Article 157(2) TFEU
Ordinary basic minimum wage or salary; or
any other consideration;
that is received directly or indirectly in respect of employment from employer.
Garland v British Rail Engineers
Wide interpretation of Art.157(2).
Travel concessions granted to family of male ex-employees, but not female ex-employees. This was 'consideration' in line with 157(2) and it was in respect of employment relationship, therefore pay.
Barber v Guardian Royal Exchange
Payments under private 'contracted-out' occupational pension schemes are pay under Art. 157.
Work is pay if received directly or indirectly in respect of employment by employer. Receiving, for example, redundancy pay will still be 'pay' even though it comes after employment has been terminated.
Therefore private pension schemes must harmonise retirement ages.
+ Any form of redundancy pay (statutory or private) is pay under Art. 157.
Private pension scheme is contractual and therefore pay.
Direct discrimination is illegal, but indirect discrimination may be legal if objectively justified by employer.
Claimant must first establish that measure disadvantages one sex in relation to another. If C establishes this, burden of proof shifts to D to demonstrate that:
the measure corresponds to a real need on the part of the employer, the measure is appropriate to achieving the objective and it is necessary (proportionate.)
Nb- A measure that benefits full-time workers may be ID if majority of part-time workers are women and measure is not objectively justifiable.
Compensation for unfair dismissal designed to give employee what he would have earned in respect of employment from employer. Pay.
Defrenne v Sabena
Compulsory contributions to state social security scheme is not pay.
Art. 2(1) recast Equal Treatment Directive
Defines 'direct discrimination' as 'where one person is treated less favourably on grounds of sex... in a comparable situation.'
Defrenne v Sabena (No.2)
Belgian airline paid male cabin crew more than females. This was direct discrimination under Art. 157.
Decision not hire a woman because she is pregnant is direct discrimination.
Webb v EMO
Decision to dismiss a woman because she is pregnant is direct discrimination.
Article 2(1)(b) recast Equal Treatment Directive
Indirect discrimination is an 'apparently neutral provision that puts one sex at a disadvantage'.
A MS may objectively justify an ID state measure if:
law reflects a legitimate aim of its social policy;
the aim is unrelated to any discrimination based on sex; and
the means adopted is suitable for attaining that aim.
Article 14 recast Equal Treatment Directive
If C cannot rely on Art. 157 for 'equal pay', recast Directive prohibits direct and indirect discrimination on grounds of sex in relation to access to employment, working conditions and dismissal.
Nb- Directive so no horizontal direct effect.
Art.14(2) recast Equal Treatment Directive
Occupation requirement exception. Can be relied upon if it is a genuine and determining occupational requirement and policy is proportionate.
Commission v UK (1982)
ECJ permitted midwifery to be reserved for women.
Johnson v Chief Constable of RUC
Any derogation from principle must be interpreted strictly but RUC's reasons (women may disarmed, public objection to women in danger) may fall within derogation. Up to national court in this case.
Article 157(4) TFEU
Positive action. MS 'may adopt measures with a view of enuring full equality in practice between men and women.'
Abrahamsson and Anderson
A woman favoured over a man for a position even though less qualified. Not allowed.
A man and woman equally qualified but woman preferred. Not allowed.
Man and woman equally qualified. Presumption that woman will be favoured but may be rebutted by any overriding characteristics the man demonstrates. Allowed.
Article 267 TFEU
Any court or tribunal may make a reference to the ECJ if necessary.
A case pending before a court against whose decisions there is no judicial remedy under national law shall being the matter before the ECJ.
Used for 'intepretation of the Treaty' or 'acts of the institutions' (secondary legislation).
In deciding whether a body will be a 'court or tribunal', the ECJ may consider:
- Is the body established by law?
- Is it permanent?
- Is its jurisdiction compulsory (binding)?
- Is its procedure inter parties?
- Is it independent?
It will be sufficient that MOST factors are satisfied (as in Dorsch Consult)
Arbitration panel not a court or tribunal. ECJ emphasised voluntary nature of proceedings and lack of official involvement.
