Important decisions of the European Court of Justice [1]    


Jurisprudence on European integration (1)

Updated edition 2011.

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Preliminary remark

Note that the law of the European Union is a continental European and not a common law legal system. Thus, court decisions interpret the law but do not make the law, and the findings are not binding for later judgements. There is European jurisprudence but no European "case-law" in the proper sense. The doctrine of precedent (stare decisis) does not apply to the European Court of Justice. This affects the dealing with the jurisprudence. The ECJ often refers to previous judgements, but mostly superficially to some dogmatic statements only, not to the decision as a whole, and without regard to the facts of the case. Usually, it does not deal with its own jurisprudence as a common law court does with its case-law. Under the pressure of criticism from the Advocates General, legal science or other courts, it sometimes deviates from its former jurisprudence. For legal science, its interpretation of the law is important but not binding, since (like that of other courts) it may be wrong. For a lawyer, this means that the reference to decisions of the ECJ cannot replace one's own legal argumentation!


Basic concepts, implementation and enforcement of Community (Union) law 

competences, institutions, econ. fundamental freedoms, fundamental rights, citizenship of the Union





Van Gend & Loos
(case 26/62)


● Community law as independent (distinct) legal order

● direct applicability of primary Community law

[1963] ECR 1
[2], 95, 109, 185
[3], 1

(case 6/64)


● primacy of Community law[3a]

-  also over later national law

● Court of Justice will "extract" the relevant questions from references for preliminary rulings

[1964] ECR 585
We, 85, 185, 187
HV, 33

Internat. Handels­

(case 11/70)


● primacy of Community law also over national constitutional law

-  also over national fundamental rights

-  however: fundamental rights will be protected in Community law!

[1970] ECR 1125
HV, 35

(case 9/70)


● direct applicability of decisions addressed to the member states in favour of the citizen

-  if the decision is unconditional and sufficiently precise

[1970] ECR 825
HV, 7

(case 148/78)


● direct applicability of directives in favour of the citizen after expiration of the implementation period[4]

-  if the directive is unconditional and sufficiently precise

[1979] ECR 1629
We, 129
HV, 9

Simmenthal II
(case 106/77)


● the effect of the primacy of Community law

-  primacy in application: non-application of colliding norms of national law, without prior abrogation by the legislator, the constitutional court etc.

-  problematic: also (hierarchical) primacy in validity? "... preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions."[5]

[1978] ECR 629
WE, 86, 89
HV, 36

Deutscher Milchkontor
(joint cases 205-215/82)


● implementation of Community law by the member states

-  obligation of implementation under art. 5 EEC Treaty (later: art. 10 EC Treaty, today: art. 4(3) EU Treaty)

-  application in accordance to national law; this must not, however, affect the scope and effectiveness of Community law

principles for the recovery of unduly paid Community aids

- provisions excluding the recovery (with regard to such considerations as protection of legitimate expectation, loss of unjustified enrichment, passing of time-limits or awareness of the administration etc.) may be applied

-  however, the interests of the Community must be "taken fully into account"

[1983] ECR 2633
HV, 205

(case 79/83)


● national law to be interpreted in the light of the directives[6]

[1984] ECR 1921
HV, 29

(case 314/85)


● national courts have no jurisdiction to declare community acts invalid

-  reasoning: option to get a preliminary ruling, coherence of the system of judicial protection, unity of the Community legal order, legal certainty

[1987] ECR 4199
We 203, 247
HV, 261

(case C-221/88)


● coherence of the Treaties

-  therefore uniform interpretation of art. 177 EEC Treaty (later: 234 EC Treaty, today: 267 FEU Treaty), 150 EURATOM Treaty and 41 ECSC Treaty despite their different wordings

[1990] ECR I-495
HV, 162

vin de table
(Rs. C-217/88)


● If necessary, the member states have to take coercive measures to enforce Community law

- in case of unforeseeable problems there is a duty of loyal cooperation with the Commission

