Case C‑202/13, McCarthy

Where third-country nationals hold a ‘residence card of a family member of a Union citizen’, UK cannot make right of entry subject to requirement to first obtain visa

>> McCarthy had dual British and Irish nationality. He and his wife, a Colombian national, had  been resident since 2010 in Spain where they had a house. Mr McCarthy and Ms McCarthy Rodriguez also owned a house in the United Kingdom and travelled regularly to that country. Ms McCarthy Rodriguez held a ‘residence card of a family member of a Union citizen’ (‘residence card’) issued by the Spanish authorities. Under the UK provisions concerning immigration, in order to be able to travel to the UK holders of such a card must apply for an entry permit (‘EEA family permit’), which was valid for six months. This family permit could be renewed provided that its holder went in person to a British diplomatic mission abroad and filled in a form setting out details relating to his or her finances and employment. Taking the view that those national provisions infringed their rights of free movement, in 2012 the McCarthy family brought an action before the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court). 

This Court asked whether Article 35 of Directive 2004/38 and Article 1 of Protocol No 20 must be interpreted as permitting a Member State to require, in pursuit of an objective of general prevention, family members of a Union citizen who were not nationals of a Member State and who held a valid residence card issued under Article 10 of Directive 2004/38 by the authorities of another Member State to be in possession, pursuant to national law, of an entry permit, such as the EEA family permit, in order to be able to enter its territory.

The Court first of all stressed that measures adopted by the national authorities, on the basis of Article 35 of Directive 2004/38, in order to refuse, terminate or withdraw a right conferred by that directive must be based on an individual examination of the particular case.

The UK could according to the Court not refuse family members of a Union citizen who were not nationals of a Member State and who held a valid residence card, issued under Article 10 of Directive 2004/38, the right, as provided for in Article 5(2) of the directive, to enter their territory without a visa where the competent national authorities had not carried out an individual examination of the particular case. The Member States were required to recognise such a residence card for the purposes of entry into their territory without a visa, unless doubt was cast on the authenticity of that card and the correctness of the data appearing on it by concrete evidence that related to the individual case in question and justifies the conclusion that there is an abuse of rights or fraud. The Court stated that proof of an abuse required, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules had not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (judgments in Hungary v Slovakia, C‑364/10, EU:C:2012:630, on which I wrote this post). 

The Court thus concluded that Article 35 of Directive 2004/38 must be interpreted as not permitting a Member State to require, in pursuit of an objective of general prevention, family members of a Union citizen who were not nationals of a Member State and who beld a valid residence card, issued under Article 10 of that directive by the authorities of another Member State, to be in possession, pursuant to national law, of an entry permit, such as the EEA family permit, in order to be able to enter its territory.

With regard to the interpretation of Protocol No 2, the Court held  in the case of family members of a Union citizen who were not nationals of a Member State and who sought to enter the United Kingdom in reliance upon a right of entry provided for by Directive 2004/38, verification, for the purposes of Article 1 of Protocol No 20, consisted, in particular, in checking whether the person concerned is in possession of the documents prescribed in Article 5 of that directive.The Court held that the Member States wree, in principle, required to recognise a residence card issued under Article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa. Article 1 of Protocol No 20 authorised the United Kingdom to verify whether a person seeking to enter its territory in fact fulfilledthe conditions for entry, including those provided for by EU law. On the other hand, it did not permit the United Kingdom to determine the conditions for entry of persons who had a right of entry under EU law and, in particular, to impose upon them extra conditions for entry or conditions other than those provided for by EU law. The Court held that that  was precisely the case here. By requiring an EEA family permit to be obtained in advance, the national legislation at issue in the main proceedings prescribed, for family members of a Union citizen who were not nationals of a Member State and who were in possession of a valid residence card issued under Article 10 of Directive 2004/38, a condition for entry which was additional to the conditions for entry provided for in Article 5 of the directive, and not simply verification of those conditions ‘at frontiers’.

Case C‑354/13, Kaltoft

EU law not laying down principle of non-discrimination on grounds of obesity

The Employment Equality Directive (Directive 2000/78/EC) prohibits discrimination based on religion, belief, disability, age or sexual orientation in relation to employment is prohibited.
Mr Kaltoft worked for 15 years for the Municipality of Billund as a childminder. In the course of that activity, he was responsible for taking care of children in his home. On 22 November 2010, the municipality terminated his employment contract. The municipality did not indicate the reasons as to why it was Mr Kaltoft who was chosen to be dismissed, but Mr Kaltoft’s obesity was mentioned during a meeting on his dismissal. The municipality however denied that obesity was among the reasons for Mr Kaltoft’s dismissal. Taking the view that the dismissal resulted from unlawful discrimination on grounds of obesity, the Fag og Arbejde (FOA), a workers’ union acting on behalf of Mr Kaltoft, brought proceedings before a Danish court seeking a declaration of that discrimination as well as compensation.

The referring Court on the one hand asked whether EU law itself prohibitted discrimination on grounds of obesity, and on the other hand whether obesity could constitute a disability and therefore falls within the scope of the EE- directive.

