU Courts will assess the legitimacy of the expectation against the general framework of the applicable Union rules in the relevant area. Thus, it was held in Regione autonoma della Sardegna112 that since the impact of what is now Article 108 TFEU was to suspend the grant of state aid pending an EU decision, an applicant could not legitimately expect that aid would be approved until a formal, positive decision had  been made to this effect under the relevant Regulation. Similarly in Daewoo Electronics113 the ECJ held that given the mandatory nature of the review of state aid under Article 108 TFEU, undertakings to which aid had been granted could not entertain a legitimate expectation that the aid was lawful unless it had been granted in accord with the procedure in that Article, and that a diligent businessman should normally be able to determine whether that procedure had been followed. Secondly, it is clear that wrongdoing by the applicant will defeat the claim.114 This includes the case where the alleged expectation is based on fraud or deception. Thus in Kol115 the ECJ held that employment under a residence permit obtained by fraudulent conduct could not give rise to any legitimate expectation. It is clear that wrongdoing can preclude the claim even where there is no fraud. In Sideradria116 the ECJ tersely rejected the applicant’s claim based on legitimate expectations on the ground that since the company had manifestly broken the rules on quotas for steel production it could not plead legitimate expectations. Similarly in Oliveira117 the CFI stated unequivocally that the grant of assistance from the ESF was conditional on compliance by the benefi­ ciary with the conditions set out in the decision of approval. The beneficiary could not invoke the principle of legitimate expectations where the conditions attached to the award had been broken, since that principle could not be relied on by an undertaking that had committed a manifest infringement of the relevant rules. Thirdly, the EU Courts have rejected claims even where there is no actual ­wrongdoing by the applicant, where it is felt that the expectation was, nonetheless, not ­legitimate. This has been so where, for example, the challenged activity was designed to close a legal gap to prevent traders from making a speculative profit. Thus in Mackprang,118 112  Case T-171/02 Regione autonoma della Sardegna v Commission [2005] ECR II-2123, [64]–[69]. 113 Cases C-183 and 187/02 P Daewoo Electronics Manufacturing España SA (Demesa) and another v Commission [2004] ECR I-10609, [44]–[48]; Case C-278/00 Greece v Commission [2004] ECR I-3997, [104]; Cases C-346 and 529/03 Atzeni and others v Regione autonoma della Sardegna [2006] ECR I-1875, [64]–[65]; Case T-369/06 Holland Malt v Commission [2009] ECR II-3313, [179]. 114  Cases C-65 and 73/02 P ThyssenKrupp GmbH and another v Commission [2005] ECR I-6773, [40]–[41]. 115  Case C-285/95 Kol v Land Berlin [1997] ECR I-3069, [28]. 116  Case 67/84 Sideradria SpA v Commission [1985] ECR 3983, [21]. 117  Case T-73/95 Estabelecimentos Isidore M Oliveira SA v Commission [1997] ECR II-381; Case T-126/97 Sonasa—Sociedade Nacional de Segurança v Commission [1999] ECR II-2793; Case T-199/99 Sgaravatti Mediterranea Srl v Commission [2002] ECR II-3731; Case T-347/03 Eugénio Branco Ld v Commission [2005] ECR II-2555, [102]–[109]. 118  Case 2/75 Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Firma C Mackprang [1975] ECR 607.

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the ECJ rejected a challenge to a Commission decision made under the Common Agricultural Policy (CAP). The decision was made to prevent traders making a specu­ lative profit that undermined the overall purpose of the regime. The decision could not, therefore, be attacked for breach of legitimate expectations. The same principle is evident in Weidacher,119 where the ECJ, in rejecting the claim based on legitimate expectations, stated that the EU institutions had not given any indication that they would not take measures to prevent the accumulation of speculative profits as a result of enlargement.

8  Representations and Changes in Policy The discussion thus far has been concerned with representations of an individual nature. We should now turn to those situations where a general norm or policy choice, which an individual or group has relied on, is replaced by a different policy choice. This type of case is especially difficult because of the obvious need for government to alter policy.

(A) The General Principle: Mutability and No Legitimate Expectation It is clear that the mere fact that a trader is disadvantaged by a change in the law will not give cause for complaint based upon legitimate expectations. A trader will not be held to have a legitimate expectation that an existing situation, which is capable of being altered by decisions taken by the institutions within the limits of their discretion­ ary powers, will be maintained.120 This is particularly so in the context of the CAP, where constant adjustments to meet new market circumstances are required. It is also

119  Case C-179/00 Weidacher v Bundesminister für Land- und Forstwirtschaft [2002] ECR I-501, [30]–[35]. 120  Case 52/81 W Faust v Commission [1982] ECR 3745, 3762; Case 245/81 Edeka v Federal Republic of Germany [1982] ECR 2745, 2758; Case C-350/88 Société française des Biscuits Delacre v Commission [1990] ECR I-395; Cases C-133, 300 and 362/93 Crispoltoni v Fattoria Autonoma Tabachi and Donatab [1994] ECR I-4863; Case C-63/93 Duff v Minister for Agriculture and Food Ireland and the Attorney General [1996] ECR I-569; Case C-22/94 Irish Farmers Association v Minister for Agriculture, Food and Forestry (Ireland) and the Attorney General [1997] ECR I-1809; Case C-372/96 Pontillo v Donatab [1998] ECR I-5091; Case C-104/97 P Atlanta AG v Commission and Council [1999] ECR I-6983; Case C-402/98 ATB v Ministero per le Politiche Agricole [2000] ECR I-5501; Case C-110/97 Netherlands v Council [2001] ECR I-8763; Case C-340/98 Italy v Council [2002] ECR I-2663; Cases C-37 and 38/02 Di Leonardo Adriano Srl and Dilexport Srl v Ministero del Commercio con l’Estero [2004] ECR I-6911; Cases T-64–65/01 Afrikanische Frucht-Compagnie GmbH and another v Commission [2004] ECR II-521; Case C-17/03 Vereniging voor Energie, Milieu en Water and others v Directeur van de Dienst uitvoering en toezicht energie [2005] ECR I-4983, [73]–[87]; Case C-310/04 Spain v Commission [2006] ECR I-7285, [81]–[84]; Case C-241/07 JK Otsa Talu OÜ v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA) [2009] ECR I-4323, [51]; Case C-449/08 Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit [2009] ECR I-10241, [45]; Case C-496/08 P Pilar Angé Serrano and Others v European Parliament [2010] ECR I-1793, [93]; Case T-79/13 Accorinti v European Central Bank, EU:T:2015:756, [76].

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so in other areas, such as competition policy, where the EU Courts have emphasized the Commission’s discretion to alter the level of fines within the limits allowed by the relevant empowering regulations.121 This is exemplified by the ATB case.122 The case was concerned with the common organization of the tobacco market. The primary Regulation dating from 1992 pro­ vided for a system whereby tobacco producers were paid premiums by processing undertakings when they delivered the tobacco. It was, however, made clear in this Regulation that this regime would be transitional and that subsequent measures would be taken to ensure that the quotas were allocated to producers directly. The processing quota system was duly replaced by a production quota system through a Regulation in 1995. The applicants challenged this Regulation, on the ground that it came into effect in early April 1995, by which time planting decisions for tobacco for that harvest year had already been taken. They argued that the 1995 Regulation should, therefore, be annulled on the ground that it infringed their legitimate expectations, since they had suffered losses amounting to the difference between the production quota and the ­processing quota. The ECJ dismissed the claim.123 [W]hilst the protection of legitimate expectations is one of the fundamental principles of the Community, economic operators cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretion will be maintained; this is particularly true in an area such as the common organisation of the markets, the object of which entails constant adjustments to meet changes in the economic situation. It follows that economic operators cannot claim a vested right to the maintenance of an advantage which they derive from the establishment of the common organisation of the markets and which they enjoyed at a given time.

The ECJ found that there was no infringement of legitimate expectations, given that the 1992 Regulation provided that the production quota regime should be introduced by Member States by 1995 at the latest. The producers had, therefore, known that the new system would be introduced and the 1995 Regulation merely confirmed this. It is clear that the principle contained in the preceding quotation will apply even if there is nothing in the earlier regulation indicating that it is transitional. It is the very nature of the constant adjustment to meet changes in economic situation that pre­ cludes a legitimate expectations claim based on the earlier regulation. Thus in Cordis124 the applicant challenged the reference period by which licences for  import of bananas were determined. The reference period in the earlier 1993 Regulation was changed by a Regulation enacted in 1998. The applicant argued that this infringed its legitimate expectations. The CFI disagreed. It reiterated the principle that the EU institutions have a margin of discretion in the choice of means to achieve 121  Case T-31/99 ABB Asea Brown Boveri Ltd v Commission [2002] ECR II-1881; Case T-23/99 LR AF 1998 A/S v Commission [2002] ECR II-1705; Cases C-189, 202, 205, 208 and 213/02 P Dansk Rørindustri (n 17) [171]–[173]. 122  Case C-402/98 ATB (n 120). 123  Ibid [37]. 124  Case T-18/99 Cordis Obst und Gemüse Großhandel GmbH v Commission [2001] ECR II-913.

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their policy, with the consequence that operators cannot claim a legitimate expectation that an existing situation that is capable of being altered by decisions taken within the limits of their discretionary power will be maintained. This was especially so in an area such as the common organization of markets, which involved constant adjustments to meet changes in the economic situation. The applicant could not, therefore, have a legitimate expectation that the relative timing of the reference period for the issuing of import licences as provided in the 1993 Regulation would be maintained.125 The same point is apparent in Italy v Council.126 In rejecting a challenge to rules concerning the sugar market, the ECJ held that since the 1981 Regulation governing the issue required the Council and Commission each year to determine intervention prices, minimum prices, and increased prices afresh on the basis of the pattern of pro­ duction and consumption, economic operators could not, therefore, have a legitimate expectation that the prices fixed for previous marketing years would be maintained.

(B)  The Exceptions: Bargain, Assurance, and Legitimate Expectation It will, therefore, be difficult for an applicant to show that there is a legitimate ­expectation where a general policy choice embodied in an earlier regulation or directive is replaced by a later regulation or directive that modifies the policy. There are, however, instances where the EU Courts have been willing to find a legitimate ­expectation. The applicant must be able to point either to a bargain of some form between the individual and the authorities, or to a course of conduct or assurance on the part of the authorities, which can be said to generate the legitimate expectation. The Mulder case127 illustrates the first of these situations. The Community, in order to reduce an excess of milk, passed a Regulation in 1977 under which producers could cease milk production for a certain period in exchange for a premium for non-market­ ing of the milk. The applicant made such an arrangement in 1979 for five years. In 1984 he planned a resumption of production and applied to the relevant Dutch authorities for a reference quantity of milk, which he would be allowed to produce without incur­ ring the payment of any additional levy. He was refused on the ground that he could not prove milk production during the relevant reference year, which was 1983. This was impossible for Mulder, since he did not produce at all during that period, because of the bargain struck in 1979. He challenged the 1984 Regulation, arguing that it infringed his legitimate expectations. The ECJ found in his favour. It held that a producer who voluntarily ceased pro­ duction for a certain period could not legitimately expect to resume production under the same conditions as those which previously applied and not to be subject to any rules adopted in the interim period. However, where a producer was encouraged by a Community measure to suspend marketing for a limited period in the general

125  Ibid [74]–[76]. 126  Case C-340/98 Italy v Council (n 120). 127  Case 120/86 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321.

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interest and against payment of a premium, he could legitimately expect not to be subject, upon the expiry of his undertaking, to restrictions which specifically affected him ­precisely because he availed himself of the possibilities offered by the Community ­provisions.128 The contested Regulations meant that producers could be denied a reference quantity under the new system because of the undertaking given in 1979. There was, said the ECJ, nothing in the 1977 Regulation to show that the non-­ marketing undertaking entered into might, when it expired, entail a bar to resump­ tion of the activity in q ­ uestion. This therefore frustrated those producers’ legitimate expectations that the effect of the system to which they had rendered themselves would be limited.129 The following cases illustrate the second type of situation, where the legitimacy of the applicant’s expectation is based upon some course of conduct by the administra­ tion, or an assurance it has given. In Sofrimport130 the applicant sought to import apples from Chile. A licence was required in accordance with the relevant Regulation. By a later Regulation the Commission took protective measures and suspended all such licences for Chilean apples. The parent Regulation, 2707/72,131 which gave the Commission power to adopt protective measures, specifically stated in Article 3 that account should be taken of the special position of goods in transit, since such measures could have a particularly harmful effect on traders. The applicant’s goods were already in transit when the Regulation suspending licences for the import of Chilean apples was introduced, but they were refused entry to the Community. The Court held that the Commission’s failure to make any special provision for goods in transit as required by the parent Regulation infringed the applicant’s legitimate expectations.132 A similar theme is apparent in CNTA.133 The case centred on monetary compensa­ tion amounts (MCAs), which were payments designed to compensate for fluctuations in exchange rates. The applicant was a firm which had made export contracts on the supposition that MCAs would be payable. After these contracts had been made, but before they were performed, the Commission passed a Regulation abolishing MCAs in that sector. The applicant suffered loss, since it had made the contracts on the assump­ tion that the MCAs would be payable. The Court held that, while MCAs could not be said to insulate exporters from all fluctuations in exchange rates, they did shield them from such risks, with the consequence that even a prudent exporter might choose not to cover against it. The Court then stated:134 In these circumstances, a trader might legitimately expect that for transactions ­irrevocably undertaken by him because he has obtained, subject to a deposit, export licences fixing the

128  Ibid [24]. 129  Ibid [26]. 130 Case C-152/88 Sofrimport Sàrl v Commission [1990] ECR I-2477. Cf Case T-336/94 Efisol SA v Commission [1997] ECR II-1343. 131  Council Regulation 2707/72/EEC of 19 December 1972 laying down the conditions for applying ­protective measures for fruit and vegetables [1972] OJ L291/3. 132  Cf Case C-110/97 (n 120). 133  Case 74/74 CNTA SA v Commission [1975] ECR 533. 134  Ibid [42].

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amount of the refund in advance, no unforeseeable alteration will occur which could have the effect of causing him inevitable loss, by re-exposing him to the exchange risk.

(C)  Overriding Public Interest: The Balancing Exercise If a legitimate expectation has been found to exist the EU Courts will ensure that it is protected either through annulment of the offending provision, or through a damages action. It is, however, clear that a prima facie legitimate expectation may be trumped by an overriding public interest. The Court has, therefore, sought to balance the need of the EU to alter its policy for the future, with the impact that such alteration might have on traders who based their commercial bargains on pre-existing norms. Thus in CNTA the ECJ held that the EU would be liable in damages if, in the absence of an overriding public interest, the Commission abolished the MCAs without adopt­ ing transitional measures that would have enabled the traders either to have avoided the loss in the performance of the export contracts, or to be compensated for such loss.135 Similarly in Sofrimport136 the ECJ concluded that the adoption by the Commission, without any overriding public interest, of protective measures that affected traders importing fruit and vegetables from third countries without taking account of the interests of those who had goods in transit, constituted a breach of their legitimate expectations such as to amount to a sufficiently serious breach for the purposes of damages liability. The same approach is evident in the second Mulder case,137 in which those who had been denied a milk quota sought damages for loss suffered. The ECJ found that a dam­ ages action could lie in relation to the Regulation that denied the farmers any quota at all, since there was no higher public interest justifying this action. With reference to a later Regulation imposing a 60  per cent quota on those farmers that had made the bargain, the ECJ reached the opposite conclusion. The Court accepted that this, too, infringed the legitimate expectations of the applicants, but this illegality was not suffi­ ciently serious, because there was a higher public interest at stake. The 60  per cent quota was a choice of economic policy made by the Council, seeking to balance the need to avoid excess production, with the interest of the farmers who had entered the earlier scheme. There may, however, be cases where there is an overriding public interest to protect consumers, which means that transitional measures should not be adopted. This is exemplified by Dieckmann.138 The Commission made a Decision that fishery products 135  Ibid [43]; Case C-152/88 Sofrimport Sàrl (n 130); Cases C-182 and 217/03 Belgium and Forum 187 ASBL (n 105) [147]–[149]. 136  Case C-152/88 Sofrimport (n 130). 137  Cases C-104/89 and 37/90 Mulder and Heinemann v Council and Commission [1992] ECR I-3061; Case C-189/89 Spagl v Hauptzollamt Rosenheim [1990] ECR I-4539. 138  Case T-155/99 Dieckmann & Hansen GmbH v Commission [2001] ECR II-3143; Case C-183/95 Affish BV v Rijksdienst voor de keuring van Vee en Vlees [1997] ECR I-4315, [57]; Case 519/07 Commission v Koninklijke FrieslandCampina NV [2009] ECR I-8495, [85].

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from Kazakhstan should no longer be permitted into the EU. It made this Decision in the light of an inspection report by experts, who concluded that there were systemic deficiencies with the general regime of health supervision. The experts did not report on difficulties with specific production sites. The applicant had concluded a contract to import caviar from a company in Kazakhstan. The ECJ held that the absence of any transitional measures in the Decision to preclude import from that country did not violate the applicant’s legitimate expectations, since there was an overriding public interest to protect the health of consumers. This was so even though the Commission had not undertaken inspections of particular facilities in the country producing caviar. The ECJ accepted that more detailed information of this nature would have enabled the Commission to assess the health risk from caviar more accurately. However, the ECJ concluded that the general deficiencies in the regime of health supervision were sufficient to justify the Decision taken.139

9  Departure from Existing Policy/Guidelines (A)  The General Principle: Guidelines Bind It is axiomatic that a public body must follow formal legal rules. Problems of legit­ imate expectations can, however, arise where the public authority seeks to depart from an existing policy in relation to a particular person, where the policy is not enshrined in formal law. It is common in all legal systems for public authorities to develop ­guidelines, notices, communications, and the like. These norms are designed to imbue formal legal rules with greater specificity, and/or to structure the way in which discretionary power contained in formal law is to be exercised. They can also be used where there are no detailed formal rules on the particular topic.140 The EU legal system is no different in this respect and increasing use has been made of such devices.141 An applicant may raise the issue of legitimate expectations where the public author­ ity seeks not to apply the policy to that particular person, while not altering the policy itself. Such cases are less difficult than those considered earlier, where there is a general change of policy for the future. This is because it will normally be less drastic for a court to compel the administration to apply an existing policy to a particular applicant. It is also because considerations of equality as well as legitimate expectations are ­relevant here. Thus even if the applicant is unable to prove a legitimate expectation, considerations of equality should suffice as the basis of the claim, unless the adminis­ tration can show convincing reasons for departure from the policy. This has long been the stance adopted by the EU Courts. 139  Case T-155/99 Dieckmann (n 138) [80]–[81]. 140  Case C-58/94 Netherlands v Council [1996] ECR I-2169. 141  L Senden, Soft Law in European Community Law (Hart, 2004).

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In Louwage142 the applicant sought the annulment of a Commission Decision c­ oncerning entitlement to expenses in relation to moving, relying on an internal Commission directive dealing with the matter. The ECJ concluded that although an internal directive did not have the character of a rule of law that the administration was always bound to observe, it did nonetheless set out a rule of conduct indicating the practice to be followed. The administration could not depart from this without giving the reasons that led it to do so, ‘since otherwise the principles of equality of treatment would be infringed’.143 This principle was reiterated in Dansk Rørindustri,144 where the ECJ emphasized that the administration could not depart from such rules in particular cases without giving reasons that were compatible with the principle of equal treat­ ment. The adoption of such rules imposed a limit on the way in which discretion could be exercised. Guidelines, notices, and the like are especially important in areas where the Commission is dealing with a large number of cases, such as in the context of state aids145 and competition.146 It has made extensive use of soft law in these areas, and the ECJ has made it clear that the Commission cannot readily depart from such general statements in individual cases. Thus in CIRFS147 the ECJ annulled a Commission Decision approving state aid granted by France. The approval was contrary to a detailed Commission communica­ tion known as the discipline, which sought to curtail aid to the synthetic fibre industry because there was overcapacity. The communication embodying the ‘discipline’ did not have a formal basis in the Treaty, but the ECJ held that it was, nonetheless, a ­measure of general application that could not be impliedly amended by an individual decision.148 In Vlaamse Gewest149 the CFI held that it was for the Commission to select the ­criteria that would be used to determine whether aid was compatible with the common market, provided that they were relevant having regard to the Treaty articles. It was open to the Commission to set out such criteria in guidelines, the adoption of which should be seen as a way in which the Commission chose to exercise its discretion. The guidelines should, however, be applied in accord with the principle of equal treatment, with the implication that like cases, as defined in the guidelines, had to be treated alike.150 142  Case 148/73 Louwage v Commission [1974] ECR 81. 143  Ibid [12]; Case 282/81 Ragusa v Commission [1983] ECR 1245; Case T-33/91 Williams v Court of Auditors [1992] ECR II-2499; Case F-52/05 Q v Commission EU:F:2008:161, [131]. 144  Cases C-189, 202, 205, 208 and 213/02 P Dansk Rørindustri (n 17) [209]; Case T-59/02 Archer Daniels (n 17) [43]; Case T-374/04 Germany v Commission [2007] ECR II-4431, [111]. 145  G della Cananea, ‘Administration by Guidelines: The Policy Guidelines of the Commission in the Field of State Aids’ in I Harden (ed), State Aid: Community Law and Policy (Bundesanzeiger, 1993) 68. 146  Cases C-189, 202, 205, 208 and 213/02 P Dansk Rørindustri (n 17); Case C-517/15 P AGC Glass Europe v European Commission, EU:C:2017:598. 147  Case C-313/90 CIRFS (n 89) [34]–[36]. See also Cases T-369/94 and 85/95 DIR International Film Srl v Commission [1998] ECR II-357, [82]. 148  Ibid [44]. 149  Case T-214/95 Vlaamse Gewest v Commission [1998] ECR II-717; Case C-311/94 IJssel-Vliet Combinatie BV v Minister van Economische Zaken [1996] ECR I-5023. 150  Cases C-189, 202, 205, 208 and 213/02 P Dansk Rørindustri (n 17) [211]–[213].

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The paradigm case of departure from an existing policy is where, as in the preceding cases, the policy is embodied in a guideline, code, notice, or some equivalent docu­ ment. It is, however, possible, albeit more difficult, to sustain such a claim where there is departure from policy established through practice, even where it is not formalized through inclusion in a guideline or similar document. In Ferriere San Carlo151 the applicant sought the annulment of a fine imposed for exceeding its production quota for steel. It argued that the sale was carried out in accordance with the general practice adopted by the Commission, which allowed the disposal of certain stocks in addition to the delivery quota. The ECJ found that there had been no decision terminating the previous practice, nor was the applicant firm individually warned that the practice had been terminated. The applicant was, there­ fore, entitled to assume that the practice had not been discontinued and it was incum­ bent on the Commission, before imposing the fine, to verify that the excess complained of could not be attributed to that practice. The Commission had, however, refused to carry out that check and the imposition of the fine was in breach of the applicant’s legitimate expectations. The ECJ in Dansk Rørindustri, however, refused to apply the reasoning in Ferriere San Carlo to competition law. It held that alleged past practice in relation to the setting of the level of fines did not create any legitimate expectation that the level of fine would not be altered without warning, more especially because a change of the kind that occurred was foreseeable.152

(B) Application of the General Principle: Judicial Construction of Guidelines A corollary of the principle that guidelines are binding and generate a legitimate ­expectation is that the EU Courts will construe them to ensure that they are properly applied. This can be seen in the case law on guidelines in the context of state aid. Pollmeier Malchow153 was concerned with the interpretation of the guidelines ­relating to small and medium-sized enterprises (SMEs) for the purposes of state aid. Germany had granted aid to the applicant for the construction of a sawmill, and the aid amounted to 48.18 per cent of the costs involved. The rules on state aid only allowed aid up to 50  per cent for SMEs, the ceiling for other enterprises being 35  per cent. The Commission declared the aid above 35 per cent to be illegal, because the applicant did not come within the definition of a SME as laid down in Commission guidelines. It found that the applicant, immediately prior to receipt of aid from the German ­government, had holdings in a number of other companies that constituted an eco­ nomic unit, and that the applicant had only altered the pattern of ownership in order to come within the definition of a SME. The rules and guidelines on state aid ­stipulated 151  Case 344/85 SpA Ferriere San Carlo v Commission [1987] ECR 4435. 152  Cases C-189, 202, 205, 208 and 213/02 P Dansk Rørindustri (n 17) [174]–[175], [196], [227]–[231]. 153  Case T-137/02 Pollmeier Malchow & Co KG v Commission [2004] ECR II-3541.

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that a company could only acquire the status of a SME if it met the relevant thresholds for two consecutive years. The Commission said that this criterion was not met, since the applicant was above the threshold prior to the change of the pattern of ownership. The applicant argued that the Commission had erred in its application of the criteria as to the meaning of SME. The CFI disagreed. It acknowledged that the Commission was bound by the guide­ lines and notices that it issued where they did not depart from the rules in the Treaty and were accepted by the Member States.154 The guidelines set out three criteria for an enterprise to qualify as a SME: the number of persons employed, a financial test, and an independence test. The applicant argued that the Commission had misconstrued the independence test and that it had used a test that differed from that laid down in the guidelines and an accompanying recommendation. The independence test pro­ vided that an independent enterprise was one in relation to which no other enterprise falling outside the definition of a SME had more than a 25 per cent holding, the obvi­ ous rationale being to prevent large enterprises taking advantage of the rules on SMEs by taking stakes in smaller companies. The CFI held that the 25 per cent rule should be interpreted in the light of this rationale. It was, therefore, open to the Commission to find that there was an economic unit that exceeded the threshold for a SME, even where an enterprise was owned less than 25 per cent by another enterprise belonging to the same economic unit.155 The decision in Spain v Commission156 provides a further example of judicial con­ struction of the guidelines, and in this instance the ECJ found for the applicant. Spain initiated an aid plan, the purpose being to facilitate the replacement of commercial vehicles. The Commission decided that certain aspects of this scheme violated ­principles on state aid and that they could not benefit from the de minimis rule that exempted small amounts of aid. This was because the de minimis rule did not apply to the trans­ port sector and the Commission construed this to include transport undertaken by non-transport companies on their own account, the rationale being that this transport was interchangeable with that provided by specialist companies. The ECJ found for the Spanish government. It held that the Commission was wrong to treat professional transport companies and companies that carried out transport to meet their own needs in the same way. It was, therefore, wrong for the Commission not to consider the possible application of the De Minimis Notice to companies falling within the latter category. The Notice was binding on the principle that such guidelines and notices bound the Commission provided that they did not depart from the Treaty and were accepted by the Member States. The Commission could not, therefore, refuse to apply the De Minimis Notice to aid granted in sectors which the applicable provisions of the Notice, properly construed, did not exclude its application.157 The ECJ also held that the Commission’s Decision was tainted with error in relation to professional transport companies, because of its incompatibility with the guidelines 154  Ibid [54]. 155  Ibid[56]–[65]; Case C-91/01 Italy v Commission [2004] ECR I-4355. 156  Case C-351/98 Spain v Commission [2002] ECR I-8031. 157  Ibid [48]–[53].

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on environmental aid. The Spanish government argued that the entire aid package could be regarded as legitimate on environmental grounds, and was in line with the Commission’s environmental guidelines, on the ground that new vehicles would be cleaner than those replaced. The environmental guidelines drew a sharp distinction between investment and operating aid, the former being far more likely to be approved than the latter. The ECJ found that it was not clear from the Commission’s Decision whether it considered the aid to be for investment or operating aid, notwithstanding the centrality of this distinction. Because of this uncertainty, the Spanish government was not in a position to defend itself and the challenged Decision was therefore set aside.158 The Ferriere Nord case159 provides a useful third example of the judicial role in this area, more especially because it shows the interrelationship between procedural and substantive legitimate expectations. Ferriere Nord was granted aid by an Italian region towards the cost of a new steel plant. The aid was ostensibly granted for environmental reasons, but the Commission declared the aid to be incompatible with the common market because its primary purpose was economic, the replacement of old plant and improvement of competitiveness, rather than environmental protection, and because, even assuming that the environmental purpose was predominant, it was not possible to distinguish within the total cost of the investment the part relating to environmental protection, as required by the guidelines. The applicant argued that its procedural legitimate expectations had been violated because the Commission had not asked the Italian government for documentation relating to the environmental purpose of the investment. The CFI accepted that the Commission should take account of the legitimate expectation which a party might entertain as a result of what was said in the Decision opening the procedure in a case of state aids. It found that there was no breach of this principle, since the Commission had from the very inception of the procedure stated its doubts about the environmen­ tal credentials of the contested aid. The Italian government was, therefore, apprised of the need to proffer all relevant evidence showing that the investment had an environ­ mental objective.160 The applicant argued further that the aid did have an environmental objective within  the meaning of the environmental guidelines. The CFI reiterated orthodoxy, that the Commission is bound by the guidelines and notices in the area of state aids where they do not depart from the Treaty and are accepted by the Member States. The consequence was that the parties concerned are ‘entitled to rely on those guidelines and the Court will ascertain whether the Commission complied with the rules it has itself laid down when it adopted the contested decision’.161 It held, however, that the Commission had not misconstrued the environmental guidelines. The guidelines were 158  Ibid [74]–[84]; Case C-409/00 Spain v Commission [2003] ECR I-1487. 159  Case T-176/01 Ferriere Nord SpA v Commission [2004] ECR II-3931, upheld on appeal Case C-49/05 P Ferriere Nord SpA v Commission [2008] ECR I-68. 160  Ibid [86]–[91]. 161  Ibid [134].

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clear that only investment aid linked to environmental protection was eligible for aid. The Commission was entitled to find that this criterion was not met. The fact that the  applicant maintained that the investment brought some advantages in terms of environmental protection was not determinative, since it had not shown that the investment was undertaken to bring about such improvements.162

(C) Qualification to the General Principle: The Scope of the Guidelines The assumption in the preceding case law was that the guideline or notice generated an expectation, such that the applicant could argue that departure from its terms consti­ tuted a breach of legitimate expectations. Whether the guideline or notice does gener­ ate any expectation will depend on its wording and place within the overall scheme of policy in that area. The Union Courts may conclude that there is no tension between the guidelines and the individual case alleged to be a departure from them because they are dealing with different situations. This is exemplified by the British Steel case.163 British Steel sought the annulment of  aid approved by the Commission that had been given to certain steel producers in Spain and Italy. Article 4(c) ECSC prohibited state aid in the steel sector as being incompatible with the ECSC Treaty. Article 95(1) ECSC provided that where a decision or recommendation was necessary to attain one of the objectives set out in Articles 2, 3, and 4 ECSC, the decision could be taken, or the recommendation could be made, with the unanimous assent of the Council after the Consultative Committee had been consulted. The Commission relied on Article 95 for a scheme whereby aid could be authorized in limited circumstances. These schemes took the form of aid codes, which were amended over time. The fifth steel aid code provided that aid could be compatible with the ECSC Treaty where it was for research and development, where it was designed to enhance environmental protection, where it facilitated closures, and for certain regional aid schemes. The contested Decision authorizing aid for restructuring of steel plants in Spain and Italy was, however, taken outside the aid code, albeit pursuant to Article 95 ECSC. British Steel argued that it was not competent for the Commission to adopt such a Decision and that it breached its legitimate expectation. The ECJ disagreed. The code established certain categories of aid that could be regarded as compatible with the Treaty, and it would not generally be open to the Commission to authorize aid through an individual decision that conflicted with the rules laid down in the code. The steel aid code was however only binding for matters that fell within its remit. It followed that aid that did not fall within the provisions of the code could be authorized through an individual decision, provided of course that such aid was necessary to attain a Treaty objective. The applicant could not claim that its legitimate expectations had been violated, since adjustment to changes in the 162  Ibid [146]–[156].

163  Case C-1/98 P British Steel plc v Commission [2000] ECR I-10349.

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e­ conomic situation meant that undertakings could not claim any vested right to the maintenance of a legal situation existing at a given time: the code could not therefore give rise to any legitimate expectation that there would not be derogation from it in exceptional cases through individual decision.

(D) Qualification to the General Principle: Discretion Inherent in or Left by the Guidelines A claim based on legitimate expectations for unwarranted departure from guidelines may also fail where the particular guideline is relatively open textured, thereby giving the Commission discretion as to its meaning and application. This can be seen in the case law on guidelines for fines in competition law, as ­exemplified by JFE Engineering.164 The case was concerned with a complex cartel in the market for seamless steel tubes and pipes. The applicants contested the level of fines imposed. The CFI reiterated the principle derived from earlier case law, to the effect that the Commission could not depart from rules that it had set for itself, and that it must therefore take account of the guidelines when determining fines, in particular the elements that are mandatory under the guidelines.165 The CFI held, however, that  the wording of particular provisions in the guidelines left discretion to the Commission to take account of the size of the undertaking as a factor in determining the level of fine.166

10  Representations, the Balancing Exercise, and the Legal Test The preceding discussion has considered the EU jurisprudence in relation to indi­ vidual representations, changes of policy, and departure from existing policy. It is readily apparent that even if the applicant is able to prove a prima facie legitimate expectation this may be defeated if there is an overriding public interest that trumps the ­expectation. We have touched on case law dealing with this aspect of the problem in the context of changes of policy.167 We should, however, consider this important issue in more detail, since the legal test is not entirely clear, nor is its application to the different types of case in which legitimate expectations can arise. These issues will be considered in turn. 164  Cases T-67, 68, 71 and 78/00 JFE Engineering Corp v Commission [2004] ECR II-2501. See also Cases T-191 and 212–214/98 Atlantic Container Line AB v Commission [2003] ECR II-3275; Case T-223/00 Kyowa Hakko Kogyo (n 92) [67]; Cases T-109, 118, 122, 125, 126, 128, 129, 132 and 136/02 Bolloré SA v Commission [2007] ECR II-947, [376]–[377]; Cases T-122–124/07 Siemens AG Österreich v Commission, EU:T:2011:70, [220]–[221]. 165  Cases T-67, 68, 71 and 78/00 JFE Engineering (n 164) [537]. 166  Ibid [553]. 167  See above, at 629–30.

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(A)  The Nature of the Legal Test It is clear from the case law on changes of policy that if there is a prima facie legitimate expectation it is for the EU institution to show some overriding public interest for not respecting the expectation.168 This does not, however, tell us the standard of review that the EU Courts will apply when judging whether there was an overriding public interest sufficient to defeat the expectation. It is clear that the Union Courts will inquire whether the public interest was overrid­ ing. The Spagl case169 provides a good example. The case arose from the milk levy saga. We have seen that the ECJ in Mulder170 declared a Regulation invalid on the ground that it infringed the legitimate expectations of those who had made agreements pursu­ ant to a Community scheme not to produce milk for a particular period, and were then unable because of new provisions to secure a milk reference quantity when they sought to return to the market. In Spagl the applicant challenged the amended Regulation enacted to comply with the earlier judgment, because it only gave those who returned to the market a reference quantity for milk equivalent to 60 per cent of the amount produced in the year before the non-marketing undertaking. The ECJ accepted that some reduction in the reference quantity would be ­acceptable, since other milk suppliers who had not ceased trading also had their quan­ tities reduced, this being part of the overall rationale of the scheme. It held, however, that the principle of legitimate expectations precluded a rate of reduction for those who had taken the non-marketing undertaking being fixed at such a high level that it  penalized such producers by reason of their taking such undertakings. The ECJ requested from the Commission the comparable figures for producers who had con­ tinued trading and their reference quantities were only being reduced by 17.5 per cent. The Commission and Council sought to defend this differential reduction of 40 and 17.5  per cent, because it was not possible to give a reference quantity of more than 60 per cent to those who had taken the non-marketing undertakings without under­ mining the objective of reducing the milk surplus. The ECJ rejected this argument, stating that even if the objective of the scheme demanded limits on the additional quantity of milk placed on the market ‘it would have been sufficient to reduce the refer­ ence quantities of the other producers proportionally by a corresponding amount, so as to be able to allocate larger reference quantities to the producers who gave an under­ taking’171 under the earlier Regulation. The 60 per cent rule was, therefore, declared void for breach of legitimate expectations. The fact that the EU Courts will inquire into the public interest defence advanced by the defendant does not tell us precisely what legal test is being used. The EU Courts have been reluctant to assign a discrete legal label to this exercise. It has been left to commentators to divine the legal test from the Courts’ reasoning. Schonberg argued that the test is one of significant imbalance: the EU Courts ‘will restrict the application 168  See above, at 627–30. 169  Case C-189/89 Spagl (n 137). 171  Case C-189/89 Spagl (n 137) [28].

170  Case 120/86 Mulder (n 127).

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of a policy change if there is a significant imbalance between the interests of those affected and the policy considerations in favour of the change’.172 There is force in this view. It coheres with the reasoning used in a case such as Spagl,173 and with other cases where the EU Courts have considered a defence couched in terms of the overriding public interest, including cases such as Dieckmann174 and Affish175 in which the ­applicant lost. This does, however, leave open the precise difference between a test of significant imbalance and a test of proportionality. The latter is a general head of review in EU law, and it is unclear why it should not be used here. Proportionality involves the classic three-stage inquiry, and it might be felt that this is cumbersome in this context. However, the test framed in terms of significant imbalance entails consideration of similar issues, notwithstanding the fact that they are not separated as discretely as within a proportionality test. This is readily apparent from Spagl.176 The essence of the ECJ’s reasoning was in many ways classic proportionality. It found a prima facie legitimate expectation; it found that the modified Regulation imposed a significant burden on the applicant; it examined the public interest justification for the differential reduction in the reference quantities for milk; and it decided that this differential impact was not necessary to achieve the overall purposes of the scheme. If the ECJ had concluded by stating that the overriding public interest justification imposed a disproportionate burden on the applicant, this would have been accepted by the legal community with equanimity. A proportionality test would cohere with principle. It is a general test for review of  the legality of EU action. Given that proportionality is used to test whether the infringement of a right is justified, it is unclear why it should not be used to determine whether the trumping of an expectation is warranted. This is especially so given that the three-part proportionality test provides a structured analysis which facilitates review, and requires the defendant to give a reasoned justification for its action.177

(B)  The Application of the Test Irrespective of whether the test is cast in terms of significant imbalance or proportion­ ality, the application of the test is likely to depend on the nature of the case. This ­variability can, however, be accommodated within either test. The Courts will be more reluctant to interfere with general changes of policy ­embodied in the shift from one regulatory scheme to another, than with cases where a specific representation is made to a discrete group. The Courts should, however, be

172  Schonberg (n 1) 150. Italics in the original. 173  Case C-189/89 Spagl (n 137). 174  Case T-155/99 Dieckmann (n 138). 175  Case C-183/95 Affish (n 138). 176  Case C-189/89 Spagl (n 137). 177  The UK courts have developed a test for review when the public body seeks to resile from a legitimate expectation that is framed in terms of proportionality, Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363, [68].

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very reluctant to admit that departure from an existing policy in relation to a particular individual was warranted by some overriding public interest. This is so irrespective of whether there has been any detrimental reliance leading to cognizable loss, since the  very departure will offend the principle of equality that like cases should be treated alike. If the alleged public interest justifying departure from an existing policy is ephemeral, then it weakens the argument that it should be regarded as overriding. If, by way of contrast, the alleged public interest is not ephemeral, then the appropriate response should be to alter the policy, rather than to depart from it in relation to a particular individual.

11  Unlawful Representations (A)  Positive Law The discussion thus far has been conducted on the assumption that the representation was lawful. The preceding analysis concerning revocation of unlawful decisions revealed that the EU Courts use a balancing approach, such that the illegality of the initial decision will not always justify its retroactive revocation.178 The situation with respect to unlawful representations seems to be more draconian: such representations are said not to give rise to any legitimate expectation. In the CIRFS case,179 the ECJ held that a policy document known as the discipline, which was concerned with limiting aid to certain types of industry, was binding. The Commission argued that the discipline had been amended by a decision that sharp­ ened its scope. The ECJ rejected the argument stating that a measure of general appli­ cation could not be impliedly amended by an individual decision. It then held that the principle of legitimate expectations could not be ‘relied on in order to justify repetition of an incorrect interpretation of a measure’.180 The same reasoning was applied in Air France,181 where the CFI held that an EU institution could not be forced by virtue of the principle of legitimate expectations to apply EU rules contra legem. Analogous reasoning is to be found in Thyssen,182 where the applicant was fined for exceeding its steel quota. It argued that the fine should be annulled because of a prom­ ise that had been made by Commission officials that it would not be fined if it exceeded its quota solely with a view to supplying a specific undertaking. The ECJ rejected the argument, stating that no official could give a valid undertaking not to apply EU law, and therefore no legitimate expectation could be aroused by such a promise, assuming that one had been made.183

178  See above, at 613–18. 179  Case C-313/90 CIRFS (n 89). 180  Ibid [45]. 181  Case T-2/93 Air France v Commission [1994] ECR II-323, [101]–[102]. 182  Case 188/82 Thyssen AG v Commission [1983] ECR 3721, [11]. 183  See also Cases 303 and 312/81 Klockner v Commission [1983] ECR 1507; Case 228/84 Pauvert v Court of Auditors [1985] ECR 1973; Case C-213/06 P EAR v Karatzoglou [2007] ECR I-6733, [33]; Case T-326/07

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The EU Courts have not surprisingly applied the same reasoning where the conduct of a Member State has been in issue, as is apparent from Lageder.184 The applicants exported wine in 1973, and were told by an Italian public authority that they did not have to pay MCAs on the exports because the wine was quality wine and hence exempt from payment under the relevant Regulation. In 1977 a different Italian public body found that the wines could not be designated as quality wines for the purpose of the  Regulation and therefore demanded post-clearance payment of the MCAs. The applicants resisted the demand, arguing that it infringed legitimate expectations, more especially given the effluxion of time. The ECJ accepted that the Italian authorities were bound by the principle of legitimate expectations when acting within Community law.185 The practice of a Member State that did not conform to Community law could, however, never give rise to a legitimate expectation on the part of the trader who had benefited from the situation thus created.186 It follows that the principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of Community law; nor can the conduct of a national authority responsible for applying Community law, which acts in breach of that law, give rise to a legitimate expectation on the part of the trader of beneficial treatment contrary to Community law.

(B)  Normative Considerations The positive law is clear, but is unsatisfactory in normative terms. The conflicting ­policy considerations are the same as those considered when discussing the revocation of unlawful decisions. There is the legality interest in ensuring that EU rules are ­properly applied. There is the interest of the individual who may be harmed by reliance on an unlawful representation, where he would have no reason to doubt its legality. The EU Courts are willing to balance these interests when deciding whether an unlawful decision can be revoked retroactively. They are, however, unwilling to do so when the illegality resides in a representation rather than a decision. The case law on representations makes no reference to that concerning revocation of unlawful deci­ sions. This makes little sense in normative terms, more especially so given that the dividing line between a decision and a representation may be a fine one. It might be argued that the distinction is warranted because of the greater formality inherent in a decision, the argument being that there is therefore more justification for the individual deriving legitimate expectations than is the case with a representation. Cheminova A/S v Commission [2009] ECR II-2685; Case T-404/06 P European Training Foundation (ETF) v Pia Landgren [2009] ECR II-2841. 184  Cases C-31–41/91 SpA Alois Lageder (n 22). 185  Ibid [33]. 186  Ibid [34]. See also Case C-153/10 Staatssecretaris van Financiën v Sony Supply Chain Solutions (Europe) BV, EU:C:2011:224, [47]; Case C-568/11 Agroferm A/S v Ministeriet for Fødevarer, Landbrug og Fiskeri, EU:C:2013:407, [52]; Case C-516/16 Erzeugerorganisation Tiefkühlgemüse eGen v Agrarmarkt Austria, EU:C:2017:1011, [69].

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This argument is unconvincing. If balancing were to be countenanced in the context of  unlawful representations, a necessary precondition for this would be that the ­individual could show that the representation contained a specific assurance such as to give rise to a legitimate expectation. It is, moreover, clear from the case law on revoca­ tion of unlawful decisions that the balancing exercise allows full account to be taken of the legality interest. This would be equally so if this exercise were applied in the context of unlawful representations. It might alternatively be argued that if the representation is unlawful as being in breach of formal rules the foundation for any expectation by the applicant would be undermined. This argument may be true in a specific case, but provides no justification for the divide between the treatment of unlawful decisions and unlawful representa­ tions, since the argument might be equally true in a specific case in relation to an unlawful decision. This does not alter the fact that there will be many instances where it is not clear, even to the most careful of applicants, that the representation or formal decision was in breach of the formal rules applicable to the area.

12 Conclusion The development of the principles of legal certainty and legitimate expectations as part  of EU administrative law doctrine has been a significant achievement of the EU Courts. They began early in the Community’s existence by drawing on principles found in the legal systems of the original six Member States, placing particular reliance on French and German law, and then fashioned these principles to the needs of the EU legal system. It is not surprising that with the passage of time the EU Courts have relied less on national law and more on their own developing body of precedent. This does not mean that the case law of the EU Courts is unproblematic. There are, as we have seen, aspects of the Courts’ jurisprudence that are certainly open to question and criticism. These should be altered and such changes would serve to strengthen this body of administrative law doctrine.

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19 Proportionality I: EU 1 Introduction Proportionality is an important principle of EU administrative law.1 It can be used to challenge EU action, and Member State action. Somewhat different considerations tend to apply in these two spheres, and therefore this chapter focuses on proportionality and Union action, while the following chapter considers proportionality and Member State action. The discussion begins with analysis of the meaning of proportionality as elaborated by the Union Courts. The focus thereafter will be on the way in which proportionality has been applied and the intensity of review. Three broad types of case can be distinguished: cases involving discretionary policy choices, whether social, political, or economic in nature; cases concerned with infringement of a right recognized by EU law; and cases involving a disproportionate penalty or financial burden.

2  The Meaning of Proportionality The Treaties do not contain an explicit, detailed set of principles against which to test the legality of EU or state action. It has therefore largely fallen to the CJEU and CFI, 1 G de Búrca, ‘The Principle of Proportionality and its Application in EC Law’ (1993) 13 YBEL 105; A  Sandulli, ‘Eccesso di potere e controllo di proporzionalità. Profili comparati’ (1995) Rivista Trimestrale di  Diritto Pubblico 329; N Emiliou, The Principle of Proportionality in European Law (Kluwer, 1996); G  Gerapetritis, Proportionality in Administrative Law (Sakkoulas, 1997); D-U Galetta, Principio di Proporzionalità e Sindacato Giurisdizionale nel Diritto Amministrativo (Giuffrè, 1998); E Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart, 1999); U Bernitz and J Nergelius, General Principles of European Community Law (Kluwer, 2000); E Castorina, ‘Diritto alla sicurezza, riserva di legge e principio di proporzionalità: le premesse per una “Democrazia europea”’ (2003) Rivista Italiana di Diritto Pubblico Comunitario 301; D-U  Galetta, ‘La  proporzionalità quale principio generale dell’ordinamento’ (2006) Giornale di Diritto Amministrativo 1106; T Tridimas, The General Principles of EU Law (Oxford University Press, 2nd edn, 2006) Ch 3; J Schwarze, European Administrative Law (Sweet & Maxwell, revised edn, 2006) Ch 5; A Stone Sweet and J Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Col J Transnational L 73; W Sauter, ‘Proportionality in EU Law: A Balancing Act?’, Tilec Discussion Paper, DP 2013-003; J Bomhoff, ‘Beyond Proportionality: Thinking Comparatively about Proportionality and Punitiveness’, LSE, Law, Society and Economy Working Papers, 12/2016; D-U Galetta, ‘General Principles of EU Law as Evidence of a Common European Legal Thinking: The Example of the Proportionality Principle (from the Italian Perspective)’ in H-J Blanke, P Cruz Villalón, T Klein, and J Ziller (eds), Common European Legal Thinking: Essays in Honour of Albrecht Weber (Springer, 2016) 221–42.

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now the General Court, to fashion principles of administrative legality. In undertaking this task they have reasoned partly from specific Treaty provisions, which justify Union action only where it is ‘necessary’ or ‘required’ to reach a certain end. They have also inevitably drawn upon principles from national legal systems and fashioned them to suit the needs of the EU itself. The concept of proportionality is most fully developed in German law. It appeared initially to challenge policing measures where they were excessive or unnecessary in relation to the objective being pursued.2 In its modern German formulation the consensus is that proportionality involves three factors. The courts will consider whether the measure was suitable for the attainment of the desired objective. They will examine whether the disputed measure was necessary, in the sense that the agency had no other option that was less restrictive of the individual’s freedom. The final stage of the inquiry is whether the measure was disproportionate to the restrictions thereby involved.3 Proportionality is now well established as a general principle of EU law. There was early reference to proportionality in the case law concerning the European Coal and Steel Community.4 The principle was however developed more fully after the decision in Internationale Handelsgesellschaft,5 where proportionality was used to challenge the system of deposits for import and export licences. While the action failed on the facts the judgment nonetheless established proportionality as a general ground of review. A version of the principle is now also enshrined in Article 5(4) TEU as part of subsidiarity. It provides that where Union action is warranted pursuant to subsidiarity, it shall not go beyond what is necessary to achieve the objectives of the Treaty, and these requirements are further fleshed out in a protocol to the Treaty.6 The meaning of proportionality has, however, been primarily determined by the Union Courts. In any proportionality inquiry the relevant interests must be identified, and there will be some ascription of value to those interests, since this is a condition precedent to any balancing operation. It is clear from this jurisprudence that the Courts will inquire whether the measure was suitable or appropriate to achieve the desired end. They will also examine whether it was necessary to achieve that objective, or whether this could have been attained by a less onerous method. The first two elements of the classic German formulation are therefore also found in EU law. There has been greater uncertainty as to whether the third element, often referred to as proportionality stricto sensu, is also part of the EU test. Thus even skilled observers such as Van Gerven admit that the case law is uncertain in this regard.7 This is ­important, since the third limb changes the nature of the test. If proportionality ­comprises merely suitability and necessity then once these hurdles are surmounted the 2  Schwarze (n 1) 685–6. 3  Ibid 687. 4  Case 8/55 Fédération Charbonnière Belgique v High Authority [1954–6] ECR 292, 299; Case 19/61 Mannesmann AG v High Authority [1962] ECR 357, 370–1. 5  Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. 6  Protocol (No 2) On the Application of the Principles of Subsidiarity and Proportionality. 7 W Van Gerven, ‘The Effect of Proportionality on the Actions of Member States of the European Community: National Viewpoints from Continental Europe’ in Ellis (n 1) 37–8.

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measure would be regarded as legal, even if the burden imposed might be disproportionate to the desired objective. The addition of the third limb requires the court to undertake this further inquiry. The answer as to whether proportionality stricto sensu is part of the test is best determined when the case law has been examined. Suffice it to say for the present that although the Union Courts do not always make reference to this aspect of the proportionality inquiry, they do so when the applicant presents arguments directed specifically to it. This still leaves open the way in which the EU Courts apply the balancing inherent in proportionality stricto sensu, an issue analysed in the light of the relevant case law later. There is, moreover, a further issue that has a marked impact on the application of proportionality. This is the intensity with which the concept is applied. Thus as de Búrca states,8 It becomes apparent that in reaching decisions, the Court of Justice is influenced not only by what it considers to be the nature and the importance of the interest or right claimed by the applicant, and the nature and importance of the objective alleged to be served by the measure, but by the relative expertise, position and overall competence of the Court as against the decision-making authority in assessing those factors. It becomes apparent that the way the proportionality principle is applied by the Court of Justice covers a spectrum ranging from a very deferential approach, to quite a rigorous and searching examination of the justification for a measure which has been challenged.

We can distinguish, as stated earlier, three broad types of case where challenges are made on grounds of proportionality. These are cases involving discretionary policy choices, rights, and penalties. The intensity of review may well differ in these types of case.

3  Proportionality and Discretionary Policy Choices The most common case is where proportionality is used to challenge a discretionary policy choice made by the administration. The judiciary is cautious in this type of case. The reasons are not hard to divine. The administrative/political arm of government makes policy choices, and it is generally recognized that the courts should not overturn these merely because they believe that a different way of doing things would have been better. They should not substitute their judgment for that of the administration. This does not mean that proportionality is ruled out in such instances. It does mean that the courts are likely to apply the concept less intensively than in the other two categories of case, and will only overturn the policy choice if it is clearly or manifestly disproportionate. This is more especially so where the policy choice required the weighing of complex variables.

8  de Búrca (n 1) 111.

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There are a number of areas in which the EU Courts apply proportionality with relatively low intensity because of the discretionary nature of the policy choices involved. The guiding principle is, as stated in the British American Tobacco case,9 that this measure of review will be deemed appropriate whenever the EU legislature exercises a broad discretion involving political, economic, or social choices requiring it to make complex assessments. Since a great many Treaty articles will be of this nature low-intensity review will be the norm. The particular categories set out below exemplify this general principle.

(A)  Common Policies: Agriculture and Fisheries Many proportionality challenges have arisen from measures adopted under the Common Agricultural Policy (CAP). The objectives of the CAP are set out at a high level of generality. Article 39 TFEU lists the CAP’s objectives as being to increase agricultural productivity by promoting technical progress, the rational development of agricultural production, and the optimum utilization of factors of production. This is to ensure: a fair standard of living for the agricultural community; market stability; the availability of supplies; and that those supplies reach consumers at reasonable prices. These objectives can clash, with the result that the Commission and Council have to make difficult discretionary choices, often under exigencies of time, in order to decide how best to balance and attain these aims. The Court has frequently emphasized that the Union institutions possess a wide discretion in the operation of the CAP, and that review will not therefore be intensive.10 This more deferential approach has carried across to challenges based on proportionality, as exemplified by Fedesa.11 In 1988 the Council adopted a Directive prohibiting the use of certain hormones in livestock farming. The Directive sought to remove barriers to trade flowing from differences in Member State legislation concerning the administration of substances having a hormonal action. An earlier identical Directive from 1985 had been declared void by the ECJ on procedural grounds. 9  Case C-491/01 R v Secretary of State for Health, ex p British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453, [123]; Case C-210/03 The Queen, on the application of Swedish Match AB and Swedish Match UK Ltd v Secretary of State for Health [2004] ECR I-11893, [48]; Case C-344/04 R (on the application of International Air Transport Association and European Low Fares Airline Association) v Department for Transport [2006] ECR I-403, [80]; Case C-380/03 Germany v European Parliament and Council [2006] ECR I-11573, [145]; Case C-266/05 P Jose Maria Sison v Council [2007] ECR I-1233, [33]; Case C-558/07 The Queen, on the application of SPCM SA v Secretary of State for the Environment, Food and Rural Affairs [2009] ECR I-5783, [41]–[42]; Case C-58/08 The Queen, on the application of Vodafone Ltd and Others v Secretary of State for Business, Enterprise and Regulatory Reform [2010] ECR I-4999, [51]–[53]; Case C-62/14 Gauweiler v Deutscher Bundestag, EU:C:2015:400, [68]; Case C-157/14 Société Neptune Distribution v Ministre de l’Économie et des Finances, EU:C:2015:823, [76]; Case 477/14 Pillbox 38 (UK) Ltd, trading as Totally Wicked v Secretary of State for Health, EU:C:2016:324, [49]; Case C-72/15 PJSC Rosneft Oil Co v Her Majesty’s Treasury, EU:C:2017:236, [146]. 10  See, eg, Case 138/78 Stölting v Hauptzollamt Hamburg-Jonas [1979] ECR 713; Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237. 11  Case C-331/88 R v Minister for Agriculture, Fisheries and Food, ex parte Fedesa [1990] ECR 4023.

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The applicants challenged the validity of a national legislative measure implementing the 1988 Directive, on the ground that the Directive itself was invalid. They argued that the Directive infringed proportionality. The applicants claimed that the Directive was not suitable to attain the declared objectives, since it was impossible to apply in practice and led to the creation of a dangerous black market in hormones. They argued also that outright prohibition was not necessary, because consumer anxieties could be allayed by the dissemination of information and advice. The applicants maintained moreover that the prohibition imposed excessive burdens on them in the form of considerable financial losses, in relation to the alleged benefits accruing to the public interest. The ECJ acknowledged that proportionality was a general principle of EU law. The lawfulness of the Directive was therefore subject to the condition that it was appropriate and necessary to achieve the objectives legitimately pursued by the legislation. When there was a choice between several appropriate measures recourse should be had to the least onerous, and the disadvantages caused should not be disproportionate to the aims pursued. The ECJ then continued as follows.12 However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by . . . the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue.

The applicants had to show that the measure was manifestly inappropriate and the Court concluded that they had not discharged this burden. The ECJ felt that the measure was suited for its intended aim, and that any system of partial authorization would require costly control measures. It held that the measure passed the necessity test in that the Council was entitled to take the view that having regard to health protection, the removal of trade barriers and distortions of competition could not be achieved through less onerous means, such as dissemination of information to consumers and labelling. The ECJ’s response to the argument that the Directive had serious financial consequences for the applicants was terse: it simply stated that the importance of the objectives pursued justified even substantial negative financial consequences for certain traders. The reasoning in Fedesa has been applied in many other cases. It is clear that applicants find it difficult to convince the ECJ that a measure is manifestly disproportionate.13 12  Ibid [14]. 13  Case C-8/89 Zardi v Consorzio Agrario Provinciale di Ferrara [1990] ECR I-2515; Cases C-133, 300 and 362/93 Crispoltoni v Fattoria Autonoma Tabacchi [1994] ECR I-4863; Case C-4/96 Northern Ireland Fish Producers’ Federation and Northern Ireland Fishermen’s Federation v Department of Agriculture for Northern Ireland [1998] ECR I-681; Case T-30/99 Bocchi Food Trade International GmbH v Commission [2001] ECR II-943, [92]; Case C-434/02 Arnold André GmbH & Co KG v Landrat des Kreises Herford [2004] ECR I-11825, [46]–[56]; Case C-171/03 Maatschap Toeters and M C Verberk v Productschap Vee en Vlees [2004] ECR I-10945,

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It is nonetheless easy to form a mistaken impression of the way in which proportionality applies in this type of case. It is true that low-intensity review prevails in this area. The ECJ will nonetheless check in some detail within the proportionality inquiry to see whether the foundations for the challenged decision are sound. This was equally true of the CFI.14 Affish15 provides a fitting example. The applicant imported fish from Japan and sought the annulment of a Commission Decision banning Japanese fish from the EU. The Decision had been made pursuant to a Directive allowing protective measures when there were fears about the health risks from such imports. The Decision imposed a total ban on Japanese fish and was based on a report from Commission experts who had visited a number of fish plants in Japan and found that there were serious concerns as to hygiene. The plant from which the applicant imported fish had not, however, been investigated and there was no evidence that its fish posed a health risk. The applicant argued that the total ban was therefore disproportionate. The ECJ disagreed, but c­ onsidered in some detail the defensibility of a total ban based on the  selective investigation. It found this to be defensible for a number of reasons. It  would not have been practical to investigate all Japanese fish plants; the firms investigated were chosen by the Japanese government and could thus be considered reasonably representative; it was reasonable to extrapolate from the firms investigated to others in the industry; and the hygiene risks meant that protective measures should be put in place expeditiously. The same linkage between the Fedesa principle and scrutiny of the underlying foundations of the contested measure is evident in Jippes.16 The applicant contested the legality of a Directive to combat foot and mouth disease that entailed non-vaccination for animals, subject to limited exceptions. She argued that the emphasis in the Directive on animal slaughter as the optimal method of disease control was disproportionate. The ECJ reiterated the Fedesa principle that such measures would only be struck down if they were manifestly disproportionate. It emphasized that ‘the criterion to be applied is not whether the measure adopted by the legislature was the only one or the best one possible but whether it was manifestly inappropriate’.17 It stressed that this criterion [52]; Case C-452/00 Netherlands v Commission [2005] ECR I-6645, [101]–[102]; Case C-41/03 P Rica Foods (Free Zone) NV v Commission [2005] ECR I-6875, [85]–[86]; Case C-504/04 Agrarproduktion Staebelow GmbH v Landrat des Landkreises Bad Doberan [2006] ECR I-679, [36]; Case C-535/03 The Queen, on the application of Unitymark Ltd and North Sea Fishermen’s Organisation v Department for Environment, Food and Rural Affairs [2006] ECR I-2689, [57]; Case T-170/06 Alrosa Co Ltd v Commission [2007] ECR II-2601; Cases C-37 and 58/06 Viamex Agrar Handels GmbH and Zuchtvieh-Kontor GmbH (ZVK) v Hauptzollamt Hamburg-Jonas [2008] ECR I-69, [36]; Case 334/07 Denka International BV v Commission [2009] ECR II-4205, [139]; Case C-77/09 Gowan Comércio Internacional e Serviços Lda v Ministero della Salute [2010] ECR T-13533, [82]; Case T-526/10 Inuit Tapiriit Kanatami v European Commission, EU:T:2013:215. 14  Cases 125 and 152/96 Boehringer Ingelheim Vetmedica GmbH and CH Boehringer Sohn v Council and Commission [1999] ECR II-3427. 15  Case C-183/95 Affish BV v Rijksdienst voor de keuring van Vee en Vlees [1997] ECR I-4315. 16  Case C-189/01 Jippes v Minister van Landbouw, Natuurbeheer en Visserij [2001] ECR I-5689. 17  Ibid [83].

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was not to be applied retrospectively: where the EU legislature was obliged to assess the  future effects of rules to be adopted and those effects could not be accurately ­foreseen, the assessment embodied in the legislation could only be challenged if it appeared to be manifestly incorrect in the light of the available information when it was adopted.18 It might be expected in the light of this vigorous reaffirmation of Fedesa that the ECJ would rapidly dispose of the case. It is true that the ECJ found against the applicant, but not before it examined in detail the policy foundation for the contested measure.19 The ECJ emphasized that the no vaccination policy had been adopted after a scientific study undertaken by the Commission. The Court then examined the rationale for this policy: preventive vaccination did not ensure eradication of the disease from a herd since vaccinated animals could still carry the virus and contaminate healthy animals; it was impossible, even where no outbreaks of foot and mouth had occurred, to ensure that the virus was absent from a vaccinated herd; preventive vaccination for all animals in the EU would involve greater expense and more drawbacks than a non-vaccination policy; a vaccination policy would have significant repercussions on exports; and it had not been shown that a vaccination policy would reduce the incidence of foot and mouth or the need for sanitary slaughter if an outbreak occurred. It was only after having examined such factors that the Court concluded that the Directive was proportionate to the aims pursued. The linkage between low-intensity proportionality review and judicial willingness nonetheless to examine in detail the contested measure is also evident in the case law on risk regulation, proportionality, and agriculture, as exemplified by Pfizer.20 It concerned a challenge by the applicant company to a Regulation that withdrew authorization for an additive to animal feeding stuffs. Virginiamycin was an antibiotic added in very small quantities to animal feed to promote growth. The authorization was withdrawn because of fear that such additives could reduce the animals’ resistance to antibiotics, and that this lessening of resistance could be transmitted to humans. This would then reduce the effectiveness not only of that particular antibiotic, but might also limit the efficacy of antibiotics of the same class. The case was considered in a previous chapter when discussing manifest error.21 The applicant also attacked the measure on grounds of proportionality. The CFI reiterated the Fedesa principle: proportionality required that EU measures should not exceed the limits of what was necessary and appropriate to attain the desired ends; that where there was a choice between several appropriate measures recourse must be had to the least onerous; and that the disadvantages caused must not be disproportionate to the aims pursued. The CFI also emphasized, in line with Fedesa, that 18  Ibid [84]. See also Case C-504/04 Agrarproduktion Staebelow GmbH v Landrat des Landkreises Bad Doberan [2006] ECR I-679; Case C-310/04 Spain v Council [2006] ECR I-7285, [120]. 19  Ibid [87]–[101]. 20  Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305. See also Case T-70/99 Alpharma Inc v Council [2002] ECR II-3495. 21  See above, Ch 15.

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the discretionary power accorded to the Union institutions meant that the applicant had to show that the measure was manifestly inappropriate.22 The Court held, ­moreover, that a cost/benefit analysis was a particular expression of proportionality in cases involving risk management.23 The CFI found against the applicant, but not before it had examined its arguments in some detail. It devoted seventy paragraphs/twenty pages of its judgment to the issue. This is admittedly a purely ‘formal’ guide to the degree of scrutiny involved, but it nonetheless serves to place low-intensity review in perspective. It would be wrong to regard this form of proportionality review as the Court merely going through the motions, more especially given that proportionality was merely one ground of challenge in a judgment of nearly 200 pages. The CFI examined whether the withdrawal of the authorization was manifestly inappropriate to the objective pursued. Pfizer argued that this was so because the principal cause of antibiotic resistance in humans was excessive use of such substances in human medicine. The CFI held that even assuming that the EU institutions had the power and duty to adopt other measures to prevent excessive use of antibiotics this could not affect the validity of the ban on additives in feeding stuffs.24 It also ­considered Pfizer’s argument that the additives improved animal health, that a ban would lead to an increase in antibiotics for therapeutic use, and that this could not realistically be avoided by improvements in animal husbandry. The CFI was doubtful that the ban would lead to any significant rise in antibiotics for therapeutic use, and pointed to evidence that low-level, long-term exposure to antibiotics could have more effect on the development of resistance than short-term larger doses for therapeutic use.25 The CFI then turned to the claim that the ban was not necessary since other less onerous measures could have been taken. The applicant argued that studies were being undertaken to test for any correlation between the additives and resistance to antibiotics in humans and that no ban should therefore have been introduced pending the outcome of these studies. The CFI disagreed. It pointed to studies by the institutions that showed an increase in antibiotic resistance in the years preceding the ban. There was, therefore, some scientific data on which the Union institutions could act. It was for those institutions to exercise their political responsibility and discretion in the face of a complex situation. Their choice of provisionally banning the additive to prevent the risk from becoming a reality, while continuing with the studies, was in accord with the precautionary principle.26 The CFI then examined the claim that the disadvantages of the ban were disproportionate to the objectives pursued and entailed a breach of the right to property. This was in effect the third part of the proportionality calculus, what is often referred to as proportionality stricto sensu. The CFI’s reasoning in this respect will be examined in detail later. Suffice it to say for the present that the Court rejected the argument.

22  Case T-13/99 Pfizer (n 20) [411]–[412]. 23  Ibid [410]. 24  Ibid [414]–[419]. 25  Ibid [420]–[429]. 26  Ibid [441]–[448].

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(B)  Common Policies: Transport The decision in Omega Air27 provides further evidence of how the ECJ scrutinizes the suitability and necessity of a contested measure even within the confines of low-intensity proportionality review of transport policy. The applicant challenged the legality of a Community Regulation which stipulated that re-engined planes with engines of a bypass ratio of three or more were not subject to prohibitions imposed by the Regulation, whereas planes with a bypass ratio of less than three were subject to such prohibitions. The objective of the Regulation was to prevent environmental damage through noise, fuel burn, and emissions. The applicant had refitted certain planes with engines that had a bypass ratio of less than three. It argued that the Regulation was disproportionate, because the bypass ratio was an inadequate criterion for noise reduction, and because the objectives of the Regulation could have been achieved by measures that were less damaging to it. The applicant contended that it would have been less restrictive if separate thresholds had been set for noise, fuel burn, and gaseous emissions. The ECJ reiterated its previous holdings that review was limited where the legislature had wide discretionary powers, as was the case with the common transport policy, emphasizing that the Court should not substitute its view for that of the Community legislature.28 It rejected the applicant’s claim, but as in the cases discussed in the previous section it engaged with the arguments notwithstanding the low-intensity review. Thus the ECJ concluded after studying data produced by the Commission that the bypass ratio was a suitable criterion for attaining the objectives of the Regulation. The argument that the objectives could be attained through less restrictive means, viz, separate thresholds for noise, fuel burn, and emissions, was rejected on the ground that the application of separate criteria would be complex and uncertain, and was not ­warranted by the limited number of planes re-engined by the applicant.

(C) Anti-Dumping The EU Courts have signalled that low-intensity proportionality review applies in the context of anti-dumping, but they are also willing, as in the previous cases, to consider seriously the argument advanced by the applicant. These features are apparent in International Potash.29 The applicant was an exporter of potash from Russia and Belarus into the EU. It challenged a modified anti-dumping Regulation imposed by the Council, claiming that it was disproportionate because it 27  Case C-27/00 R (on the application of Omega Air Ltd) v Secretary of State for the Environment, Transport and the Regions [2002] ECR I-2569. 28  Ibid [62]–[64]; Case C-344/04 International Air Transport Association (n 9). 29  Case T-87/98 International Potash Co v Council [2000] ECR II-3179. See also Case 255/84 Nachi Fujikoshi Corp v Council [1987] ECR 1861, [21]–[22]; Case T-162/94 NMB France SARL v Commission [1996] ECR II-427, [72]–[73]; Cases T-33–34/98 Petrotub SA and Republica SA v Council [1999] ECR II-3837, [89]; Case 263/06 Carboni e derivati Srl v Ministero dell’Economia e delle Finanze and Riunione Adriatica di Sicurtà SpA

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imposed a fixed duty in addition to a variable duty. The CFI accepted that proportionality was applicable. The measure must therefore be suited to attain the objective, it must be necessary to achieve the desired goal, and the least onerous method must be adopted. The objective of anti-dumping regulations was to eliminate the dumping margin so far as that harmed EU industry. However given that the basic Regulation governing anti-dumping left the Community institutions a wide discretion to determine the appropriate duty, judicial review was limited to ascertaining whether the measures adopted were manifestly inappropriate to the objective pursued.30 The CFI nonetheless examined the applicant’s complaint in some detail.31 The CFI began by noting that a variable duty was generally more favourable to exporters and importers than a fixed duty, since the former was easier to evade. The efficacy of a variable duty was therefore dependent on a relationship of trust between the Community institutions and the undertaking, as manifested through accurate ­declarations of the export price. It had, however, become clear that the variable duty was being circumvented and this led to imposition of the fixed duty. The retention of the variable duty as an alternative was, moreover, necessary to guard against economic circumstances where the fixed duty would be ineffective to prevent dumping. The CFI rejected the applicant’s claim that there were other means of combating customs fraud. It was for the Community institutions to determine the most appropriate anti-dumping duty after weighing the various interests, which included not only the undertakings concerned, but also Community industry, users, and consumers.

(D)  Inter-Institutional Controls The discussion thus far has been concerned with proportionality and EU substantive law in areas where the Union institutions have a broad discretion. The ECJ has adopted a similar approach in relation to the proportionality of inter-institutional controls established by the EU legislature. This is apparent from the EIB32 and ECB33 cases, in which the European Central Bank and the European Investment Bank contested the legality of a Regulation34 making the two institutions subject to the European Anti-Fraud Office (OLAF). The ECB case can be taken by way of example. The ECB argued that it was un­necessary for it to be subject to OLAF’s investigative powers, since there were other ­mechanisms for preventing fraud within the ECB, including independent external auditors, the Court of Auditors, and two other committees established by the ECB’s Governing Council. The ECB claimed furthermore that OLAF investigations would not be an appropriate way to prevent fraud, since many ECB documents were confidential and [2008] ECR I-1077, [46]; Case T-119/06 Usha Martin v Council [2010] ECR II-4335; Case T-162/14 Canadian Solar Emea GmbH v Council, EU:T:2017:124, [190]–[219]. 30  Case T-87/98 International Potash (n 29) [39]–[40]. 31  Ibid [41]–[60]. 32  Case C-15/00 Commission v European Investment Bank [2003] ECR I-7281. 33  Case C-11/00 Commission v European Central Bank [2003] ECR I-7147. 34  Regulation (EC) 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) [1999] OJ L136/1.