[1990] ECR I-2879
HV, 209

(case C-213/89)


● interim relief to enforce Community law

-  courts of the member states must grant interim relief regardless of adverse provisions of national law

[1990] ECR I-2433
We, 123
HV, 38

Zuckerfabrik Sü- derdithmarschen
(joint cases C-143/88
a.o. )


● interim relief also against the implementation of Community law

-  courts of the member states may suspend enforcement of administrative measures based on Community regulations

- restrictive conditions:  · serious doubts as to the validity of the Community act,  · question referred to the ECJ,  · applicant threatened with serious and irreparable damage,  · due account of the interest of the Community that its acts have full effect

[1991] ECR I-415
We, 248
HV, 220

(case C-361/88)


● no implementation of directives through administrative provisions (not even through "norm-concretising administrative provisions")

-  provisions must bind not only the administration but also third parties

-  reasoning: legal certainty (individuals must be in a position to know with certainty the full extent of their rights)

● no implementation of directives through administrative practice[7]

[1991] ECR I-2567
HV, 170

European Eco- nomic Area I
(opinion 1/91)


● own court system for the European Economic Area incompatible with autonomy and function of the ECJ

-  jurisdiction of the (planned) EEA Court would have conflicted with the court system pursuant to art. 164 EEC Treaty (later: 220 EC Treaty, today: 19(1) EU Treaty) and therefore with the foundations of the Community

● provisions in the EEA Agreement and in the Founding Treaties of the Communities to be interpreted differently even if identically worded

-  because of different objectives and missing transfer of sovereign rights

● ECJ has to contribute to the development of Community law with regard to the realisation of the Treaty objectives

- explicit commitment to a purpose-directed handling of Community law...

● EEC Treaty as "constitutional charter of a Community based on the rule of law"

-  arguments concern "based on the rule of law" but not "constitutional charter"

[1991] ECR I-6079
HV, 32, 432

Großkrotzenburg ther-mal power station
(case C-431/92)


objective effect of directives, which impose unequivocal obligations (here: to assess the effects of certain projects on the environment)

[1995] ECR I-2189
HV, 30

(case C-24/95)


● Restricted protection of legitimate expectations in case of illegitimate state aids

-  no protection in case of failure to notify compliant to art. 93 EC Treaty (later: 88 EC Treaty, today: 108 FEU Treaty

-  national authorities must give effect without discretion if Commission orders recovery

[1997] ECR I-1591
HV, 727

Inter-Environne-ment Wallonie

(case C-129/96)


● precursory effect of directives

- during implementation period member states must refrain from taking measures liable seriously to compromise the result prescribed [8]

[1997] ECR I-7411
HV, 196

in particular: state liability pursuant to Community (Union) law 

(joint cases C-6/90 and 9/90)


● state liability pursuant to Community law for non-implementation [9] of directives (basic decision)

-  reasoning: inherent in the system of the Treaty ("aus dem Wesen der mit dem EWG-Vertrag geschaffenen Rechtsordnung") - argument of effet utile, reference to the loyalty obligations of the member states

-  conditions of liability: · result prescribed by the directive entails grant of rights to individuals, · content of those rights can be identified on the basis of the provisions of the directive, · causality

[1991] ECR I-5357
We, 162
HV, 188

Brasserie du Pê-

(joint cases C-46/93 and 48/93)


● state liability pursuant to Community law for violation of directly applicable provisions

-  judges justify the judicial introduction of state liability with the task conferred on them by art. 164 EC Treaty (later: 220 EC Treaty, today: 19(1) FEU Treaty) of ensuring "that ... the law is observed" ("sichern ... die Wahrung des Rechts")

- definition of the conditions of liability analogously to art. 215(2) EC Treaty (today: 340 FEU Treaty) in accordance with the general principles common to the laws of the member states

- liability only in case of a sufficiently serious breach of Community law (this applies from then on also to incorrect implementation of directives)

