Political Reflection

Political Reflection

The Primacy or Supremacy Principle of the European Union Law: A Comparative Overview of British, German and French Courts’ Responses

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Dr Sharifullah Dorani* | [email protected]

*South Asia and the Middle Eastern Editor at CESRAN International

Introduction

An Overview of the UK, Germany, and France’s Approaches to the Principle of the Supremacy of EU Law

Although the UK has already left the EU, the British courts’ reaction to the doctrine of EU law primacy is still relevant since it has been an essential part of EU Law modules at universities and will continue to have relevance. [ii]   The ECJ was asking the UK courts something that they were not constitutionally competent to offer. As seen in the essay on UK’s response to EU law superiority (Dorani, 2020b), the UK courts did not have the power to question the validity of an Act of Parliament due to the sovereign nature of Parliament (Loveland, 2003: 21).As seen in the first essay, the ECJ made it clear that the Member States must give primacy to EU law regardless of whether the national law was passed before or after the EU law, irrespective of the nature of the national law ( Costa , 1964; Dorani, 2020a).  The ECJ reasoned that by joining the EU, the Member States accepted the supremacy of EU law under Article 288 (ex 249 TEC) of the Treaty on the Functioning of the European Union signed in 1957 (Dorani, 2020a). Therefore, it was vital to preserve this supremacy so that the uniformity and efficacy of EU law was ensured, even if it was at the cost of the national constitutional law of the Member States. Not only the higher courts of Member States were under the obligations to immediately give precedence to EU law over national law in a case of conflict, but also the lower courts ( Simmenthal , 1978).

However, though reluctant at first, the UK courts got around the constitutional difficulty by adopting the rule of construction on the basis of section 2 (4) of the European Communities Act 1972 and gave precedence to EU law by accepting the direct effect of directives ( Macarthys Ltd , 1979; Garland , 1983; Pickstone , 1989; Webb , 1995; Dorani, 2020b). These cases suggested that the British courts accepted the ECJ’s rulings on the direct effect of directives.  The rulings of Factortame (1991) and EOC (1995) were additional indications that the courts went further to accept the ECJ’s judgments in Simmenthal and Costa, namely that EU law took precedence over national law regardless of when the national law was passed (Dorani, 2020a).

However, the courts argued that they relied on section 2 (4) for their judgment in Factortame , suggesting that Parliament was still sovereign. This was not a convincing claim as the Parliament of 1972 was not constitutionally competent to bind the Parliament of 1988, and the courts were well aware of this fact ( Ellen Street Estates Ltd , 1934; Dorani, 2020a). The court, however, did not accept the earlier incompatible Act and held it to have been impliedly repealed. Therefore, one could argue that it was the ruling of Simmenthal that was relied on by the Supreme Court in Factortame . However, whatever the authority for Factortame might have been, the UK courts, practically speaking, accepted the supremacy of EU law without, unlike the German Courts, any threats or conditions.

Unlike the UK and French Courts, the German courts were quick – particularly the Federal Constitutional Court (FCC) – to recognise the independent nature of the EU law ( Re Tax , 1963). Re Tax demonstrated that the FCC accepted the supremacy of directly effective EU law. It also made clear to the lower German courts that the ECJ’s rulings were binding inside Germany (Dorani, 2021a). Thus, the FCC was one of the first supreme courts of the Member States discussed to accept the superiority of EU law. However, the Solange I (1970) decision indicated that it was not the case any longer, as the FCC claimed that it would review the EU law like any other German law if it was in breach of the German Basic Rights.

Unlike the Supreme Court in the UK, the FCC is constitutionally competent to do so, and it was, therefore, considered a significant threat to the supremacy of EU law. But Solange II (1987) indicated that the FCC modified its Solange I jurisprudence by holding that the European level of protection for human rights now measured up to that of the German Constitution. Although it claimed that the European level of protection for human rights was similar to that of the German one, it constantly held it would use its Solange I jurisprudence if the EU institutions acted ultra vires (that is, beyond the competence that the Member States have given to the EU) or if the protection for human rights fell below the German standards ( Brunner , 1994; The Banana Litigation , 2000). This suggests that the FCC regarded itself as the ultimate arbiter of constitutionality and the German Constitution superior to EU law. However, as seen in my essay on Germany’s reaction to EU law primacy (Dorani, 2021a), except for one case, the FCC, in practice, has never disregarded a provision of EU law; the one case has been, as I explained in detail in my one of my previous essays, ‘a special one and can be confined to its own facts’ (Dorani, 2021a). One could naturally conclude that the FCC, too, has (though conditionally) accepted the supremacy of EU law. The same conclusion could be even truer for the French Courts.

Like the UK courts, the French courts were reluctant to give priority to EU law as they regarded themselves constitutionally incompetent. However, the Cour de Cassation’s Vabre (1975) decision suggested that the Cour de Cassation did not see itself as incompetent and, therefore, gave superiority to EU law over the French law. At first, both the Constitutional Court and the Conseil d’Etat were not prepared to accept the superiority of EU law over French law and even on some occasions did not apply the EU provisions before them ( Semoules , 1970), which neither the Supreme Court in the UK nor the FCC in Germany ever did so. However, eventually they changed their positions and held that Article 55 of the French Constitution empowered them to give supremacy to EU law over French law, but not over the French Constitution (Dorani, 2021b; Richards, 2000: 192).

Thus, Germany and France, to a certain extent, have the same position, that is, they have accepted the supremacy of EU law as long as the EU institutions do not encroach on the German and French Constitutions. Great Britain, though it has not got a written constitution, evidently accepted the supremacy of EU law over an Act of Parliament ( Factotame , 1991; EOC , 1995). Needless to say, though, the EU law is no longer supreme in the UK, owing to Great Britain’s exit from the EU.

In theory, there have been some conflicting constitutional issues between the ECJ and the Member States studied. However, in practice, it could be concluded that the national courts have accepted the supremacy of EU law.

Some of the tension between the EU and the Member States has been over the authority for the supremacy of EU law over their national law. For example, the Member States concerned claim that they derived the authority from their own constitutional rules, whereas the ECJ want them to rely on its jurisprudence. Another contentious issue is the ultra vir e s doctrine; it is possible in the future that the national courts disregard EU law if they deem the ECJ to have acted ultra vir e s . But that possibility is remote for the reasons explained in my essays on Germany and France’s approaches to the supremacy of EU law (Dorani, 2021a; Dorani, 2021b). The UK courts did not make much of the doctrine of ultra vir e s , but, obviously, that is no longer important after the UK withdrew from the EU following the 2016 EU Referendum.

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[i] The essays are inspired by my undergraduate law dissertation. I am and will remain grateful for the support I received from the University of Northampton during my undergraduate years, especially from my brilliant EU law lecturer Sarah Willis.

[ii] See my articles for a discussion of why it is significant, Dorani 2020b; Dorani, 2019b. See my book and interview with Professor Rahman Dag for a detailed discussion of the factors that might have also played a part in causing Brexit, Dorani, 2019a; Dag, 2019.