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would therefore have to be excluded from an OLAF inquiry. Given moreover that OLAF’s powers could only be applied to the ECB, and given that the ECB operated through national central banks, OLAF could not effectively combat fraud. The ECJ disagreed. The contested Regulation was adopted pursuant to Article 280 EC, now Article 325 TFEU, which provided that the Community and the Member States should counter fraud and other illegal activities affecting the financial interests of the Community. The ECJ held that with regard to judicial review of suitability and necessity ‘the Community legislature must be allowed a broad discretion in an area such as that involved in the present case, so that the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue’.35 The ECJ cited the British American Tobacco case,36 where it had said that proportionality review should require a finding that the measure was manifestly inappropriate where the Community legislature had a broad discretion involving matters of social, economic, or political choice requiring it to make complex assessments. The ECJ rejected the ECB’s claim concerning the necessity of OLAF’s involvement. It was, said the ECJ, open to the legislature to decide that, notwithstanding bodies attached to specific institutions whose mandate was to fight fraud, it was nonetheless necessary to strengthen this fight by creating a ‘control mechanism which is ­simultaneously centralized within one particular organ, specialized and operated independently and uniformly with respect to those institutions, bodies, offices and agencies’37 of the Community. This was more especially so given that OLAF’s tasks were not the same as bodies such as the Court of Auditors, or the bodies set up by the ECB itself. The Court was equally unconvinced by the ECB’s arguments concerning the ­suitability of the Regulation for attaining the desired goal. The ECJ acknowledged the need for confidentiality in the tasks performed by the ECB. However, it was for the ECB to show and not merely assert that restrictions on access to information were necessary. There were, moreover, provisions both within the Regulation and in other parts of Community law to ensure that information revealed in OLAF investigations would be subject to professional secrecy. It was accepted that the fact that OLAF could not investigate national central banks would limit its operations, but it would not, said the ECJ, render ineffective OLAF investigations within the ECB, or the communication of information from the ECB to OLAF in accord with the requirements of the Regulation.

(E) Evaluation: Suitability, Necessity, and Manifest Disproportionality It is important to stand back and assess the judicial approach to the suitability and necessity limbs of the proportionality test. The pertinent issue is the criterion of manifest disproportionality and the way it is applied by the Courts. 35  Case C-11/00 ECB (n 33) [157]. 37  Case C-11/00 ECB (n 33) [158].

36  Case C-491/01 British American Tobacco (n 9) [123].

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Let us begin by reflecting on the concept of manifest disproportionality. The rationale for this reading of proportionality is an admixture of concerns relating to ­legitimacy and expertise. The core idea is that where the Treaties explicitly or implicitly accord a broad discretion to the legislative institutions or the administration, the Courts should be wary of substituting their judgment for that of the primary decision-maker under the guise of proportionality. This is a valid concern. There are numerous factors to be balanced by the EU legislature in the context of, for example, the CAP. It is not for the Union Courts to intervene merely because they would, if they had been making the primary decision, have come to a different balance from that decided by the EU legislature or administration.38 This is more especially so where decisions as to suitability or necessity involve issues of expertise. While these twin considerations of legitimacy and expertise are especially prevalent in relation to discretionary economic choices, they are equally present in the context of discretionary social and political choices, as exemplified by the ECB case.39 It might be argued that while such considerations are valid they should not lead to a test framed in terms of ‘manifest disproportionality’. On this view the concerns relating to legitimacy and expertise can be properly taken into account through a proportionality test couched in less extreme terms. There is force in this view. We should, however, factor in the way in which the EU Courts actually apply the manifest disproportionality test. This criterion has not prevented the Union Courts from looking hard at the facts and arguments adduced by the parties, to determine whether the measure should be regarded as manifestly disproportionate. This is not to say that no cases would be decided differently if the test were revised. It is, however, unlikely that many cases would fall into this category. It would have been perfectly possible for the Courts to operate a test of manifest disproportionality and apply it in a very cursory fashion, in a similar manner to the early case law on manifest error, where the Courts’ review of the contested measure was perfunctory.40 The very fact that the Courts, while operating within a manifest disproportionality test, commonly assess the contending arguments in some depth means that they are more likely to find an error warranting annulment.41 It also means that the ‘gap’ between the test as currently formulated and a test framed in more moderate terms is likely to be less significant in reality than might otherwise have been thought.

(F) Evaluation: Stricto Sensu Proportionality, the Third Limb of the Test We have seen that there has been uncertainty as to whether the EU Courts used a twoor three-part proportionality test. The position from the case law may be summarized as follows. The normal judicial formulation of proportionality is cast in terms of 38  Case C-34/08 Azienda Agricola Disarò Antonio v Cooperativa Milka 2000 Soc coop arl [2009] ECR I-4023, [45]. 39  Case C-11/00 ECB (n 33). 40  See above, 445–8. 41  See, eg, Cases C-177 and 181/99 Ampafrance SA v Directeur des services fiscaux de Maine-et-Loire [2000] ECR I-7013.

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s­ uitability and necessity. Moreover, the EU Courts will not always address what is generally known as the stricto sensu proportionality inquiry. There are many cases where the judicial analysis begins and ends with consideration of suitability and necessity. This is the very reason for uncertainty as to whether the third limb is an integral part of proportionality as applied in the EU. There is, it should be acknowledged, little evidence that the EU Courts will raise the third limb of proportionality of their own ­volition. This would seem to point towards the conclusion that it is a two-part test. There are nonetheless two reasons for resisting this conclusion. The first reason is that in some cases the Court will in effect consider the third limb of the test when addressing one of the other limbs. This is exemplified by ABNA,42 where the ECJ held disproportionate a requirement in a Directive, which required manufacturers of animal feed to indicate, at a customer’s request, the exact ­composition of the feed. The ECJ concluded that this impacted seriously on the economic interests of manufacturers, as it obliged them to disclose the formulas for their products, with the risk that these could be used by others, which had the consequence that the manufacturers could not obtain the benefit of their research and innovation. This obligation could not be justified by the objective of protecting public health and manifestly went beyond what was necessary to attain that objective. The ECJ therefore, in effect, considered the issue posed by the third limb of the test when addressing the issue of necessity. The second reason for resisting the conclusion that it is a two-part test is that the Courts will explicitly address the third part of the test when the applicant advances arguments in those terms. The EU Courts accept that this can be a proper part of the proportionality analysis, but the onus is on the applicant to raise arguments that place the matter before them. This is what occurred in a number of the cases discussed earlier.43 The fact that the EU Courts are willing to consider the stricto sensu proportionality inquiry does not, however, tell one how they undertake this balancing exercise. It is clear that the depth of the Court’s inquiry in this respect differs markedly. There are some cases, such as Fedesa,44 where the ECJ addressed the issue, but only in the briefest manner. The applicants argued that the ban on hormones was neither appropriate nor necessary to attain the desired effect, and that the prohibition entailed excessive disadvantages in the form of financial losses as compared to the alleged ­benefits accruing to the general interest.45 The ECJ’s response may have been correct on the facts, but it was terse in the extreme. Its response was simply that ‘the i­ mportance of the objectives pursued is such as to justify even substantial negative financial consequences for certain traders’.46

42  Cases C-453/03, 11,12 and 194/04 The Queen, on the application of ABNA Ltd and Others v Secretary of State for Health and Food Standards Agency [2005] ECR I-10423, [82]–[86]. 43  Case C–331/88 Fedesa (n 11); Case C-183/95 Affish (n 15); Case T-13/99 Pfizer (n 20); Case C-426/93 Germany v Commission [1995] ECR I-3723. 44  Case C-331/88 Fedesa (n 11). 45  Ibid [12]. 46  Ibid [17].

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There are other cases, such as Affish,47 where there is a little more by way of judicial reasoning. The applicant argued that the ban on import of fish products from Japan would endanger its viability since a significant part of its revenue came from such imports.48 The ECJ responded by stating that the contested measure should be regarded as proportionate because it fulfilled the requirements of a Directive applicable in the area, which was designed to ensure that due attention was paid to the interests of ­traders and because the protection of public health which the contested Decision intended to secure must take precedence over economic considerations.49 There are yet other cases such as Pfizer50 where the CFI gave more detailed consideration to the third part of the proportionality test. The CFI decided that the contested measure withdrawing the authorization for the use of certain additives in feeding stuffs was appropriate and necessary for attaining the desired end. It then considered the applicant’s claim that the measure entailed disadvantages that were disproportionate to the objectives pursued. Pfizer claimed that withdrawal of authorization could only be proportionate where there was a serious risk causing great uncertainty and where there was evidence that the source against which the action was taken was the most likely explanation for the risk. It argued, moreover, that it was the only producer in the world of the additive and that the ban would lead to significant financial losses and job cuts. An immediate ban was therefore disproportionate. The CFI rejected the argument for a number of reasons. It reiterated the reasoning in Fedesa and Affish that public health must take precedence over economic considerations and that the importance of the public health objective could justify even substantial financial adverse consequences for traders.51 The CFI emphasized, moreover, that the Community institutions had not erred in their assessment of the risk posed by the additive, and that the withdrawal of authorization was a provisional measure, which the Commission and Council had a duty to re-examine. It is clear that applicants face an uphill battle convincing the EU Courts that a measure should be struck down as being stricto sensu disproportionate. The ECJ or CFI will already have decided that the contested measure withstands scrutiny under the ­suitability and necessity limbs of the test. The arguments adduced by the applicant at the third stage of the analysis will commonly focus on the financial losses suffered as a result of the measure. These will be placed in the balance against the objective sought by the EU and where this involves protection of public health, the EU Courts will be unlikely to find that the balance tilts in the applicant’s favour. Some may be tempted to conclude that the third stage is therefore stacked against the applicant to an unwarranted degree. We should nonetheless hesitate before reaching this conclusion. Balancing of this kind is inherently contestable. It is, moreover, doubtful whether the results in such cases would be different if the issue arose for adjudication before national courts. 47  Case C-183/95 Affish (n 15). 48  Ibid [41]. 49  Ibid [43]. 50  Case T-13/99 Pfizer (n 20); Cases T-125 and 152/96 Boehringer Ingelheim Vetmedica (n 14) [102]–[109]. 51  Ibid [456].

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4  Proportionality and Rights The discussion thus far has been concerned with the ‘paradigm case’ where proportionality is used to challenge a discretionary policy choice. The focus now shifts to cases involving proportionality and rights.

(A)  Rights Enshrined in the Treaty or EU Legislation Some claims will be made on the basis of rights enshrined in the Treaties or EU legislation. The ECJ will tend to construe limits to such rights strictly, with the consequence that there will be a searching inquiry into the suitability and necessity elements of proportionality, as exemplified by Hautala.52 Hautala, an MEP, sought access to a Council document concerning arms exports. The Council refused to grant access, because this could be harmful to the EU’s relations with third countries, and sought to justify this under Article 4(1) of Decision 93/731,53 governing access to Council documentation. The ECJ held that the right of access to documents54 was to be broadly construed so as to include access to information contained in the document, not just the document itself. The principle of proportionality required the Council to consider partial access to a document that contained information the disclosure of which could endanger an interest protected by Article 4(1). Proportionality also required that derogation from the right of access be limited to what was appropriate and necessary for achieving the aim in view.55 The aim pursued by the Council in refusing access to the contested report could be achieved if the Council removed, after examination, the passages that might harm international relations. The same approach is evident in Verein für Konsumenteninformation.56 The applicant, VKI, was an Austrian consumer organization, with legal capacity under Austrian law to bring actions on behalf of consumers where they had assigned such rights to VKI. The VKI sought access to Commission documents concerning a cartel in the banking sector, so that it could pursue legal actions in Austria for customers that might 52  Case C-353/99 P Council v Hautala [2001] ECR I-9565. See also Case C-353/01 P Olli Mattila v Council and Commission [2004] ECR I-1073; Case C-64/05 P Sweden v Commission [2007] ECR I-11389, [66]; Case T-362/08 IFAW Internationaler Tierschutz-Fonds GmbH v European Commission [2011] ECR II-11; Case C-127/13 P Strack v European Commission, EU:C:2014:2250; Case T-245/11 ClientEarth and The International Chemical Secretariat v European Chemicals Agency (ECHA), EU:T:2015:675, [229]–[231]; Case T-677/13 Axa Versicherung AG v European Commission, EU:T:2015:473. Compare Case C-139/07 P Commission v Technische Glaswerke Ilmenau GmbH [2010] ECR I-5885. 53  Council Decision 93/731/EC of 20 December 1993 on public access to Council documents [1993] OJ L340/43. 54  Art 255 EC; Art 15 TFEU. 55  Cases T-222, 327 and 329/99 Martinez, de Gaulle and Bonino v European Parliament [2001] ECR II-2823 reveal how proportionality might be used to challenge internal rules as to the organization of political parties within the European Parliament, although the challenge failed on the facts. 56  Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121.

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have been charged excessive rates of interest. The file containing the documentation was large and the Commission denied VKI’s request in its entirety, stating that the documents were covered by exceptions to the Regulation governing access, and that partial access was not possible since a detailed examination of each document would entail a disproportionate amount of work. The CFI held that the Regulation required the Commission in principle to carry out a concrete individual assessment of the ­documents contained in the request, except where it was manifestly clear that access should be refused or granted. The refusal to undertake any concrete assessment was therefore in principle manifestly disproportionate.57 There could, said the CFI, be cases where because of the number of documents requested the Commission must retain the right to balance the interest in public access against the burden of work in order to safeguard the interests of good administration. This possibility was, however, only applicable in exceptional cases. The right of access, coupled with concrete individual examination, was the norm.58 The CFI acknowledged that the relevant file was large, but nonetheless annulled the Commission’s decision. Intensive rights-based proportionality review is also evident in the Kadi case.59 The case was considered in the more general discussion of rights.60 It will be recalled that the applicant sought the annulment of a Community Regulation freezing the applicant’s assets, pursuant to a Security Council resolution made in the context of the policy to curb Al-Qaeda. The applicant argued, inter alia, that the Regulation constituted a disproportionate infringement of his property rights. The ECJ reiterated its normal approach: property rights were not absolute and hence could be restricted, provided that the restrictions corresponded to objectives of Community public interest and did not constitute a disproportionate and intolerable interference, impairing the very substance of the right so guaranteed.61 The ECJ concluded that the freezing of funds could not be regarded as per se disproportionate, given the importance of the fight against terrorism,62 but the fact that the Regulation provided no means whereby the applicant could contest his inclusion within the list of those liable to sanctions meant that it constituted an infringement of his property rights. Digital Rights Ireland63 provides a further example of high-intensity proportionality review in a case concerned with rights. It involved a challenge to provisions of a Directive that mandated retention of data for the purposes of crime prevention and detection. It was argued that this infringed respect for private life and communication under Article 7 of the Charter, the protection of personal data under Article 8, and respect for freedom of expression under Article 11, more especially because the data 57  Ibid [100]. 58  Ibid [101]–[115]. 59  Cases C-402 and 415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351. 60  See above, 535–6. 61  Cases C-402 and 415/05 P Kadi (n 59) [355]. 62  Ibid [363]–[366]. 63  Cases 293 and 594/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources, EU:C:2014:238; Case C-362/14 Maximillian Schrems v Data Protection Commissioner, EU:C:2015:650, [78]; O Lynskey, ‘The Data Retention Directive is incompatible with the rights to privacy and data protection and is invalid in its entirety: Digital Rights Ireland’ (2014) 51 CMLRev 1789.

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that had to be retained was very detailed. It was also argued that the provisions on data retention were inconsistent with the system for protection of privacy enshrined in other directives. The CJEU held that the data retention Directive prima facie infringed Articles 7 and 8 of the Charter. It did not, however, affect the essence of the right, and limits were justified in the public interest, which included crime prevention and detection. It was therefore necessary to decide whether the limits were proportionate. The CJEU ­elaborated the test for judicial review in the following terms.64 With regard to judicial review of compliance with those conditions, where interferences with fundamental rights are at issue, the extent of the EU legislature’s discretion may prove to be limited, depending on a number of factors, including, in particular, the area concerned, the nature of the right at issue guaranteed by the Charter, the nature and seriousness of the interference and the object pursued by the interference . . . In the present case, in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and ­seriousness of the interference with that right caused by Directive 2006/24, the EU legislature’s discretion is reduced, with the result that review of that discretion should be strict.

The CJEU then applied this test when adjudicating on proportionality. It accepted that data retention was in principle an appropriate way of fighting crime. It held, however, that the contested measures went beyond what was necessary. It was incumbent on the EU legislature to lay down clear and precise rules governing the scope and application of the measure in question and provide minimum safeguards against abuse. The provisions of the Directive were wanting in this respect for a number of reasons: they applied very broadly to all persons, irrespective of whether they had any link whatsoever to crime; there was no objective criterion by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of prevention, detection, or criminal prosecutions; and there were no substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use.65

(B)  Discretionary Policies, Fundamental Rights, and Proportionality The most common type of case raising issues of proportionality and rights is however different from that discussed earlier. It is where a measure is passed pursuant to an EU common policy, and one ground of challenge is that it infringes EU fundamental rights. The crucial issue is how far assertion of such a fundamental right changes the nature of the proportionality inquiry undertaken by the EU Courts. The answer is rather more complex than might be initially thought, because of two considerations.

64  Ibid [47]–[48]. 65 Ibid [46]–[71]. See also Case C-362/14 Maximillian Schrems v Data Protection Commissioner, EU:C:2015:650, [78], [91]–[93].

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There are, on the one hand, principled arguments for more vigorous scrutiny in  cases concerned with rights. It might well be accepted that such rights cannot be  regarded as absolute, but the very denomination of certain interests as EU rights means that any interference should be kept to a minimum. Proportionality is thus a natural and necessary adjunct to the recognition of such rights. Moreover, courts regard it as part of their legitimate function to adjudicate on the boundary lines between state action and individual rights, even though this line may be ­controversial. There is, on the other hand, the fact that cases concerned with proportionality and rights do not comprise a discrete, self-contained category. We might imagine that such cases arise in circumstances different from those discussed in the previous section, such that there are no complications about the case being concerned with discretionary policy choices. Some cases fit this picture. Most do not. The reality is that rightsbased challenges arise most frequently as one part of a proportionality action directed against a measure where the EU is exercising discretionary power. It is, therefore, ­necessary to ‘unpack’ the judicial analysis and to disaggregate the test which the EU Courts generally apply in relation to discretionary policy from the way in which they treat the specific allegations about proportionality and rights. The judicial approach can be summarized as follows. The EU Courts will apply the test of manifest disproportionality to non-rights-based claims that the discretionary policy measure was unsuited or unnecessary to achieve the desired aim. The most common rights-based claims raised by applicants against such Union measures are property rights, or the right to pursue a profession, trade, or occupation. The EU Courts have acknowledged such rights within the EU legal order, but have made it clear that they are not absolute and must be viewed in relation to their social function. The ECJ and GC will, therefore, consider whether the restrictions imposed by the measure correspond to objectives of general interest pursued by the Union and whether they constitute a disproportionate and intolerable interference, which impairs the very substance of the rights guaranteed.66 This approach to common policies, proportionality, and rights is apparent in the Court’s jurisprudence throughout the EU’s history. This is readily apparent from consideration of early case law, that in the middle period of the EU, and more modern jurisprudence.

66  Case 265/87 Schräder HS Kraftfutter GmbH & Co KG v Hauptzollamt Gronau [1989] ECR 2237, [15]; Case C-280/93 Germany v Council [1994] ECR I-4973, [78]; Case C-200/96 Musik Metronome GmbH v Music Point Hokamp GmbH [1998] ECR I-1953, [21]; Case T-113/96 Dubois et Fils SA v Council and Commission [1998] ECR II-125, [74]–[75]; Cases T-125 and 152/96 Boehringer Ingelheim Vetmedica (n 14) [102]–[103]; Case C-293/97 R v Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex p Standley [1999] ECR I-2603, [54]; Case T-13/99 Pfizer (n 20) [456]–[457]; Cases C-402 and 415/05 P Kadi (n 59) [355]; Cases C-379–380/08 Raffinerie Mediterranee (ERG) SpA and others v Ministero dello Sviluppo economico [2010] ECR I-2007, [80]; Case T-68/08 Fédération internationale de football association (FIFA) v European Commission [2011] ECR II-349, [143]; Case C-157/14 Société Neptune (n 9); Case 477/14 Pillbox 38  (n 9) [155]–[166]; Case C-547/14 R (on the application of Philip Morris) v Secretary of State for Health, EU:C:2016:235, [146]–[163].

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An early example is the Hauer case.67 The applicant challenged a Community Regulation that limited the planting of new vines. The Court found that this did not, in itself, constitute an invalid restriction on property rights. It then determined whether the planting restrictions were disproportionate, ‘impinging upon the very substance of the right to property’.68 The Court found that they were not, but in reaching this conclusion it carefully examined the purpose of the general scheme in which the contested Regulation fell. The objects of this scheme were to attain a balanced wine market, with fair prices for consumers and a fair return for producers; the eradication of surpluses; and improvement in the quality of wine. The disputed Regulation, which prohibited new plantings, was part of this overall plan. It was not disproportionate in the light of the legitimate, general Community policy for this area. This policy was designed to deal with an immediate problem of surpluses, while laying the foundation for more permanent measures to facilitate a balanced wine market. The same approach to common policies, proportionality, and rights was evident at the turn of the millennium, as exemplified by the British American Tobacco case.69 The applicants challenged a 2001 Directive made pursuant to Articles 95 and 133 EC,70 which was designed to approximate national laws concerning the manufacture, presentation, and sale of tobacco products. An earlier tobacco advertising Directive had been invalidated,71 and the applicants claimed that the 2001 Directive should fare no better. The ECJ rejected this argument and held that since the measure genuinely aimed to improve the functioning of the internal market it could be made under what was Article 95 EC. The applicants also maintained that the Directive was disproportionate, in particular with regard to provisions that prohibited statements on tobacco products to the effect that the product was less harmful than some other product because of low tar yields and the like, and because the Directive applied to export to non-Member countries. The applicants claimed further that the Directive infringed their fundamental right to property. The ECJ accepted that the measure must meet the proportionality criteria of ­suitability and necessity. Where however the measure entailed political, social, and economic choice, involving complex assessments, the EU legislature must be allowed a broad discretion, with the consequence that the test was one of manifest disproportionality.72 The ECJ found the Directive to be proportionate judged by this criterion. It held that the contested provision prohibiting the use of terms such as ‘mild’ or ‘low tar’ could be justified, given that they might mislead consumers into thinking that such products really were less harmful than others. The provisions rendering the Directive applicable to exports to non-Member countries were seen as warranted given the need to prevent evasion of the Community rules through illicit reimport of tobacco products that did not meet the requirements of those produced for use in the Community. 67  Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727. 68  Ibid [23]. 69  Case C-491/01 British American Tobacco (n 9).    70  Arts 114 and 207 TFEU. 71  Case C-367/98 Germany v Parliament and Council [2000] ECR I-8419. 72  Case C-491/01 British American Tobacco (n 9) [122]–[123].

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The ECJ then turned its attention to the argument based on infringement of property rights. The applicants maintained that the requirements for very large health warnings infringed their intellectual property rights. The Court was, not surprisingly, unconvinced. It held that while property was a right recognized by Community law, it was not an absolute right. The right could be restricted provided that the restrictions corresponded to objectives of general interest pursued by the Community and did not constitute a ‘disproportionate and intolerable interference, impairing the very substance of the rights guaranteed’.73 Judged by this criterion the Directive was held to be proportionate. The Directive limited the space on the packet on which the manufacturer could display its trade mark, but this was a proportionate restriction to allow the remaining space to be used for health warnings. Moreover the fact that the Directive prohibited certain descriptors on the packet did not prevent the manufacturer from using other distinctive signs to distinguish its product.74 This approach is evident in other cases. Thus in Booker Aquaculture75 the applicants claimed that the UK government’s failure to provide compensation for fish destroyed pursuant to a Directive infringed their right to property. The ECJ rejected the claim. It held that the Directive clearly pursued a legitimate Community objective, the safeguarding of health from diseased fish stock. The destruction of such stock was ­necessary to attain this aim. The absence of compensation did not constitute a disproportionate and intolerable interference impairing the very substance of the right to property. Fish farming carried certain commercial risks, of which the applicants were fully aware and the Community measures were designed to facilitate the clearance of diseased stock, thereby enabling restocking as quickly as possible. The approach is unaltered in the modern case law, as exemplified by Pillbox 38,76 which involved a challenge to provisions of a Directive concerning electronic c­ igarettes. The applicant argued that the provisions infringed Article 16 of the Charter, concerning the freedom to conduct a business, since the provisions prevented the manufacturers from promoting their product. The CJEU rejected the argument. It held that the freedom to conduct a business did not constitute an unfettered prerogative, but should be examined in the light of its societal function. It could, therefore, be subject to limitation in the public interest, provided that this was provided by law, respected the essence of the right and complied with proportionality. The contested provisions of the Directive did not infringe the essence of the right to make and sell electronic cigarettes. Nor was the constraint on promoting sales excessive, given the empirical evidence concerning the merits and demerits of the product, which the CJEU examined in detail.77 The applicant also contended that the Directive infringed Article 17 of the Charter, 73  Ibid [149]. 74  Ibid [150]–[152]. 75  Cases C-20 and 64/00 Booker Aquaculture Ltd and Hydro Seafood GSP Ltd v Scottish Ministers [2003] ECR I-7411. See also Cases C-184 and 223/02 Spain and Finland v European Parliament and Council [2004] ECR I-7789. 76  Case 477/14 Pillbox 38 (n 9) [155]–[166]. See also Case 283/11 Sky Österreich GmbH v Österreichischer Rundfunk, EU:C:2013:28; Case C-547/14 Philip Morris (n 66) [146]–[163]. 77  Ibid [50]–[68], [109]–[118].

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which relates to intellectual property, by interfering with management of its commercial property, including its brand name. The CJEU rejected this claim, since the Directive did not hinder use of the intellectual property in connection with the marketing of the products, and thus the essence of the property right remained intact. Insofar as there were limitations on use of the property right, they were proportionate.

(C) Evaluation It is important to evaluate the Courts’ jurisprudence. There are a number of points to be made in this regard. They are related but distinct. First, the fact that fundamental rights are not regarded as absolute is not problematic in normative terms. Legal systems generally recognize that the right to property and freedom to pursue a trade or an occupation can be subject to restrictions. This is equally true of rights such as free speech or association, which can be limited as recognized by the ECHR and national legal systems. There may be rights that can be regarded as absolute, in the sense that they do not admit of limitation. The right not to be tortured is an obvious example. The ECJ’s judgments were not, however, issued with such rights in mind, and it would be very likely to modify its position if faced with such a situation.78 Secondly, the requirement that any restriction on the right must be justified by some objective of general interest pursued by the EU is a necessary condition for the legality of the measure, but is not a significant hurdle. The condition is cast in very general terms, as opposed to the more discrete list of justified grounds in other rights-based documents, and it will therefore be rare for a measure not to surmount this hurdle. To put the same point another way, measures that limit rights will almost always be designed to attain some general interest pursued by the EU. Thirdly, the scope of application of the test, viz that a restriction will be upheld unless it constitutes a disproportionate and intolerable interference which impairs the very substance of the right, is uncertain. The test has been applied principally in cases where the applicant claimed that the right to property or the freedom to pursue a trade, profession, or business had been infringed by an EU discretionary measure. This begs the question of whether the test will also be used in relation to other rights. The case law provides no certain answer.79 In Connolly80 the ECJ considered whether the removal of a Community official from his post because he had published without permission a book critical of EU monetary policy was unlawful on the ground that it 78  In Case C-112/00 Schmidberger, Internationale Transporte und Planzüge v Austria [2003] ECR I-5659, [80] the ECJ noted that certain rights contained in the ECHR admitted of no limitation. The ECJ did not explicitly state that EU law would preclude derogations from such rights, but that is a reasonable implication from the judgment, given that the ECJ gave no hint of wishing to differ from the Convention jurisprudence in this respect. 79  S Peers, ‘Taking Rights Away? Limitations and Derogations’ in S Peers and A Ward (eds), The EU Charter of Fundamental Rights: Politics, Law and Policy (Hart, 2004) 142–9. 80  Case C-274/99 P Connolly v Commission [2001] ECR I-1611.

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infringed the applicant’s freedom of speech. The details of the judgment do not concern us here. What is apposite is that the ECJ followed the ECtHR jurisprudence with its emphasis on the necessity for the limitation, the existence of a pressing social need, and strict scrutiny of the rationale for the restriction. In Schmidberger81 the approach was rather different. The Austrian government gave implicit permission for a demonstration by an environmental group on the Brenner motorway, which closed it for thirty hours. Schmidberger ran a transport firm and argued that the closure constituted breach of free movement of goods. The issue before the ECJ was the relation between what was Article 28 EC on free movement and freedom of expression and assembly as protected by Articles 10 and 11 ECHR and the Austrian Constitution. The detail of the judgment does not concern us here.82 What is relevant is that the test applied by the ECJ was identical to that used in the property/freedom to trade cases. Thus the ECJ stated that freedom of expression and assembly were part of EU law; that they were not absolute, but must be viewed in relation to their social purpose; and that restrictions could be justified if they corresponded to objectives of general interest and did not constitute disproportionate and unacceptable interference, which impaired the very substance of the right.83 This was also the approach in Digital Rights Ireland.84 Fourthly, it is contestable how far the ECJ’s test differs from that applied by the Strasbourg Court. It might be argued that there is no tension since the two tests do not in reality differ. On this view the ECJ’s criterion as applied to property/freedom to trade and applied to speech in Schmidberger is no different from that used in Strasbourg and applied in Connolly. We should hesitate before endorsing this conclusion for two related reasons. On the one hand, a test premised on a finding of some general EU interest, coupled with the requirement that the restrictions do not constitute disproportionate and ­intolerable/unacceptable interference which impairs the very substance of the right, is not self-evidently the same as one framed in terms of specific grounds for limiting rights, coupled with strict scrutiny as to whether the restriction is necessary to meet a pressing social need and proportionate to that end. This is so notwithstanding the fact that the application of the two tests might lead to the same result in a particular case. On the other hand, there is an ambiguity in the meaning of the phrase a ‘disproportionate and intolerable interference, which impairs the very substance of the rights guaranteed’. The inclusion of the latter part of this formulation, that the restriction should not impair the very substance of the right, is derived from German law.85 It captures the important idea that a restriction should not be deemed lawful if it undermines the essence of the guaranteed right. This phrase can, however, also carry a different connotation: a restriction will be deemed to be lawful provided that it does not infringe the essence of the right. Whether intended or not, the wording of the ECJ’s formulation, that restrictions will be lawful provided that they do not constitute a 81  Case C-112/00 Schmidberger (n 78). 82  See above, 517–18. 83  Case C-112/00 Schmidberger (n 78) [80]. 84  Cases 293 and 594/12 Digital Rights Ireland (n 63). 85  de Witte, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’ in P Alston (ed), with M Bustelo and J Heenan, The EU and Human Rights (Oxford University Press, 1999) 880.

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­ isproportionate and intolerable interference that impairs the substance of the right, d carries the latter connotation rather than the former. Fifthly, the Lisbon Treaty rendered the EU Charter of Rights86 binding and imposed a duty on the EU to accede to the ECHR. Article 52(1) of the Charter provides, Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.

The framing of the Article, coupled with the shift in language from impairing the substance of the right to respecting its essence, gives the limitation clause a different feel from the CJEU’s test. Article 52(1) makes it clear that any limitation must respect the essence of the right, and that even if it does it will only be lawful if proportionate, ­necessary, and in the general interest. This is borne out by some case law. Thus in Schecke87 the ECJ struck down provisions of an EU Regulation whereby the names and income of natural legal persons who were recipients of agricultural aid were published on a website. The Court held that the Regulation infringed the Charter articles concerning family life and data protection and that the public interest served by the Regulation could have been achieved in a manner less restrictive of the rights.88 Finally, we should reflect on whether the CJEU’s test has led to decisions that should have gone the other way if a different test had been employed. This is a difficult question on which commentators can legitimately differ. There is no doubt that some cases have caused disquiet, with claimants feeling that the Court has given insufficient weight to a right.89 If, however, one reflects on the leading cases discussed earlier where applicants have argued that the discretionary measure infringes a right to property or freedom to pursue a trade, it is difficult to avoid the conclusion that most such claims were weak on the facts. This does not obviate the need for critical scrutiny as to whether the test used by the EU Courts is correctly framed, but it does indicate that the test is not generally leading to unjust outcomes.

5  Proportionality, Penalties, and Financial Burden (A)  The General Approach Proportionality has regularly been used to claim that a penalty or other financial ­burden is excessive. The EU Courts have less reason for reticence in this type of case, 86  Charter of Fundamental Rights of the European Union [2010] OJ C83/2. 87  Cases C-92–93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen [2010] ECR I-11063. 88  See also Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland [2010] ECR I-13849. 89  de Witte (n 85) 878–82.

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primarily because a penalty or financial burden can be struck down without thereby undermining the entirety of the underlying policy. They have made it clear that where EU rules impose a primary and a secondary obligation, the penalty for failure to fulfil the latter obligation should generally be less onerous than that imposed for failure to comply with the primary duty.90 There have been numerous cases where the applicant claimed that a penalty was excessive in relation to the aim of the measure. In Man (Sugar)91 the applicant was required to give a security deposit to the Board when seeking a licence to export sugar outside the Community. The applicant was four hours late in completing the  paperwork. The Board, acting pursuant to a Community Regulation, forfeited the entire deposit of £1,670,370. The Court held that the automatic forfeiture of the entire deposit for any failure to fulfil the time requirement was too drastic, given the  function of export licences.92 The same reasoning underlies Atalanta,93 where the ECJ held that provisions of a Community Regulation concerned with storage aid for pig meat, which stipulated that the security would be forfeited if the obligations imposed by the storage contract were not fulfilled, were disproportionate because they did not enable the penalty to be made commensurate with the seriousness of the contractual breach. In addition to cases dealing with penalties stricto sensu the Court has applied proportionality to scrutinize the charges or burdens imposed by EU institutions. Thus in Bela-Mühle94 the Court held that a scheme whereby producers of animal feed were forced to use skimmed milk, rather than soya, in their product, in order to reduce a milk surplus, was unlawful. Skimmed milk was three times more expensive than soya and hence constituted a disproportionate burden on animal feed producers. While the general approach is that set out earlier, there are cases concerned with penalties where the ECJ has applied the manifestly disproportionate test derived from Fedesa.95 This approach seems to be adopted when the penalty is an integral substantive part of a discretionary policy, which is itself subject to the Fedesa test.96 90  Case 122/78 Buitoni v Forma [1979] ECR 677; Case C-104/94 Cereol Italia v Azienda Agricola Castello [1995] ECR I-2983; Case C-161/96 Südzucker Mannheim/Ochsenfurt AG v Hauptzollamt Mannheim [1998] ECR I-281. 91  Case 181/84 R v Intervention Board, ex p ED & F Man (Sugar) Ltd [1985] ECR 2889. 92  Ibid [29]. 93  Case 240/78 Atalanta Amsterdam BV v Produktschap voor Vee en Vlees [1979] ECR 2137. See also Case 122/78 Buitoni SA v Fonds d’orientation et de régularisation des marchés agricoles [1979] ECR 677; Case 21/85 Maas & Co NV v Bundesanstalt für Landwirtschaftliche Marktordnung [1986] ECR 3537. 94  Case 114/76 Bela-Mühle Josef Bergman KG v Grows-Farm GmbH & Co KG [1977] ECR 1211; Case 116/76 Granaria BV v Hoofdprodukschap voor Akkerbouwprodukten [1977] ECR 1247; Cases 119 and 120/76 Ölmühle Hamburg AG v Hauptzollamt Hamburg-Waltershof [1977] ECR 1269; Case C-295/94 Hupeden & Co KG v Hauptzollamt Hamburg-Jonas [1996] ECR I-3375; Case C-296/94 Pietsch v Hauptzollamt Hamburg-Waltershof [1996] ECR I-3409; Case C-365/99 Portugal v Commission [2001] ECR I-5645. 95  Case C-331/88 Fedesa (n 11). 96  Case C-94/05 Emsland-Stärke GmbH v Landwirtschaftskammer Hannover [2006] ECR I-2619, [53]–[59]; Cases C-37 and 58/06 Viamex Agrar Handels GmbH and Zuchtvieh-Kontor GmbH (ZVK) v Hauptzollamt Hamburg-Jonas [2008] ECR I-69, [33]–[36].

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(B)  Proportionality, Penalties, and Legislative Objectives While the EU Courts will review the proportionality of penalties with some rigour, they also apply the principle so as to effectuate the aims of the Treaty provisions or legislation. This explains the oft-repeated statements that the obligation to recover unlawful state aid with interest cannot be regarded as disproportionate, given that the objective of Article 107 TFEU is to eliminate illegal state aid.97 The same theme is to be found in the jurisprudence on proportionality and the Structural Funds. The legal framework that governs this area was considered in a previous chapter.98 Applicants have not infrequently challenged decisions reducing or cancelling aid given under the Structural Funds, arguing that this was a disproportionate response to the breach of  the condition attached to the funding. The application of proportionality in this context is clearly shaped by the desire to ensure that the aims of this funding system are attained. This is exemplified by Conserve Italia.99 The ECJ held that it was essential for the functioning of the system of controls designed to ensure proper use of EU funds that applicants for aid provided the Commission with information that was reliable and not apt to mislead. The fact that the beneficiary of the assistance had failed to fulfil its obligation not to start work on the project before receipt by the Commission of the aid application, and that it forwarded inaccurate information about the contract of sale for a machine referred to in the project, constituted serious breaches of fundamental obligations under the scheme. The ECJ concluded that ‘only the possibility that an irregularity may be penalized not by reduction of the aid by the amount ­corresponding to the irregularity, but by complete cancellation of the aid can produce the deterrent effect required to ensure the proper management of the resources of the EAGGF’.100 The EU Courts will nonetheless treat claims concerning the proportionality of a reduction or discontinuance in funding seriously. Thus in Astipeca101 the CFI decided that a reduction in fisheries assistance on the ground that a vessel had breached the conditions by fishing in the wrong waters was proportionate, but only after it had 97  Case C-142/87 Belgium v Commission [1990] ECR I-959, [66]; Case C-169/95 Spain v Commission [1997] ECR I-135, [47]; Case T-55/99 CETM v Commission [2000] ECR II-3207, [160]–[164]; Case T-288/97 Regione Fiuli Venezia Giulia v Commission [2001] ECR II-1169, [105]; Case 372/97 Italy v Commission [2004] ECR I-3679, [103]; Case C-278/00 Greece v Commission [2004] ECR I-3997, [103]; Case C-148/04 Unicredito Italiano SpA v Agenzia delle Entrate, Ufficio Genova 1 [2005] ECR I-11137, [113]–[116]. 98  Ch 4. 99  Case C-500/99 P Conserve Italia Soc Coop arl v Commission [2002] ECR I-867. 100  Ibid [101]. See also Case T-199/99 Sgaravatti Mediterranea Srl v Commission [2002] ECR II-3731, [134]– [138]; Case T-186/00 Conserve Italia Soc Coop rl v Commission [2003] ECR II-719, [83]–[89]; Case T-305/00 Conserve Italia Soc Coop rl v Commission [2003] ECR II-5659, [110]–[120]; Cases T-61 and 62/00 APOL and AIPO v Commission [2003] ECR II-635, [119]; Case C-240/03 P Comunità Montana della Valnerina v Commission [2006] ECR I-731, [53]; Case T-74/07 Germany v Commission [2009] ECR II-107, [53]; Case C-465/10 Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration v Chambre de commerce et d’industrie de l’Indre, EU:C:2011:867, [38]–[41]. 101  Case T-180/00 Astipeca SL v Commission [2002] ECR II-3985.

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c­ onsidered the facts and arguments of the applicant in considerable detail.102 And in one of the many Conserve Italia cases103 the CFI held that a Commission reduction in funding by an amount approximately twenty times greater than the breaches complained of was disproportionate, since it bore no relationship to the relative lack of seriousness of the infringement and the applicant had no fraudulent intent.

(C)  Penalties and Unlimited Jurisdiction The cases considered thus far involve review of penalties by the Union Courts for ­compliance with proportionality. There are, however, areas where they have unlimited jurisdiction in relation to penalties. Article 261 TFEU states that regulations adopted by the European Parliament and Council, or by the Council alone, may give the Court of Justice unlimited jurisdiction with regard to the penalties provided for in those ­regulations. The Council and European Parliament have conferred such power on the ECJ.104 This is especially important since fines are regularly challenged in competition cases, a fact that is unsurprising given the very large sums of money involved.105 Proportionality may still figure in the argument in these cases, since it is used to ­support the applicant’s claim that the fine should be reduced.106 This does not alter the fact that the EU Courts have unlimited jurisdiction and can alter the fine irrespective of whether any proportionality argument can be sustained.

(D) Evaluation The Courts’ jurisprudence in relation to proportionality, penalties, and financial burdens is relatively uncontroversial. The judicial starting point is close scrutiny of the contested measure, an approach influenced by the fact that such cases will commonly involve annulment either of a single administrative act or a particular article of a regulation, without calling into question the more general legislative schema.107 The considerations that operate to limit proportionality review of discretionary policy choices

102  Ibid [77]–[114]. 103  Case T-306/00 Conserve Italia Soc Coop rl v Commission [2003] ECR II-5705, [127]–[150]. 104  See, eg, Council Regulation 17 [1959–62] OJ Eng Spec Ed 87, Art 17; Council Regulation 4064/89/EEC of 21 December 1989 on the control of concentrations between undertakings [1990] OJ L257/13, Art 16; Case C-3/06 P Groupe Danone v Commission [2007] ECR I-1331, [60]–[62]. 105 See, eg, Cases C-238, 244, 245, 247, 250, 252 and 254/99 P Limburgse Vinyl Maatschappij NV v Commission [2002] ECR I-8375; Case T-224/00 Archer Daniels Midland Co and Archer Daniels Midland Ingredients Ltd v Commission [2003] ECR II-2597; Case C-359/01 P British Sugar plc v Commission [2004] ECR I-4933; Cases C-204–5, 211, 213, 217 and 219/00 P Aalborg Portland A/s and others v Commission [2004] ECR I-123; Cases T-101 and 111/05 BASF AG and UCB SA v Commission [2007] ECR II-4949; Case C-3/06 P Groupe Danone (n 104); Case T-18/05 IMI plc, IMI Kynoch Ltd and Yorkshire Copper Tube v European Commission [2010] ECR II-1769; Case C-411/15 P Timab Industries and Cie financière et de participations Roullier (CFPR) v European Commission, EU:C:2017:11. 106  See, eg, Case T-59/99 Ventouris Group Enterprises SA v Commission [2003] ECR II-5257. 107  Case T-211/02 Tideland Signal Ltd v Commission [2002] ECR II-3781, [39]–[44].

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are largely absent here. It is, moreover, not surprising that the EU Courts should take account of the objectives of the relevant Treaty provisions or legislative scheme when deciding how to deal with proportionality claims in areas such as state aids and the Structural Funds. The appropriateness and necessity of a penalty or financial burden can best be determined in the light of the legislative objectives pertaining to the ­particular area.

6 Conclusion The centrality of proportionality to EU administrative law is readily apparent from the preceding analysis. We should be aware in this respect of the need for careful identification of the positive law and of the normative foundations on which it is based. We should also be mindful of the connections between proportionality and other related grounds of review. Proportionality will often be but one ground of challenge in a case. The link between this principle and review for manifest error is especially important, all the more so given the increased force with which the latter has been imbued through recent developments in the case law.108

108  See Ch 15.

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20 Proportionality II: Member States 1 Introduction The discussion in the previous chapter was concerned with proportionality and EU action. We now consider proportionality and the legality of Member State action.1 The discussion begins with positive law and analysis of the principal areas in which proportionality is used to contest the legality of Member State action. The application of proportionality and the four freedoms will be considered, followed by examination of the case law on proportionality and equality, with the focus then shifting to the way in which proportionality constrains Member States’ implementation and application of EU legislation. The remainder of the chapter is normative in orientation. We shall look at the intensity of review and the justification for close judicial scrutiny when applying proportionality to Member State action. It will also become apparent that the CJEU is nonetheless willing to apply proportionality in a way that is tolerant of differences in Member State values. The chapter concludes by considering the allocation of responsibility between the CJEU and the national courts when deciding on the application of proportionality. 1  G de Búrca, ‘The Principle of Proportionality and its Application in EC Law’ (1993) 13 YBEL 105; A Sandulli, ‘Eccesso di potere e controllo di proporzionalità. Profili comparati’ (1995) Rivista Trimestrale di Diritto Pubblico 329; N Emiliou, The Principle of Proportionality in European Law (Kluwer, 1996); G Gerapetritis, Proportionality in Administrative Law (Sakkoulas, 1997); D-U Galetta, Principio di Proporzionalità e Sindacato Giurisdizionale nel Diritto Amministrativo (Giuffrè, 1998); E Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart, 1999); U Bernitz and J Nergelius, General Principles of European Community Law (Kluwer, 2000); E Castorina, ‘Diritto alla sicurezza, riserva di legge e principio di proporzionalità: le premesse per una “Democrazia europea”’ (2003) Rivista Italiana di Diritto Pubblico Comunitario 301; D-U Galetta, ‘La proporzionalità quale principio generale dell’ordinamento’ (2006) Giornale di Diritto Amministrativo 1106; T Tridimas, The General Principles of EU Law (Oxford University Press, 2nd edn, 2006) Ch 4; J Schwarze, European Administrative Law (Sweet & Maxwell, revised edn, 2006) Ch 5; A Stone Sweet and J Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Col J Transnational L 73; W Sauter, ‘Proportionality in EU Law: A Balancing Act?’, Tilec Discussion Paper, DP 2013-003; J Bomhoff, ‘Beyond Proportionality: Thinking Comparatively about Proportionality and Punitiveness’, LSE, Law, Society and Economy Working Papers, 12/2016; D-U Galetta, ‘General Principles of EU Law as Evidence of a Common European Legal Thinking: The Example of the Proportionality Principle (from the Italian Perspective)’ in H-J Blanke, P Cruz Villalón, T Klein, and J Ziller (eds), Common European Legal Thinking: Essays in Honour of Albrecht Weber (Springer, 2016) 221–42.

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2  Positive Law: The Four Freedoms It is important to be aware of the paradigm case in which proportionality is used to contest the legality of Member State action. This is where the EU Courts have found a prima facie infringement of one of the four freedoms concerning goods, workers, establishment, and the provision of services and capital. The Member State then seeks to rely on a defence that the infringement was justified by the relevant Treaty article. Thus to take an example, Article 36 TFEU states that, The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

Similar provisions exist for the other freedoms.2 The Union Courts have construed such provisions strictly. The challenged rule must come within one of the listed ­categories, and the burden of proof is on the Member State seeking to rely on the exception.3 The Member State action must also comply with proportionality. This is not an explicit condition in the Treaty provisions allowing limitations on the four freedoms, but the CJEU has nonetheless demanded that the challenged measure must be the least restrictive possible to attain the end in view. Proportionality was read in as an underlying requirement flowing from the last sentence of Article 36. The requirement that a restriction of free movement justified on grounds of, for example, public health should not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States was taken by the EU Courts to warrant the application of proportionality, thereby enabling them to check whether such a measure went beyond what was necessary. Analogous reasoning has been used to justify the application of proportionality when a Member State seeks to take advantage of one of the mandatory requirements in the context of indistinctly applicable rules.4 Member States must in addition comply with proportionality when adopting measures to implement Union legislation.5 The EU Courts engage in relatively intensive review to determine whether the Member State restriction of an ­important Treaty right really is necessary.6 2  Arts 45(3), 52, 62, 65 TFEU. 3  Case C-17/93 Openbaar Ministerie v Van der Veldt [1994] ECR I-3537; Case C-358/95 Morellato v Unita Sanitaria Locale (USL) n 11 di Pordenone [1997] ECR I-1431, [14]; Case C-14/02 ATRAL SA v Belgium [2003] ECR I-4431, [67]. 4  P Craig and G de Búrca, EU Law: Text, Cases, and Materials (Oxford University Press, 6th edn, 2015) Ch 19. 5  Case C-313/99 Mulligan and others v Minister for Agriculture and Food, Northern Ireland [2002] ECR I-5719, [35]–[36]; Cases C-480–482, 484, 489, 490–491 and 497–499/00 Azienda Agricole Ettore Ribaldi v AIMA [2004] ECR I-2943, [43]. 6  Space precludes specific treatment of proportionality and capital, see Case C-334/02 Commission v France [2004] ECR I-2229.

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(A) Goods There are numerous examples of proportionality and free movement of goods.7 The judicial approach is exemplified by Sandoz.8 The Netherlands refused to allow the sale of muesli bars that contained added vitamins, because the vitamins were dangerous to public health, notwithstanding that the muesli bars were readily available in Germany and Belgium. It was accepted that vitamins could be beneficial to health, but it was acknowledged that excessive consumption could be harmful. Scientific evidence was not certain as regards the point when consumption of vitamins became excessive, particularly because vitamins in one food might be added to those from a different food. The ECJ accepted that uncertainties in the scientific research meant that it was for the Member States, in the absence of harmonization, to decide what degree of protection to afford to human health. National rules prohibiting the marketing of food with added vitamins could, therefore, be justified in principle. This was, however, subject to proportionality, which meant that limits on imports should be restricted to what was ­necessary to attain public health: the Member State should therefore authorize marketing when the addition of vitamins to food met a real need, especially a technical or nutritional one.9 The same approach is evident in the famous Cassis de Dijon case.10 The Court decided that a German rule which prescribed the minimum alcohol content for a certain alcoholic beverage could constitute an impediment to the free movement of goods. The Court then considered whether the rule was necessary to protect consumers from being misled. It rejected the defence, because the interests of consumers could be safeguarded in other, less restrictive ways, by displaying the alcohol content on the ­packaging of the drinks.11 It is, moreover, clear that when assessing proportionality, it is not enough for a Member State simply to assert that a measure is warranted on grounds of public health. It must produce evidence to substantiate this claim, and to show that the restriction was proportionate. This is exemplified by Commission v Italy.12 The Commission 7  See, eg, Case 104/75 de Peijper [1976] ECR 613; Case 261/81 Walter Rau Lebensmittelwerke v De Smedt, Pvba [1982] ECR 3961; Case 124/81 Commission v UK [1983] ECR 203; Case 72/83 Campus Oil Ltd v Minister for Industry and Energy [1984] ECR 2727; Case C-62/90 Commission v Germany [1992] ECR I-2575; Case C-124/95 R, ex p Centro-Com v HM Treasury and Bank of England [1997] ECR I-81. 8  Case 174/82 Officier van Justitie v Sandoz BV [1983] ECR 2445. 9  See also Case 53/80 Officier van Justitie v Koniklijke Kassfabriek Eyssen BV [1981] ECR 409; Case 94/83 Albert Heijin BV [1984] ECR 3263; Case 178/84 Commission v Germany [1987] ECR 1227; Case 304/84 Ministère Public v Muller [1986] ECR 1511; Case C-62/90 Commission v Germany [1992] ECR I-2575; Case C-239/02 Douwe Egberts NV v Westrom Pharma NV [2004] ECR I-7007; Case C-366/04 Schwarz v Bürgermeister der Landeshauptstadt Salzburg [2005] ECR I-10139; Case C-282/15 Queisser Pharma GmbH & Co KG v Bundesrepublik Deutschland, EU:C:2017:26. 10  Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649. 11  See also Case C-217/99 Commission v Belgium [2000] ECR I-10251; Case C-473/98 Kemikalieinspektionen v Toolex Alpha AB [2000] ECR I-5681; Case C-20/03 Criminal Proceedings against Burmanjer, Van der Linden and de Jong [2005] ECR I-4133; Case C-441/04 A-Punkt Schmuckhandels GmbH v Claudia Schmidt [2006] ECR I-2093; Case C-28/09 Commission v Austria, EU:C:2011:854; Case C-170/04 Rosengren v Riksåklagaren [2007] ECR I-4071; Case C-15/15 New Valmar BVBA v Global Pharmacies Partner Health Srl, EU:C:2016:464. 12  Case 270/02 Commission v Italy [2004] ECR I-1559.

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c­ hallenged an Italian law that required prior authorization and payment of administrative costs for the import of food products for sportsmen. The ECJ held that the Italian law was caught by what was Article 28 EC. The Italian government argued that the measure could be justified on grounds of public health. The ECJ was unconvinced.13 Despite the requests of the Commission, the Italian government has not shown any alleged risk to public health which the products in question are likely to pose. It failed to explain on what scientific data or medical reports the guidelines which it enclosed were based and has not given general information on those alleged risks. Furthermore, it has not made clear the link between the procedure in question and the alleged risk to public health, nor explained the reasons why such protection is more effective than other forms of control and thus proportionate to the objective pursued.

The ECJ was also unimpressed with the claim that the Italian law might be justified as protective of consumers. It had not been shown how the prior authorization procedure was necessary and proportionate to that objective. There were, moreover, less ­restrictive measures to prevent consumers from being misled, such as obligations relating to the accuracy of the labelling and the veracity of the factual data presented on the label.14 The EU Courts will insist on factual evidence to substantiate the claim, even where there may be some scientific uncertainty about the matter. This is evident from Commission v Netherlands.15 The Commission brought proceedings against a Dutch law whereby foodstuffs for everyday consumption that were fortified with certain vitamins and minerals, which had been lawfully marketed in another Member State, could be marketed in the Netherlands only if the enrichment provided by the vitamins and minerals met a nutritional need in the Dutch population. The ECJ accepted that it might be lawful for a Member State in accord with the precautionary principle to require prior authorization before foodstuffs could be marketed with nutrients other than those that were lawful under national legislation. The Member State must, however, comply with proportionality: the means chosen must be confined to what was necessary to safeguard public health and must be proportional to the objective pursued, which could not be attained by less restrictive measures. Since Article 30 was an exception to Article 28 it should be interpreted strictly.16 A decision to prohibit the marketing of a fortified foodstuff, which indeed constitutes the most restrictive obstacle to trade in products lawfully manufactured in other Member States, can be adopted only if the real risk for public health alleged appears sufficiently established on the basis of the latest scientific data available at the date of the adoption of such decision. In such a context, the object of the risk assessment to be carried out by the Member State is to appraise the degree of probability of harmful effects on human health from the addition of certain nutrients to foodstuffs and the seriousness of those potential effects.

The ECJ acknowledged that there could be uncertainties in this assessment, which could affect the scope of the Member State’s discretion and the way in which the precautionary 13  Ibid [24]. 16  Ibid [49].

14  Ibid [25].

15  Case C-41/02 Commission v Netherlands [2004] ECR I-11375.

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principle was applied. A Member State could therefore in accord with the precautionary principle take protective measures without waiting until the existence and gravity of the risks became fully apparent. Notwithstanding this latitude afforded to the Member State, the ECJ concluded that the Dutch government had not produced scientific studies showing that any intake of the relevant nutrients over the recommended daily allowance entailed a risk for public health.17

(B)  Workers and Persons The juridical technique considered above is also evident in relation to workers, where the CJEU has insisted that derogation from free movement can only be sanctioned in cases that pose a genuine and serious threat to public policy, and even then the measure must be the least restrictive possible in the circumstances. Thus in Rutili18 the ECJ considered the legality of a measure taken by France limiting the area in which the applicant, an Italian national, could reside and move. It held that free movement of workers was fundamental to the Treaty and therefore any limitations must be strictly construed. Restrictions on free movement within a state could only be imposed to meet a genuine and serious threat posed by the particular worker. It is clear, moreover, from cases such as Commission v Austria19 that the Member State must adduce evidence to support its claim that the measure it adopted is appropriate for the problem addressed and that it is the least restrictive possible and hence proportionate.

(C)  Establishment and the Provision of Services The same principle is apparent in the case law on freedom of establishment20 and the provision of services. Commission v Greece21 provides a clear example in relation to establishment. The ECJ found that a Greek law that prohibited a qualified optician from operating more than one shop constituted a restriction on freedom of establishment. Greece argued that the prohibition was to protect public health, more ­specifically to safeguard the personal relationship of trust within the optician’s shop and ensure the liability of the optician who owned the shop. The Court held that protection of public health could be attained by less restrictive measures ‘for example by requiring the presence of qualified, salaried opticians or associates in each optician’s shop, rules concerning 17 Ibid [52]–[67]. See also Case C-192/01 Commission v Denmark [2003] ECR I-9693; Case C-24/00 Commission v France [2004] ECR I-1277; Case C-212/03 Commission v France [2005] ECR I-4213, [40]–[44]; Case C-333/08 Commission v France [2010] ECR I-757, [88]. 18  Case 36/75 Rutili v Ministre de l’Intérieur [1975] ECR 1219. See also Case 30/77 R v Bouchereau [1977] ECR 1999; Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091, [94]; Cases C-482 and 493/01 Georgios Orfanopoulos v Land Baden-Wurttemberg [2004] ECR I-5257, [99]; Case C-33/07 Ministerul Administraţiei şi Internelor—Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa [2008] ECR I-5157; Case C-145/09 Land Baden-Württemberg v Panagiotis Tsakouridis [2010] ECR I-11979. 19  Case C-147/03 Commission v Austria [2005] ECR I-5969, [63]. 20  Case C-299/02 Commission v Netherlands [2004] ECR I-9761. 21  Case C-140/03 Commission v Greece [2005] ECR I-3177.

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civil liability for the actions of others, and rules requiring professional indemnity insurance’.22 By way of contrast, the ECJ was willing to accept in Apothekerkammer des Saarlandes that the Treaty provisions on freedom of establishment did not preclude national legislation requiring that pharmacies be operated by a trained pharmacist.23 The approach is, not surprisingly, consistent in the context of services.24 In Van Binsbergen25 the ECJ considered a provision of Dutch law requiring those who acted as legal representatives to be established in the Netherlands. The applicant lawyer was a Dutch national, but had moved to Belgium. The ECJ accepted that the nature of the service provided could justify the imposition of special requirements to achieve some common good, such as rules relating to professional ethics, supervision, and liability, more especially if those rules could be evaded if the person provided the service from another Member State. The Dutch law was not therefore incompatible with the Treaty provisions on services, where the requirement was objectively justified on the preceding grounds, if the objective could not be secured by less restrictive measures. Applied here, the objectives could be attained by less restrictive means: an address for service within the jurisdiction could be demanded, without stipulating that the lawyer should actually reside in the Netherlands. This reasoning was developed in later cases. Thus in Corsten26 the ECJ decided that the requirement that an undertaking in one Member State should have to be entered on the trade register of the Member State in which it was to provide the service was a restriction within what was Article 49 EC. While this could be justified on public interest grounds, to guarantee the quality of the skilled work and the protection of those who commissioned it, the national rules should not go beyond what was necessary to attain the objective. The authorization procedure could not delay or complicate exercise of the Community right, where the conditions for engaging in that type of work had already been examined in the home Member State. The authorization procedure in the host Member State could not, moreover, lead to administrative expense for the service provider, nor could it result in an obligation to pay subscriptions to the chamber of trades.27 22  Ibid [35]; Case C-193/94 Criminal Proceedings against Skanavi and Chryssanthakopoulos [1996] ECR I-929; Case C-167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd [2003] ECR I-10155; Case C-169/07 Hartlauer [2009] ECR I-1721; Case C-400/08 Commission v Spain [2011] ECR I-1915; Case C-201/15 AGET Iraklis v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis, EU:C:2016:972. 23 Cases C-171 and 172/07 Apothekerkammer des Saarlandes v Saarland and Ministerium für Justiz, Gesundheit und Soziales [2009] ECR I-4171. 24  Case C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279, [40]–[44]; Case C-445/03 Commission v Luxemburg [2004] ECR I-10191. 25  Case 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299; Case 39/75 Coenen v Social Economische Raad [1975] ECR 1547; Case C-208/05 ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit [2007] ECR I-181; Case C-99/16 Lahorgue v Ordre des avocats du barreau de Lyon, EU:C:2017:391. 26  Case C-58/98 Corsten [2000] ECR I-7919. 27  See also Case C-493/99 Commission v Germany [2001] ECR I-8163; Case C-215/01 Schnitzer [2003] ECR I-14847; Case C-456/05 Commission v Germany [2007] ECR I-10517; Case C-458/08 Commission v Portugal [2010] ECR I-11599; Cases C-372–373/09 Josep Peñarroja Fa [2011] ECR I-1785.

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The legality of prior authorization was at issue again in Canal Satélite.28 The applicant challenged national legislation that rendered the marketing of television satellite services subject to prior authorization and registration of the details of their equipment in a national register. The ECJ found that this restricted both free movement of goods and freedom to provide services. It could, therefore, only be justified if it pursued a public interest objective recognized by Community law, and complied with proportionality, in the sense of being appropriate to achieve the aim pursued and not going beyond what was necessary to achieve it. Compliance with proportionality required that the prior administrative authorization scheme should be based on objective, nondiscriminatory criteria that were known in advance.29 The ECJ held, moreover, that it could not satisfy the necessity requirement of proportionality if the registration requirement duplicated controls already carried out, either in the same state or in another Member State.30 Nor could it be regarded as necessary if subsequent as opposed to prior authorization could achieve the national objective, or where the ­duration and disproportionate costs of complying with the national measures deterred operators from pursuing their business plans.31

3  Positive Law: Equality and Discrimination The discussion thus far has been concerned with proportionality and the four freedoms. Proportionality has also featured in the case law on equality and discrimination. This is a complex topic,32 which was analysed in a previous chapter.33 It is important to consider the way in which proportionality is applied in some areas of EU equality law.

(A)  Equal Treatment The jurisprudence on equal treatment can be taken by way of example. The aim of Directive 76/20734 was to secure equal treatment between men and women in three broad, employment-related areas: access to employment and promotion, vocational 28 Case C-390/99 Canal Satélite Digital SL v Administración General del Estado, and Distribuidora de Televisión Digital SA (DTS) [2002] ECR I-607. 29  Ibid [35]. 30  Ibid [38]. 31  Ibid [39]–[42]. See also Cases C-358 and 416/93 Criminal Proceedings against Bordessa, Mellado and Maestre [1995] ECR I-361, [25]; Case C-157/99 BSM Geraets-Smits v Stichting Ziekenfonds VGZ [2001] ECR I-5473, [90]; Case C-205/99 Analir v Administración General del Estado [2001] ECR I-1271, [38]; Cases C-403 and 429/08 Football Association Premier League Ltd and Others v QC Leisure, EU:C:2011:631; Case C-423/13 ‘Vilniaus energija’ UAB v Lietuvos metrologijos inspekcijos Vilniaus apskrities skyrius, EU:C:2014:2186, [51]–[54]. 32  Craig and de Búrca (n 4) Ch 24; E Ellis, ‘The Concept of Proportionality in European Community Sex Discrimination Law’ in Ellis (n 1) 165–81. 33  Ch 17. 34  Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/40.

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training, and working conditions. Article 2(1) defined the equal-treatment principle to prohibit any discrimination ‘on grounds of sex either directly or indirectly by reference in particular to marital or family status’. This was qualified by Article 2(2), which allowed a Member State to exclude from the Directive those occupational activities, and where appropriate the training leading thereto, in respect of which ‘by reason of their nature or the context in which they are carried out’ the sex of the worker constitutes a determining factor. Article 2(2) was considered in Johnston,35 in which the RUC sought to justify its decision not to employ women as full-time members of the RUC Reserve. It was argued that if women were permitted to carry and use firearms, they would be at greater risk of becoming targets for assassination. It was argued by the Commission that the occupation of an armed police officer could not be considered as an activity for which the sex of the officer was a determining factor, and moreover that if an exception were to be made in relation to specific duties it would have to be proportionate. The ECJ accepted the UK’s argument that the carrying of firearms by policewomen might create additional risks of assassination. It did not inquire whether women might not be trained to use firearms just as safely and effectively as men. The ECJ therefore accepted that the sex of police officers could constitute a ‘determining factor’ for carrying out certain policing activities. The issue of proportionality was left to the national court, which should consider whether ‘the refusal to renew Mrs Johnston’s contract could not have been avoided by allocating to women duties which, without jeopardizing the aims pursued, can be performed without firearms’.36 The ECJ has, however, been more willing in other cases to make the determination of proportionality itself and to intervene.37 In Kreil38 the applicant challenged a ­prohibition under German law that barred women from military posts involving the use of arms, and allowed them access only to the medical and military-music services. The ECJ found that the Directive was applicable, notwithstanding that the contested sphere of activity related to the military. The Court ruled that ‘in determining the scope of any derogation from a fundamental right such as the equal treatment of men and women, the principle of proportionality, one of the general principles of Community law’ must be observed.39 It acknowledged that Member States have discretion when adopting measures considered necessary to guarantee public security, but affirmed that judicial review could assess whether the measures taken really had that purpose and whether they were appropriate and necessary to achieve that aim.40 The ECJ ruled that since the Article 2(2) derogation was intended to apply only to specific activities, the  scope of the prohibition exceeded the discretion given to Member States when 35  Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651. 36  [1986] ECR 1651, [39]; Case C-273/97 Sirdar v Army Board [1999] ECR I-7403; Case 318/86 Commission v France [1988] ECR 3559. 37 Case C-595/12 Napoli v Ministero della Giustizia—Dipartimento dell’Amministrazione penitenziaria, EU:C:2014:128. 38  Case C-285/98 Kreil v Bundesrepublik Deutschland [2000] ECR I-69. 39  Ibid [23]. 40  Ibid [24]–[25].

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adopting measures they considered necessary to guarantee public security.41 The challenged rule that excluded women from all military posts involving the use of arms was also held to be disproportionately broad, given the fact that basic training in the use of  arms was already provided to women in the services of the Bundeswehr which remained accessible to them.42 The Community Courts also assessed proportionality in relation to other articles of  Directive 76/207. In Commission v Austria43 the ECJ was concerned with the ­compatibility of an Austrian law that prohibited women from working in underground mining, subject to limited exceptions. Article 3(1) of Directive 76/207 provided that there should be no discrimination on grounds of sex in the conditions, including the selection criteria, for access to all jobs or posts, whatever the sector or branch of activity and to all levels of the occupational hierarchy. The Austrian government sought to defend its law by relying on Article 2(3) of the Directive, which stated that the Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity. The ECJ rejected the argument. It held that Article 2(3) does not allow women to be excluded from employment solely on the ground that they ought to be given greater protection than men against risks which affect men and women in the same way, and which are distinct from protections specific to the needs of women. The prohibition in the Austrian law was very broad and excluded women even from work that was not physically strenuous and that posed no danger to a woman’s capacity to become pregnant. The exceptions provided for in the Austrian law were, moreover, very limited. The ECJ therefore concluded that the ­legislation went beyond what was necessary to ensure that women were protected within the meaning of Article 2(3). In Lommers44 it was Article 2(4) of Directive 76/207 that was in issue. This Article stated that the Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas covered by the Directive. The Dutch court asked the ECJ whether a ministerial circular made pursuant to a Dutch law that allocated subsidized nursery places only to female employees, subject to an emergency exception for male employees, was compatible with Community law. The ECJ decided that the circular was unequal in its treatment of men and women. It concluded that the circular could be justified within Article 2(4), because women were significantly underrepresented in the Dutch Ministry of Agriculture, which operated the subsidized ­nursery scheme. The applicability of Article 2(4) was, however, subject to proportionality. The ECJ concluded that it was proportionate: the number of places was limited such that even female workers at the Ministry had no guarantee of a place; men could still obtain a nursery place on the general market for such services; and the circular 41  Ibid [27]. 42  Ibid [28]–[29]. 43  Case C-203/03 Commission v Austria [2005] ECR I-935. 44  Case C-476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visserij [2002] ECR I-2891; Case C-319/03 Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice [2004] ECR I-8807.

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should be read such as to allow single fathers access to the scheme on the same condition as mothers. Directive 76/207 was amended and tightened in 2002. It has now been replaced by Directive 2006/54,45 which consolidated a number of Community provisions concerning equality, including Directive 76/207.

(B)  Equal Pay The EU Courts have also considered proportionality in the context of equal pay claims. The right to equal pay enshrined in Article 157 TFEU (ex Article 141 EC) can be infringed where there is direct or indirect discrimination in the remuneration granted to men and women. Indirect discrimination, once established, is prohibited unless the defendant can show some objective justification, a matter that is often left for the national court to decide. The CJEU has, however, provided guidance on objective justification and the test that has been formulated is very similar to that of proportionality as used in the case law on the four freedoms. This is apparent from Bilka-Kaufhaus,46 which was concerned with the eligibility of part-time workers for an occupational pension scheme. The Court held that if it should be found that a much lower proportion of women than men worked full-time, the exclusion of part-time workers from the occupational pension scheme would be contrary to Article 141 EC where, taking into account the difficulties encountered by women workers in working full-time, that measure could not be explained by factors which excluded any discrimination on grounds of sex. There would, however, be no such breach if the undertaking could show that its pay practice could be explained by objectively justified factors unrelated to any sex discrimination. Bilka argued that the exclusion of part-time workers from the occupational pension scheme was intended solely to discourage part-time work, since in general part-time workers refused to work in the late afternoon and on Saturdays. Thus, in order to ensure an adequate workforce during those periods it was necessary to make full-time work more attractive than part-time work, by making the occupational pension scheme open only to full-time workers. The ECJ decided that it was for the national court to determine whether the employer’s argument could be objectively justified. It then provided guidance for the national court in this respect.47

45  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation [2006] OJ L204/23. 46  Case 170/84 Bilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607. 47  Ibid [36]; Case C-256/01 Allonby v Accrington & Rossendale College, Education Lecturing Services, Trading as Protocol Professional and Secretary of State for Education and Employment [2004] ECR I-873; Case C-17/05 Cadman v Health & Safety Executive [2006] ECR I-9583, [32]; Case C-300/06 Ursula Voß v Land Berlin [2007] ECR I-10573; Case C-468/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol, 22 April 2010, [41]–[46]; Cases C-395 and 396/08 INPS v Bruno, Pettini, Lotti, Mateucci [2010] ECR I-5119, [69]–[75]; Case C-427/11 Kenny v Minister for Justice, Equality and Law Reform, EU:C:2013:122.

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If the national court finds that the measures chosen by the employer correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the o ­ bjectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119.