- liability also for unlawful legislative acts

fault no condition of liability

- remarks on the extent of reparation

[1996] ECR I-1029
We, 171
HV, 176

(joint cases C-178/94 a.o.)


on the conditions of a sufficiently serious breach and the grant of rights to individuals

[1996] ECR I-4845
HV, 193

Hedley Lomas
(case C-5/94)


state liability also for violation of Community law by administrative practice

[1996] ECR I-2553
HV, 187

(case C-224/01)


state liability also for violation of Community law by judgements of a supreme court

[2003] ECR I-10239
We, 179; HV, 195


Basic concepts, implementation, enforcement, institutions, econ. fundamental freedoms, fundamental rights, citizenship of the Union





(case 8/55)


● the idea of implied powers

-  "... it is possible to apply a rule of interpretation generally accepted in both international and national law, according to which the rules laid down by an international treaty or a law presuppose the rules without which that treaty or law would have no meaning or could not be reasonably and usefully applied."

[1956] ECR 292
HV, 133

(case 22/70)


● implied power of the Community to conclude international treaties[10]

-  may even arise from acts of secondary law

● decisions of the ministers to be classified as Council decisions or decisions of the representatives of the governments of the Member states (meeting within the Council) according to the distribution of powers

[1971] ECR 263
We, 29, 91, 214
HV, 231, 380

System of genera-lized tariff prefe-rences I
(case 45/86)


● the choice of the legal basis for a measure must be based on objective factors which are amenable to judicial review[11]

● art. 235 EEC Treaty (later: 308 EC Treaty, today: 352 FEU Treaty) is only a subsidiary legal basis

[1987] ECR 1493
We, 33, 54
HV, 150

Immigration policy
(joint cases 281,283-285, 287/85)


   (example for a purpose-directed handling of Community law)

[1987] ECR 3203
HV, 134

Product Safety Directive(case C-359/92)


● the concept of approximation of laws in the internal market pursuant to art. 100a EEC Treaty (later: 95 EC Treaty, today: 114 FEU Treaty) encompasses measures relating to a specific product or class of products and, if necessary, individual measures concerning those products

[1994] ECR I-3681
HV, 137

Accession to ECHR
(opinion 2/94)


● no competence to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms

-  no competence arising from art. 235 EC Treaty (later: 308 EC Treaty, today: 352 FEU Treaty)

-  reasoning: the integration into the institutional system of the ECHR (→ the submission under the jurisdiction of the European Court of Human Rights...) would have fundamental institutional implications for the Union and therefore be of a "constitutional dimension".

[1996] ECR I-1763
HV, 131

Airport transit
(case C-170/96)


● measures under the "Third Pillar" must not encroach upon the powers conferred by the EC Treaty on the Community

-  insofar ECJ has jurisdiction to review pursuant to art. L (later: 46) EU Treaty

[1998] ECR I-2763
HV, 157

Tobacco advertising
(case C-376/98)

tobacco advertising II


● no competence of the Community for a general prohibition of advertising for tobacco products

-  limits of the competence for approximation of laws in the internal market pursuant to art. 100a EC Treaty (later: 95 EC Treaty, today: 114 FEU Treaty)  (one of the first cases of a rigorous review with regard to Community competences;  note, however, the return to a "generous" view in the case tobacco advertising II)

[2000] ECR I-8419
We, 40
HV, 143


Basic concepts, implementation, enforcement, competences, econ. fundamental freedoms, fundamental rights, citizenship of the Union





Roquette Frères / Isoglucose
(case 138/79)


● due consultation of the European Parliament is an essential formality

-  essential factor in the institutional balance intended by the Treaty"

-  "reflects ... the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly"

● due consultation implies that the parliament has actually expressed its opinion

[1980] ECR 3333
HV, 158, 164

Les Verts
(case 294/83)


● possibility to bring actions for annulment against measures adopted by the European Parliament (concerning the former art. 173)[12]

-  reasoning: EEC is a community based on the rule of law, inasmuch as neither its member states nor its institutions can avoid judicial review

● EEC Treaty as constitutional charter of the community

[1986] ECR 1339
We, 212, 231, 255
HV, 32, 145

Tchernobyl I
(case C-70/88)


● European Parliament may bring actions for annulment to safeguard its prerogatives (concerning the former art. 173)[13]

-  reasoning: observance of the institutional balance - other legal remedies may prove to be ineffective or uncertain

-  note: in no. 26 f. the Court presents a reasoning which is not legal but purely political and ignores the (then) prevailing law!