Is Art. 267 reference necessary?
Para 10- Is the question relevant to conclusion of the case?
Para 14- Have previous ECJ decisions dealt with this part of EU law?
Paras 16-20- Is the issue so obvious as to leave no scope for reasonable doubt? Equally obvious to other MSs?
International Stock Exchange
Lord Bingham said the ECJ have more expertise in dealing with complex EU law so national court should exercise discretion in favour of referral.
Court of Appeal- only refer if issue has application beyond case in hand (ie general importance). ECJ could become overwhelmed.
Costa v ENEL
Confirmed that the court of mandatory jurisdiction is highest court for that particular case (here Italian magistrates court)
Also- ECJ will not interpret national law nor expressly answer whether ECJ law conflicts with national law. However, they normally 'reformulate' question rather than reject referral.
Rheinmuhlen v Dusseldorf
Higher national court cannot prevent a lower national court from making a reference.
A national court cannot declare a piece of EU law invalid. Therefore, any doubt about validity of EU law, make a Art.267 reference.
Irish Creamery Milk Suppliers
It is up to national courts at which stage to make a reference, but usually appropriate for national court to establish facts first.
Foglia v Novello
If there is an absence of a genuine dispute and parties wish to 'engineer' ECJ intervention, ECJ may refuse request.
If given insufficient factual background (in this case complex tax case) may refuse to accept reference.
A Treaty Article may have direct effect it is sufficiently clear and precise and unconditional (ie MS has no discretion as to how it should be implemented)
Treaty Articles also have horizontal direct effect (Defrenne)
Regulations have vertical direct effect if Van Gend criteria satisfied.
Regulations have horizontal direct effect if Van Gend criteria satisfied.
Directives may have direct vertical effect if Van Gend criteria is satisfied;
AND implementation deadline for Directive must have passed (Ratti);
AND the action must be against a public body since Directives only have vertical direct effect (Marshall).
Foster v British Gas
A 'public body' or 'public authority' must:
be under a statutory duty to provide a public service;
be under State control; and
have special powers.
Doughty v Rolls Royce
Rolls Royce was a commercial company owned by the government (therefore under State control). However, it had no special powers and was not under a statutory duty to provide a public service.
Griffin v South West Water
State control can mean under State regulation.
SWW was a privatised water company. It had was under a statutory duty because relevant legislation imposed duties as water and sewerage service provider. It had special powers to (eg impose hosepipe bans).
It was also found that, although not under direct State control (privatised) it was a public body because it was regulated by the State.
NUT v St. Mary's
Not all 3 elements of Foster test have to be satisfied for a body to be a 'public authority'.
The school was under a statutory duty to provide a public service (education) it was under State control (funded by govt. and had to follow national curriculum). However, it had no special powers.
Despite this, the school was still found to be a public body.
The ECJ have yet to rule on whether or not all three factors have to be in place, so this judgment should be treated with caution.
Article 4(3) TEU requires MSs to take 'all appropriate measures to ensure the fulfilment of their union obligations. This includes national courts. Therefore national courts must interpret national law in light of EU legislation (ie Directives).
This is indirect effect.
Pickstone v Freeman
Applying purposive approach to implementing national legislation.
HofL prepared to interpret 'same work' as 'same value work' dealing with 1983 Regulations to 1970 Equal Pay Act.
Lister v Forth Dry Docks
Applying purposive approach to implementing legislation- bolder approach than Pickstone v Freeman.
HofL interpreted 'immediately before business is sold' to 'or would have been employed if not unfairly dismissed'.
Non-implementing legislation should also be interpreted by national courts using purposive approach 'so far as possible'.
This was applied to the interpretation of the Spanish Civil Code in Marleasing.
Webb v EMO
UK applying purposive approach to non-implementing legislation.
Sex Discrimination Act 1975 interpreted in light of Equal Treatment Directive 1976 despite CofA initially saying this would involve 'unduly twisting' the 1975 Act.
