European Union Law

Title: European Union Law: Answer all three questions equally within the word count of 3000 1. Manuel, a Spaniard, is a recent graduate of the University of Barcelona, having gained a degree in Leisure and Tourism. Manuel wishes to undertake post graduate research on English soccer hooliganism and he has applied for a number of jobs in England to help support him while he is undertaking his research. He receives an offer of a job with Torquay Borough Council as a part-time waiter with the Leisure Services Department. Manuel is delighted by this job offer but is disappointed when UK immigration officials inform him that he will be unable to enter and take up this position because a provision of UK local government law requires that posts in local government be filled only by British nationals.

Furthermore they inform him that since it only involves six hours’ work at a rate of pay well below subsistence level it would not qualify him for any rights under EC law. Manuel also wished to bring with him his Irish girlfriend Polly who wished to look for work also in the catering industry. Polly has been refused entry into the UK. Cybil, an unemployed waitress from Torquay, was recently made redundant. Disenchanted with the English weather, she decides that she wants to go to live in Barcelona. Cybil arrives in Spain with her elderly, retired husband Basil. At the airport Spanish immigration officials tell Cybil that, under a provision of Spanish immigration law, her husband will have to return to England immediately because he has no work to go to. Cybil herself is refused entry because she has a conviction in England from 1984 for domestic violence.

Advise all parties of their rights under Article 39 and its secondary legislation. 2. “The concepts of direct effect, indirect effect and state liability are no more than a creative attempt on the part of the European Court of Justice to ensure that the objectives of the Treaty are not defeated by the wording of Article 249.” Discuss the accuracy of the above statement. 3. The Italian government have recently introduced legislation following a research paper in a French journal which, while unsubstantiated, concludes that “English poultry is perilously infected with Newcastle disease”. Acting on this the Italian legislation proposes: a) A ban on the importing of all live chickens from the UK. b) The imposing of testing of all poultry for Newcastle disease regardless of origin. c) The introduction of a system of licensing for all retail outlets selling imported poultry or poultry products for consumption. d) Criminal sanctions for all distributors of both domestic and imported poultry that sell infected poultry or poultry products. Discuss the legitimacy of the Italian legislation within EU Law Q.1. The Treaty of Rome 1957 (hereafter ‘the EC Treaty’), as amended, provides for the free movement of workers around the Union.

This freedom is an essential component of the EU Single Market. Article 39

ted Article 39

[1] states that: “1. Freedom of movement for workers shall be secured within the Community. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. 4. The provisions of this Article shall not apply to employment in the public service.”

[2] Presumably at pains to avoid artificially restricting the scope of the concept, the Treaty does not define the word ‘worker’. However, the European Court of Justice has interpreted Article 39 broadly in a number of cases. In Lawrie-Blum v Land Baden-WÆ’A¼rttemberg

[3] the essential characteristic of a worker was found to be the performance of services for and under the direction of another in return for remuneration during a certain period of time. It should be noted that the concept of worker is the domain of EU law. It may not be determined by disparate national laws of the member states: Levin v Staatsecretaris van Justitie.

[4] For the sake of clarity and simplicity it is proposed to advise each of the parties on the above law individually. Manuel Manuel has received an offer of a job with Torquay Borough Council as a part-time waiter with the Leisure Services Department. This scenario concerns exactly the kind of cross-border worker mobility protected under the EU regime. Regulation 1612/68 provides that EC nationals are guaranteed the right to pursue and take up employment in the territory of another member state under precisely the same conditions as nationals of that state.

[5] That said, Article 39(4)

[6] of the EC Treaty allows member states to refuse or otherwise restrict access to workers employed in the public service on the ground of their nationality.

This appears to apply to Manuel’s case, because he has been offered a job with a Borough Council. It is submitted, however, that this derogation has, as with most Treaty derogations from fundamental principles, been narrowly interpreted by the European Court. In Sotgiu v Deutsche Bundespost

[7] there was a claim that post office rules offering allowances to workers discriminated against non-nationals. It was held that Article 39(4) applies only to access to employment and that it does not apply to all employment in the public service. Rather, only those activities connected with the exercise of official authority are permitted to be excluded on this ground.