[1990] ECR I-2041

System of genera-lized tariff prefe-rences II
(case C-65/93)


● Community institutions - duty of loyal cooperation[14]

-  note the parallel to the principle of loyalty between constitutional bodies ("Organtreue") in constitutional law

-  if the European Parliament fails to comply with it during the consultation procedure, the Council does not need to await its opinion

[1995] ECR I-643
HV, 110, 166

Economic fundamental freedoms 

Basic concepts, implementation, enforcement, competences, institutions, fundamental rights, citizenship of the Union





(joint cases 2 and 3/69)


● large concept of charges having equivalent effect to custom duties in art. 12 EEC Treaty (later: 25 EC Treaty, today: 30 FEU Treaty)

-  any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, even if it is not imposed for the benefit of the state, is not discriminatory or protective in effect or if the product on which the charge is imposed is not in competition with any domestic product.

[1969] ECR 211
CMLRev 1969, 335

(case 8/74)


● large concept of measures having equivalent effect to quantitative restrictions on imports in art. 30 EEC Treaty (later: 28 EC Treaty, today: 34 FEU Treaty)[15]

-  all trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade"

[1974] ECR 837
We, 336
HV, 458

van Binsbergen
(case 33/74)


● large concept of encroachments on the freedom to provide services: also non-discriminating restrictions (by indistinctly applicable measures)

- all "requirements ... which may prevent or otherwise obstruct the activities of the person providing the service"[16]

- however, specific requirements having as their purpose the application of (indistinctly applicable) professional rules may be justified by the general good

[1974] ECR 1299
HV, 600

Walrave and Koch
(case 36/74)


● horizontal effect of the freedom of movement for workers on collective regulations of private persons concerning employment or the provision of services

[1974] ECR 1405
HV, 539

Cassis de Dijon
(case 120/78)


● regulations on necessary properties of products as measures having equivalent effect to restrictions on imports in the sense of art. 30 EEC Treaty (today: 34 FEU Treaty)[17]

-  this includes non-discriminative restrictions by indistinctly applicable measures

- de facto introduction of the country of origin principle

-  however: possible justification by "mandatory requirements" of public interests (Þ inherent limits - proportionality)

[1978] ECR 649
CMLRev 1979, 494
We, 375
HV, 456

Buy Irish
(case 249/81)


● art. 30 EEC Treaty (today: 34 FEU Treaty) prohibits the organisation or support of publicity campaigns to promote domestic products by the institutions of the member states

[1982] ECR 4005
We, 350; HV, 462

SPUC v. Grogan
(case C-159/90)


Medical abortion, performed in accordance with national law, constitutes a service within the meaning of art. 60 EEC Treaty (later: 50 EC Treaty, today: 57 FEU Treaty)

information by students associations about possibilities of abortion in other member states is not protected under art. 59 EEC Treaty (later: 49 EC Treaty, today: 56 FEU Treaty) because it constitutes merely a manifestation of freedom of expression)[18]

[1991] ECR I-4685
We, 471
HV, 329

Waste shipment
(case C-2/90)


● even waste falls within the scope of art. 30 EEC Treaty (today: 34 FEU Treaty)

-  even non-recyclable waste

● however, restrictions on imports can be justified by imperative requirements of environmental protection

-  reference to the principle of correction at source in environmental law laid down by art. 130r(2) EEC Treaty (later: 174(2) EC Treaty, today: 191(2) FEU Treaty)