The Court first of all reiterated that the general principle of non-discrimination was a fundamental rights which formed an integral part of the general principles of EU law. However, no provision of the TEU or TFEU prohibitted discrimination on grounds of obesity as such. In particular, neither Article 10 TFEU nor Article 19 TFEU made reference to obesity. Nor did European Union secondary legislation lay down a general principle of non-discrimination on grounds of obesity as regards employment and occupation. In particular, Directive 2000/78 did not mention obesity as a ground for discrimination.

The Court reiterated that the scope of Directive 2000/78 should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof (see judgments in Chacón Navas, EU:C:2006:456, para. 56, and Coleman, C‑303/06, EU:C:2008:415, para. 46). Consequently, obesity could not as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination (see, by analogy, judgment in Chacón Navas, EU:C:2006:456, para. 57).

The Court added that the provisions of the Charter of Fundamental Rights of the European Union were likewise inapplicable in such a situation (see, to that effect, judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, on which I wrote this post).

The Court thus found that EU law did not lay down a general principle of non-discrimination on grounds of obesity as such as regards employment and occupation.

On the question whether obesity could constitute a disability and therefore falls within the scope of the EE- directive, the Court stressed that the concept of ‘disability’ must be understood as referring to a limitation which resulted  in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers (see HK Danmark, EU:C:2013:222, paras. 37 to 39; Z., C‑363/12, EU:C:2014:159, para. 76; and Glatzel, C‑356/12, EU:C:2014:350, para 45).

 The Court added in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers might hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation was a long-term one, obesity could be covered by the concept of ‘disability’ within the meaning of Directive 2000/78 (see, to that effect, judgment in HK Danmark, EU:C:2013:222, paragraph 41).
Such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity.

 It is for the referring court to ascertain whether, in the case in the main proceedings, irrespective of the fact that Mr Kaltoft, carried out his work for approximately 15 years, his obesity entailed such a limitation.  The Court stressed that should the referring court arrive at such conclusion,  pursuant to Article 10(1) of Directive 2000/78, Member States were to take such measures as were necessary, in accordance with their national judicial systems, to ensure that, when persons who considered themselves wronged because the principle of equal treatment had not been applied to them establish, before a court or other competent authority, facts from which it might be presumed that there had been direct or indirect discrimination, it was for the respondent to prove that there had been no breach of that principle. According to Article 10(2), Article 10(1) did not prevent Member States from introducing rules on the burden of proof which are more favourable to plaintiffs. 


Case C‑416/13, Vital Pérez

Local rule setting maximum age for recruitment of police officers at 30 years contrary to EU law

>> The Employment Equality Directive (The EE Directive, Directive 2000/78/EC)  prohibits any form of discrimination in employment based directly or indirectly on age. Mr Vital Pérez criticised the  municipality of Oviedo (pictured) for having approved the specific requirements laid down in a notice of competition to fill 15 posts as local police officers, since one of the requirements was that applicants must not be over 30 years of age. According to Mr Vital Pérez’s submission, this requirement infringed his fundamental right of access on equal terms to public office.  The referring Court asked whether  the EE-Directive allowed a maximum age of 30 years to be set for access to the post of local police officer in a notice of competition issued by a municipality applying a regional law of a Member State.

The Court first of all reiterated that Directive 2000/78 laid down a general framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1, which include age (Hütter, C‑88/08, EU:C:2009:381, para. 33, and Georgiev, C‑250/09 and C‑268/09, EU:C:2010:699, para. 26). The Court stressed that the directive applied to a situation such as the one which gave rise to the dispute before the referring court.It was obvious that such the rule concerned introduced a difference of treatment based directly on age as referred to in Articles 1 and 2(2)(a) of Directive 2000/78, read together.

 It remained to be ascertained whether such a difference of treatment might be upheld under Articles 4(1) and 6(1) of Directive 2000/78, since Article 4(1) of Directive 2000/78 provides that, ‘Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 [of that directive] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate’.

The Court has held previously that it is clear from Article 4(1) of Directive 2000/78 that it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement. According to settled case-law, the possession of particular physical capacities is one characteristic relating to age (see Wolf, C‑229/08, EU:C:2010:3 and Prigge and Others, C‑447/09, EU:C:2011:573).

In the present case, the Court stressed that although it was true that some of those duties, such as providing assistance to citizens or traffic control, were not likely to require the use of physical force, the fact remained that tasks relating to the protection of persons and property, the arrest and custody of offenders and the conduct of crime prevention patrols might require the use of physical force. The nature of the latter duties did require a particular physical capability in so far as physical defected in the exercise of those duties might have significant consequences not only for the police officers themselves but also for the maintenance of public order (see, to that effect, judgment in Prigge and Others, EU:C:2011:573, para. 67). It followed that the possession of particular physical capacities might 

The Court held that it therefore had to determine whether the particular physical capacities required for the post of local police officer were inevitably related to a particular age and were not found in persons over a certain age.