[8] Given the likely job specification of Manuel’s position as part-time waiter in the Leisure Services Department, it seems most unlikely that his job would fall into the category that is protected by the Article 39(4) derogation. Furthermore, in Commission v Belgium (re Public Employees)

[9] a Belgian regulation reserving posts for domestic nationals (including plumbers nurses and architects employed in central and local government) was found to contravene Article 39. The court stressed that the exception was intended to cover only the exercise of public authority in order to safeguard the general interests of the state. Junior level posts were deemed not to be covered by the derogation.[10] It is difficult to conceive of a more junior and less influential position than part-time waiter. Therefore it is submitted that the United Kingdom cannot exclude Manuel from taking up his intended post on the basis of the public policy derogation. As for the United Kingdom’s concern that Manuel’s job offers only involves six hours’ work at a rate of pay well below subsistence level, it is submitted that it is erroneous to conclude that this would not qualify him for any rights under EC law. In Levin v Staatsecretaris van Justitie[11] it was confirmed that the term worker included part-time workers provided the work involved was genuine work of an economic nature and not purely nominal. Kempf v Staatsecretaris van Justitie[12] and Steymann v Staatsecretaris van Justitie[13] both reinforce the point that very minimal economic activity will trigger the rights available under Article 39. Manuel’s job offer therefore probably cannot be excluded by the public policy derogation or on grounds that the economic activity involved is not substantial enough to qualify for protection. He is thus likely to be legally entitled to enter the United Kingdom to take up the post he has secured. Polly Polly is Manuel’s girlfriend and also, being Irish, a citizen of the EU in her own right. Directive 68/360 has been found by the European Court to cover the right to enter a member state other than your own in search of work.

The case Procureur du Roi v Royer[14] confirms that Polly is entitled to enter the United Kingdom to seek out work in the catering industry, and probably this right will subsist for a minimum period of six months: R v Immigration Appeal Tribunal (ex parte Antonissen).[15] This should give Polly sufficient time to get established in work or ascertain other legal rights to support her residence. Cybil Cybil is similarly entitled to invoke Directive 68/360 to allow her to enter Spain to search for work. In light of her recent redundancy it is assumed that Cybil is of an age to pursue genuine employment opportunities, and it is assumed she will seek to invoke Article 39 protection to that end. Her 1984 conviction for domestic violence cannot, it is submitted, be cited to block Cybil’s entry into Spain on the Article 39(3) public policy derogation. Previous criminal convictions do not provide the grounds for exclusion in this context unless they demonstrate evidence of a present and significant threat to public policy: R v Bouchereau.[16] A twenty-one year old conviction for domestic violence is far from passing that threshold of significance. Cybil cannot be assumed to constitute a present threat to the requirements of public policy and given the time that has elapsed since conviction there is no evidence of a likelihood of a recurrence of socially harmful behaviour.[17] Spain cannot, it is submitted, block her entry on these grounds. Basil As Cybil’s spouse, Basil is entitled to enter Spain and accompany her on her search for work. His rights are protected, inter alia, by Article 10(1) and 10(2) of Regulation 1612/68, the latter of which provides that member states must facilitate the admission of family members when a worker is seeking to invoke freedom to work rights.[18] Q.2. Article 249 EC provides that: “….A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”[19] The essential problem lies with the definition of the Directive.

Directives are unlike regulations in that they do not create legal rights and obligations when they enter into force. They rely on implementation at a national level before conferring enforceable law via the transposing domestic legislation. Often in the history of the European Union member states have either failed to transpose Directives, or failed to implement them accurately, or been late with their implementation.[20] In these circumstances a difficult situation arises. In Marshall v. Southampton and South West Hampshire Area Health Authority[21] it became clear that employees enjoy different rights depending on the status of their employer. Public employees can invoke vertical direct effect to enforce rights in an improperly implemented directive against the state, which as their employer, has failed in its duty to transpose the directive accurately. However, employees of a private undertaking can only attempt to invoke direct effect horizontally against their employer. In Marshall the court refused to endorse the efficacy of horizontal direct effect, leaving employees of private undertakings with no right of action. It is useful to compare Von Colson[22] and Harz.[23] Both cases concerned Article 6 of the Equal Treatment Directive (76/ 207). However, Von Colson concerned a public and Harz a private employer, and therefore a remedy was available in the Von Colson case but not in Harz.

Instead of spotlighting the inequitable results of the lack of horizontal direct effects of Directives, the ECJ focused on articles 10 and 249 (ex 5 and 109) EC which oblige member states to conform to community obligations. On giving birth to the concept of indirect direct effect, the court found that this requirement applies to all member states authorities, including in particular the courts, who were ordered to interpret and apply legislation adopted to implement a directive in the light of the wording and purpose of the directive in order to achieve the objective of the Directive. The Marleasing[24] decision developed the principle of indirect effect by confirming that an obligation exists to interpret national law to comply with a directive, regardless of whether the national law in question came into force prior to or after the directive. When domestic law cannot be creatively interpreted in such a way as to give the complainant an effective remedy another option is now available. The individual is now empowered pursue the alternative remedy of a claim in damages against the state. As a consequence of certain proactive decisions by the European Court, damages may be awarded as a remedy in cases where the member state fails to implement a directive.[25] In these circumstances the liability of the member state rests on the non-implementation of a directive and breach of its EU obligations.

