EU Administrative Law (Collected Courses of the Academy of -- Paul Craig -- 3, 2019 -- Oxford University Press -- 9780198831648 -- 7f7ca95299d6fbbe3c3ef02a822cc383 -- Anna’s Archive

EU ADMINISTRATIVE LAW
THE COLLECTED COURSES OF THE ACADEMY OF

EUROPEAN LAW
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.
EU
ADMINISTRATIVE
LAW
Third Edition
PAUL CRAIG
St John’s College, Oxford
Great Clarendon Street, Oxford, OX2 6DP, United Kingdom
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objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a
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© 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
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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,
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ISBN 978–0–19–883164–8 (hbk.)
ISBN 978–0–19–883165–5 (pbk.)
ebook ISBN 978–0–19–256745–1
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work.
This book is for Anita and Ciaran
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
CONTENTS
Table of Cases
Tables of Legislation, Treaties, and Conventions
Abbreviations
PART I ADMINISTRATION AND LAW
1 HISTORY AND TYPOLOGY

2 CRISIS, REFORM, AND CONSTITUTIONALIZATION
3 CENTRALIZED MANAGEMENT
4 SHARED MANAGEMENT
5 COMITOLOGY
6 AGENCIES
7 OPEN METHOD OF COORDINATION
8 SOCIAL PARTNERS
PART II LAW AND ADMINISTRATION
9 FOUNDATIONS
10 COURTS
11 ACCESS
12 PROCESS
13 TRANSPARENCY
14 COMPETENCE AND SUBSIDIARITY
15 LAW, FACT, AND DISCRETION
16 RIGHTS
17 EQUALITY
18 LEGAL CERTAINTY AND LEGITIMATE EXPECTATIONS
19 PROPORTIONALITY I: EU
20 PROPORTIONALITY II: MEMBER STATES
21 PRECAUTIONARY PRINCIPLE
22 REMEDIES I: EU
23 REMEDIES II: MEMBER STATES
24 THE OMBUDSMAN
Index
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
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 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 Test-Achats 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
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
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
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
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
Carlos Garcia Avello v Belgium (C-148/02) [2003] ECR I-11613 565
Carmen Media Group Ltd v Land Schleswig-Holstein (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
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-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 (35/97) [1998] ECR I-5325 547
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-257/01) [2005] ECR I-345 117, 121
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-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
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-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-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 (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-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 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
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 (C-383/92) [1994] ECR I-2479 682, 761
Commission v UK (C-359/97) [2000] ECR I-6355 762
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
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
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
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
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 Midden-Gelderland (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
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
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
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
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 (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 (Telematic Networks) (C-22/96) [1998] ECR I-3231 728
European Parliament v Council (C-363/14) EU:C:2015:579 133
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 Sonderabfal- Management-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
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 (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
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-399/95 R) [1996] ECR I-2441 723
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
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
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
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 Hamburg-Jonas (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
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-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
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
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
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
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
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
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
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
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
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 Automatenaufstellungs-GmbH 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
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
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
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-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
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 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
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
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 maladie-invalidité (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
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
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
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-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
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
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
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 Telekom-Control-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
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
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 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 Zuchtvieh-Kontor 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 Nordrhein-Westfalen (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 Hamburg-Jonas (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
Wunsche Handelsgesellschaft, Re Dec of 22 October 1986 [1987] 3 CMLR 225 531
Württembergische Milchverwertung-Südmilch-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
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
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
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
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
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
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-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
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 Vasco-Gobierno 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
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 Tierschultz-Fonds 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
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 Informations-Industrie 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
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
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
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
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
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
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 Milchverwertung-Südmilch-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 Massey-Ferguson [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
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
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
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 Baden-Württemberg [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
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
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
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
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
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
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
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
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
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 Spezial-Gebäudereinigung 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
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-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
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
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
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 Midden-Gelderland
[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
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-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-295/94 Hupeden & Co KG v Hauptzollamt Hamburg-Jonas [1996] ECR I-3375 665
C-296/94 Pietsch v Hauptzollamt Hamburg-Waltershof [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-43/95 Data Delecta Aktiebolag and Forsberg v MSL Dynamics Ltd [1996] ECR I-4661 560
C-57/95 France v Commission (Re Pension Funds Communication) [1997] ECRI-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
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-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-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
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 Nordrhein-Westfalen [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-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
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-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
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-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-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-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-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
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-352/98 P Laboratoires Pharmaceutiques Bergaderm SA and Goupil v Commission [2000] ECR I-
5291 738, 741, 742, 744, 782, 786
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
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-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
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-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-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-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-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
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-465/00, 138 & 139/01 Rechsnungshof v Österreichischer Rundfunk and others [2003] ECR I-4989
485
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-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-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-873 678
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-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-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 Baden-Wurttemberg [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-263/02 P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425 149, 317, 318, 332, 338
C-277/02 EU-Wood-Trading GmbH v Sonderabfal- Management-Gesellschaf Rheinland-Pfalz mbh
[2004] ECR I-11957 686
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-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-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-182 and 217/03 Belgium and Forum 187 ASBL v Commission [2006] ECR I-5479 622, 629
C-198/03 P Commission v CEVA Santé Animale SA and Pfizer Enterprises Sàrl [2005] ECR I-6357
742
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-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-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-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-7/04 P(R) Commission v Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd [2004] ECR I-
8739 723
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-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-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
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-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-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-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
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-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-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
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-Planck-Gesellschaft 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-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-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-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
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
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 tal-Agrikoltura u s-Sajd and Avukat Generali [2011] ECR I-1655
317
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-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 Tierschutz-Fonds 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
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
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 Pyrénées-Atlantiques 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
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 Marie-Rose 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
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 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
TABLES OF LEGISLATION, 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
346, 372, 373, 526,
Art 41 527, 540
Art 41(1) 367, 373, 526, 527
313, 346, 350, 354,
Art 41(2) 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
346, 360, 367, 373,
Art 47 533, 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
490, 509, 510, 523,
Art 51(2) 525
Art 52(1) 518–22, 664
Art 52(2) 522–7
495, 519, 522, 528,
Art 52(3) 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
Art 185 58
Art 190 370
Art 202 120, 138, 142
Art 208 43
65, 309, 334, 336,
Art 230 337, 339, 340, 342,
460
Art 230(1) 65, 175
Art 230(4) 333, 335, 339
Art 231 728
Art 232 340
334, 335, 336, 339,
Art 234 342
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
10–12, 93, 117, 402,
Single European Act 1986 (SEA) 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
Art 3 412, 420
Art 3(1) 406
406, 407, 408, 410,
Art 3(2) 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
675, 691, 692, 696,
Art 34 710
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
547, 549–554, 557,
Art 45 558, 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
10, 404, 418, 421,
Art 114 424, 426, 435
Art 114(5) 369
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
264, 499, 559, 581–
Art 157 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
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
65, 66, 88, 171, 175,
267, 281–3, 290,
Art 263 293, 340, 368, 428,
431, 458, 526, 728,
758
171, 176, 194, 263,
Art 263(1) 264, 266, 283
194, 265, 269, 270,
Art 263(2) 401
268, 309, 342–4,
Art 263(4) 346, 347, 368, 540,
541
Art 263(5) 176, 283
Art 263(6) 267
Art 264 728–36
171, 264, 281, 282,
Art 265 290
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
128, 129, 131–3,
137–45, 147, 165,
Art 290 171, 172, 191, 197,
343
Art 290(1) 132
Art 290(2) 132, 133
Art 290(3) 128, 343
6, 128, 129, 131, 134,
Art 291 137–45, 171, 172,
291, 343
Art 291(2) 134
Art 291(3) 134
Art 293 251
Art 296 370, 371, 380
28, 351, 384, 385,
Art 298 819
Art 325 135, 652
Art 340 281, 755, 784
174, 736, 737, 740,
Art 340(2) 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
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
102, 106, 107
Art 24(2)
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
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 97
Funds
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 51, 184, 390, 392,
Parliament, Council and Commission documents 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
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
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
182
Art 66(d)
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
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 166, 185
and health at work
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 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
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 53, 56, 58, 188
1605/2002)
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
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
189
Art 48
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 158
Enforcement Training (CEPOL)
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 589, 590, 675, 762,
training and promotion, and working conditions 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
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 31
products for human use, Art 28
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
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 34
civil and commercial matters
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
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
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
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
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
GC General Court
GDP gross domestic product
IGC Intergovernmental Conference
IIWG inter-institutional working group
IPM Interactive Policy Making
INEA Executive Agency for Innovation and Networks
JHA Justice and Home Affairs
MCA monetary compensation amount
MEP Member of the European Parliament
MTO medium-term budgetary objective
NAP national action plan
NCA national competition authority
NGO non-governmental organization
NSRF National Strategic Reference Framework
OFT Office of Fair Trading
OHIM Office for Harmonization in the Internal Market
OLAF European Anti-Fraud Office
OMC Open Method of Coordination
OSHA European Agency for Safety and Health at Work
PJCC Police and Judicial Cooperation in Criminal Matters
REA Research Executive Agency
SCAN Scientific Committee for Animal Nutrition
SEA Single European Act 1986
SGP Stability and Growth Pact
SRM Single Resolution Mechanism
TAO technical assistance office
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
TFRA Task Force for Administrative Reform
TSCG Treaty on Stability, Coordination and Governance
UCLAF Unité de coordination de lutte anti-fraude
UEAPME European Association of Craft, Small and Medium-Sized Enterprises
UNICE Union of Industrial and Employers’ Confederations of Europe
WTO World Trade Organization
PART I
ADMINISTRATION AND LAW