According to the findings of the referring court, given the tasks assigned to local police officers not all of the capacities those officers must possess in order to be able to perform some of their duties were comparable to the ‘exceptionally high’ physical capacities which were regularly required of officials in the fire service, most notably in fighting fires.

It should be noted that, as indicated in paragraph 17 of this judgment, Point 3.5 of the notice of competition intended to fill local police officer posts for the Ayuntamiento requires applicants to possess ‘the appropriate level of physical and mental fitness to perform the duties involved in the post in question and to perform the physical tests’ specified in that notice. This involves stringent; eliminatory physical tests which, according to the referring court, would make it possible to attain the objective of ensuring that local police officers possessed the particular level of physical fitness required for the performance of their professional duties in a less binding manner than the fixing of a maximum age limit.

There is, moreover, nothing in the case-file or in the written observations submitted to the Court to indicate that the objective of safeguarding the operational capacity and proper functioning of the local police service made it necessary to maintain a particular age structure, which in turn required the recruitment exclusively of officials under 30 years of age. It followed from those considerations that, in fixing such an age limit, Law 2/2007 imposed a disproportionate requirement.

Consequently, Article 4(1) of Directive 2000/78 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which set the maximum age for recruitment of local police officers at 30 years. Nor was such requirement  justified by a legitimate aim within the meaning of Article 6(1) of Directive 2000/78 .

The Court held that it could not be inferred from Article 6(1) of Directive 2000/78 that a lack of precision in the national legislation at issue in the main proceedings as regards the aim pursued automatically excluded the possibility that it might be justified under that provision. In the absence of such precision, it was important that other elements, derived from the general context of the measure concerned, should make it possible to identify the underlying aim of that measure for the purposes of review by the courts as to its legitimacy and as to whether the means put in place to achieve that aim were appropriate and necessary (see Commission v Hungary, C‑286/12, EU:C:2012:687, on which I wrote this post). 

The national legislation could however not be be considered necessary in order to ensure that those officers had a reasonable period of employment before retirement for the purposes of point (c) of the second subparagraph of Article 6(1) of Directive 2000/78. 

Case C-404/13, ClientEarth

 Claude Monet - Musée d'Orsay 
Court clarifies Member States’ obligations as regards respecting the limit values for nitrogen dioxide 

>> The Air Quality Directive (Directive 2008/50/EC ) establishes limit values for certain pollutants in ambient air. As regards nitrogen dioxide, the limit values must not be exceeded after 1 January 2010. The obligation to comply with the limit values for nitrogen dioxide laid down in Annex XI to Directive 2008/50 by 1 January 2010, the date specified in that annex, results from the second subparagraph of Article 13(1) of the directive. Article 22(1) of Directive 2008/50 provides, however, for the possibility of postponing the deadline initially set where conformity with the limit values cannot be achieved by that deadline, on condition that the Member State concerned establishes an air quality plan for the zone or agglomeration to which the postponement would apply, which meets certain requirements. In particular, the plan must be established in accordance with Article 23 of Directive 2008/50. It must also contain the information listed in Section B of Annex XV relating to the pollutants concerned and demonstrate how conformity with the limit values will be achieved before the new deadline. Under Article 22(4) of Directive 2008/50, those zones, agglomerations and plans must be submitted to the Commission for approval. Article 22(4) of Directive 2008/50 obliges the Member State concerned to notify the Commission of the zones and the agglomerations to which it considers Article 22(1) applies and to submit the air quality plan referred to in the latter provision.

In the UK the limit values for nitrogen dioxide were exceeded in 2010 in 40 of the 43 zones set up for the purposes of the directive. In September 2011, the UK submitted plans to the Commission together with applications for the postponement of the deadline for 24 of the 40 zones for which the UK predicted that the limit values would be met by 1 January 2015. For 16 zones or agglomerations (including Greater London), in respect of which the air quality plans projected compliance with the limit values between 2015 and 2025, the UK did not request a time extension. ClientEarth, an environmental NGO, asked the British courts to require the UK Government to revise the plans to show how the nitrogen dioxide limit values would be respected as soon as possible, and by 1 January 2015 at the latest.

Hearing the case as final court of appeal, the Supreme Court of the United Kingdom asked the Court of Justice whether Article 22 of the Air Quality Directive must be interpreted as meaning that, where conformity with the limit values for nitrogen dioxide laid down in Annex XI to that directive could not be achieved in a given zone or agglomeration of a Member State by 1 January 2010, the date specified in Annex XI, that State was, in order to be able to postpone that deadline for a maximum of five years, obliged to make an application for postponement in accordance with Article 22(1) of Directive 2008/50 and (ii) whether, if that was the case, the State may nevertheless be relieved of that obligation in certain circumstances.

The Court first of all held with regards to the question whether, in order to be able to postpone by a maximum of five years the deadline specified in Annex XI to Directive 2008/50, the Member State concerned was obliged to make an application and to establish for that purpose such a plan, when the conditions referred to in Article 22(1) of the directive were met, it must be held that, while the wording of that provision did not give clear indications in that respect, it followed both from the context of that provision and the aim pursued by the EU legislature that Article 22(1) must be interpreted to that effect. 