The member state is thus compelled to rectify the damage done to the individual by the breach. The state liability doctrine was first applied in the prominent case Francovich.[26] In Francovich the relevant Directive was incapable of sustaining direct effect, but the overarching goal of the effective and uniform implementation of Community law was found to justify liability on the part of the member state to compensate for its failure to implement the directive. The European Court established a test to determine whether member states should be obliged to compensate individuals for breach of improperly transposed EU law. It was held (1) that the objective of the directive must include the conferring of individual rights, (2) that the content and scope of those rights must be clearly identifiable from the text of the Directive, and (3) that there must be a casual link between the breach and the damage caused. The scope of the so-called Francovich principle of state liability has been extended by more recent cases. In Brasserie du PÆ’Aªcheur and Factortame III,[27] the European Court amplified its own jurisprudence, finding state liability in damages in the context of claims for loss suffered as a result of legislation adopted in contravention of directly effective Treaty provisions. As a consequence of the foregoing decisions, for state liability to arise the breach in question must be sufficiently serious (alternatively manifest and grave): Bayerische HNL GmbH.[28] To date it has proved quite difficult, in practice, to meet this condition before the national courts.[29] In closing, it is submitted that the European Court’s response to the problems inherent in the frailties of directives and gaps in the direct effect principle amply demonstrates its resolve to enhance and safeguard the effet utile of European Union law.[30] As a consequence of the European Court’s single-minded approach to the task of embedding and honing Community law, EU citizens now have a variety of means of obtaining the protection of the law derived from the framework established by the Treaty of Rome. Q.3. Articles 28 to 30 of the EC Treaty prohibit Member States from maintaining or imposing barriers to intra-Community trade, unless a derogation is found to be applicable. Article 28 (ex Article 30) provides: ‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’ Article 30 (ex Article 36) adds the caveat that derogations are available: ‘The provisions of Articles 28 and 29 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.’ The ban proposed by the Italian Government on English poultry is subject to this framework of law. The starting point for intra-EU trade is that it should not be fettered in any way. It is submitted that the only way for the Italian Government to circumnavigate this fundamental right and pillar of the Single Market is to claim, presumably on the Article 30 ground of the protection of health and life of humans, animals or plants, that a derogation is justified in light of the health concerns relating to English poultry. It is worth noting at an early stage that the derogations in Article 30 exempt a founding principle of the European Union’s much cherished and jealously guarded internal market and as such they are parsimoniously and restrictively applied. In general terms it is therefore necessary to advance a compelling argument if one is to convince the European Court that intra-EU trade has been justifiably restricted.[31] Import bans are notoriously hard to justify under Article 30 because they usually constitute an unnecessarily draconian step and are usually unnecessary to protect health given the alternative precautions available: Commission v Germany (Meat Preparations).[32] It is noted that the research paper in the French Journal which has been cited as justification by the Italians is unsubstantiated. It is doubtful that this evidence would suffice to convince the European Court that the Italian Government’s response was in conformity with Article 28 obligations. In order to justify an Article 30 exemption it is necessary to demonstrate a real and tangible risk to health. Slight, tentative or theoretical risks will not suffice. In Commission v United Kingdom (French Turkeys)[33] a licensing system was established by the UK authorities to exclude poultry from countries adopting a policy of vaccination in preference to one of slaughter (also) in response to Newcastle disease. The European Court resolved that such a ban was unjustifiable on grounds of animal health. The Court speculated that the ban was no more than a thinly disguised restriction on intra-EU trade. Further and better particulars are sought on the matter of the ban and the nature of the disease and its contamination of the United Kingdom chicken flock.

However, on the facts presented it seems unlikely the Italian ban would be deemed lawful at the European Court of Justice. The proposal to test poultry for Newcastle disease regardless of origin is more likely to be considered in conformity with EU law. The testing system is more likely to be deemed acceptable if Italy can demonstrate that there is no intrinsic or indirect discrimination against foreign goods. Inspections are typically permissible in the circumstances described, but they are only likely to be justified if they are found to be reasonably proportionate to the aim pursued. Moreover, it must be demonstrated by the Italian Government that the same goal cannot be achieved by less restrictive means. In Commission v France (Re Italian Table Wines)[34] the European Court found that lengthy delays in customs clearance of wine imported from Italy into France were disproportionate and thus discriminatory.