There is a limit to purposive approach of indirect effect.
Where there is a clear conflict between national and EU law, harmonious interpretation will not be possible.
A MS cannot rely on indirect effect to impose criminal liability on an individual on the basis of a Directive that has been incorrectly implemented or has not been implemented by the MS.
Francovich v Italy
A State may be liable for its failure to implement a Directive if:
1) The Directive confers rights on individuals.
2) The context of those rights are identifiable from the Directive.
3) There is a causal link between the breach and harm/loss suffered by C.
Covers discrimination relating to religion, belief, disability, age and sexual orientation.
Covers racial or ethnic origin
Brasseries du Pecheur/ Factortame (No 4)
For state liability:
4) The breach must be 'sufficiently serious.'
Extended State liability for breach of ANY EU law (not just Directives) + said MS's still liable even if legislation has direct effect.
Dillenkofer- sufficiently serious means MS 'manfiestly and gravely disregarded the limits on its rule-making powers'
No legislative choices to make = in itself sufficiently serious.
Where there has been a complete failure to implement a Directive this will in itself constitute a sufficiently serious breach.
Therefore, for failure to implement a Directive, original Francovich test applies.
Incorrect implementation of a Directive.
Where a MS has exercised rule making powers there must be a 'sufficiently serious' breach. The test in BT is:
1) Is the Directive clear or vague?
2) Has the Commission or ECJ given any advice or guidance on the the issue?
3) Have other MSs made the same mistake? (as they had in BT).
Administrative acts that breach EU law are not automatically sufficiently serious so need to apply BT test.
Kobler v Austria
Where a court of mandatory jurisdiction fails to make an Article 267 ref, this must amount to a 'manifest breach of ECJ case law'.
Article 34 TFEU
Prohibits quantitative restrictions on imports (QRs) and measures having equivalent effect (MEQRs)
Riserio Luigi Geddo
QRs- a limit on the amount of imports.
(ie outright ban on imports/exports or a quota system)
MEQR- 'All trading rules enacted by MSs capable of hindering, directly or indirectly, actually or potentially intra-EU trade.'
Commission v Ireland (Irish Souvenirs)
Distinctly applicable MEQR.
MEQR because it was not a quota or outright ban on imports, but it had the potential to hinder imports.
Distinctly applicable because the rule only applied to imports (it did not apply to Irish products).
Nb- in this case, imports actually increased. It is not important whether the measure actually hindered intra-EU trade, just that it had the potential to.
Also, this case demonstrates that the relationship between the Member State and the the organisation initiating the campaign does not have to be watertight, provided it is demonstrably real.
Commission v UK (UHT Milk)
MEQR because it was not a quota or outright ban on French milk but it had the potential to hinder trade by making placing onerous packing regulations on importers who had already packaged products outside UK.
Indistinctly applicable because the measure applied to all UHT milk producers (from UK or elsewhere).
Keck and Mithouard
MEQRs relate to the goods themselves (size, shape, labelling, ingredients etc)
Mere 'selling arrangements
' are not MEQRs
within Dassonville definition because they are not intended to regulate intra-EU trade at all.
1) A rule that applies only to imported products will be an MEQR.
2) A rule that relates to the way in which the product is sold is prima facie a selling arrangement.
- 3) A rule that puts imported products at a disadvantage compared to domestic
- products will be an MEQR, even if it otherwise falls within the definition of a selling arrangement.
'Selling arangements' are rules which regulate the way products are sold. Examples are advertising and rules on shop opening times. The court held in Keck that these are not generally restrictions on imports, as long as they do not have a greater effect on imports than on domestic products.
States may therefore regulate selling arrangements however they like, so long as the effect on imports and domestic products is the same.
Clinque; Mars Ice Cream
Packaging is never a selling arrangement under Keck. Therefore measures relating to how goods are packaged may be an MEQR.
If advertising restriction acts as a barrier to the market, it CAN be an MEQR.