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 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 thereafter.
(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 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.
(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 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
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 inter-dependent, 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 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 ever-changing 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
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
Community 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.
(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 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.
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 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 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 dissemination 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 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 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 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, 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.
(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 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 precipitated by a crisis. The resignation of the Santer
Commission constituted just such 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 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 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 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 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 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
cooperation. 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 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 articles, 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 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
(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 bottom-up. 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 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 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 rubber-
stamped 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 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 different 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
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.
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 Schmidt-Aßmann, ‘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 Composite Administration and the Role of European Administrative Law’ in O Jansen and B
Schöndorf-Haubold (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).
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.
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).
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.
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).
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.
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.
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.
36
Arts 130r, 130s, and 130t EEC.
37
Art 130r EEC.
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.
44
Ibid Art 25(1).
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).
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.
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/con
sumer_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
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 veterinary 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.
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.
72
S Peers, EU Justice and Home Affairs (Oxford University Press, 3rd edn, 2011).
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.
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
re-launched 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].
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.
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.
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.
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.
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/european-
union/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.
120
COM(2008) 135 (n 118) 5.
121
Ibid 8.
122
Ch 6.
123
Ch 5.
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.
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.
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).
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.
141
Chiti, ‘Administrative Proceedings involving European Agencies’ (n 1).
142
European Agencies—The Way Forward, COM(2008) 135.
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.
150
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.
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/european-consumer-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.
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.
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 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 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 consultancy. 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 structures 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.
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.
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 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 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
contracting-out 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 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 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 importance 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 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 contracting-out 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 responsibilities 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. 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 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 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 acknowledged 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 capability. 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, 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, 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 directorate-
general. 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 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 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 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.
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].
7
P Craig, Administrative Law (Sweet & Maxwell, 8th edn, 2015) Ch 5; M Freedland,
‘Government by Contract and Private Law’ [1994] PL 86.
8
1999).
9
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.
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].
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].
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].
29
Ibid [9.2.2].
30
Ibid [9.2.3].
31
Ibid [9.2.5].
32
Ibid [9.2.6].
33
Ibid [9.2.7].
34
Ibid [9.4.6].
35
Ibid [5.8.2], [9.4.5].
36
Ibid [9.4.2].
37
Ibid [9.4.2].
38
Ibid [5.8.2].
39
Ibid [5.8.3].
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.
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
51
Committee of Independent Experts, Second Report (n 8).
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
58
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
63
Ibid Vol I [2.2.49]–[2.2.59].
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
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.
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.
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.
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.
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
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.
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].
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.
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 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
mechanisms 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 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;
(iii) the EIB and the European Investment Fund [or any other subsidiary of the Bank];
(iv) bodies referred to in Articles 208 and 209;
(v) public law bodies;
(vi) 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 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.
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 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, 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 director 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 renewable.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 officials recruited on renewable
contracts.67 This is designed to provide flexibility, 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 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 non-contractual 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 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 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 challenging 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). 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 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, 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 thirty-eight 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 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
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, 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.
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 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 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
contracting-out. 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 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 pre-financed 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.
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 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 principle 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 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.161 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.
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
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 (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).
4
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).
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).
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).
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.
29
Committee of Independent Experts, Second Report (n 4) [4.6]–[4.7.2].
30
Ibid [4.7].
31
Ibid [4.7.2].
32
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).
38
Ibid Art 66(3).
39
Ibid Art 66(5).
40
Ibid Art 84.
41
Ibid Art 85(1), subject to limited exceptions.
42
Ibid Art 86(1).
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
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
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.
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.
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).
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
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.
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).
86
Case 9/56 Meroni v High Authority [1958] ECR 133.
87
https://ec.europa.eu/info/departments_en.
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 multi-
annual 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.
93
Ibid 6.
94
Ibid 7.
95
Ibid 7.
96
Ibid 13.
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).
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.
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
multi-annual 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.
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.
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.
142
Ibid [3.1].
143
Ibid [5.2].
144
Ibid [5.2], [7].
145
Ibid [3.2].
146
Ibid [4.1].
147
Ibid [5.1].
148
Ibid [4.2].
149
Ibid [5.3].
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.
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].
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).
161
Special Report No 13 (n 88) [40]–[46].
161
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.
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 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.
Decision-making has, therefore, always necessitated a balancing operation of
the factors in 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 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 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.
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
accreditation 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.
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 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 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 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.
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
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
(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.
(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 additional 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 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 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 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 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 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.
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 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.
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 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 mid-term, 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 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
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.
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 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 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 management,
payment, and certification to a single national institution, even if different
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 post-1999 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 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.