Supposedly random checks were imposed on 75 per cent of consignments, but this level of surveillance was deemed systematic and thus disallowed. The proposed introduction of a system of licensing for all retail outlets selling imported poultry or poultry products for consumption is however destined to fail. Licensing per se is an entirely laudable exercise and can be defended on grounds of public health for a variety of cogent reasons. However, the key word in the proposal is imported. A new system of licensing outlets that deal in imported poultry has an obviously and directly discriminatory effect which would inevitably serve to encourage domestic retail outlets to sell only Italian-reared poultry rather than subject themselves to the burdens of additional licensing. It is contended that any system which purported to distinguish between domestic and extra-EU products by these means and in this context would be treated as blatant protectionism by the European Court. The proposal to establish criminal sanctions for all distributors of both domestic and imported poultry that sell infected poultry or poultry products would seem to be an unnecessary, disproportionate and draconian response. Despite the fact that the measure would apply equally to Italian and EU poultry, there is a risk that such action could constitute an indirect impediment to the flux of Community trade and an indistinct deterrent on poultry importation from any member state known or suspected to suffer from Newcastle disease infection, regardless of the level, scope or pattern of that infection. According to the celebrated Dassonville[35] formula: ‘All trade measures or trading rules enacted by the Member States which are capable of hindering, directly or indirectly, actually or potentially, into community trade as measures having and effect equivalent to quantitative restrictions.’ Therefore it is not necessary to demonstrate that the Italian proposal on criminal sanctions actually hinders trade between member states, as long as it is possible to show that the measure is capable of such effects. THE END WORD COUNT: 3668 (excluding footnotes – I overran to take account of the fact that the lengthy question is counted in the computerised word count) BIBLIOGRAPHY The Treaty of Rome The Treaty of Amsterdam European Commission Notices (various) Official Journal (various) Business Law in the European Union, C.Bovis, Sweet & Maxwell EC Law, Weatherill and Beaumont, Penguin Books Introduction to European Union Law, Cairns, Cavendish EU Law – Text, Cases and Materials, Craig and De Burca, Oxford University Press Contravening EC Law: The Liability of the Member State, Spink P., Northern Ireland Legal Quarterly Textbook on EC Law, Steiner and Woods, Blackstone Law of the European Community, Fairhurst and Vincenzi, Pearson Education EC Law, Foster, Blackstone Basic Community Cases, Rudden and Phelan, Oxford University Press Law of the European Union, Kent, P., Longman Text, Cases and Materials on European Union Law, Tillotson and Foster, Cavendish EU Law Statutes, Sweet and Maxwell Cases and Materials on EC Law, Weatherill, Oxford University Press BACKGROUND RESEARCH Europa: Gateway to the European Union: https://europa.eu.int/index_en.htm.

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Footnotes

[1] Ex Article 48 (renumbered by the Treaty of Amsterdam).

[2] For full text see: https://europa.eu.int/eur-lex/en/treaties/selected/livre210.html.

[3] Case 66/85.

11] Case 53/81.

[5] See for background: Business Law in the European Union, Bovis, C, Sweet & Maxwell.

[6] Ex Article 48(4).

[7] Case 152/73.

[8] For supporting commentary see: Textbook on EC Law, Steiner and Woods, Blackstone.

[9] Case 149/79. [10] A view reinforced by a 1988 Commission Notice: OJ No. 72/2. [11] Case 53/81. [12] Case 139/85. [13] Case 196/87. [14] Case 48/75. [15] Case C-292/89. [16] Case 30/77. [17] See for comment: EC Law, Weatherill and Beaumont, Penguin Books. [18] For further see: Law of the European Union, Kent, P., Longman. [19] For full text see: https://europa.eu.int/eur-lex/en/treaties/selected/livre252.html [20] See for general comment and background: EU Law – Text, Cases and Materials, Craig and De Burca. [21] Case C-271/91. [22] Case 14/83. [23] Case 79/83. [24] Case 106/89. [25] For an insightful exposition see: Text, Cases and Materials on European Union Law, Tillotson and Foster, Cavendish. [26] Cases C-6/90 and C-9/90. [27] Cases C-46/93 and C-48/93. [28] Case 83/77. [29] For a full discussion see: EC Law, Foster, Blackstone. [30] Contravening EC Law: The Liability of the Member State, Spink P., Northern Ireland Legal Quarterly, Summer 1997, p111. [31] See for context: Basic Community Cases, Rudden and Phelan. [32] Case 153/78. [33] Case 40/82. [34] Case 42/82. [35] Procureur du Roi v Dassonville Case 8/74.

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