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Notes, cases, and materials on EU law

Topic notes.

Past Papers

Back to Subjects | Back to Law

Introduction to EU law

Legal nature and competence

Institutions of the EU

Sources of EU law

Principle of supremacy

Preliminary rulings

Direct action

Review of legality

Remedies in national courts

State liability

Overview of the internal market

Past Papers & Questions

1. “Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe.” Eric Stein, Lawyers, Judges and the making of a Transnational Constitution [1981] 75 American Journal of International Law 1.

Critically discuss whether the Court of Justice of the European Union (CJEU), as Stein suggests, in ‘finding’ the relevant EU principles, rights and obligations promoted an integrationist agenda by stealth or has it, more haphazardly, simply made up the operational doctrines as it went along?

2. “Every year a new cohort of law students is inducted into the central articles of faith on the effectiveness of EU law. On the one hand, these concern the forms of action: direct actions (Articles 258 and 259 TFEU); judicial review (Article 263 TFEU); preliminary references (Article 267 TFEU); and actions for non-contractual liability (Article 340 TFEU). On the other hand, these also concern the effects of EU law: direct effect and supremacy; the effects of directives; and state liability. EU law seminarians are soon apprised of the CJEU’s duty to ensure the uniform application of EU law and the national courts’ duty of ‘sincere cooperation’. [...] Yet, for the EU law seminarian, the main focus bears on Article 267 TFEU and state liability. Necessarily, this fixation, given the ad hoc nature of litigation and the variation in national remedies, further compromises the overall coherence of EU law.”

Critically reflect on the extent to which EU law provides for a cogent, complete and compelling system of enforcement.

3. “The free movement of capital is still the least developed European Union internal market freedom”.

Critically discuss the above statement by tracing the development of the EU capital freedom as well as looking at the current case-law.

4. “The judicial system ... has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law.” Opinion 2/13, [176].

Critically assess how Article 267 TFEU has been interpreted so as to ensure the uniformity of EU law and whether this procedure truly represents a partnership between the Court of Justice and national courts.

5. ‘On paper the requirement of a considerable influence on consumer behaviour remains as an extra threshold that must be crossed before a litigant can place on the regulator a burden to demonstrate justification for the imposition of a restriction on use of a product. But in practice that threshold is ill-shaped and vague. Robust judges such as Munby LJ in the Segway case will sweep away adventurous reliance on EU law, but the Court’s vocabulary in its cases on ‘restrictions on use’ inevitably invites and encourages such litigious adventure in future.’ S. Weatherill, ‘The Road to Ruin: “Restrictions on use” and the circular lifecycle of Article 34 TFEU. Oxford Legal Studies Research Paper No. 58/2012.

Discuss critically the instability at the heart of Article 34 TFEU case-law and consider whether Weatherill is right to be so wary.

6. Critically assess the legal and practical differences between the right of establishment as it applies to natural persons and as it applies to legal persons.

Your friend Chug has recently started to work for a small law firm located in Oxford, called Lightning & McQueen LLP. The firm specialises in cases relating to the automobile industry. Chug was asked to look into a number of files as a matter of urgency. They all seem to turn on questions of European Union law. Remembering that you have studied European Union law, Chug has turned to you for some help.

Please advise Chug on the European Union law implications of the following three cases:

a) Mater’s Garage specialises in the restoration of old cars. Recently, Mater’s sought to import into the UK a badly damaged car from the 1980’s in order to restore it. The car was seized by customs officials at Dover on the basis that it is a health hazard and was denied entry into the UK. The customs officials reject that European Union law is relevant at all to what they dismiss as ’a pile of metal garbage’.

b) Guido’s Pitstop sells motorbikes and mopeds in the UK. One of the novelty mini-mopeds the company imports from Italy has been really popular with teenagers. Earlier this year, the Government introduced legislation to ban the use of mini-mopeds by anyone under the age of 16 and also banned the advertisement of mini-mopeds on national TV, radio and the printed media. As a result, Guido’s has seen a significant fall in consumer interest and actual sales in mini-mopeds and seeks to challenge both bans.

c) Fillmore Ltd is one of the largest distributors of new and second-hand motorbikes in the UK. Most of its stock comes from other EU countries. Recently, the Government introduced legislation requiring the importers of all motorbikes not manufactured in the UK to (i) submit the bike to a roadworthiness test in the UK, (ii) register the origin of the bike with the Driver and Vehicle Licensing Agency and (iii) affix a sign identifying it as ’foreign stock’ on the bike prior to its sale. The UK authorities claim these steps are justified as a matter of the protection of health and safety and consumer protection under Article 36 TFEU. It is public knowledge that the legislation in question was introduced following sustained lobbying by the British motorcycle industry.

Andrew, a British national, moved to Athens (Greece) twenty years ago to take up an employment as a translator in a Greek company. However, due to the economic crisis, he has only been working part-time for the last two years and part of his remuneration has consisted in free lunches provided by his company. After slowly becoming depressed, he has begun to drink and has already been arrested twice after getting into fights in bars at night. Now the Greek authorities want to deport him on public policy grounds.

Andrew’s wife - Barbara - is Chilean. She has been working as a piano teacher in Athens for several years. However, her visa expired three years ago. The Greek authorities are currently considering ordering her expulsion from Greece as well.

Andrew’s brother - Connor, who is also a British national - has been studying architecture in Germany for two years. He applied for a maintenance grant this year but his application was rejected since German law prescribes that this grant can only be awarded to foreign students who have studied for at least three years in Germany, a condition that Connor does not fulfill.

Advise Andrew, Barbara and Connor on their rights under EU law and corresponding remedies before the national courts.

In Lettuvia, an EU Member State, football is by far the most popular sport, and the matches in the "Premier League" attract considerable interest both domestically and abroad. The sale of TV rights for matches generates €3 billion per year, making the Lettuvian Football Association (LFA) one of the wealthiest sporting associations in Europe. All major Lettuvian football clubs are members of the LFA.

The EU Commission decided to open proceedings against the LFA pursuant to complaints from football agents. According to the statutes of the LFA, players in the “Premier League” could only be represented by agents authorized by the LFA, which only authorised agents holding Lettuvian nationality. The Commission instituted proceedings under Regulation 1/2003, claiming that the statutes of the LFA 1) represented an unlawful decision taken by an association of undertakings and 2) an abuse of a dominant position. The LFA claimed that the EU competition rules did not apply to it, as it was a non-profit organization promoting sporting interests and contributing to the flowering of the cultural life of the State.

Discuss critically whether the statutes of the LFA might be contrary to Article 101 TFEU and/or Article 102 TFEU.

In January 2012 the European Commission adopted the Environmental Protection Directive 12/78 (fictitious). The Directive required that national law provide an authorisation procedure for industrial activities with high potential for pollution, and laid down minimum licensing requirements by installations in order for authorisation to be granted. The Directive also required, amongst other things, that national law provide interim relief for individuals who might be adversely affected by pollution. The transitional period expired on 1 January 2014.