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 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
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 (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.
5
1999) Vol I, [3.2.2] (hereafter Second CIE).
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.
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).
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
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.
24
Second CIE (n 5) [3.13.2]–[3.13.5].
25
Reg 1258/1999 (n 22) Art 4.
26
Reg 1663/95 (n 18) Art 3.
27
See n 12. The provision remained unchanged in Reg 1258/1999.
28
Second CIE (n 5) [3.7.5].
29
See n 12.
30
Second CIE (n 5) [3.9.6].
31
Ibid [3.9.6].
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).
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].
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].
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?
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.
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: Multi-Level Governance or
Renationalization?’ (2000) 7 JEPP 290.
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.
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.
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).
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.
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
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/.
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/.
100
Ibid Vol I, [3.22].
101
Ibid Vol I, [3.19].
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.
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).
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).
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.
137
Reg 1303/2013 (n 94) Arts 72–74, 122–127.
138
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.
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.
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].
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].
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.
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.
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.
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 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, 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 articulated 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 directive 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
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 created 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 delegation 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 procedure 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 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.
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 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 co-decision. 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
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 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
reasons 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
The Nice Treaty and Amendment to the Second
(F) 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
(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 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 decision-making 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 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 undermine the European
Parliament’s claims to partake in the passage of primary 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 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 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 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.
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 interpretation 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.
However, the Council’s desire for assistance from national experts in
relation to delegated acts led rapidly to the Common Understanding 2011.83
The Commission 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
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 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 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 trade-off 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 ill-suited 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 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 procedures. This is in part because the
Regulation also makes provision for implementing 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 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. 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.
(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 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 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 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 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 delegated 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.
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 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 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 provision 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 non-essential 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 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. 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 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 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
1
Majone, Regulating Europe (Routledge, 1996); G Majone, ‘Europe’s “Democratic Deficit”: The
Question of Standards’ (1998) 4 ELJ 5.
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).
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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,
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.
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].
90
Ibid Annex [5].
91
Ibid Annex [7].
92
Ibid Annex [8].
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
2010 establishing a European Supervisory Authority (European Banking Authority) [2010] OJ L331/12.
96
2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions
Authority) [2010] OJ L331/48.
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.
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].
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.
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).
113
Ibid Art 2(3).
114
Ibid Art 5(2).
115
Ibid Art 5(1).
116
Ibid Art 5(3).
117
Ibid Art 7.
118
Ibid Art 8.
119
Ibid Art 5(4).
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.
124
Interinstitutional Agreement (n 85) [4].
125
Craig (n 77) 271.
126
See, eg, http://ec.europa.eu/competition/antitrust/legislation/regulations.html.
127
COM(2009) 673 (n 79).
128
Craig (n 105).
129
European Parliament resolution of 25 February 2014 on follow-up on the delegation of legislative
powers and control by Member States of the Commission’s exercise of implementing powers
(2012/2323(INI)) [2017] OJ C285/2.
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.
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].
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.
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].
148
Case C-286/14 European Parliament and Council v Commission (n 133).
149
Ibid [41]–[45].
150
Ibid [46].
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).
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
Industriehygiene-Service Verwaltungs GmbH v Commission [2003] ECR I-15105, [43]; Case C-
263/02 P Commission v Jégo-Quéré & 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.
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.
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 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 day-to-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
regulatory 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 created 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 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 regulatory
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 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 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 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 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 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
generality 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 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 regulatory 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 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
decision-making 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 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 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
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.
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
(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
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 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
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 ‘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 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 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.
The differences between the agency regulations are most marked in
relation to legality 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
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 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, 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 performance.160 This is particularly so for those that
have decision-making power, but 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. 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
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 established 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
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 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 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
cooperation 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 networking can take place. It enables
the EU to establish a body to act as the focal point 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.
(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 consultation 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.
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 initiated 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 decision-making 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 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 evaluation 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
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.
The legal and political reality of the new financial regulatory agencies is,
however, that Member State influence continues to dominate in the making of
delegated 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 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 delegated acts. The same stricture
applies a fortiori to exercise of analogous power 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 consultation 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 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 predominate on agency management boards, with
representatives from the Commission, 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.
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 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.
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
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.
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.
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.
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.
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
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.
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
Reconstruction [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-
risk-management/european-system-financial-supervision_en.
49
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
2010 establishing a European Supervisory Authority (European Banking Authority) [2010] OJ L331/12.
51
2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions
Authority) [2010] OJ L331/48.
52
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.
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].
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.
70
Operating Framework (n 8) 3–4.
71
Ch 3.
72
L11/1.
73
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.
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.
82
Operating Framework (n 8) 8; Analytical Fiche Nr 1 (n 78).
83
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.
88
Reg 2309/93 (n 30) Arts 10, 32.
89
Reg 1093/2010 (n 50).
90
Ibid Art 1(5).
91
Ibid Arts 17(6), 18(3)–(4), 19(3)–(4).
92
Ibid Arts 10, 13.
93
Ibid rec 23.
94
Ibid Art 10(3).
95
Ibid Art 10(1).
96
See below, 176–7.
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).
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).
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.
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.
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].
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].
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.
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
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.
140
Ch 5.
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].
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].
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.
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.
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).
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).
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
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.
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).
181
Reg 216/2008 (n 39) Art 33(2)(c).
182
Busuioc (n 156).
183
Reg 178/2002 (n 37) Art 22(7).
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
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.
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).
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.
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%20Rulemaking%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.
206
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.
215
Ibid Art 45(5).
216
Ibid Art 46(3).
217
Ibid Arts 39, 48, 53.
218
Ibid Art 53.
219
Ibid Art 44(2).
220
Ibid Arts 82–84.
221
222
Ibid Art 109.
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.
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).
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.
239
Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3303, [201].
240
Majone (nn 4, 16).
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).
244
Case 9/56 Meroni (n 109).
245
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.
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.
251
See above, 127–32.
252
See nn 135, 227.
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 and job creation.2 There
were, however, weaknesses, most notably in unemployment, 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 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 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 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 coordination 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 convergence 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 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
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 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
(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 pre-existing 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 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 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 two-pack, 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
country-specific 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.
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 mid-1990s. 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 monetary 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 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 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 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 attendant 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 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 social-protection systems.
At the same time, however, the present diversity of national social-protection 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 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 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 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 coordination 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 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 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 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 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 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, mechanisms 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
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-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
recommendations 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
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 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 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
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 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 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 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
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 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 elite-led 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, 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
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, 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 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.
1
2
Ibid [3].
3
Ibid [4].
4
Ibid [5].
5
Ibid [7].
6
Ibid [38].
7
Ibid [37].
8
Nice European Council, Presidency Conclusions, 7–9 December 2000.
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-
ec56-4da4-8b01-0c9101c8d4ac/language-en.
17
European Council, Presidency Conclusions, 22–3 March 2005.
18
Ibid [4].
19
Ibid [5].
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.
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.
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.
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.
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.
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).
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
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
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 budgetary frameworks of the Member States
[2011] OJ L306/41; Regulation (EU) No 1176/2011 of the 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).
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.
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.
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;
Directorate-General for Employment, Social Affairs and Inclusion, Ten Years of the European
Employment Strategy (n 71).
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.
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.
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.
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.
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.
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.
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.
118
See Ch 4.
119
Ch 11.
120
121
Ch 11.
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.
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).
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].
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.
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 García-Margallo 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].
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.
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.
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
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
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).
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
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.
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.
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
186
Committee on Employment and Social Affairs, A5-0143/2003 (n 137) 8.
187
Ibid.
188
Daly (n 94).
189
Scharpf (n 90).
190
G de Búrca, ‘The Constitutional Challenge of New Governance in the European Union’ (2003)
28 ELRev 814, 818.
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
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].
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.
205
K Armstrong, ‘The Open Method of Coordination—Obstinate or Obsolete?’, University of
Cambridge Faculty of Law Research Paper No 45/2016, 60.
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 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 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
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 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 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

process-oriented 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.
(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 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 autonomous agreements, and their more diverse contribution to EU
social policy through process-oriented texts and joint opinions produced by
the sectoral social dialogue committees.
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 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 variety 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.
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.
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
Rationale and Legitimacy: Better Governance as Social

(B) 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 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 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 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 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 decision-making 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.
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 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 decision-making. 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 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, 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
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 importance 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 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 sectoral social dialogue committees, and formulate guides,
communications, codes of conduct, and recommendations and opinions that
are intended to improve practice in the specific 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
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.
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.
2
3
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.
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.
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].
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.
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.
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.
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].
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).
48
Ibid 3.
49
Ibid 5.
50
Ibid 5.
51
Ibid 5.
52
Ibid 6.
53
Ibid 43.
54
Ibid 43.
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.
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].
69
Ibid [1.1].
70
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].
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.
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.
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.
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.
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).
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.
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.
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.
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].
122
Ibid [2.4.1].
123
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.
PART II
LAW AND ADMINISTRATION

