350 new files from the archives of the Court of Justice of the European Union (CJEU) have recently been opened in the database of the Historical Archives of the European Union (HAEU). The files pertain to 373 cases referred to the CJEU in 1988. Four particularly significant judgments coming out of these cases are summarised below.
Can the European Parliament seek to annul acts of the Council or Commission?
The case Parliament v. Council C-70/88, also known as “Chernobyl” had bearing on mechanisms of institutional balance across the European institutions. In its judgment, the Court affirmed the Parliament’s right to seek annulment of Council and Commission regulations, should they be in breach of Parliament’s prerogatives.
The case was initiated by the Parliament following its action to annul Council Regulation No. 3954/87 of 22 December 1987, which established maximum levels of radioactive contamination allowed in foodstuffs and feedingstuffs sold for consumption following a nuclear accident or other radioactive emergency.
The Council had adopted the regulation on the basis of article 31 of the Euratom Treaty notwithstanding the fact that Parliament had recommended it be adopted on the basis of ex-article 100a of the EEC Treaty. A legal basis in the EEC Treaty would have allowed Parliament to exercise its prerogative to participate in the drafting of the regulation. As stated in the grounds, Parliament challenged the regulation inferring that “the Council's choice of legal basis for the contested regulation led to a breach of its prerogatives by denying it the possibility, which the cooperation procedure offers, of participating in the drafting of the measure more closely and actively than it could in the consultation procedure”.
While the Council had objected to the Parliament’s action to annul the regulation on the grounds of inadmissibility, the Court, in its judgment, pointed out that existing legal remedies could not guarantee that measures adopted by the Council or the Commission that disregarded the Parliament’s prerogatives would be suitably reviewed. As guarantor of the institutional balance provided for by the Treaties, the Court thus ruled that “an action for annulment brought by the Parliament against an act of the Council or the Commission is admissible provided that the action seeks only to safeguard its prerogatives and that it is founded only on submissions alleging their infringement. Provided that condition is met, the Parliament’s action for annulment is subject to the rules laid down in the Treaties for actions for annulment brought by the other institutions.”
Do individuals have recourse to community norms at the local level? A judgment concerning tenders and direct effect for administrative authorities.
Fratelli Costanzo S.p.A. v. Comune di Milano C-103/88 addressed the interpretation of Article 29(5) of Council Directive 71/305/EEC regarding public works contracts. It was referred to the Court under Article 177 of the EEC Treaty by the Regional Administrative Tribunal for Lombardy.
In the dispute at hand, the city of Milan had rejected a tender submitted by Fratelli Costanzo Spa from a public works contract tendering procedure, based on solely mathematical criterion. This exclusion contradicted Council Directive 71/305/EEC, which requires a detailed examination procedure and the opportunity for tenderers to provide explanations.
In its judgment, the Court ruled that Member States cannot automatically exclude tenders based on a mathematical criterion, but must follow the Directive’s provisions and allow for an examination procedure for tenders which appear abnormally low, and not just obviously abnormally low, giving tenderers the opportunity to furnish explanations for their bids. It also clarified that administrative authorities, even at the level of municipality, must also apply the Directive’s provisions and refrain from enforcing conflicting national laws.
Do national rules restricting Sunday trading violate Article 30 of the EEC Treaty concerning the free movement of goods?
Torfaen Borough Council v B & Q plc C-145/88 was one of a series of ‘Sunday trading cases’ taken up by the Court. In this case, the Court examined whether national restrictions on Sunday trading could be challenged based on interpretations of Articles 30 and 36 of the EEC Treaty concerning the free movement of goods.
In the dispute, the Torfaen Borough Council had accused B & Q Plc., operator of do-it-yourself and garden stores, of violating the UK Shops Act 1950 by remaining open for business on Sundays. “Before a national court, B & Q submitted that the Shops Act constituted a quantitative restriction on imports within the meaning of Article 30 of the EEC Treaty and was not justified under Article 36 of the EEC Treaty or by virtue of any ‘mandatory requirement’” [see ref. Grounds] . Having found that the Sunday ban reduced B&Q’s total sales, and because B&Q acquired approximately 10% of its goods from other member States, the national court requested a preliminary ruling from the CJEU as to (1) whether national restrictions on Sunday trading constitute restrictions on imports within the meaning of Article 30 of the EEC Treaty, and, (2) if so, whether these types of restrictions might benefit from the exceptions to Article 30 contained in Article 36 or in other Community laws; and (3) if the answers to questions (1) and (2) might be affected by anything that would render the Shop Act a means of “arbitrary discrimination or a disguised restriction on trade between Member States or a measure lacking in proportionality or otherwise unjustified?”
In its judgment, the Court clarified that national rules do not necessarily impede the free movement of goods between member states, and instead could be viewed as reflecting political and economic choices made by Member States to regulate working and non-working hours according to its own national socio-cultural characteristics, which is “a matter for the Member States”. The CJEU also ruled that Article 30 does not prohibit national rules prohibiting retailers from opening on Sundays, provided that the restrictive effect on the free movement of goods does not “exceed the effects intrinsic to trade rules” Determining whether the effects remain within that limit, stated the Court, is a question for national courts.
Can employers discriminate based on pregnancy and its anticipated costs to the company?
In Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus. Case C-177/88, the Supreme Court of the Netherlands referred questions to the CJEU concerning interpretation of Articles 2 and 3 of Council Directive 76/207/EEC concerning the equal treatment of women and men in employment.
The dispute at the heart of the case between Dekker and VJV-Centrum concerned discrimination based on pregnancy. Mrs Dekker had applied for a position at VJV-Centrum, informing them at the time of application that she was three months pregnant. She was subsequently put forward by the hiring committee to VJV-Centrum management as the most suitable candidate for the job. Nevertheless, the company did not hire her. In its letter to Dekker explaining why she was not selected, the company stated that since she was pregnant at the time of her application its insurer would not reimburse VJV-Centrum the costs for the daily benefits that would accrue during her maternity leave (viewed by the insurer as “foreseeable sickness”), leaving the company unable to afford a substitute.
The Court ruled that “an employer is in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions if he refuses to enter into a contract of employment with a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences for him of employing a pregnant woman, owing to rules on unfitness for work adopted by the public authorities, which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness.”
It also specified that the above ruling would stand regardless of whether or not there were male candidates for the position.
Finally, with regard to the liability of the VJV-Centrum (the employer), the Court clarified that “although Directive 76/207 gives the Member States, in penalizing infringement of the prohibition of discrimination, freedom to choose between the various solutions appropriate for achieving its purpose, it nevertheless requires that, where a Member State opts for a sanction forming part of the rules on civil liability, any infringement of the prohibition of discrimination suffices in itself to make the person guilty of it fully liable, and no regard may be had to the grounds of exemption envisaged by national law”.
The CJEU fonds at the HAEU
Researchers may consult the archival records of the European Court of Justice under special access conditions. The inventory of holdings for the CJEU is available here.