Fred lives in Exetown, a town situated approximately one mile downwind from an agricultural chemical factory run by ExeChem Ltd. The ExeChem factory was classified as high risk according to the Environmental Protection Act 2000 (EPA; fictitious), but was licenced to operate. Under the EPA only the Environment Agency may seek interim relief pending any determination by a court under the Act. However, the Environment Agency found in a series of reports that emissions of inflammable and toxic gas are often blown on the prevailing wind towards Exetown, and Fred’s house. While the EPA did not forbid such emissions, the Directive prohibited these toxic emissions and required that their emission be criminalized. In February 2014 Fred asked the Environment Agency to close the plant under the authority of the Directive. The Agency refused to do so, arguing that under the EPA the operation of the plant was lawful.

Fred would like to challenge the continuing operation of the ExeChem plant by way of judicial review. Advise Fred as to his rights and remedies under EU law.

Maria is a mature Finnish student studying at Exmouth University. Maria works part time at the ‘Free World Café Collective’ as a waitress, though she is paid in kind through free food and drink.

The Daily Globe, a national newspaper, starts a campaign accusing the UK Government of being ‘soft on terror’ and turning the UK into a safe haven for ‘dangerous foreign activists.’ The paper runs a series of in-depth investigations on the violent anti-capitalist demonstrations in Europe. Pictured in the story were photographs of Maria at an anti-globalisation demonstration in Estonia over two years ago. During the demonstration several shop fronts were smashed by demonstrators, the city was set on fire and a number of passers-by and police officers were badly assaulted.

In April 2015 the Home Secretary discovered not only that Maria had been convicted in Estonia of criminal damage as a consequence of her involvement in the demonstration, but also had other convictions arising out of her attendance at violent rallies in Denmark and Germany. The Home Secretary orders Maria’s deportation to Finland.

Advise Maria as to any rights and remedies she might have under EU law.

A Ltd is a UK company which produces a particular type of smart phone, the ‘G- Type’. According to the latest market statistics, in Europe, A Ltd has 60% of the market for ‘G-Type’ phones; its nearest competitor B Ltd, has 35%. However, in the European market for smartphones in general, A Ltd has only 20% market share.

Consider BOTH of the scenarios below:

a) A Ltd enters into an agreement with C Ltd, a new manufacturer which has developed a new type of smartphone equipped with new incredible applications, which can even prevent road accidents. C Ltd does not have the financial resources to develop the prototype of the new smartphone, so it agrees to produce it and sell it only to A Ltd, in return for the necessary financial support to develop the project;

b) A Ltd has a distribution agreement with two chains of electronic shops across Europe, one named ‘Electro Europe’, and the other called ‘HighTech Supermarket’. A Ltd sells its ‘G-Type’ phone to Electro Europe for £300, and to HighTech Supermarket for £400. In addition to that, SciFi Shops, a third chain of electronic shops has recently approached A Ltd for an agreement on the distribution of its ‘G-Type’, but A Ltd is refusing to supply it.

The European Commission has received complaints against A Ltd in relation to the above scenarios, and asks for your advice. Advise the European Commission.

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  • Oct 28, 2020
  • 21 min read

EU Law LAW8507 First-Class Coursework Essay (JD Level)

Updated: Nov 2, 2020

Submitted by: Adrienne Wong

Potential Systemic Burdens in EU Cross-Border Healthcare:

Examining the Implications of the Reimbursement Provisions of Directive 2011/24/EU Within Less-Developed EU Countries

Introduction

In facilitating the furtherance of the internal market and the cooperation between Member States within the European Union (EU), Directive 2011/24/EU outlines the parameters of cross-border healthcare for patients, including treatment costs, prescriptions, and delivery of medications and medical devices. [1] The Directive was largely a response to two issues: first, on Regulation no. 883/2004/EC on the coordination of social security systems, but which focused primarily for the freedom of movement for workers, and second, a series of case law from the Court of Justice of the European Union (CJEU) that highlighted patients’ rights. [2] In this sense, the Directive’s purposes are not only for the progress of high-quality patient care, autonomy, and efficiency; its main objective is to enhance national control over cross-border health by emphasising the freedom of movement of citizens. [3] Therefore, the Directive incorporates regimes on social security coordination that collaborates with Regulation 883/2004/EC to advance patients’ rights on cross-border movement for healthcare.

The European Commission has identified four aspects of Directive 2011/24/EU that may be potential barriers to cross-border mobility: this includes frameworks relevant to prior authorisation rules, administrative requirements, charging of incoming patients, and systems of reimbursement. [4] This paper will focus on the Directive’s reimbursement scheme since one of the main drivers of the Directive’s implementation was to offer greater clarity regarding citizens’ entitlements to healthcare mobility and legal certainty for reimbursement of these costs. [5] Specifically, there has been some concern in relation to the reimbursement scheme’s application for poorer EU countries and whether any non-anticipated adverse effects may result from its provisions. This paper argues that while the implementation of Directive 2011/24/EU advocates for individual patients’ rights to cross-border healthcare, its reimbursement provisions may result in potential economic burdens on the healthcare and legal systems of less developed EU countries. The scope of the Directive and its relationship with Regulation 883/2004/EC (with reference to Regulation 1408/71/EEC) will first be discussed followed by an examination of the Directive’s reimbursement framework in detail. A case study of the Directive’s implementation in Romania will be explored to illustrate any possible stresses to its national healthcare system.

Cross-Border Healthcare Mobility Instruments

The timeline of the EU’s efforts to achieve further healthcare harmonisation can be traced through a series of major cases. Arguably, the first pivotal moment was in Luisi and Carbone [6] where it was stated that the freedom to provide services should also include the freedom of recipients of those services to travel to another Member State to receive them, thereby extending the Court’s perception of protection for recipients’ rights. [7] In Decker [8] and Kohll , [9] it was held that social security could not be excluded from the freedom of movement principles even though Member States retained competences to regulate their country’s own social security systems. [10] It also held that the prior authorisation rules were incompatible with freedom of movement to the extent of non-hospital treatment and that competent Member States must reimburse the patient under the same terms as if the treatment was obtained within its jurisdiction. [11] Further, the prior authorisation condition by reason of quality of health services and the preservation of the financial balance of the medical system cannot be used to justify refusal for reimbursement as this had already been harmonised at the EU level. [12] These cases demonstrated the gradual recognition of citizens’ rights to receive health services abroad.

There are two primary routes to access cross-border healthcare today: Regulation 883/2004/EC and Directive 2011/24/EU.

Prior to Regulation 883/2004/EC, cross-border mobility was governed largely by Regulation 1408/71/EEC which was limited only to employed or self-employed citizens. [13] Both Regulations were established to complement the freedom of movement of persons, specifically workers. While Regulation 1408/71/EEC is still in force, the new Regulation 883/2004/EC extends to all EU nationals covered by a social security scheme and clarifies the coordination of social security systems across Member States, specifically on the criteria for obtaining cross-border healthcare and prior authorisation measures needed before travel.