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 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 proposals, 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.
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 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 concluded 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 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.
(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. 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,
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 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.
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 quasi-
privileged 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 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 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.
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 importance 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 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 sector-specific 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 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 decision-making,
contracts, mutual assistance between national administrations, and
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.
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.
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.
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.
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.
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.
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.
24
(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.
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].
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.
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.
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.
41
See above, XXX.
42
See above, XXX.
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/sitt-
1388826.
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.
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
1388826.
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/.
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.
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
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 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 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.’ 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 predominantly legal or non-legal 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
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.
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
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.
(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 objectives 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 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 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 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 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 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 ill-equipped 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 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.
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 preliminary 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. 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.
(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 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.
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 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 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 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
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 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.
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 knowledge 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 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 preliminary
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.
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 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 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.
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.
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) 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.
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).
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.
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.
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.
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.
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.
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.
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.
44
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.
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.
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.
53
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.
57
Lenaerts (n 28) 235.
58
Vesterdorf (n 3).
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.
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.
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.
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.
83
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).
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.
97
98
Ibid 24.
99
Ibid 25.
100
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.
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
109
110
The Future of the Judicial System (n 1) 25–6.
111
112
Weiler (n 3) 226.
113
Information Note (n 36) [23].
114
115
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
118
Case 314/85 (n 13); Lenaerts (n 28) 220–4.
119
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
123
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.
125
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.
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.
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.
137
Vesterdorf (n 43).
138
Forwood, ‘The Court of First Instance’ (n 3) 36.
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 consultation 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.
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 authorities. 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
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 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 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 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, 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 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 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 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. 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 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
legislature 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.
(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 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.
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
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 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
challenging 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, 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 overly-legalistic
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 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 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 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 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 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 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 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. 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 effective 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. 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
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 effective
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 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 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.
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.
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 non-privileged 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
(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 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
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 proving individual concern in accord
with the Plaumann reasoning. The latter remains 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 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.
1
R Stewart, ‘The Reformation of American Administrative Law’ (1975) 88 Harv L Rev 1667.
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).
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].
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.
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).
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].
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].
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].
40
Bi-Metallic Investment Co v State Board of Equalization of Colorado, 239 US 441 (1915).
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
(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.
47
Chs 5, 6, 7.
48
Art 148 TFEU.
49
Art 150 TFEU.
50
J Mendes, ‘Participation and the Role of Law after Lisbon: A Legal View on Article 11’ (2011) 48
CMLRev 1849.
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.
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 Policy-Making Process (Butterworths, 1994) 159–61.
59
Craig (n 45).
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
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.
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/document-library/rulemaking-process-overview/rulemaking-explained.
75
Mendes (n 26) Ch 9.
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.
78
Case C-97/91 Borelli SpA v Commission [1992] ECR I-6313.
79
Ibid [9]–[11].
80
Ibid [13].
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.
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).
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].
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.
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).
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
103
Ibid [102(3)].
104
Ibid [102(3)].
105
Ibid [102(4)].
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].
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] 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].
120
121
Ch 10.
122
Case C-50/00 P (n 85) [44].
123
Ibid [44].
124
Ibid [45].
125
S Balthasar, ‘Locus Standi Rules for Challenges to Regulatory Acts by Private applicants: The
New Article 263(4) TFEU’ (2010) 35 ELRev 542.
126
Art III-365(4) CT.
127
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.
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.
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].
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.
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].
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 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.
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 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. 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 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, 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 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 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 producers. 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 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 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 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
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 frequency.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
well-placed to determine whether the decision would have been different if
the procedural error had not occurred. The causation argument serves,
moreover, to emphasize the 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 anti-dumping 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 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 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
(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 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 reasons; 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
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 principle 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 amenable 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 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,
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 harmonization 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 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 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 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.
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.
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 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 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 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
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.
(i) Individual Process Rights

