EUROPEAN UNION LAW
W.B. Fisch Winter 2006
Assignment #10

[Ch. 6. FUNDAMENTAL RIGHTS, HUMAN RIGHTS AND TRANSPARENCY]

E. Transparency as a Fundamental Right: the "Access to Documents" Policy

  • TEC art. 255, introduced by Amsterdam
  • Regulation (EC) no. 1049/2001 (May 30, 2001), Doc.Supp. p. 282, on public access to EP, Council and Commission documents, implementing art. 255 (2) and invoking art. 6 TEU and Charter art. 42
  • INTERPORC IM- UND EXPORT GMBH V. COMMISSION, p. 229 (1998)
    • Pre-Amsterdam Code of Conduct
    • limitations on access specified in the Code
    • statement of reasons!

Ch. 5. THE RELATIONSHIP BETWEEN COMMUNITY AND MEMBER STATE LAW

A. The Direct Effects Doctrine in Community Law

1. The Direct Effect of the EEC Treaty and EEC Regulations

 

·        VAN GEND EN LOOS V. NEDERLANDSE ADMINISTRATIE DER BELASTINGEN, p. 239 (1963). The Marbury v. Madison of EU law.

·         Ex Art. 12: no new tariffs, and no increases in existing ones, on goods from other MS [now Art. 25, simple prohibition against tariffs or equivalent charges on such goods]

·         Does reclassification of a good, to a class subject to a higher tariff than the previously applicable one, constitute an increase in tariff?

·         Is an importer subject to such a tariff entitled to rely on the prohibition, in a challenge to the reclassification in MS court?

o        How do we know whether a provision is intended to have direct effect? [analogy: the self-executing treaty in international law]

o        Does this one qualify? Should the Court have let the Dutch tax court decide this?

·         "New legal order of international law": why was the qualifying clause later abandoned?

·        COSTA V. E.N.E.L., p. 243 (1964). Application and refinement of "direct effect" test

·         Who is challenging the nationalization of the Italian electric power industry? Does that challenge require a finding of "direct effect" of Community law?

·         Can the Court decide the questions of Community law presented to it by the Italian court, without assuming the power to declare an MS law invalid?

·         Four articles of the Treaty invoked: how do they differ, in terms of direct effect?

o        Art. 96 (ex 102) requires consultation of Commission by MS before adopting laws capable of distorting competition

o        Art. 88 (ex 93) requires MS to provide information to Commission concerning MS systems of state aid (subsidy), before MS can adopt new state aid programs

o        Ex Art. 53 (now in art. 43 (ex 52), after completion of Internal Market) prohibits new restrictions by MS on the right of establishment of other-MS nationals

o        Art. 31(2) (ex 37(2)) forbids new measures whereby MS state procurement discriminates against other-MS suppliers

o        Which of the above can this plaintiff complain about?

·        VAN DUYN V. HOME OFFICE, p. 246 (1974). Where a provision prohibiting discrimination against other-MS nationals regarding employment permits broad-based exceptions for public policy, security or health, is an MS' particular exception subject to judicial review? If so, can a person subjected to the MS restriction complain of it as a violation of Community law?

·        DEFRENNE V. SABENA, p. 248 (1976). Art. 141 (ex 119), requiring equal pay for equal work for women. Can it be invoked by an employee against a private employer ("direct horizontal effect")?

·         "Principle that men and women should receive equal pay for equal work" - is that precise and clear enough for direct effect?

·         Cf. New 141(1): "principle of equal pay for male and female workers for equal work or work of equal value" - is that enough more clear and precise?

 

Note pp. 251-253: what's the difference between "direct application" and "direct effect"?