EU Law Blog

For tomorrow’s class please read to page 19.

I asked you to think about whether the Austrian rule in the Trucks case was an indistinctly applicable rule or not. This matters because under Cassis, indistinctly applicable rules can be justified on the basis of public interest considerations that are not listed in Art 30. Rules which are not indistinctly applicable, but apply only to imports can only be justified by reference to the considerations listed in Art. 30.

The Court’s decision to examine whether the rule satisfied proportionality involved an assessment that environmental protection was a legitimate interest for the Member States. But the Court refers to “imperative requirements in the public interest endorsed by the case-law of the Court of Justice” rather than to Art. 30 as the basis for the Member States’ power in this area (para 84). The Court does not say that the rule in the case is indistinctly applicable.

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The 4th packet of materials is available here and you should also have received it by email. Paper copies are available in the Distribution Center. Please read the first eleven pages for Tuesday’s class.

Have a good weekend!

You can find all of the class materials here (note that the second packet ends with links to relevant documents rather than with the documents themselves).

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I have posted (belatedly, with apologies) notes from last Thursday’s class to the class notes page.

Have a good spring break!

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The notes for today’s class are here. I will update this url with the notes for classes as we proceed.

As I mentioned in class, rates of worker participation in trades unions vary from country to country. In the US now about 12.5 percent of wage and salary workers are union members (down from 20.1 percent in 1983). In looking into the data yesterday I wasn’t able to find broad and up to date comparative date, but around 1988-1990 (different dates for different states) the US had about 16%, and France about 11% union membership. Germany had 39%, the UK 46%, Italy 65%, Denmark 88% and Sweden 95%. Eironline has a more recent survey which gives “crude figures” as follows:

over 90% in Romania;
80%-89% in Belgium, Denmark, Finland and Sweden;
70%-79% in Italy and Norway;
60%-69% in Cyprus and Malta;
50%-59% in Luxembourg;
40%-49% in Austria and Slovenia;
30%-39% in Hungary, Ireland and Portugal;
20%-29% in Bulgaria, Germany, Greece, the Netherlands, Slovakia and the UK; and
10%-19% in Estonia, Latvia, Poland and Spain.

According to a comparative survey at the european industrial relations observatory online, minimum wages set by statute were around 7 euros per hour in 2004 in France, Ireland and the UK and around 1 euro per hour in Estonia, Lithuania, Slovakia and the Czech Republic. Wages are set through collective agreement in some Member States including Germany, Finland and Austria.

We also looked at how European Community law requiring freedom of establishment and the freedom to provide services across borders may conflict with the EU’s commitment that workers should have a voice. Viking, a Finnish Shipping line is attempting to stop industrial action over its plans to change the flag state of one of its ferries from Finland to Estonia. In arguing that the EC Treaty protects its right to freedom of establishment Viking is arguing that Art. 43 of the Treaty should be regarded as producing horizontal direct effects so that Viking can enforce the right to establishment not just against Member States whose laws might interfere with freedom of establishment but also against non-state actors whose actions might make establishment in other Member States more difficult. The language of Art. 43 does not make it clear whether Art 43 should be treated as producing horizontal direct effects or not.

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Rather than the topic I announced for tomorrow’s class, and in light of the ongoing strike action I am going to use tomorrow’s class for some discussion of the EU’s approach to workers’ rights (no advance preparation required). I will tape the class and post outline notes on the weblog. And I will happily answer questions via email or otherwise.

We will cover the material originally scheduled for tomorrow on Thursday.

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I have posted outline notes for today’s class as a page here. I haven’t figured out yet how to configure things so that this will scale for 2 sets of notes per week but will work on this.

I will also distribute in class today a copy of a Bill currently before Congress: the National Uniformity for Food Act of 2005 (this is the pdf version and more elegant but longer than the version I will hnd out in class). On Tuesday next week we will discuss the paraquat case at the end of the last set of materials together with the UK Food Supplements (European Communities Act 1972 Disapplication) Bill and this US national standards bill.

The European Communities Act 1972 is the statute which provides for European Community law to take effect within the UK. Section 2(1) of the Act provides:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable Community right” and similar expressions shall be read as referring to one to which this subsection applies.

Section 3 includes the following provisions:

3. - (1) For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court).
(2) Judicial notice shall be taken of the Treaties, of the Official Journal of the Communities and of any decision of, or expression of opinion by, the European Court on any such question as aforesaid; and the Official Journal shall be admissible as evidence of any instrument or other act thereby communicated of any of the Communities or of any Community institution.