First, the scope of Regulation 883/2004/EC covers sickness benefits from public or contracted providers regulated by statutory law, thus, non-contracted or purely private providers not affiliated with the social security system are excluded. [14] Second, insured persons must seek prior authorisation from the competent institution for any planned healthcare travel. [15] This authorisation will be granted if the treatment concerned is i) among the basket of services or benefits provided by the patient’s affiliated Member State and ii) if the treatment cannot be administered within a medically justifiable time in consideration of the patient’s state of health. [16] Where healthcare is unplanned, such as accidents while abroad, prior authorisation is not required. Third, in the case of planned healthcare and where authorisation has been granted, the cost of the medical treatment abroad is borne by the competent state (the patient’s Member State of residence) where the costs are refunded directly to the institution of the Member State where the treatment was sought. [17] This reimbursement cost is calculated based on the domestic cost of the treatment in the Member State offering the service; even if the cost of the treatment is higher than the competent state, the competent state still bears its full cost. [18] Where healthcare is unplanned, the costs are reimbursed between both Member States once a request is made by the institution from the Member State of which treatment was given. [19]

Both Regulations have provided a strong foundation for cross-border healthcare mobility; however, the rules regarding prior authorisation have posed some issues in relation to its reimbursement criteria. Since cross-border treatment costs are borne in full by the competent state, this may create hesitancy for states to authorise its citizens for healthcare abroad – especially where the treatment costs are higher. [20] The consequences of the prior authorisation and reimbursement frameworks became most realised in Watts [21] where there was a lack of clarity within the application of Regulation 1408/71/EEC and Article 49 TEC (now Article 56 TFEU) in relation to uncertainties of waiting lists as grounds for refusal for prior authorisation and subsequent reimbursement claims after treatment abroad. [22] It was held that the prior authorisation rule in this context infringed Article 49 TEC and that the National Health Service (NHS) must reimburse the cross-border treatment costs since the NHS could not provide the claimant’s treatment within a medically acceptable time in consideration of her worsening health; further, that Article 49 TEC still applied even when the claimant paid for treatment abroad first before seeking reimbursement. [23]

Directive 2011/24/EU was proposed to address the Regulations’ relationship with case law complications and specifically resolve the issues surrounding reimbursement refusal as a result of prior authorisation rejections based on the Regulations’ provisions. Implemented in early 2011 and adopted by all Member States by late 2013, the Directive, without prejudice to the Regulations, and with special regard to Articles 114 and 168 TFEU, introduced clearer coordination for prior authorisation and reimbursement systems. [24] In a sense, the Directive is arguably less restrictive than the Regulations. First, the Directive allows for private healthcare providers. [25] Second, while prior authorisation is mandatory in the Regulations, it is an exception in the Directive route, applicable only to treatments that requires long-term care, access to organs for organ transplantation, or public vaccination programs. [26] Third, patients are usually expected to pay treatment costs upfront to a cross-border healthcare provider and have the costs subsequently reimbursed by their Member State of affiliation. [27] However, while the Regulation covers the patient’s treatment costs in full, the Directive only covers the costs up to the amount that would have been covered by the patient’s Member State of affiliation. [28]

The development of the above provisions continues to emphasise the unity of the Regulation and the Directive. As both mechanisms cannot be used concurrently, patients will have to evaluate which instrument would be of better benefit. At first glance, it may seem that Regulation 883/2004/EC would be more favourable since treatment costs are fully refunded by the competent state. However, the Directive route avoids most necessary prior authorisation procedures before travel, provides a larger range of healthcare provider coverage, and clarifies reimbursement schemes which were at the centre of Regulation-related case law complications. As the Directive can be considered less restrictive in some sense, the Courts still recognise that there may be potential risks with an influx of uncontrolled and unlimited cross-border mobility and reimbursement claims. [29] Has the Directive clarified or complicated reimbursement procedures – and are there any effects or burdens on healthcare systems of Member States, in particular, poorer states, as a result of the Directive’s reimbursement criteria? The Directive’s reimbursement scheme will be further discussed in detail in the following section.

Reimbursement Under Directive 2011/24/EU

Entitlement to reimbursement from cross-border healthcare costs through the Directive is subject to the basket of care provision in the patient’s affiliated Member State, without prejudice to Regulation 883/2004/EC and with regard to Articles 8 and 9 of the Directive which outline exceptions needed for prior authorisation and administrative procedures. [30] In detail: first, reimbursement by the Member State of affiliation is only applicable if the treatment sought abroad is among the benefits that are also available in the patient’s home country. Second, Regulation 883/2004/EC, with reference to Article 22(2) of Regulation 1408/71/EEC states that national authorities must evaluate whether a certain cross-border treatment method corresponds to an equivalent benefit provided by the home state. [31] In contrast, if the treatment sought is determined not to correspond with the home Member State’s benefits, the national authority has no obligation to grant authorisation for the treatment abroad as provided by the Regulation’s provisions, nor is there an obligation to reimburse the treatment under the Directive either. [32] Third, Member States may refuse reimbursement subject to the list of healthcare exceptions as listed in Article 8 of the Directive which may require prior authorisation. [33] Where a patient is entitled to a particular healthcare treatment and where the treatment cannot be administered to the patient in their home country within a medically justifiable time based on the medical assessment of the patient’s condition, the home Member State may not refuse to grant prior authorisation. [34] The cross-border costs reimbursed is equal to the level of costs that would have been incurred had the treatment been sought within the patient’s home country. In the absence of comparable costs for domestic patients, the reimbursement amount is calculated based on an objective and non-discriminatory criterion in accordance with the relevant local, regional, or national reimbursement levels for the type of treatment sought. [35]

The above frameworks have offered clearer legal certainty, however, there is an additional provision that should be noted. Article 7(4) of the Directive further states that if the incurred cross-border healthcare costs exceed the level of costs of treatment that would have otherwise been provided within its territory, the Member State of affiliation may still nonetheless decide to reimburse the full cost and/or other associated costs such as travel, accommodation, or additional costs for patients with disabilities, granted there is documentation for the relevant costs. [36]

It has been argued that since the Directive provides more clarity, transparency, and somewhat ‘less restrictive’ measures than that of the Regulations, patients, in theory, should no longer need to face lengthy and costly court cases in order to obtain reimbursement. [37] However, because Article 7(4) implies that full or additional reimbursement is available on a discretionary basis from national authorities, it may arguably encourage more patients to pursue the Directive route and claim further reimbursement – thereby potentially resulting in more court cases as patients seek to claim why they should be entitled to additional reimbursement for their cross-border healthcare. The attractiveness of the Directive’s provisions, absent of stricter implementation, may cause more challenges if patients and interest groups flood to make use of it. [38]

Analysis in the past has shown that a large number of healthcare movement in the EU were patients from less developed countries travelling to major medical centres in wealthier and highly developed countries for treatment. [39] As the popularity of cross-border mobility has risen since the implementation of the Regulations and the Directive, it can be deduced that this pattern of mobility has also become more frequent. However, some scholars have asked whether patients from less developed countries should be able to receive cross-border treatment if their home country, due to, for instance, a financial crisis, is unable to provide certain healthcare services to them. [40] If the poorer countries are not able to provide certain types of treatment to patients within their home country, how can they be expected to provide payment or reimbursement for treatments abroad, especially where the treatment costs are higher than their own? [41] However, restricting the flow from these poorer EU countries would disadvantage the patients who need cross-border healthcare the most. The main question that should be asked is whether the Directive effects positive steps toward patients’ rights to cross-border healthcare or whether it burdens the healthcare and legal systems of poorer EU countries as a result of reimbursement and litigation costs.

