European Business Law Understanding the Fundamentals
Following concerns from animal rights campaigners in several member states about the cruelty of seal hunting, and following the introduction by a number of member states of rules prohibiting or limiting the marketing of seal meat and other seal products, the EU introduced a Regulation banning the import of seal meat and other products made from seals. The legal basis for the Regulation was Article 114 TFEU. Several organizations representing seal hunters and traders in seal products brought an action before the Court of Justice of the EU challenging this Regulation, on the grounds that the it breached the principle of conferral, as the EU did not have competence to ban the import of seal products. You are a lawyer advising the EU institutions.
What is your advice?
As Member States had introduced national laws restricting or banning marketing of seal products which could result in a fragmentation of the internal market, because the different rules would mean that traders had to adapt their practices to the different national markets, then the EU can argue that the Regulation is necessary to ensure the functioning of the internal market. But as animal welfare is a legitimate interest of the EU, if the EU is to regulate in order to harmonize national laws, then it should do so in a way that promotes animal welfare.
An important tool in the EU legal toolbox to maintain legal certainty and uniform application of EU Law is the possibility for national courts to ask the European Court of Justice for a preliminary ruling. This is usually done when a question of interpretation of EU law arises before a national court of last instance and that court considers that an ECJ decision on this question is necessary to produce a judgment in the case before it. In fact, in such cases the judge of the court is obliged to send a reference to the ECJ.
But what about the lower courts, can they also send reference to the ECJ?
Article 267 TFEU empowers all national courts to send references for preliminary rulings to the Court of Justice of the EU, but does not create an obligation to send such a reference upon the demand of a litigant or upon the mere existence of a question of interpretation of EU law before any national court. However, it follows directly from this article that national courts of last instance are bound to send a reference when a question of EU law interpretation is relevant for the resolution of the case before it.
Which one of the principles below is a principle that stems from the national legal orders and is not unique to the EU legal order?
The principles of direct effect, primacy and EU conform interpretation are all legal tools specific to the EU legal order. However, the principle of legal certainty is a hallmark of any democracy that claims to adhere to the rule of law – that is, all of the Member States of the EU.
According to an EU directive, the Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks.
Emma Larsson works for a private employer who refuses to grant her the said four weeks of annual leave, since she has been on sick leave during the better part of the past year.
According to the national applicable law, a company only has to grant paid annual leave to employees who have actually been working during at least half of the reference period (constituting the past year). However, said national law also stipulates that certain absences, such as those due to maternity leave or work-related accidents, shall count as periods of actual work for the purposes of calculating the length of paid leave that an employee is entitled to.
Emma’s employer claims that her sick leave cannot count as a period of actual work and that she has, hence, not actually worked for the minimum period of time required for her to be granted paid annual leave.
Can Emma force her employer to grant her the four weeks of paid annual leave that is stipulated in the EU directive?
Emma can rely on the said provision to force her employer to grant her the four weeks of paid annual leave by invoking the principle that national law must be interpreted in conformity with EU law. According to the case-law from the ECJ, this principle requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognized by domestic law, with a view to ensuring that a particular directive is fully effective and achieving an outcome consistent with the objective pursued by it (see Case C-282/10, Dominguez, para. 27). Hence, even if the national law stipulates that Emma’s employer only has to grant paid annual leave to employees who have actually been working during at least half of the reference period (and Emma has admittedly not), the national provision stating that certain absences shall count as periods of actual work should be given an EU conform interpretation, in the sense that Emma’s sick leave should count as a period of actual work for the purposes of calculating the length of her paid leave.
Which of the below statements are true about regulations?
(Check all that apply)
According to Article 288 TFEU, regulations are directly applicable in all Member States. This means that they should never (as opposed to directives) be transposed by the national legislator into the national legal order. In a sense, a regulation is automatically transposed into the national legal order on the very day it enters into force.
Only the Treaties and the Charter are formally considered to form part of primary EU law. Even if some may argue that – functionally – the general principles of EU law also form part of this hierarchically superior category of law, a regulation (even if it develops such a general principle) can never in itself be qualified as a piece of primary EU law.
What is the basic condition that must be fulfilled for the EU Charter to become applicable?
According to Article 51 of the Charter, it applies when EU law is ‘implemented’. In the case-law of the ECJ, this has been interpreted as meaning any situation where EU law is applicable.
Where would you find the basic text in the Treaties on proportionality in the exercise of Union competence?
Article 5(4) TEU states:
“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.”
A national law of Factoria (an imagined EU member state) stipulates that owners of fishing vessels registered in Factoria must be resident in that member state. Non-Nationals of Factoria are much less likely to be resident in Factoria than nationals, so the practice puts non-nationals at a disadvantage, and so it is likely to be indirectly discriminatory on grounds of nationality. What does this mean?
The Treaty provides a number of express grounds that will allow a state to justify differences of treatment, such as public security, public health and public order. These express justifications can justify both indirect discrimination, but also direct discrimination.
Complete the following sentence:
Direct discrimination occurs when a person is treated less favourably ________ their status.
It is the correlation between a person’s status and unfavorable treatment that constitutes discrimination.
Complete the following sentence:
In areas where the EU has shared competence, as soon as the EU legislates to regulate a particular area, member states are ___________________ also legislate on the same area.
In an area where the Union and the Member States share competence (such as for example, the environment, or consumer protection), then member states can exercise their competence to the extent that the Union has not yet exercised its competence. As soon as the Union exercises its competence in that area, by introducing legislation or by entering into an international agreement, for example, then the member states are no longer entitled to exercise their competence. This is the so called ‘doctrine of pre-emption’. The exercise of competence by the Union in that area pre-empts any further exercise of competence by the member states.