The guidance provided for the national court is in substance a proportionality inquiry. Thus an indirectly discriminatory measure could be justified if it addressed a ‘real need’ of the employer, if the measure was ‘appropriate’ to achieve its objective, and if it was ‘necessary’ to achieve that end. In Brunnhofer48 the ECJ repeated the holding from Bilka-Kaufhaus that it was for the defendant employer to justify the inequality by showing that it corresponded to a real need of the undertaking, that it was appropriate to achieve the objectives pursued, and that it was necessary to that end. It held, moreover, that the objectively justified reasons unrelated to discrimination on grounds of sex must comply with proportionality. This approach was developed in later cases. In Rinner-Kühn49 the Court considered national legislation that excluded part-time workers from sick-pay provision. The ECJ held that although the legislative provision was in principle contrary to what is now Article 157 TFEU, it was capable of objective justification, but found that the government’s justification was inadequate. The German government sought to justify the ­legislation on the ground that workers who worked for less than ten hours a week or forty-five hours a month were not as integrated in, or as dependent on, the employer as other workers. The ECJ was unconvinced by this argument. It stated that such considerations were only generalizations about categories of workers, and did not identify criteria which were objective and unrelated to sex discrimination. If, however, the Member State could show that the means chosen met a necessary aim of social policy and that they were suitable and requisite for attaining that aim, the mere fact that the provision affected a greater number of female workers than male workers would not infringe what is now Article 157 TFEU. It was, therefore, for the defendant to show that any discrimination was suited to achieving a legitimate purpose and went no further than was necessary to achieve that purpose.50 The reasoning in Rinner-Kühn was echoed in Nimz,51 where the issue was whether an indirectly discriminatory term in a collective agreement, whereby only half of the period of service of certain part-time workers was taken into account in calculating their salary grade, could be justified. The City of Hamburg argued that full-time employees or those who worked for three-quarters of normal time acquired their job 48  Case C-381/99 Brunnhofer v Bank der österreichischen Postsparkasse AG [2001] ECR I-4961, [67]–[68]. 49  Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH [1989] ECR 2743. 50 See also Case 33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR 2591; Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Bötel [1992] ECR I-3589; Case C-457/93 Kuratorium für Dialyse und Nierentransplantation v Lewark [1996] ECR I-243; Case C-278/93 Freers and Speckmann v Deutsche Bundespost [1996] ECR I-1165; Case C-187/00 Kutz-Bauer v Freie und Hansestadt Hamburg [2003] ECR I-2741; Case C-173/13 Leone v Garde des Sceaux, EU:C:2014:2090. 51  Case 184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR 297.

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skills more quickly than others. The ECJ responded by stating that such considerations, ‘in so far as they are no more than generalizations about certain categories of workers, do not make it possible to identify criteria which are both objective and unrelated to any discrimination on grounds of sex’.52 While experience was related to length of service, and enabled the worker to improve job performance, the objectivity of such a criterion depended on all the circumstances in a particular case, more especially the relationship between the nature of the work and the experience gained upon completion of a certain number of working hours. The ECJ held that it was for the national court to determine whether and to what extent a provision in a collective agreement such as that in issue was based on objectively justified factors unrelated to any discrimination on grounds of sex. Although the ECJ left the matter for the national court, the ECJ’s ruling makes it clear that general assumptions or assertions about the ­attributes of part-time workers are unlikely to constitute adequate grounds for justifying a measure which has a disproportionately adverse impact on one sex.

4  Positive Law: Application of EU Legislation It is clear from the preceding analysis that proportionality is relevant in the ­interpretation of EU directives concerning equality. Proportionality also operates more generally as a constraint on Member State options when applying EU norms such as regulations53 and directives, irrespective of the sphere of Union action that is in issue, and Member States must comply with proportionality when taking measures to implement EU ­legislation.54 Two examples from very different areas serve to demonstrate this.55 The litigation in Garage Molenheide56 was concerned with the Sixth VAT Directive. The claimant argued that provisions of Belgian law that allowed the domestic ­authorities to refuse to refund a VAT credit for a specific period or to carry it forward to a later period, but rather to retain it for as long as it had a claim against the taxpayer for a previous tax period even though that demand was contested, was contrary to the Sixth VAT Directive. The ECJ found that the Belgian withholding measure was not precluded by the Directive. It held, however, that ‘in accordance with the principle of proportionality, the Member State must employ means which, whilst enabling them effectively to attain the objective pursued by their domestic laws, are the least detrimental to the objectives and the principles laid down by the

52  Ibid [14]; Case C-196/02 Nikoloudi v Organismos Tilepikoinonion Ellados AE [2005] ECR I-1789, [55]. 53  Case C-29/95 Pastoors and Trans-Cap GmbH v Belgian State [1997] ECR I-285. 54  See n 5. 55  See also Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department [2004] ECR I-9925, [32]–[33]; Case C-25/03 Finanzamt Bergisch Gladbach v HE [2005] ECR I-3123, [82]. 56  Cases C-286/94, 340, 401/95 and 47/96 Garage Molenheide BVBA v Belgische Staat [1997] ECR I-7281.

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relevant Community legislation’.57 Thus while it was legitimate for Belgium to preserve the rights of its Treasury as effectively as possible, the measures adopted must not go further than n ­ ecessary for that purpose, nor could they be used such as to undermine the right to deduct VAT, this being a fundamental principle established by the EU legislation. The ECJ acknowledged that the application of proportionality would commonly be for the national court, but nonetheless gave detailed guidance as to its application. It found that the retention system in the Belgian law was disproportionate because it was based on an irrebuttable presumption, since it was not open to the claimant to argue that the retention was unnecessary, or to put forward arguments concerning urgency. The ECJ held that the availability of judicial review was important in determining whether the retention regime was proportionate, and that national provisions preventing the national judge from lifting the retention were therefore disproportionate. So too were rules that prevented the taxpayer from requesting a national court to adopt a different measure that would be equally effective in protecting the interests of the Treasury in place of the retention of the VAT credit. The relevance of proportionality in a very different context can be seen in Unilever.58 The applicant challenged the marketing of toothpaste by a rival company, which had made claims about its curative effects, the prevention of plaque, dental cavities, and the like. The applicant argued that these claims were likely to mislead consumers because the toothpaste did not contain substances capable of having this effect, judged in the light of a list drawn up pursuant to an Austrian law concerning consumer protection. The defendant company argued that the Austrian law was inconsistent with Article 6(3) of a Directive,59 which provided that Member States should take all necessary steps to ensure that in the labelling and advertising of such products, text, names, pictures, and the like were not used to imply that the products had characteristics that they did not possess. The ECJ held that the national measures to implement this provision must be in accordance with proportionality, and that the Austrian law did not meet this test. It was, said the ECJ, possible to ensure the protection of consumers, public health, and fair trade by measures that were less restrictive of the free movement of goods than the automatic exclusion of advertising substances not expressly listed in the Austrian law, more especially because the list contained in that law of substances that could prevent dental decay etc was not complete. 57  Ibid [46]; Case C-409/04 The Queen, on the application of Teleos plc and Others v Commissioners of Customs & Excise [2007] ECR I-7797, [45], [52]–[53]; Case C-271/06 Netto Supermarkt GmbH & Co OHG v Finanzamt Malchin [2008] ECR I-771, [18]–[20]; Case C-25/07 Sosnowska v Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu [2008] ECR I-5129, [23]; Case C-438/09 Bogusław Juliusz Dankowski v Dyrektor Izby Skarbowej w Łodzi [2010] ECR I-14009, [37]; Case C-499/13 Macikowski v Dyrektor Izby Skarbowej w Gdańsku, EU:C:2015:201, [48]–[53]. 58  Case C-77/97 Österreichische Unilever GmbH v SmithKline Beecham Markenartikel GmbH [1999] ECR I-431; Case C-99/01 Criminal Proceedings against Linhart and Biffl [2002] ECR I-9375; Case C-257/06 Roby Profumi Srl v Comune di Parma [2008] ECR I-189, [21]. 59  Council Directive 76/778/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products [1976] OJ L262/169.

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5  Positive Law: The Impact of Article 4(3) TEU The discussion thus far has been concerned with proportionality as a control over Member State action in various areas of EU law. It is, however, clear from Commission v Greece60 that proportionality can also be relevant in relation to Member State action to take measures to ensure the effectiveness of Union law. The ECJ held that the duty of cooperation under Article 10 EC, now Article 4(3) TEU, meant that where Community legislation did not provide a remedy for infringement it was for national law to take all necessary measures to ensure the effectiveness of Community law. While the choice of remedy remained within the discretion of the Member State, it had to ensure not only that the remedy was similar to that applicable for infringements of a similar nature under national law, but also that the penalty was effective, proportionate, and dissuasive. The same principle applies where Community legislation lays down particular penalties, but does not exhaustively prescribe the penalties that a Member State can impose.61

6  Normative Considerations: The Intensity of Review (A)  Justification for Strict Proportionality Scrutiny The analysis thus far has been on positive law, with a survey of the principal areas of Member State action to which proportionality has been applied. The remainder of this chapter will be more normative in orientation. This analysis begins by considering the intensity with which the proportionality principle is applied to Member State action. This is important, because there is suspicion in some quarters that the EU Courts have applied the principle more intensively to Member State action as compared with the lighter touch review associated with proportionality and Union action. The EU Courts have made it apparent in numerous cases that the proportionality inquiry is indeed strict or searching in the areas considered earlier. The rationale is readily explicable. The paradigm application of proportionality to the four freedoms entails cases where a prima facie breach of such a freedom has been found, and the Member State then raises a defence based on the relevant Treaty article. The four freedoms are central to the very idea of market integration that lies at the economic heart 60  Case 68/88 Commission v Greece [1989] ECR 2965; Case C-383/92 Commission v UK [1994] ECR I-2479; Case C-354/99 Commission v Ireland [2001] ECR I-7657, [46]; Cases 387, 391 and 403/02 Criminal Proceedings against Silvio Berlusconi and others [2005] ECR I-3565, [53]; Case C-430/05 Ntionik Anonymi Etaireia Emporias H/Y and others v Epitropi Kefalaiagoras [2007] ECR I-5835, [53]–[54]; Case C-367/09 Belgisch Interventie- en Restitutiebureau v SGS Belgium NV [2010] ECR I-10761, [41]; Case C-263/11 Ainārs Rēdlihs v Valsts ieņēmumu dienests, EU:C:2012:497, [44]–[47]. 61  Case C-186/98 Criminal Proceedings against Nunes and de Matos [1999] ECR I-4883.

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of the EU. They also embody non-economic values. Thus the legislation and case law on, for example, free movement of workers is infused with social as well as economic objectives. It is, therefore, unsurprising that the ECJ has monitored defences to free movement closely, including in this respect proportionality.62 The Member State must show that the defence falls within a ground listed in the relevant Treaty article. Proportionality then requires that the defence couched in terms of public health, public security, etc is the least restrictive in all the circumstances. This serves a twofold aim. It is designed to ensure that the defence really was warranted, by testing whether the objective could be attained in a less restrictive manner. It is designed also to ensure that the defence does not operate as arbitrary discrimination, or a disguised restriction on trade between Member States. It is, therefore, fitting that proportionality scrutiny should be strict or intensive, given the very centrality of the four freedoms to the Treaty, and given that a prima facie breach of these provisions has been found before we ever get to proportionality. There is a further reason for the close judicial scrutiny of proportionality, which relates to developments in the law of free movement. Proportionality has become of greater importance because of the way in which the EU Courts have defined the circumstances in which a Member State may breach these freedoms. The essence of this point is as follows. The EU Courts have a choice as to how to interpret the four freedoms. They might decide to limit their application to cases of discrimination, direct or indirect. In such cases equality provides the primary mechanism for judicial control, although proportionality will still be relevant for indirect discrimination. The EU Courts have, however, decided that the Treaty articles also catch impediments to market access, even where there is no nationality discrimination, and hence there will be no control through equality, since the measure is not discriminatory. The principal tools for judicial control are objective justification and proportionality. This explains why the EU judiciary wish to satisfy themselves that the contested measure really is the least restrictive possible in the circumstances. This point is captured well by Tridimas.63 If it is accepted that free movement is exhausted in the obligation of Member States to treat imported products or services on an equal footing with domestic ones, discrimination is the touchstone of integration. But if it is accepted that free movement goes beyond equal treatment and requires freedom of access to the market, then any obstacle to free access becomes an unlawful impediment unless objectively justified. Under the second model, proportionality is elevated to the principal criterion for determining the dividing line between lawful and unlawful barriers to trade. It may be said then that equality and proportionality are in an inverse relationship: the less one relies on the first, the more it has to rely on the latter to determine what is a permissible restriction on trade.

62  See, eg, Cases C-338 and 359–360/04 Criminal Proceedings against Placanica, Palazzese and Sorricchio [2007] ECR I-1891; Case C-319/06 Commission v Luxembourg [2008] ECR I-4323, [50]; Case C-33/07 Ministerul Administraţiei şi Internelor—Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa [2008] ECR I-5157, [23]; Case C-421/09 Humanplasma GmbH v Republik Österreich [2010] ECR I-12869, [38]. 63  Tridimas (n 1) 127.

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There are also powerful reasons for close scrutiny via proportionality in the context of equality and discrimination. The paradigm here is that state action has been found to discriminate indirectly, and the defendant then seeks to provide an objective justification. Proportionality is relevant in determining whether the Member State action really is suitable to attain the desired end, whether it is necessary and whether the desired end could be achieved by less restrictive measures. Strict proportionality scrutiny is warranted here given the prima facie breach of equality already proven and the centrality of equality as a principle within the Treaty. There are, therefore, sound ­reasons for the general approach of the EU Courts to proportionality and Member State action, while accepting that its application in particular cases can still be criticized. The intensity of review in any particular case will naturally be affected by the nature of the subject matter. Where a Member State raises genuine concerns relating to public health, and there is scientific uncertainty about the effects of certain foodstuffs, the Court has been more willing to accept that limitations on free movement are warranted.64 However, one should be cautious about characterizing such cases as involving less intensive review. They may equally well be regarded as instances where the Court, having surveyed the evidence, believed that the Member State’s action was warranted. There are, moreover, examples of public health claims where the Court, while accepting that there was some scientific uncertainty, nonetheless concluded that there was a less restrictive way of achieving the Member State’s aim.65 The intensity of the Court’s review will also be influenced by how seriously it takes the Member State’s argument that measures really were necessary to protect, for ­example, public health. If the Court feels that these measures were really designed to insulate its own producers from foreign competition, then it will subject the Member State’s argument to close scrutiny. This is exemplified by Commission v UK.66 The Court rejected a claim by the UK that a ban on the import of poultry could be justified on grounds of public health. The Court’s judgment leaves one in little doubt that it felt that the measures were, in reality, aimed at protecting UK poultry producers from the effects of French imports prior to Christmas.

(B)  Proportionality and Sensitivity to National Values The Member State does not always lose. This is a trite proposition, but important nonetheless. The ECJ has found in favour of the Member States and has shown sensitivity to national values. This is exemplified by Schmidberger,67 considered in an earlier chapter.68 It will be remembered that the Austrian government gave implicit permission for a demonstration by an environmental group on the Brenner motorway, the effect being to close it 64  Case 174/82 Sandoz (n 8); Case 97/83 Melkunie [1984] ECR 2367. 65  Case 178/84 Commission v Germany [1987] ECR 1227. 66  Case 40/82 [1982] ECR 2793. 67  Case C-112/00 Schmidberger Internationale Transporte und Planzüge v Austria [2003] ECR I-5659. 68  See above, 517–18.

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for thirty hours. Schmidberger ran a transport firm and argued that the closure was in breach of free movement of goods. The ECJ held that the failure by the Austrian government to ban the demonstration was prima facie a breach of what is now Article 34 TFEU, unless it could be objectively justified.69 The government’s justification was respect for the right to freedom of expression and assembly guaranteed by the ECHR and the Austrian Constitution. This was accepted in principle, and the Court decided that the restrictions on Community trade were proportionate in the light of these fundamental rights.70 A similar message emerges from Commission v France.71 The Commission brought an action against France alleging infringement of freedom to provide services. France enacted Loi Evin in 1991, which restricted advertising for smoking and alcohol on television. A Code of Conduct was drawn up pursuant to this law that applied to the transmission or retransmission of sporting events in which alcohol advertising was visible on hoardings or sports shirts. This Code provided that in relation to ‘bi-national’ sporting events, those specially aimed at a French audience, the broadcaster should take all measures possible to prevent the appearance on their channels of brand-named alcoholic products. The ECJ decided that this infringed the freedom to provide ­services. It then focused on justification and proportionality. The justification hurdle was swiftly met, given that the French measure sought to protect public health. The ECJ spent some time addressing proportionality, and found for the French government. Thus the Court rejected the argument that the French measure was inconsistent since it only applied to alcohol above a certain strength, replying that the degree of protection to be afforded to public health fell within France’s discretion. It found that there was no way of securing the desired end that was less restrictive than the contested measure, given the nature of the sport’s broadcast. It was equally dismissive of the argument that the measure should be regarded as disproportionate because such advertising was allowed in some Member States, since the fact that one Member State imposed less strict rules than another did not mean that the latter’s rules were disproportionate. The ECJ has, by way of contrast, become stricter in its scrutiny of cases where the Member State seeks to impede free movement by imposing on nationals of other Member States rules that are said to be justified on grounds of public policy, where such policy concerns are, however, not thought sufficiently pressing to impose on their own citizens. Thus, cases which have come before the Court involving similar facts or similar principles have been subject to more rigorous scrutiny, with the result that Member State action regarded as lawful in the earlier case has been held not to be so in a later action.72

69  Case C-112/00 Schmidberger (n 67) [64]. 70  Ibid [83]–[94]; Case C-71/02 Karner Industrie-Auktionen GmbH v Troostwijk GmbH [2004] ECR I-3025. 71  Case C-262/02 Commission v France [2004] ECR I-6569. 72  Compare Case 41/74 Van Duyn v Home Office [1974] ECR 1337, with Cases 115 and 116/81 Adoui and Cornuaille v Belgian State [1982] ECR 1665. Compare Case 34/79 R v Henn and Darby [1979] ECR 3795, with Case 121/85 Conegate v Customs and Excise Commissioners [1986] ECR 1007.

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(C)  Proportionality and Sensitivity to Differences in National Values The ECJ is, moreover, willing to interpret concepts of objective justification and proportionality in the light of the Member State’s particular values, notwithstanding that those values, or their importance, differ from that of other Member States.73 This is exemplified by Omega.74 The Bonn police issued an order forbidding the applicant company from allowing laser games that simulated killing of opponents, because it infringed the right to human dignity in the German Constitution. The Court found that the police order limited freedom to provide services. It then considered the public policy justification. The ECJ held that the concept of public policy as a derogation from a fundamental freedom must be interpreted strictly, and could only be relied on if there was a genuine and sufficiently serious threat to a fundamental interest of society.75 The public policy measure must be necessary for the attainment of the specified aim and would be lawful only insofar as it could not be achieved by less restrictive measures.76 The Court accepted, however, that the specific circumstances that could justify recourse to public policy could vary from country to country, and that the national authorities must be accorded a margin of discretion within the limits imposed by the Treaty.77 Nor was it vital for the restrictive measure to be chosen by all Member States to protect the relevant public policy interest.78 Thus the need for and proportionality of a measure was not excluded merely because a Member State had chosen a different method of protection from other states.79 Viewed in this way the ECJ found that the public policy justification for the action of the Bonn police was proportionate. The same willingness to interpret proportionality so as to afford latitude to the values of the particular Member State is evident in Läärä.80 National legislation granting an exclusive right to a public body to operate slot machines infringed the freedom to provide services. The ECJ accepted that this could be justified on grounds of consumer protection and maintenance of public order. It was, said the Court, for the national authorities to determine whether these aims could be met by prohibiting the activity or limiting it, and to decide whether to grant an exclusive right to a public body or to impose a code of conduct on private operators. The mere fact that a Member State opted for a system of protection different from that in another Member State did not affect the assessment 73  Case C-384/93 Alpine Investments BV v Minister van Financiën [1995] ECR I-1141, [51]; Case C-3/95 Reiseburo Broede v Gerd Sandker [1996] ECR I-6511. 74 Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609. 75  Ibid [30]. 76  Ibid [36]. 77  Ibid [31]. 78  Ibid [37]. 79  Ibid [38]. See also Case C-141/07 Commission v Germany [2008] ECR I-6935; Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien, EU:C:2010:806, [86]–[95]; Case C-438/14 von Wolffersdorff v Standesamt der Stadt Karlsruhe, EU:C:2016:401, [72]–[74]. 80  Case C-124/97 Läärä, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v Finland [1999] ECR I-6067; Case C-277/02 EU-Wood-Trading GmbH v Sonderabfall-Management-Gesellschaft RheinlandPfalz mbh [2004] ECR I-11957, [51]; Case C-244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] ECR I-505, [42]–[52]; Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa [2009] ECR I-7633; Case C-258/08 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator [2010] ECR I-4757; Case C-46/08 Carmen Media Group Ltd v Land Schleswig-Holstein [2010] ECR I-8149; Case C-98/14 Berlington Hungary Tanácsadó és Szolgáltató kft v Magyar Állam, EU:C:2015:386, [62]–[65].

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of the need for, and proportionality of, the relevant provisions, which had to be assessed solely by reference to the objectives pursued by the particular Member State and the level of protection they were intended to provide. The ECJ held that the Finnish legislation was proportionate. In more general terms, the Court made clear that the fact that Member State X adopted a less restrictive approach to gambling than Member State Y would not affect the assessment of whether the latter was proportionate and hence lawful.81 The ECJ adopted the same approach of according respect to national policy choices when assessing proportionality where the defence is cast in terms of public health. In Mac Quen82 the applicant worked in Belgium for a subsidiary of a UK company. It was subject to criminal charges for providing optical services that under Belgian law could only be provided by a fully trained ophthalmologist. This issue was not regulated by any directive and the ECJ held that while the Member State was therefore free to regulate such matters, it must nonetheless respect the basic Treaty freedoms. National measures liable to hinder the exercise of the freedom could be justified subject to four conditions: they were not discriminatory, they were justified by an overriding public interest, they were suited to attaining the objective sought, and did not go beyond what was necessary to achieve that objective. The Belgian law was not discriminatory and was designed to secure public health. The applicant argued that the legislation was disproportionate, since the objective could be achieved by less restrictive measures. The ECJ disagreed: the fact that one Member State imposed less strict rules than another did not mean that the rules of the latter were disproportionate; the mere fact that a Member State had chosen a system of protection different from that adopted by another could not affect the appraisal as to the need for and proportionality of such provisions.83 The ECJ noted, however, that the criminal prosecution was based on an interpretation of Belgian law and that assessment of such matters might change over time as a result of technical and scientific progress. The ECJ therefore remitted the matter to the national court to determine whether its interpretation of national law remained a valid basis for prosecution in the instant case.

(D)  Proportionality and Social and Economic Values The ECJ’s jurisprudence has, however, also cast into sharp relief the difficulties of balancing social and economic values when applying proportionality. This is exemplified by the decisions in Viking Line84 and Laval.85

81  Case C-6/01 Anomar v Estado Portugues [2003] ECR I-8621, [80]–[81]. 82 Case C-108/96 Criminal Proceedings against Mac Quen [2001] ECR I-837; Case C-294/00 Deutsche Paracelsus Schulen für Naturheilverfahren GmbH v Grabner [2002] ECR I-6515, [46]–[47]; Case C-330/03 Colegio de Ingenieros de Caminos, Canales y Puertos v Administración del Estado [2006] ECR I-801, [30]; Case C-500/06 Corporación Dermoestética SA v To Me Group Advertising Media [2008] ECR I-5785, [35]; Case C-539/11 Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara, EU:C:2013:591, [44]–[46]; Cases C-159–162/12 Venturini v ASL Varese, EU:C:2013:791, [59]–[61]. 83  Case C-108/96 Mac Quen (n 82) [33]–[34]. 84  Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779. 85  Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767.

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Viking Line can be taken by way of example. Viking Line was a ferry operator that was originally incorporated in Finland. It was obliged under Finnish law and the terms of a collective bargaining agreement to pay the crew the same wages as those applicable in Finland. Estonian crew wages were lower than those in Finland. Viking Line therefore sought to reflag one of its ships in Estonia. This was opposed by the Finnish Seamen’s Union (FSU) and the International Transport Workers’ Federation (ITF) which threatened strike action. Viking Line argued that this was in breach of freedom of establishment protected by what is now Article 49 TFEU. The ECJ held that Article 49 could apply where the plaintiff and defendant were private undertakings. It accepted that the right to strike was a fundamental right under EU law. This did not, however, take the right to strike outside the Treaty: the exercise of the right had to be reconciled with other Treaty rights and with the principle of proportionality. The threatened strike action to prevent Viking Line from relocating to Estonia breached Article 49 on freedom of establishment.86 The ECJ then considered whether the union’s action was justified. It was for the defendant to show that it pursued a legitimate aim compatible with the Treaty; that its action was justified by overriding reasons of public interest; and that the action was suitable to attain the desired objective and did not go beyond what was necessary to attain it.87 The ECJ accepted that strike action to protect workers’ terms of employment was a legitimate aim, which could in principle justify limiting Article 49, given that the aims of the Treaty included not only an internal market, but also social policy, including social protection. The focus thereafter shifted to the role of the national court. It was for the national court to decide whether the jobs of the seamen were seriously under threat, and if so whether the strike action was suitable to achieve the objective pursued and did not go beyond what was necessary to attain it. The ECJ nonetheless gave the national court two points of ‘guidance’ on these issues.88 First, the national court should consider whether the FSU and ITF could have achieved their objectives by less restrictive means than strike action. The second point of ‘guidance’ was more significant and peremptory: insofar as the collective action taken pursuant to the ITF’s policy could result in shipowners being prevented from registering their vessels in a Member State other than that of which the beneficial ­owners of those vessels were nationals, the restrictions on freedom of establishment could not be objectively justified.89 The decisions in Viking Line and Laval have not surprisingly generated significant academic commentary.90 The cases raise difficult issues concerning the balance between 86  Case C-438/05 Viking Line (n 84) [32]–[74]. 87  Ibid [75]. 88  Ibid [85]. 89  Ibid [88]. 90  T Novitz, ‘The Right to Strike and Re-flagging in the European Union: Free Movement Provisions and Human Rights’ [2006] LMCLQ 242; B Bercusson, ‘The Trade Union Movement and the European Union: Judgment Day’ (2007) 13 ELJ 279; M Corti, ‘Le decisioni ITF e Laval della Corte di giustizia: un passo avanti e due indietro per l’Europa sociale’ (2008) 2 Rivista italiana di diritto del lavoro 249; A Davies, ‘One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ’ [2008] ILJ 126; C Barnard, ‘Social Dumping or Dumping Socialism?’ (2008) 37 CLJ 262; M Freedland and J Prassl (eds), Viking, Laval and Beyond (Hart, 2015).

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social and economic values as protected within the Treaty and as safeguarded within Member States. Proportionality is central to the judicial analysis, since it provides the ultimate criterion for deciding whether the defendant’s action is to be regarded as lawful. While the ECJ is willing to leave some aspects of proportionality to national courts, it retains control through the guidance provided to them. It is, ­moreover, clear that the guidance goes some considerable way to resolving proportionality and the balance between social and economic values. Thus while the ECJ a­cknowledged the social dimension of EU law, it was clear that strike action could not be objectively justified if it prevented Viking Line from flagging its vessel in a Member State other than that of which the beneficial owners of those vessels were nationals. In this respect the economic value of market integration trumped the social value of worker protection.91 The difficult balancing as between social and economic interests is further exemplified by AGET Iraklis.92 The case concerned the compatibility with EU law of national legislation that required the consent of a public authority before an undertaking could make collective redundancies, where the workers had not consented to this. It was argued that the national legislation was incompatible with a Directive,93 Article 49 TFEU, and Article 16 of the Charter. The CJEU held that the national law prima facie breached Article 49 TFEU and Article 16 of the Charter, but accepted that protection of workers was a legitimate objective under EU law. The mere fact that national ­legislation provided for a framework of prior consent before the collective redundancy could proceed did not, therefore, in itself infringe EU law.94 The CJEU, nonetheless, concluded that the national legislation was not proportionate, because it did not provide sufficient details for the employer to know in what circumstances the public authority would exercise the power to refuse permission for the collective redundancy.95 It is, however, difficult to see how the legislation could have been drafted more ­precisely so as to satisfy the CJEU in this respect, given that the public authority’s discretionary determination will be affected by a plethora of particular factors.

7  Normative Considerations: The Role of the National Courts and the Complexity of the Proportionality Inquiry Cases concerning proportionality come before the ECJ via one of two routes. Some take the form of enforcement actions by the Commission pursuant to Article 258 91  Compare AG Poaires Maduro, Case C-438/05 Viking Line (n 84) [64]–[72], who distinguished more clearly than did the ECJ between collective action designed to protect the jobs of the current crew and collective action to improve the conditions of employment of seafarers throughout the EU. 92  Case C-201/15 AGET Iraklis (n 22). 93  Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies [1998] OJ L225/16. 94  Case C-201/15 AGET Iraklis (n 22) [77], [83], [92]–[94]. 95  Ibid [100]–[101].

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TFEU. In such cases the CJEU will resolve the entirety of the case, including the proportionality inquiry. Many other cases are decided via preliminary rulings under Article 267 TFEU, which gives the CJEU power to interpret the Treaty, but does not specifically empower it to apply the Treaty to the facts of a particular case. The very distinction between inter­ pretation and application is meant to be a characteristic feature of the division of authority between the CJEU and national courts: the former interprets the Treaty, while the latter apply that interpretation to the particular case. Theory and reality have not, however, always marched hand in hand. The dividing line between interpretation and application can be perilously thin. The more detailed the interpretation provided by the CJEU, the closer it approximates to application.96 It is, moreover, clear that the CJEU will be particularly motivated to provide ‘the answer’ or to give ‘detailed guidance’ to national courts where it wishes to maintain maximum control over the development of the law, as exemplified by cases concerning damages liability of Member States.97 The interrelationship between the CJEU and national courts under Article 267 in the context of proportionality is especially interesting. The CJEU’s ‘standard’ starting point is to reiterate orthodoxy: it is for the national court to judge the proportionality of the Member State’s action in a specific case. This may mean that the proportionality inquiry must be assessed in detail by the national courts. This will be so where, for example, there are numerous considerations to be weighed in deciding whether Member State action was proportionate, which can only be done by the national courts. Thus in Richardt98 the ECJ held that what is now Article 36 TFEU authorized Member States to impose restrictions on the transit of goods on grounds of public security, which covered internal and external security. It was therefore prima facie legitimate for the Member State to require special authorization for the transit of strategically important goods, irrespective of the existence of a Community transit document issued by another Member State. However, the national measures for failure to comply with its requirements had to be proportionate. Penalties such as seizure of the goods for failure to comply with the obligation to obtain authorization might be disproportionate where return of the goods to the Member State of origin would suffice. It was for the national court to determine whether the system complied with proportionality, taking account of all the elements of each case, such as the nature of the goods capable of endangering the ­security of the state, the circumstances in which the breach was committed, and whether or not the trader making the transit was acting in good faith. 96  See, eg, Case 32/75 Cristini v SNCF [1975] ECR 1085; Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR 4135. 97  Cases C-46 and 48/93 Brasserie du Pêcheur SA v Germany, R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029; Case C-392/93 R v HM Treasury, ex p British Telecommunications plc [1996] ECR I-1631; T Tridimas, ‘Constitutional Review of Member State Action: The Virtues and Vices of an Incomplete Jurisdiction’ (2011) 9 I-CON 737. 98  Case C-367/89 Criminal Proceedings against Richardt and Les Accessoires Scientifiques SNC [1991] ECR I-4621; Case C-70/94 Werner [1995] ECR I-3189; Case C-83/94 Leifer [1995] ECR I-3231.

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It is, however, readily apparent from the case law that the ECJ will often displace the ‘default position’ whereby the application of proportionality is for the national court and will instead provide detailed guidance for the Member State on proportionality, such that the national court may have little to do other than ‘execute’ the CJEU’s judgment. This approach is motivated by two principal considerations that are related, albeit distinct. There is the CJEU’s desire to retain control over the development of EU law, which would be lost if it handed the entirety of the proportionality inquiry to the national courts. This is exemplified by the guidance it provided in the case law concerning diversity of national values and how this should impact on the proportionality inquiry. The CJEU wished to ensure that its view on this important matter of principle should prevail and this required it to give detailed guidance to the national courts. The same holds true in relation to the CJEU’s specific interpretation of proportionality in some of the case law on equality. The other factor driving the CJEU towards the retention of more of the proportionality inquiry is the difficulty faced by national courts when applying proportionality where there are complex factors to be balanced. The complexity might be quantitative in nature, flowing from uncertainties as to the relevant data integral to the proportionality analysis. It might also be qualitative in nature, stemming from the fact that the national court would be asked to balance values that were not readily commensurable. The Sunday trading case law is the best known example of this, the problem being especially pressing because it entailed both quantitative and qualitative complexity. In Torfaen99 the ECJ held that national rules preventing Sunday trading were prima facie incompatible with what is now Article 34 TFEU, unless the national objective was justified with regard to Community law and unless any obstacle to Community trade thereby created did not exceed what was necessary to attain the objective. The Court found that the objectives of such rules, which reflected certain national choices about the balance between work and non-working hours, were justified. The ECJ then turned its attention to proportionality to determine whether the effects of such national rules exceeded what was necessary to achieve this aim. The issue was whether the restrictive effect of such measures on the free movement of goods exceeded the effects intrinsic to trade rules. This was, said the ECJ, a matter for the national court. It rapidly became clear that national courts in the UK had great difficulty in applying the proportionality inquiry. They were in effect being asked to balance the social good inherent in Sunday trading rules, with the limits on trade produced by such rules where the precise impact was often difficult to measure. Some courts found that the Sunday trading laws were compatible with Article 34, while others reached the opposite conclusion.100 This confusion caused the ECJ to take back the proportionality calculus into its own hands, 99  Case 145/88 Torfaen BC v B & Q plc [1989] ECR 3851. 100  Stoke City Council v B & Q plc [1990] 3 CMLR 31; Wellingborough BC v Payless [1990] 1 CMLR 773; B & Q plc v Shrewsbury BC [1990] 3 CMLR 535; Payless v Peterborough CC [1990] 2 CMLR 577; A Arnull, ‘What Shall We Do On Sunday?’ (1991) 16 ELRev 112; Lord Hoffmann, ‘The Influence of the European Principle of Proportionality upon UK Law’ in Ellis (n 1) 107–16.

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making it clear that Sunday trading rules were proportionate.101 The decision in Keck102 meant that selling rules of the kind in Torfaen would not come within Article 34, thereby obviating the need for discussion of proportionality. The problem about the allocation of responsibility for the proportionality inquiry is, however, an enduring one, as evidenced by Familiapress.103 Familiapress was an Austrian newspaper publisher, which sought to restrain a German publisher from ­publishing in Austria a magazine containing crossword puzzles for which the winners would receive prizes. Austrian legislation prohibited publishers from including such prize competitions in their papers. The ECJ held that the Austrian law was caught by what is now Article 34 TFEU, since it concerned the nature of the product and not a selling arrangement. The ECJ nonetheless recognized the value of pluralism of the press and held that this might legitimate the national legislation, since giving prizes for games in magazines could drive out smaller papers which could not afford to make such offers. It was then for the national court to decide whether the national ban could be saved because it was a proportionate method of preserving press diversity, and whether that objective could be achieved by less restrictive means. The inquiry was even more complex because the national court was required to balance press diversity not only against free movement of goods, but also against freedom of expression. The  national court was, moreover, required to decide on the degree of competition between papers offering prizes, and those small newspapers that could not afford to do so. It was then to estimate the extent to which sales of the latter would decline, if the former could be offered for sale. The questions posed in this case would be daunting for any national court, let alone for those at the lower level. This is captured well by Van Gerven.104 [T]he judgment imposes on the national courts a far-reaching balancing test, in that not only the means employed to achieve a (legitimate) objective of national law are to be weighed but also the national aim so pursued against the Community law objective of free movement of goods and freedom of expression, as enshrined in Article 10 of the ECHR. To the extent that such a complex balancing test is not wholly beyond the possibilities of a court of law, it will at least compel the court to carry out its investigation in a distant way.

While there will be cases where it is sensible to leave the proportionality issue to the national court, it may, as Advocate General Jacobs stated, be preferable for the ECJ to decide the matter, where it is in possession of the relevant facts and has the requisite technical expertise.105 This is more especially so where the factors involved in the ­proportionality inquiry are complex in the manner exemplified by Familiapress. 101  Cases C-306/88, 304/90 and 169/91 Stoke-on-Trent CC v B & Q plc [1992] ECR I-6457, 6493, 6635. 102  Cases C-267 and 268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097. 103  Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und Vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-368. 104  W Van Gerven, ‘The Effect of Proportionality on the Actions of Member States of the European Community: National Viewpoints from Continental Europe’ in Ellis (n 1) 42. 105  F Jacobs, ‘Recent Developments in the Principle of Proportionality in European Community Law’ in Ellis (n 1) 19–20.

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8 Conclusion In the previous chapter we considered some of the more general difficulties about the structure of the proportionality analysis, and the problems attendant on weighing the value of the interests involved. These difficulties are obviated to some degree in cases concerning Member State action. This is because the proportionality inquiry will normally occur where there is a clear enunciation in the Treaty of the importance of the interests involved. The paradigm case of proportionality and free movement is premised on the assumption that there has been a breach of an explicit Treaty provision, which is central to the realization of the EU’s objectives. It is then for the Member State to defend its action by showing that it comes within a recognized exception, and is proportionate. Judicial review in terms of proportionality is strict, but the CJEU has shown that it is willing to accept diversity of national values. The importance accorded by the Treaty framers to the relevant EU interest frames the subsequent proportionality inquiry. It does not mean that difficult value judgments can be avoided. These are inherent in the proportionality inquiry. They are thrown into sharp relief by the complexity of the inquiries in cases such as Torfaen,106 Familiapress,107 Viking Line,108 and Laval,109 which are challenging for any court, whether this is the CJEU or the national court. The outcome in such cases is perforce bound to be somewhat impressionistic, since the factors involved are too broad and multifaceted to be susceptible to any more ‘scientific’ analysis. The recourse to such value judgments within adjudication is however not exceptional or confined to this area, more especially when the adjudication has a constitutional dimension.

106  Case 145/88 Torfaen BC (n 99). 108  Case C-438/05 Viking Line (n 84).

107  Case C-368/95 Vereinigte Familiapress (n 103). 109  Case C-341/05 Laval (n 85).

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21 Precautionary Principle 1 Introduction Many of the principles of administrative law discussed previously will be familiar to scholars from their domestic jurisprudence. The precautionary principle differs in this respect. While it is found in some legal systems, such as Germany, it is nonetheless relatively novel as a precept of administrative law. It has, however, become of increased importance in EU law. The chapter begins by examining the development of the precautionary principle into a general principle of EU law. This is followed by analysis of the use of the principle for review of EU and Member State action. The focus then shifts to consideration of the political status of the principle and the way in which it informs decision-making. The chapter concludes by assessing the principle from a more normative dimension. There is considerable controversy over the meaning of the precautionary principle and its application.1 The political and legal interpretation of the principle will be evaluated in the light of this critical literature. 1  There is a large literature on the precautionary principle. The following are some of the most directly relevant for present purposes: C Joerges, K-H Ladeur, and E Vos (eds), Integrating Scientific Expertise into Regulatory Decision-Making: National Traditions and European Innovations (Nomos, 1997); R Harding and E Fisher (eds), Perspectives on the Precautionary Principle (Federation Press, 1999); N de Sadeleer, ‘Les avatars du principe de précaution en droit public (effet de mode au révolution silencieuse)?’ (2001) 17 Revue française de droit administratif 547; N de Sadeleer, ‘Le statut juridique du principe de précaution en droit communautaire: du slogan a la règle’ (2001) 37 CDE 91; E Fisher, ‘Is the Precautionary Principle Justiciable’ (2001) 13 Jnl of Environmental Law 315; A Alemanno, ‘Le principe de précaution en droit communautaire: stratégie de gestion des risques ou risque d’atteinte au marché intérieur?’ (2001) 4 Revue du droit de l’Union européenne 917; J Scott and E Vos, ‘The Juridification of Uncertainty: Observations on the Ambivalence of the Precautionary Principle within the EU and the WTO’ in C Joerges and R Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford University Press, 2002) Ch 9; E Fisher, ‘Precaution, Precaution Everywhere: Developing a “Common Understanding” of the Precautionary Principle in the European Community’ (2002) 9 MJECL 7; C Sunstein, Risk and Reason, Safety, Law, and the Environment (Cambridge University Press, 2002); G Majone, ‘What Price Safety? The Precautionary Principle and its Policy Implications’ (2002) 40 JCMS 89; K-H Ladeur, ‘The Introduction of the Precautionary Principle into EU Law: A Pyrrhic Victory for Environmental and Public Health Law?’ (2003) 40 CMLRev 1455; C Sunstein, ‘Beyond the Precautionary Principle’ (2003) 151 University of Pennsylvania L Rev 1003; I Forrester, ‘The Dangers of too much Precaution’ in M Hoskins and W Robinson (eds), A True European: Essays for Judge David Edward (Hart, 2003) Ch 16; J L da Cruz Vilaça, ‘The Precautionary Principle in EC

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2  A New General Principle of EU Law (A) Foundations We shall consider in the next section how the CFI developed the precautionary ­principle into a general principle of EU law. This transformation would, however, have been more difficult if the CFI had not been able to draw on cases where the ECJ had made implicit use of the precautionary principle. Recognition of the need for regulation when the scientific evidence is uncertain is apparent in the ECJ’s jurisprudence at two levels: challenge to and interpretation of EU legislation, and actions brought against Member States. These will be considered in turn. It is scarcely surprising that the ECJ should refer to the precautionary principle when interpreting EU legislation made under Article 191 TFEU, which makes the principle applicable in the environmental field.2 The ECJ was also willing to use the principle as an interpretative tool when construing a directive that had an impact on the environment.3 More significant for present purposes was the ECJ’s acceptance of the need for intervention in the BSE case.4 The UK challenged the legality of a Law’ (2004) 10 EPL 369; G Marchant and K Mossman, Arbitrary and Capricious: The Precautionary Principle in the European Union Courts (AEI Press, 2004); A  Arcuri, ‘The Case for a Procedural Version of the Precautionary Principle Erring on the Side of Environmental Preservation’, NYU School of Law, Global Law Working Paper 9/04; M Lee, EU Environmental Law: Challenges, Change and Decision-Making (Hart, 2005) Ch 4; F Trimarchi, ‘Principio di precauzione e “qualità” dell’azione amministrativa’ (2005) Rivista Italiana di Diritto Pubblico Comunitario 1673; M Chiti, ‘Il rischio sanitario e l’evoluzione dall’amministrazione dell’emergenza all’amministrazione precauzionale’ (2006) Rivista Italiana di Diritto Pubblico Comunitario 1; N de Sadeleer, ‘The Precautionary Principle in EC Health and Environmental Law’ (2006) 12 ELJ 139; E Fisher, J Jones, and R von Schomberg (eds), Implementing the Precautionary Principle: Perspectives and Prospects (Edward Elgar, 2006); V Heyvaert, ‘Facing the Consequences of the Precautionary Principle in  European Community Law’ (2006) 31 ELRev 185; E Fisher, Risk Regulation and Administrative Constitutionalism (Hart, 2007); J Dutheil de la Rochère, ‘Le Principe de Précaution’ in J-B Auby and J Dutheil de la Rochère, Droit Administratif Européen (Bruylant, 2007) 459–71; M Antonioli, ‘Precauzionalità, gestione del rischio e azione amministrativa’ (2007) Rivista Italiana di Diritto Pubblico Comunitario 51; A Alemanno, ‘The Shaping of the Precautionary Principle by European Courts: From Scientific Uncertainty to Legal Certainty’ in L Cuocolo and L Luparia (eds), Valori Costituzionali e Nuove Politiche del Diritto: Scritti raccolti in occasione del decennale della rivista Cahiers Europèens (Halley, 2007); J Corkin, ‘Science, Legitimacy and the Law: Regulating Risk Regulation Judiciously in the European Community’ (2008) 33 ELRev 359; T Burri, ‘Do Lawyers Knead the Dough? How Law, Chaos and Uncertainty Interact’ [2010] EJRR 371; J Zander, The Application of the Precautionary Principle in Practice: Comparative Dimensions (Cambridge University Press, 2010); J Wiener, M Rogers, J Hammitt, and P Sand (eds), The Reality of Precaution: Comparing Risk Regulation in the United States and Europe (RFF Press/Earthscan/Routledge, 2011); D Vogel, The Politics of Precaution: Regulating Health, Safety and Environmental Risks in Europe and the United States (Princeton, 2012); N Morag-Levine, ‘The History of Precaution’ (2014) 62 American Jnl of Comp Law 1095. 2  See, eg, Cases 175 and 178/98 Criminal Proceedings against Paolo Lirussi and Francesca Bizzaro [1999] ECR I-6881, [51]–[52]. 3 Case C-6/99 Association Greenpeace France v Ministère de l’Agriculture and de la Pêche [2000] ECR I-1651, [44]. 4  Case C-180/96 UK v Commission [1998] ECR I-2265.

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Commission decision banning export of beef and beef products from the UK in the wake of mad cow disease. The UK argued that the decision was disproportionate. The ECJ stated that at the time when the decision was adopted there was great uncertainty as to the risks posed by live animals, bovine meat, and derived products. It then held that ‘where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become apparent’.5 That approach was, said the ECJ, ‘borne out’ by Article 174(1) EC,6 requiring Community policy on the environment to pursue the objective, inter alia, of public health, and by Article 174(2) EC, which ­incorporated the precautionary principle into environmental decision-making.7 This reasoning was repeated in the NFU case,8 where the National Farmers’ Union challenged the legality of Community measures to combat mad cow disease. In neither case did the ECJ mention the precautionary principle explicitly, but it was clearly implicit in the legitimation of protective measures when there was scientific uncertainty. Scientific uncertainty was also relevant in actions brought against Member States. The paradigm case involves a prima facie infringement of Article 34 TFEU on the free movement of goods. The Member State then seeks to defend its action on the ground of public health under Article 36 TFEU, arguing that its action is warranted because of the uncertain health risks associated with the product in question. The ECJ did not make specific reference to the precautionary principle, but it accepted, subject to certain conditions, the legitimacy of state action to protect health when the scientific effects of the particular product were difficult to estimate.9 Thus in Toolex10 the ECJ found that a national ban on the use of a substance called trichloroethylene infringed Article 34 TFEU. It then held that ‘taking account of the latest medical research on the subject, and also the difficulty in establishing the threshold above which exposure to trichloroethylene poses a serious risk to humans, given the present state of research, there is no evidence in this case to justify a conclusion by the Court that national ­legislation such as that at issue in the main proceedings goes beyond what is necessary to achieve the objectives in view’.11

(B) Development Legal reasoning is eternally interesting. It is one of the rationales for academic engagement with law. The way in which courts justify the formulation of a new principle is 5  Ibid [99]. 6  Now Art 191 TFEU. 7  Case C-180/96 UK v Commission (n 4) [100]. 8  Case C-157/96 The Queen v Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex p National Farmers’ Union [1998] ECR I-2211, [62]–[64]. 9  Case C-174/82 Officier van Justitie v Sandoz BV [1983] ECR 2445; Case 247/84 Criminal Proceedings against Leon Motte [1985] ECR 3887; Case 54/85 Ministère Public against Xavier Mirepoix [1986] ECR 1067. 10  Case C-473/98 Kemikalieinspektionen v Toolex Alpha AB [2000] ECR I-5681, [45]. 11  Ibid [45].

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especially significant in this respect, all the more so when it is the CFI that takes the leading role. The previous discussion revealed the precautionary principle implicit in the ECJ’s judgments, even though it was not explicitly ‘named’. It was, however, the CFI that rendered explicit what had been implicit in the ECJ’s jurisprudence and elevated the precautionary principle to the status of a new general principle of EU law. Pfizer12 and Artegodan13 are the seminal judgments in this respect. The application of the precautionary principle in both cases will be considered in detail later. We are concerned here with the reasoning used to justify precaution as a general principle of EU law. There are many similarities in the reasoning in the two cases, even though they were decided by different chambers.14 The judicial building blocks for the new general principle were drawn in part from Treaty articles and in part from prior case law. The starting point in terms of Treaty foundations was the express mention of the  precautionary principle in what is now Article 191(2) TFEU concerning ­environmental policy. A single mention in relation to a specific area of Union action is scarcely sufficient to ground a new general principle. The CFI therefore looked further for Treaty legitimation. It placed reliance on Article 11 TFEU, which stipulates that e­nvironmental protection must be integrated into the definition and implementation of other EU policies. Given this injunction, it must follow, said the CFI, that the precautionary principle, being a part of environmental protection, should also be a factor in other EU policies.15 This conclusion was reinforced through interpretation of other more specific Treaty articles. Thus the CFI held in Artegodan16 that Article 191 provided that an objective of environmental protection was public health; that Article 168(1) TFEU stated that a high level of human health protection should be secured in the definition and implementation of all EU ­policies; that a similar injunction to ensure a high level of consumer protection and to integrate such protection into the definition and implementation of other Union policies was to be found in Articles 12 and 169 TFEU; and that the precautionary principle was to be applied in these areas in order to ensure this requisite level of protection. The CFI buttressed the argument from the Treaty by drawing on prior case law. It relied on the BSE and NFU decisions for the proposition that the precautionary ­principle applies where the EU takes measures in the context of the Common Agricultural Policy in order to safeguard health.17 The CFI also followed well-­ established techniques of reasoning by analogy, alluding to other cases where the

12  Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305. 13  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan GmbH v Commission [2002] ECR II-4945. 14  Case T-13/99 Pfizer (n 12) [113]–[115]; Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13) [181]–[186]. 15  Case T-13/99 Pfizer (n 12) [114]; Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13) [183]. 16  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13) [183]. 17  Case T-13/99 Pfizer (n 12) [114].

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e­ xistence of the precautionary principle ‘has in essence and at the very least implicitly been recognized by the Court of Justice’.18 The Treaty articles combined with prior case law provided the foundations for the recognition of a new general principle of EU law. The CFI in Artegodan expressed its conclusion in the following terms.19 It follows that the precautionary principle can be defined as a general principle of Community law requiring the competent authorities to take appropriate measures to prevent specific potential risks to public health, safety and the environment, by giving precedence to the requirements related to the protection of those interests over economic interests. Since the Community institutions are responsible, in all their spheres of activity, for the protection of public health, safety and the environment, the precautionary principle can be regarded as an autonomous principle stemming from the abovementioned Treaty provisions.

There is much in common in the reasoning of the different chambers of the CFI in  Pfizer and Artegodan in establishing the precautionary principle as a general principle of EU law. There were, however, some differences of nuance, although it is difficult to determine whether these were intended or not. Thus in Artegodan the CFI framed its conclusion in obligatory terms: the precautionary principle is a general principle of EU law requiring the competent authorities to take appropriate measures to prevent specific potential risks to health, safety, and the environment and it was this formulation that was adopted in the later Solvay decision20 and in Pillbox 38.21 This seems to go further than Pfizer, where the emphasis is on the EU having discretion to adopt ­protective measures in accord with the precautionary principle. There may be instances where a specific Treaty article, regulation, or directive could be said to give rise to an obligation to take protective measures in furtherance of the precautionary principle, and it may be that this was all that the CFI had in mind in Artegodan. This is, however, different from positing a general obligation requiring that such measures be adopted pursuant to the precautionary principle throughout the ­relevant spheres of EU law.22 A little later in its judgment in Artegodan the CFI appeared to accept that the competent authorities had discretion as to whether to apply the

18  Ibid [115]. 19  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13) [184]; Case T-147/00 Les Laboratoires Servier v Commission [2003] ECR II-85, [52]; Case C-504/04 Agrarproduktion Staebelow GmbH v Landrat des Landkreises Bad Doberan [2006] ECR I-679, [38]–[39]; Case 334/07 Denka International BV v Commission [2009] ECR II-4205, [116]; Case T-326/07 Cheminova A/S v Commission [2009] ECR II-2685, [165]–[166]; Case C-333/08 Commission v France [2010] ECR I-757, [92]; Case C-77/09 Gowan Comércio Internacional e Serviços Lda v Ministero della Salute [2010] ECR I-13533, [73]–[75]; Case T-333/10 Animal Trading Co (ATC) BV and Others v European Commission, EU:T:2013:451, [76]–[82]. 20  Case T-392/02 Solvay Pharmaceuticals BV v Council [2003] ECR II-4555, [121]. 21  Case C-477/14 Pillbox 38 (UK) Ltd, trading as Totally Wicked v Secretary of State for Health, EU:C:2016:324, [116]. 22  Cruz Vilaça (n 1) 400–1.

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­ recautionary principle, but nonetheless qualified this by stating that the discretionary p choice must comply with the principle that protection of health, safety, and the ­environment take precedence over economic interests, and with the principles of ­proportionality and non-discrimination.23 It is in any event clear that the general approach sanctioned by the ECJ is that correct application of the precautionary principle presupposes identification of the potentially negative consequences for health flowing from the contested measure, combined with comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent results of international research. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness, or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialize, the precautionary principle justifies the adoption of restrictive measures, provided they are non-discriminatory and objective.24

3  The Precautionary Principle and Review of EU Action It is clear that the precautionary principle is used when reviewing the legality of Union action.25 The more particular meaning ascribed to the concept can, however, only be determined by paying close regard to the leading cases in which it was applied. Clarity concerning the positive law is, moreover, necessary before evaluating in normative terms the role played by the principle within EU law.

(A)  Pfizer We have considered the Pfizer case26 previously, most notably when discussing the general principles of judicial review as they apply to discretionary determinations.27

23  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13) [185]–[186]; Case T-392/02 Solvay (n 20) [122]. 24  Case C-333/08 Commission v France (n 19) [90]–[92]; Case C-343/09 Afton Chemical Ltd v Secretary of State for Transport [2010] ECR I-7027, [60]–[62]; Case C-77/09 Gowan (n 19) [73]–[75]; Case T-475/07 Dow AgroSciences Ltd v European Commission [2011] ECR II-5937, [143]–[155]; Case C-269/13 P Acino AG v  European Commission, EU:C:2014:255, [57]–[61]; Case C-157/14 Société Neptune Distribution v Ministre de l’Économie et des Finances, EU:C:2015:823, [80]–[81]; Cases C-78–79/16 Pesce v Presidenza del Consiglio dei  Ministri—Dipartimento della Protezione Civile, EU:C:2016:428, [47]–[52]; Case C-477/14 Pillbox 38 (n 21) [55]; Case C-282/15 Queisser Pharma GmbH & Co KG v Bundesrepublik Deutschland, EU:C:2017:26, [56]–[60]. 25  Case T-177/02 Malagutti-Vezinhet SA v Commission [2004] ECR II-827, [54]; Fisher, Risk Regulation (n 1) Ch 6. 26  Case T-13/99, Pfizer (n 12). See also Case T-70/99 Alpharma Inc v Council [2002] ECR II-3495. 27  See above, 452–6.

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The present inquiry focuses more specifically on the way in which the precautionary principle was interpreted and applied by the CFI. (i)  Interpretation of the Precautionary Principle It will be remembered that the case concerned a challenge by the applicant company to a Regulation that withdrew authorization for an additive to animal feeding stuffs. Virginiamycin was an antibiotic that was added in very small quantities to animal feed to promote growth. The rationale for the withdrawal of the authorization was the fear that such additives could reduce the animals’ resistance to antibiotics, and that this lessening of resistance could be transmitted to humans. This would then reduce the effectiveness not only of that particular antibiotic, but might also limit the efficacy of antibiotics of the same class. Pfizer argued forcefully that this could not be proven in the light of the scientific evidence. The CFI analysed, as seen earlier, the place of the precautionary principle in the schema of the Treaty and in the light of the prior case law. It held that the Council and Commission could therefore proceed through the precautionary principle, even though because of scientific uncertainty, the reality and seriousness of the risks associated with the additives were not fully apparent.28 The CFI’s judgment casts important light on the more specific meaning of the precautionary principle in EU law. The CFI identified the risk assessed when the precautionary principle was applied.29 It steered a middle course in this respect. It was not necessary for the risk assessment to prove conclusive scientific evidence of the reality of the risk and the seriousness of the adverse consequences if that risk became a reality. Nor however could a preventive measure be based on a purely hypothetical approach to the risk without any scientific verification. A preventive measure could only be introduced ‘if the risk, although the reality and extent thereof have not been “fully” demonstrated by conclusive scientific evidence, appears nevertheless to be adequately backed up by the scientific data available at the time when the measure was taken’.30 Risk was a function of the probability that the relevant product would adversely affect interests protected by the EU legal order, combined with assessment of the seriousness of those effects.31 There were, said the CFI, two complementary components of this risk assessment.32 It was for the Union institutions to determine the level of protection which they deemed appropriate for society. This was an essentially political determination. While the EU institutions could not operate on zero-risk assumptions, they could legitimately decide to ensure a high level of human health protection. The second component of the risk assessment involved the estimation as to whether the level of risk determined by the political organs was present in a particular case. This required a scientific risk assessment by experts before preventive measures could be adopted. The scientific advice should be based on principles of excellence, independence, and transparency. The very 28  Case T-13/99 Pfizer (n 12) [139]–[141]. 29  Ibid [142]–[148]. 30  Ibid [144]; Case T-229/04 Kingdom of Sweden v Commission [2007] ECR I-2437, [161]. 31  Case T-13/99 Pfizer (n 12) [147]–[148]. 32  Ibid [149]–[163].

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fact of scientific uncertainty, combined with the need to take preventive measures at short notice, meant that a full assessment might not always be possible. However, the competent public authority must nonetheless be given sufficiently reliable and cogent information by the scientific experts to enable it to decide on the appropriate response.33 Consequently, if it is not to adopt arbitrary measures, which cannot in any circumstances be rendered legitimate by the precautionary principle, the competent public authority must ensure that any measures that it takes, even preventive measures, are based on as thorough a scientific risk assessment as possible . . . Notwithstanding the scientific uncertainty, the scientific risk assessment must enable the competent public authority to ascertain, on the basis of the best available data and the most recent results of international research, whether matters have gone beyond the level of risk that it deems acceptable for society.

The apportionment of the burden of proof followed from the preceding analysis. It was for the Union institutions to show that the contested regulation was adopted following from as thorough a scientific risk assessment as possible, and that they had as a result of that assessment sufficient scientific indications to conclude on an objective scientific basis that the use of virginiamycin as a growth promoter constituted a risk to health.34 The success of any challenge would, however, be affected by the general principles of judicial review applicable to this type of case.35 In this respect the CFI repeated the wellestablished principle that the scope of review was limited where the EU institutions had a broad discretion relating to the level of risk deemed acceptable for society, and where they were required to make complex assessments when applying such discretion to the facts of particular cases. It was not for the EU Courts to substitute their assessment of the facts for that of the Union institutions. The Courts were confined to determining whether the exercise of discretion was vitiated by a manifest error, misuse of power, or whether the institutions clearly exceeded the bounds of their discretion. The very fact that the scientific assessment must be carried out thoroughly and in accord with the principles of excellence, independence, and transparency was, however, an important procedural guarantee against arbitrariness, and should be seen as an application of the procedural duty to take care incumbent on EU institutions.36 (ii)  Application of the Precautionary Principle The CFI then applied the principles to the instant case. The CFI’s judgment responded to a number of different allegations of error advanced by the applicant. The CFI began by considering the claim that the contested Regulation was tainted by factual errors. The applicant argued that the Commission and Council had disregarded and distorted the findings of the Scientific Committee for Animal Nutrition (SCAN) which was established to assist the Commission at the latter’s request on all scientific questions relating to the use of additives in animal nutrition. SCAN had, at the Commission’s request, looked into the possible harmful effects of virginiamycin, and 33  Ibid [162].

34  Ibid [165].

35  Ibid [164]–[170].

36  Ibid [171]–[172].

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analysed the Danish claims. It concluded that there was no new evidence to substantiate the transfer of resistance to antibiotics from animals to humans; that while the development of bacterial resistance to antibiotics was a cause for concern, the data provided by the Danish authorities did not justify the action taken by Denmark to preserve streptogramins as therapeutic agents of last resort in humans; and that the use of virginiamycin as a growth promoter did not constitute an immediate risk to public health in Denmark. The CFI rejected the argument. It found that the Commission and Council had not ignored SCAN’s findings, even though they had not accepted its final conclusions. It held further that the Commission was not bound under the relevant legislation to adopt SCAN’s conclusions. Where the Commission chose not to accept its conclusions it had however to provide reasons, which had to be at a scientific level commensurate with that of the opinion in question.37 The fact that the Commission did not have to accept SCAN’s conclusions was, said the CFI, justified by the Commission’s political responsibility and democratic legitimacy, and by political control through the European Parliament. This was by way of contrast to SCAN. It had scientific legitimacy but ‘this was not a sufficient basis for the exercise of public authority’.38 The CFI decided that the Council, when ratifying the Commission’s opinion, gave reasons for not accepting SCAN’s conclusions, drawing in part on SCAN’s own reasoning and in part on reports from other specialist national, international, and Community bodies.39 The CFI also rejected the argument that the Commission and Council had distorted the SCAN opinion. The CFI subsequently focused on the allegation that the contested Regulation was influenced by a new study produced by the Danish authorities after the SCAN opinion and that the Council and Commission should have sought a further opinion from SCAN on this matter. The CFI rejected the argument. It held that there was no obligation to undertake a second consultation,40 and distinguished previous cases.41 The CFI having rejected the arguments based on factual error then considered a separate albeit related claim of manifest error of assessment. This was whether ‘the Community institutions made a manifest error of assessment when they concluded, on the basis of those facts, that the use of virginiamycin as a growth promoter constituted a risk to human health’.42 The CFI re-emphasized that in assessing whether the scientific evidence enabled the EU institutions to conclude that there was a risk associated with the use of virginiamycin as a growth promoter, the role of the Court was limited: it was not to substitute judgment; it was limited to finding a manifest error, misuse of power, or clear excess of discretion; and any determination of such errors must be made on the basis of the material available to the EU institutions when the contested Regulation was made.43 The CFI nonetheless considered in detail the applicant’s argument. The applicant maintained that human resistance to antibiotics of the 37  Ibid [199]. 38  Ibid [201]. 39  Ibid [204]. 40  Case T-13/99 Pfizer (n 12) [262]–[266]. 41  Case C-212/91 Angelopharm GmbH v Freie Hansestadt Hamburg [1994] ECR I-171, [31]–[41]. 42  Case T-13/99 Pfizer (n 12) 311. 43  Ibid [322]–[324].

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streptogramin class did not have any adverse effect on human health. The CFI was unconvinced. The SCAN findings were related to Denmark, rather than the problem at EU level. It was, moreover, clear from studies at national, Union, and international level, that resistance to antibiotics was perceived as a major problem in human medicine. It was therefore proper for the EU institutions to develop a cautious approach designed to preserve the effectiveness of certain antibiotics used in human medicine, even though when the contested Regulation was made they were relatively little used in that sphere.44 The applicant argued further that the EU institutions were not entitled, on the basis of the available scientific data, to find a link between use of virginiamycin as an additive in feeding stuffs and the development of antibiotic resistance in humans. The argument and counterargument was complex. Suffice it to say that the CFI examined these claims in some detail, and concluded that the Union institutions had a scientific basis on which to find the linkage.45 The CFI also gave close consideration to the company’s argument that the scientific data was not sufficient to warrant the challenged Regulation. It concluded against the company, holding that the precautionary principle justified the measure, even though there was no scientific certainty, more especially given that a full risk assessment would not have been possible in the time available.46 The CFI then analysed the applicant’s argument cast in terms of proportionality, which was considered when discussing that topic.47 Suffice it to say for the present that the Court rejected the arguments that the withdrawal of the authorization was manifestly inappropriate to the objective pursued, and that the ban was not necessary since other less onerous measures could have been taken. It also found that the disadvantages of the ban were not disproportionate to the objectives pursued, nor did they entail a breach of the right to property.

(B)  Artegodan (i)  Interpretation of the Precautionary Principle Artegodan was concerned with withdrawal of authorization to market medicinal products containing ‘amphetamine-like’ anorectic agents, used in the treatment of obesity by accelerating the feeling of satiety. The CFI annulled the Commission decisions withdrawing the authorization, principally because under the relevant EU legislation the Commission did not have the competence to make the contested decisions. The ECJ upheld the CFI in this respect.48 The CFI also held that even if the Commission had been competent to make the decisions they were nonetheless flawed because of infringement of the relevant Directive. It was in this context that the CFI discussed the precautionary principle, although the ECJ did not do so.

44  Ibid [341]. 45  Ibid [369]. 46  Ibid [381]–[384], [389], [393], [401]. 47  See above, 648–9. 48  Case C-39/03 P Commission v Artegodan GmbH [2003] ECR I-7885.

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The rationale for consideration of the precautionary principle was that Article 11 of Directive 65/6549 stipulated that the competent authorities should suspend or revoke the marketing authorization of a medicinal product where it proves to be harmful in the normal conditions of use, or where its therapeutic efficacy is lacking, or where its quantitative or qualitative composition was not as declared. The CFI stated that these conditions for withdrawal of an authorization must be interpreted in accord with the general principle identified in the case law to the effect that public health should take precedence over economic considerations.50 The priority accorded to public health meant, inter alia, that in cases of scientific uncertainty the competent authority should assess the medicinal product in the light of the precautionary principle.51 The CFI provided important guidance as to how the rules of evidence should be interpreted in the light of the precautionary principle.52 Where initial authorization to market a medicinal product was sought, it was for the producer to prove its efficacy and safety. Where however the Commission sought to withdraw authorization, it had the burden of proving that one of the conditions for withdrawal laid down in Article 11 of Directive 65/65 was met. The precautionary principle was relevant in discharging this burden of proof. The suspension or withdrawal of authorization was warranted in accord with the precautionary principle where new data gave rise to serious doubts as to the safety or efficacy of the product, even if there was still a measure of scientific uncertainty as to the reality of these doubts. The CFI nonetheless emphasized that withdrawal of authorization was only allowed where a potential risk or lack of efficacy could be substantiated by ‘new, objective, scientific and/or medical data or information’.53 (ii)  Application of the Precautionary Principle The CFI concluded that the contested decisions were flawed in the light of the preceding principles. Its decision is significant in two respects. The CFI emphasized the importance of consultation with the relevant scientific committee. The Commission had relied on findings made by the Committee for Proprietary Medicinal Products (CPMP). The Commission was not bound by its opinion, but the CFI stressed the importance of the mandatory consultation with the CPMP laid down by the relevant Directive: given that the Commission could not assess for itself the safety or efficacy of the product, consultation with the CPMP was necessary to give the Commission the scientific evidence from which it could make a reasoned decision.54 The CFI also asserted control over the reasoning process used by the scientific committee. It held that for the purposes of reviewing the Commission’s decision under the Directive, the ‘Community judicature may be called on to review, first, the formal legality of the CPMP’s scientific opinion and, second, the Commission’s exercise of its 49  Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products [1965] OJ L22/369. 50  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13) [173]. 51  Ibid [181]. 52  Ibid [187]–[195]. 53  Ibid [194]. 54  Ibid [198].

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discretion’.55 While the CFI acknowledged that it could not substitute its view for that of the CPMP, it could consider the reasons proffered by the CPMP and whether there was an understandable link between the medical evidence relied on by the CPMP and its conclusions. It was, moreover, incumbent on the CPMP to refer to the main scientific reports on which it had relied and to explain why it disagreed with, for example, divergent scientific opinion presented by the undertakings concerned in the case.56 The ‘practical logic’ of the CFI’s reasoning is unassailable. The CFI had already stressed the importance of consultation with the CPMP, since the Commission did not have the requisite expertise to make the scientific evaluation. Given that the Commission would normally accept the opinion of the scientific committee, and had done so in this case, it followed that if judicial review was to be meaningful the CFI should be able to consider the CPMP’s reasoning. The CFI did not however trouble to reconcile this ‘practical logic’ with the standard requirement that for an act to be reviewable it must be binding on and capable of affecting the legal interests of the applicant. It is nonetheless possible to conjecture what the response of the Court could have been. It could have argued that the mandatory consultation of the CPMP rendered its opinion, which was then adopted by the Commission, an integral part of the legally binding decision made by the Commission, and was therefore reviewable.57 The very fact that the CFI expressly affirmed its power to review the CPMP’s reasoning bears ample testimony to its desire that review should ‘bite’ where the ‘real decision’ was made. Nor was this mere formal window dressing, since the CFI looked in detail at the CPMP’s reasoning. In terms of review of the Commission decision made in reliance on the CPMP’s opinion, the CFI reiterated orthodoxy to the effect that where the Commission exercised broad discretionary power the Court’s role was limited to assessing whether the decision was vitiated by manifest error or misuse of power and to ensuring that the competent authority did not clearly exceed the bounds of its discretion.58 Notwithstanding the fact that the Commission had relied on the CPMP’s opinion, and notwithstanding the CFI’s statements as to the limits of judicial review, it nonetheless held that the decisions withdrawing authorization were flawed. This was because neither the CPMP nor the Commission had pointed to any new scientific data relating to safety or efficacy since the authorization had originally been granted. Change in what was felt to be good clinical practice was not sufficient in this respect.

(C)  Monsanto The previous cases were concerned with the precautionary principle as a ‘shield’: it was used as a defence by the Union institutions to justify the Union provision being 55  Ibid [199]. 56  Ibid [199]–[200]. 57  This was in effect the approach taken in Case T-326/99 Olivieri v Commission and EMEA [2003] ECR II-6053, [55]. 58  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13) [201].

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attacked. It is, however, clear that the principle can also be used as a ‘sword’ by an applicant who is challenging the legality of an EU norm. The Monsanto case provides a good example.59 Regulation 258/9760 laid down a regulatory regime for the placing on the market of novel foods and novel food ingredients, which were essentially foods consisting of, or containing ingredients produced from, genetically modified organisms. A simplified procedure for authorization applied in relation to such foods that were substantially equivalent to existing foods. This ­procedure was relied on by the applicants concerning certain strains of genetically modified maize. The Italian Ministry of Health maintained that this procedure was not warranted, and that the fuller procedure under the Regulation should have been used instead. The Italian Ministry therefore had recourse to the safeguard clause in Article 12 of the Regulation, which allowed a Member State to restrict temporarily or suspend the trade in the use of such foods where as a result of new ­information or reassessment of existing information it has detailed grounds for considering that the use of foods complying with the Regulation endangers human health or the environment. The national court asked whether the simplified procedure, which did not require a comprehensive risk assessment, was coupled with detailed rules sufficient to ensure a high level of protection for health and the environment within the meaning of what are now Articles 168(1) and 191(2) TFEU, and whether it guaranteed compliance with the precautionary principle and proportionality. The ECJ held that the simplified procedure could be justified according to these criteria. The procedure only applied where there was substantial equivalence with existing foods. If dangers were identifiable the more comprehensive risk assessment under the normal procedure was required.61 The obvious response to this is that it begs the question in issue, since the dangers might only be identifiable if the comprehensive risk assessment is carried out. The ECJ sought to address this by pointing out that the simplified procedure was but the first stage in a series of assessments that could be made under the Regulation, including the use of the safeguard clause in Article 12. This clause was seen as giving specific expression to the precautionary principle, and the principle should also be taken into account under the normal ­procedure in order to decide whether, in the light of conclusions flowing from the risk assessment, the food could be placed on the market without danger for the consumer.62 The simplified procedure was, moreover, seen to be compatible with ­proportionality.63

59 Case C-236/01 Monsanto Agricultura Italia SpA v Presidenza del Consiglio dei Ministri [2003] ECR I-8105; Case C-6/99 Association Greenpeace France v Ministère de l’Agriculture et de la Pêche [2000] ECR I-1651, [40]–[44]; Case C-393/01 France v Commission [2003] ECR I-5405. 60  Regulation (EC) 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel food and novel food ingredients [1997] OJ L43/1. 61  Case C-236/01 Monsanto (n 59) [129]. 62  Ibid [133]. 63  Ibid [134]–[136].