[1992] ECR I-4431
CMLRev 1993, 365
HV, 444, 499

(joint cases C-267,


● corrective reduction of the Dassonville formula: only product-related, not sales-related rules

-  regulations on the general conditions of sale which equally concern the distribution of domestic and foreign products not to be considered as measures having equivalent effect to quantitative restrictions on imports

- this applies also to regulations concerning shop closing times, ECJ, joint cases C-69/93 and C-258/93 (1994)

- the detailed delimitation is complicated and often controverse; the decisive factor ist the actual obstruction of the access to the market (to the consumer market, see ECJ, case C-322/01, DocMorris)

[1993] ECR I-6097
We, 391
HV, 466


[1994] ECR I-2355

(Rs. C-55/94)


● the freedom of establishment as a general prohibition of restrictions: Measures liable to "hinder or make less attractive the exercise" of the freedom also represent an encroachment that needs to be justified

● such encroachments are only justified if they are applied in a non-discriminatory manner; they are justified by imperative requirements in the general interest; they are proportionate (suitable and necessary) (so called Gebhard formula)[19]

[1995] ECR I-4165
HV, 589
WE, 316

(case C-415/93)


● freedom of movement for workers of professional football players

-  large concept of encroachment on the freedom granted in art. 48 EEC Treaty (later: 39 EC Treaty, today: 45 FEU Treaty): even non-discriminative restrictions[16]

direct horizontal effect of art. 48 EEC Treaty (today: 45 FEU Treaty): applies also to regulations of sport associations for professional football players

-  unjustified encroachment by the transfer rule and the nationality clauses for matches in championships

[1995] ECR I-4921
HV, 545

French blockades
(case C-265/95)


● member states obliged to intervene against import blockades set up by private persons (art. 30 read together with art. 5 EC Treaty, today: art. 34 FEU Treaty read together with art. 4(3) EU Treaty)[20]

-  dogmatic background: a duty of protection of the member states to ensure the enforcement of the fundamental freedoms

-  the concerned member state must adopt all appropriate measures to guarantee the full scope and effect of Community law, unless it can show that action on its part would have consequences for public order with which it could not cope by using the means at its disposal (!)

-  the member state cannot fulfil its obligations by providing compensation

[1997] ECR I-6959
We, 347
HV, 106

(case C-212/97)


● freedom of establishment guarantees the right to register a branch of a company which has been established in another member state only for the purpose to evade the application of national law and which does not conduct any business in that state but intends to carry on its entire business in the State in which the branch is to be created

-  ECJ affirms cross-border context and denies abuse of the freedom of establishment

- the creditors are sufficiently protected by the circumstance that the company holds itself out as a company governed by the foreign law, cf. ECJ, case C-167/01, Inspire Art

[1999] ECR I-1459
We, 458
HV, 594

(case C-281/98)


direct horizontal effect of the prohibition of discrimination between workers on grounds of nationality (art. 48(2) EC Treaty, now: 45(2) FEU Treaty) on employers

- according to the wording of the judgement, even generally on "private persons"

- indirect discriminations may be justified by objective reasons

- SCEPTICISM IN LEGAL SCIENCE: this could lead to an erosion of the fundamental right to private autonomy

[2000] ECR I-4139
HV, 541

(case C-112/00)


● fundamental rights as inherent limits of the economic fundamental freedoms

- interests must be weighed having regard to all the circumstances of the case in order to achieve a fair balance

- note: dogmatically, these remarks are nothing but the formulation of a matter of course, which is self-evident in any legal system based on the fundamental value of the respect of fundamental rights!