Case Study: Implementation of Directive 2011/24/EU in Romania

Romania was chosen as a representative comparator jurisdiction for this analysis as the most recent Eurobarometer study on healthcare mobility established that Romania was among the top eight Member States whose citizens had sought treatment in another EU country; it also found that Romania was among the top thirteen Member States where knowledge about the rights to receive cross-border healthcare was a priority. [42] Directive 2011/24/EU was adopted in Romania by Law no. 95/2006 on health reform which outlines the method of reimbursement through health insurance houses and the procedure for challenges against reimbursement levels or rejections by the state. [43]

Several concerns have been raised. It has been argued that the Directive imposes pressure on the Romanian state, particularly in the following areas: reimbursement of costs, prior authorisation procedures, healthcare quality standards and malpractice systems, and coherence between reform measures and principles for the functioning of the healthcare system as provided by the Directive. [44] The first two issues will be discussed more extensively but it is important to note that difficult economic conditions have great effect on healthcare standards and coherency which impact the reimbursement and prior authorisation mechanisms for less developed countries. In the Romanian context, financial crisis reduced the availability of treatments for its domestic citizens, leading to 67 hospital closures (approximately 15% of the country’s public hospitals) in 2011. [45] Since these structural and prolonged deficiencies in hospital facilities may continue, this could render certain services, even services within the basket of benefits covered in the state’s healthcare system, may be unavailable. [46] This leaves little option for patients but to seek these unavailable treatments abroad; this only reemphasises the challenges for less developed Member States to reimburse these costs while struggling with its own healthcare system deficiencies simultaneously.

In Petru , [47] the claimant, who suffered from serious cardiovascular illnesses, travelled to Germany from Romania for her surgical procedure; although she had been scheduled for surgery in a Romanian institution, Ms Petru believed that the hospital infrastructure was inadequate and unreliable. Prior to her travel, she submitted a request for cost coverage, but it was denied on the grounds that there was no suggestion that the surgery, which was within the basket of services in Romania, could not be provided in a medically reasonable time. [48] Her initial proceedings were dismissed but she relied on Article 22(2) of Regulation 1408/71/EEC and Law no 95/2006 in her appeal. [49] The CJEU held that the competent institution must have regard to all circumstances of a specific case, not only including the patient’s condition, progress of illness, but also the adequacy and ability to carry out the medical treatment. [50] Therefore, the Court held that Article 22(2) of Regulation 1408/71/EEC must be interpreted in light of Article 22(1)(c)(i) in that prior authorisation must not be refused where it is due to lack of medication, basic medical supplies, and infrastructure of the hospital institution which cannot be provided in a reasonable time in the patient’s Member State of residence. [51]

The judgment was significant in demonstrating the prioritisation of individual patient rights to cross-border healthcare; however, this also poses some concerns on the stability of an ‘economically-distressed’ state. Given that the main dispute in Petru was regarding the inadequacy of healthcare infrastructure, this stresses the questions around the sustainability of particularly low-income countries that already face general shortages of basic healthcare resources, in addition to, the struggles of providing reimbursement costs for its citizens’ cross-border healthcare. [52] Of course, Member States, particularly less developed ones, cannot afford a mass migration of patients abroad, therefore this systemic deficiency dilemma may likely curtail patient mobility to protect national healthcare systems in the long run. [53]

It is also important to note that Petru was concerned with the Regulation’s provisions instead of Directive 2011/24/EU. This was partially because the Directive had not been implemented by all Member States at the time; but primarily, it was because the Directive requires upfront payment whereas the Regulation did not. [54] This highlights another issue where citizens may have unequal access to cross-border healthcare in which it seems to suggest that perhaps the cross-border instruments may be more beneficial for wealthier citizens from poorer EU countries who are able to travel abroad more easily and provide any relevant upfront costs for their healthcare before claiming reimbursement. The Directive has aimed to address this issue by either generously consider paying the costs of the treatment abroad directly, for example, via a voucher system, or allow the application of reimbursement between institutions as provided in the Regulations. [55] However, it has been suggested that this does not seem effective as reimbursement under the Directive generally does not cover the full cost of cross-border treatment as compared to the Regulations. [56] Studies have found that problems relating to reimbursement are critical operational indicators which have shown signs of negatively affecting the efficiency of the Directive. [57] In the Romanian context, it has been determined that the Directive places its citizens in an inferior position in relation to other EU citizens from Member States with financially favourable healthcare systems. [58] This demonstrates that the Directive is mostly ineffective for poor citizens where healthcare abroad is intensely costly and where healthcare at home is inadequate or insufficient. As it stands, the Directive seems to only make economic inequality more prominent. [59] This reiterates that the Directive seems to be mostly useful for wealthier patients or wealthier Member States. Therefore, this disproportionate access to the Directive’s benefits will be felt most by vulnerable populations who may be in need of crucial cross-border healthcare and support.

However, the Petru outcome does shed some hope on the future of cross-border healthcare and may initiate more opportunities for patients from less developed health systems. Indeed, majority of patients from these poorer countries have been prevented from benefitting from the Directive route due to the insufficient reimbursement levels or the inability to provide upfront payment for expensive cross-border treatments. [60] Despite this, Petru may encourage and broaden the possibilities of patients to seek healthcare abroad precisely because of the low levels or lack of healthcare resources in their domestic jurisdiction. [61] In addition, as discussed earlier regarding Article 7(4) of the Directive which notes the possibility for a full or additional discretionary reimbursement by the Member State of affiliation, this may open more doors for patients to seek or file to courts for increased cross-border healthcare coverage. [62] This would thus render the reimbursement claims akin to that of the Regulations’ full reimbursement levels while also allowing patients to enjoy the ‘less restrictive’ nature of the Directive. This hypothesis seems unlikely; however, as the recognition of patients’ rights to seek treatment abroad has become pushed to the forefront over years of major case law, courts in the future may decide to arrange more patient-favourable and patient-focused outcomes to preserve their rights, especially those from vulnerable and less developed societies, to seek critical cross-border healthcare.