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4  The Precautionary Principle and Review of Member State Action The discussion thus far has been concerned with the way in which the precautionary principle is used when reviewing the legality of Union action. The principle is also relevant for review of Member State action. The cases can be broken down into a ­number of different categories.

(A)  Member State Compliance with Environmental Directives We have already seen that the most explicit reference to the precautionary principle is to be found in Article 191(2) TFEU concerned with environmental policy. It is not therefore surprising that the principle should be relevant in cases concerned with Member State compliance with environmental directives. This is exemplified by Commission v France64 where the issue was whether France had properly applied a Directive on urban waste water treatment.65 The Directive ­stipulated that discharge of waste water in ‘sensitive areas’ should be subject to more stringent treatment than for less sensitive areas, this being to prevent the growth of algae that could damage the organic balance in the water where the discharge occurred. The Commission argued that France was in breach of these provisions in a number of areas. The French government denied that the areas were sensitive for the purposes of the Directive, and challenged the scientific evidence relied on by the Commission. The ECJ held that environmental policy was based on the precautionary principle and that the available scientific and technical data provided sufficient evidence of a causal link between discharge of waste water and growth of algae in the Seine bay.66 Similar reasoning is evident in ARCO.67 The ECJ held in accord with established principle that in the absence of harmonization Member States were free to choose the modes of proof of the various matters defined in directives which they transposed, provided that the effectiveness of EU law was not undermined. The effectiveness of Article 191 TFEU would, however, be undermined if the national legislature used modes of proof restricting the scope of the Directive, with the result that it did not cover substances that corresponded to the meaning of waste within the Directive. This was particularly important since the inclusion of the precautionary principle in Article 191 meant that the concept of waste should not be interpreted restrictively.68 64  Case C-280/02 Commission v France [2004] ECR I-8573. 65  Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment [1991] OJ L135/40. 66  Case C-280/02 (n 64) [34]; Cases C-387–388/15 Orleans v Vlaams Gewest, EU:C:2016:583, [53]; Case C-142/16 Commission v Germany, EU:C:2017:301. 67  Cases C-418–419/97 ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [2000] ECR I-4475. 68  Ibid [40]; Case C-252/05 The Queen on the application of Thames Water Utilities Ltd v South East London Division, Bromley Magistrates’ Court [2007] ECR I-3883, [27]; Case C-263/05 Commission v Italy [2007]

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The precise demands imposed on Member States by environmental directives may also be influenced by the precautionary principle, as is evident from the Waddenzee case.69 The National Association for the Protection of the Waddenzee and the Netherlands Association for the Protection of Birds challenged the grant of licences by the Dutch Secretary of State for Agriculture for cockle fishing in the special protection area of the Waddenzee, arguing that the licences infringed certain provisions of the Habitats Directive.70 Article 6(3) of the Directive provided that any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, should be subject to an appropriate assessment of its implications in view of the site’s conservation objectives. The ECJ held that the requirement for an appropriate assessment of the implications of the plan or project was conditional on its being likely to have a significant effect on the site. It was not, however, necessary to show that these consequences were definite. It was sufficient to trigger the protections of Article 6(3) if there was some probability or risk of such an effect following from the plan or project. This interpretation was reinforced in the light of the precautionary principle, by reference to which the Habitats Directive had to be interpreted. Construed in this manner ‘such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned’.71 In such circumstances an assessment in accord with Article 6(3) had to be undertaken. The precautionary principle was used once again in answering the national court’s question as to the meaning of ‘appropriate assessment’ for the purposes of Article 6(3). The second sentence of Article 6(3) stated in effect that in the light of the conclusions of the assessment the national authorities should agree to the plan or project only after having ascertained that it would not adversely affect the integrity of the site and if appropriate after having obtained the opinion of the general public. The ECJ held that this meant that if there were remaining doubts as to the absence of adverse effects on the integrity of the site, then the authorization would have to be refused. It was clear, said the ECJ, that the authorization criterion in Article 6(3) ‘integrates the precautionary principle’.72 The competent national authorities could therefore only authorize activity ‘if they have made certain that it will not adversely affect the integrity of the

ECR I-11745, [33]; Case C-188/07 Commune de Mesquer v Total France SA and Total International Ltd [2008] ECR I-4501, [38]. 69 Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Saatssecretaris van Landbouw, Natuurbeheeer en Visserij [2004] ECR I-7405. 70  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. 71  Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee (n 69) [44]. See also Case C-6/04 Commission v UK [2005] ECR I-9017, [54]; Case C-418/04 Commission v Ireland [2007] ECR I-10947, [226], [254]. 72  Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee (n 69) [58].

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site’, that being so ‘where no reasonable scientific doubt remains as to the absence of such effects’.73

(B)  Member States and the Four Freedoms We saw from the preceding analysis on the development of the precautionary principle that the EU Courts acknowledged scientific uncertainty in the context of actions against Member States for breach of the four freedoms. The ECJ took account of this uncertainty when assessing defences to, for example, free movement of goods framed in terms of protection of public health. This theme has persisted in later case law, the main difference being that there has been more explicit reference to the precautionary principle. This can be seen in the case law on vitamins and nutrients. There have been a number of cases in which the ECJ has adjudicated on the legality of Member State ­legislation restricting the sale of goods containing vitamins and food supplements.74 The ECJ’s reasoning is exemplified by Greenham and Abel.75 The ECJ held that national rules whereby a Member State prohibited the marketing without prior authorization of foodstuffs lawfully manufactured and marketed in another Member State, where nutrients such as vitamins and minerals had been added, could be justified under what is now Article 36 TFEU, provided that certain conditions were met. If there was an authorization procedure it must be readily accessible and be capable of being completed within a reasonable time. If authorization was refused that decision must be open to legal challenge. An application for inclusion on the national list of authorized substances could only be refused by the national authorities if such substances posed a genuine risk for public health. It was for the Member States in the absence of harmonization and to the extent that there was scientific uncertainty to decide on the level of protection for human health. The broad discretion possessed by the Member States was, however, qualified by the principle of proportionality, so that the measures chosen must be limited to what was necessary to safeguard health. The requirement of showing that there was a real risk to health meant that the Member State had to undertake a detailed assessment of the risk posed by the food additive. Prohibition of the marketing of foodstuffs with such additives could only be justified on the basis of the latest scientific data available when the decision was adopted, designed to show the probability and seriousness of harm. This risk assessment might well reveal that scientific uncertainty persisted as to the existence or extent of risk to health. It must be accepted, said the ECJ, that in such circumstances

73  Ibid [59]. 74  Case C-192/01 Commission v Denmark [2003] ECR I-9693; Case C-24/00 Commission v France [2004] ECR I-1277; Case C-41/02 Commission v Netherlands [2004] ECR I-11375; Cases C-154–155/04 The Queen on the Application of Alliance for Natural Health and Nutri-Link ltd v Secretary of State for Health [2005] ECR I-6451; Case C-446/08 Solgar Vitamin’s France v Ministre de l’Économie, des Finances et de l’Emploi [2010] ECR I-3973. 75  Case C-95/01 Criminal Proceedings against John Greenham and Leonard Abel [2004] ECR I-1333.

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‘a Member State may, in accordance with the precautionary principle, take protective measures without having to wait until the existence and gravity of those risks are fully demonstrated’,76 although this risk assessment could not be based on purely hypothetical considerations. This same approach was evident in Commission v France.77 The case concerned Member State impediments to import of food processing aids from another Member State where they were lawfully marketed, which was in breach of Article 34 TFEU. The ECJ acknowledged that in the absence of harmonization a Member State could take protective measures in accord with the precautionary principle. The Member State could not, however, do so merely on the basis of hypothetical risk. The correct application of the precautionary principle presupposed identification of the potentially negative consequences for health of the proposed use of processing aids, and a comprehensive assessment of the risk to health based on the most reliable scientific data ­available and the most recent results of international research.78 In an action based on Article 267 TFEU it will normally be for the national court to decide whether the conditions mentioned in the ECJ’s judgment were met. Thus it will be for the referring court to determine whether scientific data was taken into account when the national legislation was adopted, whether that data showed a real risk, and whether in the event of scientific uncertainty the precautionary principle justified the state action. The ECJ may, however, give guidance or indeed answers to some of these matters in a preliminary ruling if it wishes to do so. Where the action is based on Article 258 TFEU it will be for the ECJ to make these assessments.79

(C)  Member States and the Interpretation of EU Legislation The most obvious situations where the precautionary principle will be of relevance in actions against Member States are those considered earlier. It is, however, clear that the principle can also be apposite when interpreting Community legislation in other circumstances.80 The Monsanto case provides a good example.81 We have already considered the case in relation to challenge to Community legislation. It also entailed review of Member State action, since the applicant argued that recourse to the safeguard clause by the Italian government was not warranted. The ECJ held that the twofold objective of Regulation 258/97 was to ensure the functioning of the internal market in novel foods and to protect against the public health risks to which such foods might give rise.

76  Ibid [43], [48]. 77  Case C-333/08 Commission v France (n 24). 78  Ibid [91]–[92]. 79  See, eg, Case C-24/00 Commission v France (n 74). 80  Case T-147/00 Les Laboratoires Servier (n 19); Case C-286/02 Bellio F.lli Srl v Prefettura di Treviso [2004] ECR I-3465. 81  Case C-236/01 Monsanto Agricultura (n 59). See also Case C-132/03 Ministero della Salute v Codacons [2005] ECR I-4167; Cases C-58–68/10 Monsanto and others, 8 September 2011.

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In the light of this assessment of legislative objectives, the ECJ laid down criteria for reliance on the safeguard clause that were very similar to those developed in the case law on free movement. The safeguard clause in Article 12 was ‘understood as giving specific expression to the precautionary principle’,82 and it therefore followed that ­protective measures could be taken without having to wait until the reality and seriousness of those risks became apparent.83 It was not, however, sufficient for such measures to be based on a purely hypothetical approach to risk. The risk assessments must be as  complete as possible and must indicate that the foods constitute a danger to the consumer in accord with the requirements of the Regulation.84

5  The Precautionary Principle, Politics, and the Commission Communication The preceding analysis has considered the interpretation accorded to the precautionary principle by the EU Courts. The Commission has, however, also contributed to the debate about the role of the principle in EU law.85 It is therefore important to analyse its Communication.86 We will then be in a better position to assess the wider debate about the desirability or not of the precautionary principle. In April 1999 the Council asked the Commission to be in the future more guided by the precautionary principle in preparing legislative proposals and in its other consumer-related activities and requested it to develop as a matter of priority clear and effective guidelines for the application of the principle. The Commission responded to this request by publishing in 2000 its Communication, which was designed ‘to establish a common understanding of the factors leading to recourse to the precautionary principle and its place in decision-making, and to establish guidelines for its application based on reasoned and coherent principles’.87 It was also intended to allay fears that recourse to the principle could ‘serve as a justification for disguised protectionism’,88 or that it was inconsistent with the EU’s obligations under the WTO. The Commission examined the place of the precautionary principle in the schema of the Treaty and the existing case law and concluded, much as the EU Courts were to do a few years later, that although the principle was only explicitly mentioned in the environmental field its scope was nonetheless wider. It covered those circumstances where scientific evidence was insufficient, inconclusive, or uncertain, but where preliminary scientific evaluation indicated that there were reasonable grounds for c­ oncern

82  Ibid [110]. 83  Ibid [111]. 84  Ibid [106]–[109]. 85 Fisher, Risk Regulation (n 1) 224–9. 86  Communication from the Commission, On the Precautionary Principle, COM(2000) 1 final. 87  Ibid 8. 88  Ibid 8.

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that the potentially dangerous effects on the environment, human, animal, or plant health might be inconsistent with the chosen level of protection.89 Having assessed the place of the precautionary principle in international law, the Commission then turned its attention to the constituent parts of the principle. It  distinguished between the political decision to act or not to act, which was said to  be  linked to the factors triggering recourse to the precautionary principle, from the  decision how to act, connoting the measures resulting from application of the ­principle.90 There were various factors that triggered recourse to the precautionary principle, which informed the political decision whether to act or not.91 The potentially negative effects of a phenomenon should be identified through scientific data. This should be followed by scientific evaluation of the potential adverse effects, in particular the probability and seriousness of the harm that might occur, although it might not be possible in certain instances to complete a comprehensive risk assessment. The concept of risk assessment consisted of hazard identification, hazard characterization, appraisal of exposure, and risk characterization. Scientific uncertainty could exist in relation to each of these components of risk assessment. This uncertainty could result from the variable chosen, the measurements made, the samples drawn, the models used, the causal relationship employed, and from controversy about existing data. These triggering factors would inform the decision whether to act or not, this being ‘an eminently political decision, a function of the risk level that is “acceptable” to the society on which the risk is imposed’.92 The Commission then laid down guidelines for those situations where action was deemed necessary based on the precautionary principle in order to manage risk.93 The guidelines contain substantive, procedural, and evidentiary precepts. There should be a cost/benefit analysis to compare the likely positive and negative consequences of the envisaged action and inaction, and this should include non-economic considerations. All interested parties should be involved to the fullest extent possible in the study of various risk management options that might be envisaged once the results of the scientific evaluation or risk assessment become available. The procedure should be as transparent as possible. Risk management in accord with the precautionary principle should, moreover, be consistent with and take account of certain other principles. It  should be proportionate, in the sense that measures based on the precautionary ­principle should not be disproportionate to the desired level of protection and must not aim at zero risk, since this rarely if ever existed. In some instances, a total ban might not be a proportional response to a potential risk, in others it might be the only possible response. Measures taken pursuant to the precautionary principle should not be discriminatory, and should be consistent with measures already adopted in similar circumstances. The guidelines also addressed the temporal dimension of measures made pursuant to the precautionary principle. Such measures, although provisional,

89  Ibid 9–10.

90  Ibid 12.

91  Ibid 13–14.

92  Ibid 15.

93  Ibid 16–21.

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should be maintained as long as the scientific data remained ‘incomplete, imprecise or inconclusive and as long as the risk is considered too high to be imposed on society’.94 These measures should, however, be re-examined and modified if necessary depending on results of scientific research. The Commission addressed by way of conclusion the burden of proof. This is a ­matter for the Union Courts to decide, but it is nonetheless interesting to see the Commission’s thinking in this respect.95 There were, said the Commission, some instances where the EU legislator might reverse the burden of proof. Substances that were deemed to be a priori hazardous might therefore have to be approved before they could be marketed. It would then be for the manufacturer to show that the substances were not hazardous and to carry out the scientific work necessary to evaluate the risk. These cases were to be contrasted to those where there was no prior approval ­procedure, so that it would be for citizens or public authorities to demonstrate the danger and the level of risk posed. Even in this type of case the burden of proof might be partially reversed, in the sense that once a certain level of danger had been revealed it would then be for the manufacturer to counter these arguments. The Commission’s Communication was generally welcomed by the European Parliament, which stressed the desirability of widespread public involvement in policy choices involving the precautionary principle.96

6  The Precautionary Principle, Academic Discourse, and the EU (A)  The Academic Discourse There may well be some disagreement with the EU’s principles of administrative law and the way in which they have been applied in particular cases. That is natural when reflecting on any regime of administrative law. There is, nonetheless, little doubt that the degree of controversy that surrounds the precautionary principle is significantly greater. Thus Scott and Vos began their discussion by remarking,97 Few legal concepts have achieved the notoriety of the precautionary principle. Praised by some, disparaged by others, the principle is deeply ambivalent and apparently infinitely malleable.

The contending arguments are, as persuasively argued by Fisher, reflective of broader disagreements concerning different models of administrative governance ‘which 94  Ibid 20. 95  Ibid 20–1. 96 European Parliament Report, On the Commission Communication on the Precautionary Principle, A5-0352/2000. See also Opinion of the Economic and Social Committee, Use of the Precautionary Principle [2000] OJ C268/04. 97  Scott and Vos (n 1) 253.

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e­ ncompass ­different understandings about the role and nature of information, communication, expertise and the nature of legislative prescriptions’.98 Thus as Fisher notes, those who promote the precautionary principle tend to argue that regulatory regimes that place too much faith in scientific method and crude understandings of acceptable risk are inadequate to deal with the challenges created by scientific uncertainty. Those opposed to the principle contend that it leads to arbitrary administrative decision-­making by abandoning objective, and thus accountable, administrative decision-making.99 It is not possible to ‘resolve’ these disagreements within this chapter. Nor is that the aim. It would, however, be inappropriate to ignore the intense debate that surrounds the precautionary principle. The present objective is, therefore, to convey an understanding of the arguments advanced by those opposed to the principle, and reflect on the way in which the principle has been used by the EU politically and legally in the light of these arguments. Majone has been a leading critic of the precautionary principle. He argued that the ‘precautionary approach is deeply ambiguous’ and that ‘this ambiguity is abetted by a lack of clear definitions and sound logical foundations’.100 His principal criticism related to the logic of decision-making. He maintained that the Commission Communication failed to consider the opportunity cost of precautionary measures, such that ‘the attempt to control poorly understood, low-level risks necessarily uses up resources that in many cases could be directed more effectively towards the reduction of well-known, large-scale risks’.101 Majone argued, moreover, that the precautionary principle was seriously flawed as an aid to decision-making under uncertainty. The essence of the argument was that risk is a compound of the probability of harm and its severity. The optimal decision was to choose the course of action that minimized the expected loss, this being the sum of the product of the losses taking account of the corresponding probabilities.102 The precautionary principle by way of contrast ‘tends to focus the attention of regulators on some particular events and corresponding losses, rather than the entire range of possibilities’.103 Sunstein has been an equally strident critic of the precautionary principle.104 He followed Stewart105 in distinguishing between four versions of the principle.106 There was the non-preclusion precautionary principle, which connoted the idea that regulation should not be precluded by the absence of scientific certainty about activities that posed a risk of substantial harm. A second version was termed the margin of safety precautionary principle, meaning that regulation should include a margin of safety, limiting activities below the level at which adverse effects had not been found or predicted. A third interpretation was labelled the best available technology precautionary principle, 98 Fisher, Risk Regulation (n 1) 44. 99  Ibid 39–47. 100  Majone (n 1) 90. 101  Ibid 101. 102  Ibid 102. 103  Ibid 103. 104  Sunstein, ‘Beyond the Precautionary Principle’ (n 1). 105  R Stewart, ‘Environmental Regulatory Decision Making under Uncertainty’ in T Swanson (ed), An Introduction to the Law and Economics of Environmental Policy: Issues in Institutional Design, Vol. 20 of Research in Law and Economics (Emerald, 2002) 71, 76. 106  Sunstein, ‘Beyond the Precautionary Principle’ (n 1) 1014.

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requiring that best technology requirements ‘should be imposed on activities that pose an uncertain potential to create substantial harm, unless those in favour of those activities can show that they present no appreciable risk’.107 There was finally the prohibitory precautionary principle, which stipulated that prohibitions should be imposed where the activities have ‘an uncertain potential to impose substantial harm, unless those in favour of the activities can show that they present no appreciable risk’.108 Sunstein accepted that weak versions of the precautionary principle were ‘unobjectionable and important’,109 and was reasonably positive about the approach taken to the precautionary principle in the Commission’s Communication.110 He argued that there should be some correlation between the level of risk and the type of regulatory response, and few if any would disagree with this. The focus of his attack was on strong versions of the principle, which ‘suggest that regulation is required whenever there is a possible risk to health, safety, or the ­environment, even if the supporting evidence is speculative and even if the economic costs of regulation are high’.111 On this view, once there was some relatively minimal threshold of risk there was a presumption in favour of stringent regulatory controls. The core of Sunstein’s challenge to the strong version of the precautionary principle was that it was paralysing, forbidding all courses of action, including inaction. The need to be selective as to what we take precautions about was seen as not merely an empirical fact, but a conceptual inevitability, since ‘no society can be highly precautionary with respect to all risks’.112 The precautionary principle could therefore only offer guidance if ‘those who apply it wear blinders’,113 in the sense of focusing on certain aspects of the regulatory situation and disregarding others. The belief that the principle required, for example, restrictions on genetically modified foods meant ignoring the potential health benefits that could accompany such products.114 Sunstein articulated a number of behavioural factors that might cause people to wear such blinders, such as loss aversion, probability neglect, and neglect of the impact of one-off interventions, which served to explain the readiness to focus on a particular subset of the hazards involved.115 It was precisely because there were risks involved in all regulatory choices that it was vital to have a ‘wider view screen’. The strong version of the precautionary principle was, however, said to provide no guidance in choosing between the broader risks thus identified.116

(B) The Precautionary Principle and Political Decision-Making in the EU: An Evaluative Strategy The preceding discussion has revealed the concerns of those opposed to the precautionary principle. A response might simply be to deny the force of these arguments in

107  Ibid 1014. 108  Ibid 1014. 109  Ibid 1016, 1029, 1031. 110  Ibid 1017–18, 1029. 111  Ibid 1018. 112  Ibid 1029, 1054. 113  Ibid 1035. 114  Ibid 1035–6. 115  Ibid 1035–54. 116  Ibid 1054, 1057–8.

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their entirety. It would then be necessary to show why arguments of the kind advanced by Majone and Sunstein are flawed. That is not the approach adopted here. It will become clear that I have some reservations about their analyses, but I also think that they proffer arguments that should be taken seriously. So the alternative is to consider how far the precautionary principle as actually used in political decision-making in the EU is susceptible to the critique set out above. This is not an easy question to answer for reasons that will become apparent later. It is nonetheless the important question. Let me at least suggest a strategy as to how to approach the question. We should begin by identifying what are regarded as the central problems with the precautionary principle. This is a necessary step in order to decide whether these deficiencies are present in the EU version of the principle. The principal difficulties articulated by Majone and Sunstein with the stronger versions of the principle are threefold. There is the propensity to impose ‘blinders’ on decision-making, such that only certain aspects of a regulatory situation are taken into account, these characteristically being the risks associated with the activity and not its attendant benefits; there is the related idea that the principle offends decision-making logic by focusing on possible losses with insufficient attention to the probability that they will occur; and there is the concern that regulatory constraints will be imposed where the evidence of possible harm is very speculative and the costs of regulation high. It is not fortuitous that Majone and Sunstein stress respectively the need to consider the ‘entire range of possibilities’ and the ‘wide screen’ view. For these authors, the very broadening of the inquiry renders the stronger version of the precautionary principle of little assistance in deciding whether a particular risk should be subject to regulation or not. The issue is therefore whether these problems are apparent in the EU version of the precautionary principle. The Commission Communication provides only limited guidance. This is in part because it is ambiguous in certain respects, a point noted by commentators. This is reflected by the fact that Sunstein, with some reservations, generally regards it as an acceptable weak version of the principle, while Majone is more critical and believes that it embodies defective decision-making logic. It should, moreover, be recognized that the Commission Communication is just that, a document setting out its general approach to use of the principle. We can therefore only properly assess whether the difficulties with the principle are prevalent in EU law by analysing particular areas where it has been applied. Some might argue that the very fact that the EU regulates, for example, possible defects in foods on the basis, inter alia, of the precautionary principle somehow ‘proves’ that the difficulties associated with the principle are prevalent in EU law. Put in this form the argument does not withstand examination. The existence of such an EU regulatory instrument does not in itself tell one anything as to whether the version of the precautionary principle that informed it was subject to the criticisms voiced earlier. It is only through close analysis of the particular regulatory provision, and the role played by the precautionary principle therein, that the argument can be taken forward. This can be briefly exemplified by considering an important area where the regulatory strategy has been informed by the precautionary principle.

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(C) The Precautionary Principle and Political Decision-Making in the EU: Food Safety The BSE crisis was one of the catalysts for the EU to become more closely involved with food safety and led to the passage of Regulation 178/2002.117 It was designed to foster a high level of health in the EU and to facilitate free movement of food, the latter requiring that food safety requirements should not differ significantly as between the Member States.118 This duality of health promotion and removal of national regulatory barriers based on food safety runs throughout the entire Regulation. It is linked to risk analysis predicated on scientific evidence, which is also central to the legislative schema. Thus the recitals make clear that the purpose of risk analysis of measures introduced by Member States as well as the EU is to prevent unjustified barriers to trade.119 Risk analysis is said to be composed more specifically of risk assessment, risk management, and risk communication.120 Risk assessment is a scientific process entailing the four stages mentioned in the earlier Commission Communication: hazard identification, hazard characterization, exposure assessment, and risk characterization.121 Risk management ‘means the process, distinct from risk assessment, of weighing ­policy alternatives in consultation with interested parties, considering risk assessment and other legitimate factors, and, if need be, selecting appropriate prevention and control options’.122 The third component of risk analysis, risk communication, is about exchange of information at all stages of risk analysis between all interested parties, including not only those involved directly in the process, but also consumers, the food industry, and the academic community.123 The precautionary principle features as part of this risk analysis. Thus the recitals state that ‘where a risk to life or health exists but scientific uncertainty persists, the precautionary principle provides a mechanism for determining risk management measures or other actions in order to ensure the high level of health protection chosen in the Community’.124 This theme is carried through to the main body of the Regulation. In order to ensure a high level of health protection, food law is, in general, to be based on scientific risk analysis. The risk assessment is to be based on the available scientific evidence, and is to be independent, transparent, and objective.125 Risk management, in the sense defined earlier, is to take account of the risk assessment undertaken by scientific panels of the European Food Safety Authority and, inter alia, in certain ­circumstances the precautionary principle.126

117  Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L31/1; A Stirling et al, ‘A Framework for the Precautionary Governance of Food Safety: Integrating Science and Participation in the Social Appraisal of Risk’ in Fisher, Jones, and von Schomberg (n 1). 118  Reg 178/2002 (n 117) recs 1–2, 20, Art 5. 119  Ibid rec 16. 120  Ibid rec 17, Art 3(10). 121  Ibid Art 3(11). 122  Ibid Art 3(12). 123  Ibid Art 3(13). 124  Ibid rec 21. 125  Ibid Art 5. 126  Ibid Art 5(3).

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The precautionary principle is deemed to be relevant where following the assessment of available information, the possibility of harmful effects on health is identified, but scientific uncertainty persists. In such circumstances ‘provisional risk management measures to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment’.127 The measures adopted on this basis must be proportionate and no more restrictive of trade than required to achieve the high level of protection, regard being had to technical and economic feasibility and other relevant factors. The measures are also to be reviewed within a reasonable period of time, depending on the nature of the risk and the type of scientific information needed to clarify the scientific uncertainty and conduct a more comprehensive risk assessment.128 It is interesting to reflect on this legislative scheme and the role of the precautionary principle therein in the light of the critique of the principle considered earlier. There is much to be said for regarding the legislative scheme as an example of a weaker version of the precautionary principle. The Regulation repeatedly emphasizes scientific risk analysis, which is undertaken in an objective and transparent manner by an independent body. The legislative definitions of the risk analysis stress the need to consider alternative policy choices, after wide consultation, and with an awareness of the range of control options. The decision-makers are in this sense enjoined to consider the ‘wider screen’ view. The Regulation could, therefore, be said to embody a non-preclusion version of the precautionary principle: it allows measures to be made where possible harmful effects have been identified, but scientific uncertainty persists. The measures made in this manner are then subject to the conditions and constraints mentioned previously, relating to the temporal dimension of the measure, proportionality, and the like. The risk analysis, with the attendant role of the precautionary principle, should not, moreover, be viewed in isolation in the overall regulatory regime. This analysis is undertaken in order to show whether the product is injurious to health, and the Regulation specifies in this respect that regard shall be had to the probable short- or long-term effects on the person consuming it and the probable cumulative toxic effects.129 The opposing view would emphasize the broad discretion inherent in Article 7 of the Regulation, which embodies the precautionary principle. Proponents of this view might argue that a degree of scientific uncertainty will commonly exist in relation to certain foods and that provisional risk management measures can be triggered provided that there is a possibility of identified harmful effects occurring. They would point, moreover, to the fact that the provisional nature of the measure thus adopted is a weak constraint, judged both in the light of the wording of Article 7, which makes provisionality dependent on the state of scientific knowledge, and judged also against the views expressed on this issue in the Commission Communication.

127  Ibid Art 7(1).   128  Ibid Art 7(2).

129  Ibid Art 14(4).

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It is undeniable that there is discretion in the interpretation of Article 7. I do not, however, think that it serves to make this a strong version of the precautionary p ­ rinciple in the sense considered earlier, nor do I think that it proves that the criticisms voiced against the strong version of the principle are applicable here. The very fact that scientific uncertainty is prevalent to varying degrees in relation to many matters means that a regime for food safety will perforce have to make provision for the enactment of safety measures notwithstanding that uncertainty. The issue then becomes one of drafting the criteria that allow such measures to be made given this uncertainty. It is true that the test framed in terms of possibility might be regarded as too weak by the WTO, which appears to demand some estimation of likelihood or probability.130 The criterion of possibility would, however, fall to be applied by the EU Courts, which demand adequate evidence to substantiate this finding and this would naturally lead to consideration of likelihood. They would, moreover, read Article 7 as a whole, with its requirement that the measure should be proportionate. Nor should we assume that the regulatory authorities charged with applying the existing regime will seek to use the precautionary principle as currently defined in a protectionist or arbitrary manner. Such a claim could only be sustained after careful empirical examination of the use made of the principle by the scientific panels of the Food Safety Authority. There are doubtless those who will not agree with my evaluation of the version of the precautionary principle found in Regulation 178/2002. That is to be expected. It is nonetheless only possible to evaluate whether the criticism of the principle is warranted by looking closely at the particular regulatory regime and the role played by the principle therein. This is the key inquiry irrespective of the fact that differing answers might be forthcoming.

(D) The Precautionary Principle and Legal Decision-Making in the EU It is also important to consider the role of the Courts in relation to the precautionary principle. We should for the sake of clarity distinguish between different issues when undertaking this normative assessment. It should be acknowledged that the EU Courts have made a normative choice in elevating the precautionary principle into a general principle of EU law. This was a creative decision informed by the reasoning set out above.131 There was nothing inevitable about this juridical choice, but the analogical reasoning that drew on specific mention of the precautionary principle is familiar to lawyers. Some might question the ­legitimacy of the judicial elevation of the precautionary principle into a general principle of EU law. Whether one agrees with this criticism must ultimately depend on one’s view about what courts can and should do when they adjudicate. The theory of adjudication that should inform judicial reasoning cannot be examined here. Suffice it to say for 130  Lee (n 1) 107–8.

131  See above, 695–9.

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present purposes that I do not believe that the Union Courts overstepped the ­legitimate boundaries of their adjudicatory responsibilities in this regard. There is room for disagreement as to which version of the precautionary principle was adopted by the Union Courts judged in terms of the Stewart/Sunstein taxonomy. The basic judicial formulation is that where there is uncertainty as to the existence or extent of risks, the institutions may take precautionary measures without having to wait until the reality and seriousness of the risks become fully apparent. This does not in terms incorporate a requirement of substantial harm, but is otherwise akin to the weaker non-­ preclusion version of the precautionary principle. The seriousness of the harm is in any event a factor taken into account in the conditions stipulated by the EU Courts when recourse is had to the precautionary principle. The judgments established legal precepts as to the risk assessment that must be undertaken to justify a protective measure premised on the precautionary principle132 and the role of scientific committees in this process.133 The Courts held that protective measures could not be based on a hypothetical approach to risk, rejected as unrealistic the search for zero risk and s­ tipulated that the measure must be adequately backed up by the available scientific data.134 They made it  clear that risk was a function of the probability that the relevant product would adversely affect interests protected by the EU legal order, combined with assessment of the seriousness of those affects.135 The Union Courts emphasized the need to ensure that regard is had to the benefits as well as the potential harm that flow from the regulated product.136 Indeed, the explicit recognition of the precautionary principle within EU law has led, as Fisher astutely notes, to increased judicial emphasis on scientific method as a means of ensuring non-arbitrary decision-making.137 It might be argued that some leading cases are open to criticism because they did not, on the facts, accord sufficient weight to the expert scientific opinion. This is the essence of the criticism138 voiced of the judgment in for example Pfizer.139 The CFI’s reasoning in this respect has been considered in detail earlier,140 and will not be repeated here. There is clearly room for difference of opinion on this issue. The line between the political responsibility of the institutional decision-makers and the scientific tasks of the expert committee can be difficult to maintain.141 It may be equally contestable as to whether the political institutions have sufficient alternative material to base their judgment on when they choose not to follow the committee’s opinion. These tensions are inherent in a scheme where the political decision must be premised on scientific evidence.142

132  Case T-13/99 Pfizer (n 12); Case T-70/99 Alpharma (n 26); Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13); Case T-392/02 Solvay (n 20); Case C-333/08 Commission v France (n 24). 133  See above, 699–705. 134  See above, 700. 135  Case T-13/99 Pfizer (n 12) [147]–[148]. 136  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13) [178]–[180]. 137 Fisher, Risk Regulation (n 1) 232–6. 138  See, eg, Forrester (n 1). 139  Case T-13/99 Pfizer (n 12). 140  See above, 452–6. 141  Lee (n 1) 81–2. 142  See Corkin (n 1) for a defence of the courts in this respect.

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It might also be claimed that judicial review does not allow sufficient scrutiny of ­ ecisions premised on the precautionary principle. On this view the classic tools of d review for manifest error, proportionality, and the like do not provide review that is sufficiently searching to prevent arbitrary decisions. This ignores the transformation in judicial review apparent in the Courts’ jurisprudence. The way in which review for manifest error has been transformed was discussed in an earlier chapter.143 It no longer merely captures decisions that are facially arbitrary. It has become far more intensive and the Courts are looking ever more closely at the detailed reasoning process that led to the contested decision. The CFI announced its willingness to review the reasoning process of the scientific committee as well as the Commission decision based on the committee’s opinion.144 It is moreover apparent from a case such as Artegodan145 that the CFI is willing to annul the contested decision, even where the scientific committee and the Commission are in agreement, if the Court feels that the reasoning does not accord with the dictates of the empowering legislation.

7 Conclusion The debate about the precautionary principle is intense. It affects areas such as ­international trade law that fall outside the remit of this book. Commentators disagree about the meaning of the precautionary principle and even more so about its desirability. This chapter has sought to explicate how it has been elevated into a general principle of EU law and the way in which it is applied in the review of EU and Member State action. We have seen the role accorded to the precautionary principle by the Commission’s Communication and evaluated some of the critical literature. There is no doubt that the debate will continue. If there is a message about this aspect of the inquiry, it is that only by paying close attention to the particular legislative scheme is it possible to assess which version of the precautionary principle is being used and hence whether the critique of the principle is warranted.

143  See above, Ch 13. 145  Ibid [220].

144  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13) [199]–[200].

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22 Remedies I: EU 1 Introduction The discussion in the previous chapters focused on the principles of judicial review applied by the EU Courts. Remedies are an equally important part of administrative law. This chapter and that which follows will consider the remedies available against the EU and the Member States respectively. The two principal remedies available against the Union are annulment and compensation. Annulment embodies the fundamental precept that where action is invalid or illegal then it should prima facie be void and of no effect. Compensation is equally significant as a remedy, although the precise criterion for recovery depends upon whether the loss flows from the exercise of a discretionary or non-discretionary power. The discussion begins with consideration of the principles governing interim relief pending the final decision on the substance of the case and the way in which those principles are applied in relation to both direct and indirect actions. This is followed by analysis of the consequences of finding that the contested measure is illegal or invalid, the extent to which the Union Courts modify the basic precept that a measure found to be invalid or illegal is void ab initio, and the relationship between the finding that the measure is void and the obligations placed on the EU institutions to redress the wrong. The focus then turns to compensation, the criteria for recovery under Article  340 TFEU, and the way in which the tests have evolved over time.

2  Interim Measures (A)  Direct Actions Judicial resolution of any action takes time. The interests of the parties to the litigation may, however, be seriously harmed pending the final outcome of the case. All legal systems therefore make some provision for interim measures to protect the parties before the court reaches its final decision.1 1  S de la Sierra, ‘Provisional Court Protection in Administrative Disputes in Europe: The Constitutional Status of Interim Measures Deriving from the Right to Effective Court Protection. A Comparative Approach’ (2004) 10 ELJ 42.

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The issue of interim relief is addressed in Article  278 TFEU (ex Article  242 EC), which provides that the CJEU or GC may, if they consider that the circumstances so require, order that the application of the contested measure be suspended. This is complemented by Article 279 TFEU (ex Article 243 EC), which states that they may prescribe interim measures. The provision of interim relief is conceptualized as part of a right to effective judicial protection. Thus the ECJ stated that ‘the right to full and effective judicial protection means that individuals must be granted interim protection if this is necessary to ensure the full effectiveness of the subsequent definitive judgment, in order to prevent a lacuna in the legal protection afforded by the Court’.2 It has also been said that effective interim legal protection is a general principle of EU law that underlies the constitutional traditions common to the Member States, and that the principle is to be found in Articles 6 and 13 ECHR and Article 47 of the Charter of Fundamental Rights of the EU.3 The criteria for the award of interim relief will normally require some showing by the applicant that the contested measure is likely to be invalid, and some indication of urgency combined with resulting harm. These elements are part of the test applied by the EU Courts.4 The judge hearing the application can order suspension of the measure, or other interim measures, if it is established that such an order is prima facie justified in fact and law and that it is urgent insofar as, in order to avoid irreparable harm to the applicant’s interests, it must be made and take effect before a decision is reached in the main action. Where appropriate, the judge hearing the application must weigh the respective interests involved.5 The conditions in the test are cumulative and therefore if the applicant fails to prove any one of them the claim fails.6 It is for the applicant to prove the requisite elements in the test. Thus, the applicant must prove that the matter is urgent and that she cannot wait for the outcome of the proceedings ­without suffering irreparable damage.7 It is for the applicant to show with a sufficient 2  Case 27/68 R Renckens v Commission [1969] ECR 274, 276; Case C-399/95 R Germany v Commission [1996] ECR I-2441, [46]; Case C-445/00 R Austria v Council [2001] ECR I-1461, [111]; Case T-306/01 R Aden v Council and Commission [2002] ECR II-2387, [45]; Case T-78/04 Sumitomo Chemical (UK) plc v Commission [2004] ECR II-2049, [44]. 3  Case T-198/01 R Technische Glaswerke Ilmenau GmbH v Commission [2002] ECR II-2153, [50], [113]–[115]. 4  Case C-149/95 P(R) Commission v Atlantic Container Line AB [1995] ECR I-2165; Case C-377/98 R Netherlands v Council [2000] ECR I-6229, [41]; Case C-445/00 R Austria (n 2) [73]; Case T-257/07 R France v Commission [2007] ECR II-4153; Case C-426/13 P(R) European Commission v Federal Republic of Germany, EU:C:2013:848; Case C-390/13 P(R) European Medicines Agency (EMA) v InterMune UK Ltd, EU:C:2013:795; Case T-235/15 R Pari Pharma GmbH v European Medicines Agency, EU:T:2015:587, [37]–[40]; Case T-131/16 R Belgium v European Commission, EU:T:2016:427; Case C-517/15 P-R AGC Glass Europe SA v European Commission, EU:C:2016:21. 5  Case T-235/15 R Pari Pharma (n 4) [64]–[73]. 6  Case C-268/96 R SCK and FNK v Commission [1996] ECR I-4971, [30]; Case C-7/04 P(R) Commission v Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd [2004] ECR I-8739, [28]–[29]; Case T-163/02 R Montan Gesellschaft Voss mbH Stahlhandel and others v Commission [2002] ECR II-3219, [17]; Case C-76/08 R Commission v Malta [2008] ECR I-64, [22]. 7  Case T-163/02 R Montan Gesellschaft (n 6) [28]; Case T-95/09 R United Phosphorous v Commission [2009] ECR II-47; Case T-52/09 R Nycomed Danmark ApS v Agence européenne des médicaments (EMEA) [2009] ECR II-43, [59]–[65]; Case T-235/15 R Pari Pharma (n 4) [84]–[87].

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degree of probability that serious and irreparable damage is likely to occur.8 Pecuniary damage is not generally regarded as irreparable since it can be the subject of financial compensation. Such damage will only qualify in this respect if the applicant can show that unless the measure is suspended its very existence would be threatened, or its market shares would be altered irretrievably.9 An application to suspend the operation of any measure can only be made if the applicant is challenging the measure before the EU Courts.10 An application for interim measures can generally be made where there is a sufficiently close link between the interim measure sought and the subject matter of the main action. Where, however, the application for interim measures is seeking to achieve the same end as an application for suspension then it will only be admissible if the applicant is challenging the measure before the EU Courts.11 It is, moreover, for the applicant to specify the interim measures that are sought, with the consequence that vague and imprecise applications will be rejected.12 The applicant will have to show some interest in obtaining the interim measures sought,13 and the application will be rejected where it could not have the effect of changing the applicant’s position and therefore could not be of any p ­ ractical use to the applicant.14 In principle the admissibility of the main action will not generally be examined in an application for interim measures so as not to prejudge the ­substance of the case. However, where it appears that the main action is manifestly inadmissible it may be necessary for the Court to examine this issue when interim measures are sought.15

(B)  Indirect Actions The same considerations that require powers of suspension and interim relief apply in relation to indirect actions that raise the validity of EU action.16 This is particularly important given that national courts do not have the power to invalidate an EU

8  Ibid [29]; Case T-201/04 R Microsoft v Commission [2004] ECR II-4463. 9  Case C-213/91 R Abertal and others v Commission [1991] ECR I-5109, [24]; Case T-168/95 R Eridania and others v Council [1995] ECR II-2817, [42]; Case T-163/02 R Montan Gesellschaft (n 6) [30]–[31]; Case T-198/01 R Technische Glaswerke Ilmenau (n 3) [96], [99]; Case T-149/09 R Dover v European Parliament [2009] ECR II-66, [27]. 10  Case T-78/04 Sumitomo (n 2) [42]–[43]. 11  Ibid [43]; Case T-395/94 R II Atlantic Container Line v Commission [1995] ECR II-2893, [39]. 12  Ibid [49]–[50]. 13  Case C-107/89 R Caturla-Poch v Parliament [1989] ECR 1357; Case T-164/96 R Moccia Irme v Commission [1996] ECR II-2261, [26]; Case T-78/04 Sumitomo (n 2) [52]. 14  Case C-89/97 P(R) Moccia Irme v Commission [1997] ECR I-2327, [45]; Case T-369/03 Arizona Chemical and others v Commission [2004] ECR II-205, [62]; Case T-78/04 Sumitomo (n 2) [52]. 15  Case T-219/95 R Danielsson v Commission [1995] ECR II-3051, [58]; Case T-13/99 R Pfizer Animal Health v Council [1999] ECR II-1961, [121]; Case T-163/02 R Montan (n 6) [21]. 16  E Sharpston, ‘Interim Relief in National Courts’ in J Lonbay and A Biondi (eds), Remedies for Breach of EC Law (Wiley, 1997) Ch 5.

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regulation,17 and given also that many challenges to the validity of Union norms have been indirect via the national courts, because the standing rules for direct actions by individuals were so limited.18 The Treaty contains no formal provisions concerning suspension or the grant of interim relief by national courts, but the ECJ held that such powers existed. The leading cases are Zuckerfabrik Süderdithmarschen19 and Atlanta20 and they established the following principles. The EU Courts’ powers to order suspension or interim relief when the legality of an EU act is challenged directly, must also reside with national courts when such a challenge arises indirectly. This was necessary to ensure the coherence of the system of interim legal protection. These powers can apply where the applicant seeks the suspension of a national act  on  the ground that the EU regulation on which it was based is invalid. Thus in Zuckerfabrik the applicant challenged a national decision imposing a levy on sugar, where the national decision implemented a Union Regulation. The applicant sought suspension of the national decision pending the ruling on the legality of the EU Regulation. The national court also has power where the applicant seeks a positive interim measure pending determination of the legality of the EU regulation. Thus in Atlanta the applicant challenged via the national courts an EU Regulation that imposed a quota on bananas from third countries and raised the import levy on bananas from what it had been hitherto. The interim measure sought from the national court entailed the grant of additional import licences at the lower rate pending the ECJ’s ruling on the validity of the Regulation. In that sense the applicant sought a positive order from the national court temporarily disapplying the EU Regulation. The ECJ made it clear that the same principles must also govern applications for interim relief where the compatibility of a national measure with EU law was raised in the national courts, as in Factortame.21 It is evident, moreover, from Unibet22 that the principle of effective judicial protection requires that it be possible in the legal order of a Member State for interim relief to be granted until the competent court has given a ruling on whether national provisions are compatible with EU law, where the grant of such relief is necessary to ensure the full effectiveness of the judgment to be given on the existence of such rights. The principle of effective judicial protection also means

17  Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199; Case C-344/04 The Queen, on the application of International Air Transport Association and European Low Fares Airline Association v Department for Transport [2006] ECR I-403, [27]–[32]; Case C-119/05 Ministero dell’Industria, del Commercio e dell’Artigianato v Lucchini SpA [2007] ECR I-6199, [53]. 18  See above, 332–5. 19  Cases C-143/88 and 92/89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe [1991] ECR I-415. 20  Case C-465/93 Atlanta Fruchthandelsgesellschaft mbH v Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3761. 21  Case C-213/89 R v Secretary of State for Transport, ex p Factortame Ltd [1990] ECR I-2433. 22  Case C-432/05 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern [2007] ECR I-2271.

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that where the compatibility of national provisions with EU law is being challenged, the grant of any interim relief to suspend the application of such provisions until the competent court has given a ruling on their compatibility with EU law is governed by criteria laid down by the national law applicable before that court, provided that those criteria are no less favourable than those applying to similar domestic actions and do not render practically impossible or excessively difficult the interim judicial protection of those rights. The conditions to be satisfied before suspension or interim relief could be granted were established in Zuckerfabrik and Atlanta, subject to further refinement in later cases.23 There has to be serious doubts as to the validity of the EU regulation, the corollary being that when the national court makes the reference it must set out the reasons why it considers that the ECJ should find the regulation invalid. The national court should take account of the discretion accorded to the Union institutions in the sectors concerned. The grant of relief by the national court must retain the character of an interim measure. The interim measures cannot be maintained when the ECJ has ruled pursuant to the preliminary reference that the EU regulation is valid. The ECJ stressed the parity between interim relief given by national courts in ­indirect actions and that given by the EU Courts in direct challenges for annulment. Interim measures could, therefore, only be ordered where they were urgent, that is where they were necessary before the decision on the substance of the case, in order to avoid serious and irreparable damage. Purely financial damage is not in principle regarded as irreparable, but it is for the national court to consider the circumstances of  the case and consider whether immediate enforcement will be likely to result in irreversible damage to the applicant that cannot be made good if the Union act is declared invalid. It is, moreover, incumbent on the national court to ensure that full effect is given to EU law and hence when there is doubt about the validity of Union regulations account must be taken of the EU interest that such regulations should not be set aside without proper guarantees. The national court must, where it is minded to give interim relief, give the relevant Union institution an opportunity to express its views. The national court must consider in this respect whether the EU act will be deprived of all effectiveness if not immediately implemented, and when making this calculus should factor in the cumulative effect if other national courts were also to adopt interim measures. If the grant of interim relief poses a financial risk for the EU, then the national court must require adequate financial guarantees or other security. The national court should also, when assessing whether to grant interim relief, respect what the EU Courts have decided on the relevant issue. The national court must respect any relevant ruling on interim relief given by the EU Courts. It must also 23 Case C-334/95 Kruger GmbH & Co KG v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517; Cases C-453/03, 11, 12 and 194/04 The Queen, on the application of ABNA Ltd and Others v Secretary of State for Health and Food Standards Agency [2005] ECR I-10423; Case C-432/05 Unibet (n 22); Case C-304/09 Commission v Italy [2010] ECR I-13903, [45].

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do so where the validity of the regulation has already been considered by the EU Courts. Where this was so the national court could not order interim measures, and should revoke any already granted, unless the grounds of illegality alleged differ from those that have already been ruled on. It was especially important that national courts respect a decision of the Union Courts concerning an assessment of the EU interest and the balance between that interest and the relevant economic sector. It is clear moreover that the power to award interim relief resides with national courts, not national administrative authorities. Thus if a particular national court decides to award interim measures and refers the validity of the EU measure to the CJEU, the competent national administrative authorities of other Member States cannot suspend application of that measure until such time as the Court has ruled on its validity. National courts alone are entitled to determine, taking into consideration the specific circumstances of the cases brought before them, whether the conditions governing the grant of interim relief have been satisfied.24

(C) Assessment The central elements of the test for interim relief in direct and indirect actions, the need to show a prima facie case, and serious and irreparable damage are common in many legal systems. Much turns on how rigorously they are applied. It is clear from the jurisprudence on direct actions that the EU Courts will not lightly accede to pleas for suspension of an EU norm or for interim measures. It should, however, be recognized that applicants for such relief will also face significant burdens of proof in national legal systems. The common feature is that courts generally set the hurdles relatively high precisely because the applicant is seeking to suspend the operation of a law that is prima facie valid. It should, nonetheless, be acknowledged that the EU Courts’ view that financial loss will only very exceptionally qualify as irreparable and then only when the applicant can show that it is likely to go out of business, or suffer some very marked fall in its market value, is unduly narrow. The nature of the test as applied in direct and indirect actions is generally the same. The factors added to the case law concerning interim relief and indirect actions are mainly directed towards ensuring that the national court takes proper account of the Union interest and relevant EU case law when making its decision. The obligation on national courts to take account of the effect on the Union norm if other national courts also award interim measures is, however, impractical to say the very least. The national court will generally be in no position to assess whether similar claims for interim relief are made in other national legal systems, or what the cumulative effect of such claims might be on the efficacy of the EU measure. While the test applied in direct and indirect actions is generally the same there are bound to be some differences in its practical application. This is principally because 24  Cases C-453/03, 11, 12 and 194/04 ABNA (n 23).

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where suspension or interim relief are sought before the GC or CJEU the judge deciding the application has in-depth knowledge of EU law and is therefore better placed to decide whether there is a prima facie case than the national judge in an indirect action.

3 Annulment The consequences of a finding that a contested decision is illegal or invalid are ­important in any system of administrative law. It is necessary in this respect to distinguish between direct and indirect actions involving challenge to EU action.

(A)  Direct Actions: Articles 264 and 266 TFEU Where an EU measure has been challenged successfully,25 there are two principal Treaty provisions that determine the consequences of illegality. Article  264 TFEU (ex Article 231 EC) provides that if the action under Article 263 TFEU is well founded, the CJEU shall declare the act void. This is modified by the second paragraph of Article  264, which provides that the CJEU or GC shall, if it considers it necessary, state which of the effects of the act declared void shall be considered as definitive.26 Article 266 complements this by stating that the institution whose act has been declared void, or whose failure to act has been declared contrary to the Treaty, shall be required to take the necessary measures to comply with the CJEU’s judgment.

(B)  Direct Actions: Article 264 TFEU Article 264 provides that where a measure has been found to be illegal under Article 263 it is void.27 The EU Courts have no power to substitute their own reasoning for that of the author of the contested measure.28 25  The Commission cannot avoid a challenge by withdrawing the contested measure when it is challenged before the CJEU, while seeking to preserve its effects, Case C-89/96 Portuguese Republic v Commission [1999] ECR I-8377. 26  The second paragraph of Art 231 EC, the predecessor to Art 264 TFEU, was framed only in terms of regulations, but the ECJ extended the principle to directives and decisions, Case C-295/90 European Parliament v Council [1992] ECR I-4193; Case C-21/94 European Parliament v Council (Road Taxes) [1995] ECR I-1827; Case C-360/93 European Parliament v Council (Government Procurement) [1996] ECR I-1195, [32]–[36]; Case C-22/96 European Parliament v Council (Telematic Networks) [1998] ECR I-3231. 27  Normally an act will have to be challenged for its illegality to be established. There are, however, certain limited instances in which the act will be treated as absolutely void or non-existent, where the act may be treated as if it were never adopted. In general, however, proceedings will be required to establish the illegality of the act. 28  Case C-164/98 P DIR International Film Srl and others v Commission [2000] ECR I-447, [48]–[49]; Case C-487/06 P British Aggregates Association v Commission [2008] ECI I-10515, [141]–[144]; Case C-246/11 P Portugal v Commission, EU:C:2013:118, [85]; Case T-103/14 Frucona Košice as v European Commission, EU:T:2016:152, [106].

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The EU Courts will decide whether an error warrants annulment of the contested measure. This is exemplified by the Hercules case.29 The ECJ ruled that access to the file in competition cases should be regarded as part of the rights of the defence. Infringement of the right of access could therefore constitute a ground for annulment if it led to breach of the rights of defence. It could not be remedied merely by the fact that access to the file was made possible at a later stage of the proceedings, such as when annulment of the original decision was sought in an annulment action. However, infringement of the right of access would only lead to annulment if the applicant could show that it could have used the documents to which it was denied access as part of its defence. The Union Courts will also determine the effects of an error on the overall validity of the measure being challenged. Thus in Limburgse Vinyl the CFI held that where a Commission decision in breach of the competition rules was annulled because of a procedural defect that occurred at the final stage of the decision and which affected only the manner in which it was adopted, for example lack of authentication, the annulment did not affect the validity of the measures taken preparatory to the decision before the defect was found.30 The general principle is that nullity is retroactive: once the act is annulled under Article 263 it is void ab initio.31 This principle can, however, cause hardship, particularly where the measure is a regulation, which has been relied on by many, and which may be the basis of later measures. This is the rationale for the second paragraph of Article 264, which allows the Court to qualify the extent of the nullity. It provides that the CJEU shall, if it considers this necessary, state which of the effects of the act it has declared void shall be considered as definitive. This has been used to limit the temporal effect of the Court’s ruling.32 Considerations of legal certainty will often be paramount in this respect. The CJEU will be inclined to apply the second paragraph of Article 264 in order to retain in force the contested measure until a new measure can be adopted in order to avoid the drastic consequences that may flow from retroactive nullity.33 The effects of an act may be maintained, in particular, where the immediate effects of its annulment would give rise

29  Case C-51/92 P Hercules Chemicals NV v Commission [1999] ECR I-4235; Cases T-305–307, 313–316, 318, 325, 328–329 and 335/94 Limburgse Vinyl Maatschappij NV and others v Commission [1999] ECR II-931. 30  Ibid; Case C-415/96 Spain v Commission [1998] ECR I-6993. 31  Case C-228/92 Roquette Frères SA v Hauptzollamt Geldern [1994] ECR I-1445, [17]; Cases T-481 and 484/93 Vereniging van Exporteurs in Levende Varkens v Commission [1995] ECR II-2941, [46]; Case T-171/99 Corus UK Ltd v Commission [2001] ECR II-2967, [50]; Case T-228/02 Organisation des Modjahedines du ­peuple d’Iran v Council [2006] ECR II-4665, [35]. 32  In addition to the power to limit the temporal effect of its rulings, the Court may also find that the ­illegality affects only part of the measure in question, which is severable from the remainder of the contested measure, Case C-295/07 P Commission v Département du Loiret and Scott SA [2008] ECR I-9363, [103]–[106]. 33  Case 51/87 Commission v Council (Generalized Tariff Preferences) [1988] ECR 5459, [21]–[22]; Case C-392/95 European Parliament v Council [1997] ECR I-3213, [25]–[27]; Case C-1159/96 Portugal v Commission [1998] ECR I-7379, [52]–[53]; Case C-445/00 Austria v Council [2003] ECR I-8549, [103]–[106]; Case C-93/00, European Parliament v Council [2001] ECR I-10119, [47]–[48].

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to serious negative consequences for the persons concerned and where the lawfulness of the act in question is contested, not because of its aim or content, but on grounds of lack of competence or infringement of an essential procedural requirement, including the fact that an incorrect legal basis was used for the contested act.34 Thus in Commission v Council35 the Court annulled part of a Regulation concerning staff salaries. However, if the Regulation had been annulled retroactively then the staff would not have been entitled to any salary increases until a new Regulation had been adopted. The Court therefore ruled that the Regulation should continue to have effect until a new Regulation had been promulgated. The consequences of retroactive nullity would have been far-reaching in European Parliament v Council.36 The ECJ found illegalities in relation to the budget for a particular financial year, but this decision was made when most of the period had elapsed. The need to ensure continuity in the public service of the EU, combined with legal certainty, led the ECJ to invoke the second paragraph of what is now Article 264 and declare those parts of the budget that should nonetheless be regarded as definitive. The need to limit the effects of nullity was equally apparent in Commission v European Parliament and Council.37 The ECJ annulled the application of the regulatory committee procedure to an environmental Regulation on the ground that it should prima facie have been the management committee procedure and the Council had not given adequate reasons for use of the former. The Commission, which had sought the annulment, argued that the effects of the Regulation should, for reasons of legal certainty, be maintained in force until its amendment. This was in order to protect measures passed pursuant to the regulatory committee procedure prior to this action. The ECJ accepted the imperative of legal certainty. The ECJ applied what is now Article 264 TFEU in rather different circumstances in Kadi.38 It found that a Community Regulation concerning the freezing of funds of suspected terrorists was invalid, because it infringed the applicant’s procedural rights. The ECJ nonetheless concluded that Article 264 justified maintenance of the measure in force for a three-month period, while a new measure could be enacted. This was because it might be decided after hearing the applicant that his assets should be frozen. If, however, the contested measure was held to be void in relation to the applicant then he might move his assets before a new measure could be enacted. The EU Courts will also be minded to limit the impact of nullity where this would defeat the very purpose of the Courts’ finding. Thus in Timex an anti-dumping duty 34  Cases C-124–125/13 European Parliament and European Commission v Council, EU:C:2015:790, [86]; Case C-113/14 Germany v European Parliament and Council, EU:C:2016:635, [81]; Case C-286/14 European Parliament v European Commission, EU:C:2016:183, [67]. 35  Case 81/72 [1973] ECR 575. 36  Case C-41/95 [1995] ECR I-4411, [43]–[45]; Case C-166/07 European Parliament v Council [2009] ECR I-7135, [72], [74]–[75]. 37  Case C-378/00 [2003] ECR I-937, [73]–[77]. 38  Cases C-402 and 415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, [373]–[376].

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was annulled because it was too low. The impact of this judgment would clearly not  have been enhanced by a finding of retroactive voidness and therefore the ECJ held that the existing measure should retain its validity until a new, higher duty was imposed.39 The ECJ will, by way of contrast, be less inclined to limit the temporal effect of its rulings where retroactive annulment does not deleteriously affect the rights of traders.40

(C)  Direct Actions: Article 266 TFEU We have seen that Article 266 TFEU provides that the institution whose act has been declared void, or whose failure to act has been declared contrary to the Treaty, shall be  required to take the necessary measures to comply with the CJEU’s judgment.41 The CJEU made clear in Eurologistik42 that the institutions have, subject to compliance with the principles set out later, broad discretion to decide the measures required to give effect to an annulling judgment or declaration of invalidity. Article 266 does not obviate the need for the EU institution to demonstrate that there is a legal basis on which it is competent to act.43 It does not, moreover, create an autonomous remedy, and cannot be used as the basis for the Court to issue orders to EU institutions.44 Thus to take Gondrand Frères45 as an example, the CFI ruled that it was not for the Union Courts to issue directions to the EU institutions, or assume the role assigned to  them, when a measure was annulled under Article  263. It was for the relevant EU institution to take the measures to give effect to the Court’s judgment, pursuant to  Article  266. It was not, therefore, open to the CFI to grant remission of an antidumping duty. Similarly in Holcim46 the applicant sought to recover the cost of bank charges incurred to guarantee the payment of a fine imposed by the Commission under Article 81 EC, after the imposition of the fine was annulled. The CFI held that this claim could not be 39  Case 264/82 Timex Corp v Council and Commission [1985] ECR 849, [32]. 40  Case C-239/01 Germany v Commission [2003] ECR I-10333, [78]. 41  A Toth, ‘The Authority of Judgments of the European Court of Justice: Binding Force and Legal Effects’ (1984) 4 YBEL 1, 49. 42  Cases C-283–284/14 CM Eurologistik GmbH v Hauptzollamt Duisburg, EU:C:2016:57, [76]. 43  Case C-361/14 P European Commission v Peter McBride, EU:C:2016:434, [35]–[39]. 44  Case C-127/13 P Strack v European Commission, EU:C:2014:2250, [146]; Case T-95/14 Iranian Offshore Engineering & Construction Co v Council, EU:T:2015:433, [27]. 45  Case T-104/02 Société française de transports Gondrand Frères SA v Commission [2004] ECR II-3211, [20]. See also Case T-67/94 Ladbroke Racing Ltd v Commission [1998] ECR II-1, [200]; Case T-126/99 Graphischer Maschinenbau GmbH v Commission [2002] ECR II-2427, [17]; Case T-125/01 Jose Marti Peix, SA v Commission [2003] ECR II-865, [42]; Case T-51/07 Agrar-Invest-Tatschl GmbH v Commission [2008] ECR II-2825, [27]–[28]; Case T-89/07 VIP Car Solutions SARL v European Parliament [2009] ECR II-1403, [112]; Case T-369/08 European Wire Rope Importers Association (EWRIA) v Commission [2010] ECR II-6283, [45]. 46  Case T-28/03 Holcim (Deutschland) AG v Commission [2005] ECR II-1357, [32]–[37], upheld on appeal Case C-282/05 P Holcim (Deutschland) AG v Commission [2007] ECR I-2941. See also Cases 191 and ­212–214/98 Atlantic Container Lines AB v Commission [2003] ECR II-3275, [1643]; Case T-224/00 Archer Daniels Midland Co and Archer Daniels Midlands Ingredients Ltd v Commission [2003] ECR II-2597, [356].

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based on what is now Article 266, since it did not constitute an autonomous remedy. The appropriate method of ensuring compliance with the obligation in Article 266 was by way of a further action under Article 263 or 265. It was not for the EU Court to substitute its view for that of the Commission, and decide the measures that the ­latter should have taken under Article 266, although it was open to the ECJ and CFI to  review such measures or the lack of them under Article  263 or 265. There may, therefore, be a further action under Article 263 or 265 where the applicant is dissatisfied with the measures taken pursuant to an act found to be void.47 An action based on Article 265 will be appropriate where the applicant claims that the Union institution failed, pursuant to Article 266, to take action in relation to other measures that were not challenged in the initial annulment action.48 The decision in CT Control is a corollary of these principles: in a direct action against an EU institution the ECJ will not rule on the ­obligations of national authorities that have implemented a Union act that has been annulled.49 While Article 266 does not establish an autonomous remedy it has nonetheless been interpreted broadly. There is a duty to put an end to the infringement within a reasonable period of time.50 Article 266 may involve eradication of the effects of the measure found to be void,51 and the taking of adequate steps to restore the applicant to its ­original position prior to the illegality.52 It may also require the Commission to refrain from adopting an identical measure. This was so in Asteris53 where the ECJ held that when a measure had been annulled, compliance with the judgment required the EU institution to have regard not only to the operative part of the judgment, but also to the grounds on which it was based, in order to identify the precise provision held to be illegal and the reasons underlying this finding. The primary obligation in such cases was for the EU institution to remedy the ­illegality through adoption of a measure replacing that which had been annulled. There could, however, said the ECJ in Asteris, be other obligations flowing from annulment. Thus, the new measure should contain no provisions having the same effect as that held to be illegal.54 Moreover, because annulment was retroactive to the date when the 47  Case T-387/94 Asia Motor France SA v Commission [1996] ECR II-961. 48  Cases T-297–298/01 SIC-Sociedade Independente de Comunicação SA v Commission [2004] ECR II-743, [32]. 49  Cases C-121–122/91 CT Control (Rotterdam) BV and JCT Benelux BV v Commission [1993] ECR I-3873, [55]–[57]. 50  Case C-21/94 European Parliament v Council (Road Taxes) (n 26) [33]. 51  Cases T-480 and 483/93 Antillean Rice Mills NV v Commission [1995] ECR II-2305; Case T-196/01 Thessalonikis v Commission [2003] ECR II-3987, [226]; Case T-307/01 Jean-Paul François v Commission [2004] ECR II-1669, [109]. 52  Case T-211/02 Tideland Signal Ltd v Commission [2002] ECR II-3781, [44]. 53  Cases 97, 99, 193 and 215/86 Asteris AE and Hellenic Republic v Commission [1988] ECR 2181. See also Case C-458/98 P Industrie des poudres sphériques v Council and Commission [2000] ECR I-8147, [81]; Case C-41/00 P Interporc Im- und Export GmbH v Commission [2003] ECR I-2125, [29]–[30]; Case T-447/05 Société des plantations de Mbanga SA (SPM) v Commission [2007] ECR II-1, [58]–[59]; Case T-301/01 Alitalia—Linee aeree italiane SpA v Commission [2008] ECR II-1753, [98]; Case T-348/07 Stichting Al-Aqsa v Council [2010] ECR II-4575, [36]–[43]; Case T-471/11 Éditions Odile Jacob SAS v European Commission, EU:T:2014:739, [54]–[57]. 54  See also Cases C-199-200/01 P IPK-München GmbH v Commission [2004] ECR I-4627, [83].

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annulled measure was enacted, it was incumbent on the Union institution to ensure that no other measure enacted after that date, but prior to the annulment, was tainted by the same defect as that held to be illegal. The res judicata effect of a ruling is, however, limited to points of law and fact actually decided in the case, and does not extend to an obiter dictum uttered by the deciding Court.55 In Asteris the measure annulled was a regulation. The precise implications of annulment may, however, differ where the measure annulled is a Decision and this has consequential implications for the duty on the EU institutions under Article 266. This is apparent from Kraft Products.56 The applicants had been fined by the Commission for taking part in the wood pulp cartel. They did not challenge this Commission Decision, which was, however, contested by other cartel members. The ECJ annulled the Commission’s cartel Decision and the Commission pursuant to Article  266 repaid most of the fines imposed on those who had taken part in this legal challenge. The applicants in Kraft Products argued that the Commission should also, pursuant to Article 266, repay fines imposed on them even though they had not taken part in the challenge to the cartel Decision. The Commission refused, and the applicants sought the annulment of this Decision. The ECJ found for the Commission. The original Commission Decision concerning the cartel was treated as a bundle of individual decisions addressed to each member of the cartel, with a fine being calculated for each member.57 The ECJ held that while the erga omnes authority of its earlier annulment ruling attached to both the operative part and the ratio decidendi of its judgment,58 it  did not however entail annulment of an act not challenged before the ECJ, even where it was alleged to be vitiated by the same illegality. The authority of an earlier annulment could not, therefore, apply to persons that were not parties to those proceedings ‘and with regard to whom the judgment cannot therefore have decided ­anything whatever’.59 It followed, said the ECJ, that while Article 266 required the EU institution to ensure that any act designed to replace the annulled act was not vitiated by the same irregularities as those identified in the judgment annulling the original act, it did not require the Commission at the request of interested parties to re-examine identical or similar decisions allegedly affected by the same irregularity, addressed to persons other than the applicants.60 Although Article 266 does not create an autonomous remedy or allow the EU Courts to issue directions to the Union institutions, the judgments may nonetheless provide specific guidance as to what the institutions should do to comply with the Court’s decision.61 Thus in Hirsch the CFI ruled, in line with established orthodoxy, that it could 55  Case T-471/11 Éditions Odile Jacob (n 53) [57]. 56  Case C-310/97 P Commission v AssiDomän Kraft Products AB [1999] ECR I-5363, [56]. 57  Ibid [49]. 58  Ibid [54]. 59  Ibid [55]. 60  Ibid [56]. See also Cases T-305–307, 313–316, 318, 325, 328–329 and 335/94 Limburgse Vinyl (n 29) [100]; Case T-211/02 Tideland (n 52) [44]; Case C-239/99 Nachi Europe GmbH v Hauptzollamt Krefeld [2001] ECR I-1197, [25]–[26]; Case T-304/02 Hoek Loos NV v Commission [2006] ECR II-1887, [60]; Case T-112/05 Akzo Nobel NV v Commission [2007] ECR II-5049, [32]. 61  Case T-310/01 Schneider Electric SA v Commission [2002] ECR II-4071, [465].

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not order the European Central Bank (ECB) to pay tuition fees or declare an entitlement for an educational allowance for the sons of an applicant. This would be to encroach on the prerogatives of the defendant institution, which was required under Article 266 to take the necessary steps to comply with the CFI’s judgment.62 The CFI upheld the applicants’ claim and stated that it was for the ECB to give effect to the ­judgment under Article 266 by modifying the scheme of education allowances in the light of the judgment, so that they were in accord with the principle of equal treatment, and by reviewing under this modified scheme the applicants’ request for an education allowance for their children.63 The CFI thereby gave fairly specific indications as to what was required of the ECB.

(D) Indirect Actions: The Analogous Application of Articles 264 and 266 A finding of invalidity pursuant to Article  267 TFEU is, in theory, different from a decision made pursuant to Article  263 TFEU. The former is addressed only to the national court which requested the ruling. However, the Court held in the ICC case64 that its rulings on Article 267 references concerning validity of Union acts have an erga omnes effect. These rulings provide a sufficient reason for any other national court to treat that act as void, although the national court may make a reference on the same point if it is unclear about the scope, grounds, or consequences of the original ruling. Moreover, the CJEU has applied the principles of Articles 264 and 266, which ­technically only operate in the context of Articles 263 and 265, by analogy to cases a­rising under Article 267. This has further eroded any distinction between the effects of a judgment given under Articles 263 and 267. The rationale for the application of Article 264 in the context of preliminary rulings was provided in Société de Produits de Maïs.65 The ECJ held that its power to impose temporal limits on the effects of a declaration that an EU act was invalid in the context of a preliminary ruling was justified by the need to ensure consistency of treatment between Article  263 and Article  267, which were the two methods for reviewing the legality of Union acts. It must, therefore, be possible to impose temporal limits on the effects of the invalidity of a Union regulation, irrespective of whether the action was brought under Article 263 or 267. The judicial discretion to decide, 62  Cases T-94, 152 and 286/01 Hirsch, Nicastro and Priesemann v ECB [2003] ECR IA-1, [15]. 63  Ibid [73]. 64  Case 66/80 International Chemical Corp v Amministrazione delle Finanze dello Stato [1981] ECR 1191. 65  Case 112/83 Société de Produits de Maïs v Administration des Douanes [1985] ECR 719. See also Case 145/79 SA Roquette Frères v France [1980] ECR 2917; Case 4/79 Société Coopérative ‘Providence Agricole de la Champagne’ v Office National Interprofessionnel des Céréales (ONIC) [1980] ECR 2823; Case 41/84 Pinna v Caisse d’allocations familiales de Savoie [1986] ECR 1; Case C-228/92 Roquette Frères (n 31); Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL v Conseil des ministres [2011] ECR I-773, [73], AG  Kokott; Cases C-92–93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen [2010] ECR I-11063, [93].