[2003] ECR I-5659
We, 349, 407
HV, 527

Omega (Laserdrome)
(case C-36/02)


● human dignity as limit to the economic fundamental freedoms

- as a fundamental right and an important element of public policy, it may justify the prohibition of certain services (in the given case the organizing of killing simulation games with laser pistols)

- member states enjoy a margin of discretion with regard to the protection of this interest in their constitution

[2004] ECR I-9609
HV, 316

(case C-341/05)


● horizontal effect of the freedom to provide services (art. 49 EC Treaty, today: 56 FEU Treaty) against trade unions: applies also to collective actions[21]

- consequently, the exercise of an essential fundamental right of the trade unions needs to be justified (!) if it is directed against a foreign service provider


Fundamental rights 

Basic concepts, implementation, enforcement, competences, institutions, econ. fundamental freedoms, citizenship of the Union





(case 29/69)


● Fundamental rights as general principles of Community law[22]

[1969] ECR 419
We, 65, 184
HV, 301

(case 4/73)


● the constitutional traditions common to the member states are the basis for the own jurisprudence on fundamental rights

-  international treaties for the protection of human rights, to which the member states have acceded, can also supply guidelines

● fundamental rights are protected subject to restrictions in the pursuit of public interests (in particular of the objectives of the Communities)

[1974] ECR 491
We, 65
HV, 303

(case 44/79)


● the constitutional traditions common to the member states and the ECHR are the basis for the own jurisprudence on fundamental rights

● the right to property and the freedom to pursue trade or profession as fundamental rights[23]

-  they may, however, be restricted with regard to their social function (reasoning about limits based on comparison of law)

-  the principle of proportionality as limit of limits; absolute protection of the essence of the rights

[1979] ECR 3727
We, 68
HV, 304

(joint cases 46/87, 227/88)


● power to search of the Commission in the field of competition law

-  according to special legal bases (in secondary law); duty of assistance of the national authorities

-  Commission must respect the relevant procedural guarantees laid down by national law. Courts of the member states may review the measures of constraint envisaged but not the Commission decision ordering the investigation

● interpretation of Community law in the light of the fundamental rights

right to legal protection against interventions (encroachments) by the public authorities; principle of the lawfulness of administrative action

fundamental right to the inviolability of the home only in regard to the private dwellings of natural persons, not to the business premises of enterprises[24]

[1989] ECR 2859
We, 566
HV, 307

Banana market organisation
(case C-280/93)


● the freedom to pursue trade or profession may be restricted extremely

-  often criticised example of the negligent judicial review with regard to the limits of limits and the low practical effectiveness of the fundamental rights in the jurisprudence of the ECJ following from that

-  unbalanced and biased stressing of the "broad discretion" of the Community legislator when encroaching on fundamental rights

-  an encroachment on fundamental rights is only illegal, if the measure has been proved to be "manifestly inappropriate" [here in the sense of "unsuitable"]

[1994] ECR I-4973
HV, 85

Directive on biopatents
(case C-377/98)


● human dignity as a fundamental right

 -  dogmatics still unclear (in particular: are there limits to human dignity, which may justify encroachments?)

- see also ECJ, case C-36/02, Omega (Laserdrome) (human dignity as a limit to the economic fundamental freedoms)

[2001] ECR I-7079

(case C-60/00)


● With regard to the fundamental right to respect for family life, the home state of a service provider who provides services in other member states must not refuse the right to reside in its territory to that provider's spouse, who is a national of a third country; art. 49 EC Treaty (today: 56 FEU Treaty) is to be interpreted to that effect in the light of that fundamental right

consequence: the expulsion of the spouse violates the freedom to provide services of the husband (who must take care himself of his children...)

-  problematic: thus the member states are bound to the fundamental rights of the European Union even beyond the implementation and application of Union law

[2002] ECR I-6279
We, 477

(case C-144/04)


principle of non-discrimination on grounds of age (general principle of Community law)

- therefore, prohibition of discriminations on grounds of age already before period for transposition of directive 2000/78/EC expires[25]

- this controversial judgement provoked the appeal of HERZOG/GERKEN to "Stop the European Court of Justice" [26] but has been considered legitimate by the German Bundesverfassungsgericht  [27]

[2005] ECR I-9981

Kadi/Ald Barakaat
(Verb. Rs. C-402/05 P,
C-415/05 P)