While this perspective may illustrate a positive expectation for individual patients, this again repeats the issue of the dangers of large departures of patients from domestic institutions in pursuance of treatments abroad. This could be harmful at the systemic level as reimbursement claims could further financially burden the healthcare and legal systems of less developed and poorer Member States.

Effectiveness of Directive 2011/24/EU

While the Regulations and the Directive have been in place for many years, the actual increase in patient mobility for healthcare has remained marginal. Although the levels of travel were generally low, after the implementation of the Directive, it did increase by 11% between 2007 and 2014. [63] It was discovered that those who sought healthcare abroad tended to be younger and relatively educated individuals, and who were likely wealthier from smaller countries. [64] Another study found that between 2015 and 2018, cross-border mobility only slightly increased as well, likely due to the improvement of access to information on the rights to cross-border healthcare for citizens and the coordination between European institutions and individual Member States. [65]

Some speculations for this low trend of travel have suggested that such reasons could include the late implementation of the Directive by some Member States, the general unfamiliarity of reimbursement rights, specific barriers limiting cross-border movement such as administrative obstacles, and insufficient disseminated information to citizens. [66] However, it was revealed that in 2015, requests for reimbursement between Member State institutions under the usage of Regulation 883/2004/EC was approximately 2 million requests, while those under the Directive amounted to just over 180,000 requests. [67]

This demonstrates that reliance on Regulation 883/2004/EC was more common than the Directive’s provisions, likely, as discussed in the previous section, because the Regulation offers a higher level of cost coverage and because upfront payments are not required. As healthcare professionals are required to inform and ensure that citizens are advised which cross-border mobility route is more suitable for their reimbursement claims, it is likely that the benefits of full coverage under the Regulation has deterred citizens from pursuing the Directive’s provisions. [68] It is clearer now through this analysis that there are administrative barriers, access inequalities, and issues concerning lower levels of reimbursement under the Directive route.

This paper has aimed to investigate the impact of Directive 2011/24/EU on less developed EU countries by highlighting the particular arrangements of reimbursement schemes under each cross-border mobility instrument, examining the Directive’s reimbursement provisions in detail and its potential effects on poorer countries, and understanding the effectiveness and travel trends of the Directive on cross-border movement.

There are three concerns. First, while the Directive offers a ‘less restrictive’ route than Regulation 883/2004/EC, it seems that its requirement for upfront costs and its reimbursement provisions would mainly benefit wealthier populations and countries leading to unequal access for vulnerable individuals, particularly those from poorer countries. Second, although major case law has recognised and prioritised individual patients’ rights for cross-border movement, an exodus of patients from less developed countries seeking treatments abroad would be detrimental for its healthcare and legal systems. This could place a further strain on low-income countries that are already struggling with financial difficulties in their healthcare systems, such as inadequate resources and infrastructure, while also facing cross-border healthcare reimbursement claims. Third, reliance by patients on the Directive for cross-border mobility has been indicatively low compared to usage under Regulation 883/2004/EC. This is likely because the Regulation offers a more favourable and accessible reimbursement route.

It can be argued that this increased attention on cross-border healthcare rights as a result of the Directive’s implementation and major case law has also had the side effect of promoting the Regulation as well. [69] Since the Regulation offers a better administrative framework and cost coverage from the patients’ perspective, it is therefore a more beneficial route for patients from poorer EU countries as the Directive restricts and limits their reimbursement claims. [70]

Perhaps a potential solution to coordinate enhanced equity across all Member States without perpetuating economic inequalities of poorer countries is an equalisation payment system. Funds allocated specifically for healthcare distributed to each Member State may help balance some economic difficulties, improve healthcare infrastructure, and allow countries to cover treatment costs, i.e. on a case by case basis, for patients who cannot afford upfront payments, or provide more adequate reimbursement. This would need further research; however, future analysis should focus more carefully on the Directive’s economic impact to health systems, particularly any inequalities within less developed EU countries, in conjunction with advocating for further individual patients’ rights on cross-border healthcare mobility.