In this case advertising restrictions applied to all sellers of alcohol within Sweden (indistinctly applicable), but in fact adversely affected imports (MEQR) as without advertising consumers tend to buy products they already know, not new imported products- thus potentially hindering flow of goods into Sweden.
Restriction on television advertising was a selling arrangement (not an MEQR) as affected French produced fuel in the same manner as imported fuel.
Pharmacists were prevented from advertising outside their shops. This was a mere selling arrangement as it did not involve any alteration to the products themselves.
Commission v Greece (baby milk)
Baby milk could only be sold in pharmacies. This was held to be a selling arrangement.
Restrictions on where goods can be sold will be a selling arrangement in cases like this.
Punto Casa v Capena
ECJ held definitively that Article 35 TFEU has no application to laws relating to shop opening hours and days (eg Sunday trading laws).
Such laws are pure selling arrangements, not MEQRs.
Approach that any measure that acts as a barrier to the market will be an MEQR (as seen in Gourmet International).
This measure required all bakers, butchers and grocers making sales from mobile shops to have a local, permanent base which sold the same product. The measure affected all said mobile vendors within Austria (indistinctly applicable) but clearly had the potential to impede access to Austrian market (therefore MEQR).
Article 36 TFEU
Treaty exceptions for distinctly or indistinctly applicable MEQRs:
1) Public policy
2) Public security
3) Protection of health and life of human beings and animals...
4) Protection of national treasures
5) Public morality
R v Thompson
Public policy derogation under Art.36 TFEU
The ECJ confirmed UK had an interest in protecting its mint coinage from destruction (when dealing with illegal export bans under Art.35 TFEU)
Commission v France (Angry Farmers)
MSs may be required to take positive steps to ensure free movement of goods. Failure to take action may in some cases may amount to MEQR.
In this case France failed to take action to prevent French protestors intercepting lorries containing imported goods and destroying cargoes. This was negatively affecting imports and was an MEQR.
The French government failed to justify as public policy derogation under Art. 36 TFEU as govt. had allowed situation to go on unchecked for many years long.
Contrast with Commission v France.
Austrian government succeeded in public policy exception under Art. 36 Treaty derogation.
Austrian government failed to stop an environmental group blocking a motorway integral for transit of goods between Germany and Italy. The group had given prior notice.
ECJ said in some cases MSs have to protect other rights of citizens (in this case freedom of expression). Provided this is done in such a way as is the least restrictive of free movement of goods, it will be permitted (as here).
Here the demonstration was lawful and pre-approved for a short period of time (just 30 hours). The authorities had considered alternatives but had come to the reasonable conclusion there was nothing that could have been done.
Also developed the idea initially founded in Commission v France (Angry Farmers) that Article 34 also applies where MS abstains from adopting measures required in order to deal with obstacles to the free movement of goods which are not caused by the State.
Thus a failure to act could be just as likely to affect intra-EU trade as positive act.
Public security exception under Art. 36 TFEU.
Petrol 'transcended purely economic consideration' and could be covered by public security.
R v Henn and Darby
This was a ban on all imports of pornographic and obscene films (a QR).
However, it was justified on the basis of public morality under Art. 36 TFEU. The ECJ said it was up to MSs to set its own standards of public morality.
The ECJ said this was not an arbitrary discrimination or a disguised restriction on trade since there was no lawful trade of such items within the UK. Therefore, it was acceptable for the UK to restrict the import of these goods into the UK.
UK were not able to rely on the public morality exception under Art. 36 TFEU because the items in questions (inflatable sex dolls) could be legally produced and sold within the UK. The UK could not therefore argue the items contravened its code of public morality.
Commission v UK ('Newcastle Disease')
Confirms statement in Art.36 that MSs must not misuse Art.36 exceptions as a 'disguised restriction' to protect national industry.
In this case British measures prohibiting French poultry imports were protectionist. The UK government failed to justify the measure on the basis of protection of health as the ban was unnecessarily restrictive (disproportionate). Immunisation would have had the desired effect.