● legal acts of the Community, which implement decisions of the Sanctions Committee of the UN Security Council for the fight against terrorism that do not leave autonomous discretion, are not immune from jurisdiction with regard to the review of their compatibility with fundamental rights

● confirmation of the present protection of fundamental rights and explicit and effetive application of the right to respect for property, right to be heard and right to effective judicial review

[2008], ECR I-6351

Citizenship of the Union 

Basic concepts, implementation, enforcement, competences, institutions, econ. fundamental freedoms, fundamental rights



wesentliche Inhalte


(case C-413/99)


● direct applicability of the general freedom of movement and residence (art. 18 EC Treaty, now: 21 FEU Treaty)

● limitations and conditions set by secondary law must be applied in compliance with the general principles of Community law, in particular the principle of proportionality

[2002] ECR I-7091

Zhu and Chen
(case C-200/02)


● freedom of movement and residence of underage children born in the host state who are citizens of the Union but whose parents are not

- in the given case: right of residence in the UK of a child, whose mother is Chinese but who has obtained Irish (!) citizenship by beeing born in Belfast (UK)

- to rely on the freedom of movement and residence does not require to move to another member state

- to rely on the freedom of movement and residence does not require a certain age

- to rely on the freedom of movement and residence does not require own resources if sickness insurance and sufficient resources are provided by the alimenting parent (concerning art. 1(1) of Directive 90/364)

● right of residence of the accompanying alimenting parent

- arefusal to allow the parent to reside with that child in the host member State would deprive the child's right of residence of any useful effect

- right of residence already follows from art. 18 EC Treaty (today: 21 FEU Treaty)

[2004] ECR I-9925


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horizontal rule

[1]  In most cases preliminary rulings under art. 267 FEU Treaty (formerly 234 EC Treaty and 177 EEC Treaty).

[2] Casebook Weatherill, Cases and Materials on EU Law, 8th edition 2007.

[3]  Casebook Hummer/Vedder, Europarecht in Fällen, 4th edition 2005 (in German). See also the casebooks Pechstein, Entscheidungen des EuGH. Kommentierte Studienauswahl, 5th edition 2009 (in German) and Rambaud, Les grandes décisions de la jurisprudence communautaire, 3rd edition 2007 (in French).

[3a]  Since this judgement and its acceptance by the then member states, the primacy also over national constitutional law constitutes a central component of the acquis communautaire. Only is limits (the core or identity of the national constitution) are disputed. All member states that joint the Communities or Union later recognized it in the accession treaty as a legal condition for their membership. Nevertheless, nowadays it is challenged in the consitutional jurisprudence in Greece, Spain, Poland and Lithuania (see diagram 2).

[4]  See also ECJ, case 41/74, van Duyn, [1974] ECR 1337 (= We, 109, 436). Note: There is no direct application against the citizen (horizontal effect), ECJ, case 152/84, Marshall I, [1986] ECR 723 (= We, 132); ECJ, case C-91/92, Faccini Dori, [1994] ECR I-3325 (= We, 137, 164). There is, however, a wide concept of the "state", against which directives might be applied. It includes bodies which, pursuant to a measure adopted by the state, are responsible for providing public services under the control of the state, ECJ, case C-188/89, Foster, [1990] ECR I-3313 (= We, 138). The direct applicability must be ascertained separately for the individual provisions of a directive, ECJ, case 8/81, Becker, [1982] ECR 53.

[5]  The ECJ finally made it clear in the joint cases C-10/97 - C-22/92, IN.CO.GE.'90 a.o. [1998] ECR I-6307, that there is only a primacy of application.

[6]  See also ECJ, case 14/83, von Colson and Kamann, [1984] ECR 1891 (from the same day) and ECJ, case C-106/89, Marleasing, [1990] ECR I-4135 (= We, 151).

[7]  See also ECJ, case 102/79, Commission v. Belgium, [1980] ECR 1473, from 1980.

[8]  See also ECJ, case C-422/05, airport noise, [2007] ECR I-4749.