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 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 contemporary 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 transparency 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.
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 determinations. 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 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
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 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 decision-making,
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 produce 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 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 decision-making. 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 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 sector-specific 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.
1
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.
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–
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).
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.
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.
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
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.
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.
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].
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.
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
50
Ibid [126].
51
Ibid [73].
52
Ibid [74]–[75].
53
Ibid [76], [77], [101].
54
Ibid [129].
55
Ibid [115].
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.
60
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).
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.
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].
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].
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.
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 [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].
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].
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, 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].
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].
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
Papierwarenfabriek 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.
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.
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).
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).
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).
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.
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].
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.
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).
185
Ibid Art 24(2).
186
Ibid Art 6(1).
187
Ibid Art 6(2).
188
Ibid Art 24(3).
189
Ibid Art 5(1).
190
Ibid Art 5(3).
191
Ibid Art 26.
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.
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.
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
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
4945.
206
Ibid [199].
207
Ibid [199]–[200].
208
Nehl (n 34) 53–4.
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
1388826.
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,
1388826, rec 15, Draft Art 2(2).
220
Ibid rec 2.
221
Ibid rec 3.
222
Ibid rec 5.
223
Ibid rec 16, Draft Art 2(3).
224
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].
227
See n 146.
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 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
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 Inter-institutional 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
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 articles on free movement carry an obligation of equal treatment and
this has been held to 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 Directors-General 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 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 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 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 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 documents. 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 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 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 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 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, moreover, be
forgotten that there can be clashes between transparency and Charter rights,
such as the protection of personal data.68
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.
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.
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.
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
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.
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].
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].
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).
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.
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.
50
Reg 1049/2001 (n 10) Art 4(2).
51
Case T-84/03 Turco (n 49) [78].
52
Ibid [79].
53
Cases C-39 and 52/05 P Sweden and Turco (n 48) [59].
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.
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-reg-2008-2009.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.
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.
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 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 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 articles 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 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. 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
(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) 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.
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
non-Member State nationals, or expressly conferring power to negotiate with
non-Member States, gave the EC exclusive external competence.
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 necessary 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 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 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 non-Member
States,47 or where the EU had some competence over the relevant area, but
this was limited to laying down minimum requirements, thereby leaving
Member States free to apply the rules flowing from the international
agreement over and beyond this.48
5 Shared Competence
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. 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
(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 minimum
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 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
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 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 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 procedure. 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, provided that
they do not entail harmonization and provided that there is foundation 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 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
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 policies of the
Member States, in particular by defining guidelines for these policies.
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 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 non-
exhaustive 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.
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 operation 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 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.
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.
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
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 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
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
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 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.
(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 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 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 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 concerning 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 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.
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.
5
Mayer, ‘Competences’ (n 1) 504–5.
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.
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].
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.
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 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).
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.
35
Opinion 1/03 Lugano (n 24) [114]–[115].
36
Ibid [131].
37
See n 23.
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.
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].
49
Craig (n 14) 167–71.
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.
55
R Schutze, ‘Co-operative Federalism Constitutionalized: The Emergence of Complementary
Competences in the EC Legal Order’ (2006) 31 ELRev 167.
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.
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].
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 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.
70
Cremona (n 21).
71
Craig (n 14) Ch 10.
72
Declarations 13 and 14 on the common foreign and security policy.
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 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.
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).
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.
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.
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 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; 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).
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).
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,
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.
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].
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].
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
Baden-Württemberg—Förderbank v European Central Bank, EU:T:2017:337, [65].
144
Case C-64/05 P Sweden v Commission [2007] ECR I-11389, [74].
145
Case C-58/08 Vodafone (n 98) [27]–[36]; Case C-358/14 Poland (n 134).
146
Davies (n 139).
147
Craig (n 126).
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.
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, services, 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
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
articulated 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 pertinent, 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 different
situations. The case law will be explored more fully later, but the different
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 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 assistance 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
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 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 decision-maker; 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.
(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. 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 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 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 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 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 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 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 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 discretion and hence judicial review should be
confined to whether exercise of the 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 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, concluded 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
twenty-eight 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 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.
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.
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
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 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 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 consequence 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
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 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 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 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 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 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 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 pre-selecting 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 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 reviewing 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 decision-maker 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 decision-maker to justify the finding of probability
was, for example, substantial or 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 anti-competitive 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 anti-competitive 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 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 fact-finder. 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 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
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 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 dependent 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 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 determinations 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 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, however, intervene if any of the
following defects were present: if the agency relied on 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.
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 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.
There is, however, an important difference between the modern
application of manifest error in the EU and the hard look version of the
arbitrary and capricious test 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 APA-type 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
seriously. 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.
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.
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.
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.
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.
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.
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 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).
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).
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].
26
Case 57/72 Westzucker (n 8).
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].
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).
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].
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.
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 Grundig-Verkaufs-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].
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.
55
Case T-13/99 Pfizer (n 24); Case T-70/99 Alpharma Inc v Council [2002] ECR II-3495.
56
Ch 21.
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].
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].
67
Ibid [298].
68
Ibid [311].
69
Ibid[322]–[324].
70
Ibid [341].
71
Ibid [369].
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].
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].
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.
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].
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].
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].
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].
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.
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].
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.
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.
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].
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].
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.
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
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).
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.
166
Case T-5/02 Tetra Laval (n 78).
167
Ibid [336].
168
Ibid [155].
169
Vesterdorf (n 86) 143.
170
This proposition has been stated in EU judgments too numerous to mention, eg Case T-13/99
Pfizer (n 24) [168].
171
172
Case C-12/03 P Tetra Laval (n 94) [39].
173
Ibid [43].
174
The EU courts can commission an expert report as done in Cases C-89, 104, 114, 116, 117 and
125–9/85 Ahlström Osakeyhtiö v Commission [1993] ECR I-1307, but this does not alter the point
being made.
175
Vesterdorf (n 86) 140.
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].
179
Case C-280/93 Germany v Council (n 178) [92].
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).
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.
189
Shapiro (n 185) 33–6.
190
Stewart, ‘The Reformation of American Administrative Law’ (n 187).
191
Shapiro (n 185) 36.
192
J Gersen and A Vermeule, ‘Thin Rationality Review’ (2016) 114 Mich L Rev 1355.
193
See cases cited at n 178.
194
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.
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.
199
See above, Ch 11.
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].
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. 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 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
(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 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
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.
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.
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 declaration of incompatibility.40 This declaration does not,
however, affect the validity 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 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 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 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.
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.
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 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 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 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 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 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.
(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
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 non-payment 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 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.
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 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 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), 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 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.
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 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 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 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 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 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
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 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
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 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 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 rights-based 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 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 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.
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 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 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 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).
(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 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.
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 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
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 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
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 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 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 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 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
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 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. 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.
(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 rights-based
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 rights-based 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. 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.
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.
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 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.
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’ 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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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/.
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).
82
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.
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.
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).
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.
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).
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 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].
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]; 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.
119
Explanations Relating to the Charter (n 35) 16.
120
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
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.
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].
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
137
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].
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.
147
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].
151
Explanations Relating to the Charter (n 35) 19; CONV 828/03, CONV 828/03, Updated
Explanations (n 85) 51.
152
153
154
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.
157
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
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).
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].
169
Ibid [80].
170
Ibid [83]–[94].
171
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].
176
Art 2 TEU.
177
Peers (n 164) 168.
178
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].
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].
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.
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
198
Arts 15(3), 39, 40, 41(4), 42, 43, 44, 45(1), and 46; Peers (n 164) 155.
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
203
Lenaerts and Smijter (n 180) 284–5.
204
Arts 5(3), 11(2), 23, 31(1)–(2), and 32.
205
Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, [15]. See also Cases T-33-
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].
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 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.
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
221
Case C-203 and 698/15 Watson (n 186) [129].
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
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.
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.
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 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.
241
Case C-399/11 Melloni (n 239) [49]–[50].
242
Ibid [56]–[64].
243
Ibid [58].
244
Ibid [59].
245
Ibid [62].
246
Sarmiento (n 105).
247
L Besselink, ‘The Parameters of Constitutional Conflict after Melloni’ (2014) 39 ELRev 531.
248
Lenaerts (n 194).
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.
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.
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.
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.
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.
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.
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.
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, 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 non-discrimination 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.
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 non-national 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 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.
(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 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-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.
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 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 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 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 of
the State’s own nationals to perform certain tasks on its behalf’.49 It reflected
a deep-rooted 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.
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
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.
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 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.
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 intra-Community 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 indirect.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 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 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 empowered 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
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 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 difficult, 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 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.
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 relevant 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
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 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 application.
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 provided for’.101 It drew on Martínez Sala
for the proposition that an EU citizen lawfully 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 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.
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
(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 wide-ranging 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 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 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 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 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.
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