However, the Court stressed that while, as regards sulphur dioxide, PM10, lead and carbon monoxide, the first subparagraph of Article 13(1) of Directive 2008/50 provided that Member States were to ‘ensure’ that the limit values were not exceeded, the second subparagraph of Article 13(1) stated that, as regards nitrogen dioxide and benzene, the limit values ‘may not be exceeded’ after the specified deadline, which amounted to an obligation to achieve a certain result. 

The Court stressed that, consequently, Member States must take all the measures necessary to secure compliance with that requirement and could not consider that the power to postpone the deadline, which they were afforded by Article 22(1) of Directive 2008/50, allowed them to defer, as they wished, implementation of those measures.

The Court held that Article 22(1) of Directive 2008/50 must be interpreted as meaning that, in order to be able to postpone by a maximum of five years the deadline specified by the directive for achieving conformity with the limit values for nitrogen dioxide specified in Annex XI thereto, a Member State was required to make an application for postponement when it was objectively apparent, having regard to existing data, and notwithstanding the implementation by that Member State of appropriate pollution abatement measures, that conformity with those values could not be achieved in a given zone or agglomeration by the specified deadline.

The Court held where it is apparent that conformity with the limit values for nitrogen dioxide established in Annex XI to Directive 2008/50 could not be achieved in a given zone or agglomeration of a Member State by 1 January 2010, the date specified in that annex, and that Member State had not applied for postponement of that deadline under Article 22(1) of Directive 2008/50, the fact that an air quality plan which complied with the second subparagraph of Article 23(1) of the directive had been drawn up did not, in itself, permit the view to be taken that that Member State had nevertheless met its obligations under Article 13 of the directive. 

The referring court also asked  whether Articles 4 TEU and 19 TEU and Article 30 of Directive 2008/50 must be interpreted as meaning that, where a Member State had failed to comply with the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 and had not applied for a postponement of the deadline as provided for by Article 22 of the directive, it was for the national court having jurisdiction, should a case be brought before it, to take, with regard to the national authority, any necessary measure, such as an order in the appropriate terms, so that the authority established the plan required by the directive in accordance with the conditions laid down by the latter.

The Court as a preliminary point that the reason why the interpretation of Article 30 of Directive 2008/50, which related to the system of penalties that must be implemented by the Member States, was relevant to the dispute in the main proceedings, was not sufficiently clear from the file submitted to the Court. 

As regards Article 4 TEU, the Court reiterated that under the principle of sincere cooperation laid down in paragraph 3 of that article, it was for the Member States to ensure judicial protection of an individual’s rights under EU law (see, to that effect, inter alia the judgment in Unibet, C‑432/05, EU:C:2007:163, on which I wrote this post). In addition, Article 19(1) TEU required Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law. 

The Court held that he natural or legal persons directly concerned by the limit values being exceeded after 1 January 2010 must be in a position to require the competent authorities, if necessary by bringing an action before the courts having jurisdiction, to establish an air quality plan which complied with the second subparagraph of Article 23(1) of Directive 2008/50, where a Member State had failed to secure compliance with the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 and had not applied for a postponement of the deadline as provided for by Article 22 of the directive (see, by analogy, judgment in Janecek, EU:C:2008:447, para. 39).

The Court held that, as regards the content of the plan, it followed from the second subparagraph of Article 23(1) of Directive 2008/50 that, while Member States had a degree of discretion in deciding which measures to adopt, those measures must, in any event, ensure that the period during which the limit values were exceeded was as short as possible.



Joined Cases C‑344/13 and C‑367/13, Blanco and Fabretti

Italian legislation taxing winnings from games of chance obtained abroad but exempting such winnings obtained on its territory infringing freedom to provide services

>> In Italy, winnings from casinos were subject to income tax, while winnings from casinos situated in Italy were exempt from that tax, to the extent that the taxation of winnings paid out by those casinos was included in the tax on entertainment. In essence, for people residing in Italy, only winnings obtained in casinos situated abroad were included in the basis of assessment for income tax.

When accused by the Italian tax authorities of failing to declare various winnings obtained in casinos abroad, Mr Blanco and Mr Fabretti claimed that the tax assessments infringed the principle of non-discrimination since winnings made in Italy were exempt from tax. The Italian authorities however argued that that that national legislation was aimed at preventing money laundering abroad and at limiting the flow of capital abroad (or the arrival in Italy) of capital whose origin was uncertain.

The referring court asked whether Articles 52 and 56 TFEU must be interpreted as precluding the Italian legislation concerned and, if so, whether such infringement was justified on grounds  of of public policy, public security or public health.