[9]  As regards state liability for incorrect implementation of directives see ECJ, case C-392/93, British Telecommunications, [1996] ECR I-1631 (= We, 178 ).

[10]  Confirmed in ECJ, joint cases 3,4,6/76, Kramer, [1976] ECR 1279 (= HV, 383). The international treaties concluded by the Community may even establish new institutions of public international law, ECJ, opinion 1/76, Laying-up Fund for Inland Waterway Vessels, [1977] ECR 741 (= HV, 427).

[11]  Confirmed in ECJ, case C-300/89, titan dioxide, [1991] ECR I-2867.

[12]  See later (the new wording of) art. 230 sub-sect. 1 EC Treaty, today: 263 sub-sect. 1 FEU Treaty.

[13]  See later (the new wording of) art. 230 sub-sect. 3 EC Treaty, today: 263 sub-sect. 2 FEU Treaty.

[14]  See also ECJ, case 204/86, Greece v. Council, [1988] ECR 5323.

[15] Note, however, the important corrective reduction of the Dassonville formula in the decision Keck from 1993 (see below).

[16] In particular requirements of permissions which demand special professional qualifications, ECJ, case C-76/90, Säger, [1991] ECR I-4239.

[17]  Confirmed in ECJ, case 178/84, Reinheitsgebot für Bier (German purity law for beer), [1987] ECR 1227 (= We, 381 = HV, 489). The restriction of the label "beer" to products, which had been brewed in compliance to the traditional purity law, was not justified by mandatory requirements of consumer protection, because regulations on compulsory consumer information were sufficient. The absolute prohibition to sell beers with additives was unproportional and therefore not justified under art. 36 EEC Treaty (later: art. 30 EC Treaty, today: 36 FEU Treaty).

[18]  Note: Given that restrictions by the member states therefore do not fall in the field of application of Community law, legal protection can only be granted by the European Court of Human Rights in Strasbourg. In the similar case Open Door and Dublin Well Woman v. Ireland this court has stated a violation of art. 10 ECHR (ECHR, judgement 29.10.1992).

[19]  This formula summarizes the conditions for the justification of indirect discriminations and (non-discriminative) restrictions of all economic fundamental freedoms, according to the jurisprudence of the European Court of Justice.

[16] Note, however, the corrective reduction in ECJ, case C-190/98, Graf, [2000] ECR I-493 (= HV, 550): the effect must not be too uncertain or too indirect to affect the access to the labour market.

[20]  See also ECJ, case C-112/00, Schmidberger, [2003] ECR I-05659 (= We, 349, 407).

[21]  See also ECJ, case C-438/05, Viking.

[22]  Note, that according to the decision in the case Internationale Handelsgesellschaft from 1970 (see above) the protection of fundamental rights in the Communities is provided at the level of Community law and not of national constitutional law.

[23]  Inventories of the individual fundamental rights, which have been worked out by the ECJ, can be found at Hummer/Simma/Vedder, Europarecht in Fällen, 3rd edition 1999, p. 436 ff.; Kingreen, in: Calliess/Ruffert (editors), EUV/EGV, 2nd edition 2002, art. 6 EU Treaty no. 93 ff. and in the European Parliament Fact Sheets 1999 - 2002, 2.1.1.

[24]  This position has been abandoned in ECJ, case C-94/00, Roquette Frères, [2002] ECR I-9011, no. 29 with regard to the judgement of the ECHR from 16.04.2002 in the case Stés Colas Est u. a. v. France.

[25]  However, see now ECJ, case C-427/06, Bartsch: no general prohibition of discrimination, which would even apply if in a national case no Community law was involved.

[26]  Herzog/Gerken, Stop the European Court of Justice, EU Observer 10.09.2008, = Stoppt den Europäischen Gerichtshof, FAZ 08.09.2008, p. 8. Until January 2009, the German Bundesverfassungsgericht has not yet decided on this case.

[27]  Cf. BVerfG, 06.07.2010, 2 BvR 2661/06 (Honeywell); see also the dissenting vote of the Justice Landau.


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