In its judgment in Case C-540/03 European Parliament v. Council, the Court rejected a claim by the Parliament that Directive 2003/86/EC breached the fundamental right of respect of family life. In so doing, the Court gives a few useful pointers on the margin of discretion enjoyed by the member States in applying the fundamental right to family life.
Directive 2003/86/EC on the right to family reunification determines the conditions for the exercise of the right to family reunification by nationals of non-member States residing lawfully in the territory of the member States. It provides in particular that a national of a non-member State lawfully living in the EC is in principle entitled to the grant of authorisation by the host Member State allowing his/her children to join him/her by way of family reunification. But it nevertheless allows member States in certain circumstances to apply national legislation derogating from the rules that apply in principle. For instance, when a child is aged over 12 years and arrives independently from the rest of his/her family, the member State may, before authorising entry and residence, verify whether he or she meets an integration condition provided for by its existing legislation on the date of implementation of the directive. In addition, member States may require applications for family reunification in respect of minor children to be submitted before the age of 15, as provided for by their existing legislation on the date of the implementation of the directive.
The Parliament submitted that those provisions constituted a breach of the fundamental right to family life and should therefore be annulled: They breached that right because they permit the member States to breach them.
The Court disagreed.
It recalled that Fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, inter alia Case C-36/02 Omega, paragraph 33). And that the International Covenant on Civil and Political Rights is one of the international instruments for the protection of human rights of which it takes account in applying the general principles of Community law (see Case C-249/96 Grant, paragraph 44). That is also true of the Convention on the Rights of the Child which, like the Covenant, binds each of the member States.
But the Court held that those international instruments do not create for the members of a family an individual right to be allowed to enter the territory of a State and cannot be interpreted as denying Member States a certain margin of appreciation when they examine applications for family reunification. Directive 2003/86/EC imposes precise positive obligations on the member States and allows them to verify whether a child aged 12, who arrives independently from the rest of his/her family, meets an integration condition. Being able to conduct that verification preserves a limited margin of discretion for those States which is no different from that accorded to them by the European Court of Human Rights – in its case-law relating to the right to respect for family life – for weighing, in each factual situation, the competing interests. So, because the Directive confers no greater discretion on the member States than they already enjoy under the different international conventions, the Directive itself does not breach the rights guaranteed by those conventions.
Just received the second edition in English of "Procedural Law of the European Union" by Judge Koen Lenaerts, Dirk Arts and Ignace Maselis. The work is edited by Robert Bray.
And a fine book it is too.
It is a 600 page text on the EC Courts, the procedure and the different forms of action. And carefully footnoted too. One could quibble with one or two minor points and it is a pity that the chapter on the action for damages does not really discuss much liability in the event of a lawful act which we noted here. Instead, the chapter concentrates on liability in the event of an unlawful act and only mentions the possibility of liability for a lawful act briefly on page 385. There was doubtless no time to cover the point more fully before the manuscript had to be turned in. But that is a very minor point.
So whether you are a practitioner, a student or general observer of the Court of Justice and the Court of First Instance, you need that book.
It is published by Thomson, Sweet and Maxwell, ISBN 0 421 94700 4.
The Court of Justice handed down a neat judgment the other day recapitulating its views on preliminary references from national courts and when it will decline to answer them.
Have a look at Case C-419/04Conseil général de la Vienne v. Directeur général des douanes et droits indirects.
The facts and the substance of the case need not detain us - it's one of those really technical customs cases. But, when the French court referred a question to the Court of Justice pursuant to Article 234 EC, the French government intervene to contest the admissibility of the question on the ground that the referring court had mischaracterized the dispute and thus the question referred was pointless.
The Court of Justice dismissed the French government's objections and held that it would answer the question referred.
The Court was forthright on the division of labor between itself and national courts. It stated that in proceedings under Article 234 EC are based on a clear separation of functions between the national courts and the Court of Justice. Consequently, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. As a result, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C-326/00 IKA  ECR I-1703, paragraph 27, and Case C-145/03Keller, paragraph 33).
The Court continued that it would only examine the conditions in which the national court refers a question to it in exceptional circumstances in order to confirm its own jurisdiction (see, to that effect, Case 244/80Foglia v. Novello, paragraph 21).
The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that:
- the interpretation of Community law that is sought bears no relation to the facts of the main action or its purpose,
- where the problem is hypothetical,
- or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98PreussenElektra, paragraph 39, and Case C-390/99Canal Satélite Digital, paragraph 19).
And the Court adds for good measure that it must take account, under the division of jurisdiction between the Community judicature and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see, inter alia, Case C-475/99Ambulanz Glöckner, paragraph 10, and Case C-136/03Dörr and Ünal, paragraph 46).