The Court  reiterated that the freedom to provide services under Article 56 TFEU required not only the elimination of all discrimination on grounds of nationality against providers of services established in other Member States, but also the abolition of any restriction — even if it applied without distinction to national providers of services and to those from other Member States — which was liable to prohibit, impede  or render  less attractive the activities of a provider of services established in another Member State where he lawfully provided similar services (see, inter alia, judgment in Dirextra Alta Formazione, C‑523/12, EU:C:2013:831, para. 21).

The Court also reiterated that  the provisions of the FEU Treaty on the freedom to provide services applied to an activity which enabled people to participate in gambling in return for remuneration (judgment in Zenatti, C‑67/98, EU:C:1999:514, para. 24). Moreover, the freedom to provide services was for the benefit of both providers and recipients of services (judgment in Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, para. 51).

The Court found that the Italian  legislation  gave rise to a discriminatory restriction on the freedom to provide services as guaranteed by Article 56 TFEU in relation to not only service providers but also the recipients of those services.

Moreover, according to the Court of Justice, that restriction was not justified by a need to prevent money laundering and compulsive gambling. The Court has over the years repeatedly stated that the legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States. In the absence of harmonisation in the field at EU level, it is for each Member State to determine in those areas, in accordance with its own scale of values, what is required in order to ensure that the interests in question are protected (see, inter alia, judgments in Stanleybet International and Others, C‑186/11 and C‑209/11, EU:C:2013:33, on which I wrote this post , on which I wrote this post  and Digibet and Albers, C‑156/13, EU:C:2014:1756, paragraph 24).

However,  in the present case, the Court stressed that national legislation, such as that at issue in the main proceedings, could be justified only insofar as it pursued objectives corresponding to the grounds of public policy, public security or public health within the meaning of Article 52 TFEU. In addition, the restrictions imposed by the Member States must satisfy the conditions of proportionality. The Court reiterated that national legislation was appropriate for guaranteeing attainment of the objective pursued only if it genuinely reflected a concern to attain it in a consistent and systematic manner (see, to that effect, the judgment in Engelmann, C‑64/08, EU:C:2010:506, on which I wrote this post)

The Court found that in circumstances such as those at issue in the main proceedings, the taxation by a Member State of winnings from casinos in other Member States and the exemption of such winnings from casinos situated on its territory were not a suitable and coherent means of ensuring the attainment of the objective of combatting compulsive gambling, as such an exemption is in fact likely to encourage consumers to participate in games of chance which allowed them to benefit from such an exemption  

The Court thus found that the discrimination at issue in the main proceedings was not justified under Article 52 TFEU.

Therefore, the Court foun that Articles 52 and 56 TFEU must be interpreted as precluding legislation of a Member State which subjected winnings from games of chance obtained in casinos in other Member States to income tax and exempts similar income from that tax if it was obtained from casinos in its national territory.




Case C-268/13, Petru

Reimbursement of medical expenses incurred in another Member State cannot be refused where a lack of basic medical supplies and infrastructure makes it impossible to receive hospital treatment in good time

>> Under Regulation (EEC) No 1408/71, a worker may be authorised to travel to another Member State to receive treatment appropriate to his condition, in order to receive the services needed in the same way as if he were insured under the health insurance scheme of that Member State. It is his Member State of residence, however, that reimburses the expenses incurred, that Member State may not refuse authorisation where the treatment required is among the benefits normally provided for under its legislation and where, given the worker’s state of health and the probable course of his disease, the treatment cannot be provided in good time in his Member State.

Ms Petru was a Romanian national who suffered from a serious cardiovascular disease. Her condition required her to be admitted to a specialist establishment in Timișoara, Romania (pictured).  During her time in that establishment, Ms Petru found that there was a lack of medication and basic medical supplies, and that the number of beds was insufficient. In view, also, of the complexity of the surgical procedure that she would have to undergo, Ms Petru decided to have her operation in Germany and applied to her health insurance authority to cover the costs of that surgery. The application was refused on the grounds that there was no indication in the general practitioner’s report that the healthcare service sought could not be provided in Romania within a reasonable length of time. Since the cost of the surgery amounted in total to approximately €18 000, Ms Petru applied to the Romanian authorities for reimbursement of that amount. The referring court asked whether the second subparagraph of Article 22(2) of Regulation No 1408/71 must be interpreted as meaning that the authorisation necessary under Article 22(1)(c)(i) of that regulation could not be refused where it was because of a lack of medication and basic medical supplies and infrastructure that the hospital treatment concerned could not be provided in good time in the insured person’s Member State of residence.

The Court first of all stressed that the second subparagraph of Article 22(2) of Regulation No 1408/71 laid down two conditions which, if both were satisfied, rendered mandatory the grant by the competent institution of the prior authorisation applied for on the basis of Article 22(1)(c)(i). The first condition required the treatment in question to be among the benefits provided for by the legislation of the Member State on whose territory the insured person resided. The second condition required that the treatment which the latter planned to receive in a Member State other than that of residence could not be given within the time normally necessary for obtaining the treatment in question in the Member State of residence, account being taken of his current state of health and the probable course of his disease (see  Elchinov, C‑173/09, EU:C:2010:581, paras 53 and 54). 