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pursuant to the second paragraph of Article 264, which specific effects declared void should nonetheless be considered as definitive, applied therefore in relation to preliminary rulings. It was for the Court, where it made use of this possibility under Article 267, to decide whether an exception to that temporal limitation of its judgment could be made in favour of the party that brought the action before the national court, or of any other trader that took similar steps before the declaration of invalidity, or whether, conversely, a declaration of invalidity applicable only to the future constituted an adequate remedy, even for traders who took action at the appropriate time with a view to protecting their rights. Considerations of legal certainty will be of decisive importance here, just as they are in direct actions. Such considerations involving all interests, p ­ ublic as well as private with a stake in the case, may well preclude calling into question the charging or payment of money made on the basis of the measure found invalid in respect of the period prior to the date of the judgment.66 The ECJ used similar reasoning in ONIC67 to justify the application of the principle underlying Article 266 in the context of Article 267. The obligation on the Union institutions to take the measures necessary to comply with the Court’s judgment applies therefore where the finding of invalidity is made pursuant to Article 267 just as much as when it is made under Article 263.68 The jurisprudence considered earlier on the application of Article 266 in the context of direct actions would by parity of reasoning also be applicable in the context of indirect actions.

(E) Assessment It is axiomatic that the interrelationship between courts and administration runs throughout administrative law. The precise nature of that interrelationship differs depending on the particular topic that is in issue. It is clear nonetheless that the consequence of illegality/invalidity raises such issues that are important both practically and theoretically. This is readily apparent from the preceding discussion. It is equally apparent that legal systems differ in their approach to the problems ­considered earlier. Thus, to take an example, the UK courts have generated much complex and confusing case law when dealing with the temporal effect of invalidity, but have shown no compunction in principle about issuing orders or directions to the administration resulting from a finding of invalidity.69 This stands in contrast to the position in EU law. The second paragraph of Article 264 has surely helped the EU Courts to deal with the problems of retroactive nullity, since it embodies an explicit discretionary power to determine that certain effects of a void measure shall be definitive. The Union Courts have on the whole made sensible use of 66  Case 41/84 Pinna (n 65) [28]; Case C-228/99 Silos e Mangimi Martini SpA v Ministero delle Finanze [2001] ECR I-8401, [35]. 67  Case 4/79 ONIC (n 65). 68  Ibid [44]. 69  P Craig, Administrative Law (Sweet & Maxwell, 8th edn, 2016) Chs 23, 25.

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this provision, taking proper account of the imperative of legal certainty in deciding whether to qualify the retroactive consequences of annulment. The approach embodied in Article 266 and its interpretation by the Union Courts reflects general civilian assumptions about remedies. Courts declare acts to be void and it is then for the relevant EU institution to take the measures necessary to comply with the Court’s judgment. It is not for the Court to issue specific instructions in this regard. If the successful claimant is dissatisfied with the action taken, or not taken, then recourse should be had to Articles 263 and 265 respectively. It is, however, as we have seen, open to the EU Courts, if they choose to do so, to give fairly specific ­guidance as to what should be done by the Union institutions pursuant to a finding of ­illegality/ invalidity. The judicial reluctance to exercise more formal powers in this respect may well be influenced not only by civilian assumptions concerning the roles of court and administration consequent on a finding of illegality, but also by factors that are especially pertinent in the EU context. Thus where a regulation is annulled the ‘necessary measures’ to comply with the Court’s judgment may not be immediately self-evident. There may be various ways in which the problem identified could be met, and these decisions are therefore best left to the EU administration, subject to the possibility of further recourse to the EU Courts should the person affected be dissatisfied with the outcome.

4  Damages Liability: Scope The discussion thus far has been concerned with the setting aside of EU action that is invalid or illegal. The applicant may, however, have suffered loss and seek redress. Article 340(2) TFEU lays down the test for actions against the EU. In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.

The basic limitation period for such actions is five years.70 The term ‘institutions’ has been interpreted broadly to cover not only those listed in Article 13 TEU, but also other EU bodies established by the Treaty that are intended to contribute to attainment of Union objectives.71 The EU Courts have rightly held that it would be contrary to principle if the EU, when it acts through a body established pursuant to the Treaty, could escape the consequences of Article 340(2). This coheres with 70  Art 46 of the Statute of the Court of Justice, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2008-09/statut_2008-09-25_17-29-58_783.pdf. For discussion as to when the period begins, see Case T-201/94 Kusterman v Council and Commission [2002] ECR II-415; Case T-261/94 Schulte v Council and Commission [2002] ECR II-441; Case C-282/05 P Holcim (n 46); Case C-51/05 P Commission v Cantina sociale di Dolianova Soc coop arl [2008] ECR I-5341. 71 Case C-370/89 SGEEM and Etroy v EIB [1992] ECR I-6211; Case T-209/00 Lamberts v European Ombudsman [2002] ECR II-2203; Case 234/02 P European Ombudsman v Frank Lamberts [2004] ECR I-2803.

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earlier authority holding the EU liable for acts performed by bodies to which the EU has delegated governmental functions.72 It should also be noted that EU legislation will often make specific provision for damages liability for agencies and the like.73 Thus the enabling regulations for agencies contain provisions identical to Article 340(2).74

5  Damages and Annulment It is clear that Article  340(2) leaves the CJEU considerable room for interpretation. It initially held in Plaumann75 that annulment of the relevant norm was a necessary condition precedent to using Article  340(2) TFEU. If this requirement had been retained then Article  340(2) would have been of little use, given the difficulty that ­non-privileged applicants faced in proving locus standi for annulment.76 This condition has, however, generally been discarded, and the action for damages is regarded as in­dependent and autonomous. The fact that the contested provision has not been annulled will not therefore normally bar a damages action.77 This general rule is, however, subject to exceptions. Thus a damages action will be held inadmissible if it is aimed at securing withdrawal of a measure that has become definitive where the damages action would in effect nullify the legal effects of that measure. This would be the case where the applicant sought payment in a damages action of an amount precisely equal to a duty paid by it pursuant to a measure that had become definitive.78 Subject to this caveat, a damages action can be pursued even if the relevant measure has not been annulled.

72  Case 18/60 Worms v High Authority [1962] ECR 195. 73  See, eg, Council Regulation (EC) 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes [2003] OJ L11/1, Art 21(1); Council Regulation 1210/90/EEC of 7 May 1990 on the establishment of the European Environment Agency [1990] OJ L120/1, Art 18. 74  See above, 174–5. 75  Case 25/62 Plaumann v Commission [1963] ECR 95. 76  See above, Ch 11. 77  Case 5/71 Aktien-Zuckerfabrik Schöppenstedt v Council [1971] ECR 975; Cases 9 and 11/71 Compagnie d’Approvisionnement de Transport et de Crédit SA et Grands Moulins de Paris SA v Commission [1972] ECR 391; Case T-178/98 Fresh Marine Co SA v Commission [2000] ECR II-3331, [45]–[49]; Case T-99/98 Hameico Stuttgart GmbH v Council and Commission [2003] ECR II-2195, [37]–[38]; Case 234/02 P Lamberts (n 71); Case T-47/02 Danzer and Danzer v Council [2006] ECR II-1779, [27]; Case T-193/04 Hans-Martin Tillack v Commission [2006] ECR II-3995, [97]–[98]. 78  Case 543/79 Birke v Commission [1981] ECR 2669, [28]; Cases C-199 and 200/94 Pesqueria VascoMontañesa SA (Pevasa) and Compañia Internacional de Pesca y Derivados SA (Inpesca) v Commission [1995] ECR I-3709, [27]–[28]; Case T-93/95 Laga v Commission [1998] ECR II-195; Case C-310/97 P Kraft (n 56) [59]; Case T-178/98 Fresh Marine (n 77) [50]; Cases T-44, 119 and 126/01 Eduardo Vieira Sa, Vieira Argentina SA and Pescanova SA v Commission [2003] ECR II-1209, [214]–[216]; Case T-47/02 Danzer (n 77) [28]; P  Mead, ‘The Relationship between an Action for Damages and an Action for Annulment: The Return of Plaumann’ in T Heukels and A McDonnell (eds), The Action for Damages in Community Law (Kluwer Law International, 1997) Ch 13.

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6  Damages Liability: Discretionary Acts The EU Courts have developed different tests for liability depending upon whether the decision-maker has discretion or not.

(A) The Schöppenstedt Test The Schöppenstedt case79 established the general test for recovery in those cases where the decision-maker has some meaningful discretion. In the present case the non-contractual liability of the Community presupposes at the very least the unlawful nature of the act alleged to be the cause of the damage. Where ­legislative action involving measures of economic policy is concerned, the Community does not incur non-contractual liability for damage suffered by individuals as a consequence of that action, by virtue of the provisions contained in Article 215, second paragraph, of the Treaty, unless a sufficiently flagrant violation of a superior rule of law for the protection of the individual has occurred. For that reason the Court, in the present case, must first consider whether such a violation has occurred.

The Schöppenstedt test will most commonly apply in relation to EU legislation where there is some significant discretion, as exemplified by regulations and directives made under the Common Agricultural Policy (CAP). It is, however, clear that the test will also be applicable where the contested provision is not legislative in form, but where the primary decision-maker nonetheless possessed some real discretion. This is apparent from Bergaderm.80 The applicant sought damages for losses suffered by the passage of a Directive which prohibited the use of certain substances in cosmetics. It claimed that the Directive should be regarded as an administrative act, since it only concerned the applicant, and therefore it should suffice to show illegality per se, rather than having to prove a sufficiently serious breach. The ECJ rejected the argument, stating that ‘the general or individual nature of a measure taken by an institution is not a decisive criterion for identifying the limits of the discretion enjoyed by the institution in question’.81 The same point emerged from Antillean Rice.82 The applicants challenged aspects of the basic Council Decision which governed the relationship between the overseas countries and territories (OCTs) and the EC. They also challenged a Commission

79  Case 5/71 Aktien-Zuckerfabrik Schöppenstedt (n 77) [11]. 80  Case C-352/98 P Laboratoires pharmaceutiques Bergaderm SA and Goupil v Commission [2000] ECR I-5291. 81  Ibid [46]. See also Case C-472/00 P Commission v Fresh Marine A/S [2003] ECR I-7541, [27]; Case C-312/00 P Commission v Camar Srl and Tico Srl [2002] ECR I-11355, [55]; Case C-440/07 P Commission v Schneider Electric SA [2009] ECR I-6413, [160]–[161]; Case T-16/04 Arcelor SA v European Parliament and Council [2010] ECR II-211, [141]–[143]. 82  Case C-390/95 P Antillean Rice Mills NV v Commission [1999] ECR I-769, [56]–[62]; Case C-312/00 P Camar (n 81) [55]–[56].

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Decision, which introduced safeguard measures for rice originating in the Dutch Antilles, for breach of the Council Decision. The applicants argued that the CFI was wrong to have required proof of a sufficiently serious breach, since the contested ­measures were Decisions. The ECJ rejected the claim. It held that the Commission enjoyed a wide discretion in the field of economic policy, which meant that liability was ­dependent on showing a sufficiently serious breach of a superior rule of law for the protection of the individual. The fact that the contested measure took the form of a Decision was not decisive, since the test for damages liability depended on the nature of the measure in question and not its form. It was clear prior to the Lisbon Treaty that whether an act is subject to the Schöppenstedt test will be dependent on the substance of the measure, and not the legal form in which it is expressed.83 This means that it is always open to an applicant in an Article 340(2) action to claim that the measure, although called a regulation, was in reality an administrative decision.84 The converse is also true: it is possible for a measure to be a decision for some purposes, but to be a legislative act for the purposes of Article 340(2).85 Moreover, the mere fact that an applicant has a sufficient interest for a challenge under Article 263 TFEU will not necessarily mean that the measure is not legislative for the purposes of the Article 340(2) action.86 It is, however, clear after the Lisbon Treaty that the definition of a legislative act is a matter of form: any act that is passed in accord with a legislative procedure is a ­legislative act for the purposes of the Lisbon Treaty, and acts not enacted in accord with such a procedure do not qualify as legislative acts, irrespective of their substance.87

(B)  Superior Rule of Law The applicant must show, in accord with the test in the Schöppenstedt case,88 that the damage resulted from breach of a superior rule of law for the protection of the individual. Superior sometimes seems to be equated with ‘important’, and sometimes with a more formalistic conception of one rule being hierarchically superior to another. It is apparent from the case law that three differing types of norm can, in principle, qualify in this respect.89 83  Case C-390/95 P Antillean Rice (n 82) [60]; A Arnull, ‘Liability for Legislative Acts under Article 215(2) EC’ in Heukels and McDonnell (n 78) 131–6. 84  Case C-119/88 Aerpo and Others v Commission [1990] ECR I-2189; Case T-472/93 Campo Ebro and Others v Commission [1995] ECR II-421. 85  Cases T-481/93 and 484/93 Vereniging van Exporteurs in Levende Varkens v Commission (Live Pigs) [1995] ECR II-2941; Case C-390/95 P Antillean Rice (n 82) [62]. 86  Cases T-480 and 483/93 Antillean Rice Mills v Commission [1995] ECR II-2305; Case C-390/95 P Antillean Rice (n 82) [62]. 87  Art 289 TFEU. 88  Case 5/71 Aktien-Zuckerfabrik Schöppenstedt (n 77) [11]. 89  Rules of the World Trade Organization (WTO) cannot generally be relied on in this context, Case C-149/96 Portugal v Council [1999] ECR I-8395; Case T-18/99 Cordis Obst und Gemüse Grosshandel GmbH v Commission [2001] ECR II-913; Case C-377/02 Leon Van Parys NV v BIRB [2005] ECR I-1465; Case T-383/00

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First, it is clear that many Treaty provisions fall within this category. A commonly cited ground in cases under Article 340(2) is the ban on discrimination contained in Article 40(2) TFEU, in the context of the CAP. This is not surprising, given that many of the damages actions are brought pursuant to regulations made under the CAP.90 A second ground is that a regulation is in breach of a hierarchically superior regulation.91 The regulations which are made pursuant to, for example, the CAP, may be ‘one-off ’ provisions, but they may also relate to a prior network of regulations on the same topic. There may, therefore, be regulations which are made pursuant to more general regulations on the same topic. A third ground that has been held capable of sustaining the claim in damages is where the EU legislation is held to infringe certain general principles of law such as proportionality, legal certainty, or legitimate expectations.92 The principle of sound administration does not, in itself, confer rights upon individuals, except where it constitutes the expression of specific rights, such as the right to have affairs handled impartially, fairly, and within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions, for the purposes of Article 41 of the Charter of Fundamental Rights.93 It is possible to rely on more than one ground, as exemplified by the CNTA case.94 The applicant claimed that it had suffered loss because a Regulation had withdrawn certain monetary compensatory amounts (MCAs). The system of MCAs was designed to compensate traders for fluctuations in exchange rates. The Regulation abolished the MCAs for colza and rape seeds because the Commission decided that the market ­situation had altered, thereby rendering the MCAs unnecessary. The applicant had, however, entered into contracts before the Regulation was passed, even though these contracts were to be performed after the ending of the scheme. It argued that it had made the contracts on the assumption that the MCAs would still be payable. The sudden termination of the system in this area, without warning, was said by the applicant to have caused it loss. The applicant argued that the Regulation withdrawing the MCAs infringed the more basic Regulation governing this area. The ECJ rejected this argument on the facts. It held, however, that the withdrawal with immediate effect and without warning had infringed the principle of legitimate expectations, which was a superior rule of law.95

Beamglow Ltd v European Parliament, Council and Commission [2005] ECR II-5459; Cases C-120–121/06 P FIAMM v Council and Commission [2008] ECR I-6513, [111]–[112]. 90  See, eg, Case 43/72 Merkur-Außenhandels-GmbH v Commission [1973] ECR 1055; Case 153/73 Holtz und Willemsen GmbH v Commission [1974] ECR 675. 91  Case 74/74 Comptoir National Technique Agricole (CNTA) SA v Commission [1975] ECR 533. 92  The duty to give reasons does not appear to qualify as a superior rule of law for these purposes: Case 106/81 Julius Kind KG v EEC [1982] ECR 2885; Case C-119/88 Aerpo (n 84) [19]; Cases T-466, 469, 473, 474 and 477/93 O’Dwyer v Council [1996] ECR II-207, [72]; Cases T-64 and 65/01 Afrikanische Frucht-Compagnie GmbH v Council and Commission [2004] ECR II-521, [128]. 93  Case T-193/04 Tillack (n 77) [116]–[117]. 94  Case 74/74 CNTA (n 91). 95  See above, 628–9.

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(C)  Flagrant Violation/Serious Breach: The Early Case Law It is clear from Schöppenstedt that the individual must prove not only that there has been breach of a superior rule of law for the protection of the individual, but also that the breach was flagrant. This has been the most important control device used by the Courts. Its meaning has altered over time. The older case law revealed two senses of the term flagrant violation/serious breach. In some cases this condition was used to deny recovery where the loss was not deemed to be sufficiently serious, as exemplified by Bayerische HNL.96 In other cases the  ECJ interpreted the requirement of flagrant violation to refer to the seriousness of  the breach, as exemplified by Amylum,97 where recovery was denied because the institutional error did not verge on the arbitrary.98 The conditions in Bayerische HNL and Amylum were cumulative. An applicant had to show both that the effects of the breach were serious, in terms of the quantum of loss suffered, and also that the manner of the breach was arbitrary. These hurdles were not easy to surmount, particularly the second. It was rare for the EU to promulgate a regulation that was wholly unrelated to the general ends it was entitled to advance in, for example, the agricultural sphere. The mistakes more often occurred in the ­carrying out of legitimate policies in an erroneous manner. Claimants did, however, occasionally win.99

(D)  Flagrant Violation/Serious Breach: The Current Test There have been significant shifts in the ECJ’s later jurisprudence. Thus, the possibility of a large number of applicants claiming damages as a result of the same illegality will not preclude an Article  340(2) action,100 and arbitrariness is no longer required for liability.101 The major shift came in Bergaderm.102 When considering state liability in damages the ECJ in Brasserie du Pêcheur/Factortame103 held that the test should not be different from that used to determine the EU’s liability under Article  340(2). This cross-­ fertilization between the test for the EU’s damages liability and that of the Member States was carried further in Bergaderm, where the ECJ completed the circle by explicitly drawing on the factors mentioned in Brasserie du Pêcheur/Factortame to determine the meaning of flagrant violation for the purposes of liability under Article 340(2). 96  Cases 83, 94/76, 4, 15 and 40/77 Bayerische HNL Vermehrungsbetriebe GmbH & Co KG v Council and Commission [1978] ECR 1209. 97  Cases 116 and 124/77 Amylum NV and Tunnel Refineries Ltd v Council and Commission [1979] ECR 3497. 98  Ibid [19]. 99  Cases 64, 113/76, 167, 239/78, 27, 28 and 45/79 Dumortier Frères SA v Council [1979] ECR 3091. 100  Cases C-104/89 and 37/90 Mulder v Council and Commission [1992] ECR I-3061. 101  Case C-220/91 P Stahlwerke Peine-Salzgitter AG v Commission [1993] ECR I-2393; Case C-282/90 Industrie-en Handelsonderneming Vreugdenhil BV v Commission [1992] ECR I-1937, [17]–[19]. 102  Case C-352/98 Laboratoires pharmaceutiques Bergaderm (n 80). 103  Cases C-46 and 48/93 Brasserie du Pêcheur SA v Germany; R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029.

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Thus in Bergaderm the ECJ held that the rules for liability under Article 340(2) take account, as do those in relation to state liability in damages, of ‘the complexity of ­situations to be regulated, difficulties in the application or interpretation of the texts and, more particularly, the margin of discretion available to the author of the act in question’.104 It affirmed that the test for damages liability was in general the same ­irrespective of whether the Union or the Member State inflicted the loss: the rule of  law  infringed must be intended to confer rights on individuals; there must be a ­sufficiently serious breach; and there had to be a direct causal link between the breach and the damage.105 This means that under Article 340(2) the seriousness of the breach will be ­dependent upon factors articulated in the case law on state liability such as the relative clarity of  the rule which has been breached; the measure of discretion left to the relevant authorities; whether the error of law was excusable or not; and whether the breach was intentional or voluntary. Where the Member State or the EU institution has only ­considerably reduced, or even no discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach. The decisive issue for the purposes of damages liability is not the individual or general nature of the act adopted, but the discretion available to the institution when it was adopted. This approach has been followed in later cases.106 Thus in Arcelor107 the claimant sought damages for loss caused by a directive concerned with greenhouse gas emissions. The CFI reiterated the test from Bergaderm and held that it was for the claimant to show the serious breach. This required it to show a manifest and serious failure to have regard for the limits of the broad discretion enjoyed by the Union legislature when exercising its environmental powers. It emphasized the breadth of the discretionary power in this area, stating that it required the Union ­legislature to evaluate ‘ecological, scientific, technical and economic changes of a complex and uncertain nature’ and to balance ‘the various objectives, principles and interests set out in Article 174 EC’.108 The same point is evident in My Travel,109 which concerned EU competition law. The CFI held that the concept of a serious breach to establish non-contractual liability did not comprise all errors, even if of some gravity, in the application of competition rules, which were ‘complex, delicate and subject to a considerable degree of discretion’.110 Thus the mere fact that the CFI had annulled a Commission decision holding a 104  Case C-352/98 P Laboratoires pharmaceutiques Bergaderm (n 80) [40]. 105  Ibid [41]–[42]. 106  Case C-472/00 P Fresh Marine A/S (n 81); Case C-312/00 P Camar (n 81); Case C-198/03 P Commission v CEVA Santé Animale SA and Pfizer Enterprises Sàrl [2005] ECR I-6357; Case C-282/05 P Holcim (n 46); Case T-304/01 Julia Abad Pérez v Council of the European Union and Commission [2006] ECR II-4857; Case T-364/03 Medici Grimm KG v Council [2006] ECR II-79; Cases T-3/00 and 337/04 Athanasios Pitsiorlas v Council and ECB [2007] ECR II-4779; Case T-94/98 Alfonsius Alferink v Commission [2008] ECR II-1125; Case T-79/13 Accorinti v European Central Bank, EU:T:2015:756, [64]–[67]; Cases C-8–10/15 Ledra Advertising Ltd v European Commission and European Central Bank, EU:C:2016:701, [63]–[64]. 107  Case T-16/04 Arcelor (n 81). 108  Ibid [143]; Case T-31/07 Du Pont de Nemours (France) SAS v Commission, EU:T:2013:167. 109  Case T-212/03 My Travel Group plc v Commission [2008] ECR II-1967. 110  Ibid [40].

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c­ oncentration incompatible with the common market could not be equated to the finding of a sufficiently serious breach. Mere errors of assessment in the context of an annulment action could not suffice to show a manifest and grave infringement of the limits imposed on the Commission’s discretion for the purposes of non-contractual liability, since this would inhibit the Commission as a regulator of competition.111 The CFI emphasized the complex evaluative assessments that had to be made by the Commission in this area, and the discretion it possessed as to how to determine whether a concentration was in breach of the relevant EU legal rules.112 Commentators might well have differing views concerning the current test. Its rationale is that the EU institutions often have to make difficult discretionary choices. A test for liability based on illegality per se would render the decision-makers susceptible to a potentially wide liability, and would run the risk that the Court might ‘second-guess’ the decisions made by the Council and Commission as to how the variables concerning the discretion should be balanced in any particular instance. Such a strict test for damages liability might also deter the Courts from finding illegality. If this is accepted, the crucial issue is how the phrase ‘flagrant violation’ or ‘serious breach’ should be interpreted. The interpretation in the early case law required something akin to arbitrary action and this was too restrictive. The approach in Brasserie du Pêcheur/Factortame, which was adopted in Bergaderm, is to be welcomed. Where loss has been caused by sufficiently serious illegal action the applicant should not, however, have to prove that the loss was particularly serious. The applicant should have to show that the illegality caused the loss, but there should be no requirement over and above this. The ordinary ‘economics of litigation’ should ensure that claims are, in general, only pursued when it is economically worthwhile to do so. There are, however, instances where liability continues to be denied, in part at least, because the loss did not exceed the economic risk inherent in the activity undertaken by the applicant.113

7  Damages Liability: Non-Discretionary Acts (A)  The Test The test for liability for non-discretionary acts has been subtly altered in the recent jurisprudence. The traditional approach, prior to Bergaderm, was that where the ­contested measure did not entail any meaningful discretionary choice then it would normally suffice to show illegality, causation, and damage.114 Discretionary measures, 111  Ibid [40]–[43]. 112  Ibid [83]. 113  Case T-57/00 Banan-Kompaniet AB and Skandinaviska Bananimporten AB v Council and Commission [2003] ECR II-607, [70]. 114  Cases 44–51/77 Union Malt v Commission [1978] ECR 57; Cases T-481 and 484/93 Live Pigs (n 85); Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, [16]; Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199; Cases C-258 and 259/90 Pesquerias de Bermeo SA and Naviera Laida SA v Commission [1992] ECR I-2901; Case T-336/94 Efisol v Commission [1996] ECR II-1343, [30]; Case T-178/98 Fresh Marine

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by way of contrast, would be subject to the further requirement of showing a sufficiently serious breach. The more recent jurisprudence continues to distinguish between ­discretionary and non-discretionary acts, but does so within the unitary framework of the sufficiently serious breach test. The modern formulation, set out in Bergaderm and applied in subsequent cases, is as follows. It is necessary for the applicant to prove that the rule of law infringed was intended to confer rights on individuals, there must be a sufficiently serious breach, and a causal link between the breach and the resultant harm. Where however the EU institution has considerably reduced or no discretion, the mere infringement of EU law  may be sufficient to establish the existence of the sufficiently serious breach.115 The CJEU therefore continues to distinguish between the test for liability for discretionary and non-discretionary acts, but within the framework of the sufficiently serious breach test. Where there is no or considerably reduced discretion, the mere breach of EU law may suffice to establish the existence of the sufficiently serious breach.

(B)  Discretionary and Non-Discretionary Acts It follows, as we have seen, from Bergaderm116 and Antillean Rice117 that the general or  individual nature of the measure is not a decisive criterion when identifying the limits of discretion possessed by an institution. This is correct in principle. Many administrative measures involve discretionary choices that are just as difficult as those made in the context of legislative action,118 and the line between the two may be ­difficult to draw. This is exemplified by Schröder.119 The CFI held that in relation to administrative action any infringement of law constitutes illegality giving rise to damages liability. The CFI was, however, willing to consider whether the challenged norms, which were Commission Decisions, really were administrative or legislative. The Commission Decisions were made pursuant to a Directive dealing with veterinary checks applicable to live trade in animals. These Decisions imposed a ban on the export of pigs from (n 77) [54]; Cases T-79/96, 260/97 and 117/98 Camar Srl and Tico Srl v Commission [2000] ECR II-2193, [204]–[205]; Case T-333/03 Masdar (UK) Ltd v Commission [2006] ECR II-4377, [59]–[62]. 115  Case C-352/98 P Laboratoires pharmaceutiques Bergaderm (n 80) [42]–[44]; Case C-472/00 P Fresh Marine A/S (n 81) [26]–[27]; Case C-312/00 P Camar (n 81) [54]–[55]; Cases T-198/95, 171/96, 230/97, 174/98 and 225/98 Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co v Commission [2001] ECR II-1975, [134]– [136]; Case T-283/02 EnBW Kernkraft GmbH v Commission [2005] ECR II-913, [87]; Case T-139/01 Comafrica SpA and Dole Fresh Fruit Europe & Co Ltd v Commission [2005] ECR II-409, [142]; Case T-94/98 Alfonsius Alferink (n 106); Case T-16/04 Arcelor (n 81) [141]; Case C-440/07 P Schneider (n 81) [160]; Case T-79/13 Accorinti (n 106) [67]. 116  Case C-352/98 P (n 80) [46]; Case T-178/98 Fresh Marine (n 77) [57]. 117  Case C-390/95 P Antillean Rice (n 82) [56]–[62]. 118  See, eg, in the UK context, X (Minors) v Bedfordshire CC [1995] 2 AC 633. 119  Case T-390/94 Aloys Schröder v Commission [1997] ECR II-501; Cases T-458 and 523/93 ENU v Commission [1995] ECR II-2459; Case T-178/98 Fresh Marine (n 77) [57]; Case T-79/96 Camar Srl (n 114) [206]; Case C-64/98 Petrides Co Inc v Commission [1999] ECR I-5187, [26]–[28].

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Germany because of swine fever. The CFI decided that they were legislative because of their generalized application, their discretionary nature, and the need to balance the free movement of animals with the protection of health. Liability could therefore only be incurred if there was a manifest and serious breach of a superior rule of law. The same approach is evident in Antillean Rice:120 the sufficiently serious breach test should be applied, even though the subject matter of the damages action was a Commission Decision, since this Decision was made in an area of economic policy where the Commission had broad discretion. It was the nature of the measure, and not its legal form, that was determinative of the test to be applied in a damages action.

(C)  The Meaning of Illegality It should also be recognized that even where the EU Courts decide that there is no meaningful discretion, and therefore that the mere infringement of EU law may suffice to establish a sufficiently serious breach, there may still be issues concerning the meaning of illegality. There are judicial statements that in the field of administrative action any infringement of Union law constitutes illegality for these purposes.121 It is, m ­ oreover, possible to list a variety of errors that might lead to liability: failure to gather the facts before reaching a decision, taking a decision based on irrelevant factors, failure to accord appropriate procedural rights to certain individuals before making a decision, and inadequate supervision of bodies to whom power has been delegated. The mere proof of such an error will not, however, always ensure success in a damages action. The Court may construe illegality narrowly, or define it so as to preclude l­ iability unless there has been some culpable error, or something equivalent thereto. This is exemplified by Richez-Parise.122 The applicants were Community officials who had been given incorrect information concerning their pensions. The information given was based on an interpretation of the relevant Regulation, which was believed to be correct at that time. The department which gave the information later had reason to believe that its interpretation of the Regulation was incorrect, but no immediate steps were taken to inform the applicants. This was done only at a later stage, by which time the applicants had already committed themselves as to the way in which they would take their pension entitlements. The ECJ held that the adoption of the incorrect interpretation did not constitute in itself a wrongful act for damages liability, but that the department’s delay in rectifying their interpretation was such as to render the EU ­liable. We see the same point in Fresh Marine.123 The applicant sought damages because the Commission had erroneously decided that the company was in breach of an undertaking it had given in relation to the dumping of salmon. The CFI held that a mere infringement of EU law would suffice for liability, because the alleged error did not involve complex discretionary choices by the Commission. However, it then defined 120  Case C-390/95 P Antillean Rice (n 82). 121  Case T-79/96 Camar Srl (n 114) [205]. 122  Cases 19, 20, 25 and 30/69 Denise Richez-Parise v Commission [1970] ECR 325. 123  Case T-178/98 (n 77) [61].

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the relevant error leading to illegality to be lack of ordinary care and diligence by the Commission, and took account of the applicant’s contributory negligence.124

8  Damages Liability: Causation and Damage An applicant must show causation and damage in any action, irrespective of whether the contested measure is discretionary or non-discretionary in nature.

(A) Causation Causation can give rise to difficult problems in any legal system where recovery is sought for monetary loss. The EU is no exception in this respect. Claims for damages have often fallen at this hurdle. Toth provides a succinct explanation of the difficulties facing applicants in this respect.125 [T]he establishment of the necessary causality may give rise to difficult problems in practice. This is particularly so in the field of economic and commercial relations where the cause of an event can usually be traced back to a number of factors, objective as well as subjective, operating simultaneously or successively and producing direct as well as i­ndirect effects. Broadly speaking, it may be said that there is no causality involving liability where the same result would have occurred in the same way even in the absence of the wrongful Community act or omission in question. The converse proposition, i. e., that the requisite causality exists whenever it can be shown that the damage would not have occurred w ­ ithout  the Community action, is, however not always correct. Although in theory it is true that any circumstance, near or remote, without which an injury would not have been produced may be considered to be its cause, the fact that a Community act or omission is one only of several such circumstances may not in itself be sufficient to establish a causal connection entailing non-contractual liability. For that purpose, the causality must be ‘direct, immediate and exclusive’ which it can be only if the damage arises directly from the conduct of the institutions and does not depend on the intervention of other causes, whether positive or negative.

There is a causal link for the purposes of the second paragraph of Article 340 where there is a certain, direct causal nexus between the fault committed by the institution concerned and the injury pleaded, the burden of proof of which rests on the ­applicants.126 The difficulties of proving that it was the Union action which caused the loss can be exemplified by Dumortier.127 The case concerned losses suffered as a result of the ­discriminatory abolition of certain production refunds. Some applicants claimed that 124  Ibid [57]–[61], [82]; Cases T-198/95, 171/96, 230/97, 174/98 and 225/98 Comafrica (n 115) [144], [149]. 125  A Toth, ‘The Concepts of Damage and Causality as Elements of Non-Contractual Liability’ in Heukels and McDonnell (n 78) 192. 126  Case T-304/01 Julia Abad Pérez (n 106); Cases T-252 and 271–272/07 Sungro SA v Council and Commission [2010] ECR II-55, [47]. 127  Cases 64, 113/76, 167, 239/78, 27, 28 and 45/79 Dumortier Frères SA v Council [1979] ECR 3091.

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they should be compensated because they were forced to close their factories. The ECJ rejected the claim, stating that ‘even if it were assumed that the abolition of the refunds exacerbated the difficulties encountered by those applicants, those difficulties would not be a sufficiently direct consequence of the unlawful conduct of the Council to ­render the Community liable to make good the damage’.128 Similarly in Scan Office Design the applicant failed in its damages claim, because although it had established some serious faults by the Commission in procurement procedure, it could not show that it should have been awarded the contract.129 The applicant must show not only that the Union action caused the loss,130 but also that the chain of causation has not been broken by either the Member State or the  applicant. The ECJ has held that where the loss arises from an independent or ­autonomous act by the Member State, the EU is no longer liable.131 If, however, this conduct has been made possible by an illegal failure of the Commission to exercise its ­supervisory powers, then this failure will be considered to be the cause of the damage.132 Similarly, the EU will be liable where it committed the wrong, and hence any damage caused by implementation of the invalid EU act by national authorities that  had no discretion will be attributable to the Union.133 There may be instances, ­considered later, where both the EU and the Member State are responsible. It is not entirely clear what type of conduct by the applicant will break the chain of causation. Negligence, or contributory negligence, will suffice either to defeat the claim or to reduce the damages.134 If the individual ought to have foreseen the possibility of certain events which might cause loss, then the possibility of claiming damages will be diminished or lost.135 The ECJ has also encouraged individuals who believe that a wrongful act of the EU has caused loss to challenge the measure via Article 267.136 It is now clear from Pérez137 that where the illegality consists of alleged omissions by the EU institutions, those omissions may be regarded as a direct and certain cause of

128  Ibid [21]; Case C-419/08 P Trubowest Handel GmbH and Viktor Makarov v Council and Commission, 18 March 2010. 129  Case T-40/01 Scan Office Design SA v Commission [2002] ECR II-5043; Cases T-3/00 and 337/04 Athanasios Pitsiorlas (n 106); Case T-42/06 Bruno Gollnisch v European Parliament [2010] ECR II-1135, [110]. 130  Cases C-363–364/88 Finsider v Commission [1992] ECR I-359, [25]; Case T-57/00 Banan-Kompaniet (n  113) [40]; Case T-333/01 Karl Meyer v Commission [2003] ECR II-117, [32]; Case T-673/15 Guardian Europe Sàrl v European Union, EU:T:2017:377, [75]–[76]; Case T-479/14 Kendrion NV v European Union, represented by the Court of Justice of the European Union, EU:T:2017:48, [64]–[66]. 131  Case 132/77 Société pour l’Exportation des Sucres SA v Commission [1978] ECR 1061, 1072–3; Case T-261/94 Schulte v Commission [2002] ECR II-441, [57]. 132  Cases 9 and 12/60 Vloeberghs v High Authority [1961] ECR 197, 240; Case 4/69 Alfons Lütticke GmbH v Commission [1971] ECR 325, 336–8. 133  Case T-210/00 Établissements Biret et Cie SA v Council [2002] ECR II-47, [36]–[37]. 134  Case 145/83 Adams v Commission [1985] ECR 3539, 3592; Case T-178/98 Fresh Marine (n 77). 135  Case 59/83 SA Biovilac NV v EEC [1984] ECR 4057; Case T-514/93 Cobrecaf v Commission [1995] ECR  II-621, 643; Case T-572/93 Odigitria v Council and Commission [1995] ECR II-2025, 2051–2; Case T-184/95 Dorsch Consult [1998] ECR II-667. 136  Cases 116 and 124/77 Amylum (n 97). 137  Case T-304/01 Julia Abad Pérez (n 106); Case T-138/03 ÉR (n 177).

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the damage claimed only if it is demonstrated that, if those institutions had adopted the measures which the applicant blames them for not taking, that damage would probably not have occurred. Acts and omissions by national authorities and private operators may, moreover, prevent a finding of a direct causal link between the alleged unlawful omissions by the Union institutions and the damage claimed.

(B) Damage The general objective when awarding compensation for loss in the context of noncontractual liability is to provide restitution for the victim, in the sense of placing the  victim in the situation that would have pertained if the wrong had not been ­committed.138 It is nonetheless clear that while Article 340(2) speaks of the duty of the EU to make good ‘any damage’, losses will only be recoverable if they are certain and specific, proven and quantifiable.139 While the damage claimed must in general be certain, the Court held in Kampffmeyer that it is possible to maintain an action ‘for imminent damage foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed’.140 The rationale was that it might be necessary to pursue an action immediately in order to prevent even greater damage. The idea that the damage suffered must be specific, in the sense that it affects the applicant’s interests in a special and individual way, is found in various guises in ECJ decisions. Thus, in Bayerische HNL the Court emphasized that the effects of the regulation did not exceed the bounds of economic risk inherent in the activity in question.141 Similar themes concerning the special nature of the burden imposed on a particular trader, or group of traders, can be found in the case law concerning the possible recovery for lawful governmental action.142 The question whether an applicant should have to prove abnormal or special damage in a case concerning unlawful EU action has already been discussed. The applicant will have the onus of proving that the damage occurred. In general the individual will have to show that the injury was actually sustained.143 This may 138  Case C-308/87 Grifoni v EAEC [1994] ECR I-341, [40]; Cases C-104/89 and 37/90 Mulder and others v Council and Commission [2000] ECR I-203, [51], [63]; Case T-260/97 Camar Srl v Council [2005] ECR II-2741, [97]. A trade association has the right to bring proceedings for damages under Art 340 TFEU only where it is able to assert in law either a particular interest of its own which is distinct from that of its members or a right to compensation which has been assigned to it by others, Case T-304/01 Julia Abad Pérez (n 106). 139  Toth (n 125) 180–91; Case T-139/01 Comafrica (n 115) [163]–[168]; Case T-99/98 Hameico Stuttgart (n  77) [67]; Case C-243/05 P Agraz, SA and Others v Commission [2006] ECR I-10833; Cases T-3/00 and 337/04 Athanasios Pitsiorlas (n 106); Case T-452/05 Belgian Sewing Thread (BST) NV v European Commission [2010] ECR II-1373, [163]–[168]; Case C-45/15 P Safa Nicu Sepahan Co v Council, EU:C:2017:402, [61]–[62]. 140  Cases 56–60/74 Kampffmeyer v Commission and Council [1976] ECR 711, 741; Case T-79/96 Camar Srl (n 114) [207]; Case T-260/97 Camar Srl (n 138) [91]; Case T-279/03 Galileo International Technology LLC v Commission [2006] ECR II-1291, [123]. 141  Cases 83, 94/76, 4, 15 and 40/77 Bayerische HNL (n 96). 142  See below, 751–2. 143  Case 26/74 Roquette Frères v Commission [1976] ECR 677, 694, AG Trabucchi.

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not be easy.144 Subject to this caveat, losses will take account of the effluxion of time between the event causing the damage and the date of payment, and hence the fall in the value of money through inflation will be factored into the award,145 and so too will default interest from the date of the judgment establishing the duty to make good the damage.146 The damage must also be quantifiable. In order to decide whether the loss is indeed quantifiable, one needs to know what types of damage are recoverable. Advocate General Capotorti put the matter in the following way:147 It is well known that the legal concept of ‘damage’ covers both a material loss stricto sensu, that is to say, a reduction in a person’s assets, and also the loss of an increase in those assets which would have occurred if the harmful act had not taken place (these two alternatives are known respectively as damnum emergens and lucrum cessans). . . . The object of ­compensation is to restore the assets of the victim to the condition in which they would have been apart from the unlawful act, or at least to the condition closest to that which would have been produced if the unlawful nature of the act had not taken place: the ­hypothetical nature of that restoration often entails a certain degree of approximation. . . . These general remarks are not limited to the field of private law, but apply also to the liability of public authorities, and more especially to the non-contractual liability of the Community.

The CJEU will grant damages for losses actually sustained and will exceptionally award for non-material damage.148 It is willing in principle also to give damages for lost ­profits, but is reluctant to do so. Thus, in Kampffmeyer, while the Court admitted that lost profit was recoverable, it did not grant such damages to traders who had abandoned their intended transactions because of the unlawful Union act, even though those transactions would have produced profits.149 In CNTA it was held that lost profits were not recoverable where the claim was based on the concept of legitimate expectations, the argument being that that concept only served to ensure that losses were not suffered owing to an unexpected change in the legal position, and did not serve to ensure that profits would be made.150 However, in Mulder151 the ECJ was ­prepared to compensate for lost profit, although it held that any such sum must take into account the income which could have been earned from alternative activities, applying the principle that there is a duty to mitigate loss.

144  Case 26/68 Fux v Commission [1969] ECR 145, 156; Case T-1/99 T Port GmbH & Co KG v Commission [2001] ECR II-465. 145  Cases C-104/89 and 37/90 Mulder (n 100) [51]–[52]; Case T-260/97 Camar Srl (n 138) [138]. 146  Cases C-104/89 and 37/90 Mulder (n 100) [35]; Case T-260/97 Camar Srl (n 138) [143]–[144]. 147  Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, 2998–9. 148  Case T-84/98 C v Council [2000] ECR IA-113, [98]–[103]; Case T-307/01 François (n 51) [107]–[111]; Case T-48/01 François Vainker and Brenda Vainker v European Parliament [2004] ECR IA-51, [180]. 149  Cases 5, 7 and 13–24/66 Kampffmeyer v Commission [1967] ECR 245, 266–7; Case T-160/03 AFCon Management Consultants v Commission [2005] ECR II-981, [112]–[114]. 150  Case 74/74 (n 91) 550. 151  Cases C-104/89 and 37/90 Mulder (n 100).

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In quantifying the loss suffered by the applicant the EU institutions have argued that damages should not be recoverable if the loss has been passed on to the consumers. This was accepted in principle by the ECJ in the Quellmehl and Gritz litigation.152 Toth has justly criticized this reasoning. He pointed out that whether a firm could pass on a cost increase to consumers would depend upon many variables, which might operate differently for different firms, and which would be difficult to assess. He argued, ­moreover, that such an idea was wrong in principle, since it would mean that losses would be borne by consumers, rather than by the institutions which had committed the wrongful act.153 Damages will normally be the relief claimed under Article 340. The CFI however held in Galileo154 that the combined effect of Articles 268 and 340 is that the EU Courts have the power to impose on the Union any form of reparation that accords with the general principles of non-contractual liability common to the laws of the Member States, including, if it accords with those principles, compensation in kind, if necessary in the form of an injunction to do or not to do something.

9  Damages Liability: EU Servants Article 340(2) specifically allows for loss to be claimed where it has been caused either by the Union institutions or by the acts of its servants ‘in the performance of their duties’. It is clear that not every act performed by a servant will be deemed to be an act in the performance of his or her duties, and the ECJ has construed this provision ­narrowly. Thus in Sayag155 an engineer employed by Euratom was instructed to take Leduc, a representative of a private firm, on a visit to certain installations. He drove him there in his own car, having obtained a travel order enabling him to claim expenses for the trip from the Community. An accident occurred and Leduc claimed damages in the Belgian courts against Sayag. It was argued that Sayag was driving the car in the ­performance of his duties, and that therefore the action should have been brought against the Community. The ECJ held that the Community was only liable for those acts of its servants which, by virtue of an internal and direct relationship, were the necessary extension of the tasks entrusted to the institutions. A servant’s use of his private car for transport during the course of his duties could only satisfy this condition in exceptional circumstances, notwithstanding that Sayag had obtained a travel order for the journey. The range of acts done by its servants for which the Community

152  Case 238/78 (n 147) 2974. 153  Toth (n 125) 189–90. 154  Case T-279/03 Galileo (n 140) [63]. 155  Case 9/69 Sayag v Leduc [1969] ECR 329; Case T-124/04 Jamal Ouariachi v Commission [2005] ECR II-4653, [18].

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will  accept responsibility is therefore more limited than in most Member States. No ­justification for the limited nature of this liability is ­provided by the ECJ. If the Community is not liable, then an action can in principle be brought against the servant in his or her personal capacity in a national court and governed by national law. However, Article 343 TFEU provides that the Union shall enjoy in the Member States such privileges and immunities as are necessary for the performance of its tasks,  under the conditions laid down by the 1965 Protocol on the Privileges and Immunities of the European Union as amended.156 Article  12(a) of the Protocol ­provides that ­servants have immunity from suit in national courts in relation to ‘acts performed in their official capacity’.157 One would expect that where the EU is liable under Article  340(2), because the servant is acting in the performance of her duties, then it would follow that the servant would not be personally liable, since he or she would be deemed to be acting in an official capacity. The interrelationship between these two provisions may, nonetheless, be more ­problematic, and the ECJ has held that the servant’s personal immunity and the scope of the EU’s liability for the acts of the servant are separate issues.158 There is nonetheless much to be said for the view proffered by Schermers and Swaak159 that acts ‘in the performance of their duties’, which lead to EU liability, include but are not limited to acts ‘performed by them in their official capacity’, which lead to the servants’ i­ mmunity.

10  Damages Liability: Lawful Acts The discussion thus far has been concerned with liability in damages for unlawful acts. Individuals may, however, suffer loss flowing from lawful EU acts, more especially because of complex regulatory structures such as the CAP.160 The problem of loss being caused by lawful governmental action is not peculiar to the Union. Thus, French law recognizes a principle of égalité devant les charges publiques, and German law the ­concept of Sonderöpfer, allowing loss caused by lawful governmental action to be ­recovered, albeit in limited circumstances.161 The difficulties of deciding when to grant such compensation should not be underestimated.162 Legislation will often explicitly or implicitly aim to benefit one section of the population at the expense of another. This may be in the form of tax changes or in

156  [1967] OJ L152/14. 157  See now Protocol (No 7) On the Privileges and Immunities of the European Union, Art 11. 158  Case 5/68 Sayag v Leduc [1968] ECR 395, 402. 159  H Schermers and R Swaak, ‘Official Acts of Community Servants and Article 215(4)’ in Heukels and McDonnell (n 78) 177. 160  H Bronkhorst, ‘The Valid Legislative Act as a Cause of Liability of the Communities’ in Heukels and McDonnell (n 78) Ch 8. 161  Ibid 155–9. 162  P Craig, ‘Compensation in Public Law’ (1980) 96 LQR 413, 450.

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a decision to grant selective assistance to one industry rather than another. Liability for losses flowing from lawful legislation requires therefore the drawing of a difficult line between cases where the deleterious effect on a firm was the aim of the legislation or a  necessary effect thereof, and where legislation was passed that incidentally affects a  particular firm in a serious manner, but where there is no legislative objection to compensating for the loss suffered. Claims for lawfully caused loss have been advanced frequently and most have been rejected.163 In Dorsch Consult164 the CFI adjudicated on a case that arose out of the Gulf War. The EC, acting pursuant to a UN Security Council resolution, passed a ­regulation banning trade with Iraq. The Iraqi government retaliated with a law that froze assets of companies doing business in Iraq, where those companies were based in countries that imposed the embargo. The applicant was such a company. It argued that it should be compensated for its loss, even if the EC had acted lawfully. The CFI emphasized that if liability for lawful acts were recognized by EC law, it was necessary for the applicant to prove damage and causation. Such liability could only be incurred if the damage affected a particular circle of economic operators in a disproportionate manner in comparison with others (unusual damage) and exceeded the economic risks inherent in operating in the sector concerned (special damage), where the ­legislative measure that gave rise to the alleged damage was not justified by a general economic interest. The CFI concluded that the applicant had not met these criteria. The CFI’s judgment was framed conditionally: if such liability were to exist then the conditions listed would have to be satisfied. This was stressed on appeal to the ECJ.165 It has been emphasized again more recently in FIAMM,166 where the ECJ was even more wary about admitting the existence of any such principle of liability in EU law. It reiterated that no such principle yet existed in EU law and that if it did it would be subject to the stringent conditions set out above. The ECJ noted, moreover, that there was no consensus in the laws of the Member States as to whether liability for lawful acts of a legislative nature existed.167

163  Cases 9 and 11/71 Compagnie d’Approvisionnement de Transport et de Crédit SA and Grands Moulins de Paris SA v Commission [1972] ECR 391, [45]; Cases 54–60/76 Compagnie Industrielle et Agricole du Comté de Loheac v Council and Commission [1977] ECR 645, [19]; Case 59/83 SA Biovilac NV v EEC [1984] ECR 4057, 4080–1; Case 265/85 Van den Bergh & Jurgens BV and Van Dijk Food Products (Lopik) BV v EEC [1987] ECR 1155; Case 81/86 De Boer Buizen v Council and Commission [1987] ECR 3677. 164  Case T-184/95 Dorsch Consult Ingenieurgesellschaft mbH v Council [1998] ECR II-667, upheld on appeal, Case C-237/98 P Dorsch Consult Ingenieurgesellschaft mbH v Council [2000] ECR I-4549. See also Case T-99/98 Hameico Stuttgart (n 77) [60]; Case T-170/00 Forde-Reederie GmbH v Council and Commission [2002] ECR  II-515, [56]; Cases T-64–65/01 Afrikanische Frucht-Compagnie GmbH and Internationale Fructimport Gesellschaft Weichert & Co v Council and Commission [2004] ECR II-521, [150]–[156]; Case T-383/00 Beamglow (n 89) [173]–[174]; Cases C-120–121/06 P FIAMM (n 89). 165  Case C-237/98 P Dorsch Consult (n 164) [19]. 166  Cases C-120–121/06 P FIAMM (n 89) [164]–[176]. 167  Ibid [175]; Case T-79/13 Accorinti (n 106) [117]–[122].

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11 Restitution Most legal systems recognize liability in restitution, in addition to that based on ­contract or tort. The essence of the argument is that restitution is not based upon a promise, but rather on unjust enrichment by the defendant; hence its difference from contractual liability. Restitution does not normally require proof of a wrongful act by the defendant, in the sense of fault or a breach of a duty of care, and the measure of recovery is normally determined by the extent of the defendant’s unjust enrichment rather than the extent of the plaintiff ’s loss, hence its difference from much tort l­ iability.168 Article 340(2) is framed in terms of ‘non-contractual liability’, which can clearly cover restitution, notwithstanding the fact that the requirement to ‘make good any damage caused’ by its institutions does not fit perfectly with restitution. The ECJ affirmed in Masdar that although unjust enrichment did not fit perfectly with the criteria for recovery in cases of non-contractual liability, it would be contrary to the ­principle of effective judicial protection if Articles 274 and 340(2) were construed to preclude such recovery. Enrichment will, however, only be regarded as unjust if there is no valid legal basis for it; if the enrichment flows from a valid contract, the claim will fail.169 The ECJ has applied restitutionary principles where there has been unjust enrichment by an individual against the EU, as exemplified by staff cases.170 A common ­restitutionary claim by an individual arises where payments are made to public bodies that have no right to the money.171 It can arise in two types of situation. There can be cases where a Member State has, for example, imposed a levy which is illegal under EU law. The matter will be remitted to the national court, which will devise a remedy that gives effect to the Union right, normally return of the sum paid to the national authority.172 There can also be cases where an illegal charge has been levied by the EU. The EU Courts have held that unjust enrichment is a general principle of EU law.173 Thus where a fine imposed for breach of the competition rules is annulled there is an obligation to return the money plus interest.174 This is in accord with principle. A remedy should be available in favour of an individual, where the EU has been unjustly enriched at the individual’s expense. The matter is, however, complicated. There is, as will be seen below, ECJ case law stipulating that, in many such instances, the action should be

168  Case C-47/07 P Masdar (UK) Ltd v Commission [2008] ECR I-9761. 169  Case T-116/11 European Medical Association (EMA) v European Commission, EU:T:2013:634, [282]. 170  Case 18/63 Wollast v EEC [1964] ECR 85, 98; Case 110/63 Willame v Commission [1965] ECR 649, 666; Case 36/72 Meganck v Commission [1973] ECR 527; Case 71/72 Kuhl v Council [1973] ECR 705. 171 A Jones, Restitution and European Community Law (Mansfield Press, 2000); R Williams, Unjust Enrichment and Public Law: A Comparative Study of England, France and the EU (Hart, 2010) Chs 6–7. 172  See below, Ch 23. 173  Case C-259/87 Greece v Commission [1990] ECR I-2845, [26]; Case T-171/99 Corus (n 31) [55]; Case T-7/99 Medici Grimm KG v Council [2000] ECR II-2671, [89]; Case T-28/03 Holcim (n 46) [127]–[130]; Case C-47/07 P Masdar (n 168) [47]–[50]. 174  Case T-171/99 Corus (n 31) [53]–[55].

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commenced in the national court against the national collecting agency, even where the funds are treated as EU funds.

12  Joint Liability of the Community and the Member States The preceding analysis assumed that the EU committed the unlawful act. There can, however, be cases where the EU and the Member States share liability.175 The ­traditional starting point of the EU Courts has been that where a charge levied by a national intervention agency may not be due, because the regulation on which the charge was imposed is illegal, the initial recourse for recovery of the charge must be against the national agency.176

(A)  Procedural Issues In procedural terms Article 268 TFEU confers jurisdiction in relation to Article 340(2) on the CJEU and GC and, while it does not state that this jurisdiction is exclusive, this is implied by Article 274 TFEU.177 Conversely, it is not possible for an individual to bring an action against a Member State before the CJEU, since there is no provision for this in the Treaty. When an action is brought before the CJEU under Article 340(2), EU law is applied. An action brought against a Member State in the national court will be governed by national law. This will, however, include EU law. The national courts are under an obligation to provide an effective remedy for the enforcement of directly effective EU provisions, and the rights must be no less favourable than those in domestic matters.

(B)  Substantive Issues: Wrongful Authorization of National Action Issues of joint liability can arise where the EU wrongfully authorizes national action that is in breach of EU law, such as in Kampffmeyer.178 The facts were complex, but in essence the Commission wrongfully confirmed a decision taken by the German government that suspended zero-rated import licences for maize, in circumstances where firms had acted in reliance on the zero-rating and had concluded contracts to buy 175 A Durand, ‘Restitution or Damages: National Court or European Court?’ (1975–6) 1  ELRev  431; T Hartley, ‘Concurrent Liability in EEC Law: A Critical Review of the Cases’ (1977) 2 ELRev 249; W Wils, ‘Concurrent Liability of the Community and a Member State’ (1992) 17 ELRev 191; P Oliver, ‘Joint Liability of the Community and the Member States’ in Heukels and McDonnell (n 78) Ch 16. 176  Case 26/74 Roquette Frères (n 143) [11] and AG Trabucchi 690–1. 177  Cases 106–120/87 Asteris v Greece and EEC [1988] ECR 5515; Case T-18/99 Cordis (n 89) [27]; Case T-138/03 ÉR v Council and Commission [2006] ECR II-4923, [41]. 178  Cases 5, 7 and 13–24/66 Kampffmeyer v Commission [1967] ECR 245.

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maize on that assumption. The decision was annulled,179 and the applicants sought compensation from the Commission under what is now Article 340. The ECJ held that the Commission acted unlawfully so as to give rise to damages liability. It decided, however, that the extent of the EU’s liability should be determined after the conclusion of actions in the German courts brought by certain of the firms affected. This has been criticized on the ground that there was no reason to require the applicants to proceed initially in the German courts, and that the ECJ’s rationale was based implicitly on the assumption that the German authorities were primarily liable, with the EU bearing only a residual liability.180 We should, however, distinguish the claim for the return of the levies paid, from the more general tort action. Primary ­liability for the former should rest with Germany, given that it imposed the levy and received the funds. There is, however, no reason in relation to the latter why the EU’s liability should be seen as secondary to that of the Member State. The CFI has nonetheless reaffirmed Kampffmeyer. It held in ÉR181 that where the same damage is the subject of compensation actions against a Member State before a national court and against the EU under Article 340, it may be necessary, before deciding on the amount of the EU’s liability, to wait until the national court has adjudicated on Member State liability, in order to avoid the applicant’s being insufficiently or excessively compensated because of the different assessment of two different courts. While the CFI speaks of the individual being insufficiently or excessively compensated by the national court, the net effect is still that the quantum of the EU’s liability is regarded as secondary to that of the Member State. The GC in Holcim followed these rulings, but qualified them by holding that it could, pending the decision of the national court, determine whether the conduct alleged was capable in principle of giving rise to noncontractual liability in EU law.182

(C) Substantive Issues: Application of Unlawful Legislation by a Member State Issues concerning joint liability can also arise where the Member State applies unlawful Union legislation. This can occur, for example, in the context of the CAP, where EU regulations will often be applied by national intervention boards. The general rule is that it is the national intervention boards, and not the Commission, which are responsible for the application of the CAP, and that an action must normally be commenced in the national courts. This is exemplified by Haegeman.183 The applicant was a Belgian company that imported wine from Greece, which was at the time outside the EC. It claimed the loss flowing from a countervailing charge imposed on the import of wine from Greece to 179  Cases 106 and 107/63 Toepfer v Commission [1965] ECR 405. 180  Oliver (n 175). 181  Case T-138/03 ÉR (n 177) [42]. 182  Case T-317/12 Holcim (Romania) SA v European Commission, EU:T:2014:782, [79]–[80]. 183  Case 96/71 R and V Haegeman Sprl v Commission [1972] ECR 1005.

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Belgium. This charge was imposed by a Council regulation and levied by the Belgian authorities. The ECJ held that the dispute should be resolved initially by the national courts, which could have recourse to Article 267 where the validity of a Community regulation was in issue. The decision can be criticized since the money levied went into the Community’s funds. The mere fact that the sums were collected by national authorities should make no difference, given that these sums were imposed by the Community and were collected on behalf of the Community by the Member State. The ECJ has also held that an action must be commenced in the national courts where a trader is seeking payment of a sum to which he believes himself to be entitled under EU law, although this decision was heavily influenced by the wording of the relevant EU regulations.184 This principle applies even where the Commission has sent telexes to the national board setting out its interpretation of the relevant regulations.185 The Member State may, however, be able to recover from EU funds where they have paid for losses which are the EU’s responsibility.186 There are, however, a number of situations in which it is possible to proceed against the EU directly. First, if the Commission sends a telex which is interpreted, in the context of the relevant legislation, as an instruction to the national agency to act in a particular ­manner, then an action may be brought against the Commission for damages.187 Secondly, an applicant can proceed against the EU where there would be no remedy available in the national courts. Thus, in Unifrex, an applicant sought damages before the ECJ because of the Commission’s failure to pass a regulation that would have granted the applicant a subsidy for exports to Italy when the Italian lira was devalued. It was held that the action could proceed before the ECJ, since the national court could not help the applicant: even if the relevant EU rules had been declared illegal pursuant to Article 267, ‘that annulment could not have required the national authorities to pay higher monetary compensatory amounts to the applicant, without the prior intervention of the Community legislature’.188 More generally, an action based on Article 340 cannot be subject to the prior exhaustion of national remedies where, even if the disputed Union rules were declared invalid by the ECJ, the national courts could not allow an action for payment without the prior intervention of the EU legislature, owing to the lack of an EU provision authorizing the competent national agencies to pay the amounts sought.189 184  Case 99/74 Société des Grands Moulins des Antilles v Commission [1975] ECR 1531. 185 Case 133/79 Sucrimex SA and Westzucker GmbH v Commission [1980] ECR 1299; Case 217/81 Compagnie Interagra SA v Commission [1982] ECR 2233; Case T-160/98 Firma Leon Van Parys NV and Pacific Fruit Co NV v Commission [2002] ECR II-233. 186  This may be possible in the context of the CAP. The basis for shifting the loss to the EU was bound up with the operation of the European Agricultural Guidance and Guarantee Fund, Oliver (n 175) 306–8; JA Usher, Legal Aspects of Agriculture in the European Community (Oxford University Press, 1988) 104–6, 150–2. 187  Case 175/84 Krohn & Co Import-Export GmbH & Co KG v Commission [1986] ECR 753. 188  Case 281/82 Société à responsabilité limitée Unifrex v Commission and Council [1984] ECR 1969; Case 20/88 Roquette Frères v Commission [1989] ECR 1553; Case T-167/94 Nolle v Council and Commission [1995] ECR II-2589; Case T-18/99 Cordis (n 89) [28]. 189  Case T-138/03 ÉR (n 177) [40]–[41].

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Thirdly, it is possible to bring a claim in the ECJ where the EU has committed a t­ortious wrong to the applicant. This is exemplified by the Dietz case190 in which the essence of the claim was that the EU authorities had introduced a levy without transitional provisions and had thereby caused loss in breach of the applicant’s legitimate expectations. This claim could be pursued in the ECJ since the wrong alleged was entirely directed towards the EU’s behaviour, and not that of the Member State.

13  Damages Liability: Assessment It was the CJEU that took the bare wording of Article  340(2) and fashioned a test for EU liability that it has refined and altered over the ensuing years, and the GC now plays an increasingly important role in its interpretation. The jurisprudence displays a ­chequered history. The Schöppenstedt test as applied in the early years rendered it extremely difficult for any applicant to succeed. The need to prove serious loss and a breach that verged on the arbitrary meant that the EU coffers rarely had to pay out where losses were caused by legislative measures entailing the balancing of economic variables. Applicants were more successful where there was no discretion, provided they could show illegality, causation, and resulting damage, but even here many claims failed because the applicant could not prove the requisite causation or damage. The jurisprudence has, however, become more liberal since Bergaderm. The ECJ emphasized the parity between the tests for Union and state liability and applied the test for serious breach in Brasserie du Pêcheur/Factortame to EU liability. The ECJ in Bergaderm also made it clear that the decisive criterion for application of this test was whether the institution exercised discretionary power, and not the form through which this was expressed. These are positive developments. It remains to be seen whether the Union Courts intend to modify their approach in  relation to non-discretionary acts. The test for liability hitherto was illegality, ­causation, and damage. The formulation in Bergaderm and subsequent cases is subtly different. The Court continues to distinguish between liability for discretionary and non-­discretionary acts, but within the framework of the sufficiently serious breach test. Where there is no or considerably reduced discretion, the mere breach of EU law may suffice to establish the existence of the sufficiently serious breach. It would be regrettable if this new formulation rendered it more difficult to recover for loss where there is illegality and no discretion.

190  Case 126/76 Dietz v Commission [1977] ECR 2431; Case T-18/99 Cordis (n 89) [26]. The principle in Dietz may not apply if the national authorities were partially to blame for the loss caused to the applicant as in Cases 5, 7 and 13–24/66 Kampffmeyer (n 178).

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23 Remedies II: Member States 1 Introduction The previous chapter considered remedies against the EU. The discussion now turns to remedies against Member States. This is in certain respects a more complex topic because relief against Member States that violate EU law will normally be sought in national courts. The action will prima facie have to conform to national procedural and remedial rules concerning matters such as time limits, quantum of recovery, and the like. This raises the issue of the extent to which EU law imposes constraints on such national rules. This complex jurisprudence will be analysed in the first half of the chapter. The EU Courts have also developed an EU cause of action for damages that is ­applicable against all Member States. This will be examined in the second half of the chapter, with consideration being given to its conceptual foundations, subsequent modification, and the relationship between the EU Courts and national courts in the application of the criteria for recovery.

2  National Remedial Autonomy: The Initial Limits The previous chapter analysed actions brought against the EU, whether directly under Article  263 TFEU or indirectly under Article  267 TFEU, and the consequences of ­finding that the contested measure is illegal. It may, however, be Member State action that is challenged as being in breach of EU law. Such actions will normally begin and end in the national courts, with recourse to the ECJ via Article 267 where the national court feels that this is necessary to determine whether the state action was in breach of EU law. Such actions have raised ­difficult issues concerning the extent to which EU law should impose constraints on the remedies in national courts and how far national remedial autonomy should be ­limited.

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The ECJ’s initial approach was cautious and imposed limited constraints on national procedural autonomy,1 as exemplified by the early decision in Rewe-Zentralfinanz.2 The applicants sought a refund, including interest, of charges paid in Germany for import inspection costs, these charges being in breach of Community law. The national time limit for challenging the validity of national administrative measures had passed, and the applicants argued that Community law nonetheless required that they should be given the remedy sought. The ECJ held that, in the absence of Community rules on the issue, it was for the Member State to determine the procedural conditions governing actions intended to ensure the protection of directly effective Community rights. In the absence of harmonization these rights should therefore be exercised before the national courts in accordance with the ­conditions set out in the national rules. This was subject to two caveats, equivalence and practical impossibility. The national procedural conditions could not be less favourable than those relating to similar domestic actions. Those conditions and time limits must not make it impossible in practice to exercise the rights which the national courts were obliged to protect, and the ECJ held that this condition was not violated where the limitation period was ­reasonable. These caveats therefore embodied minimum constraints on national ­remedial autonomy. The corollary of this early approach was that Community law did not, in the absence of harmonization, require the creation of new national remedies. Thus in ReweHandelsgesellschaft Nord3 the applicants contested the legality of ‘butter-buying cruises’ for the purchase of tax-free butter that were allowed under German law. They argued that the cruises were contrary to Community tax and customs law and that their ­economic interests were adversely affected by the Member State’s failure to  apply Community rules to third party competitors. The ECJ held that the Treaty was  not intended to create new remedies in the national courts to ensure observance of Community law. It was, therefore, open to Member States to apply their own p ­ rocedural rules without being required to create new national remedies, although these rules remained subject to the twin principles of equivalence and practical possibility.

3  National Remedial Autonomy and Effectiveness of EU Law The ECJ’s early approach was modified in later cases. The driving force behind this modification was the effectiveness of EU law, which led to greater limitations on national remedial autonomy. 1  Case 6/60 Humblet v Belgium [1960] ECR 559; Case 13/68 Salgoil v Italian Ministry for Foreign Trade [1973] ECR 453. 2 Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989; Case 45/76 Comet BV v Produktschap voor Siergewassen [1976] ECR 2043; Case 179/84 Bozetti v Invernizzi [1985] ECR 2301. 3  Case 158/80 Rewe-Handelsgesellschaft Nord mbH v Hauptzollamt Kiel [1981] ECR 1805.

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(A)  Effectiveness and ‘New’ Remedies The scope of the principle that EU law would not demand the creation of new national remedies was thrown into question even in the relatively early case law. Thus in cases concerned with the repayment of charges levied in breach of EC law, the ECJ appeared to hold that a right to repayment should be available under national law. In San Giorgio the ECJ reasoned that ‘entitlement to the repayment of charges levied by a Member State contrary to the rules of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties or, as the case may be, the discriminatory application of internal taxes’.4 The repayment must be sought within the framework of national law, subject to the conditions of equivalence and practical impossibility. This case law nonetheless appeared to involve either the ECJ imposing a particular remedy,5 or alternatively requiring, as a matter of EC law, that such a remedy be available in principle in national legal systems. The extent to which the EU Courts were willing to demand the provision of new remedies in national law was thrown into sharp relief by Factortame.6 Factortame and other companies, most of the directors and shareholders of which were Spanish nationals, were incorporated under UK law and owned or operated fishing vessels registered as British under the Merchant Shipping Act 1894. The 1988 Merchant Shipping Act was adopted to require all fishing vessels to register anew, and the applicants did not satisfy the new registration conditions. They argued that these conditions, including requirements as to nationality and residence, were in breach of Community law. They claimed interim relief until final judgment. The House of Lords held that interim relief was not available against the Crown, but referred the case to the ECJ, which held that the absence of such relief was incompatible with EC law. The cornerstone of the ECJ’s reasoning was Simmenthal:7 any provision of a national legal system which might impair the effectiveness of Community law by withholding from the national court the power to do everything necessary to set aside national legislative provisions which might prevent Community rules from having full force was itself incompatible with Community law.8 This principle was then applied to Factortame. The ECJ concluded that the full effectiveness of Community law would be just as much impaired if a rule of national law prevented a court from granting interim relief in order to ensure the effectiveness of the judgment to be given on the existence

4  Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, [12]; Case C-192/95 Comateb v Directeur Général des douanes et droits indirects [1997] ECR I-165. 5  M Dougan ‘Cutting Your Losses in the Enforcement Deficit: A Community Right to the Recovery of Unlawfully Levied Charges?’ (1998) 1 CYELS 233. 6  Case C-213/89 R v Secretary of State for Transport, ex p Factortame Ltd [1990] ECR I-2433; Case C-432/05 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern [2007] ECR I-2271. 7  Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629. 8  Case C–213/89 Factortame (n 6) [20].

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of the rights claimed under Community law. It followed that a court which would grant interim relief, if it were not for a rule of national law, was obliged to set aside that rule.9 The pre-existing orthodoxy that EC law did not require the creation of new remedies was modified by Factortame. The position under UK law was that there could be interim and final injunctions, but there could be no interim injunction against the Crown. The ECJ decided in Factortame that this was itself a breach of Community law. The effect of this ruling was that provided the type of relief sought by the applicant was  recognized by national law, the fact that it was not previously available against the Crown would be regarded as an example of ineffective protection of Community rights, with the consequence that national law must be changed.