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[1] Directive 2011/24/EU of the European Parliament and of the Council on the application of patients’ rights in cross-border healthcare OJ 2011 L 88/45; European Commission, Cross-Border Healthcare <https://ec.europa.eu/health/ cross_border_care/overview_en> accessed 27 April 2020. [2] Regulation (EC) No 883/2004 of the European Parliament and of the Council on the coordination of social security systems OJ 2004 L 166, as implemented by Regulation (EC) No 987/2009; See Treaty on the Functioning of the European Union 1957 (TFEU), art. 48. [3] Tamara Hervey, ‘EU Health Law’ in Catherine Barnard and Steve Peers (eds), European Union Law (2nd edn, Oxford University Press 2017) 635. [4] Ivo Belet, ‘European Parliament: Report on the Implementation of the Cross-Border Healthcare Directive’ (2018) CEPHFS 1, 4. [5] Frans Pennings, ‘The Cross-Border Health Care Directive: More Free Movement for Citizens and More Coherent EU Law?’ (2011) 13 EJSS 424; Directive 2011/24/EU, recitals 9, 27. [6] Joined Cases C-286/82 and C-26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377; See also Case C-120/95 Decker v Caisse de Maladie des Employes Prives [1998] ECR I-1831 and Case C-158/96 Kohll v Union des Caisses de Maladie [1998] ECR I-1931. [7] Johan van de Gronden et al., Health Care and EU Law (TMC Asser Press 2011) 81. [8] Case C-120/95 Decker v Caisse de Maladie des Employes Prives [1998] ECR I-1831. [9] Case C-158/96 Kohll v Union des Caisses de Maladie [1998] ECR I-1931. [10] van de Gronden et al. (n 7) 83. [11] Ibid. 82. [12] Ibid.; See also Case C-368/98 Vanbraekel [2001] ECR I-5363, Case C-157/99 Geraets-Smits and Peerbooms [2001] ECR I-05473, Case C-385/99 Muller-Faure and van Riet [2003] ECR I-04509, and Case C-326/00 IKA v Ioannidis [2003] ECR I-01703. [13] Pennings (n 5) 426; Regulation 883/2004; Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community OJ 1971 L 149. [14] Ibid.; Dolores Bermejo, ‘Cross-border Healthcare in the EU: Interaction Between Directive 2011/24/EU and the Regulations on Social Security Coordination (2014) 15 ERAF 359, 366. [15] Regulation 883/2004/EC, art. 20(1). [16] Ibid., art. 20(2). [17] Pennings (n 5) 428. [18] Ibid.; Regulation 883/2004/EC, art. 35. [19] European Commission, Commission Report on the Operation of Directive 2011/24/EU on the Application of Patients’ Rights on Cross-Border Healthcare (2018) <https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri =CELEX:52018DC0651&from=EN> accessed 28 April 2020. [20] Pennings (n 5) 428. [21] Case C-372/04 R (Watts) v Bedford Primary Care Trust [2006] ECR I-4325. [22] Regulation 1408/71/EEC, art. 22(1)(c); Treaty Establishing the European Community (TEC), art. 49. [23] Case C-372/04 R (Watts) v Bedford Primary Care Trust [2006] ECR I-4325, at [123], [142]-[143]; Compare also with Case C-173/09 Elchinov [2011] All ER (EC) 767. [24] Directive 2011/24/EU; TFEU, art. 114, 168. [25] Walter Ried and Frauke Rau, ‘Cross-Border Health Care in the European Union: Evaluation of Different Financing Arrangements (2017) 9 EMPS 8, 11; Directive 2011/24/EU, art. 3(g). [26] Directive 2011/24/EU, art. 1(3). [27] Bermejo (n 14) 374. [28] Hiroshi Aiura, ‘Effect of Cross-Border Health Care on Quality and Progressivity of Financing’ (2019) 31 RURDS 29; Belet (n 4) 3. [29] Pennings (n 5) 450. [30] Directive 2011/24/EU, art. 7(1). [31] Regulation 883/2004/EC; Regulation 1408/71/EEC, art. 22(2); Hervey (n 3) 636; Case C-173/09 Elchinov [2011] All ER (EC) 767, at [62]. [32] Hervey (n 3) 636. [33] Directive 2011/24/EU, art. 8, 9. [34] Directive 2011/24/EU, art. 8(5). [35] Directive 2011/24/EU, art. 7(6); See Case C-372/04 R (Watts) v Bedford Primary Care Trust [2006] ECR I-4325. [36] Directive 2011/24/EU, art. 7(4); Brindusa Marian, ‘Considerations Regarding Directive 2011/24/EU on the Application of Patient’s Rights in Cross-Border Healthcare in EU Member States’ (2018) 8 TJ 681, 684. [37] Bermejo (n 14) 363. [38] Scott Greer, ‘Avoiding Another Directive: The Unstable Politics of European Union Cross-Border Health Care Law’ (2013) 8 HEPL 415, 416. [39] Lorena Androutsou and Theodore Metaxas, ‘Measuring the Efficiency of Medical Tourism Industry in EU Member States’ (2019) 26 JTA 115, 118; Michael Horowitz et al., ‘Medical Tourism: Globalization of the Healthcare Marketplace’ (2007) 9 MGM 33. [40] Markus Frischhut and Nick Fahy, ‘Patient Mobility in Times of Austerity: A Legal and Policy Analysis of the Petru Case’ (2016) 23 EJHL 36, 42. [41] Ibid. [42] European Commission, Special Eurobarometer 425, ‘Report: Patients’ Rights in Cross-Border Healthcare in the European Union’ (2015) TNSOS 1, 8, 48. [43] Law no. 95/2006 on health reform, art. 901-922 (Romania); Marian (n 36) 685-686. [44] Viorel Rotila, ‘The Impact of Directive 2011/24/EU on the Romanian Health System’ (2013) CCDSS 1, 114. [45] Eurofound, ‘Access to Healthcare in Times of Crisis’ (2014) 1, 12; Frischhut and Fahy (n 40) 37. [46] Frischhut and Fahy (n 40) 44. [47] Case C-268/13 Petru v Casa Judeteana de Asigurari de Sanatate Sibiu [2015] All ER (EC) 571. [48] Ibid., at [11] [49] Ibid, at [14]; Regulation 1408/71/EEC, art. 22(2); Law no. 95/2006, art. 208(3) (Romania). [50] Case C-268 Petru [2015] All ER (EC) 571, at [32] and [36]. [51] Ibid., at [37]; Regulation 1408/71/EEC, art. 22(2), 22(1)(c)(i). [52] Andre den Exter, ‘The Patient Mobility Saga Continues – The Ruling of court of Justice of European Union in the Case of Elena Petru’ (2014) 55 CMJ 441, 442. [53] Ibid.; See also questions referred for preliminary ruling regarding justifications for full reimbursement claims in Case C-538/19 (Pending). [54] Frischhut and Fahy (n 40) 41. [55] Bermejo (n 14) 374. [56] Ibid. [57] Mustapha Ibrahim et al., ‘Estimating Efficiency of Directive 2011/24/EU Cross-Border Healthcare in Member States’ (2018) 7 JCER 1, 6. [58] Rotila (n 44) 115. [59] Ibid. [60] Frischhut and Fahy (n 40) 53. [61] Ibid. [62] Directive 2011/24/EU, art. 7(4). [63] Andre Peralta-Santos and Julian Perelman, ‘Who Wants to Cross Borders in the EU for Healthcare? An Analysis of the Eurobarometer Data in 2007 and 2014’ (2018) 28 EJPH 879. [64] Ibid., 883. [65] European Commission (n 19) 15. [66] Belet (n 4) 13. [67] Ibid., 7. [68] European Commission (n 19) 8. [69] Frischhut and Fahy (n 40) 52. [70] Ibid.

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Chapter 2 Outline answers to essay questions

Trace the development of the principles of direct effect, indirect effect, and state liability by the Court of Justice, evaluating their significance for individual claimants.

Your answer should address direct effect, indirect effect, and state liability in turn, ensuring relevant analysis and evaluation as you go along. As all three doctrines were created by the Court of Justice, the case law will feature strongly, as the question itself indicates. You should begin by reference to the doctrine of supremacy, which forms the basis of the three principles.

Supremacy of EU law

  • Sovereignty of the European Union (previously Community) legal order: 'The Community constitutes a new legal order in international law, for whose benefits the states have limited their sovereign rights, albeit within limited fields . . .' ( Van Gend ) '. . . the EEC Treaty has created its own legal system which became an integral part of the legal systems of the Member States . . .' ( Costa  v   ENEL ).
  • The corollary of EU sovereignty is the supremacy of EU law: EU law takes precedence over national law ( Costa v  ENEL ,  Internationale Handelsgesellschaft ,  Simmenthal ,  Factortame II ).

Direct effect

  • Meaning of 'direct effect: set out a definition – if a provision of EU law is directly effective, it can be invoked by individuals in the national court.
  • The principle is not contained in the Treaty. Trace its development by the Court of Justice, discussing Treaty articles, regulations, directives.

Treaty articles

  • Van Gend : Creation of the principle. Treaty articles capable of direct effect. The Treaty is not only an agreement creating obligations between Member States. EU law imposes obligations upon individuals and confers on them legal rights.
  • Direct effect of Treaty articles: subject to the conditions first formulated in  Van Gend (measure must be sufficiently clear, precise, and unconditional and its implementation must not be dependent upon any implementing measure), then subsequently reworked and loosened, for instance in  Defrenne  (the measure must be sufficiently clear, precise, and unconditional).
  • Van Gend : Treaty articles capable of vertical direct effect (explain) but the question of their horizontal direct effect (explain) was left unresolved.
  • Defrenne : Treaty articles can be invoked horizontally.
  • Since  Van Gend  and  Defrenne : numerous Treaty articles held to be vertically and horizontally directly effective, including the internal market provisions.
  • Significance for individuals: ability to invoke, in the national court, Treaty rights against the state and other individuals.