The 1972 Act makes it clear that Community law is meant to take precedence over conflicting national law but a fundamental principle of English law is that Parliement is supreme and, as a corollary, no Parliament can bind its successors. If the Food Supplements Bill were enacted, should domestic courts in the UK give precedence to the new statute or the 1972 statute?

[update 2.30pm: There are some resources on the US Bill at the New Standard]

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Some members of the class may have read about yesterday’s vote by Unicco employees to strike against their employer which would affect the places where they actually carry out their work, including UM. The article in the Herald and this post at discourse.net make it clear that we have no idea what is going to happen. It seems that there may be roving picket lines at UM affecting different parts of the University at different times. And it also seems to be accepted that the picket lines will only affect their specific locations rather than the University as a whole. I have never heard of such a thing before (although it may have something to do with the strike action being secondary action). It all sounds very confusing.

Anyway, what I propose is this:

1. I will teach classes affected by pickets for the benefit of those students who choose to cross the lines.

2. I will not take attendance at such classes.

3. I will arrange classes in another location for those students who choose not to cross the line (although obviously at a different time which will cause inconvenience for which I apologise in advance).

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Next week we will consider the food supplements case. You will want to compare the approaches of the Advocate General’s opinion and of the ECJ’s judgment in the case. Which approach do you find more persuasive? Why did the ECJ not follow the same approach as the Advocate General in the case?

I know I said we would think about the food supplements directive and the doctrine of indirect effects next week. We will think about that issue, but later. I’m sending the next packet of materials to the Distribution Center today (these materials address the standing issue we have noted before in more detail and help to explain why the Alliance for Natural Foods had to wait to challenge the directive until the UK implemented the directive). We may not get to the next packet next week as there is a lot to think about in the food supplements cases.

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On Thursday we will begin with the question about how much discretion the Member States had about how to go about implementing the Food Supplements Directive. Do the Member States just have to include the directive’s rules in their own legal systems? Note the ways in which the UK’s implementing regulations diverge from the contents of the directive. Write out a list.

If the UK’s regulations are different from the directive do you think that the difference(s) is/are within the powers of the UK under the directive or not? Which aspects of the directive look as though they reflect the idea of the UK choosing its “form and methods” of implementation under Art 249 (i.e. adjusting implementation to national conditions)?

As a directive, the Food Supplements Directive won’t produce direct effects allowing a purchaser to enforce the directive against a manufacturer/seller of food supplements which don’t conform to the requirements of the directive (because this would be horizontal direct effect which does not exist in relation to directives). However, it would be possible to enforce rights under the directive against a Member State (e.g. if a Member State omitted to ensure that conforming products could be sold in its territory).

Do your conclusions about the Member States’ discretion affect whether you think this is the right answer in this case?

If the EU institutions had acted by regulation would that have made a difference?

Then we will start to look at the litigation over the Directive. I don’t think that Judge Richards’ decision will take very long. Do you agree with his approach to the decision about whether the reference should be made?

Then I think (contrary to what I said in class) that we will have time to look at the Advocate General’s opinion in the case at pp 65-81 (and not the ECJ’s decision). The claimants raised a number of different challenges to the vailidity of the Directive, based on various provisions of the Treaty and on general principles of Community law and fundamental rights. Assess these challenges and the Advocate General’s responses. Do you agree with the opinion in all respects/some/none?

Advocate General Geelhoed’s bio on the Court’s website is as follows:

Leendert A. Geelhoed
Born 1942; Research Assistant, University of Utrecht (1970-71); Legal Secretary at the Court of Justice of the European Communities (1971-74); Senior Adviser, Ministry of Justice (1975-82); Member of the Advisory Council on Government Policy (1983-90); various teaching assignments; Secretary-General, Ministry of Economic Affairs (1990-97); Secretary-General, Ministry of General Affairs (1997-2000); Advocate General at the Court of Justice since 7 October 2000.

In what ways does the Advocate General’s opinion read differently from the ECJ’s decisions we have been studying?

(This posting was amended at 9.40 pm Tuesday)

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As I said last week, tomorrow we will look at the doctrine of direct effect. On Thursday we’ll begin the next packet of materials. Please read up to page 35 for Thursday’s class and compare the two cases.

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