As regards the second condition, with which the question in the present case was concerned, the Court reiterated that the authorisation required could not be refused if the same or equally effective treatment could not be given in good time in the Member State of residence of the person concerned. The Court stressed that  in order to determine whether treatment which was equally effective for the patient can be obtained in due time in the Member State of residence, the competent institution was required to have regard to all the circumstances of each specific case and to take due account not only of the patient’s medical condition at the time when authorisation was sought and, where appropriate, of the degree of pain or the nature of the patient’s disability which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history. (see Inizan, C 56/01, EU:C:2003:578, paras. 45 and 60; and Watts, C‑372/04, EU:C:2006:325,  on which I wrote this post).

The Court held that one of the circumstances that the competent institution was required to take into account might, in a specific case, be the lack of medication and basic medical supplies and infrastructure, such as that alleged in the main proceedings.  Clearly, however, such a lack of medication and of medical supplies and infrastructure could, in the same way as the lack of specific equipment or particular expertise, made it impossible for the same or equally effective treatment to be provided in good time in the Member State of residence. The question whether that was indeed impossible had, according to the Court, be determined, first, by reference to all the hospital establishments in the Member State of residence that are capable of providing the treatment in question and, second, by reference to the period within which the treatment could be obtained in good time. 

The Court concluded that the second subparagraph of Article 22(2) of Regulation No 1408/71 must be interpreted as meaning that the authorisation necessary under Article 22(1)(c)(i) of that regulation could not be refused where it is because of a lack of medication and basic medical supplies and infrastructure that the hospital treatment concerned could not be provided in good time in the insured person’s Member State of residence. The question whether that was impossible must be determined by reference to all the hospital establishments in that Member State that were capable of providing the treatment in question and by reference to the period within which the treatment could be obtained in good time.  The Court held if the facts alleged by Ms Petru concerning the lack of medication and basic medical supplies and infrastructure at the Institutul de Boli Cardiovasculare in Timișoara were established, it would be for the referring court to determine whether that treatment could have been carried out within three months in another hospital establishment in Romania.


Case C‑34/13, Kušionová

Right to accommodation fundamental right which must be taken into consideration  when implementing UTCC Directive

>> The Unfair Terms in Consumer Contracts Directive (UTCC- Directive 93/13) has harmonised the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer. 

Mrs Kušionová had concluded a consumer credit agreement with SMART Capital for an amount of €10 000. The loan was secured by a charge on the family home. Subsequently, Mrs Kušionová brought an action for annulment of the credit agreement and the charge agreement against SMART Capital, claiming that the contractual terms binding her to that undertaking were unfair.

The referring court sought to establish whether, in the light of Articles 38 and 47 of the Charter, Directive 93/13 must be interpreted as precluding national legislation which allowed the recovery of a debt that was based on potentially unfair contract terms by the extrajudicial enforcement of a charge on immovable property provided as security by the consumer. 

The Court first of all stressed that Article 38 of the Charter provides that European Union policies must ensure a high level of consumer protection. Moreover, Article 47 of the Charter concerned
 the right to an effective judicial remedy. The Court held that hose mandatory requirements were applicable to the implementation of Directive 93/13. The  Court reiterated the system of protection introduced by Directive 93/13 was based on the idea that the consumer was in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge  (see judgments in  Pohotovosť, C‑470/12, EU:C:2014:101 and Sánchez Morcillo and Abril García, C‑169/14, EU:C:2014:2099, para 22).).

 The Court noted that Directive 93/13 was silent as to enforcement of charges. However, it is settled case-law that, in the absence of harmonisation of national mechanisms for enforcement under EU law, it was for the national legal order of each Member State to establish such rules, in accordance with the principles of procedural autonomy, provided, however, that those rules were not less favourable than those governing similar domestic situations (principle of equivalence) and that they did not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (see, inter alia, Joined Cases C-222/05 to C-225/05, van de Weerd, on which I wrote this post).

The Court held that as regards the principle of equivalence, it did not have before it any evidence which might raise doubts as to the compliance of the legislation at issue in the main proceedings with that principle.

In previous cases, the Court has already held that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies (see inter alia, Asociación de Consumidores Independientes de Castilla y León, C‑413/12, EU:C:2013:800, para. 34). Moreover, it has held that the specific characteristics of court proceedings which take place under national law between sellers or suppliers and consumers cannot constitute a factor which is liable to affect the legal protection from which consumers must benefit under the provisions of Directive 93/13 (see, to that effect, judgments in Banco Español de Crédito, C‑618/10, EU:C:2012:349, para. 55).

In the present case, the Court thus held that is was necessary to determine, in a situation such as that in the main proceedings, to what extent it was impossible in practice or excessively difficult to apply the protection conferred by that directive.  The Court held that the loss of a family home was not only such as to seriously undermine consumer rights, but it also placed the family of the consumer concerned in a particularly vulnerable position (see, to that effect, the Order of the President of the Court in Sánchez Morcillo and Abril García, EU:C:2014:1388, para. 11).