(B) Effectiveness of EU Law: Proportionality and Adequacy of National Remedies The emphasis on the effectiveness of EU law in Factortame was reflected in other cases. The impact differed depending on the nature of the case. In some cases the ECJ held that the duty of cooperation under what is now Article 4(3) TEU (ex Article 10 EC) meant that where EU legislation did not provide a remedy for its infringement it was for national law to take all necessary measures to ensure its effectiveness. While the choice of remedy remained for the Member State, it had to ensure not only that the remedy was similar to that applicable for infringements of an analogous nature under national law, but also that the penalty was effective, proportionate, and dissuasive.10 The same principle applied where the EU legislation laid down particular penalties, but did not exhaustively prescribe the penalties that a Member State could impose.11 The effectiveness of Union law in other instances limited the type of penalty that a Member State could impose. In Sagulo12 the applicants were French and Italian nationals resident in Germany who had failed to comply with administrative formalities to obtain EC resident permits and were penalized under German law. The ECJ held that although Member States were entitled to impose reasonable penalties for infringement of the obligation to obtain a valid identity card or passport, such penalties should not be disproportionate to the offence committed. The importance attached to the effectiveness of EU law could in yet other cases lead the ECJ to assess the adequacy of the national remedy in order to ensure that it was effective to achieve the EU objective. In Von Colson13 the plaintiffs were women who had applied for posts as social workers at a German prison. They were unsuccessful and

9  Ibid [21]. 10  Case 68/88 Commission v Greece [1989] ECR 2965; Case C-383/92 Commission v UK [1994] ECR I-2479; Case C-354/99 Commission v Ireland [2001] ECR I-7657, [46]; Cases 387, 391 and 403/02 Criminal Proceedings against Silvio Berlusconi and others [2005] ECR I-3565, [53]. 11  Case C-186/98 Criminal Proceedings against Nunes and de Matos [1999] ECR I-4883. 12  Case 8/77 Sagulo, Brenca, and Bakhouche [1977] ECR 1495. 13  Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.

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two men were appointed. The plaintiffs succeeded in their action for sex ­discrimination and sought to be appointed to a post in the prison, or to be awarded six months’ salary. The Arbeitsgericht considered that under German law it could allow only the claim for ‘reliance loss’, repayment of travelling expenses, and the plaintiffs argued that this was not sufficient to fulfil the state’s obligations under the Equal Treatment Directive 76/207. The ECJ held that although full implementation of the Directive did not require any specific remedy for unlawful discrimination, it did require that the sanction guaranteed real and effective judicial protection. If the Member State chose to penalize breach of the Directive by compensation, then for it to be effective and a deterrent, the compensation had to be adequate to the damage sustained and more than purely nominal compensation of the kind offered by the German authorities. The same concern for the adequacy of the national remedy is evident in other cases,14 with the ECJ emphasizing the importance of a judicial remedy in order to secure effective protection for the EU right.15

(C) Effectiveness of EU Law: The Temporal Effect of Preliminary Rulings The ECJ also kept firm control over the temporal effect of preliminary rulings concerning the compatibility of national law with EU law. It made clear that the general principle was that the ruling defined the legal position as it must have been understood from the time when the relevant EU norm came into force.16 The EU norm must, therefore, be applied by national courts to situations that occurred before the ECJ’s ruling was given, provided that the conditions enabling an action relating to that rule to be brought before the courts having jurisdiction are satisfied. This proposition would only be qualified in exceptional circumstances, for example where there was a risk of serious economic repercussions owing to the large number of legal relationships entered into in good faith on the basis of the rules considered to be validly in force and where the individuals and national authorities had adopted practices which did not comply with EU law because of uncertainty about what EU law required, to which the conduct of the Commission might have contributed.17

14  Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651; Cases C-87–89/90 Verholen v Sociale Verzekeringsbank [1991] ECR I-3757. 15  Case 222/86 UNECTEF v Heylens [1987] ECR 4097; Case C-185/97 Coote v Granada Hospitality Ltd [1998] ECR I-5199; Case C-120/97 Upjohn v the Licensing Authority [1999] ECR I-223; Case C-228/98 Dounias v Ypourgio Oikonomikon [2000] ECR I-577. 16  Cases 66, 127 and 128/79 Salumi v Amministrazione delle Finanze [1980] ECR 1237, [9]–[10]; Case C-50/96 Deutsche Telekom AG v Schroder [2000] ECR I-743, [43]. 17  Cases C-197 and 252/94 Société Bautiaa v Directeur des Services Fiscaux des Landes [1996] ECR I-505; Case 61/79 Denkavit Italiana [1980] ECR 1205; Case C-137/94 R v Secretary of State for Health, ex p Richardson [1995] ECR I-3407; Case C-359/97 Commission v UK [2000] ECR I-6355; Case C-402/03 Skov Æg v Bilka Lavprisvarehus A/S and Bilka Lavprisvarehus A/S v Jette Mikkelsen and Michael Due Nielsen [2006] ECR I-199; Case C-178/05 Commission v Greece [2007] ECR I-4185.

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4  National Remedial Autonomy and Effectiveness of EU Law: Judicial Expansion The 1990s saw the ECJ build on the previous foundations. The focus fell ever more sharply on the adequacy and effectiveness of the national remedies and the extent to which they properly protected the EU right and ensured the effectiveness of EU law.

(A)  The Adequacy of the National Monetary Remedy In some cases the issue was the adequacy of the national monetary remedy. The ECJ was willing to override national limits even though they did not render exercise of the right practically impossible. This is exemplified by Marshall.18 The case was concerned with assessment of compensation for gender discrimination in breach of Directive 76/207.19 The UK Industrial Tribunal assessed compensation at £18,405 including £7,710 as interest. UK legislation however set £6,250 as the maximum that could be awarded and it was uncertain whether the Industrial Tribunal could award interest in this case. The ECJ affirmed that Article  6 of the Directive obliged Member States to take the  necessary measures to enable those who considered themselves wronged by ­discrimination to pursue their claims by judicial process. This obligation implied that the measures should be sufficiently effective to achieve the objective of the Directive, which was to achieve real equality of opportunity and this could not be attained without measures appropriate to restore such equality when it had not been observed. Where there was a discriminatory dismissal contrary to Article 5(1), equality could not be restored without either reinstating the victim or granting financial compensation for the loss sustained. The financial compensation had to be adequate to enable the loss sustained to be made good in full in accordance with the applicable national rules. It followed, said the ECJ, that ‘the fixing of an upper limit of the kind at issue in the main proceedings cannot, by definition, constitute proper implementation of Article 6 of the directive, since it limits the amount of compensation a priori to a level which is not necessarily consistent with the requirement of ensuring real equality of ­opportunity through adequate reparation for the loss and damage sustained as a result of discrim­ inatory dismissal’.20 It followed also that full compensation for discriminatory dismissal could not leave out of account factors such as the effluxion of time, which might reduce its value, and ‘the award of interest, in accordance with the applicable national rules, 18  Case C-271/91 Marshall v Southampton and South-West Area Health Authority II [1993] ECR I-4367. See  also Cases C-295–298/04 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA [2006] ECR I-6619; Case C-460/06 Nadine Paquay v Société d’architectes Hoet + Minne SPRL [2007] ECR I-8511. 19  Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/40. 20  Case C-271/91 Marshall (n 18) [30].

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must therefore be regarded as an essential component of compensation for the purposes of restoring real equality of treatment’.21 The ruling in Marshall II led to revision of the Equal Treatment Directive,22 but the more general principles from that case have, as will be seen, nonetheless been narrowed by later case law.

(B)  Substantive Conditions Attached to the National Remedy In other cases the effectiveness of EU law placed limits on the conditions attached to the national remedy. This was the situation in Dekker.23 The applicant sought damages before the Dutch courts for the defendant’s refusal to employ her on grounds of ­pregnancy. The ECJ held that this constituted unlawful sex discrimination and then turned its attention to the remedy. It reiterated the principle from Von Colson that although full implementation of the Equal Treatment Directive did not require any specific sanction for unlawful discrimination, it did entail that the sanction chosen must guarantee real and effective judicial protection and have a real deterrent effect on the employer. It followed, said the ECJ, that if the employer’s liability for infringement of the ­principle of equal treatment were subject to proof of fault attributable to him, and also to there being no ground of exemption recognized by the applicable national law, the practical effect of those principles would be weakened considerably. Thus where a Member State opted for a sanction forming part of the rules on civil liability, any infringement of the prohibition of discrimination should suffice to make the defendant fully liable, and regard should not be had to grounds of exemption provided for by national law.24 The principle of the effectiveness of EU law therefore limited the conditions that could be attached to the national remedy in order for it to be regarded as adequate. Conditions in national rules on civil liability pertaining to fault could not be applied in the instant case. This was so even though the national rule did not violate the equivalence test, since there was no discrimination between situations involving EU law and domestic law. The fault requirement would, moreover, probably not have rendered exercise of the EU right impossible, though it would have made it more difficult.

(C)  Sustainability of National Time Limits There were yet other cases in which the effectiveness of EU law was held to impact on the national time limits for bringing an action. Emmott is the best known example.25 21  Ibid [31]. This was in contrast with earlier case law in which decisions as to whether to award interest on the reimbursement of sums wrongly levied under Community law were left to national law, Case 6/60 Humblet (n 1); Case 26/74 Société Roquette Frères v Commission [1976] ECR 677. 22  Directive 2002/73 of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC [2002] OJ L269/15, Art 5, amending Art 6 of Dir 76/207. 23  Case C-177/88 Dekker v Stichting voor Jong Volwassenen (VJV) Plus [1990] ECR I-3941. 24  Ibid [26]. 25  Case C-208/90 Emmott v Minister for Social Welfare [1991] ECR I-4269.

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The applicant had been discriminated against on the grounds of sex. She sought ­payment retrospectively for a disability benefit for the period during which Council Directive 79/726 had not been implemented in Ireland. She was informed by the ­relevant government department that no decision could be made in her case until the ECJ had ruled on another pending case. However, when she sought judicial review of the decisions concerning her social security benefit the department argued that her delay in beginning proceedings was a bar to the action. The ECJ reiterated the principle of national procedural autonomy, as qualified by the conditions of equivalence and practical possibility, and stated that reasonable national time limits for the bringing of actions would generally satisfy these conditions. The situation was, however, different in relation to directives. Where a directive had not been properly transposed into national law, individuals could not ascertain the full extent of their rights. That uncertainty subsisted even after the ECJ delivered a judgment finding that the Member State had not fulfilled its obligations under the directive, even if the ECJ held that a particular provision of the directive was sufficiently precise and unconditional to be relied upon before a national court. It followed that until the directive had been properly transposed a defaulting Member State could not rely on an individual’s delay in initiating proceedings. The national time limits for bringing an action could not begin to run before then. Emmott did not force the Member State to change its rules on time limits. The ECJ nonetheless stipulated the point from which time could begin to run, the principal rationale being to ensure the effectiveness of the rights in the Directive. There is little doubt that the ECJ was influenced by the fact that the state was seeking to rely on its own default, its failure to implement the Directive coupled with the misleading advice, to defeat the applicant’s claim. Similar considerations have influenced the ECJ in other cases.27 The Emmott ruling has, however, been interpreted narrowly and particular emphasis has been laid on the misleading conduct of the national authorities, as we shall see from the cases discussed later. It is nonetheless interesting to reflect on the rationale for the ECJ’s more strident jurisprudence during this period. Dougan proffers a number of suggestions.28 First it was clear that the Court was wrong to have so much faith in the adequacy of national rules; in fact, as the dispute in Factortame demonstrated, they often offered less than ­adequate levels of protection. Secondly, more and more Community claims were coming before the domestic courts, making the problem more visible. Thirdly, the character of such claims was changing significantly. As well as the economic interests of big business, the Court was being confronted with ordinary citizens asserting their right to the social

26  Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [1979] OJ L6/24. 27 Case C-377/89 Cotter and McDermott v Minister for Social Welfare and Attorney General [1991] ECR I-1155. 28  M Dougan, National Remedies before the Court of Justice: Issues of Harmonisation and Differentiation (Hart, 2004) 230.

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­ enefits of Community membership. Bearing in mind the drive for ‘Europe with a human b face’, coupled with the natural tendency of a system of decentralised enforcement to emphasise the role of the individual, this change may well have increased the Court’s inclination to increase the levels of protection guaranteed by Community law. Finally, the Court’s repeated requests for legislative intervention to address the ‘problem’ of national remedies had gone largely unheeded. So, if any thing was to be done to help the increasing number of citizens invoking the Community’s aid, the initiative lay with the judiciary.

5  National Remedial Autonomy and Effectiveness of EU Law: Judicial Retreat The preceding case law signalled the ECJ’s willingness to scrutinize closely national remedial provisions and intervene if they did not provide adequate and effective protection for the relevant EU right.29 There was little by way of deference to national remedial rules. Subsequent case law indicated some retreat in this regard.30

(A)  The Limiting of Marshall II The approach in Marshall II to the adequacy of national monetary remedies was distinguished and limited by Sutton.31 The applicant successfully challenged the refusal by the Member State to grant her an invalid care allowance, on the ground that this was in breach of Directive 79/7 on equal treatment in social security. She was awarded arrears of benefit, but not interest, because national law did not provide for payment of interest on social security benefits. The applicant argued that the wording of Article  6 of Directive 79/7 was very close to that of Article 6 of Directive 76/207, which was in issue in Marshall II, and that since both provisions were concerned with equal treatment payment of interest should therefore be awarded as it had been in Marshall II.

29  See also Case C-312/93 Peterbroeck, Van Campenhout & Cie v Belgian State [1995] ECR I-4599, [12]; Cases C-430–431/93 Van Schijndel & Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705, [17]. 30  A Ward, ‘Effective Sanctions in EC Law: A Moving Boundary in the Division of Competence’ (1995) 1 ELJ 205; E Chiti, ‘Towards a Unified Judicial Protection in Europe(?)’ (1997) 9 ERPL 553; C Himsworth, ‘Things Fall Apart: The Harmonisation of Community Judicial Protection Revisited’ (1997) 22  ELRev  291; R Craufurd Smith, ‘Remedies for Breaches of EU Law in National Courts: Legal Variation and Selection’ in P  Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999) Ch 8; R Caranta ‘Diritto comunitatio e tutela giuridica di fronte al giudice amministrativo italiano’ (2000) Rivista Trimestrale di Diritto Pubblico 81; A Ward, Judicial Review and the Rights of Private Parties in EC Law (Oxford University Press, 2nd edn, 2007) Chs 2–4; P Craig and G de Búrca, EU Law: Text, Cases, and Materials (Oxford University Press, 6th edn, 2015) Ch 8; Dougan (n 28) Ch 5; M Dougan, ‘The Vicissitudes of Life at the Coalface: Remedies and Procedures for Enforcing EU Law before the National Courts’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 2nd edn, 2011) Ch 11; A Arnull, ‘The Principle of Effective Judicial Protection in EU Law: An Unruly Horse’ (2011) 36 ELRev 51. 31  Case C-66/95 R v Secretary of State for Social Security, ex p Eunice Sutton [1997] ECR I-2163.

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The ECJ disagreed. Marshall II concerned the award of interest on amounts payable for loss sustained by discriminatory dismissal. The present action concerned the right to receive interest on amounts payable for social security benefits, and since these payments did not constitute reparation for loss or damage the reasoning in Marshall II was not applicable. Since social security benefits were not compensatory in nature, payment of interest could not be required on the basis either of Article 6 of Directive 76/207 or of Article 6 of Directive 79/7. The reasoning in Sutton appeared to confine Marshall II to cases of discriminatory dismissal under Directive 76/207, or at the very least it suggested that the extent to which the ECJ would intrude on national remedies would depend on the nature of the EU right infringed. Social security benefits are certainly factually different from compensation for loss or damage. It is, however, questionable whether this difference should have led to the consequences in Sutton, where the ECJ gave much less regard to the adequacy of the national remedy as compared to Marshall II.

(B)  The Limiting of Emmott The ECJ also retracted from the broader implications of Emmott in SteenhorstNeerings.32 The applicant brought an action for retrospective payment of disability benefits, because the Social Security Directive had not been properly implemented in Dutch law. The national law stated that such benefits should not be payable r­ etroactively for more than one year. The ECJ held that the right to claim incapacity benefits for work under the same conditions as men, conferred on married women by the direct effect of Article 4(1) of  Directive 79/7, must be exercised under conditions determined by national law, ­provided that they were no less favourable than those relating to similar domestic actions and that they did not render virtually impossible the exercise of rights conferred by EU law. It held that the national rule restricting the retroactive effect of a claim for benefits for incapacity for work satisfied these conditions. The Commission argued by way of analogy from Emmott that time limits for actions brought by individuals who sought to avail themselves of their rights were applicable only when a Member State had properly transposed the Directive, and contended that the same principle should govern this case. The ECJ rejected the analogy. It reasoned that the national rule in this case was concerned not with the time limits for bringing an action, but merely limited the ­retroactive effect of claims made for the purpose of obtaining the relevant benefits. The ECJ accepted that Emmott established that the policy behind time limits could not prevail over the protection of directly effective rights flowing from a directive so long as the 32  Case C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475. See however Case C-246/96 Magorrian and Cunningham v Eastern Health and Social Services Board [1997] ECR I-7153 and Case C-78/98 Preston v Wolverhampton Healthcare NHS Trust [2000] ECR I-3201.

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defaulting Member State responsible for those decisions had not properly transposed the provisions into national law. The ECJ held, however, that the policy behind the rule restricting the retroactive effect of claims was designed to ensure sound administration, by enabling the administration to ascertain whether the claimant satisfied the conditions for eligibility, so that the degree of incapacity, which might vary over time, could be fixed. It also preserved financial balance, in the sense that the scheme was predicated on the assumption that claims submitted by those insured in the course of a year should in principle be covered by contributions collected during that same year. The judgment in Steenhorst-Neerings clearly limited the force of Emmott.33 It is true that there is a factual difference between a mandatory time bar and a rule that limits the retroactive period for which a benefit can be claimed. It is equally clear that the ECJ in Steenhorst-Neerings was willing to allow this difference to mask the deeper point of congruence between that case and Emmott. The applicant in Steenhorst-Neerings was unlawfully prevented from claiming benefits to which she was entitled under a Directive that had not been properly implemented by the Member State, and the national rule now limited the extent to which she could claim that benefit retroactively. This rule weakened the Directive and significantly reduced the adequacy and ­effectiveness of the available remedy by restricting it to one year’s benefit only. There were policy reasons behind the state’s rule. However, whereas in Emmott the ECJ a­ cknowledged the policy reasons behind the time bar rule, but was willing to override them where the Directive had not been implemented, in Steenhorst-Neerings the ECJ was unwilling to take the same step, notwithstanding the fact that the contested state rule limited the benefits that she would have obtained if the Directive had been ­properly implemented at the right time. The broader principle articulated in Emmott, that a Member State could not rely on domestic procedural restrictions to inhibit an applicant’s claim to rights under a directive until that directive had been properly implemented, was abandoned. Emmott was further limited in subsequent cases. The ECJ reinforced its ruling in Steenhorst-Neerings in Johnson II, holding that even where a Member State’s concerns relating to administrative convenience and financial balance were not in issue, a provision restricting the retroactive effect of a claim for a non-contributory incapacity ­benefit to one year was compatible with EU law.34 It stressed that the solution in Emmott was justified by its particular circumstances, where a time-bar deprived an applicant of any opportunity whatever to rely on her right to equal treatment under the Directive.35 This was also the reading of Emmott in Fantask A/S.36 The applicant sought to recover charges levied by Denmark in breach of a Directive, but fell outside the 33  L Flynn, ‘Whatever Happened to Emmott? The Perfecting of Community Rules on National Time Limits’ in C Kilpatrick, T Novitz, and P Skidmore (eds), The Future of Remedies in Europe (Hart, 2000) Ch 2. 34  Case C-410/92 Johnson v Chief Adjudication Officer [1994] ECR I-5483; Case C-394/93 Alonso-Pérez v Bundesanstalt für Arbeit [1995] ECR I-4101; Case C-231/96 Edis v Ministero delle Finanze [1998] ECR I-4951. 35  Case C-410/92 Johnson (n 34) [26]; Cases C-114–115/95 Texaco A/S v Havn [1997] ECR I-4263, [48]; Case C-90/94 Haahr Petroleum v Havn [1997] ECR I-4085, [51]–[52]; Case C-229/96 Aprile v Amminstrazione delle Finanze dello Stato [1998] ECR I-7141, [35]–[41]. 36  Case C-188/95 Fantask A/S v Industriministeriet [1997] ECR I-6783; Case C-88/99 Roquette Frères SA v Direction des Services Fiscaux du Pas-de-Calais [2000] ECR I-10465.

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­ ve-year limitation period. The ECJ rejected the applicant’s argument that the start of fi the time limit should by parity of reasoning with Emmott be postponed until Denmark had correctly implemented the Directive. The ECJ emphasized once again the specific circumstances of Emmott and was unwilling to apply it to the case at hand. Emmott seems limited to instances where there has been misrepresentation or ­misleading advice from the person seeking to rely on the time limit. Advocate General Jacobs37 suggested that the fact that the Member State was at fault in Emmott and m ­ isled the applicant was especially pertinent. This factor has been emphasized in later cases. Thus in Levez38 the ECJ held that Community law precluded the application of a national rule that limited an employee’s entitlement to arrears of remuneration or damages for breach of the principle of equal pay to a period of two years prior to the date on which the proceedings were instituted, with no possibility of extending the period, where the delay in bringing the claim was attributable to the fact that the employer deliberately misrepresented to the employee the level of remuneration received by persons of the opposite sex performing like work. To allow this to occur would, said the ECJ, be manifestly incompatible with the principle of effectiveness.39 Similar considerations were evident in Santex,40 although the behaviour of the defendant was not so egregious. The applicant objected to a condition contained in an invitation to tender because it was inconsistent with the Directive on public procurement.41 The defendant public authority told tenderers that it would not be treated as an absolute condition for eligibility, but then changed its position and excluded all those that did not conform to the original notice. The applicant could not seek judicial review since it was outside the sixty-day limitation period that ran from the date of the o ­ riginal notice. The ECJ held that while the sixty-day limitation period would generally be regarded as ensuring the effective protection of the relevant Community right, this case was different because it was the conduct of the public authority that rendered it practically impossible for the applicant to bring its claim within the limitation period.

(C)  The Implications for Marshall II Steenhorst-Neerings not only limited Emmott, but also had negative implications for the principle of adequacy of compensation established in Marshall II. It was not clear why the reasoning in Marshall II that the limits on the quantum of compensation and the lack of power to award interest fell below the required standards of adequacy and

37  Case C-62/93 BP Supergas v Greece [1995] ECR I-1883, [55]–[59]; Case C-2/94 Denkavit International BV v Kamer van Koophandel en Fabrieken voor Midden-Gelderland [1996] ECR I-2827, [74]; F Jacobs, ‘Enforcing Community Rights and Obligations in National Courts: Striking the Balance’ in J Lonbay and A Biondi (eds), Remedies for Breach of EC Law (Wiley, 1997) 25, 29. 38  Case C-326/96 Levez v Jennings Ltd [1998] ECR I-7835, [34]. 39  Ibid [32]. 40  Case C-327/00 Santex SpA v Unità Socio Sanitaria Locale n.42 di Pavia, Sca Mölnlycke SpA, Artsana SpA and Fater SpA [2003] ECR I-1877; Case C-241/06 Lämmerzahl GmbH v Freie Hansestadt Bremen [2007] ECR I-8415. 41  Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts [1993] OJ L199/1.

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effectiveness of national remedies, should not also have been applicable in SteenhorstNeerings, given that the restriction of the retroactive effect of the claim for benefits could, in relative terms, have an equally significant impact on the quantum of money received by the applicant.42

6  National Remedial Autonomy and Effectiveness of EU Law: A Nuanced Approach EU law often ebbs and flows, with periods of activism followed by restraint, to be ­followed yet again by the development of a middle way. There are indications of this in the present context. The ECJ continues to apply the principles of equivalence and ­effectiveness, but it does so in a nuanced manner. The approach was initially identified by de Búrca when discussing whether national courts could be compelled to consider EU law points of their own motion:43 the ECJ will look closely at the national remedial provision pertaining to the enforcement of the Union right, and will examine whether the provision viewed against the specific circumstances of the case and the nature of the EU right renders the exercise of that right excessively difficult. The purpose of the national rule will therefore be examined and weighed against the degree to which it restricts enforcement of the EU right. This entails, as de Búrca notes, a kind of proportionality test for weighing the impact of a national rule on a particular EU right against the legitimate aim served by that rule. Dougan also perceives analogies between this method and the objective justification model developed in the context of free movement and equal treatment.44 As the CJEU stated in Raiffeisen Bank,45 ‘every case in which the question arises whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, before the various national bodies’. This approach can be seen in a number of areas.

(A) National Courts and Consideration of EU Law at Their Own Motion The way in which national procedural rules might impact on the exercise of the EU right was central to cases concerning the capacity of national courts to consider 42  Dougan (n 28) 270–1; B Fitzpatrick and E Szyszczak, ‘Remedies and Effective Judicial Protection in Community Law’ (1994) 57 MLR 434; J Coppel, ‘Time Up for Emmott?’ (1996) 25 ILJ 153; S Prechal, ‘EC Requirements for an Effective Remedy’ in Lonbay and Biondi (n 37) Ch 1. 43  G de Búrca, ‘National Procedural Rules and Remedies: The Changing Approach of the Court of Justice’ in Lonbay and Biondi (n 37) Ch 4. 44  Dougan (n 28) 30. 45 Case C-567/13 Nóra Baczó and János István Vizsnyiczai v Raiffeisen Bank Zrt, EU:C:2015:88, [49]; Case  C-662/13 Surgicare—Unidades de Saúde SA v Fazenda Pública, EU:C:2015:89, [28]; Case C-377/14 Radlinger and Radlingerová v Finway as, EU:C:201283, [50].

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points of EU law of their own motion. The issue arose in Van Schijndel46 and in Peterbroeck.47 In Van Schijndel the applicants argued that the national appeal court ought to have considered, if necessary of its own motion, the compatibility of a compulsory pension fund provision with EC competition law, even though they had not previously raised any point of EC law. Under Dutch law, this plea involving a new argument could only be made where no factual examination was required, and the court could not raise such points of law of its own motion. The ECJ began by setting out the basic notion of national procedural autonomy, qualified by the principles of equivalence and practical effectiveness. It then stated that ‘each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special ­features, viewed as a whole’.48 This was so for basic principles of the domestic judicial system, such as the protection of the rights of the defence, the principle of legal ­certainty, and the proper conduct of procedure. The ECJ acknowledged that national limits concerning the extent to which a court could raise points of its own motion were premised on certain precepts, these being that: a court should keep to the subject matter of the dispute; that it should base its decision on the facts before it; and that in a civil suit it was for the parties to take the initiative, the court being able to act of its own motion only in exceptional cases where the public interest requires its intervention. This thereby safeguarded the rights of the defence and ensured proper conduct of proceedings.49 Community law did not, therefore, require national courts to raise a matter of Community law of their own motion where that would ‘oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim.’50 While the ECJ therefore upheld the national rule, it is the approach that is of interest here. The objective of the national rule preventing courts from raising matters of their own motion was examined and the purposes thus identified were then factored into the decision as to whether that rule rendered the exercise of the EU right ­excessively difficult. The ECJ reached the opposite conclusion on the facts in Peterbroeck.51 The case concerned a procedural provision of the Belgian Tax Code that prevented the parties and the court from raising a point of EC law after sixty days. The rationale for the provision 46  Cases C-430–431/93 Van Schijndel (n 29). 47  Case C-312/93 Peterbroeck (n 29). 48  Cases C-430–431/93 Van Schijndel (n 29) [19]. See also Case C-327/00 Santex (n 40) [56]; Case C-63/01 Evans v Secretary of State for the Environment, Transport and the Regions and the Motor Insurers’ Bureau [2003] ECR I-14447, [46]; Cases C-222–225/05 J van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit [2007] ECR I-4233, [33]; Case C-432/05 Unibet (n 6) [54]; Case C-426/05 Tele2 Telecommunication GmbH v Telekom-Control-Kommission [2008] ECR I-685, [55]. 49  Cases C-430–431/93 Van Schijndel (n 29) [20]–[21]. 50  Ibid [22]. 51  Case C-312/93 Peterbroeck (n 29).

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was to ensure legal certainty and the proper conduct of the proceedings. The ECJ ­concluded that while the sixty-day period was reasonable, the application of the rule in the instant case rendered the exercise of the Community right excessively difficult, because no court had had the opportunity to refer the point of EC law to the ECJ.52 The ECJ has considered the same issue on other occasions.53 The nature of the EU right at stake, and the extent to which the national procedural rule limits the e­ ffectiveness of that right, is central to the ECJ’s reasoning.54 The Océano case is especially interesting in this respect. The ECJ held that the aims of the Unfair Contract Terms Directive would not be ensured if the consumer were obliged to raise the unfair nature of such terms. The national court must therefore acknowledge that it had ‘power to evaluate terms of this kind of its own motion’.55 The need to ensure the effectiveness of the EU right, the protection of consumers, meant that the national court must at least have the power to raise points of its own motion. This reasoning was extended in Cofidis56 where the ECJ held that a national rule that prohibited a national court, on expiry of a limitation period, from finding on its own motion or following a plea raised by the consumer that a contract term sought to be enforced by the seller was unfair, would render application of the protections in the Unfair Contract Terms Directive excessively difficult.57 More recently, the CJEU held in Radlinger that Article 7(1) of Directive 93/1358 should be interpreted to preclude national legislation, which in ­insolvency proceedings did not permit the court hearing the action to examine of its own motion any unfairness of contractual terms on which the claims declared in those proceedings were based, even when it had available to it the matters of law and fact necessary to that end.59

(B) Procedures for Consideration of Compatibility of National Law with EU Law The nuanced approach adumbrated above is also apparent in Unibet,60 which was ­concerned with national procedures for challenging the compatibility of national law 52  de Búrca (n 43). 53  Case C-72/95 Aannemersbedrijf P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403; Case C-446/98 Fazenda Pública v Câmara Municipal do Porto [2000] ECR I-11435, [48]; Case C-1/06 Bonn Fleisch Ex- und Import GmbH v Hauptzollamt Hamburg-Jonas [2007] ECR I-5609. 54  Cases C-222–225/05 van der Weerd (n 48) [39]–[41]. 55  Cases C-240–244/98 Océano Grupo Editorial v Roció Murciano Quintero [2000] ECR I-4491, [26]; Case C-168/05 Elisa María Mostaza Claro v Centro Móvil Milenium SL [2006] ECR I-10421; Case C-429/05 Max Rampion and Marie-Jeanne Godard, née Rampion v Franfinance SA and K par K SAS [2007] ECR I-8017; Case C-397/11 Jőrös v Aegon Magyarország Hitel Zrt, EU:C:2013:340. 56  Case C-473/00 Cofidis SA v Fredout [2002] ECR I-10875, [35]–[38]. 57  See also Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV [1999] ECR I-3055, [36]–[37]. In the Commission Notice on Co-operation between the Commission and Courts of EU Member States in the Application of Articles 81 and 82 EC [2004] OJ C101/54, [3], the Commission accepts the judicial passivity principle from Van Schijndel, but also states that where a national court has discretion to raise a point of its own motion this must be exercised to raise a point of EU competition law. 58  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L95/29. 59  Case C-377/14 Radlinger (n 45) [59]. 60  Case C-432/05 Unibet (n 6).

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with EU law. The ECJ considered whether the principle of effective judicial protection meant that national law must make provision for a free-standing action to determine whether national provisions were compatible with EU law, or whether it sufficed that other national legal remedies permitted the question of compatibility to be determined as a preliminary issue. The ECJ held that EU law did not demand the creation of new national remedies to ensure the observance of EU law, unless there was no remedy in the national legal system to ensure, even indirectly, respect for an individual’s rights under Union law. Subject to that caveat, the national procedural rules would be assessed under the twin criteria of equivalence and effectiveness. The ECJ concluded that the relevant rules of Swedish law complied with the principle of equivalence. In relation to effectiveness, the ECJ used the criteria developed in Van Schindjel and analysed the national rule by reference to ‘the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances’.61 It concluded that EU law did not require there to be a free-standing action to determine whether national provisions were compatible with EU law, provided that other effective legal remedies, such as judicial review or a damages action, made it possible for the compatibility question to be determined as a preliminary issue.62 The issue arose again in Impact.63 The ECJ held that the principle of effectiveness required that a specialized court established by national legislation transposing Directive 1999/70 on the framework agreement on fixed-term work to hear claims based on infringement of that legislation, must also have jurisdiction to hear an applicant’s claims arising directly from the Directive between the date of the deadline for transposing the Directive and the date on which the transposing legislation entered into force, if the requirement to bring a separate claim based on the Directive before an ordinary court would involve procedural disadvantages, which would make it excessively difficult to exercise the EU rights. It was for the national court to determine whether this was so. The principle of effective judicial protection can also have implications for the conditions on which an individual can raise a challenge to EU law in national courts. Thus in DEB, the ECJ ruled that the principle of effective judicial protection in Article 47 of the Charter covered legal as well as natural persons, and required that legal aid granted may cover dispensation from advance payment of the costs of proceedings and the

61  Ibid [54]. 62  The possibility of raising the compatibility of national law with EU law by way of defence to a criminal action or an administrative action imposing penalties was not regarded as securing effective judicial protection, ibid [64]. 63  Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483. See also Cases C-378– 380/07 Kiriaki Angelidaki and Others [2009] ECR I-03071; Case C-241/06 Lämmerzahl GmbH v Freie Hansestadt Bremen [2008] ECR I-8415; Case C-69/08 Raffaello Visciano v Istituto nazionale della previdenza sociale (INPS) [2009] ECR I-6741; Case C-12/08 Mono Car Styling SA, in liquidation v Dervis Odemis [2009] ECR I-6653; Cases C-317–320/08 Rosalba Alassini v Telecom Italia SpA [2010] ECR I-2213; Case C-69/10 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration [2011] ECR I-7151.

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assistance of a lawyer.64 It was for national courts to determine whether the conditions for granting legal aid constituted a disproportionate limitation on the right of access to court or not.65 The principle of effectiveness was also held to be violated in Klausner Holz Niedersachsen.66 The CJEU held that a national rule which prevents the national court from drawing all the consequences of a breach of the third sentence of Article 108(3) TFEU, because of a decision of a national court, which was res judicata, given in a dispute which did not have the same subject matter and which did not concern the state aid characteristics of the contracts at issue, was not compatible with the principle of effectiveness. It created a significant obstacle to the effective application of EU law, and a principle as fundamental as control of state aid could not be justified either by the principle of res judicata or by the principle of legal certainty.

(C)  Limitation Periods The approach identified by de Búrca is also evident in relation to limitation periods. The general principle is that national limitation rules will be accepted provided that they are no less favourable than those governing similar domestic actions, the principle of equivalence, and do not render exercise of the EU right excessively difficult or impossible, the principle of effectiveness. Reasonable limitation periods will therefore be compatible with EU law.67 The principle of equivalence does not oblige a Member State to extend its most favourable rules governing recovery under national law to all actions for repayment of charges levied in breach of EU law. It is open to a Member State, for example, to lay down, alongside the limitation period applicable under ordinary law to actions between private individuals for the recovery of sums paid but not due, special rules, which are less favourable, governing claims to challenge the imposition of charges. The principle of equivalence would be violated only if the rules imposing less favourable time limits applied solely to actions based on EU law for the repayment of such charges or levies.68 The ECJ will, therefore, normally accept the national limitation period. It will not, however, do so if it feels that it violates the principle of equivalence, or if it renders exercise of the EU right excessively difficult. 64  Case C-279/09 DEB v Bundesrepublik Deutschland [2010] ECR I-13849. 65  Ibid [60]–[62]. 66  Case C-505/14 Klausner Holz Niedersachsen GmbH v Land Nordrhein-Westfalen, EU:C:2015:742, [45]; Case C-49/14 Finanmadrid EFC SA v Jesús Vicente Albán Zambrano, EU:C:2016:98. 67  See, eg, Case C-231/96 Edis (n 34) [34]–[35]; Case C-126/97 Eco Swiss (n 57); Case C-30/02 Recheio-Cash and Carry SA v Fazenda Pública/Registo Nacional de Pessoas Colectivas and Ministério Público [2004] ECR I-6051, [17]–[18]; Cases C-295–298/04 Vincenzo Manfredi (n 18) [81]–[82]; Case 2/06 Willy Kempter KG v Hauptzollamt Hamburg-Jonas [2008] ECR I-411, [58]; Case C-542/08 Friedrich G Barth v Bundesministerium für Wissenschaft und Forschung [2010] ECR I-3189. 68  Case C-231/96 Edis (n 34) [36]–[37]; Case C-260/96 Ministero delle Finanze v Spac [1998] ECR I-4997, [20]–[21]; Case C-229/96 Aprile (n 35) [20]–[21]; Case C-343/96 Dilexport v Amministrazione delle Finanze dello Stato [1999] ECR I-579; Case C-88/99 Roquette Frères (n 36) [29]–[30].

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In Levez the pertinent issue was the equivalence of the national remedy.69 It will be remembered that the case concerned an employee who sought damages for arrears in payment denied to her in breach of the equal pay provision of the Treaty, and that the ECJ held that the two-year limit on arrears of damages could not be applied because the employer’s deception caused the delay. The UK argued that the time limit should nonetheless apply, because there was an alternative remedy before the County Court in an action for deceit against her employer and an action based on the Equal Pay Act. The ECJ accepted that the alternative remedies meant that exercise of her right was not rendered ineffective,70 and then considered the issue of equivalence. It was for the national court to determine compliance with the principle of ­equivalence in the light of the purpose and essential characteristics of allegedly similar domestic actions. When deciding whether a national procedural rule was less ­favourable than the rules governing similar domestic actions, the national court should take into account the role played by that provision in the procedure as a whole, as well as the operation and any special features of that procedure before the different national courts.71 It was, therefore, necessary to identify actions that could be regarded as similar under national law and decide whether the applicable procedural rules were less favourable. It was appropriate to consider whether, for example, the applicant if asserting her EU rights before the County Court would incur additional costs and delay by comparison with a claimant who, because she was relying on a similar right under domestic law, could proceed before the Industrial Tribunal.72 In Pflücke the pertinent issue was effectiveness rather than equivalence.73 The ECJ considered whether it was permissible for Germany to impose a two-month time limit for payments by the national guarantee institution that administered a Directive designed to protect workers in the event of insolvency.74 The Directive was silent as to time limits, but the ECJ concluded that it was permissible for states to impose such limits, provided that they complied with the principles of equivalence and ­effectiveness. Reasonable time limits were compatible with EU law. It should, nonetheless, be recognized, said the ECJ, that salary claims were very significant for an individual and ­therefore the short time limit should not have the practical result that the individual would not be able to comply, and therefore fail to obtain the benefits of the Directive. The ECJ noted that the time limits in other Member States were significantly longer. It  was for  the national court to decide whether the German rule was justified by ­overriding considerations of legal certainty, but the ECJ made it clear that it disagreed 69  Case C-326/96 Levez (n 38). See also Case C-78/98 Preston (n 32) [62]–[63]. 70  Ibid [38]. 71  Ibid [43]–[44]. 72  Ibid [51]. 73  Case 125/01 Pflücke v Bundesanstalt für Arbeit [2003] ECR I-9375. See also Case C-62/00 Marks & Spencer v Commissioners of Customs and Excise [2002] ECR I-6325; Case C-255/00 Grundig Italiana SpA v Ministero delle Finanze [2002] ECR I-8003; Cases C-295–298/04 Vincenzo Manfredi (n 18) [81]–[82]; Case C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority [2010] ECR I-817, [40]–[43]; Case C-246/09 Susanne Bulicke v Deutsche Büro Service GmbH [2010] ECR I-7003, [40]–[41]. 74  Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to protection of employees in the event of the insolvency of their employer [1980] OJ L283/23.

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with a ­number of the justificatory arguments put forward by the German government, and the expectation was that the ECJ’s reasoning would be taken into account by the national court. In Preston the ECJ went further, holding that the principle of effectiveness precluded a national procedural rule requiring a claim for membership of an occupational ­pension scheme to be brought within six months of the end of each contract of employment to which the claim related, where there had been a stable employment relationship resulting from a succession of short-term contracts in respect of the same employment to which the pension scheme applied.75 The principle of effectiveness was also in issue in Commission v UK,76 where the CJEU held that UK legislation that retroactively curtailed, without notice or transitional arrangements, the right of taxpayers to recover taxes levied in breach of EU law, failed to comply with Article 4(3) TEU. Levez, Pflücke, Preston, and Commission v UK provide good examples of the approach adumbrated earlier. While the CJEU will generally accept national limitation periods, it is also willing to look closely at such provisions for compliance with equivalence and effectiveness. It will examine the purpose of the national rule and this will be weighed against the degree to which it restricts enforcement of the Union right.

(D)  Recovery of Interest The same approach is apparent in other areas, such as recovery of interest. This has, as we have seen, occupied the ECJ on more than one occasion. It was presented with the issue once again in Metallgesellschaft & Hoechst.77 The plaintiffs challenged the discriminatory imposition of advance corporation tax (ACT) on subsidiaries whose parent companies were not resident within the Member State. They claimed the ­interest they would have accrued if they had not been subject to discriminatory advance ­taxation. The ECJ accepted that it was for the national court to classify the action, either as restitution or compensation for damage. It was also for national law to settle ancillary questions such as the rate of interest and the date from which it should be calculated. It held, however, that payment of interest covering the cost of loss of the use of the sums paid by way of ACT was not ancillary, but was the plaintiffs’ very objective. In  such circumstances, ‘where the breach of Community law arises, not from the ­payment of the tax itself but from its being levied prematurely, the award of interest represents the “reimbursement” of that which was improperly paid and would appear to be essential in restoring the equal treatment guaranteed by Article 52 of the Treaty.’78 It brushed aside the national court’s concern as to whether English law provided for restitution for damage arising from loss of the use of money where no principal sum was due, with the terse response that in such a restitution action the principal sum due 75  Case C-78/98 (n 32) [64]–[72]. 76  Case C-640/13 European Commission v UK, EU:C:2014:2457. 77  Cases C-397 and 410/98 Metallgesellschaft Ltd and Hoechst AG and Hoechst (UK) Ltd v Commissioners of Inland Revenue and HM Attorney General [2001] ECR I-1727. 78  Ibid [87].

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was the interest that would have been generated by the sum, the use of which was lost as a result of the premature levy of the tax. The ECJ acknowledged that it had not always held recovery of interest to be an essential component of the relevant right, Sutton being the obvious example.79 However, the ECJ regarded the case as akin to Marshall II,80 where the award of interest was held to be an essential component of the compensation EU law required to be paid for discriminatory dismissal. So too here, the award of interest was essential to remedy the damage caused by breach of the Treaty, and hence was the essential component of the Treaty right conferred on them.81 The ECJ’s reasoning is instructive. It began with the nature of the substantive Union right and reasoned from that to the adequacy of the national remedy. It was this as opposed to national procedural autonomy that provided the focus of the Court’s judgment. To put the same point the other way round, the national rule was weighed against the degree to which it restricted enforcement of the EU right, and given that the essence of the EU right was payment of interest, then a national rule that precluded this could not stand. The Evans case is equally instructive.82 The applicant argued that Directives on the provision of compensation for those injured by an unidentified vehicle required the payment of interest, even though the relevant Directive contained no express provision for payment of interest. The ECJ nonetheless held that compensation for loss was intended to provide restitution for the accident victim and that in accord with Marshall II such compensation could not leave out of account factors such as effluxion of time, which might reduce its value. It was for the Member State to decide how to take account of this factor. It might do so by payment of interest, or payment of an aggregate sum that took the passage of time into account.

(E)  Recovery of Sums Unduly Levied We have already seen that the ECJ was especially concerned about the recovery of charges and taxes levied in breach of EU law.83 The general principle is that such charges should be repaid: the right to a refund of charges levied in a Member State in breach of EU law is the consequence and complement of the rights conferred on individuals by EU provisions as interpreted by the Court.84 This is subject to the qualification that the Member State might decline to reimburse where this would amount to unjust enrichment to the trader because he had passed on the charges to third parties, 79  Ibid [93]; Case C-66/95 Sutton (n 31). 80  Case C-271/91 Marshall (n 18). 81  Cases C-397 and 410/98 Metallgesellschaft (n 77) [93]–[94]; Case C-524/04 Test Claimants in the Thin Cap Group Litigation v Commissioners of Inland Revenue [2007] ECR I-2107. 82  Case C-63/01 Evans (n 48) [65]–[71]. 83  Case 199/82 San Giorgio (n 4); Case C-192/95 Comateb (n 4). 84  Case C-524/04 Thin Cap (n 81) [110]; Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, [202]; Case C-35/11 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue, EU:C:2012:707, [84].

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although even in such instances it is open to the trader to argue that he has suffered loss because the demand for his products and hence his profits have fallen as a result of the charge being passed on to consumers.85 Many of the cases have been concerned with provisions of national law dealing with this issue, and the EU Courts have looked at them closely to determine whether they render exercise of the Union right excessively difficult.86 Thus in Dilexport87 the ECJ considered a provision of Italian law concerning the recovery of charges levied by the state in breach of EU law, which stipulated that such charges could be recovered unless they had been passed on to others. The ECJ held that if there was a presumption that such duties or charges had been passed on to third parties and could not therefore be recovered unless the person who had paid the charge rebutted that presumption, this would be contrary to EU law, since it would make recovery excessively difficult. If, by way of contrast, it was for the administration to show by any form of evidence generally accepted under national law that the charge had been passed on to third parties then this would not be contrary to EU law. The same provision of Italian law was considered in Commission v Italy.88 The ECJ held that where such national legislation had been interpreted differently by national courts, some of the interpretations being consonant with EU law, others not so, then at the very least this meant that the national legislation was not sufficiently clear to ensure its application in conformity with EU law.89 It found, moreover, that the Corte Suprema di Cassazione in effect applied a presumption that charges levied in breach of EU law would be passed on and the ECJ held that this was contrary to Union law.90

(F) Recovery of Sums Unduly Paid The ECJ’s willingness to accept national remedial provisions that impact on the recovery of sums wrongly paid to individuals under EU law has also been influenced by the nature of the EU right in issue.91 The ECJ has made it clear that the obligation to recover sums that should not have been paid, although this might be stipulated by a particular agricultural regulation, flowed more fundamentally from the duty of cooperation in Article 4(3) TEU.92 The ECJ has, however, been willing to accept national remedial provisions in relation to 85  Case C-192/95 Comateb (n 4). 86  R Williams, Unjust Enrichment and Public Law: A Comparative Study of England, France and the EU (Hart, 2010) Ch 7; A Jones, Restitution and European Community Law (Mansfield Press, 2000). 87 Case C-343/96 Dilexport (n 68) [52]–[55]; Cases C-441–442/98 Kapniki Michaelidis AE v Idryma Koinonikon Asfaliseon (IKA) [2000] ECR I-7145, [27]–[42]; Case C-309/06 Marks & Spencer plc v Commissioners of Customs & Excise [2008] ECR I-2283, [41]–[44]; Case C-201/05 Test Claimants in the CFC and Dividend Group Litigation [2008] ECR I-2875. 88  Case C-129/00 Commission v Italy [2003] ECR I-14637. 89  Ibid [33]. 90  Ibid [35]. See also Case C-147/01 Weber’s Wine World Handels-GmbH v Abgabenberufungskommission Wien [2003] ECR I-11365. 91  Williams (n 86) Ch 7. 92  Case C 54/81 Firma Wilhelm Fromme v Bundesanstalt für Landwirtschaftliche Marktordnung [1982] ECR 1449.

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the recovery of agricultural subsidies that should not have been paid. Thus in SteffHoulberg93 it held that EU law did not preclude a national rule that prevented recovery of export refunds paid under the Common Agricultural Policy, where regard was had to criteria such as the negligence of the national authorities and the elapse of time since payment of the aid. This was subject to the provisos that the recipient of the funds acted in good faith, that the same conditions applied to recovery of Union funds as to national funds and that the EU’s interest was fully taken into account. The ECJ has, by way of contrast, been more reluctant to accept limits on recovery that might be imposed by national law in the context of state aids. The imperative to prohibit illegal state aid is especially strong, with the corollary that illegal aid should be recovered. In Commission v Germany94 it held that recipients of state aid could not have a legitimate expectation that the aid was lawful unless it had been granted in accordance with the procedure in Article  108 TFEU. National concepts such as ­legitimate expectations could not be relied upon if this would make it impossible to recover the aid, such as where national doctrine set time limits for the revocation of administrative acts. The circumstances in which recovery of illegal aid should not be ordered were very exceptional.95

(G)  Cause of Action The linkage between the substantive Union right and the remedy at national level is apparent again in the ECJ’s willingness to stipulate that a particular EU right requires a cause of action in damages. Thus in Crehan96 the ECJ held that the full effectiveness of what is now Article 101 TFEU would be put at risk if it were not open to any individual, even a party to the agreement, to claim damages for loss caused by a contract, or by conduct liable to distort competition. There should not, therefore, be any absolute bar in national law to such actions, even by parties to the agreement. It was, however, open to national law to prevent a party from being unjustly enriched, or profit from his unlawful conduct. The national court should take into account the respective bargaining strength of the 93  Case C-366/95 Landbrugsministeriet—EF-Direktoratet v Steff-Houlberg Export [1998] ECR I-2661. See also Cases 205–215/82 Deutsche Milch-Kontor GmbH v Germany [1983] ECR 2633, [33]; Case C-298/96 Oelmühle Hamburg v Bundesanstalt für Landwirtschaft und Ernährung [1998] ECR I-4767; Case C-336/00 Republik Österreich v Martin Huber [2002] ECR I-7699; Case C-158/06 Stichting ROM-projecten v Staatssecretaris van Economische Zaken [2007] ECR I-5103. 94  Case C-5/89 Commission v Germany [1990] ECR I–3437; Case C-24/95 Land Rheinland-Pfalz v Alcan Deutschland GmbH [1997] ECR I-1591; Case C-199/06 Centre d’exportation du livre français (CELF) and Ministre de la Culture et de la Communication v Société internationale de diffusion et d’édition (SIDE) [2008] ECR I-469; Cases T-239 and 323/04 Italy and Brandt Italia SpA v Commission [2009] ECR II-3265. 95  Case C-354/90 Fédération Nationale du Commerce Extérieur des Produits Alimentaires v France [1991] ECR I-5505; Cases T-116 and 118/01 P & O European Ferries (Vizcaya), SA and Diputación Foral de Vizcaya v Commission [2003] ECR II-2957, [201]–[213]. 96  Case C-453/99 Courage Ltd v Crehan [2001] ECR I-6297, [26]–[36]; Cases C-295–298/04 Vincenzo Manfredi (n 18); S Drake, ‘Scope of Courage and the Principle of “Individual Liability” for Damages’ (2006) 6 ELRev 841.

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c­ ontracting parties, and the extent to which a contracting party had responsibility for the breach of Article 101. Similarly in Muñoz, the full effectiveness of the EU rules on quality standards was held by the ECJ to require that a civil action based on non-compliance with these rules should be available.97

7  National Remedial Autonomy and Effectiveness of EU Law: An Assessment The preceding case law is complex. It is therefore important to stand back and consider the extent to which EU law ought to intrude on national remedies. There are, not surprisingly, differing views on this. Some have argued that the uniformity of EU law requires close control over national procedures and remedies. Procedures and remedies vary from state to state. To allow any significant measure of remedial autonomy would, therefore, lead to inequality and unfairness in the protections provided by EU law and jeopardize its uniform application.98 The solution proffered varies. It is generally recognized that the creation of a single European judicial system to obviate these problems is not feasible politically or legally. A more realistic option would be to press for greater harmonization of ­procedural and remedial provisions to be administered by the existing national legal systems. The most plausible way forward in this respect would be for EU legislation that applies within different sectoral areas to specify the procedures and remedies that should be provided with greater exactitude than hitherto. The EU legislature has not, however, generally done this,99 and as we have seen the EU judiciary have not generally sought to fill this legislative gap. Others have questioned the need for or desirability of increased EU intervention over procedures. There has been concern that excessive reliance on the principle of effectiveness of EU law could undermine values embodied in national procedures, whether these are legal certainty, judicial passivity, or the quantum of damages that should be recoverable for a certain violation.100 There is the related argument that the imposition of EU principles for the grant of remedies could interfere with the cultural plurality of legal systems in the Union.101 A more far-reaching challenge to the need for greater EU intervention in relation to remedies has been put by Dougan, who questions 97  Case C-253/00 Muñoz v Frumar [2002] ECR I-7289. Compare Case C-13/01 Safalero Srl v Prefetto di Genova [2003] ECR I-8679. 98  M Bridge, ‘Procedural Aspects of the Enforcement of European Community Law through the Legal Systems of Member States’ (1984) 9 ELRev 28; Chiti (n 30). 99  Dougan (n 28) 101–4. 100 M Hoskins, ‘Tilting the Balance: Remedies and National Procedural Rules’ (1996) 21  ELRev  365; Dougan (n 28) 105–10. 101  C Harlow, ‘A Common European Law of Remedies?’ in Kilpatrick, Novitz, and Skidmore (n 33) Ch 3; C Harlow, ‘Voices of Difference in a Pluralist Community’ in P Beaumont, C Lyons, and N Walker (eds), Convergence and Divergence in European Public Law (Hart, 2002) Ch 11.

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the very imperative of uniformity and argues that differentiation in a whole range of areas is now accepted as part of the EU legal and political order and that it is desirable that this should be so.102 Dougan acknowledges that the imperative of uniformity is still important in certain areas. He suggests, therefore, that uniformity should be interpreted at a sectoral level, ‘selectively matching the required level of remedial and procedural harmonization to the actual degree of substantive approximation achieved within any given policy area, and therefore to the variegated nature of the Community’s current programmes for supranational integration’.103 The literature on this topic is rich and diverse,104 and there is much to be said for the differing points of view. My own view is as follows. It is axiomatic that rights demand effective remedies. There are two dimensions to this in the EU. There is the extent to which the procedures, whatsoever they might be, operate uniformly across the Member States. There can be difficulties in framing EU legislation to enhance uniformity in a particular area. In the absence of such legislation it is problematic for this to be done by courts in any systematic manner. They would have to decide on the uniform p ­ rocedural requirements that should be imposed, define the areas to which they would apply, and achieve this in a way that was acceptable to national legal orders. Adjudication is inherently ill-suited to this task, more especially because particular national ­procedures will normally be part of a broader framework of civil procedure in which the particular rules interact. There is a related but separate issue of how the procedure provided for in any one Member State impacts on the effectiveness of the relevant EU right. This has been the ECJ’s principal focus throughout. The ebbs and flows in the jurisprudence relate to the extent to which the ECJ has been willing to limit national remedial autonomy in order to ensure the effectiveness of the Union right. It is true that a by-product of this case law might be a degree of uniformity across the Member States. Thus, other things being equal, the more vigorously the Court scrutinizes national procedural rules to determine whether they unduly limit the EU right, the more likely it is that the resulting principle will be capable of application in other Member States. Thus Emmott, before being curtailed, stood for the principle that national procedural rules limiting actions could not preclude an action before a directive had been implemented. While the ECJ’s case law can therefore have an indirect harmonizing impact, the thrust of this jurisprudence has been to ensure that the procedure applied in the particular Member State does not impact unduly on the effectiveness of the Union right. The key issue then becomes how vigorously the ECJ should scrutinize the national rules to determine the answer to this inquiry, an issue on which views will differ. My 102  Dougan (n 28) 111–12, Chs 3–4. 103  Ibid 202. 104  See, eg, in addition to the literature cited above, S Weatherill, ‘Addressing Problems of Imbalanced Implementation in EC Law: Remedies in an Institutional Perspective’ in Kilpatrick, Novitz, and Skidmore (n 33) Ch 4; A Arnull, ‘Rights and Remedies: Restraint or Activism’ in Lonbay and Biondi (n 37) Ch 2; J Delicostopoulos, ‘Towards European Procedural Primacy in National Legal Systems’ (2003) 9 ELJ 599; J Jans, ‘Harmonization of National Procedural Law by the Back Door?’ in M Bulterman, L Hancher, A McDonnell, and H Sevenster (eds), Views of European Law from the Mountain (Kluwer Law International, 2009).

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view is that the ECJ’s case law even in its most activist period as represented by Emmott/ Marshall II/Dekker was legitimate. The reasoning in these cases was forceful, but the result did not entail untoward incursion into national remedial autonomy. To be sure these judicial decisions meant that national procedural values had to be modified, but membership of a Union naturally entails modification of substantive values and there is no reason why procedural values should be immune in this regard. In any event, I am also content with the nuanced approach found in recent case law. An approach that considers the purpose of the national procedural rule and considers whether this should be upheld in the light of its impact on the EU right is well suited to balance the contending interests in these cases, even if the nature of the test means that there will inevitably be a degree of uncertainty as to its application.105 This nuanced approach has been applied robustly in a number of recent cases.106 It should, moreover, be noted that Article 19(1) TEU states that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. We have already seen that the ECJ’s jurisprudence has been strongly influenced by the notion of effectiveness and effective protection. The very fact that this has been constitutionalized in the Lisbon Treaty may well encourage the CJEU to be more searching in its analysis as to whether the national remedies really do provide the ­requisite protection of the EU right.

8  State Liability: The Francovich Foundations The discussion thus far has been concerned with the extent to which EU law impinges on national remedial autonomy. Member State liability is, however, also dependent upon the extent to which Union law fashions its own causes of action that must be applied in all states. The best known example is the principle of state liability in damages. The seminal decision was Francovich.107 The applicants sued the Italian state because of the government’s failure to implement Directive 80/987 on the protection of employees in the event of their employer’s insolvency. Their employer had become insolvent, but they were unable to recover their wages because Italy had not implemented the 105  EU law should not however demand better enforcement of Union law by national courts than that provided at European level. This was recognized in Case C-120/97 Upjohn Ltd v The Licensing Authority Established by the Medicines Act 1968 [1999] ECR I-223, [35], and by Case C-352/98 P Laboratoires pharmaceutiques Bergaderm SA and Goupil v Commission [2000] ECR I-5291, [41]. 106  Case C-453/99 Courage (n 96); Case C–253/00 Muñoz (n 97); Cases C-397 and 410/98 Metallgesellschaft (n 77); Cases C-295–298/04 Vincenzo Manfredi (n 18); Case C-74/14 ‘Eturas’ UAB v Lietuvos Respublikos konkurencijos taryba, EU:C:2016:42; Case C-429/15 Danqua v Minister for Justice and Equality, EU:C:2016:789. 107  Cases C-6 and 9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357; D Curtin, ‘State Liability under Private Law: A New Remedy for Private Parties’ [1992] ILJ 74; R Caranta, ‘Judicial Protection Against Member States: A New Jus Commune Takes Shape’ (1995) 32 CMLRev 703; C Lewis and S Moore, ‘Duties, Directives and Damages in European Community Law’ [1993] PL 151; M Ross, ‘Beyond Francovich’ (1993) 56 MLR 55; P Craig, ‘Francovich, Remedies and the Scope of Damages Liability’ (1993) 109 LQR 595; J Steiner, ‘From Direct Effects to Francovich: Shifting Means of Enforcement of Community Law’ (1993) 18 ELRev 3.

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Directive. They argued that the state was liable to pay them the sums owed. The ECJ held that although the Directive lacked sufficient precision to be directly effective, it was nevertheless intended to confer rights on individuals, and stated that ‘the full ­effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain compensation when their rights are infringed by a breach of Community law for which a Member State can be held responsible’.108 It followed that ‘the principle of State liability for harm caused to individuals by breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty’.109 Further foundation for this obligation was located in what was Article 10 EC, requiring Member States to take all appropriate measures to ensure fulfilment of their Community obligations, including ‘the obligation to nullify the unlawful consequences of a breach of Community law’.110 The ECJ, however, gave little guidance as to the specific conditions for liability. It held that these conditions could vary depending on the nature of the breach of Community law. In relation to non-implementation of a directive, the result prescribed by the directive should entail the grant of rights to individuals; it should be possible to identify the content of those rights from the directive; and there should be a causal link between the breach of the state’s obligation and the harm suffered by the injured parties. It was then for national law to determine the detailed procedural rules for such legal proceedings, subject to the caveat that such rules should not be less favourable than those relating to similar internal claims and should not be so framed as to make it virtually impossible or excessively difficult to obtain compensation. It is common to talk of Francovich as instantiating state liability in damages. A monetary remedy is indeed the most common form of relief sought. We should, nonetheless, take account of Dougan’s argument that Francovich might not always demand a financial remedy, but might in certain circumstances be satisfied by relief that is nonstipendiary.111 There is force in this observation, but in most instances financial relief will be central to the claim.

9  State Liability: The Brasserie du Pêcheur/ Factortame Criteria (A)  The Three-Part Test The ECJ developed the criteria for state liability in Brasserie du Pêcheur/Factortame.112 In Brasserie du Pêcheur a French company sued the German government for losses resulting from not being able to sell beer into Germany, this prohibition being contrary 108  Cases C-6 and 9/90 Francovich (n 107) [33]. 109  Ibid [35]. 110  Ibid [36]. 111  Dougan (n 28) 256–8. 112  Cases C-46 and 48/93 Brasserie du Pêcheur SA v Germany, R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029.

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to EU law on free movement of goods. In Factortame the applicants sued the UK for losses suffered by being unable to fish in certain areas because of the Merchant Shipping Act 1988, which was contrary to EU law on freedom of establishment. The ECJ clarified the nature and extent of state liability.113 It made it clear that the action could apply even where the provision of EU law that was broken had direct effect. Direct effect was seen as a minimum form of protection and the right to ­reparation was held to be a corollary of direct effect.114 The ECJ held, moreover, that liability could be imposed irrespective of which organ of the state was responsible for the breach, the legislature, the executive, or the judiciary.115 The ECJ then provided guidance as to the conditions under which the state could incur liability. It followed Advocate General Tesauro who argued that the test for state and EU liability should be linked. The ECJ held that the conditions for state liability should cohere with the Article 340 TFEU case law,116 since the protection individuals derived from EU law could not, in the absence of some particular justification, vary depending upon whether a national authority or an EU institution was responsible for the breach.117 The liability rules under Article 340(2) took account, said the Court, of the wide discretion possessed by the EU institutions in implementing EU policies. Member States did not always possess such discretion when acting under EU law, but when they did the conditions for damages liability must be the same as those applying to the EU.118 In the present cases the national legislatures had, said the ECJ, a wide discretion in the relevant areas and were faced with choices comparable to those made by the Union institutions when the latter adopted legislative measures pursuant to an EU policy.119 Given that this was so, the right to damages was dependent upon three conditions.120 First, the rule of law infringed must have been intended to confer rights on individuals. This was held to be satisfied in the instant cases since what are now Articles 34 and 49 TFEU were intended to confer rights on individuals.121 Whether the Treaty article, regulation, directive, or decision was intended to confer rights was determined by construction of the relevant provision.122 Secondly, the breach of this rule of law must have been sufficiently serious. As regards both EU liability under Article 340(2) and state liability in damages, the ­decisive test for deciding whether the breach was sufficiently serious was whether the EU or the 113  W Van Gerven, ‘Bridging the Unbridgeable: Community and National Tort Laws after Francovich and Brasserie’ (1996) 45 ICLQ 507; C Harlow, ‘The Problem of the Disobedient State’ (1996) 2 ELJ 199; N Emiliou, ‘State Liability under Community Law: Shedding More Light on the Francovich Principle’ (1996) 21 ELRev 399; J Convery, ‘State Liability in the UK after Brasserie du Pêcheur’ (1997) 34 CMLRev 603; P Craig, ‘Once More unto the Breach: The Community, the State and Damages Liability’ (1997) 105 LQR 67; J Steiner, ‘The Limits of State Liability for Breach of European Community Law’ (1998) 4 EPL 69; T Tridimas, ‘Liability for Breach of Community Law: Growing Up and Mellowing Down?’ (2001) 38 CMLRev 301; M Dougan, ‘What is the Point of Francovich?’ in T Tridimas and P Nebbia (eds), European Union Law for the Twenty-First Century: Rethinking the New Legal Order (Hart, 2004) Ch 14; M Dougan ‘The Francovich Right to Reparation: Reshaping the Contours of Community Remedial Competence’ (2000) 6 EPL 103. 114  Cases C-46 and 48/93 Brasserie du Pêcheur (n 112) [22]. 115  Ibid [32]. 116  Ibid [42]. 117  Ibid [42]. 118  Ibid [47]. 119  Ibid [48]–[50]. 120  Ibid [51]. 121  Ibid [54]. 122  Case C-222/02 Peter Paul, Sonnen-Lutte and Christel Morkens v Bundesrepublik Deutschland [2004] ECR I-9425.

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Member State had manifestly and gravely disregarded the limits of its discretion.123 The following factors should be taken into account:124 the clarity and precision of the rule breached;125 the measure of discretion left by the rule to the national or EU authorities; whether the breach and consequential damage were intentional or voluntary; whether any error of law was excusable or inexcusable; whether the position adopted by an EU institution contributed to the act or omission causing loss committed by the national authorities; and whether on the facts the national measures had been adopted or retained contrary to EU law. A breach of EU law would be sufficiently serious if the state persisted in its behaviour notwithstanding an ECJ judgment finding an infringement. It would be equally so where there was settled ECJ case law making it clear that the Member State action was in breach of EU law.126 There was, moreover, no requirement to prove fault over and beyond the finding of a serious breach.127 Thirdly, there must be a direct causal link between the breach of the obligation imposed on the state and the damage sustained by the injured parties.128 It was for national courts to determine whether the causal link had been established.129 The damages should be commensurate with the loss or damage suffered.130 In the absence of EU rules, it was for the Member States to establish the criteria for determining the extent of the reparation, subject to the criteria of equivalence and effectiveness.131 The ECJ, nonetheless, gave legal guidance on specific issues concerning damages, such as mitigation;132 the type of recoverable loss;133 the availability of exemplary damages;134 and the date from which the obligation to make reparation began to run.135

(B)  The Relevance of Discretion It is clear from Brasserie du Pêcheur/Factortame and subsequent cases that the application of the sufficiently serious breach test will depend on the degree of discretion that exists in the instant case. Where there is meaningful discretion the existence of a ­serious breach will be determined by the factors set out in Brasserie du Pêcheur/Factortame. Where there is no meaningful discretion an infringement of EU law may suffice to establish a serious breach for the purposes of damages liability.136 It is, however, the nature of the discretion that is relevant, rather than the body that exercises it. Whether the contested measure is, in formal terms, legislative, executive, 123  Cases C-46 and 48/93 Brasserie du Pêcheur (n 112) [55]. 124  Ibid [56]. 125  The fact that a national court finds it necessary to seek a preliminary reference relating to the point of law is not a decisive factor in deciding whether there was an obvious infringement of EU law by the Member State, Case C-244/13 Ogieriakhi v Minister for Justice and Equality, EU:C:2014:2068. 126  Cases C-46 and 48/93 Brasserie du Pêcheur (n 112) [57]. 127  Ibid [78]–[79]; Case C-429/09 Fuss v Stadt Halle [2010] ECR I-12167, [65]–[70]. 128  F Smith and L Woods, ‘Causation in Francovich: The Neglected Problem’ (1997) 46 ICLQ 925. 129  Cases C-46 and 48/93 Brasserie du Pêcheur (n 112) [65]. 130  Ibid [82]. 131  Ibid [83]. 132  Ibid [85]. 133  Ibid [86]–[87]. 134  Ibid [89]. 135  Ibid [94]. 136  Case C-5/94 R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd [1996] ECR I-2553, [28]; Case C-127/95 Norbrook Laboratories Ltd v Ministry of Agriculture Fisheries and Food [1998] ECR I-1531, [109]; Case C-424/97 Haim v Kassenzahnärztliche Vereinigung Nordrhein [2000] ECR I-5123, [38].

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administrative, or judicial is not determinative. This is consistent with Bergaderm,137 where as we saw in the previous chapter, the ECJ stressed the interconnection between EU and state liability in damages and made it clear that the crucial issue was the measure of discretion, not the general or individual nature of the provision in which it was embodied. This is surely right in principle. The very classification of legislative, administrative, or executive action is beset with difficulty. It can be entirely fortuitous whether a state operates through one medium or another, and exercise of executive or administrative discretionary power can be just as complex as discretionary choice made by the legislature. It should also be recognized that the type of discretion can vary depending on the provision of EU law that is in issue. This is apparent from the factors listed in Brasserie du Pêcheur/Factortame to determine whether there was a serious breach. The ‘measure of discretion left by the rule to the national authorities’ is an acknowledgement that there can be national legislative or executive discretion in relation to the application of EU law, such as when a state implements a directive and exercises choice as to the manner through which the objectives should be attained. Reference to the ‘clarity and precision of the rule breached’ and whether the ‘error of law was excusable or inexcusable’ also reflect what may be termed interpretive judgment. EU norms may be cast in general terms and it may therefore be debatable whether they apply to a particular ­situation.138 Real interpretive difficulties may also arise when the contested norm is more detailed. The meaning of particular provisions of a regulation or a directive may be unclear, and open to a spectrum of reasonable interpretations. These interpretive difficulties can beset the EU authorities, as recognized in Bergaderm where the ECJ spoke of the Article 340 test reflecting ‘difficulties in the application or interpretation of the texts’.139 They can also beset the Member States, as exemplified by British Telecom and Brinkmann.140 It is fitting that cases involving such interpretive judgment should be subject to the serious breach test. It is often assumed that such cases are less problematic than those involving legislative or executive discretionary power. This is mistaken. The difficulties entailed can be equally great. Interpretive judgment may involve the weighing of complex variables in order to decide which interpretation best effectuates the relevant provision. The exercise of legislative or  executive discretionary power will, moreover, often be affected, explicitly or implicitly, by interpretive judgments as to the meaning of the variables that have to be balanced.

137  Case C-352/98 P Bergaderm (n 105) [40]–[46]. 138  Case C-524/04 Thin Cap (n 81) [121]; Case C-446/04 FII Group (n 84) [215]. 139  Case C-352/98 P Bergaderm (n 105) [40]. 140  Case C-392/93 R v HM Treasury, ex p British Telecommunications plc [1996] ECR I-1631; Case C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriet [1998] ECR I-5255.