You can sense in this little judgment that the Court does not like its jurisdiction being challenged too cavalierly.
The 2005 Annual Report of the Court of Justice is now available on line here. It contains a readable and lucid summary of the salient judgments handed down in 2005. A fascinating statistical annex is available here. A revelation is how few appeals are actually successful.
The Court of First Instance has a similar report here. And a statistical annex too.
Even the new Civil Service Tribunal has published its report here.
These reports are a must for all students of EC law. They're nicely presented too. Just go and read them !
The Commission has made public its 13th report on the application of the principles of subsidiarity and proportionality. The grand title given to it is "Better Lawmaking 2005". Hum ! It is drawn up pursuant to Article 9 of the Protocol on the application of those principles annexed to the Treaty of Amsterdam, 1997.
The report is an annual review of what the Commission in particular, but also the Council, European Parliament and the member States have done to improve the regulatory environment in the EC.
There are some interesting things and lots of useful references. Worth having a look at.
The new agreement contains some complex provisions. The broad gist is to set out ceilings for expenditure that cannot be exceeded except when provided for and to improve collaboration between the institutions during the course of the budgetary procedure set out in Article 272 EC.
One of the issues that arose was whether the measures taken by the authorities had breached the fundamental right to be heard.
The Court held that it was settled case-law that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views on the evidence on which the contested decision is based (see, inter alia, Case C-32/95 P Commission v. Lisrestal and Others, paragraph 21; Case C‑462/98 P Mediocurso v. Commission, paragraph 36; and Case C‑287/02 Spain v. Commission, paragraph 37). Given the important consequences for cattle breeders that principle requires, in connection with the control of foot-and-mouth disease, that the addressees of such decisions be, in principle, placed in a position in which they may effectively make known their views on the evidence on which the contested measure is based.
The Court continued however that fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be restricted provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. Objectives which may justify such restrictions include the protection of public health (see, to that effect, Case C-62/90 Commission v Germany, paragraph 23, and Case C‑44/94 Fishermen’s Organisations and Others, paragraph 55).
The Court reached the conclusion in this case that if the competent authority were not able to take measures against foot-and-mouth disease unless all potentially concerned parties had previously been given the opportunity to familiarise themselves with the facts and documents on which those measures are based and had expressed a view on those facts and documents, that authority could be prevented from acting promptly and effectively. Accordingly, the protection of public health justifies, in principle, that that authority adopts those measures, even without first obtaining the views of interested parties on the facts on which the measures are based. But the interested parties must be given the opportunity to otherwise the restriction of the fundamental right would be disproportionate and intolerable. Given the imperative need to act promptly against foot-and-mouth disease, the principle of respect for the rights of the defence does not necessarily require that the implementation of those measures be postponed until those proceedings have come to an end.
The problem in this case was that Italian law excluded liability of the state for damage caused to individuals by an infringement of Community law committed by a national court adjudicating at last instance, where that infringement is the result of an interpretation of provisions of law or of an assessment of the facts and evidence carried out by that court, and, on the other hand, also limits such liability solely to cases of intentional fault and serious misconduct on the part of the court.
The Court held that those exclusions and limitations laid down in Italian law were contrary to EC law.
The Court found that to exclude any possibility that State liability may be incurred where the infringement allegedly committed by the national court relates to its interpretation of provisions of law or its assessment of facts or evidence would amount to depriving the principle of State liability of all practical effect. It would lead to a situation where individuals would have no judicial protection if a national court adjudicating at last instance committed a manifest error in the exercise of those activities of interpretation or assessment.
As for the limitation of State liability solely to cases of intentional fault and serious misconduct on the part of the court, the Court pointed out that State liability for damage caused to individuals by reason of an infringement of Community law attributable to a national court adjudicating at last instance may be incurred in the exceptional case where that court has "manifestly infringed" the applicable law. Such a "manifest infringement" is to be assessed in the light of a number of criteria, such as the degree of clarity and precision of the rule infringed, whether the error of law was excusable or not and the non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under Article 234 EC. Where the national court's decision is taken in manifest disregard of the case-law of the Court of Justice on the subject, the "manifest infringement" is to be presumed.
The Court added that it remains possible for national law to define the criteria relating to the nature or degree of the infringement which must be met before State liability can be incurred for an infringement of Community law attributable to a national court adjudicating at last instance. But under no circumstances may such criteria impose requirements stricter than that of a manifest infringement of the applicable law.
As a result, limitation of State liability solely to cases of intentional fault and serious misconduct on the part of the court, as in Italian law, is contrary to Community law if such a limitation were to lead to exclusion of liability of the Member State concerned in other cases where a manifest infringement of the applicable law was committed.
The Community has adopted and published a regulation - Regulation 816/2006 - on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with health problems.