The Court pointed out that the right to accommodation was a fundamental right guaranteed under Article 7 of the Charter that the referring court must take into consideration when implementing Directive 93/13. The Court held that  the fact that it was possible for the competent national court to adopt any interim measure would suggest that adequate and effective means existed to prevent the continued use of unfair terms, which was a matter for the referring court to determine.
The Court thus found that Directive 93/13 must be interpreted as not precluding national legislation which allowed the recovery of a debt that was based on potentially unfair contractual terms by the extrajudicial enforcement of a charge on immovable property provided as security by the consumer, in so far as that legislation did not make it excessively difficult or impossible in practice to protect the rights conferred on consumers by that directive, which was a matter for the national court to determine. 


Case C-600/12, Commission v Greece

Greece infringing EU law by not prohibiting uncontrolled management of landfill site at Natura 2000 site

>> The Waste Framework Directive (Directive 2008/98, herinafter: „ WFD”) requires Member States to take the necessary measures to ensure that waste management is carried out without endangering human health and without harming the environment. Member States are also required to prohibit the abandonment, dumping or uncontrolled management of waste. In addition, all grants of landfill permits are subject to certain condition (on the basis of the landfll Directve (Directive 1999/31)) while the Habitats Directive requires that the effects of projects likely to affect a site significantly must be appropriately assessed by reference to objectives relating to the conservation of habitats and of wild fauna and flora.

National Marine Park of Zakinthos was part of the Natura 2000 network on account of the sea turtles there (Caretta caretta). However, environmental problems caused, since 1999, by landfill operations within the park had had a serious impact on the habitat of those turtles.The waste management plan for the region of the Ionian Islands had, since 2005 (the planned end- of-life date for the landfill site), in fact provided for the construction of a new landfill site in a different location on Zakinthos. In 2005, the Zakinthos Association for the Management of Solid Waste proposed five possible new landfill sites (two of those sites, which were located in a mountainous area, received positive feedback in 2008). However, the Association failed to submit an environmental impact assessment for the construction of the new landfill site. The existing landfill site was still operating in the marine park even though the permits and environmental conditions relating thereto expired in 2006. It was decided that, at the same time that rehabilitation and improvement works were being carried out on the site, the existing landfill would continue to receive waste generated on Zakinthos until the new landfill site begins operating (or until 31 December 2015 when the environmental conditions renewed in 2011 by Ministerial Decree expire). 

Taking the view that Greece was in breach of EU environmental legislation, the Commission had brought infringement proceedings before the Court of Justice. Greece had in fact already been found to have infringed EU law by the Court in a case relating to the same species in the same region (see Case C-103/00 Commission v Greece).

The Court held that Member State may not plead practical difficulties, administrative or financial to justify failure to observe obligations and time limits laid down by a directive (see, to that effect, Commission / United Kingdom C -301/10, EU: C: 2012:633). 

The Court reiterated  that the existence of an infringement must be assessed according to the situation of the Member State as it stood at the end of the deadline set in the reasoned opinion (see Commission / France, C-193/12, EU: C: 2013:394; and Commission / Spain, C-67/12, EU: C: 2014:5). The Court noted that  Greece had not taken any steps to meet its obligations under Articles 13 and 36, paragraph 1 of Directive 2008/98, ), 12 and 14 of Directive 1999/31 and 6, paragraph 3, of the Habitats  Directive. 

The Court reiterated that according to its case-law on the burden of proof in the context of infringement proceedings under Article 258 TFEU, it was for the Commission to establish the existence of alleged breach. So she must provide the Court with the information necessary to verify by it of the existence of such breach (see, to that effect, Commission / Finland, C-335/07, EU: C: 2009:612 and Commission / United Kingdom, EU: C: 2012:633). 
The Cour held that where the Commission had provided sufficient evidence, it was for the Member State concerned to challenge in substance and in detail the information produced and the consequences (see stops Commission / Finland, EU: C: 2009:612, and Commission / United Kingdom, EU: C: 2012:633). 

The Court held that although Article of the WFD left a certain margin of discretion to the Member States, the discretion had clearly been exceeded  considering that the persistence of de facto situation leading to a significant degradation of the environment  (see, to that effect, Commission / Italy, EU: C: 2010:115, and Commission / Portugal, EU: C: 2010:331). The Court thus found that Greece had  failed to fulfill its obligations under Article 13 of Directive 2008/98. 

The Court added that  by keeping in operation, on the Island of Zakinthos, an overfull landfill site which was not functioning properly and which did not comply with EU environmental legislation, Greece had also failed to fulfil its obligations under the Land fill Directive. The Court added that by renewing the landfill permit for the site in question without complying with the procedure referred to in Article 6, paragraph 3, of the Habitats Directive, Greece also infringed that Directive. 