Cassis de Dijon
A MS may justify an indistinctly applicable MEQR under the Cassis de Dijon approach if it is:
for a mandatory requirement
of the State.
Some of the examples put forward are:
- fiscal supervision;
- protection of public health;
- fairness of commercial transactions;
- defence of the consumer
Para 14 'Rule of reason'- It is now a general rule of free movement law that prodcuts or services are primarily subject to the law of their origin state, and should not, except where mandatory requirements apply, be subjected to further requirements based on destination state law.
As list of possible justifications for MEQRs under the Cassis approach is not exhaustive, MSs may attempt to justify MEQRs using their own reasons.
In this case, the French govt. successfully defended a law which banned the sale or hire of of videos of films during the first year in which the film was released. This was accepted as be necessary for a mandatory requirement of the State (protection of culture).
Commission v Denmark (Disposable Beer Cans)
The ECJ accepted protection of the environment as a mandatory requirement under the Cassis approach.
Commission v Germany (Re Beer Purity Laws)
A German law imposed an absolute bar on additives in beer.
MEQR because it had the potential to affect imports as foreign beer companies would have to alter ingredients at a considerable expense to sell their products in the German market.
Indistinctly applicable because it applied to all beer sold within Germany, regardless of where it was produced.
Germany attempted to justify this on basis of protection of public health under Cassis. However, it was found that according to scientific research, the additives were not dangerous. The measure was therefore not necessary to protect public health.
de Smedt PVBA
A Belgian law required margarine to be packed in cube-shaped boxes.
MEQR because all importers of margarine would be forced to re-package their products to sell in Belgium. This additional expense would have the potential to hinder trade between Belgium and other EU MSs.
Indistinctly applicable because it applied to all margarine sold within Belgium, wherever it was manufactured.
Belgium tried justify this under Cassis as consumer protection (it would allow them to distinguish between butter and margarine).
However, the measure went beyond what was necessary to protect the consumer. It was therefore not necessary for a mandatory requirement of the State.
MSs must choose the means least restrictive of trade to achieve their aims. In this case, clear labeling of margarine products could have achieved the desired effect.
Para 14 Cassis de Dijon
Principle of mutual recognition.
There is a presumption that goods lawfully produced and sold in one MS (in this case alcoholic beverages) should be marketable in others.
If there is a law that prevents this, it is up to the MS in question to rebut this presumption by proving it is justifiable under Art.36 TFEU OR Cassis.
Council Directive 92/85
Includes protection from dismissal as well as limited rights to maternity leave and pay.
It does not cover a pregnant women who is refused employment on grounds of her pregnancy, though it has long been held that this amounts to direct discrimination and will fall under the Equal Treatment Directive.
Also, Article 2(2)(c) ETD clearly states that any less favourable treatment of women related to pregnancy or maternity amounts to discrimination.
Remedies for breach of EU law
There are no 'EU remedies' for breach of EU law. The general principle is that the national court should use the nearest equivalent national remedy to ensure that justice is done.
However, there are the principles of 'equivalence' and 'effectiveness':
- - Equivalence
- The remedy must not discriminate between a breach of national law and a breach of EU law.
- - Effectiveness
- In Marshall (No 2), C succeeded in striking out a national ceiling for sex discrimination claims (6,250) when her damages were calculated as 18,450. It was also found she was entitled to claim interest.
The national law was ineffective to guarantee C's EU rights.
General principles of EU law
Supremacy of EU Law
- - Van Gend en Loos
- EU law supreme over Dutch law the pre-dated Treaty of Rome
- - Costa v ENEL
- EU law supreme over national law enacted after Treaty.
- - International Handelsgesellschaft
- EU law, including secondary legislation, supreme over MS's constitution.
- - Werner Mangold
- National courts had to set aside legislation that breached general EU principle of equality.
MSs are free to go beyond harmonisation Directives and impose more stringent measures on its own country's products.
In this case UK produced tobacco products were required to have a larger health warning than the size stipulated in the harmonisation Directive. The ECJ allowed this.