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(C)  Interpretation and Application: The ECJ’s ‘Guidance’ The traditional division of function between the CJEU and national courts is that the former interprets EU law, and the latter then applies that interpretation to the facts of the case. The malleability of this was nonetheless apparent when the ECJ stated in Brasserie du Pêcheur/Factortame that it would be helpful for the national courts if it, the ECJ, indicated a number of circumstances which the national courts should take into account.141 This ‘guidance’ effectively resolved certain crucial issues in the two cases. Thus in Brasserie du Pêcheur the ECJ held that the breach of EU law could not be excusable, since prior case law made it clear that the German laws on beer purity were incompatible with Article 34 TFEU. In Factortame the ECJ stated that the nationality condition under the Merchant Shipping Act 1988 was directly discriminatory and manifestly contrary to EU law, and that the conditions concerning residence and ­domicile for vessel owners, were also prima facie contrary to Article 49 TFEU.142

10  State Liability Post Brasserie du Pêcheur/ Factortame: Judicial Acts The ECJ in Brasserie du Pêcheur/Factortame made it clear that state liability could attach irrespective of the organ of the state that committed the breach, whether this was the legislature, executive, or the courts. This caused a significant ‘stir’ at the time, even insofar as it entailed the imposition of liability for legislative acts, given that this was not possible in many Member States. The idea that state liability could attach to judicial acts was viewed with a mixture of caution and scepticism. There was the lingering feeling that when the ECJ was really faced with the issue it would pull back, re-evaluate its prior case law, and find some justification for excluding judicial action from the remit of state liability. The issue finally arose in Köbler143 and the ECJ did not pull back from the brink, notwithstanding interventions from national governments warning of the dire consequences of such liability. The ECJ affirmed that state liability could apply irrespective of the entity that caused the breach. The state was viewed as a single entity for the purposes of liability in international law, and this was equally true in relation to the EU, given that all state authorities were bound to comply with EU law. The full effectiveness of individual rights would, therefore, be called in question if it were not possible to obtain reparation where the 141  Cases C-46 and 48/93 Brasserie du Pêcheur (n 112) [58]; Cases C-501–506 and 540–541/12 Specht v  Land Berlin and Bundesrepublik Deutschland, EU:C:2014:2005, [100]–[105]; Case C-383/13 X, EU:C:2014:2133, [44]–[47]. 142  The UK had sought to justify the conditions in the light of the common fisheries policy, but this was rejected in Case C-221/89 R v Secretary of State for Transport, ex p Factortame Ltd [1991] ECR I-3905. The UK’s argument was nonetheless relatively strong, Noirfalisse, ‘The Community System of Fisheries Management and the Factortame Case’ (1992) 12 YBEL 325. 143  Case C-224/01 Köbler v Austria [2003] ECR I-10239.

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breach of EU law was committed by a national court of last instance.144 It was for the national legal systems to designate the courts that were competent to hear such actions, and to decide on the applicable procedural rules, subject to the principles of effectiveness and equivalence.145 The three conditions for state liability were held to be equally applicable in this context, although the ECJ stressed that liability would attach only in the exceptional case where the national court had manifestly infringed EU law.146 The ECJ acknowledged the importance of the principle of res judicata, but held that this did not preclude the imposition of state liability in relation to final courts. Proceedings for state liability did not necessarily involve the same parties as the initial decision, nor did such liability necessarily require or entail the revision of the judicial decision responsible for the damage, but merely the provision of reparation.147 The ECJ was unconvinced by the argument that state liability would compromise the independence of the judiciary, since liability would fall on the state, not the judge or court that gave the decision.148 It was equally unconvinced that such liability would diminish the authority of national courts, stating that the provision of reparation could enhance the quality of the national legal system and the authority of the judiciary.149 More recently in Traghetti del Mediterraneo150 the ECJ held certain Italian legislation to be contrary to the principles in Köbler. The Italian legislation excluded all state ­liability for damage committed by a national court of last resort, where the infringement of EU law was the result of an interpretation of provisions of law, or of assessment of the facts and evidence, limiting such liability to intentional fault and serious misconduct by the court. The ECJ held that to exclude all state liability in such circumstances would render meaningless the principle in Köbler. While national law could define the criteria relating to the type of infringement that would lead to state liability for breach of EU law attributable to a national court of last resort, such criteria could not impose requirements stricter than that of a manifest infringement of the applicable law, as set out in Köbler.

11  State Liability Post Brasserie du Pêcheur/ Factortame: Serious Breach (A)  The Serious Breach Test: The ECJ Resolves the Issue The ECJ continues to acknowledge that application of the Brasserie du Pêcheur/ Factortame criteria is for the national court. The reality is, however, that in the majority 144  Ibid [32]–[36]. 145  Ibid [46]–[47], [58]. 146 Ibid [52]–[55]; G Anagnostaras, ‘Erroneous Judgments and the Prospect of Damages’ (2006) 31 ELRev 735; B Beutler, ‘State Liability for Breaches of Community Law by National Courts: Is the Requirement of a Manifest Infringement of the Applicable Law an Insurmountable Obstacle?’ (2009) 46 CMLRev 77. 147  Ibid [38]–[40]. 148  Ibid [41]–[42]. 149  Ibid [43]. 150  Case C-173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-5177. See also Case C-379/10 Commission v Italy, EU:C:2011:775; Case C-168/15 Tomášová v Slovenská republika, EU:C:2016:602.

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of later cases the ECJ has effectively resolved the liability issue by deciding whether there has been a serious breach. It has also on occasion decided issues of causation rather than leaving them to national courts.151 The ECJ has thereby retained control over development of the cause of action, stating that it will determine the seriousness of the breach for itself where it has all the necessary information to do so. British Telecom152 concerned the incorrect transposition of Directive 90/351 on procurement procedures in the utilities sector, flowing from a mistaken interpretation as to the meaning of an article therein. The ECJ found that the UK had misconstrued the article, but denied the damages claim. There had been no serious breach of EU law, given that the article of the Directive was imprecisely worded and was reasonably ­capable of bearing the meaning given to it by the UK and other governments and there was no guidance from past rulings of the Court or the Commission.153 In Denkavit154 an incorrect transposition by Germany of Directive 90/435 on the taxation of parent companies and subsidiaries in different states was held by the ECJ not to amount to a sufficiently serious breach, since almost all other Member States had adopted the same interpretation as Germany and there was no existing case law on the provision.155 Similarly in Brinkmann156 the ECJ held that an interpretation of Directive 79/32 by the national authorities that had erroneously classified a certain product as a cigarette for taxation purposes did not amount to a sufficiently serious breach because the relevant provisions of the Directive were open to a ‘number of perfectly tenable interpretations’157 and the interpretation actually given was not manifestly contrary to the wording of the Directive or its aims. The ECJ also retained control over the cause of action in Köbler, stating that while the application of the Brasserie du Pêcheur criteria was in principle for the national court, the ECJ nonetheless had all the materials to enable it to decide whether there had been a serious breach.158 This was unsurprising given the nature and sensitivity of the case. The ECJ found that there had been no serious breach, which was almost certainly a generous conclusion on the facts. The retention of the power to decide whether there has been a serious breach has also led the ECJ to conclude that there was such a breach. Thus in Dillenkofer159 Germany had failed to implement Directive 90/314 on package holidays. The ECJ ruled that Francovich established that non-transposition of a directive within the required time constituted per se a sufficiently serious breach.160 The ECJ reached the same result in Rechberger,161 even though in this instance the case concerned incorrect transposition of Directive 90/314. It ruled that there was no discretion in relation to 151  Case C-319/96 Brinkmann (n 140); Case C-140/97 Rechberger v Austria [1999] ECR I-3499. 152  Case C-392/93 British Telecommunications plc (n 140). 153  Ibid [43]–[45]. 154  Cases C-283, 291 and 292/94 Denkavit International v Bundesamt für Finanzen [1996] ECR I-5063. 155  Ibid [51]–[52]. 156  Case C-319/96 Brinkmann (n 140) [30]–[32]. 157  Ibid [32]. 158  Case C-224/01 Köbler (n 143) [101]–[102]. 159  Cases C-178–179 and 188–190/94 Dillenkofer v Federal Republic of Germany [1996] ECR I–4845. 160  Ibid [21]–[27]. 161  Case C-140/97 Rechberger (n 151) [51]–[53]; Case C-470/03 AGM-COS.MET Srl v Suomen valtio and Tarmo Lehtinen [2007] ECR I-2749.

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Article 7 of the Directive, and hence that the limitation of the protection provided by this Article to holidays with a departure date of 1 May 1995 or later constituted a sufficiently serious breach of EU law. The same reasoning was apparent in Hedley Lomas,162 where the UK had refused to grant licences for the export of live sheep to Spain, on the ground that Spanish slaughterhouses were not complying with the terms of a Directive. The UK government acknowledged that it was in breach of what is now Article  35 TFEU on export restrictions, but argued justification under Article 36 TFEU for the protection of animal welfare. The ECJ held that the lack of discretion left to Member States following the Directive, the clarity of the Treaty provision breached, and the absence of a properly verified ground of justification pointed to the existence of a sufficiently serious breach.163 The ECJ has also been ready to find that there was no meaningful discretion and hence that there had been a sufficiently serious breach of EU law where, as in Larsy,164 there had been a prior ECJ ruling on the issue.

(B) The Serious Breach Test: The ECJ Leaves the Issue to the National Court There are, however, cases where the ECJ chooses to leave resolution of the serious breach test to the national courts. It will tend to do so where there is no obvious answer as to whether there has been such a breach in the light of the factors laid down in Brasserie du Pêcheur/Factortame. Thus in Evans165 the applicant argued that the UK had defectively implemented Directive 84/5 concerning compulsory civil liability in respect of motor vehicles and more specifically the provisions concerning damage caused by unidentified vehicles. The ECJ held that it was for the national court to determine in the light of the Brasserie du Pêcheur criteria whether there had been defective implementation and if so whether this was sufficiently serious for the purposes of damages liability.

12  State Liability Post Brasserie du Pêcheur/ Factortame: The Relationship with National Remedial Regimes The Francovich principle, as elaborated by Brasserie du Pêcheur/Factortame, established an EU principle of state liability, which was to be given effect within the national legal 162  Case C-5/94 Hedley Lomas (n 136); Case C-452/06 R, ex p Synthon BV v Licensing Authority of the Department of Health [2008] ECR I-7681. 163  Ibid [28]–[29]; Case C-150/99 Stockholm Lindöpark Aktiebolag v Sweden [2001] ECR I-493, [39]–[42]. 164  Case C-118/00 Larsy v INASTI [2001] ECR I-5063, [44]; Case C-446/04 FII Group (n 84) [214]. 165  Case C-63/01 Evans (n 48) [84]–[88]; Case C-127/95 Norbrook (n 136) [105]–[112]; Case 278/05 Robins and Others v Secretary of State for Work and Pensions [2007] ECR I-1053, [69]–[77].

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systems. This has generated a number of issues concerning the relationship between the EU principle and the national remedial regimes.

(A)  Who Pays One such issue concerns the body liable to make the reparation. The ECJ made it clear in Brasserie du Pêcheur/Factortame that the state could be liable irrespective of whether the breach was caused by the legislature, the executive, the administration, or the judiciary. In that sense it adopted a unitary conception of the state. The rationale for this approach was not hard to divine. The objective was to provide a damages remedy for individuals against the state. The ECJ clearly did not wish to get into complex arguments as to which organ of the state was actually responsible for the breach of EU law. The Member State itself would, therefore, be liable and it would be for the state to make consequential apportionment of loss to particular organs if it wished to do so. This approach has been maintained, but the ECJ has also been willing to make certain q ­ ualifications.166 In Konle167 the ECJ reiterated the principle that it was for the Member State to ensure that individuals could obtain compensation for breach of EU law irrespective of the public authority that was responsible for the breach, and irrespective of the public authority that was liable to make reparation under national law. The Member State could not, therefore, plead the national distribution of powers and responsibilities in order to free itself from liability. Subject to that reservation, EU law did not, however, require Member States to change the distribution of responsibilities between public bodies in their territory, provided that EU legal rights were effectively protected and received equivalent protection to rights derived from domestic law. It followed that in a Member State with a federal structure it was not necessary that reparation be provided by the federal authorities. This reasoning was developed further in Haim.168 The ECJ followed Konle and held that the reasoning therein could also be applied to Member States without a federal structure, where certain legislative or administrative tasks were devolved to territorial bodies with a certain degree of autonomy, or to any other public law body legally distinct from the state. In such states reparation for the breach of EU law could be made by such bodies.169 Nor did EU law preclude a public law body in addition to the state itself from being liable to make reparation for losses caused by measures taken in breach of EU law.170

(B)  Equivalence and Effectiveness It is important to recognize the duality inherent in the cause of action for state liability. The right to reparation is, on the one hand, founded directly on EU law. The ECJ will 166  G Anagnostaras, ‘The Allocation of Responsibility in State Liability Actions for Breach of Community Law: A Modern Gordian Knot?’ (2001) 26 ELRev 139. 167  Case C-302/97 Konle v Austria [1999] ECR I-3099, [62]–[64]. 168  Case C-424/97 Haim (n 136) [38]. 169  Ibid [31]. 170  Ibid [32].

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therefore establish the conditions for liability, as exemplified by the three criteria laid down in Brasserie du Pêcheur/Factortame. It is also open to the ECJ, as we have seen, to retain control over the cause of action by deciding for itself whether there has been a serious breach. The ECJ has, moreover, ruled definitively on certain aspects of the loss that can be recovered, the impact of mitigation, exemplary damages, and the like. It is in this sense open to the ECJ to define with more or less exactitude aspects of the cause of action.171 The application of this cause of action is, on the other hand, a matter for national courts, which may have different rules on issues such as time limits, causation, mitigation of loss, and assessment of damages. The issues not addressed by the ECJ are governed by national law, subject to the principles of equivalence and effectiveness.172 This necessarily means that the ECJ may be asked whether particular national rules are compatible with these conditions. This can be exemplified by the Italian cases that arose in the aftermath of Francovich. The Italian government passed legislation to implement Directive 80/987 on the protection of employees in the event of their employer’s insolvency, and established a compensation scheme for those who had suffered loss as a result of the earlier failure to implement. The ECJ considered a number of cases where the litigants argued that the implementing legislation breached the principles of effectiveness and equivalence. Palmisani provides a fitting example.173 The applicant was refused compensation under the Italian scheme, because she had not brought her compensation claim within the one-year time limit set by the national legislation. The general time limit for cases of non-contractual liability under the Italian Civil Code was five years. The ECJ held that reasonable time limits were consistent with legal certainty. In this case the oneyear time limit did not breach the principle of effectiveness, since it did not make it excessively difficult for an applicant to obtain reparation, more especially because the beneficiaries of the scheme knew the full extent of their rights and the conditions under which loss flowing from belated transposition would be made good.174 The ECJ then considered whether the Italian scheme complied with the principle of equivalence. It distinguished between claims for wages under the national measure implementing the Directive, and claims for damages for loss caused by the late implementation of the Directive. The former were akin to a social security benefit where the appropriate comparator might be national pension rules. The latter were designed to

171  See, eg, Cases C-397 and 410/98 Metallgesellschaft (n 77) 102, 107. 172  Cases C-6 and 9/90 Francovich (n 107) [41]–[43]; Cases C-46 and 48/93 Brasserie du Pêcheur (n 112) [67], [70], [71], [73], [83], [87], [90], [99]; Case C-127/95 Norbrook Laboratories (n 136) [111]; Case C-424/97 Haim (n 136) [33]; Case C-300/04 Eman and Sevinger v College van burgemeester en wethouders van Den Haag [2006] ECR I-8055, [67]–[71]; Case C-118/08 Transportes Urbanos y Servicios Generales SAL v Administración del Estado [2010] ECR I-635; Case C-94/10 Danfoss A/S and Sauer-Danfoss ApS v Skatteministeriet, EU:C:2011:674. 173  Case C-261/95 Palmisani v INPS [1997] ECR I-4025. See also, Cases C-94–95/95 Bonifaci and Berto v Istituto Nazionale della Previdenza Sociale (IPNS) [1997] ECR I-3969; Case C-373/95 Maso and Gazzetta v INPS [1997] ECR I-4051. 174  Case C-261/95 Palmisani (n 173) [28]–[29].

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compensate for late implementation of the Directive, and hence the appropriate comparator was the ordinary system of non-contractual liability. The ECJ, however, felt that it did not have sufficient information to decide on the comparability of the two systems and therefore left the matter for the Italian courts to decide.175 It nonetheless signalled that it could well be contrary to the principle of equivalence for there to be a five-year time limit for domestic actions for non-contractual liability and a one-year limit for actions for compensation due to the state’s non-implementation of a directive.176

13  State Liability: An Assessment The ECJ has been at its most creative in this area, reasoning in a teleological manner when it created the principle in Francovich and when it defined it further in Brasserie du Pêcheur/Factortame. There are unsurprisingly differences of view as to the cogency of the reasoning in Francovich and the desirability of the result. The reasoning in Francovich was teleological and based on broad principles, but this is commonly so for novel case law. The principles that informed the judgment were foundational. The need for effective remedies to safeguard EU rights is reflective of the principle ubi ius, ibi remedium found in many national legal systems. The duty incumbent on Member States to take all appropriate measures to ensure fulfilment of their Union obligations is especially salient in a polity such as the EU, but resonates with analogous obligations in federal or confederal systems. The test for liability, distinguishing as it does between discretionary and nondiscretionary acts, is soundly based for the reasons given in the previous chapter.177 The ECJ has refined the test in subsequent case law on state liability. It has, moreover, proved adept at retaining control of the case when it wished to do so, in order that it could make the all-important judgment as to whether there had been a serious breach. There will be instances where commentators disagree with the way in which the test was applied in a particular case. That is inevitable. Any assessment of Francovich and its progeny should also take account of the insistence on parity between Member State and EU liability. The ECJ properly resisted the calls of some when Brasserie du Pêcheur/Factortame was litigated that Member State liability should be more extensive than that of the Union. These calls were unwarranted in normative terms and unwise in terms of practical politics. The reality has been that the cause of action for state liability has developed in a symbiotic manner with that for Union liability considered in the previous chapter. In Brasserie du Pêcheur the ECJ made the important policy choice that the conditions for EU and state liability should be parallel, and therefore drew on the jurisprudence on EU liability when devising the criteria for state liability. In Bergaderm the converse occurred, with the ECJ importing

175  Ibid [38].

176  Ibid [39].

177  See above, 738–46.

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the more sophisticated test for serious breach developed for state liability and applying it to the EU’s liability under Article 340(2). There are, nonetheless, differences between the two causes of action, which stem primarily from the fact that EU liability will be directly resolved by the Union Courts under Article 340(2). The application of the principles of state liability will, by way of contrast, be left to national courts. It is true that key issues can be retained by the CJEU, which can also shape the cause of action by rulings on matters such as mitigation, recoverable loss, and the like. Matters such as time limits and procedural rules will nonetheless be determined by the national court, subject to the principles of e­ ffectiveness and equivalence. There may, therefore, be divergence in the conditions for recovery in different national legal systems. This raises the tension between uniformity and diversity discussed earlier in this chapter. It should, however, be recognized that there will inevitably be a degree of diversity, precisely because the CJEU has made it clear that the test for state liability is a minimum, and does not prevent a Member State from imposing on its state authorities more far-reaching rules of liability if it chooses to do so.178 178  Cases C-46 and 48/93 Brasserie du Pêcheur (n 112) [66]; Case C-224/01 Köbler (n 143) [57].

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24 The Ombudsman Dr Alexandros Tsadiras

1 Introduction The Treaty of Maastricht introduced the European Ombudsman into the institutional landscape of the Union. The emergence of an extra-judicial mechanism geared towards overseeing the administrative behaviour of the Union bureaucracy served a twofold objective. In legal terms, it sought to enhance the protection of citizens’ rights and interests in the Union space by establishing an alternative route to administrative litigation. In political terms, it was employed as a tool to put a smiling face to a largely distant, impersonal, and incomprehensible Community structure, soothe the growing uneasiness of the Union citizenry, and sugar the pill of further European integration. The analysis will proceed in the following manner.1 There will be a brief discussion of the historical emergence of the Ombudsman. The focus will then shift to the powers of the European Ombudsman and the restraints placed thereon. This will be followed by analysis of the way in which the Ombudsman has defined and applied the concept of maladministration. Specific aspects of the institutional relationship between the Ombudsman and the Union judiciary will then be addressed. The chapter will conclude with some general remarks pertaining to the institutional evolution of the Ombudsman in the Union’s political and legal order.

2  The Institutional History of the Ombudsman The Ombudsman concept entered the realm of Community politics in September 1974, when it was briefly discussed in a policy document of the European Conservative

1  Unless otherwise stated the European Ombudsman’s material referred to in this chapter is available on the Ombudsman’s website (http://www.ombudsman.europa.eu). The term ‘Ombudsman’ is used in a gender-­ neutral manner.

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Group.2 A series of written questions was subsequently addressed by MEPs to the Commission and the Council exploring the possibility of setting up a European Ombudsman office.3 The European Parliament’s sympathy for the creation of a European Ombudsman culminated in the adoption of the Resolution of 1979.4 Drawing extensively on the report that its Legal Affairs Committee had recently ­delivered (known as the Walker-Smith report),5 the European Parliament underlined the desirability of introducing a Community Ombudsman scheme and instructed its Committee on the Rules of Procedure and Petitions to report on the procedure to be followed. The rationale for the adoption of a European Ombudsman was rooted in the shortcomings of the Community judicial system and the Ombudsman’s effectiveness as an extra-judicial mechanism for control over the executive. The first European elections by direct and universal suffrage, which took place only days after the Resolution of 1979 had been passed, signalled the beginning of a political process that would eventually lead to the metamorphosis of the European Parliament from an enthusiastic proponent to a formidable opponent of the Ombudsman concept.6 The elected MEPs of the 1980s, self-confident in their enhanced numbers and augmented powers, felt that the European Parliament was now fully fledged to do the job for which their weaker predecessors of the 1970s were willing to introduce a distinct institutional scheme. They were influenced in this respect by the fear that the Ombudsman would rob the Petitions Committee of part of its institutional power and gave relatively little attention to his utility in improving the protection of citizens’ rights and interests. Trapped within this reasoning, the European Parliament kept on weighing and evaluating the Ombudsman project in terms of its costs and benefits to the petition option, the latter having been raised to the level of an undisputed yardstick against which the desirability of the Ombudsman’s existence would be tested. Viewed from this angle, the institutional interrelationship between the Petitions Committee and the European Ombudsman was perceived as a zero-sum game, whereby each player’s loss was the other player’s gain. 2  On the genesis of the European Ombudsman, C Moreiro Gonzalez, ‘El defensor del pueblo en el tratado de la Union europea’ [1992] Gaceta juridica de la CEE 167; W Hummer, Opinion on the Position and Duties of the Ombudsman of the European Parliament (European Ombudsman Institute, 1995); K Magliveras, ‘Best Intentions but Empty Words: The European Ombudsman’ (1995) 20 ELRev 401; P Magnette Contrôler l’Europe: Pouvoir et responsabilité dans l’Union européenne (Editions de l’Université de Bruxelles, 2003) 134; The European Ombudsman (ed), The European Ombudsman: Origins, Establishment, Evolution (Office for Official Publications of the European Communities, 2005). 3  Written Questions No 663/74 [1975] OJ C86/85; No 562/74 [1975] OJ C55/13; No 751/76 [1977] OJ C70/14. 4  Resolution on the appointment of a Community Ombudsman by the European Parliament [1979] OJ C140/153. 5  Doc 29/79, PE 57.508/def. 6  An extensive discussion of the Europarliamentarian sentiments vis-à-vis the European Ombudsman scheme in the 1980s and the first half of the 1990s can be found in A Tsadiras, ‘The Origins and Birth of the European Ombudsman’ (2006) 10 The International Ombudsman Yearbook 1 and A Tsadiras, ‘Of Celestial Motions and Gravitational Attractions: The Institutional Symbiosis Between the European Ombudsman and the European Parliament’ (2009) 28 YBEL 435. For a more recent account see C Neuhold, ‘Monitoring the Law and Independent From Politics? The Relationship Between the European Ombudsman and the European Parliament’ in H Hofmann and J Ziller (eds), Accountability in the EU: The Role of the European Ombudsman (Edward Elgar, 2017) 53–73.

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It was fortunate that during the 1980s the European Parliament lost the monopoly over discussions concerning the creation of a European Ombudsman. It is worth recalling that in the preceding decade the Parliament was basically the unique institutional actor proactively pursuing the Ombudsman cause rather than reactively dealing with it. This picture changed in June 1985 when the European Council in Milan not only approved the much celebrated Commission’s White Paper on the completion of the internal market by 1992,7 but also adopted the second and final report by the Committee on a People’s Europe (known as the Adonnino Committee), which listed the European Ombudsman scheme amongst the means to counterbalance the citizens’ isolation from Brussels-based decision-making and foster their participation in the European enterprise.8 This broadening of interest in the Ombudsman concept was of paramount importance, since it meant that the fate of the Ombudsman project no longer lay exclusively with the European Parliament, or more precisely its Committee on the Rules of Procedure and Petitions. The political discourse in the opening years of the 1990s displayed a renewed interest in the incorporation of an Ombudsman scheme into the Union structure. On 24 September 1990 the Spanish delegation to the Intergovernmental Conference on Political Union issued a memorandum entitled ‘The Road to European Union’, suggesting that the introduction of Union citizenship ought to go hand-in-hand with the creation of a special body whose objective would be to safeguard the rights attached to citizenship.9 In response to the Spanish initiative, the Danish government tabled a less ambitious proposal on 4 October 1990 calling for the adoption of an Ombudsman scheme oriented towards overseeing the administrative behaviour of Community authorities. Endorsing in principle the idea of a European Ombudsman, the European Council in Rome (14–15 December 1990) stated in the conclusions of its meeting that ‘consideration should be given to the possible institution of a mechanism for the defence of citizen’s rights as regards Community matters (“ombudsman”)’.10 On 21 February 1991 and within the context of the political dialogue on the rights linked to Union citizenship, the Spanish government presented a new and elaborated proposal suggesting the appointment of a mediator in each Member State who would be entrusted with the task of aiding European citizens to assert their rights against the bureaucracy of both the Union and its Member States. A month later, the Danish d ­ elegation repeated its submission of 4 October 1990 and drawing extensively on the Danish experience produced draft Treaty provisions on a European Ombudsman whose mission would be restricted to overseeing the delivery of administrative services by Community authorities. The European Parliament, supported by ombudsmen and petition committees operating at national and sub-national level, vehemently opposed these initiatives. The MEPs of the early 1990s had apparently been affected by the same fear of institutional 7  Completing the Internal Market, COM(85) 310. 8  Report submitted to the Milan European Council (Milan, 28–29 June 1985), Bulletin of the European Communities, March 1985, No 3, 18–30. 9  Agence Europe no 5337, 27 September 1990, 3. A few months before, on 4 May 1990, the Spanish Prime Minister had already addressed a letter to the other European Council members suggesting the idea of Union citizenship. 10  Point I(7) of the conclusions, Bull 12-1990, 10.

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disempowerment that possessed their predecessors in the 1980s and fiercely fought to safeguard their status. Their resistance reached its peak on 14 June 1991 when the European Parliament, amidst talks favouring varying European Ombudsman schemes, adopted a Resolution calling for their rejection and advocated instead the promotion of the Petitions Committee solution.11 Notwithstanding the European Parliament’s stance, the plans for the creation of a European Ombudsman went ahead. On 18 June 1991 the Luxembourg’s Presidency put forward a draft treaty text establishing a European Ombudsman, who would be functionally independent from, but institutionally affiliated with, the European Parliament and whose jurisdictional ambit would be confined to the horizontal dimension of the Community legal order, without power over the domestic administrative structures of the Member States. This model, which represented for some a solution midway between the Spanish and Danish proposals,12 while for others it resonated with the Danish view,13 was eventually incorporated in the Treaty on European Union signed on 7 February 1992 in Maastricht.14 The conclusion of a tripartite political agreement amongst the European Parliament, the Council, and the Commission in October 1993 paved the way for the adoption of the Ombudsman’s Statute in March 1994.15 Following three consecutive proposals for amendment of the appointing procedure and a series of three voting rounds in the Plenary of the European Parliament, the first European Ombudsman was finally elected on 12 July 1995 and took office on 27 September 1995.

3  The Powers of the European Ombudsman The discussion in this section will focus on the powers of the Ombudsman. The term ‘power’ will be used in three ways. First, it refers to the authority of the European Ombudsman to initiate inquiries either in response to complaints he has received or on his own volition. Secondly, it pertains to the investigative tools he can make use of to determine the factual basis of the cases he examines. Thirdly, it is concerned with the means of remedial action he has at his disposal in order to address instances of Union maladministration. Each of these components will be examined in turn.

(A)  The Initiation of Inquiries A cursory examination of the relevant Union legal framework reveals that there are two methods for setting the Ombudsman mechanism in motion. The European Ombudsman 11  Resolution on the deliberations of the Committee on Petitions during the parliamentary year 1990–1991 [1991] OJ C183/448. 12  E Marias, ‘The European Ombudsman: Competences and Relations with the Other Community Institutions and Bodies’ in E Marias (ed), The European Ombudsman (European Institute of Public Administration, 1994) 75. 13  K Heede, European Ombudsman: Redress and Control at Union Level (Kluwer Law International, 2000) 13. 14  [1993] OJ L293/61. 15  Resolution 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 [1994] OJ C113/15.

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is authorized to conduct inquiries either reactively on the basis of complaints launched with him or proactively on his own initiative. (i)  The Reactive Role: Responding to Complaints Article 228 TFEU empowers the European Ombudsman to investigate complaints filed by any citizen of the Union or any natural or legal person residing or having its registered office in a Member State.16 Citizenship and, alternatively, residence (or r­ egistered office for legal persons) constitute the decisive factors in determining the standing of complainants. If the natural person holds the citizenship of any of the Member States, he or she can file a complaint irrespective of the place of residence. If the natural person is not an EU national, that person cannot access the Ombudsman, unless residence is taken up in the EU. The same restriction applies to legal persons, whose registered office has to be established in a Member State. Complaints launched by natural persons who are neither EU nationals nor EU residents or by legal persons with registered office outside the Union territory are rejected as inadmissible,17 and can only be considered if they raise issues important enough to justify the commencement of an owninitiative inquiry by the Ombudsman.18 The notion of ‘residence’ has been liberally interpreted. It does not imply the existence of permanent or usual habitation. It can be the place where a natural person lives sporadically without having the intention to make it the centre of his social relations or professional activities. Nor is it necessary that the residence be established in a legal manner. Once the complainant is physically present within the Union territory, the question of whether his entry and stay is legal or not becomes irrelevant.19 It follows that illegal immigrants have access to the European Ombudsman. The term ‘legal person’ has also received an expansive reading. It does not presuppose the endowment of the person with legal personality and it has been employed as a residual notion ­embracing the complainants that cannot be classified as ‘natural persons’. The European Ombudsman has thus far agreed to take up complaints filed by companies,20 associations,21 federations,22 foundations,23 unions,24 cooperatives,25 funds,26 charities,27 16  For an extensive analysis of the conditions that a complaint must meet in order to lead to a fully fledged investigation, see A Tsadiras, ‘Navigating through the Clashing Rocks: The Admissibility Conditions and the Grounds for Inquiry into Complaints by the European Ombudsman’ (2007) 26 YBEL 157. 17  Complaint 978/97/XD [1997] EOAR 18; Complaint 398/98/HL [1998] EOAR 16. 18  Complaint 1150/97/OI/JMA; OI/4/99/OV; OI/2/2003/GG; OI/4/2003/ADB; OI/2/2004/GG; OI/3/2005/ OV; OI/7/2006/JF. 19  Complaint 972/24.10.96/FMO/DE/DT [1996] EOAR 15. 20  Complaint 821/2000/GG; Complaint 2713/2006/IP; Complaint 1386/2016/KM. 21  Complaint 1101/16.12.96/CFUI/IT/JMA [1998] AR 88; Complaint 1554/99/ME; Complaint 259/2005/ (PB)GGI; Complaint 518/2014/KM. 22  Complaint 1042/25.10.96/SKTOL/FIN/BB [1997] AR 40; Complaint 133/97/VK; Complaint 2239/2003/ (AJ)TN; Complaint 2097/2011/RA. 23  Complaint 511/99/GG; Complaint 601/99/IJH; Complaint 1568/2012/(FOR)AN. 24  Complaint 659/24.6.96/AEKA/FIN/IJH [1997] AR 232. 25  Complaint 1245/2015/NF. 26  Complaint 384/97/JMA. 27  Complaint 245/98/OV; Complaint 1568/2012/(FOR)AN.

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non-governmental organizations,28 interest and initiative groups,29 city councils,30 municipalities,31 regional ombudsmen,32 and national courts.33 Against this background, it is a defensible thesis to argue that national governments and state authorities, for example police and tax offices, or even Union institutions and bodies, are entitled to launch a complaint with the European Ombudsman. The author and the object of the complaint must be identified.34 A complaint can be launched either by one person (individual complaint) or by two or more (joint or collective complaint).35 An initially individual complaint can turn into a joint complaint if a person wishes to associate himself with an already-filed complaint while the inquiries are still underway.36 Complainants can access the Ombudsman either directly or indirectly through an MEP. The submission of a complaint indirectly does not set aside the requirement for EU citizenship or residence. Actio popularis complaints are admissible.37 Contrary to the position with respect to petitions to the European Parliament,38 the admissibility of complaints to the European Ombudsman is not dependent upon the complainant proving personal interest in the subject matter of the case that is filed. The complainant need not have been affected by the alleged instance of ­maladministration or derive any benefit from the outcome of the inquiry.39 The disengagement of the admissibility question from the existence of personal interest of the complainant gives rise to cases where the inquiries of the Ombudsman are undertaken without, or even contrary to, the consent of the person who is directly and personally affected by the alleged instance of maladministration.40 Prior to the Lisbon Treaty the European Ombudsman had jurisdiction to oversee the administrative behaviour of Community institutions and bodies when performing tasks falling within the First and Third Pillars of the Union structure. The new Treaty empowers the Ombudsman to investigate instances of maladministration in the ­activities of the Union institutions, bodies, offices, or agencies and therefore expands his jurisdictional ambit in two distinct ways. On the one hand, the European Council and the European External Action Service headed by the High Representative of the Union for Foreign Affairs and Security Policy

28  Complaint 669/98/JMA; Complaint 2283/2004/GG; Complaint 1663/2009/DK. 29 Complaint 943/14.10.96/Open Line/GR/BB/OV; Complaint 506/97/JMA; Complaint 1043/99/(IJH)/ MM; Complaint 1194/2000/JMA. 30  Complaint 555/17.4.96/ALDM/ES/PD [1997] AR 218; Complaint 533/98/OV. 31  Complaint 457/2001/OV. 32  Complaint 478/97/JMA [1998] AR 274. 33  Complaint 615/98/BB [1998] AR 29. 34  Art 2.3 of the Ombudsman’s Statute, adopted by the European Parliament on 9 March 1994 [1994] OJ L113/15 and amended by its decisions of 14 March 2002 [2002] OJ L92/13 and 18 June 2008 [2008] OJ L189/25 (hereafter ‘the Statute’). 35  Complaint 132/21.9.95/AH/EN; Complaint 37/97/JMA [1997] AR 176; Complaint 3452/2004/JMA. 36  Complaint 74/97/PD. 37  The term ‘actio popularis’ is used for the first time in [1997] EOAR 40. 38  Art 227 TFEU. 39  Complaint 142/97/PD [1997] EOAR 262. See however Complaint 1323/2002/IJH [2001] EOAR 21. 40  See, eg, Complaint 794/5.8.1996/EAW/SW/VK; Complaint 1219/99/ΜΕ and the Ombudsman’s speech on ‘The role of the European Ombudsman’, Jerusalem, 9–11 September 1997, point 1.

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are brought within the Ombudsman’s investigative reach.41 On the other hand, through the ‘depillarization’ of the institutional configuration of the Union, the Ombudsman sees his powers being extended to authorities which previously fell within the now abolished Second Pillar. It is important to note that entities set up by international law are excluded from the Ombudsman’s mandate.42 Similarly, authorities established by national law escape the Ombudsman’s remit, even when they implement Union p ­ olicies.43 According to the statistical data provided in the Annual Reports from 1995 until 2017 inclusive, on average 72 per cent of the complaints launched every year with the European Ombudsman are outside his mandate, the prime reason being that they are directed against authorities over which the Ombudsman has no competence. It is difficult to determine the precise number of cases that concern national authorities performing Union tasks, however a rough estimate on the basis of the transfers of complaints to the competent institution and the advice given to complainants suggests that at least one in six complaints filed with the Ombudsman raises questions of i­ndirect Union administration. This figure underlines the importance of the established liaison network linking the European Ombudsman with his national peers, which has enabled the reciprocal transfer of complaints,44 facilitated dealing with queries,45 and has recently led to the initiation of parallel inquiries at Union and national level.46 The European Ombudsman is not authorized to investigate complaints relating to the judicial role of the CJEU.47 The precise scope of the term ‘judicial role’ is not clear and the Ombudsman appears in some instances to have endorsed an unjustifiably 41 See Complaint 726/2016/PMC concerning the Council of the European Union paying trainees an amount less than the minimum wage and Complaint 347/2017/TM on the use of a plot of land in Ethiopia by the European External Action Service. 42  See [1995] EOAR 18. Examples include the European Schools (Complaint 199/23.10.95/ΕΡ/Β/ΚΤ [1996] EOAR 36); the Technical Centre for Agricultural and Rural Co-operation (Complaint 218/98/ΟV [1998] EOAR 17); the Centre for the Development of Industry (Complaint 41/97/ΟV); the European Molecular Biology Laboratory (Complaint 374/15.01.96/ΜV/UΚ/ΡD [1997] EOAR 19); the European Commission of Human Rights ([1995] EOAR 19); the European University Institute in Florence (Complaint 2225/2003/(ADB)PB overturning a previous decision on Complaint 659/2000/GG); the Western European Union (Complaint 128/2007/ FOR [2007] EOAR 31). 43  [1995] EOAR 18. See, eg, Complaint 187/17.10.95/FS/B/IJH [1997] EOAR 53 and Complaint 943/14.10.96/ Open Line/GR/BB/OV. It is telling that in cases where the subject matter of challenge is the administrative behaviour of the European Commission towards citizen complainants in the enforcement proceedings against Member States allegedly in breach of EU law (hereafter ‘Art 258 (ex 226) complaints’), the European Ombudsman repeatedly stresses that his inquiries are exclusively directed at the Commission’s performance of its assigned duties and not the activity of national authorities, see Complaint 396/99/IP and Complaint 1242/2017/TM. 44  See, eg, [1997] EOAR 282. 45  See, eg, Q1/2016/EIS and Q1/2017/JAP. 46  See Complaint 212/2016/JN concerning the European Commission’s mission to assess national compliance with EU Regulation 1233/2011 on human rights and environmental protection, when funding Export Credit Agencies [2016] EOAR 26. For the purposes of that case, the European, Polish, and Spanish Ombudsmen are currently conducting parallel and coordinated inquiries. For a detailed analysis of the institutional relations between the European Ombudsman and his national counterparts, see C Harlow and R Rawlings, ‘Promoting Accountability in Multilevel Governance: A Network Approach’ (2007) 13 ELJ 542, 558–60; A Tsadiras, ‘Rules of Institutional Flat-Sharing: The European Ombudsman and his National Peers’ (2008) 33 ELRev 101; and the Ombudsman’s strategy document ‘Reforming the European Network of Ombudsmen’ of 12 October 2015. 47  Art 228(1) TFEU.

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expansive definition thereof.48 The Ombudsman is barred from investigating facts that are or have been the subject of legal proceedings49 and may not intervene in cases before courts or question the soundness of a court’s ruling.50 The complaint must be made within two years of the date when the facts on which it is based came to the attention of the complainant and must have been preceded by appropriate administrative approaches to the institution or body concerned.51 In the case of complaints concerning work relationships between the institutions and bodies and their officials and servants, the possibilities for submission of internal administrative requests and complaints must have been exhausted before the case is brought before the Ombudsman.52 Even when declared admissible, complaints will not be investigated unless they provide grounds for inquiries.53 Such grounds are, for e­ xample, wanting when the complaint raises issues that can be more effectively addressed by another, more specialized oversight body than the Ombudsman himself,54 or where it has already been dealt with as a petition by the Committee on Petitions of the European Parliament and no new evidence is presented.55 From 1995 until 2017 inclusive, approximately 53,000 complaints were launched with the European Ombudsman. On average, only around 11 per cent satisfied the admissibility criteria, successfully passed the ‘grounds for inquiry’ test, and eventually led to a reasoned decision. The European Ombudsman’s Annual Reports do not provide information as to which Union institutions and bodies are targeted by the incoming complaints, however such data are available for those complaints that finally led to a reasoned decision. Unsurprisingly, it is the Commission that easily tops the list of the Ombudsman’s ‘clientele’ by a wide margin, followed by EU agencies, the European Personnel Selection Office (EPSO), and the European Parliament. 48  Complaint 126/97/VK. The following complaints are also of interest: 920/2007/BU [2007] AR 30; 376/2008/ CD [2008] AR 29. 49  Art 228(1) TFEU, indent 3, Art 2(7) of the Statute. See [1995] EOAR 19, where reference is made to Complaints 105 and 110, Complaint 216/8.11.95/ΜΗ/Α [1996] EOAR 16; Complaint 458/27.2.96/HS/B/ KT [1997] EOAR 170; Complaint 463/28.2.96/RK/CH/PD; Complaint 739/98/ΑDB; Complaint 224/99/ΙΡ; Complaint 867/99/GG; Complaint 1055/99/VK; Complaint 3254/2004/ID; Complaint 582/2008/MF; Complaint 1063/2017/LM. The question of which proceedings are considered to be legal is treated in Complaint 183/2006/MF. 50  Art 1(3) of the Statute. See Complaint 223/98/IJH [1998] EOAR 24; Complaint 366/2006/ID; and Complaint 1855/2012/MMN. 51  Art 2(4) of the Statute. On the two-year time limit see: Complaint 937/97/OV [1997] EOAR 27; Complaint 525/25.3.96/HDC/FR/PD/IJH/XD [1997] EOAR 174; Complaint 1275/99/(OV-MM-JSA)IJH; OI/6/2011/VL. On the prior administrative approaches see: Complaint 1136/97/IJH [1997] EOAR 28; Complaint 1316/2000/ GG [2000] EOAR 19; Complaint 557/2001/IJH [2001] EOAR 20; Complaint 817/2008/BEH [2008] AR 31; Complaint 1500/2014/FOR. 52  Art 2.8 of the Statute. See Complaint 483/4.3.96/DG/L/KT [1997] EOAR 35; Complaint 754/23.7.96/LS/ IT/DT [1997] EOAR 127; Complaint 1056/2000/JMA; Complaint 2210/2003/MHZ et al; Complaint 1944/2017/ AMF. 53  Art 228(1) TFEU, indent 3; Art 3(1) of the Statute. 54  See 4th Report of the House of Lords Select Committee on the European Communities (HL 18, 1997–8) and Complaint 630/6.6.96/CJ/UK/IJH [1997] EOAR 226; Complaint 971/24.10.96/UΚ/PD [1998] EOAR 129; Complaint 620/98/ΙJΗ; Complaint 734/99/(VK)/IJH. 55  Complaint 851/3.9.96/ALC/ES/VK [1997] EOAR 45; Complaint 1152/97/ΟV.

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With respect to the types of maladministration complained of, there appears to be particular focus on seven distinct thematic fields, which are listed here in declining order of frequency: openness, transparency, and public accessibility to the EU institutions;56 Article 258 (ex 226) complaints;57 institutional and policy matters;58 administration and staff regulations;59 recruitment competitions and selection procedures;60 award of tenders or grants;61 and execution of contracts.62 (ii)  The Proactive Role: Own-Initiative Inquiries Article 228(1), indent 3 TFEU, in conjunction with Article 3(1) of the Ombudsman Statute and Article 8 of the Implementing Provisions,63 entrusts the European

56  See, eg, Complaint 1011/2015/TN concerning the refusal of the Council of the European Union to give access to opinions on candidates’ suitability to perform the duties of Judge and Advocate-General at the Court of Justice and the GC; and Complaint 1199/2016/OV on the Commission’s failure to reply to a request for review concerning public access to Brexit-related documents. A succinct account of the Ombudsman’s contribution in that field can be found in I Harden, ‘The European Ombudsman’s Efforts to Increase Openness in the Union’ in V Deckmyn (ed), Increasing Transparency in the EU? (European Institute of Public Administration, 2002) and N Vogiatzis, The European Ombudsman and Good Administration in the European Union (Palgrave Macmillan, 2018) 145–84. 57  See, eg, Complaint 459/2017/MDC on the Commission’s failure to investigate properly alleged violations of the EU Single Permit Directive, the Family Reunification Directive, and the Racial Equality Directive by Italy; and Complaint 1242/2017/TM on the Commission’s failure to handle properly an infringement complaint against Ireland concerning the protection of bats under the Habitats Directive. The manner in which the Ombudsman reviews the Commission’s procedural and substantive treatment of that genre of complaint is explained extensively in A Tsadiras, ‘Guarding the Guardian: “Article 258 TFEU complaints” Before the European Ombudsman’ (2015) 81 International Review of Administrative Sciences 621–39. 58  See, eg, Complaint 7/2016/PL on the Commission’s failure to make public consultations available in all official languages of the EU; and Complaint 1697/2016/ANA on the involvement of the President of the European Central Bank and members of its decision-making bodies in the ‘Group of Thirty’. 59  See, eg, Complaint 1923/2015/DR on the European Parliament’s handling of the promotion assessment of a staff member; and Complaint 1944/2017/AMF on the Commission’s decision to close its file on an EU staff member’s request to transfer pension rights acquired at national level into the EU pension scheme. 60  See, eg, Complaint 595/2017/NF on the European Personnel Selection Office’s handling of a request for review concerning a candidate’s exclusion from a selection procedure for EU civil servants on the basis of her poor performance in the computer-based multiple choice admission tests; and Complaint 1274/2017/EIS on the decision of the EPSO not to admit the complainant to an open competition because he did not have sufficient professional experience to meet the eligibility criteria. An extensive analysis of the Ombudsman’s record in this area can be found in A Tsadiras, ‘Metamorphosis of Ethos and Praxis in EU Recruitment Competitions: The European Ombudsman’s Contribution’ in Essays in Honour of Professor Iacovos Farsedakis (Nomiki Vivliothiki, 2017) 269–307. 61  See, eg, Complaint 1607/2016/CEC on the manner in which the Commission dealt with correspondence about an organization that was excluded from projects under the ‘Youth in Action’ programme; and Complaints 677/2017/JN and 2051/2017/JN on the Commission’s handling of a request to review the rejection of a proposal for funding under the Marie Skłodowska-Curie Individual Fellowships. 62  Complaint 1386/2016/KM on the Education, Audiovisual and Culture Executive Agency’s response to a request for assistance in relation to payments between project partners in an EU-funded project; and Complaint 1688/2015/JAP concerning the Commission’s rejection of personnel costs of a beneficiary in an EU-funded project after irregularities were uncovered by an audit. 63  Decision of the European Ombudsman adopting Implementing Provisions, applicable as of 1 September 2016, repealing the implementing provisions of 8 July 2002 as amended by decisions of the Ombudsman of 5 April 2004 and 3 December 2008.

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Ombudsman with the power to activate his oversight apparatus on his own volition. Just over six months into his tenure, the Ombudsman made an important policy statement spelling out the normative foundations of his proactive philosophy. After stressing that the two-year time-bar applies to complaints launched with him, but not to his own initiative investigations,64 he stated that,65 The Ombudsman’s primary duty . . . is to deal with the complaints that are addressed to him. The right to conduct own initiative inquiries, though important, should not be used too frequently. It might be used, for example, where a series of complaints had focused attention on a specific body or a particular type of administrative activity, providing grounds to think that a more general inquiry should be conducted.

This compass setting has remained unaltered since 1996 and has been subsequently reiterated on several occasions.66 It is readily apparent that there are two main a­ ttributes to the Ombudsman’s proactive strategy.67 The first feature pertains to the number of own-initiative investigations and introduces a quantitative factor with obvious qualitative implications: the proactive ­mechanism is to be used infrequently, on the ground that excessive use could diminish its value and practical utility. The second feature concerns the origins of the own-initiative inquiries. It appears that the Ombudsman’s proactive function is constructed in a predominately complaint-based manner. Own-initiative investigations are mainly conceived as tools to circumvent technical aspects of the reactive method of engaging the Ombudsman. This entails examination of complaints whose authors’ identities ought to be protected, or where the admissibility requirements are not satisfied, because the complainant, for example, is not a person entitled to contact the Ombudsman or the complaint is timebarred (technical own-initiative inquiries). In addition, the ­proactive option can be used to tackle significant instances of structural administrative malfunctioning revealed through distinct reactive investigations (strategic own-initiative inquiries).68 Empirical evidence supports this view. A careful analysis of the Ombudsman’s record reveals that he has made measured use of his proactive machinery. From 1995 until 2017 inclusive, he initiated only ninety-nine investigations on his own volition, which, if compared to approximately 6,000 reactive inquiries launched in the same time period, account for less than 2 per cent of his overall investigative activity. The overwhelming 64  [1995] EOAR 20. 65  [1995] EOAR 21. 66  [1996] EOAR 66; [1997] EOAR 15; [1998] EOAR 10; [1999] EOAR 15; [2000] EOAR 17; [2001] EOAR 17; [2002] EOAR 17; [2003] EOAR 20, 25, 33; [2004] EOAR 28; [2005] EOAR 29; [2006] EOAR 27; [2007] EOAR 22; [2008] EOAR 27; [2009] EOAR 24; [2010] EOAR 16; [2011] EOAR 15; [2012] EOAR 15; [2013] EOAR 28; [2014] EOAR 24; [2015] EOAR 7; [2016] EOAR 32. See also J Söderman, ‘A Thousand and One Complaints: The European Ombudsman en Route’ (1997) 3 EPL 351, 354; N Diamantouros, ‘The European Ombudsman: Serving Citizens’, presentation to the Annual General Meeting of the Europe Direct Network, Tallinn, 23 September 2009; and the paper entitled ‘Own-Initiative Inquiries’, drafted by the Strategic Inquiries Unit of the European Ombudsman and finalized on 20 September 2017. 67  A detailed description of the Ombudsman’s proactive profile can be found in A Tsadiras, ‘The European Ombudsman’s Proactive Philosophy: A Call for a Paradigm Shift’ (2008) (Feb) European Current Law XI–XV. 68  The terminological distinction between technical and strategic own-initiative inquiries was introduced by the current incumbent of the office, see eg [2015] EOAR 33.

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majority of the own-initiative inquiries appear to originate directly from a reactive background: thirty-eight investigations were initiated following complaints pinpointing high-risk areas of institutionalized administrative malfunction;69 twenty-seven investigations sought to enable the examination of otherwise ­inadmissible complaints;70 one investigation was launched in order to protect the anonymity of the complainant;71 another investigation was used as a means of bringing remedial pressure on the recalcitrant institution to honour the commitments it had agreed to undertake in a previous complaint-triggered decision;72 another inquiry began following the transmission to the Ombudsman of the file on a petition which the Petitions Committee had examined;73 and, finally, one investigation was initiated after a national ombudsman disagreed with the reply that a Union institution had given to his query.74

(B)  Investigative Powers Following a decade-long reform effort (1998–2008) on the part of the Ombudsman to have his investigative powers invigorated, his Statute was eventually amended to that effect. The Ombudsman’s current investigative regime is characterized by two key features.75 The first is the fundamental, albeit not absolute, principle that the Ombudsman can employ any investigative tool he considers suitable for the examination of any particular case.76 This is complemented by Article 4(11) of the Implementing Provisions, which stipulates that the Ombudsman may commission any studies or expert reports he finds necessary to the success of an inquiry. The second feature is that the Ombudsman has two types of investigative powers, which are horizontal and vertical in nature. On the horizontal plane, the Ombudsman is entitled to contact Union institutions and bodies and ask for information or files originating from them. The Union institution or body contacted is bound to comply with

69 616/PUBAC/F/IJH; 303/97/PD; 626/97/BB; 1004/97/(PD)/GG; OI/1/98/OV; OI/1/99/IJH; OI/5/99/ (IJH)/GG; OI/3/2001/SM; OI/5/2003; OI/4/2005; OI/5/2005/PB; OI/1/2006/TN; OI/2/2006/JMA; OI/3/2006/ BB; OI/9/2006/GG; OI/3/2007/GG; OI/4/2007/ID; OI/5/2007/GG; OI/6/2007/MHZ; OI/3/2008/FOR; OI/1/2009/GG; OI/2/2009/MHZ; OI/3/2009/MHZ; OI/9/2010/RT; OI/2/2011/OV; OI/5/2011/BEH; OI/3/2011/KM; OI/1/2012/MH; OI/3/2012/CK; OI/2/2013/EIS; OI/6/2013/KM; OI/8/2013/OV; OI/8/2013/ OV; OI/10/2015/NF; OI/11/2015/EIS; OI/5/2016/AB; OI/4/2016/EA; OI/6/2016/AB. 70 132/21.9.95/AH/EN; 1150/97/OI/JMA; OI/4/99/OV; OI/2/2003/GG; OI/4/2003/ADB; OI/1/2004; OI/2/2004/GG; OI/3/2004/MHZ; OI/4/2004/MHZ; OI/5/2004/MHZ; OI/6/2004; OI/7/2004/PB; OI/8/2004/GG; OI/1/2005/BU; OI/2/2005/GG; OI/3/2005/OV; OI/4/2006/JF; OI/5/2006; OI/6/2006; OI/7/2006/JF; OI/7/2006/JF; OI/8/2006/BU; OI/1/2007; OI/2/2007/GG; OI/1/2008; OI/2/2008; OI/6/2011/VL. See also ‘Note’ to Case 398/98/ HL [1998] EOAR 16. 71  674/COMLA/F/PD [1997] EOAR 269. 72 OI/1/2000/OV. 73 OI/1/99/IJH/COM. 74  OI/3/99/(IJH)/PB. See also [1999] EOAR 17. 75  Several normative and empirical aspects of the Ombudsman’s previous investigative scheme, which are still however of relevance, are discussed in A Tsadiras, ‘Unravelling Ariadne’s Thread: The European Ombudsman’s Investigative Powers’ (2008) 45 CMLRev 757. 76  Art 3(1) of the Statute.

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the Ombudsman’s request.77 This is reinforced by the Implementing Provisions, which oblige the Union bureaucracy to supply, within a reasonable time, information or documents for the purposes of an inquiry, make arrangements for on-the-spot investigations, and organize meetings with the Ombudsman in order to clarify issues falling within the scope of the inquiry.78 It should however be added that ‘access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001 [namely “top secret”, “secret”, and “confidential”], shall be subject to compliance with the rules on security of the Community institution or body concerned’.79 With regard to taking testimonies, ‘officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they shall continue to be bound by the relevant rules of the Staff Regulations, notably their duty of professional secrecy’.80 On the vertical dimension, the Ombudsman’s powers are of two kinds. There are what may be termed direct vertical investigative powers that pertain to the relations between the Ombudsman and the national authorities. The latter are ‘obliged to provide the [former], whenever he may so request, via the Permanent Representations of the Member States to the European Communities, with any information that may help to clarify instances of maladministration by Community institutions or bodies unless such information is covered by laws or regulations on secrecy or by provisions preventing its being communicated. [I]n the latter case, the Member State concerned may allow the Ombudsman to have this information provided that he undertakes not to divulge it’.81 There are also what may be termed indirect vertical investigative powers, which are concerned with access to documents that originate in a Member State but are in the possession of a Union institution or body.82 These documents are accessible to the Ombudsman only after the Member State concerned has been informed, unless they are classified as secret by law or regulation, in which case the Member State has to give its prior agreement.83 The Ombudsman may not divulge the content of such documents.84 This horizontal and vertical classification is important since certain consequences follow in relation to the breadth and degree of the investigative powers. First, the Statute does not appear to allow for the taking of testimony from officials of national authorities, a tool that is expressly provided for investigations undertaken at the horizontal level. In the unlikely event that such an issue arises, for example in the context of an Article 258 (ex 226) complaint, it is questionable whether any relevant obligation on the part of the Member State could directly be deduced from Article 4, paragraph 3, TEU. Secondly, with respect to access to information and documents, the Ombudsman’s 77  Art 3(2) subpara 1 of the Statute. 78  Art 4(3)–(5) of the Implementing Provisions. 79  Art 3(2) subpara 1 of the Statute. 80  Art 3(2) subpara 7 of the Statute. See also Art 4(6) of the Implementing Provisions. 81  Art 3(3) of the Statute. See also Art 4(7) and (8) of the Implementing Provisions. 82  It has been suggested that this type of power was the most hotly debated issue in the discussions of the Ombudsman’s Statute in the Luxembourg Interinstitutional Conference, R Corbert, ‘Governance and Institutional Developments’ (1994) 23 JCMS 27, 33. 83  Art 3(2) subparas 4 and 5 of the Statute. 84  Art 3(2) subpara 6 of the Statute.

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horizontal investigative authority enjoys a high degree of intrusiveness, as it cannot be challenged by secrecy or confidentiality considerations. Next come the indirect vertical powers, which can be confined by reference to secrecy arguments. Finally, the direct vertical investigative powers figure as the most constrained of all, since they are subject to limitations that are not only based on secrecy sensitivities but extend also to ‘information . . . covered . . . by provisions preventing its being communicated’, wording that can be understood to permit invocation of confidentiality arguments. As to the way in which the investigative powers have been used in practice, the first finding is that the horizontal investigative powers are the most commonly employed of all and their application has raised practical questions in a variety of cases. The indirect vertical powers have been mainly related to Article 258 (ex 226) complaints and their use has been largely unproblematic.85 The direct vertical powers have only sporadically been employed. It is further worthy of note that the Ombudsman’s investigative practice consists chiefly in gathering and assessing factual data and written observations submitted by the complainant and the targeted institution. In only a few instances, and mostly in the course of own-initiative inquiries, did the Ombudsman resort to other investigative tactics, such as an on-the-spot visit in response to an invitation from the targeted institution,86 public appeals for submission of observations in relation to ongoing inquiries,87 and commission of a research study for the purposes of an investigation underway.88 Another striking finding is that in the overwhelming majority of cases the Ombudsman appears to consider the information and explanations provided by the targeted institution sufficiently accurate and complete. As a consequence, file inspections and witness hearings, the two most highly controversial and hotly debated of the Ombudsman’s investigative powers, have proven in quantitative terms to play a relatively small role in the Ombudsman’s investigations: from 1995 until 2017 inclusive, files were inspected in less than 160 cases and oral evidence was taken in less than fifteen.89 Those are ­figures which, if compared to the approximately 6,100 inquiries carried out either 85  Complaint 1045/21.11.96/BH/IRL/JMA; Complaint 995/98/OV; Complaint 1338/98/ME; Complaint 306/2017/TM. See also the Ombudsman’s Note prepared for A Garrett concerning the possible revision of Art 3(2) of the Statute of the Ombudsman, Brussels, 24 May 2000. 86 OI/3/2001/SM. 87  See OI/8/2015/JAS, where an invitation was addressed to the public for comments on the transparency of ‘trilogues’, namely informal negotiations between the Parliament, the Council, and the Commission aimed at reaching agreements on new EU legislation. A similar invitation was made in the context of an investigation into the transparency of the Council legislative process (OI/2/2017/TE). 88  See OI inquiry 626/97/BB, where the Ombudsman contacted the CJEU with a view to asking its Research and Documentation Division to prepare a research note on the application of age limits in the Member States. 89  In some cases, both inspection of documents and hearing of witnesses were necessitated, see 1140/97/ IJH; 995/98/OV; 1230/2000/GG. The first inspection of documents was carried out on 5 November 1996 (132/95/AH), whereas the first hearing of a witness took place years later, on 24 June 1999 (1140/97/IJH). Both inquiries were directed against the Commission and concerned the way it had exercised its role as guardian of the Treaty under Art 258 TFEU (ex 226 EC). For more recent cases where inspection of documents was carried out, see OI/7/2013/EIS, OI/3/2017/NF, and 425/2017/ANA.

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proactively or reactively within that period, account for less than 3 per cent of the total investigative activity. In qualitative terms, file inspections have demonstrated their utility in three main types of case, namely access to documents,90 Article 258 (ex 226) TFEU enforcement proceedings,91 and recruitment competitions.92 As to the taking of testimony, it has not only failed most of the time to produce a marked impact on the deliberative process owing to the draconian restrictions imposed on those testifying, but has also given rise to a protracted, wearisome, and fruitless dispute over whether Commissioners are, and if not should be, obliged to be heard as witnesses at the Ombudsman’s request.93 Union institutions and bodies that have been confronted with the Ombudsman’s investigative machinery have for the most part cooperated reasonably well and have either actively supported94 the investigation or passively tolerated it.95 The notable exception has been the Commission. On some occasions the Union chief administrator has considerably delayed the investigative process by refusing to permit inspection of crucial documents on grounds of secrecy, which under the previous investigative scheme could be invoked in order to limit the Ombudsman’s investigative reach.96

(C)  Remedial Powers It is necessary to have a clear understanding of the structure of the Ombudsman’s remedial regime. This can be outlined as follows. Once the investigation has produced conclusive evidence that an instance of ­maladministration has indeed occurred, the Ombudsman must seek to reach a friendly solution with the targeted institution or body in order to rectify the administrative irregularity at issue and satisfy the complainant.97 If a friendly settlement cannot be 90 1045/21.11.96/BH/IRL/JMA; 1087/10.12.96/STATEWATCH/UK/IJH; 620/97/PD and 306/98/PD; 648/2002/IHJ; 1368/2004/GG; 1844/2005/GG; 705/2012/BEH. See also 754/23.7.96/LS/IT/DT [1997] EOAR 128 and 172/2003/IP, where the inspection of confidential documents by the Ombudsman was essential to clarify the issues raised. As of the beginning of 2018, following a short trial phase, a new fast-track procedure to deal with access to document complaints was introduced, whereby admissibility is assessed within five days and a reasoned decision is issued within forty working days of receiving the complaint, see the Ombudsman’s Press Release No 3/2018 of 20 February 2018. 91  132/21.9.95/AH/EN; 1140/97/IJH; 995/98/OV; 412/2012/MHZ. 92  365/97/JMA; 466/97/PD; 647/2002/OV; 1782/2004/OV; 907/2017/TN. 93  Complaint 995/98/OV; Ombudsman’s remarks to the Committee on Constitutional Affairs on the modification of Art 3 of the Ombudsman’s Statute, Brussels, 5 March 2001; and I Harden, ‘When Europeans Complain: The Work of the European Ombudsman’ (2000) 3 CYELS 199, 217. 94  Complaint 1087/10.12.96/STATEWATCH/UK/IJH; Complaint 893/2006/BU; Complaint 754/2007/BU. 95 844/8.8.96/HL/FIN/IJH/BB. 96  See 132/21.9.95/AH/EN; 531/97/PD and 535/97/PD; especially 365/97/JMA and 1140/97/IJH as well as the Ombudsman’s introductory remarks to the Committee on Petitions concerning his first mandate, Brussels, 28 September 1999; the Ombudsman’s Note prepared for Mrs A Garrett concerning the possible revision of Art 3(2) of the Statute of the Ombudsman, Brussels, 24 May 2000; and the Ombudsman’s remarks to the Committee on Constitutional Affairs on the modification of Art 3 of the Ombudsman’s Statute, Brussels, 5 March 2001. By way of contrast see OI/3/2017/NF, where the Commission contributed very positively to the investigative effort. 97  Art 3(5) of the Statute, Art 5 of the Implementing Provisions.

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achieved, either because it is considered to be inappropriate in the specific case or because the targeted institution or body rejects it, the Ombudsman will issue a draft recommendation.98 The targeted institution or body is expected to respond within three months by sending a detailed opinion that might signify acceptance of the Ombudsman’s recommendations, together with a description of the measures taken to implement them.99 If the Ombudsman finds the opinion satisfactory, he will close the matter. In the event however that the Union bureaucracy refuses to comply with the recommendations addressed to it, the Ombudsman will either simply confine himself to setting out definitive findings, if he thinks fit to terminate the case with no further action, or draw up a special report to the European Parliament repeating the recommendations he has already put forward, if the case is of significant public interest.100 The Committee on Petitions is responsible for dealing with the Ombudsman’s special reports and drafting its own reports thereon that could at a later stage be endorsed by the Plenary in the form of a resolution.101 The Ombudsman is also obliged to submit to the European Parliament an annual report on his activities as a whole which includes the outcome of his inquiries and may contain specific recommendations aiming at improving the functioning of the Union administrative apparatus.102 For years the Ombudsman sought to enhance his r­ emedial competence by suggesting that he be vested with the authority to refer to the Court of Justice cases concerning violations of fundamental rights that could not be resolved through a normal ombudsman investigation.103 Those efforts have not been successful thus far and appear now to have been largely abandoned. In normative terms, it is readily apparent that the Ombudsman’s remedial powers are premised on a conciliatory ethos. Thus, the Ombudsman’s primary task, once an instance of maladministration is established, is to seek a friendly solution between the Union administration and the aggrieved complainant. Moreover, the Ombudsman’s decisions are not legally binding and do not create enforceable rights for the complainant. It is left to the targeted Union institution or body to take the measures necessary to rectify the administrative error and prevent its recurrence in the future. If the Union institution or body concerned refuses to enter a friendly settlement and rejects the draft recommendations addressed to it, the Ombudsman can do nothing formally beyond submitting a special report to the Parliament and criticizing the relevant 98  The grounds on which the Ombudsman has until now based his decision to refrain from pursuing a friendly solution vary and include the following: the complainant expressly excludes any such possibility (Complaint 1319/2003/ADB); the complaint relates to past events that cannot be undone (Complaint 1571/2003/ OV; Complaint 1367/2003/OV); the complaint is actio popularis (Complaint 2216/2003/(BB)MHZ). 99  Art 3(6) of the Statute, Art 6(3) of the Implementing Provisions. 100  Art 3(7) of the Statute, Art 7(3) of the Implementing Provisions. 101  Art 228 TFEU and Annex VII, XX of the Rules of Procedure of the European Parliament. See also [1997] EOAR 13 and 16; [1999] EOAR 16. 102  Art 3(8) of the Statute, Art 7(2) of the Implementing Provisions. 103  See the speeches the European Ombudsman addressed to the European Convention in Brussels on 24 April 2003 and 24 June 2003. See also the European Ombudsman’s proposals for Treaty changes, Art D(2) and the Ombudsman’s Statement following his re-election, Strasbourg, 11 January 2005.

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authorities in his Annual Report. This lack of formal legal authority on the part of the European Ombudsman to award a remedy should not lead to the supposition that his investigative efforts are futile. The truth is that the Ombudsman’s decisions are in ­principle accepted by the targeted institution or body.104 These decisions have resulted in varying forms of remedial redress at both the micro level of specific complaints seeking the correction of an individual error,105 and the macro level of wide-ranging investigations aimed at altering established departmental practices and procedures.106 In practical terms, a close look at the application of the Ombudsman’s remedial scheme yields a number of interesting findings. From 1995 until 2017 inclusive, almost 40 per cent of the cases leading to a reasoned decision were closed either because a friendly solution was agreed or because the targeted Union institution or body had itself settled the issue before any amicable solution was even proposed by the Ombudsman. Maladministration has been found in approximately 12 per cent of the investigations closed with a reasoned opinion. Special reports to the European Parliament have been submitted in only nineteen instances, which account for less than 3 per cent of the cases where maladministration was established. Of those special reports seven were concerned with transparency questions,107 four with different forms of discrimination,108 another four with Article 258 (ex 226) complaints,109 and the remainder were focused respectively on the Code of Good Administrative Behaviour,110 staff issues,111 misleading statements made by the European Anti-Fraud Office,112 and the effective protection of fundamental rights by Frontex under the Charter of Fundamental Rights.113

4  The Notion of Maladministration The concept of maladministration performs a dual function within the Ombudsman system. It delineates the outer boundaries of the Ombudsman’s jurisdiction and is therefore employed as a criterion for determining the admissibility of complaints that are filed. It also constitutes the yardstick against which the administrative behaviour of the Union bureaucracy is assessed and hence serves as the basis on which the merits of each case are considered.

104  According to the latest figures published by the Ombudsman, the compliance rate with his proposals has reached 83 per cent. 105  Complaint 1183/2012/MMN; Complaint 2241/2012/JF. 106  Complaint 814/2012/(DK)TN; OI/1/2013/FOR. 107  OI 616/PUBAC/F/IJH [1996] EOAR 81; OI 1004/97/PD; Complaint 713/98/IJH; Complaint 917/2000/ GG; Complaint 341/2001/(BB)IJH; Complaint 1542/2000/(PB)SM; Complaint 2395/2003/GG. 108  Complaint 242/2000/GG (sex discrimination); Complaint 1391/2002/JMA (pupils with disabilities); Complaint 1487/2005/GG (language discrimination); Complaint 185/2005/ELB (age discrimination). 109 Complaint 289/2005/(WP)GG; Complaint 3453/2005/GG; Complaint 676/2008/RT; Complaint 2591/2010/GG. 110 OI/1/98/OV. 111 OI/2/2003/GG. 112  Complaint 2485/2004/GG. 113 OI/5/2012/BEH-MHZ.

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Neither the drafters of the EC Treaty (now TFEU) nor the framers of the Ombudsman’s Statute made any effort to define maladministration, thus leaving this task to the European Ombudsman subject to the superior interpretative authority of the CJEU. In his Annual Report for 1995 the Ombudsman produced a non-exhaustive list of conduct that would amount to maladministration and included therein administrative irregularities and omissions, abuse of power, negligence, unlawful procedures, unfairness, malfunction or incompetence, discrimination, avoidable delay, and lack or refusal of information.114 Following an invitation by the European Parliament to develop a precise and clear definition of maladministration,115 the Ombudsman proclaimed in his Annual Report for 1997 that: ‘maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it’.116 This definition was complemented by a statement that ‘when the Ombudsman investigates whether a Community institution or body has acted in accordance with the rules and principles which are binding upon it, his first and most essential task must be to establish whether it has acted lawfully’.117 A close look at the Ombudsman’s statements and investigative record reveals that his perception of maladministration is governed by a dual logic.118 There is the concept of legality, which emerges as the chief definitional component of maladministration.119 Contrary to the objections that have been sporadically raised by the Commission,120 the Ombudsman has consistently held that the wrongful interpretation or application of Union norms constitutes an instance of maladministration.121 The Union norms whose infringement will lead to a finding of maladministration consist of the Treaties, legally binding provisions of Union legislation, and the whole corpus of the judgments of the CJEU.122 Two specific facets of legality merit special attention. On the one hand, the general administrative law principles, both procedural and substantive, that have been established and elaborated by the Union judiciary are particularly important for the Ombudsman’s

114  [1995] EOAR 17. 115  Resolution of the European Parliament on the Annual Report on the Activities of the European Ombudsman in 1996, C4-0293/97-A4-0211/1997, point 4. 116  [1997] EOAR 23. 117  [1997] EOAR 24. 118  The theoretical contours of the concept of maladministration are concisely drawn in A Tsadiras, Note on Case C-331/05 P Internationaler Hilfsfonds eV v Commission (2008) 45 CMLRev 559. 119  This approach has not gone uncontested, see speech by the European Ombudsman at the ceremony for the award of the Alexis de Tocqueville Prize 2001 and Complaint 916/2000/GG, where the Council maintained that the review of the legality of administrative decisions falls outside the remit of the Ombudsman’s competence. 120  See [1999] EOAR 12, 17; OI/3/99/(IJH)PB; and Complaint 449/96/20.2.96/HKC/PD [1998] EOAR 46, where the Commission sought to challenge the Ombudsman’s competence by arguing respectively that the interpretation of a regulation and the application of competition rules are not matters falling under the rubric of maladministration. 121  See, eg, Complaints 930/2010/(ANA)CK and 1827/2009/(ANA)CK (interpretation and/or application of TFEU provisions); Complaints 2986/2008/MF and 1329/2010/MF (interpretation and/or application of regulations); Complaints 132/21.9.1995/AH/EN and 531/97/PD (interpretation and/or application of directives); Complaint 1053/25.11.96/STATEWATCH/UK/IJH (interpretation of a decision). 122  [1995] EOAR 23.