non-discrimination 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 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 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 revalued 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 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 discriminatory.
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.
(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
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 economic
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 advocates 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 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 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 adequate 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
disadvantaging a much larger percentage of one sex, even though it is not
framed in terms of gender.
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
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 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 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 ‘tie-break’, 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 coloured 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 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 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 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
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 accordance with a
special legislative procedure and after obtaining the consent of the European Parliament,
may take appropriate action to combat discrimination 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,
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 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 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 low-intensity 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 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.
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.
7
Ibid 19.
8
edn, 2015) Chs 18–23; C Barnard, The Substantive Law of the EU: The Four Freedoms (Oxford
University Press, 5th edn, 2016).
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 [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.
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 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).
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.
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.
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].
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].
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].
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.
53
Case C–473/93 (n 52) [35].
54
Case C-92/92 Phil Collins v Imtrat Handelsgesellschaft mbH [1993] ECR I-5145, 5163.
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.
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.
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].
68
Case C-92/92 Phil Collins (n 54).
69
Ibid [22]–[28].
70
Ibid [25].
71
Case 293/83 Gravier v City of Liège [1985] ECR 593.
72
Ibid [23].
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.
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.
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].
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].
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].
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
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.
105
Case C-209/03 Bidar (n 81).
106
Case 39/86 Lair (n 74); Case 197/86 Brown (n 75).
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].
111
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].
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
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].
122
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).
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.
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).
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.
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.
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.
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.
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.
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); THervey 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.
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].
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].
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
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].
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).
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.
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.
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.
221
Ibid [23].
222
Case C-407/98 Abrahamsson v Fogelqvist [2000] ECR I-5539.
223
Ibid [55].
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).
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.
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).
238
Bell (n 153) 193.
239
Dir 2000/43 (n 235) Art 2(2)(b).
240
Ibid Art 2(3).
241
Ibid Art 14.
242
Ibid Art 15.
243
Ibid Art 3(2).
244
Ibid Art 3(1).
245
Ibid Art 4.
246
Ibid Art 5.
247
Ibid Art 7.
248
Ibid Art 8.
249
Ibid Arts 9–13.
250
Dir 2000/78 (n 235) Art 1.
251
Ibid Art 2(1).
252
Ibid Art 2(3).
253
Fredman (n 4) 7–9.
254
Case C-450/93 Kalanke (n 210) [22]–[23].
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 expectations are utilized and the rationale for affording legal
protection. The remainder of the chapter analyses the law and policy
applicable in these differing areas including revocation of lawful and
unlawful decisions; individual representations; representations and changes
of policy; departure from existing policy; and unlawful representations.
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 obligations 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
amendment, but can only call into question the arrangements for the
implementation of such an amendment. The national legislature should,
however, take account of the particular 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 precedes 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 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 measures, 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 application, 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, or their general scheme that such
an effect must be given to them.11 The normal presumption 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 having 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 contracts 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 proceedings 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 penalties for an act which was not
punishable at the time it was committed. The principle 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 concerning 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’ existing implementing provisions.
The ECJ concluded that there was no infringement of legitimate 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 exceptionally 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 circumstances in addition to cases where legislation has an actual
retroactive effect. In some 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 cases.23
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 representation 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 arguments 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 acceptance 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 government’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 consequences 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
development 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.
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 unilaterally 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 prevails over the interests of
an administration of reversing its decision. This is true in particular 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 market. 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 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 subject 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
alternative 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
prohibition on retroactive revocation applies only in relation to unfavourable
decisions. The principle 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
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 individual’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 incomplete 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
misrepresentation too far. There is a real difference between fraud and
innocent misrepresentation. 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 withdrawal 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 assumption 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
continued to receive the allowance until the mistake was revealed in 1976.
The ECJ held that while 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 conditions 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 application 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
legitimate 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
(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 concerned 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 permitted 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.
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 emphasized 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 revocation should normally be unlawful, and there
would have to be very exceptional circumstances 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 ensuring 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 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 government. 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 implementation 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 administrative 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 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 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 applicant 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 withdrawal. 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
argument 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, 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 continuance. 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 especially 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 erroneously.
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
unlawful measures and the balancing test that the EU Courts undertake. It is
now necessary to consider the position with respect to prospective
revocation of unlawful 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 revocation. It is, however, readily apparent that prospective
revocation might cause considerable 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 different, 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 applicants in a case such as Lagardère and Canal80 to
be told that while the decision authorizing 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.
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 individual 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.
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 unconditional 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 expectation 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 programme 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
contrary. 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 according 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
industry.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 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 assurance 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, however, 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 expectation 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 complained 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 legitimate 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 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 applicant 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 everyone 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 particular 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 precise 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 operators,
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.
(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 beneficiary 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 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
speculative 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 discretionary 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 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 provided 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 precludes 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 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 production 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-marketing 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 incurring 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 production 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 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 resumption of the activity in question. 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 administration, 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
compensation 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
assumption 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
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 adopting 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 damages 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
sufficiently 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 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
legitimate 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 authority 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 administration can show convincing reasons for departure
from the policy. This has long been the stance adopted by the EU Courts.
In Louwage142 the applicant sought the annulment of a Commission
Decision concerning 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 treatment. 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 communication 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
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 document. 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, therefore, entitled to
assume that the practice had not been discontinued and it was incumbent 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 economic 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 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 guidelines 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 provided 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 obvious 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 construction 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 transport 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 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 environmental
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 environmental 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 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 constituted a breach of legitimate expectations. Whether the
guideline or notice does generate 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
economic 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
individual 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.
(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 overriding. 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 pursuant 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 quantities 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 continued 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 undermining 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 reference 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
undertaking’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 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
proportionality, 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 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 sharpened its scope. The ECJ rejected the
argument stating that a measure of general application 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 promise 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
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 decisions. 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. 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 revocation
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 representations, 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.
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].
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.
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.
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.
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].
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.
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.
28
Schonberg (n 1) 25.
29
Case C-168/09 Flos SpA v Semeraro Casa e Famiglia SpA, EU:C:2011:29, [53].
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.
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.
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.
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].
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.
57
See below, at 625–7.
58
See below, at 636–9.
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).
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].
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
70
Ibid [146]–[150].
71
Case C-500/99 P Conserve Italia Soc Coop arl v Commission [2002] ECR I-867.
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].
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
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 practice 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].
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.
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].
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
106
Case C-80/89 Behn Verpackungsbedarf GmbH v Hauptzollamt Itzehoe [1990] ECR I-2659.
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
111
Schonberg (n 1) 128.
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.
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].
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.
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.
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].
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].
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).
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].
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.
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].
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].
162
Ibid [146]–[156].
163
Case C-1/98 P British Steel plc v Commission [2000] ECR I-10349.
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
168
169
Case C-189/89 Spagl (n 137).
170
Case 120/86 Mulder (n 127).
171
Case C-189/89 Spagl (n 137) [28].
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].
178
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 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].
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, 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 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.
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. 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 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 considered 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 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 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.
(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 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 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.
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 two- or 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 suitability 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 importance of the
objectives pursued is such as to justify even substantial negative financial
consequences for certain traders’.46
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.
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 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 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.
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 rights-
based 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.
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.
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 cigarettes. 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, 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 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 disproportionate and intolerable interference that impairs the
substance of the right, 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, 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
(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 considered 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 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
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.
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.
8
de Búrca (n 1) 111.
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.
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, [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].
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.
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].
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 [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
concerning investigations conducted by the European Anti-Fraud Office (OLAF) [1999] OJ L136/1.
35
Case C-11/00 ECB (n 33) [157].
36
Case C-491/01 British American Tobacco (n 9) [123].
37
Case C-11/00 ECB (n 33) [158].
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.
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].
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].
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.
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.
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].
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].
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].
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].
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.
81
Case C-112/00 Schmidberger (n 78).
82
83
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.
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.
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].
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.
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].
108
See Ch 15.
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.
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
(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 challenged 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 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 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
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, non-discriminatory 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 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 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 under-represented 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 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
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 objectives 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 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 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 necessary 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.
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 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.
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 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
(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 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
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 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 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 interpretation 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.
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, 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.
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.
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.
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
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.
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.
13
Ibid [24].
14
Ibid [25].
15
Case C-41/02 Commission v Netherlands [2004] ECR I-11375.
16
Ibid [49].
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.
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.
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
treatment of men and women as regards access to employment, vocational training and promotion, and
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].
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.
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.
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.
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.
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.
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.
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.
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
69
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.
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 Rheinland-Pfalz 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].
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.
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).
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].
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.
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.
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.
106
Case 145/88 Torfaen BC (n 99).
107
Case C-368/95 Vereinigte Familiapress (n 103).
108
Case C-438/05 Viking Line (n 84).
109
Case C-341/05 Laval (n 85).
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.
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
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 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 existence 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
precautionary principle, but nonetheless qualified this by stating that the
discretionary 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 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 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 well-established 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 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 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.
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 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 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
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
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 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 ‘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.
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 concern 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, 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 encompass 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, 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 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.
(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
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.
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 principle 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 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 stipulated 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
It might also be claimed that judicial review does not allow sufficient
scrutiny of decisions premised on the precautionary principle. On this view
the classic tools of 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.
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 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.
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].
12
Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305.
13
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].
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
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.
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.
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].
33
Ibid [162].
34
Ibid [165].
35
Ibid [164]–[170].
36
Ibid [171]–[172].
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].
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.
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
51
Ibid [181].
52
Ibid [187]–[195].
53
Ibid [194].
54
Ibid[198].
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
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].
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] 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].
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.
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.
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.
89
Ibid 9–10.
90
Ibid 12.
91
Ibid 13–14.
92
Ibid 15.
93
Ibid 16–21.
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.
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.
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.
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).
127
Ibid Art 7(1).
128
Ibid Art 7(2).
129
Ibid Art 14(4).
130
Lee (n 1) 107–8.
131
See above, 695–9.
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
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.
143
See above, Ch 13.
144
Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan (n 13) [199]–[200].
145
Ibid [220].
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
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 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 practical 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 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 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 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 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
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 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 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 anti-dumping 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 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 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 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, 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, public 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 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 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.
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 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 actis 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
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
(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).
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 concentration
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, 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
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, moreover, 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 liability 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 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 without 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 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 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
non-contractual 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 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.
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 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’ immunity.
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 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
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 liability.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 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 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 non-contractual 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 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
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.
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.
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].
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.
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.
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].
24
Cases C-453/03, 11, 12 and 194/04 ABNA (n 23).
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].
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].
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].
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
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
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].
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].
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].
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.
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.
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
Vasco-Montañesa 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.
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].
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 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.
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.
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].
111
Ibid [40]–[43].
112
Ibid [83].
113
Case T-57/00 Banan-Kompaniet AB and Skandinaviska Bananimporten AB v Council and
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 (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].
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].
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.
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).
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.
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).
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].
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.
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].
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].
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.
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.
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].
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).
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.
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 Rewe-Handelsgesellschaft 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
procedural 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.
(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 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 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

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 discriminatory
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, 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 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 benefits of Community
membership. Bearing in mind the drive for ‘Europe with a human 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.