Regulations

  • Regulations: capable of vertical and horizontal direct effect, subject to the same conditions as are applied to Treaty articles ( Politi ,  Leonesio ).
  • Article 288 TFEU: directives must be implemented into national law.
  • Originally not thought to be capable of direct effect: not intended to operate as law within national systems, since that is the role envisaged for the relevant national implementing measures; addressed to Member States and do not appear to affect individuals directly; seen as giving Member States a broad discretion in implementation, being binding only as to the result to be achieved, and therefore considered to be insufficiently precise to fulfil the  Van Gend criteria.
  • Van Duyn : directives can be directly effective, provided clear, precise, and unconditional.
  • Ratti : additionally, the implementation deadline must have passed. Rationale: it would be unfair to permit a directive to be invoked against a Member State until its obligation to implement had become absolute. By the same token, it would be unfair to allow a Member State to rely on its failure to implement a directive to escape obligations arising under it.
  • Van Duyn  did not address the possible horizontal direct effect of directives.
  • Marshall : directives can only be invoked vertically against the state or a public authority, but not horizontally. Reiterated in  Faccini Dori .
  • Court of Justice's refusal to permit directives to be invoked horizontally frequently criticized as anomalous and unfair. In the employment context, for instance, individuals employed by the state or a public body can invoke rights under a directive against their employer, whilst those working for private employers cannot.
  • In response, Court of Justice refers to the Community (now EU) legal order: rights under directives must be enshrined in national implementing measures, upon which claimants can rely in national courts. Only Member States, not individuals, should be held accountable for a state's failure to implement directives.
  • Mitigation of this approach: indirect effect and state liability and broad interpretation of 'public body'.
  • Public body:  Foster '. . . a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals'.
  • Application of  Foster  test ( NUT, Becker ,  Fratelli Costanzo ,  Johnston, Farrell ).
  • Doctrines of direct effect and supremacy immensely significant. Require national courts to apply EU law at the suit of individuals in priority over any conflicting provisions of national law. National courts must disapply national measures that conflict with directly effective provisions of EU law.
  • Direct effect is especially important where a Member State has failed to meet its obligation to implement EU law or where implementation is partial or defective. Direct effect provides a mechanism for the enforcement of individuals' EU rights but also an additional means of supervision of Member States' compliance with EU obligations.

Indirect effect

  • Especially significant: overcoming the shortcomings of direct effect in 'horizontal' situations or where a provision is not sufficiently clear.
  • Von Colson : the principle established. Set out the definition of indirect effect .
  • Applies to pre-dating and post-dating legislation – Marleasing, Webb v EMO Air Cargo
  • Marleasing : all national law must be interpreted in line with Union law, but only 'so far as possible'. It may not always be possible ( Wagner Miret ) so the principle has its limitations.

State liability in damages

  • A means to overcome the limitations of direct and indirect effect.
  • Francovich : damages for loss incurred as a result of a state's failure to implement a directive. Conditions for liability: the directive entails the grant of rights to individuals; it is possible to identify the content of those rights; a causal link between the state's failure and the loss.
  • Factortame III : damages for other kinds of breach. Set out the conditions.
  • ‘Sufficiently serious breach’ - ‘Manifest and grave disregard of the limits on its discretion’ – factors to be considered (see Para 56 of Factortame III) – clarity, excusable etc.
  • Application of  Factortame III : legislation infringing EU law ( Factortame III ); incorrect implementation of a directive ( BT ); administrative breaches ( Hedley Lomas ); incorrect interpretation of EU law by a national court of last instance ( Köbler ).

Direct effect, indirect effect and state liability all play a crucially important role in the protection of individuals' EU law rights in national courts.

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eu law essays

Making the Law Accessible in Europe and the USA

EU-flag-circuits

EFF Legal Intern Alissa Johnson contributed to the writing of this blog post.

Earlier this month, the European Union Court of Justice ruled that harmonized standards are a part of EU law, and thus must be accessible to EU citizens and residents free of charge.

While it might seem like common sense that the laws that govern us should be freely accessible, this question has been in dispute in the EU for the past five years, and in the U.S. for over a decade . At the center of this debate are technical standards, developed by private organizations and later incorporated into law. Before they were challenged in court, standards-development organizations were able to limit access to these incorporated standards through assertions of copyright. Regulated parties or concerned citizens checking compliance with technical or safety standards had to do so by purchasing these standards, often at significant expense, from private organizations. While free alternatives, like proprietary online “reading rooms,” were sometimes available, these options had their own significant downsides, including limited functionality and privacy concerns .

In 2018, two nonprofits, Public.Resource.Org and Right to Know, made a request to the European Commission for access to four harmonized standards—that is, standards that apply across the European Union—pertaining to the safety of toys. The Commission refused to grant them access on the grounds that the standards were copyrighted.   

The nonprofits then brought an action before the General Court of the European Union seeking annulment of the Commission’s decision. They made two main arguments. First, that copyright couldn’t be applicable to the harmonized standards, and that open access to the standards would not harm the commercial interests of the European Committee for Standardization or other standard setting bodies. Second, they argued that the public interest in open access to the law should override whatever copyright interests might exist. The General Court rejected both arguments, finding that the threshold for originality that makes a work eligible for copyright protection had been met, the sale of standards was a vital part of standards bodies’ business model, and the public’s interest in ensuring the proper functioning of the European standardization system outweighed their interest in free access to harmonized standards.

Last week, the EU Court of Justice overturned the General Court decision, holding that EU citizens and residents have an overriding interest in free access to the laws that govern them. Article 15(3) of the Treaty on the Functioning of the EU and Article 42 of the Charter of Fundamental Rights of the EU guarantee a right of access to documents of Union institutions, bodies, offices, and agencies. These bodies can refuse access to a document where its disclosure would undermine the protection of commercial interests, including intellectual property, unless there is an overriding public interest in disclosure .

Under the ECJ’s ruling, standards written by private companies, but incorporated into legislation, now form part of EU law. People need access to these standards to determine their own compliance. While compliance with harmonized standards is not generally mandatory, it is in the case of the toy safety standards in question here. Even when compliance is not mandatory, products that meet technical standards benefit from a “presumption of conformity,” and failure to conform can impose significant administrative difficulties and additional costs.

Given that harmonized standards are a part of EU law, citizens and residents of member states have an interest in free access that overrides potential copyright concerns. Free access is necessary for economic actors “to ascertain unequivocally what their rights and obligations are,” and to allow concerned citizens to examine compliance. As the U.S. Supreme Court noted in in 2020, “[e]very citizen is presumed to know the law, and it needs no argument to show that all should have free access” to it.

The Court of Justice’s decision has far-reaching effects beyond the four toy safety standards under dispute. Its reasoning classifying these standards as EU law applies more broadly to standards incorporated into law. We’re pleased that under this precedent, EU standards-development organizations will be required to disclose standards on request without locking these important parts of the law behind a paywall.

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