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work.123 These include: diligent and impartial examination of grievances,124 respect of the right to be heard,125 duty to give adequate and coherent reasons for decisions,126 protection of legitimate expectations,127 equality of treatment,128 fairness,129 proportionality,130 and transparency.131 On the other hand, the coming into effect of the Lisbon Treaty transformed the Charter of Fundamental Rights from a political statement into a legal text endowing its provisions with binding force and ultimately bringing the Charter within the rubric of legality.132 Of particular relevance to the Ombudsman’s work are Article 41 of the Charter (the right to good administration), Article 42 (the right of access to EU documents), and Article 43 (the right to complain to the European Ombudsman).133 The concept of maladministration is not however exhausted by the concept of legality. It also includes rules and principles that for the purposes of the Ombudsman’s investigations are considered to restrain the Union administrative behaviour even though they lack any legally binding force. This is, for example, the case when the European Ombudsman employs his previous decisions134 or the Code of Good Administrative Behaviour135 as yardsticks against which the bureaucratic activity of Union institutions and bodies is assessed. 123  On these principles see J Usher, ‘The “Good Administration” of Community Law’ [1985] CLP 278; L Reif, The Ombudsman, Good Governance and the International Human Rights System (Martinus Nijhoff, 2004) 379 and the bibliographical references in fn 83; L Senden, Soft Law in European Community Law (Hart, 2004); N Diamantouros, ‘The European Ombudsman and Good Administration Post-Lisbon’ in D Ashiagbor et al (eds), The European Union after the Treaty of Lisbon (Cambridge University Press, 2012) 210–26; Directorate General for Internal Policies, ‘The General Principles of EU Administrative Procedural Law’, June 2015, PE  519.224, http://www.europarl.europa.eu/RegData/etudes/IDAN/2015/519224/IPOL_IDA(2015)519224_ EN.pdf; T Tridimas, The General Principles of EU Law (Oxford European Union Law Library, 2016). 124  Complaint 852/3.9.96/SJB/UK/IJH [1998] EOAR 137; Complaint 3296/2005/(ID)SAB. 125  Complaint 2819/2005/BU; Complaint 1239/2014/PMC. 126  Complaint 943/2006/MHZ; Complaint 3784/2006/FOR. 127  Complaint 1584/2006/OV; Complaint 1661/2011/(VIK)MMN. 128  Complaint 2507/2007/VIK; Complaint 1346/2016/PMC. 129  Complaint 1398/2013/ANA; Complaint 646/2017/JAP. 130  Complaint 1962/2013/JN; Complaint 2024/2014/ANA. 131  OI/5/2016/AB; OI/2/2017/TE. 132  Art 6 TEU. Cases where provisions of the Charter were relied upon even before acquiring binding force include Complaint 1128/2001/IJH (Art 11); OI/1/2001/GG (Art 11); Complaint 1402/2002/GG (Arts 11 and 42); OI/2/2001/(BB)OV (Arts 15(1) and 21(1)); Complaint 845/2002/IJH (Arts 24(2) and 41); OI/3/2003/JMA (Art 26); OI/4/2001/ME [2002] EOAR 201 (Art 33(2)); Complaint 1250/2000/(JSA)IJH [2001] EOAR 101 (Arts 39 and 41); Complaint 1100/2001/GG (Art 41(1)); Complaint 1272/2001/SM (Art 41); Complaint 406/2003/(PB)IJH (Art 41); Complaint 1200/2003/OV (Art 41); OI/1/2002/OV (Art 43); Complaint 1351/2001/(ME)(MF)BB (Art 43). 133 Pertinent are the analyses of those Charter provisions in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Beck/Hart, 2014). 134  See speech by the European Ombudsman to the Committee on Petitions concerning the presentation to the European Parliament of his Annual Report for 2002, Brussels, 24 March 2003 and OI/1/2000/OV. 135  On the efforts of the Ombudsman to promote the Code, see OI/1/98/OV and W Hopkins, ‘International Governance and the Limits of Administrative Justice: The European Code of Good Administrative Behaviour’ (2007) 22 NZULR 710. On 6 September 2001 the European Parliament invited the Ombudsman to apply the Code in examining whether maladministration occurred, [2001] EOAR 11 and 19, European Parliament resolution on the annual report for 2000 on the activities of the European Ombudsman, C5-0302/2001-A5-0280/2001, at point 7. It is also important to note that at their meeting of 24 October 2008 in Lisbon, the heads of EU

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The European Ombudsman has construed maladministration such that it limits his mandate in three distinct ways. First, in cases pertaining to contractual relationships between Union authorities and national actors, the Ombudsman will not seek to determine whether there has been a breach of contract by any of the parties, but will rather confine himself to assessing whether the targeted Union institution or body provided a coherent account of the legal basis for its actions and explained the reasons why it believed that its view of the contractual position was justified.136 Secondly, when in carrying out its administrative tasks Union bureaucracy is vested with discretionary powers, the Ombudsman will only examine whether the institution or body concerned has acted within the limits of its legal authority without questioning the merits of the discretionary administrative decision made.137 Thirdly, decisions of a political rather than administrative nature fall beyond the Ombudsman’s jurisdictional reach.138 As a result, the Ombudsman has declined to investigate complaints relating to the political work of the European Parliament139 and, more specifically, to the formal positions it adopts as an institution,140 the decisions of its Committees,141 the allocation of powers amongst its services,142 and its internal organization.143

agencies agreed to adopt the European Code of Good Administrative Behaviour in their relations with citizens. On the application of specific provisions of the Code in concrete cases, see: Complaint 1840/2002/GG (Art 6); Complaint 39/2002/OV (Art 9); Complaint 754/2003/GG (Art 10(1)); Complaint 1237/2002/(PB)OV (Art 10(2)); OI/1/2002/OV (Art 12); Complaint 1565/2002/GG (Art 12(1)); Complaint 852/2003/OV (Art 12(1) and (3)); Complaint 1200/2003/OV (Art 13); Complaint 1751/2001/GG (Arts 14 and 17); Complaint 844/2014/PL (Art 15); Complaint 448/2017/ANA (Art 18); Complaint 1346/98/OV (Art 18); Complaint 185/2005/ELB (Art 19); Complaint 1117/2003/GG (Arts 19 and 23); Complaint 220/2015/ANA (Art 20); Complaint 1510/2014/PHP (Art 22). 136  [1997] EOAR 24. See, eg, Complaint 821/2000/GG; Complaint 1689/2000/GG; Complaint 1141/2002/ GG; Complaint 415/2004/ELB; Complaint 1063/2012/(ER)PMC; 1651/2012/(ER)PMC. 137  [1997] EOAR 26; Complaint 3307/2006/(PB)JMA; Complaint 1843/2007/JMA; Complaint 2578/2009/ (BU)DK. 138  [1995] EOAR 17 and Söderman ‘A Thousand and One Complaints’ (n 66) 353. 139  [1997] EOAR 26; Complaint 760/24.7.96/JC/UK/IJH [1998] EOAR 150, 153. 140  [1995] EOAR 20, where reference is made to Complaint 281, which was declared inadmissible, because it concerned the position taken by the European Parliament in respect of the French nuclear tests in the Pacific. 141  [1995] EOAR 18: ‘[F]or example, Complaints against the political work of the European Parliament or its organs, such as decisions of the Committee on petitions, [are regarded as inadmissible]’. See also [1995] EOAR 20 and 29, [1997] EOAR 26, as well as Complaint 1152/97/OV et al. Complaint 332/2001/AT (not reported) was declared inadmissible given that it concerned a decision of the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament. 142  Complaint 1243/2000/ΡΒ. 143  Complaint 420/9.2.96/PLMP/B [1996] EOAR 15, where the administrative handling of petitions by the Petitions Committee was considered to be a matter falling within the European Parliament’s responsibility to organize its own services and as such was deemed to raise issues of a political nature rather than questions of maladministration. See however Complaint 569/97/IJH [1997] EOAR 177 in conjunction with Complaint 287/99/ΑDB [2000] EOAR 96, 98 and Complaint 1250/2000/(JSA)IJH [2001] EOAR 101, 104, where matters of internal organization were fully investigated. Running competitions for the selection of temporary agents by the Parliament’s political groups constitutes an administrative activity falling within the Ombudsman’s ambit, see Complaint 1163/97/JMA.

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Complaints against the merits of Community legislative acts such as regulations and directives have suffered the same fate.144

5  The European Ombudsman and the Union Courts International experience shows that the institution of Ombudsman has been successfully employed as a vehicle for providing a speedy, free of charge, and informal alternative to administrative litigation. This holds also true of the European Ombudsman. Article 228 TFEU styles him as extra-judicial machinery through which grievances concerning poorly performed Union administrative services can be inexpensively voiced and processed. No-cost accessibility, procedural flexibility, and deliberative promptness figure amongst the most obvious attractions of the Ombudsman scheme. Unlike the European Ombudsman, Union Courts lack any proactive capacity and their adjudicative role is therefore confined within the limits of the issues raised by litigation. Contrary to the case with Courts, the Ombudsman’s remedial competence is ­non-coercive. One of the key issues pertaining to the institutional relationship between the European Ombudsman and the Union judiciary is the dovetailing of their respective jurisdictional areas. The concept of maladministration results in a jurisdictional divide based on the geometric logic of concentric circles. The inner ring relates to matters falling under the rubric of legality and is shared by the Ombudsman and the Union Courts. The concern here is the duplication of investigations and the dangers attendant upon such a practice, including the formulation of differing sets of values to assess the same factual circumstances and the dissimilar application of a single set of values. Both the TFEU and the Statute address the problem of jurisdictional conflict by according the judicial interpretation precedence over that of the Ombudsman. It has already been stressed that the Ombudsman is authorized neither to inquire into the judicial a­ ctivities of the Union Courts nor to investigate facts that are or have been the subject of legal proceedings. If such proceedings are in progress or have been concluded, the Ombudsman has to declare the complaint inadmissible or terminate its consideration and file definitively the outcome of any inquiries he has carried out up to that point. It should also be recalled that the Ombudsman may not intervene in cases before courts or question the soundness of a court’s ruling. The combined effect of the foregoing institutional restraints is that once a case is brought before the CJEU, the latter asserts

144  [1995] EOAR 18. See also Complaint 262/27.11.95/APF/PO/EF-po [1997] EOAR 206, 208; Complaint 829/22.8.96/FDR/D/PD [1998] EOAR 62, 67; Complaint 1048/21.11.96/FPR/ES/JMA [1998] EOAR 80, 82; Complaint 579/99/JMA [2001] EOAR 29, 30. Complaint 1375/2001/AT (not reported) was declared inadmissible because it concerned the merits of the Community provisions regulating the administrative treatment of EU nationals residing in a Member State other than that of their origin. On the question of determining whether the measure under investigation is legislative or administrative, see Complaint 1487/99/ΙJH [2000] EOAR 126, 128.

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jurisdictional superiority over the Ombudsman who is barred from challenging the judicial wisdom. The outer ring of the concentric circle pertains to issues regulated by the non-legally binding rules and principles that for the purposes of the Ombudsman’s inquiries ought to be respected by the Union administrative machinery. The Ombudsman enjoys full monopoly over this jurisdictional area and has consistently sought to stretch its boundaries outwards through the introduction of an expanding array of soft law obligations on Union bureaucracy.145 This is exemplified by a line of cases pertaining to the role of individual parties in the infringement proceedings under Article 258 (ex 226) TFEU.146 Notwithstanding the acknowledged importance of the individual complainant for the infringement procedure,147 the Commission has consistently viewed the law enforcement mechanism of Article 258 (ex 226) TFEU as a bilateral bargaining game between itself and the defaulting Member State, rather than a triangular construct whereby private parties are treated as equal and respectable institutional interlocutors.148 Similarly, the Union judiciary refused to recognize procedural rights for individuals as they were not formally seen as parties to the infringement procedure and left the Commission with a wide margin of discretion as to its final decision.149 The Ombudsman, unlike the Union Courts, did not confine himself to addressing the issue of what was legally demanded of the Commission, the inner jurisdictional circle, but extended his investigation to the question of what was ethically expected of it, the outer jurisdictional circle. Through the initiation of an inquiry of his own volition150 and through his reactive dealing with complaints, the Ombudsman managed to reshape the Commission’s perception of the role that individual parties play in the enforcement procedure and

145  P Bonnor, ‘The European Ombudsman: A Novel Source of Soft Law in the European Union’ (2000) 25 ELRev 39; M Leeuw, ‘The European Ombudsman’s Role as a Developer of Norms of Good Administration’ (2011) 17 EPL 349–68; M Navarro, ‘Le médiateur européen et le juge de l’UE’ (2014) 2 Cahiers de droit européen 389–425; D Dragos and B Neamtu, ‘Freedom of Information in the EU in the Midst of Legal Rules, Jurisprudence and Ombudsprudence: The European Ombudsman as Developer of Norms of Good Administration’ (2017) 13 European Constitutional L Rev 641–72. 146  A fuller discussion can be found in A Tsadiras, ‘Maladministration and Life Beyond Legality: The European Ombudsman’s Paradigm’ (2015) 11(3) International Review of Law 1–17. 147  34th Annual Report on Monitoring the Application of Community Law for 2016 COM(2017) 370, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=COM%3A2017%3A370%3AFIN&from=EN. 148  R Rawlings, ‘Engaged Elites Citizen Action and Institutional Attitudes in Commission Enforcement’ (2000) 6 ELJ 4; I Harden, ‘What Future for the Centralized Enforcement of Community Law?’ [2002] CLP 496; R Munoz, ‘La participation du plaignant a la procédure en infraction au droit communautaire diligentée par la Commission’ (2003) 472 Revue du Marche Commun et de l’Union Européenne 610; C Harlow and R Rawlings, ‘Accountability and Law Enforcement: The Centralized EU Infringement Procedure’ (2006) 31 ELRev 447; M Smith, Centralised Enforcement, Legitimacy and Good Governance in the EU (Routledge Cavendish, 2009); L Prete and B Smulders, ‘The Coming of Age of Infringement Proceedings’ (2010) 47 CMLRev 9. Of interest is also C Harlow and R Rawlings, Process and Procedure in EU Administration (Hart, 2014). 149  Case 247/87 Star Fruit v Commission [1989] ECR I-291; Case 87/89 Société nationale interprofessionelle de la tomate (Sonito) v Commission [1990] ECR I-1981; Case T-182/97 Smanor v Commission [1998] ECR II-271; Case C-200/88 Commission v Greece [1990] ECR I-4299; Case T-191/99 Petrie v Commission [2001] ECR II-3677. 150  OI 303/97/PD.

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established a series of commitments that the Commission ought to fulfil in the everyday handling of citizens’ complaints concerning the compliance of Member States with EU norms.151 Thus far the Commission has committed itself to registering the complaints and informing their authors accordingly,152 obtaining replies from the Member States,153 concluding the investigation of complaints within one year except in special cases,154 keeping the complainants informed of the action taken in response to their complaints,155 stating adequate, clear, and sufficient reasons for its decisions,156 and providing the complainants with sufficient information and time to prepare and submit observations before the closure of their cases.157 The Ombudsman also considers that it is not only the procedural treatment of the complainant but also the substantive assessment of the complaint that falls within his oversight purview.158 A further central aspect of the institutional relationship between the European Ombudsman and the Union judiciary is the susceptibility of the Ombudsman’s decisions to judicial review. A possible way to challenge the Ombudsman’s findings directly is the action for annulment in Article 263 TFEU (ex Art 230 EC). That provision empowers the CJEU to review the legality of acts of bodies, offices, or agencies of the Union intended to produce legal effects vis-à-vis third parties. The question that inevitably follows is whether the Ombudsman’s decisions give rise to such effects and fall therefore within the range of acts that are reviewable. The ACSV case provides us with

151  Commission Communication to the European Parliament and the European Ombudsman, On Relations with the Complainant in Respect of Infringements of Community Law, COM(2002) 141 final [2002] OJ C244/5; followed by Communication from the Commission to the Council and the European Parliament updating the handling of relations with the complainant in respect of the application of Union law, COM(2012) 154 final of 2 April 2012; and most recently echoed in the European Commission’s Communication, ‘EU Law: Better Results through Better Application’, 2017/C18/02, 19 January 2017, available at http://eur-lex.europa.eu/legal-content/ EN/TXT/PDF/?uri=CELEX:52017XC0119(01)&from=EN. 152  Complaint 1267/99/ME; Complaint 1194/2000/JMA; Complaint 1767/2001/GG; Complaint 1419/2003/ JMA; Complaint 2152/2006/OV; Complaint 2914/2006/WP; Complaint 3543/2006/FOR; Complaint 431/2008/ ELB; Complaint 2576/2009/MHZ. 153  Complaint 259/27.11.95/PL/UK/PD [1997] EOAR 59; Complaint 583/3.5.96/MFCL/IT/KT [1997] EOAR 105. 154 Complaint 783/1.8.96/LBR/ES/KH(JMA); Complaint 190/97/DT [1997] EOAR 151; Complaint 1060/97/OV; Complaint 1075/97/IJH; Complaint 715/98/IJH; Complaint 1237/2002/(PB)OV; OI/2/2006/ JMA; Complaint 3737/2006/(BM)JMA; Complaint 1146/2012/AN; Complaint 583/2013/MHZ. 155  Complaints 206/27.10.95/HS/UK et al; Complaint 132/21.9.95/AH/EN; Complaint 472/6.3.96/XP/ES/ PD; Complaint 259/27.11.95/PL/UK/PD [1997] EOAR 59; Complaint 956/18.10.96/RM/B/PD [1997] EOAR 245; Complaint 250/97/OV; Complaint 715/98/IJH; Complaint 651/97/IJH [1999] EOAR 111; Complaint 396/99/IP; Complaint 879/99/IP; Complaint 1288/99/OV; Complaint 2944/2004/(GK)(OV)ID; Complaint 3255/2005/IP; Complaint 3331/2005/JMA; Complaint 332/2013/AΝ; OI/5/2016/AB. 156  Complaint 323/97/PD; Complaint 995/98/OV; Complaint 396/99/IP; Complaint 493/2000/ME; Complaint 1962/2005/IP; Complaint 995/2011/KM. 157  Complaint 995/98/OV; Complaint 396/99/IP; Complaint 3737/2006/(BM)JMA; Complaint 2711/2009/PB. 158  Complaint 764/9.7.96/TH/DK/PD [1998] EOAR 51; Complaint 879/99/IP; Complaint 1288/99/OV; Complaint 831/98/(PD)GG [2000] EOAR 49; Complaint 39/2002/OV; Complaint 789/2005/(GK)ID; Complaint 1962/2005/IP; Complaint 2152/2006/OV; Complaint 1551/2007/JMA; Complaint 841/2008/BEH; Complaint 200/2017/JAP.

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some helpful guidance in this respect.159 The case was concerned with a failure to act under Article 265 (ex Art 232 EC). The GC concluded inter alia that the Ombudsman’s reports following investigations were not amenable to annulment proceedings and, by extension, to actions for failure to act on the ground that they did not produce any legal effects vis-à-vis the complainant or third parties.160 It is worthy of note that this concerns the reports that the Ombudsman drafts after he has concluded his investigations.161 It does not seem to extend to decisions declaring, for example, a complaint to be inadmissible. In such cases it could be argued that the decisions of the Ombudsman do produce legal effects and should therefore be considered reviewable given that they prevent the complainant from asserting his right to have his grievances examined pursuant to Article 228 TFEU (ex Art 195 EC) and Article 43 of the Charter of Fundamental Rights.162 The legality of the Ombudsman’s decisions can also be indirectly examined through an action for damages under Article 340(2) TFEU (ex Art 288(2) EC), provided that the applicant can show that the conditions for liability are fulfilled. Thus the applicant will need to prove a sufficiently serious breach of a rule of law intended to confer rights on individuals, damage, and a causal link between the two previous elements.163 The GC and the Court of Justice have left little doubt that actions seeking to establish extracontractual liability for decisions of the Ombudsman are admissible in principle.164 However the wide discretion the Ombudsman enjoys when dealing with complaints and assessing their merits renders it difficult to prove a sufficiently serious breach,

159  Case T-103/99 Associazione delle Cantine Sociali Venete v European Ombudsman and Parliament [2000] ECR II-4165. 160  Ibid [47]–[51]. 161  See in this respect Case T-196/08 Devrajan Srinivasan v European Ombudsman, 3 November 2008 (unpublished and unsuccessfully appealed in Case C-580/08 [2009] ECR I-110), [11]: ‘Furthermore, it has been held that, where the Ombudsman finds a case of maladministration, the report which he sends to the Parliament does no more than find that maladministration in the activities of an institution and, where appropriate, make recommendations. By definition, therefore, the Ombudsman’s report does not produce legal effects vis-à-vis third parties within the meaning of Article 230 EC [now 263 TFEU], and is furthermore not binding on the Parliament, which is free to decide, within the framework of the powers conferred on it by the Treaty, what steps are to be taken in relation to it’. That position was reiterated a month later in Case T-290/08 AJ Svetoslav Apostolov v European Ombudsman (unpublished). 162 The Schönberger ruling lends credibility aplenty to that proposition by analogy. The case concerned the treatment of a petition by the European Parliament’s Committee on Petitions. The CJEU found that ‘a decision by which the Parliament considers that a petition addressed to it does not meet the conditions laid down in Article 227 TFEU must be amenable to judicial review, since it is liable to affect the right of petition of the person concerned . . . By contrast, it is clear . . . that, where the Parliament takes the view that a petition meets the conditions laid down in Article 227 TFEU, it has a broad discretion, of a political nature, as regards how that petition should be dealt with. It follows that a decision taken in that regard is not amenable to judicial review’, Case C-261/13 P Schönberger v European Parliament, EU:C:2014:2423, paras 22 and 24. 163  See, eg, Case C-472/00 P Commission v Fresh Marine [2003] ECR I-7541. 164  Case T-209/00 Frank Lamberts v European Ombudsman [2002] ECR II-2203, [45]–[60]; Case C-234/02 P European Ombudsman v Frank Lamberts [2004] ECR I-2803, [31]–[71]. See also E Combreros Mendazona, ‘Responsabilidad Patrimonial del Defensor del Pueblo Europeo?’ (2002) 159 Revista de Administración Pública 209; M Suksi, ‘Case C-234/02 P European Ombudsman v Frank Lamberts’ (2005) 42 CMLRev 176; A Tsadiras, ‘The Position of the European Ombudsman in the Community System of Judicial Remedies’ (2007) 32 ELRev 607, 620–6.

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thereby reducing the chances of a successful action. Notwithstanding this, it is, as the GC and the Court of Justice held, possible that in very exceptional circumstances the Ombudsman might commit a flagrant and manifest error in the performance of his duties that could causally result in damage to an individual.165 Such cases might more readily arise when the cause of the alleged damage is not the Ombudsman’s substantive findings, but his procedural conduct, for example conclusion of inquiries with unreasonable delay166 and disclosure of confidential information relating to his investigations.167 Thus far, there have been only two successful liability cases.168 The first is M v European Ombudsman, where the Ombudsman was ordered to pay the applicant compensation of €10,000 on the grounds that the naming of the latter in Decision 1288/99/ OV constituted an infringement of the right to respect for private life, the principle of proportionality, and the right to be heard.169 The second is Staelen v Ombudsman, where the applicant was awarded €7,000 on the grounds that the European Ombudsman had committed unlawful acts, which consisted in the distortion of fact, failure to exercise diligence in certain duties of inquiry, and breach of the ‘reasonable time’ p ­ rinciple.170

6 Conclusion Analysis of doctrinal and empirical issues pertaining to the evolution and functioning of the European Ombudsman is interesting and instructive. It is positive to see that the Ombudsman has rapidly become a natural and integral component of Union institutional life. The impact that his investigative efforts have produced on the administrative operation of the Union is hard to quantify and the question of whether his record to date falls short of the results hoped for still remains a question open to debate. It seems however difficult to deny that the Ombudsman has contributed towards improving the protection of citizens’ rights and interests in the Union space and has fostered the fashioning of a healthier administrative ethos for supranational governance. These are considerable achievements the importance of which should not be underestimated. Looking into the future, there is little doubt that the European Ombudsman will face a number of formidable challenges. Two will next be considered in brief. The first relates to the Ombudsman’s relations with other institutions. There is a national aspect

165  Case T-209/00 Lamberts (n 164) [57]; Case C-234/02 P Lamberts (n 164) [52]. 166  Case T-209/00 (n 164) [73]–[77]. 167  Case C-234/02 P (n 164) [35]. 168  A number of others are still pending. See, eg, action brought on 17 February 2016, Case F-10/16 Popotas v European Ombudsman, where the applicant seeks, parallel to the annulment of the decision of the European Ombudsman not to appoint him to the post of Secretary-General of the Ombudsman’s office, the award of €112,472 as compensation for material loss and €30,000 for non-pecuniary loss. 169  Case T-412/05 M v Ombudsman [2008] ECR II-197. 170  Case T-217/11 Claire Staelen v European Ombudsman, EU:T:2015:238, largely reiterated on appeal in Case C-337/15 P European Ombudsman v Staelen [2017] ECR II-2203; P Langlais, Quand le Médiateur européen manque lui-même aux exigences de bonne administration: CJUE, 4 Avril 2017, Médiateur/Staelen, aff C-337/15 (2017) 2 Revue des affaires européennes 321–32.

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to this question. It should be remembered that an increasingly large proportion of Union administrative action is performed through national authorities and, consequently, the need for the initiation of joint investigations by the European Ombudsman and his national counterparts is gradually becoming more compelling. It is therefore worth wondering how the former will engage in this intensive, collective exercise without compromising the existing institutional equality that subsists between him and his national peers. There is also a European aspect to this question. Given that the citizens’ expectations of the Ombudsman are rising and his interventions in the administration of the Union are becoming more extensive and incisive, it is interesting to see how he will maintain and improve the acceptance rate of his decisions by the Union authorities without endangering his harmonious and constructive relations with them. The second challenge for the Ombudsman pertains to the codification of administrative norms and the creation of a general code of good administration for the Union bureaucracy. Since the closing years of the 1990s the EU has witnessed a series of initiatives aiming at establishing an overarching text that would put together clear and precise norms regulating the relations of all the Union administrative authorities with the public. These efforts culminated in 2001 in the endorsement by the European Parliament of the Code of Good Administrative Behaviour and the invitation to the Commission to submit a proposal for a regulation that would turn the Code into a legally binding text. Two years later the Ombudsman urged the Commission to commence preparatory work in order to take advantage as rapidly as possible of Article III-398 of the Constitutional Treaty, which provided the legal basis for a law on good administration. The Constitutional Treaty was finally rejected. However the TFEU contains an identical provision, Article 298, and the drive for the adoption of a European administrative law which will apply uniformly across the Union bureaucratic structure has already begun anew.171 This raises two issues of importance for the Ombudsman. On the one hand, the question is what measures he will take to mitigate the danger of ossification of European administrative rules which is attendant on any effort to codify them in a legislative act. On the other hand, it is worth reflecting how the lines of jurisdictional divide between the European Ombudsman and the Union judiciary will be redrawn following the possible metamorphosis of a series of soft law commitments into hard law obligations. Interesting developments lie ahead.

171  See the ReNEUAL Model Rules on EU Administrative Procedure at http://reneual.eu/index.php/projects-and-publications/reneual-1-0; European Parliament’s Resolution of 9 June 2016 with a draft regulation for an open, efficient and independent European Union administration, available at http://www.europarl. europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2016-0279+0+DOC+PDF+V0//EN; and the relevant European Parliament public consultation from December 2017 to March 2018, http://www. europarl.europa.eu/committees/en/juri/eu-administrative-law.html?tab=Introduction.

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INDEX Access points  see also Process rights reform objectives of judicial system 288–9 right to be heard applicability 349–50 contents 350–62 individual measures  312–16 legislative consultation  316–18 political processes  322–9 principle and policy for legal access  318–22 standing for judicial review complexities of shared administration 329–32 conclusions 347 direct challenges  340–2 fundamental rights  346–7 history and development  332–5 indirect challenges  339–40 Lisbon Treaty reforms  342–6 UPA—Advocate General’s Opinion 335–7 UPA—CJEU reasoning 337–9 Access to file process rights  354–8 proportionality 656–6 Administrative efficacy  see also Effectiveness principle background principles  275–6 resource efficiency  51–2 role of law  107–8 Agencies classification Commission view  161–3 decision-making agencies 164 information and co-ordination agencies  165–7 quasi-regulatory agencies  164–5 regulatory agencies  163–4 conclusions 180

current regime changes to existing regime  190–2 part of institutional landscape 189–90 executive agencies assessment 73 current agencies  67–73 Education, Audiovisual and Culture Executive Agency 71–3 establishment and winding-up 63–4 Financial Regulation  64–5 liability in damages  65 origins 62–3 rationale 153–5 review of legality  65–7 staffing 63–4 tasks 64 financial control and accountability 188–9 future regime amenability to judicial review 194 appointments and reporting 195 legislative veto  197–8 loosening of Meroni constraints 192–4 membership 195–7 procedures 194–5 regulatory impact assessment 197 tasks and specification  195 history of EU administration environmental policy 12–14 evolution 155–60 exercise of community competence 17–18 Nice Treaty reforms  26–7 impact of Lisbon Treaty  27–8 legal control and accountability governing Regulation 174–5 judicial review  176–7 Lisbon Treaty  175–6 limitations on power ESMA and its impact  170–2

Meroni principle  168–9 political limits  172–4 Romano decision  169–70 networks of national agencies  74–6 participation rights  326–7 political control and accountability meaning and scope  177–8 membership 179–82 networks of national agencies 184–6 participation in decision-making 187 tasks, criteria and reporting 178–9 transparency 183–4 work programmes  182–3 rationale executive agencies  153–5 in the nation state  151–3 shared administration  32–3 Annulment direct actions Arts 264 and 266 TFEU  728 Art 264 TFEU  674–6, 724–31 Art 266 TFEU  676–9, 731–4 indirect actions  679–80, 734–5 interrelationship between courts and administration 735–6 relationship with damages  737 revocation of lawful decisions changes of policy  612–13 conditional decisions  610–11 consent and fraud  609–10 favourable decisions generally bind  607–9 revocation of unlawful decisions balancing of interests—prospective  617–18 balancing of interests—retroactive  614–17

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822 Annulment (cont.) problem facing all systems  613–14 proof of illegality  614 Arbitrariness 579–80 Associative democracy  253–4 Care see Duty of diligent and impartial examination Causation damages 746–8 right to be heard  361–2 State liability  785 Centralized administration Commission power and responsibility 60–2 contracting out  76–7 executive agencies assessment 73 assessment of performance  73–4 current agencies  67–73 Education, Audiovisual and Culture Executive Agency 71–3 establishment and winding-up 63–4 Financial Regulation  64–5 liability in damages  65 origins 62–3 review of legality  65–7 staffing 63–4 tasks 64 Financial Regulation general principles 2002  57–8 general principles 2012  58–60 impact of Lisbon Treaty  27–8 nature and rationale  56–7 networks of national agencies  74–6 Nice Treaty reforms  22–3 origins 6–7 competition law  6–7 research, technology and health 15–16 typology multiple grants and awards 29 state aids  28–9 Certainty see Legal certainty Charter of Fundamental Rights  see Fundamental rights

Index Citizenship application of equality provisions 562–3 first interpretative approach 565–8 fourth interpretative approach 573 second interpretative approach 568–71 third interpretative approach 572–3 Co-operation  see also Social partners background principle for judicial review  274–5 information and co-ordination agencies 165–7 national competition authorities 24–6 origins 6–7 Co-ordination see Support, co-ordinating, or supplementary action Code of administrative procedure 384–7 Comitology academic opinion prior to Lisbon Treaty deliberative supranationalism 122–6 rational choice  122 conclusions  136–9, 147–50 historical complexities ambiguous ‘original intent’  113–15 amendment to second Decision 121 approval by CJEU  116–17 birth in context of CAP  115–16 first Decision after SEA  117–18 second Decision after Amsterdam 118–21 impact of Lisbon Treaty  27–8 Lisbon Treaty reforms Commission objectives  126–7 delegated acts  128–32 hierarchy of norms  127–8 implementing acts  134–6 recognition by SEA  10 underlying problem  111–13

Commission  see also Prodi Commission; Santer Commission centralized administration  60–2 classification of agencies  161–3 participation rights  324–6 precautionary principle Communication 711–13 process rights competition law  377–8 State aids  379–80 reform of Comitology  126–7 separation of functions  359–61 Committee of Independent Experts conclusions 41–2 detailed critique  38–41 origin and criteria for operation 36–8 problems with service delivery and accountability contracting-out 44–5 staff shortages  42–4 second report  46–8 Common Agricultural Policy (CAP) birth of Comitology  115–16 conclusions and assessment  109–10 framework of shared management 83–4 mixed proceedings  29 origins of shared administration 7–9 from price to income support  82–3 proportionality of policy choices 645–9 reforms to administration and finance 89–90 role of law Conciliation Procedure  87–8 contribution of CJEU  88–9 delineation of legislative objectives 85 effectiveness of reform  86–7 legislative design and content 85–6 undermining of formal norms 86 treaty foundations  81–2

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823

Index Common Foreign and Security Policy competence 420 non-reviewable 268 Compensation see Damages Competence  see also Jurisdiction; Subsidiarity broad Treaty provisions ‘flexibility’ clause  421–3 harmonization clause  424–6 code of administrative procedure 384 Common Foreign and Security Policy 420 conclusions 434–5 economic policy categorization 419–20 Treaty provisions  418–19 grounds for judicial review  265–6 history of EU administration changes made by Maastricht Treaty  14–15 rise of agencies  17–18 impact of Charter  508–10 impetus for reform  402–3 jurisdiction of European Courts 282–4 Lisbon strategy categorization 403–4 express and implied powers  404–5 Nice Treaty reforms competition law  24–6 rise of agencies  26–7 overview 401 shared competence basic principles  412–13 pre-emption of Member State action  414–15 scope and variation  415 support, co-ordinating, or supplementary action basic principles  415–16 harmonization of legal acts  417–18 scope and variation  416–17 Union exclusivity basic principles  405–6 categorization 406 conditional exclusivity  407–12

Competition law access to file  355 high-intensity review  455–60 Nice Treaty reforms  24–6 origins of centralized administration 6–7 process rights duty of diligent and impartial examination  363–4 sector-specific legislation  375–8 Constitutional framework centralized administration Commission power and responsibility 60–2 conclusions and assessments 76–8 contracting-out 76–7 executive agencies  62–74 Financial Regulation  57–60 nature and rationale  56–7 networks of national agencies 74–6 Nice Treaty reforms  22–3 origins 6–7 research, technology and health 15–16 impact of Lisbon Treaty  27–8 Nice Treaty reforms agencies 26–7 centralized administration  22–3 competition law  24–6 new rules for administration  21–2 shared administration  23–4 novel forms introduced by Amsterdam Treaty OMC 20–1 social partners  20 shared administration CAP 81–91 conclusions and assessment  109–10 consumer protection  16–17 economic and social cohesion 11–12 environmental policy  12–14 intergovernmentalism  18–19 Nice Treaty reforms  23–4 origins in CAP  7–9

overview 80–1 Structural Funds  91–109 Consultation rights advantages and disadvantages  327–9 agencies 326–7 link with transparency  391 rights accorded by legislation  323–4 soft law  324–6 subsidiarity 428–9 what the Courts mandate  316–18 Consumer protection  16–17 Contracting-out centralized administration  76–7 Santer Commission failings  44–5 Court of Justice (CJEU)  see also General Court (GC) case load mechanisms for limiting problem 285–7 principal reform driver  284–5 rationale for CJEU problem  285 reform objectives  288–9 central structural features  281–2 contribution to shared management CAP 88–9 Structural Funds  105–7 jurisdiction 282–4 reform objectives  288–9 relationship with GC direct actions  290–2 preliminary rulings  292–6 Courts see European Courts; National courts Cross-examination 358–9 Damages assessment 757 breaches of Charter  541 causation 746–8 effectiveness principle background principle  274–5 judicial expansion of national remedies  763–4

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824 Damages (cont.) judicial retreat from national remedies  769–70 lawful acts  751–2 liability for discretionary acts breach of superior rule of law 739–80 flagrant and serious breaches 741–3 non-discretionary acts distinguished 744–5 Schöppenstedt test  738–9 liability for non-discretionary acts discretionary acts distinguished 744–5 meaning of illegality  745–6 updated test  741–3 liability of EU servants  750–1 liability of executive agencies 65 nuanced approach to autonomy of national courts recovery of interest  776–7 requirement for cause of action 779–80 proven damage  748–50 relationship between Ombudsman and national courts  817–18 relationship with annulment 737 scope of liability  736–7 State liability general assessment  793–4 interpretation and application 787 judicial acts  787–8 relationship with national remedies 790–3 relevance of discretion  785–6 seminal decision of Francovich 762–3 serious breach test  788–90 three part test  783–5 Delegated acts case law  141–7 conclusions 147–50 demise of Comitology  128–32 implementing acts distinguished 138–41

Index inter-institutional balance of power 132–4 Lisbon Treaty reforms  127–8 Deliberative supranationalism consensual deliberation  123–4 participatory rights  125–6 role of European Parliament  124–5 view of Comitology  122–3 Democracy importance of transparency 356 role of social partnership associative democracy 253–4 Commission’s reasoning 250–1 directly-deliberative polyarchy 254–5 EU model  251–2 neo-corporatism 255–6 participation 252–3 Diligence see Duty of diligent and impartial examination Direct actions annulment Arts 264 and 266 TFEU  728 Arts 264 TFEU  724–31 Arts 266 TFEU  731–4 breaches of Charter  540–1 interim measures  722–4 relationship between CJEU and GC  290–2 standing for judicial review complete system of protection 340–2 history and development  332–5 Directly-deliberative polyarchy 254–5 Discretion conclusions 483 departure from existing policy or guidelines  636 duty of diligent and impartial examination application to competition law 363–4 application to state aids  365–6 development and limitation of principle  366–9 recognition of principle 362–3

judicial discretion  265–6 liability for damages breach of superior rule of law 739–80 flagrant and serious breaches 741–3 Schöppenstedt test  738–9 Meroni principle limitations on power of agencies 168–9 loosening of constraints  192–4 procedural reforms  194–5 proportionality of policy choices acts of the administration  644–5 agriculture and fisheries  645–9 anti-dumping 650–1 inter-institutional controls  651–2 stricto sensu proportionality  653–5 suitability, necessity and manifest disproportionality  652–3 transport 650 questions of law and fact 439–41 relevance to State liability 785–6 review of fact early case law  445–52 misuse of powers  467–9 modern case law—high intensity review  452–63 modern case law—medium intensity review  463–7 three interpretations of test 444–5 review of legal issues qualifications to general approach 444 substitution of judgments  441–3 role of Ombudsman  813–14 substantive review differential standards  475–6 institutional capacity  476–7 manifest errors  477–8, 480–3 US law  478–80

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Index Discrimination  see also Equality application of TEU/TFEU Treaty rights  523–4 conclusions 597–9 nationality discrimination benefits given to workers  550–3 citizenship 563–73 public service exception  553–7 workers defined  549–50 proportionality equal pay  678–80 equal treatment  675–8 race discrimination economic and social rationales 594–6 Framework Directives  596–7 sex discrimination economic and social rationales 581–3 equal pay  583–8 equal treatment  588–94 Documents access to file process rights  354–8 proportionality 656–6 link with transparency foundations 392–3 initial case law  393–4 Lisbon Treaty reforms  391 present regulatory regime  394–400 Duty of diligent and impartial examination application to competition law 363–4 application to state aids  365–6 development and limitation of principle  366–9 move towards dialogue between individual and decision-maker 380–2 recognition of principle  362–3 Duty to give reasons competition law  375–7 content of duty  371–2 move towards dialogue between individual and decision-maker 380–2 rationale 369–70 scope of duty  370–1

Economic policy competence categorization 419–20 Treaty provisions  418–19 effectiveness 207–9 future prospects  233–4 interplay with equality benefits given to workers  550–3 general prohibition under Art 18 TFEU  557–8 interplay with social policy  548–57 public service exception  553–7 race discrimination  594–6 sex discrimination  581–3 underlying rationale  546–7 workers defined  549–50 proportionality 687–8 rationale 202–3 treaty provisions excessive deficit procedure  205–6 multilateral surveillance procedure 203–5 Education, Audiovisual and Culture Executive Agency 71–3 Effectiveness principle  see also Administrative efficacy background principle  274–5 judicial expansion of national remedies adequacy of damages  763–4 substantive conditions  764 time limits  764–6 judicial retreat from national remedies Emmott 767–9 Marshall II 766–7 negative implications regarding compensation  769–70 judicial review  274–5 limitations imposed on national remedies creation of ‘new’ remedies  760–1 proportionality 761–2 temporal effect of preliminary rulings  762 nuanced approach to autonomy of national courts

825 consideration of compatibility 772–4 consideration of EU law at own motion  770–2 limitation periods  774–6 payments unduly levied  777–8 recovery of interest  776–7 requirement for cause of action 779–80 sums unduly paid  778–9 OMC 207–9 proportionality 682 requirements for uniformity with EU law  780–2 role within management of CAP 86–7 State liability  791–3 Employment policy competence categorization 419–20 Treaty provisions  418–19 free movement of workers benefits given to workers  550–3 public service exception  553–7 workers defined  549–50 rationale 210–11 sex discrimination economic and social rationales 581–3 equal pay  583–8 equal treatment  588–94 social partners  244–5 treaty provisions  211–13 Energy policy  68–71 Environmental policy  12–14 Equality  see also Discrimination comparability and objective justification arbitrariness 579–80 conclusions 581 leading cases on interplay  577–8 conclusions 597–9 economic and social rationales general prohibition under Art 18 TFEU  557–8 sex discrimination  581–3 four freedoms economic and social rationales 546–7

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826 Equality (cont.) interplay between economic and social rationales 548–57 judicial approach to nationality discrimination 547–8 protection under Art 18 TFEU 559–61 general prohibition under Art 18 TFEU citizenship 563–73 conclusions 573–5 economic and social rationales 557–8 implementation of EU legislation 561–2 interpretative device  558–9 protection of four freedoms  559–61 scope of application  562–3 importance 545–6 proportionality equal pay  678–80 equal treatment  675–8 race discrimination economic and social rationales 594–6 Framework Directives  596–7 regulatory role  575–7 sex discrimination economic and social rationales 581–3 equal pay  583–8 equal treatment  588–94 European Council  245 European Courts  see also Court of Justice (CJEU); General Court (GC); National courts; Remedies case load mechanisms for limiting problem 285–7 principal reform driver  284–5 rationale for CJEU problem  285 rationale for GC problem 288 reform objectives  288–9 central jurisdictional features 282–4

Index central structural features  281–2 CJEU contribution to shared management CAP 88–9 Structural Funds  105–7 conclusions 310 failure of Constitutional and Lisbon Treaties to make changes 308–9 justification for powers  263–4 reform objectives  288–9 relationship between CJEU and GC direct actions  290–2 preliminary rulings  292–6 relationship with national courts conversion to appellate system 304–6 creation of decentralized judicial bodies  306–8 inclusion of proposed reply 303–4 introduction of filtering mechanism 301–3 limitations on references  300–1 workload problems  297–8, 299–300 European Parliament code of administrative procedure 385–6 institutional balance  273 OMC parliamentary involvement  223–6 procedural reforms  234–6 role of Ombudsman  813–14 Excessive deficit procedure effectiveness 207–9 treaty provisions  205–6 Exclusive competence basic principles  405–6 categorization 406 conditional exclusivity post-Lisbon 410–12 pre-Lisbon 408–10 Treaty provisions  407–8 Executive agencies assessment 73 current agencies Education, Audiovisual and Culture Executive Agency 71–2

overview 67–8 Small and Medium-Sized Enterprises 68–71 Education, Audiovisual and Culture Executive Agency 71–3 establishment and winding-up 63–4 Financial Regulation  64–5 liability in damages  65 origins 62–3 rationale 153–5 review of legality  65–7 staffing 63–4 tasks 64 Fact conclusions 483 discretionary powers  439–41 importance of distinction with law  436–7 meaning and scope  438–9 review of fact early case law  445–52 misuse of powers  467–9 modern case law—high intensity review  452–63 modern case law—medium intensity review  463–7 three interpretations of test 444–5 standard of proof  469–71 standard of review future prospects  474–5 manifest errors  472–4 role of Court  471–2 Fair trial  373–4 File access process rights  354–8 proportionality 656–6 Financial management executive agencies  64–5 Prodi reforms  53–4 Financial Regulation agencies control and accountability  188–9 executive agencies  64–5 Commission power and responsibility 60–2 general principles 2002 57–8 2012 58–60 Prodi Commission reforms  53–4

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Index Fisheries 645–9 ‘Flexibility’ provisions  421–3 Food safety  717–19 Four freedoms interplay with equality overview 670 protection under Art 18 TFEU 559–61 precautionary principle  709–10 proportionality free movement of goods  671–3 free movement of people 673 freedom of establishment  673–5 overview 670 Free movement/freedom of establishment  see Four freedoms Fundamental rights Charter of Fundamental Rights content 497–9 genesis and drafting  487–9 impact on competence  508–10 status 490–2 UK/Poland Protocol  536–9 ECHR obligation to accede  492–5 relationship prior to accession 495–7 effect of Lisbon Treaty  484 EU Network of Independent Experts 489 high-intensity review  460–3 impact of Charter legitimacy of review  543–4 impact on judicial review alterations to profile  542–3 implementation by Member States scope and application  503–8 text and interpretation  503 verticality and horizontality 508 institutional reach of Charter literal and radical interpretation 499–500 normative arguments  500–2 textual and normative dimensions 502

limitations of Charter Art 52 (1)  518–22 prior jurisprudence  517–18 origins and development  484–6 process rights  372–4 proportionality of policy choices evaluation of jurisprudence  662–4 nature of inquiry by Courts  658–62 relationship between Charter and ECHR interpretative obligations  530–1 meaning and scope of rights 529–30 substantive obligations  531–5 relationship of Charter to ECHR drafting issue  528–9 relationship with EU law  524–6 relationship with international law 535–6 relationship with TEU/TFEU Treaty rights advantages and disadvantages of replication 528 applicability of Art 52 (2) to court’s jurisprudence  526–7 discrimination 523–4 Explanatory Memorandum  522–3 remedies 539–41 right to be heard  313 rights and principles distinguished consequences of divide  513–17 nature of divide  512–13 rationale 510–12 standing for judicial review  346–7 UK/Poland Protocol content 536–7 legal effect  537–9 political background  537 General Court (GC)  see also Court of Justice (CJEU)

827 case load mechanisms for limiting problem 285–7 principal reform driver  284–5 rationale for GC problem 288 reform objectives  288–9 central structural features  281–2 jurisdiction 282–4 reform objectives  288–9 relationship with CJEU direct actions  290–2 preliminary rulings  292–6 Grounds for judicial review  265–6 Harmonization broad Treaty provisions concerning competence  424–6 support, co-ordinating, or supplementary action  417–18 History of EU administration agencies competence 17–18 evolution 155–60 Amsterdam Treaty  19 centralized administration origins 6–7 research, technology and health 15–16 competition law  6–7 complexities of Comitology ambiguous ‘original intent’ 113–15 amendment to second Decision 121 approval by CJEU  116–17 birth in context of CAP 115–16 first Decision after SEA 117–18 second Decision after Amsterdam 118–21 continuing evolution  34 exclusive competence  408–10 fall of Santer Commission  36–42, 54 fundamental rights Charter 487–9 origins and development  484–6

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828 History of EU administration (cont.) impact of Lisbon Treaty  27–8 Maastricht Treaty  14–15 Nice Treaty reforms agencies 26–7 centralized administration  22–3 competition law  24–6 new rules for administration  21–2 shared administration  23–4 novel forms introduced by Amsterdam Treaty OMC 20–1 social partners  20 Ombudsman 795–8 OMC 199–202 parallelism 6–7 precautionary principle foundations 695–6 role of CFI  696–9 problems with service delivery and accountability contracting-out 44–5 staff shortages  42–4 Prodi Commission Committee of Independent Experts 46–8 conclusions 53–5 implementation of reforms  50–4 initial reforms  45–6 White Paper on Reform  48–50 recognition of Comitology  10 Rome Treaty  4–5 shared administration consumer protection  16–17 economic and social cohesion 11–12 environmental policy  12–14 intergovernmentalism  18–19 origins in CAP  7–9 social partners  238–40 standing for judicial review  332–5 subsidiarity 426–7 transparency 391–2 Human rights ECHR obligation to accede  492–5 relationship prior to accession 495–7

Index relationship between Charter and ECHR drafting issue  528–9 meaning and scope of rights 529–30 Impact assessments  197 Impartial examination  see Duty of diligent and impartial examination Implementing acts case law  141–7 conclusions 147–50 delegated acts distinguished  138–41 inter-institutional balance of power 136–7 Lisbon Treaty reforms  127–8 survival of Comitology  134–6 Indirect actions annulment 734–5 challenges to EU norms  293–4 challenges to Member States’ actions 294–5 interim measures  724–7 standing for judicial review complete system of protection 339–40 history and development  332–5 Information and co-ordination agencies 165–7 Infringements grounds for judicial review 265–6 subsidiarity jurisdiction 428–9 Institutional balance  271–4 Interest on damages  776–7 Intergovernmentalism 18–19 Interim measures central elements of test  727–8 direct actions  722–4 indirect actions  724–7 Interpretation citizenship first interpretative approach 565–8 fourth interpretative approach 573 second interpretative approach 568–71 third interpretative approach 572–3 equality 558–9

fundamental rights literal and radical interpretation 499–500 text and interpretation  503 precautionary principle EU legislation  710–11 review of EU action  699–706 review of fact  444–5 State liability  786–7 Joint opinions  243, 259–60 Judicial review agencies future regime  194 legal control and accountability 176–7 background principles administrative efficacy  275–6 co-operation 274–5 effectiveness 274–5 institutional balance  271–4 rule of law  269–71 grounds 265–6 impact of Charter alterations to profile  542–3 legitimacy of review  543–4 interrelationship with process rights facilitation of review  382–3 means to consider case 383–4 justification 263–4 precautionary principle application of principle  701–3, 704–5 interpretation 699–701, 703–4 use as sword  705–6 proportionality justification for strict scrutiny 682–4 role of national courts  689–92 sensitivity to differences in national values  686–7 sensitivity to national differences 684–5 sensitivity to national values 684–5 social and economic values  687–8

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Index questions of law and fact discretionary powers  439–41 fact 438–9 importance of distinction  436–7 law 437–8 relationship between Ombudsman and national courts  817–18 review of fact early case law  445–52 misuse of powers  467–9 modern case law—high intensity review  452–63 modern case law—medium intensity review  463–7 three interpretations of test 444–5 review of legal issues qualifications to general approach 444 substitution of judgments  441–3 reviewable acts  266–8 sources of law  264 standard of review future prospects  474–5 manifest errors  472–4 role of Court  471–2 standing complexities of shared administration 329–32 conclusions 347 direct challenges  340–2 fundamental rights  346–7 history and development  332–5 indirect challenges  339–40 Lisbon Treaty reforms  342–6 UPA—Advocate General’s Opinion 335–7 UPA—CJEU reasoning  337–9 substantive review of discretion differential standards 475–6 institutional capacity  476–7 manifest errors  477–8, 480–3 US law  478–80 Jurisdiction  see also Competence conclusions 310

European Courts  282–4 failure of Constitutional and Lisbon Treaties to make changes 308–9 Ombudsman limitations on role  813–14 relationship with national courts 814–18 reform objectives of judicial system 288–9 relationship between CJEU and GC direct actions  290–2 preliminary rulings  292–6 relationship between European and national courts conversion to appellate system 304–6 creation of decentralized judicial bodies  306–8 inclusion of proposed reply 303–4 introduction of filtering mechanism 301–3 limitations on references  300–1 subsidiarity infringements  428–9 Law  see also Legislation discretionary powers  439–41 importance of distinction with fact  436–7 meaning and scope  437–8 questions of law importance of distinction  436–7 meaning and scope  437–8 relationship between Charter and international law  535–6 review of legal issues qualifications to general approach 444 substitution of judgments  441–3 role within management of CAP Conciliation Procedure  87–8 contribution of CJEU  88–9 delineation of legislative objectives 85

829 effectiveness of reform 86–7 legislative design and content 85–6 undermining of formal norms 86 social partners agreements transforming into law  241–3 better governance as social subsidiarity 249–50 implementation of directives 241 rationale and legitimacy  250–8 representation 246–9 sources 264 administrative efficacy 275–6 co-operation 274–5 effectiveness 274–5 institutional balance  271–4 no general code of good administration 276–9 rule of law  269–71 tensions relating to Structural Funds contribution of CJEU 105–7 delineation of legislative objectives 99–100 efficacy 107–8 legislative design and input  100–2 legislative design and output  102–5 soft law  108–9 Lawful acts damages 751–2 revocation of lawful decisions conditional decisions  610–11 consent and fraud  609–10 favourable decisions generally bind  607–9 Legal certainty clarity of EU rules  601 conclusions 641 connection with legitimate expectations 600 rationale for legal protection  605–7 retroactivity 601–4 revocation of lawful decisions changes of policy  612–13

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830 Legal certainty (cont.) conditional decisions  610–11 consent and fraud  609–10 favourable decisions generally bind  607–9 revocation of unlawful decisions balancing of interests—prospective  617–18 balancing of interests—retroactive  614–17 problem facing all systems  613–14 proof of illegality  614 standard of proof  471 types of case  604–5 Legislation  see also Rulemaking access points consultation rights  316–18 rights accorded by legislation 322 CAP delineation of objectives  85 design and content  85–6 harmonization of legal acts 417–18 implementation of equality provisions 561–2 joint liability between EU and Member States  755–7 link with transparency  391 proportionality 680–1 relationship with fundamental rights 524–6 retroactivity 601–4 reviewable acts  266–8 role of Ombudsman  813–14 sources of law  264 Structural Funds delineation of legislative objectives 99–100 legislative design and input 100–2 legislative design and output 102–5 underlying problem with Comitology 111–13 Legitimate expectations conclusions 641 connection with legal certainty 600

Index departure from existing policy or guidelines cases within scope of guidelines 635–6 general principle  630–2 inherent discretion  636 judicial construction of guidelines 632–5 individual representations conduct foreseen by prudent trader  622–3 conduct of applicant  624–5 precise and specific assurances 619–22 overriding public interest application of test  638–9 nature of legal test  637–8 policy changes exception for bargains and specific assurances  627–9 general principle  625–7 overriding public interest  629–30 rationale for legal protection  605–7 revocation of lawful decisions changes of policy  612–13 conditional decisions  610–11 consent and fraud  609–10 favourable decisions generally bind  607–9 revocation of unlawful decisions balancing of interests—prospective  617–18 balancing of interests—retroactive  614–17 problem facing all systems 613–14 proof of illegality  614 types of case  604–5 unlawful representations normative considerations  640–1 positive law  639–40 Levies 777–8 Limitation periods  774–6 Maladministration  see also Ombudsman meaning and scope  810–14

Manifest errors standard of review  472–4 substantive review of discretion  477–8, 480–3 Member States  see also Social partners agencies networks of national agencies 74–6 political control and accountability 184–6 rationale 151–3 enhanced role of National Parliaments 429 implementation of fundamental rights scope and application  503–8 text and interpretation  503 verticality and horizontality 508 importance of transparency 391–2 joint liability with EU application of unlawful legislation 755–7 procedural issues  754 wrong authorization of national action  754–5 precautionary principle applied to their actions compliance with environmental directives 707–9 four freedoms  709–10 interpretation of EU legislation 710–11 proportionality of actions application of EU legislation 680–1 equality 675–80 four freedoms  670 free movement of goods 671–3 free movement of people 673 freedom of establishment  673–5 measures to ensure effectiveness of EU law 682 relationship between Charter and ECHR interpretative obligations  530–1

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Index substantive obligations  531–5 remedies against judicial expansion  763–6 judicial retreat  766–70 limitations imposed by effectiveness principle 759–62 limits of national autonomy 758–9 nuanced approach to autonomy and effectiveness 770–80 requirements for uniformity with EU law 780–2 State liability  762–94 shared administration horizontal networks between Member States 33–4 power accorded to Member States  31–2 shared competence basic principles  412–13 impetus for reform  402–3 pre-emption of Member State action  414–15 scope and variation  415 State liability general assessment  793–4 interpretation and application 787 judicial acts  787–8 relationship with national remedies 790–3 relevance of discretion 785–6 seminal decision of Francovich 782–3 serious breach test  788–90 three part test  783–5 support, co-ordinating, or supplementary action basic principles  415–16 harmonization of legal acts 417–18 scope and variation  416–17 Meroni principle institutional balance  273 limitations on power of agencies 168–9 loosening of constraints 192–4

Misuse of powers grounds for judicial review 265–6 review of fact and discretion  467–9 Multilateral surveillance procedure effectiveness 207–9 treaty provisions  203–5 Multiple grants and awards Education, Audiovisual and Culture Executive Agency 73 typology of EU administration 29 National courts  see also European Courts; Remedies central structural features  281–2 competition law  25 proportionality 689–92 relationship with CJEU conversion to appellate system 304–6 creation of decentralized judicial bodies  306–8 inclusion of proposed reply  303–4 introduction of filtering mechanism 301–3 limitations on references  300–1 workload problems  297–8 relationship with Ombudsman 814–18 remedies against Member States limitations imposed by effectiveness principle  759–62 limits of national autonomy  758–9 State liability for judicial acts  787–8 serious breach test  790 Nationality discrimination citizenship application of equality provisions 562–3 first interpretative approach 565–8 fourth interpretative approach 573

831 second interpretative approach 568–71 third interpretative approach 572–3 free movement of workers benefits given to workers  550–3 public service exception  553–7 workers defined  549–50 strident judicial approach  547–8 Neo-corporatism 255–6 Non-discrimination see Discrimination Norms considerations of proportionality justification for strict scrutiny 682–4 role of national courts  689–92 sensitivity to differences in national values  686–7 sensitivity to national differences 684–5 sensitivity to national values  684–5 social and economic values  687–8 fundamental rights normative arguments  500–2 textual and normative dimensions 502 legitimate expectations  640–1 Lisbon Treaty reforms  127–8 preliminary rulings  293–4 role of law  86 Notice of case  352–4 Ombudsman conclusions 818–19 institutional history  795–8 maladministration 810–14 overview 795 powers initiation of inquiries  798–805 investigative powers  748–51 remedial powers  808–10 relationship with national courts 814–18

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832 Open Method of Co-ordination (OMC) conclusions 217–18 economic policy effectiveness 207–9 excessive deficit procedure 205–6 multilateral surveillance procedure 203–5 rationale 202–3 employment policy rationale 210–11 treaty provisions  211–13 future prospects procedural reforms  234–6 relationship between economic and social order 233–4 history and development  199–202 introduction 20–1 realization in practice deliberation and learning  228–31 parliamentary involvement  223–6 participation 226–8 peer pressure  231–2 public debate and awareness 223 substantive and procedural impact 232 transparency 222–3 social exclusion rationale 213–14 treaty provisions  214–16 social partners  244 soft versus hard law  216–19 traditional Union method compared 219–21 Parallelism 6–7 Participation in decisionmaking advantages and disadvantages 327–9 agencies  187, 326–7 democratic role of social partnership 252–3 legislative consultation  316–18 OMC 226–8 principle and policy for legal access 321–2 rights accorded by legislation 323–4 soft law  324–6

Index Penalties evaluation of jurisprudence  667–8 legislative objectives  666–7 proportionality 666–7 unlimited jurisdiction  667 Precautionary principle academic discourse  713–15 Commission Communication  711–13 conclusions 721 history and development foundations 695–6 role of CFI  696–9 legal decision-making  719–21 political decision-making evaluative strategy  715–16 food safety  717–19 review of EU action application of principle  701–3, 704–5 interpretation 699–701, 703–4 use as sword  705–6 review of Member State’s action compliance with environmental directives 707–9 four freedoms  709–10 interpretation of EU legislation 710–11 Preliminary rulings conclusions 310 conclusions and concerns  295–6 failure of Constitutional and Lisbon Treaties to make changes 308–9 implications of reform  292–3 indirect challenges to EU norms  293–4 to Member States’ actions 294–5 limitations imposed on national remedies  762 relationship between European and national courts conversion to appellate system 304–6 creation of decentralized judicial bodies  306–8 inclusion of proposed reply 303–4 introduction of filtering mechanism 301–3

limitations on references 300–1 workload problems  297–8 Priority setting  51–2 Process-orientated texts  243, 259–60 Process rights  see also Access points code of administrative procedure 384–7 conclusions 387 duty of diligent and impartial examination application to competition law 363–4 application to state aids  365–6 development and limitation of principle 366–9 recognition of principle  362–3 duty to give reasons content of duty  371–2 rationale 369–70 scope of duty  370–1 fundamental rights  372–4 interrelationship with substantive review facilitation of review  382–3 means to consider case  383–4 move towards dialogue between individual and decision-maker 380–2 overview 48–9 right to be heard applicability 349–50 contents 350–62 sector-specific legislation competition law  375–8 overview 374–5 Prodi Commission Committee of Independent Experts 46–8 implementation of reforms financial management  53–4 service delivery  51 staff shortages  52–3 initial reforms  45–6 White Paper on Reform  48–50 Proof annulment 614 damage 748–50 legal certainty  614

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Index legitimate expectations  614 standard of proof facts 469–71 future prospects  474 Proportionality conclusions 693 discretionary policy choices acts of the administration  644–5 agriculture and fisheries  645–9 anti-dumping 650–1 fundamental rights  658–64 inter-institutional controls  651–2 stricto sensu proportionality 653–5 suitability, necessity and manifest disproportionality 652–3 transport 650 importance 668 meaning and scope  642–4 Member States’ actions application of EU legislation 680–1 equality 675–80 four freedoms  670 free movement of goods 671–3 free movement of people 673 freedom of establishment  673–5 limitations imposed on national remedies  761–2 measures to ensure effectiveness of EU law 682 normative considerations justification for strict scrutiny 682–4 role of national courts  689–92 sensitivity to differences in national values  686–7 sensitivity to national differences 684–5 sensitivity to national values 684–5 social and economic values 687–8 penalties evaluation of jurisprudence 667–8 general approach  664–5

legislative objectives  666–7 unlimited jurisdiction  667 proportionality of policy choices fundamental rights 658–64 treaty or legislative rights 656–8 Prudent trader test  622–3 Public service exception  553–7 Public service mission  74–6 Quasi-regulatory agencies 164–5 Race discrimination economic and social rationales 594–6 Framework Directives  596–7 Rational choice theory  122 Reasons see Duty to give reasons Recovery of payments interest on damages  776–7 payments unduly levied  777–8 sums unduly paid  778–9 Regulatory agencies  163–4 Regulatory impact assessments 197 Remedies annulment direct actions  724–34 indirect actions  734–5 interrelationship between courts and administration  735–6 relationship with damages 737 breaches of Charter  539–41 damages assessment 757 causation 746–8 lawful acts  751–2 liability for discretionary acts 738–9 liability for non-discretionary acts  743–4 liability of EU servants  750–1 proven damage  748–50 relationship with annulment 737 scope of liability  736–7 interim measures central elements of test  727–8

833 direct actions  722–4 indirect actions  724–7 joint liability between EU and Member States application of unlawful legislation 755–7 procedural issues  754 wrong authorization of national action  754–5 against Member States judicial expansion  763–6 judicial retreat  766–70 limitations imposed by effectiveness principle  759–62 limits of national autonomy 758–9 nuanced approach to autonomy and effectiveness 770–80 requirements for uniformity with EU law  780–2 State liability  762–94 Ombudsman conclusions 818–19 institutional history  795–8 maladministration 810–14 overview 795 powers 798–810 relationship with national courts 814–18 restitution 753–4 right to effective remedy  373–4 State liability general assessment  793–4 interpretation and application 787 judicial acts  787–8 relationship with national remedies 790–3 relevance of discretion 785–6 seminal decision of Francovich 762–3 serious breach test  788–90 three-part test  783–5 Representations individual representations conduct foreseen by prudent trader  622–3 conduct of applicant 624–5 precise and specific assurances 619–22

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834 Representations (cont.) policy changes exception for bargains and specific assurances  627–9 general principle  625–7 overriding public interest 629–30 unlawful representations normative considerations  640–1 positive law  639–40 Research, technology and health 15–16 Resource efficiency  51–2 Restitution 753–4 Retroactivity contravention of legal certainty 601–4 rationale for legal protection  605–7 revocation of unlawful decisions 614–17 Right to be heard see also Standing for judicial review competition law  375–7 contents access to file  354–8 causation 361–2 cross-examination 358–9 general approach  350–2 notice of case  352–4 right to respond  352–4 separation of functions  359–61 individual measures  312–16 legislative consultation  316–18 political processes advantages and disadvantages 327–9 agencies 326–7 rights accorded by legislation 322 soft law  324–6 principle and policy for legal access 318–22 State aids  379 Right to effective remedy  373–4 Right to respond competition law  377 process rights  352–4 Rights see Fundamental rights; Human rights; Process rights

Index Rulemaking see also Legislation agencies current regime  190 future regime  197–8 consultation rights  316 deliberative supranationalism consensual deliberation  123–4 participatory rights  125–6 role of European Parliament 124–5 view of Comitology  122–3 historical complexities of Comitology ambiguous ‘original intent’ 113–15 amendment to second Decision 121 approval by CJEU  116–17 birth in context of CAP 115–16 first Decision after SEA 117–18 second Decision after Amsterdam 118–21 Lisbon Treaty reforms delegated acts  128–32 hierarchy of norms  127–8 implementing acts  134–47 Santer Commission Committee of Independent Experts conclusions 41–2 detailed critique  38–41 origin and criteria for operation 36–8 impact of fall  77 overview 36 problems with service delivery and accountability contracting-out 44–5 staff shortages  42–4 Schöppenstedt test  738–9 Secondary legislation see Rulemaking Sectoral dialogue  259–60 Separation of functions  359–61 Serious breach test resolution by CJEU  788–90 resolution by national courts 790 State liability  785

Service delivery Prodi Commission reforms  51 Santer Commission failings contracting-out 44–5 staff shortages  42–4 Sex discrimination economic and social rationales 581–3 equal pay  583–8 equal treatment  588–94 proportionality equal pay  678–80 equal treatment  675–8 Sexual orientation  593–4 Shared administration CAP framework of shared management 83–4 from price to income support 82–3 reforms to administration and finance  89–90 role of law  85–90 treaty foundations  81–2 conclusions and assessment  109–10 impact of Lisbon Treaty  27–8 Nice Treaty reforms  23–4 origins CAP 7–9 consumer protection 16–17 economic and social cohesion 11–12 environmental policy  12–14 intergovernmentalism  18–19 Structural Funds framework of shared management 98 genesis of policy  92–3 reforms 1988–2013  93–8 role of law  99–109 treaty foundations  91 typology EU agencies  32–3 horizontal networks between Member States 33–4 mixed proceedings  30–1 overview 28–9 power accorded to Member States  31–2

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Index Shared competence basic principles  412–13 impetus for reform  402–3 pre-emption of Member State action 414–15 scope and variation  415 Social partners agreements transforming into law better governance as social subsidiarity 249–50 better governance, functional attribution and democracy  231–7 rationale and legitimacy 250–8 representation 246–9 autonomous agreements  258–9 conclusions 241 emergence of social dialogue  238–40 introduction 20 joint opinions  259–60 OMC future prospects  233–4 rationale 213–14 treaty provisions  214–16 process-orientated texts  259–60 sectoral dialogue  259–60 treaty framework agreements transforming into law  241–3 consultation 241 implementation of directives 241 joint opinions  243 OMC 244 overview 240–1 process-orientated texts  243 role of European Council 245 Tripartite Summit for Growth and Employment 244–5 Social policy interplay with equality benefits given to workers  550–3 general prohibition under Art 18 TFEU  557–8 interplay with economic policy 548–57 public service exception  553–7

race discrimination  594–6 sex discrimination  581–3 underlying rationale  546–7 workers defined  549–50 proportionality 687–8 Soft law OMC 216–19 right to be heard  324–6 Structural Funds  108–9 Sources of law administrative efficacy  275–6 co-operation 274–5 effectiveness 274–5 institutional balance  271–4 legislation 264 no general code of good administration 276–9 rule of law  269–71 Staffing executive agencies  63–4 liability of EU servants for damages 750–1 Prodi Commission reforms  52–3 Santer Commission failings  42–4 Standard of proof facts 469–71 future prospects  474 Standard of review future prospects  474–5 manifest errors  472–4 proportionality 682–4 role of Court  471–2 Standing for judicial review see also Right to be heard breaches of CFR  539–41 complexities of shared administration 329–32 conclusions 347 direct challenges  340–2 fundamental rights  346–7 history and development  332–5 indirect challenges  339–40 Lisbon Treaty reforms  342–6 UPA Advocate General’s Opinion 335–7 CJEU reasoning  337–9 State aids centralized administration 28–9 Commission rights  379–80

835 duty of diligent and impartial examination 365–6 individual process rights  379 judicial construction of guidelines 632–5 medium intensity review 465–7 State liability general assessment  793–4 interpretation and application 787 judicial acts  787–8 relationship with national remedies equivalence and effectiveness 791–3 who pays  791 relevance of discretion  785–6 seminal decision of Francovich 762–3 serious breach test  788–90 three part test  783–5 Stricto sensu proportionality  653–5 Structural Funds conclusions and assessment  109–10 framework of shared management 98 genesis of policy  92–3 medium intensity review  467 reforms 1988–2013  93–8 role of law contribution of CJEU  105–7 delineation of legislative objectives 99–100 efficacy 107–8 legislative design and input 100–2 legislative design and output 102–5 soft law  108–9 treaty foundations  91 Subsidiarity see also Competence conclusions 434–5 operation in practice evaluation 433–4 legal controls  431–3 political controls  430–1 post-Lisbon consultation 428–9 enhanced role of National Parliaments 429

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836 Subsidiarity (cont.) retention of principle  427–8 pre-Lisbon 426–7 Support, co-ordinating, or supplementary action basic principles  415–16 harmonization of legal acts  417–18 scope and variation  416–17 Transparency access to documents foundations 392–3

Index initial case law  393–4 present Regulatory regime  394–400 agencies 183–4 conclusions 400 history and development  389–90 importance 388–9 Lisbon Treaty reforms  355–6 meaning and scope  389 OMC 222–3 reform objectives of judicial system 288–9

Typology of EU administration centralized administration multiple grants and awards 29 state aids  28–9 shared administration EU agencies  32–3 horizontal networks between Member States  33–4 mixed proceedings  30–1 overview 28–9 power accorded to Member States  31–2