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.
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
Steenhorst-Neerings.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 retroactively 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 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 acknowledged 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 five-year limitation period. The ECJ rejected
the applicant’s argument that the start of 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 misled 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 original
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 effectiveness of national
remedies, should not also have been applicable in Steenhorst-Neerings,
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

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 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 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 effectiveness 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 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 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.
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
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 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, 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 the recovery of agricultural
subsidies that should not have been paid. Thus in Steff-Houlberg93 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 contracting 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

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 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 procedural 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 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 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 non-stipendiary.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 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 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, 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.
(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 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.

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 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 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.

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 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 qualifications.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 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 one-year 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 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
non-discretionary 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 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 effectiveness
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
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.
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].
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.
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.
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
treatment for men and women as regards access to employment, vocational training and promotion, and
20
Case C-271/91 Marshall (n 18) [30].
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.
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.
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.
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.
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.
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.
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].
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).
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).
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.
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].
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.
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].
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].
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.
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.
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.
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).
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.
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.
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.
123
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
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
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].
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.
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.
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.
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.
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].
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].
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].
175
Ibid [38].
176
Ibid [39].
177
178
Cases C-46 and 48/93 Brasserie du Pêcheur (n 112) [66]; Case C-224/01 Köbler (n 143) [57].
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 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.
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 delegation 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 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 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 registered 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 own-initiative 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 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 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 policies.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 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 example, 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.
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 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 attributes 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 time-barred (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
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 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 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 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 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 remedial 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 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.
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 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.
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
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 activities 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 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 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 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
extra-contractual 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, 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’ principle.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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
77
Art 3(2) subpara 1 of the Statute.
78
Art 4(3)–(5) of the Implementing Provisions.
79
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
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.
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.
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
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
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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
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
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
origins 62–3
staffing 63–4
tasks 64
Financial Regulation
general principles 2002 57–8
general principles 2012 58–60
nature and rationale 56–7
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
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
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
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
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
express and implied powers 404–5
Nice Treaty reforms
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
harmonization of legal acts 417–18
scope and variation 416–17
Union exclusivity
categorization 406
conditional exclusivity 407–12
Competition law
access to file 355
high-intensity review 455–60
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
conclusions and assessments 76–8
nature and rationale 56–7
origins 6–7
Nice Treaty reforms
agencies 26–7
new rules for administration 21–2
novel forms introduced by Amsterdam Treaty
OMC 20–1
social partners 20
shared administration
CAP 81–91
consumer protection 16–17
economic and social cohesion 11–12
intergovernmentalism 18–19
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
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
jurisdiction 282–4
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
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
inter-institutional balance of power 132–4
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
complete system of protection 340–2
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
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
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
equal pay 583–8
Documents
access to file
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
move towards dialogue between individual and decision-maker 380–2
Duty to give reasons
content of duty 371–2
rationale 369–70
scope of duty 370–1
Economic policy
competence
effectiveness 207–9
future prospects 233–4
interplay with equality
general prohibition under Art 18 TFEU 557–8
interplay with social policy 548–57
race discrimination 594–6
sex discrimination 581–3
underlying rationale 546–7
rationale 202–3
treaty provisions
excessive deficit procedure 205–6
multilateral surveillance procedure 203–5
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
temporal effect of preliminary rulings 762
nuanced approach to autonomy of national courts
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
free movement of workers
rationale 210–11
sex discrimination
equal pay 583–8
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
four freedoms
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
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
race discrimination
regulatory role 575–7
sex discrimination
equal pay 583–8
European Council 245
European Courts
see also Court of Justice (CJEU); General Court (GC); National courts; Remedies
case load
rationale for CJEU problem 285
rationale for GC problem 288
central jurisdictional features 282–4
CJEU contribution to shared management
CAP 88–9
conclusions 310
failure of Constitutional and Lisbon Treaties to make changes 308–9
justification for powers 263–4
relationship between CJEU and GC
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
Excessive deficit procedure
Exclusive competence
categorization 406
conditional exclusivity
post-Lisbon 410–12
pre-Lisbon 408–10
Executive agencies
assessment 73
current agencies
overview 67–8
Small and Medium-Sized Enterprises 68–71
origins 62–3
rationale 153–5
staffing 63–4
tasks 64
Fact
conclusions 483
discretionary powers 439–41
importance of distinction with law 436–7
review of fact
standard of proof 469–71
standard of review
manifest errors 472–4
role of Court 471–2
Fair trial 373–4
File access
Financial management
Prodi reforms 53–4
Financial Regulation
agencies
control and accountability 188–9
general principles
2002 57–8
2012 58–60
Prodi Commission reforms 53–4
Fisheries 645–9
‘Flexibility’ provisions 421–3
Food safety 717–19
Four freedoms
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
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)
case load
rationale for GC problem 288
jurisdiction 282–4
relationship with CJEU
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
origins 6–7
complexities of Comitology
continuing evolution 34
exclusive competence 408–10
fall of Santer Commission 36–42, 54
fundamental rights
Charter 487–9
origins and development 484–6
Maastricht Treaty 14–15
Nice Treaty reforms
agencies 26–7
new rules for administration 21–2
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
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
origins in CAP 7–9
social partners 238–40
standing for judicial review 332–5
subsidiarity 426–7
Human rights
ECHR
obligation to accede 492–5
relationship prior to accession 495–7
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
delegated acts distinguished 138–41
inter-institutional balance of power 136–7
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
complete system of protection 339–40
Information and co-ordination agencies 165–7
Infringements
subsidiarity jurisdiction 428–9
Institutional balance 271–4
Interest on damages 776–7
Intergovernmentalism 18–19
Interim measures
central elements of test 727–8
indirect actions 724–7
Interpretation
citizenship
equality 558–9
fundamental rights
literal and radical interpretation 499–500
EU legislation 710–11
review of EU action 699–706
review of fact 444–5
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
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
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
questions of law and fact
fact 438–9
importance of distinction 436–7
law 437–8
relationship between Ombudsman and national courts 817–18
review of fact
reviewable acts 266–8
sources of law 264
standard of review
standing
conclusions 347
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
Ombudsman
limitations on role 813–14
relationship with national courts 814–18
relationship between CJEU and GC
relationship between European and national courts
subsidiarity infringements 428–9
Law
see also Legislation
importance of distinction with fact 436–7
questions of law
importance of distinction 436–7
relationship between Charter and international law 535–6
role within management of CAP
Conciliation Procedure 87–8
delineation of legislative objectives 85
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
no general code of good administration 276–9
tensions relating to Structural Funds
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
Legal certainty
clarity of EU rules 601
conclusions 641
connection with legitimate expectations 600
rationale for legal protection 605–7
retroactivity 601–4
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
implementation of equality provisions 561–2
joint liability between EU and Member States 755–7
link with transparency 391
relationship with fundamental rights 524–6
retroactivity 601–4
reviewable acts 266–8
sources of law 264
Structural Funds
underlying problem with Comitology 111–13
Legitimate expectations
conclusions 641
connection with legal certainty 600
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
overriding public interest 629–30
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
Manifest errors
standard of review 472–4
substantive review of discretion 477–8, 480–3
Member States
see also Social partners
agencies
political control and accountability 184–6
rationale 151–3
enhanced role of National Parliaments 429
implementation of fundamental rights
scope and application 503–8
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
measures to ensure effectiveness of EU law 682
interpretative obligations 530–1
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
horizontal networks between Member States 33–4
power accorded to Member States 31–2
shared competence
State liability
support, co-ordinating, or supplementary action
Meroni principle
institutional balance 273
limitations on power of agencies 168–9
loosening of constraints 192–4
Misuse of powers
review of fact and discretion 467–9
Multilateral surveillance procedure
Multiple grants and awards
Education, Audiovisual and Culture Executive Agency 73
typology of EU administration 29
National courts
see also European Courts; Remedies
competition law 25
relationship with CJEU
workload problems 297–8
relationship with Ombudsman 814–18
remedies against Member States
State liability
for judicial acts 787–8
serious breach test 790
Nationality discrimination
citizenship
application of equality provisions 562–3
free movement of workers
strident judicial approach 547–8
Neo-corporatism 255–6
Non-discrimination see Discrimination
Norms
considerations of proportionality
fundamental rights
normative arguments 500–2
textual and normative dimensions 502
legitimate expectations 640–1
role of law 86
Notice of case 352–4
Ombudsman
institutional history 795–8
maladministration 810–14
overview 795
powers
initiation of inquiries 798–805
investigative powers 748–51
remedial powers 808–10
Open Method of Co-ordination (OMC)
economic policy
excessive deficit procedure 205–6
multilateral surveillance procedure 203–5
rationale 202–3
employment policy
rationale 210–11
future prospects
relationship between economic and social order 233–4
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
social exclusion
rationale 213–14
social partners 244
soft versus hard law 216–19
traditional Union method compared 219–21
Parallelism 6–7
Participation in decision-making
agencies 187, 326–7
democratic role of social partnership 252–3
OMC 226–8
rights accorded by legislation 323–4
soft law 324–6
Penalties
legislative objectives 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
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
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
duty to give reasons
content of duty 371–2
rationale 369–70
scope of duty 370–1
interrelationship with substantive review
facilitation of review 382–3
means to consider case 383–4
overview 48–9
right to be heard
applicability 349–50
contents 350–62
sector-specific legislation
overview 374–5
Prodi Commission
Committee of Independent Experts 46–8
implementation of reforms
financial management 53–4
service delivery 51
initial reforms 45–6
White Paper on Reform 48–50
Proof
annulment 614
damage 748–50
legal certainty 614
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
inter-institutional controls 651–2
stricto sensu proportionality 653–5
suitability, necessity and manifest disproportionality 652–3
transport 650
importance 668
Member States’ actions
application of EU legislation 680–1
equality 675–80
four freedoms 670
limitations imposed on national remedies 761–2
measures to ensure effectiveness of EU law 682
normative considerations
penalties
general approach 664–5
legislative objectives 666–7
unlimited jurisdiction 667
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
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
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
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
nuanced approach to autonomy and effectiveness 770–80
Ombudsman
institutional history 795–8
maladministration 810–14
overview 795
powers 798–810
restitution 753–4
right to effective remedy 373–4
State liability
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
policy changes
exception for bargains and specific assurances 627–9
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
revocation of unlawful decisions 614–17
Right to be heard
see also Standing for judicial review
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
political processes
agencies 326–7
rights accorded by legislation 322
soft law 324–6
State aids 379
Right to effective remedy 373–4
Right to respond
competition law 377
Rights see Fundamental rights; Human rights; Process rights
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
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
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
Sex discrimination
equal pay 583–8
proportionality
equal pay 678–80
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
origins
CAP 7–9
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
mixed proceedings 30–1
overview 28–9
Shared competence
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
rationale 213–14
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 economic policy 548–57
race discrimination 594–6
underlying rationale 546–7
Soft law
OMC 216–19
right to be heard 324–6
Sources of law
legislation 264
no general code of good administration 276–9
Staffing
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
Standing for judicial review
see also Right to be heard
breaches of CFR 539–41
conclusions 347
UPA
Advocate General’s Opinion 335–7
CJEU reasoning 337–9
State aids
Commission rights 379–80
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
relationship with national remedies
equivalence and effectiveness 791–3
who pays 791
Stricto sensu proportionality 653–5
Structural Funds
framework of shared management 98
genesis of policy 92–3
medium intensity review 467
reforms 1988–2013 93–8
role of law
efficacy 107–8
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
retention of principle 427–8
pre-Lisbon 426–7
Support, co-ordinating, or supplementary action
Transparency
access to documents
foundations 392–3
initial case law 393–4
present Regulatory regime 394–400
agencies 183–4
conclusions 400
importance 388–9
meaning and scope 389
OMC 222–3
Typology of EU administration
multiple grants and awards 29
state aids 28–9
EU agencies 32–3
mixed proceedings 30–1
overview 28–9

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EU Administrative Law (Collected Courses of the Academy of -- Paul Craig -- 3, 2019 -- Oxford University Press -- 9780198831648 -- 7f7ca95299d6fbbe3c3ef02a822cc383 -- Anna’s Archive

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EU ADMINISTRATIVE LAW

THE COLLECTED COURSES OF THE ACADEMY OF

Edited by Professor Nehal Bhuta,

PART I ADMINISTRATION AND LAW

1 HISTORY AND TYPOLOGY

PART II LAW AND ADMINISTRATION

B & Q plc v Shrewsbury BC [1990] 3 CMLR 535 691

C v Council (T-84/98) [2000] ECR IA-113 749

EAR v Karatzoglou (C-213/06 P) [2007] ECR I-6733 639

Haahr Petroleum v Havn (C-90/94) [1997] ECR I-4085 768

Icap plc v European Commission (T180/15) EU:T:2017:795 601

Kadi v European Commission (T-85/09) [2010] ECR II-5177 461, 475

La Cinq SA v Commission (T-44/90) [1992] ECR II-1 383, 481

M (C-277/11) EU:C:2012:744 353

SA Biovilac NV v EEC (59/83) [1984] ECR 4057 441, 747, 752

UNECTEF v Heylens (222/86) [1987] ECR 4097 762

W Faust v Commission (52/81) [1982] ECR 3745 625

X-Steuerberatungsgesellschaf (C-324/14) EU:C:2015:827 601

Yanukovych v Council of the European Union (T-346/14) EU:T:2016:497 313

Amsterdam Treaty 19–21, 239

AAR Annual Activity Report

ADMINISTRATION AND LAW

(A) The Rome Treaty

(B) Competition: Centralized Administration, Limited

(C) Agriculture: Shared Administration and the Birth of

(a) to increase agricultural productivity by promoting technical progress

3 The Single European Act and the Revitalization

(B) Economic and Social Cohesion: The Extension of Shared

(C) Environmental Policy: Agency Creation and Shared

4 The Maastricht Treaty, Pillarization, and

(B) Research, Technological Development, and Health: The

(C) Consumer Protection: Extension of Shared

(D) The Exercise of Community Competence: The Rise of

(E) The Third Pillar: Intergovernmentalism and Shared

5 The Amsterdam Treaty and Novel Forms of

(B) Social Partners: Treaty Choice

(C) Open Method of Coordination: Political Choice

6 The Nice Treaty and Community Administration:

(C) Executive Agencies, Partnerships, and Contract:

(D) Services and the Internal Market: Shared

(E) Competition: Extended Parallel Competence, Liaison,

(F) The Exercise of Community Competence: The Rise and

7 Lisbon Treaty, Continuity, and Change:

(A) Centralized Administration

(i) Classic Centralized Administration: State Aids

(ii) The New Paradigm of Centralized Administration: Management of

(B) Shared Administration

(i) Vertical Dimension: Top-Down, Bottom-Up, and Hybrid

(ii) Vertical Dimension: The Power Accorded to the National Authorities

(iii) Vertical Dimension: The Existence of an EU Agency

2 The Fall of the Santer Commission

(B) The Committee of Independent Experts’ Detailed

3 Service Delivery and Accountability

(A) Responsibility for Policies Where There were Staff

(B) The Legitimacy of Contracting-Out as a Method of

Notwithstanding this extract, the impression created by some parts of the

4 The Prodi Commission and Institutional Reform

(B) The Second Report of the Committee of Independent

(C) Reforming the Commission and the White Paper

5 Implementation of the Reforms

(B) Priority Setting and the Efficient Use of Resources

(C) Staff Policy

2 Nature and Rationale

The choice of certain of the bodies listed above is constrained by subject