Text of Judgment

Case C‑338/13, Noorzia

Requiring minimum age 21 by date of application reunification of spouses not infringing Directive on right to family reunification

>> The Directive on the right to family reunification (Directive 2003/86/EC) lays down the conditions under which third country nationals who reside legally in the territory of a Member State may apply for, among others, their spouse  and their children who are minors to join them. Article 4(5) of the  Directive permits Member States to fix a minimum age for the purposes of the reunification of spouses, which may not be higher than 21, an age that must be attained by the sponsor and his or her spouse prior to the latter being permitted to join the sponsor for reunification. The Directive does not, however, define the date by reference to which the national authorities must determine whether the minimum age condition is satisfied.

Austrian legislation provided that spouses and registered partners must have reached the age of 21 by the date of lodging an application to be considered eligible for family reunification. The Verwaltungsgerichtshof asks the Court of Justice whether the Directive precludes such a rule. That court was hearing a case brought by an Afghan national whose application to join her Afghan spouse residing in Austria had been refused on the ground that the latter had not yet reached the age of 21 when the application was lodged, albeit that he had reached that age when the refusal decision was taken.

The Court noted by not specifying whether national authorities must, in order to determine whether the minimum age condition was satisfied, consider the matter by reference to the date when the application seeking family reunification was lodged or the date when the application was ruled upon, the EU legislature intended to leave to the Member States a margin of discretion, subject to the requirement not to impair the effectiveness of EU law.

The Court noted that the minimum age fixed by the Member States by virtue of Article 4(5) of Directive 2003/86 ultimately corresponded with the age at which, according to the Member State concerned, a person was presumed to have acquired sufficient maturity not only to refuse to enter into a forced marriage but also to choose voluntarily to move to a different country with his or her spouse, in order to lead a family life with him or her there and to become integrated there.

The Court held that a measure requiring the sponsor and his or her spouse to have attained the prescribed minimum age by the date when the application was lodged did not prevent the exercise of the right to family reunification nor rendered it excessively difficult. The Court furthermore found that such a measure did not undermine the purpose of preventing forced marriages since it permitted the presumption that, due to greater maturity, it would be more difficult to influence the persons concerned to contract a forced marriage and accepted family reunification if they must have reached the age of 21 by the date when the application was lodged than it would be if they were under 21 at that date.

The Court moreover found that taking the date when the application for family reunification was lodged as the point by reference to which it must be determined whether the minimum age condition was satisfied was consistent with the principles of equal treatment and legal certainty.

The Court held that the condition relating to the date of lodging the application made it possible to guarantee that all applicants who were in the same situation chronologically were treated identically, by ensuring that the success of the application depended principally on circumstances attributable to the applicant and not to the administration, such as the length of time taken considering the application.

The Court thus found Article 4(5) of Directive 2003/86 must be interpreted as meaning that that provision did not preclude a rule of national law requiring that spouses and registered partners must have reached the age of 21 by the date when the application seeking to be considered family members entitled to reunification was lodged.

Text of Judgment

Case C-573/12, Ålands Vindkraft

Swedish support scheme promoting green energy production in national territory compatible with EU law

>> The Renewable Energy Directive (Directive 2009/28) allows Member States to support the production of green energy. Member States which grant benefits to producers are not required to support the use of green energy produced in another Member State.

Swedish legislation provides that green electricity production installations located on the national territory may be awarded electricity certificates. Those certificates may then be sold to electricity suppliers or to certain users, who are under an obligation to hold a certain number (quota) of certificates, corresponding to a proportion of the total quantity of electricity supplied or consumed, failing which they must pay a fee.  

Ålands Vindkraft applied  for electricity certificates in respect of its wind farm in the Åland archipelago, in Finland. The application was refused on the grounds that only green electricity production installations located in Sweden may be awarded such electricity certificates. Ålands Vindkraft challenged that administrative decision before the Swedish courts, arguing that the principle of the free movement of goods precluded the Swedish electricity certificates scheme.

Whether support system within meaning Directive 2009/28.

The referring court asks whether point (k) of the second paragraph of Article 2 and Article 3(3) of Directive 2009/28 must be interpreted as allowing a Member State to establish a support scheme which provides for the award of tradable certificates to producers of green electricity solely in respect of green electricity produced in the territory of that State and which places suppliers and certain electricity users under an obligation to deliver annually to the competent authority a certain number of those certificates, corresponding to a proportion of the total volume of electricity that they had  supplied or consumed.

The Court first of ll assessed whether a green electricity support system such as that at issue in the main proceedings constituted a ‘support scheme’ within the meaning of point (k) of the second paragraph of Article 2 and Article 3(3) of Directive 2009/28.

The Court found that  a support scheme for green electricity production using green certificates, such as that at issue in the main proceedings, had the necessary characteristics to be categorised as a ‘support scheme’ within the meaning of point (k) of the second paragraph of Article 2 and Article 3(3) of Directive 2009/28.

The referring court expressed doubts concerning the fact that the support scheme at issue in the main proceedings provided for the award of electricity certificates solely in respect of green electricity produced in the national territory. The Court however held that it was clear that, in adopting Directive 2009/28, the EU legislature left open the possibility of such a territorial limitation.

The Court found that the EU legislature did not intend to require Member States who opted for a support scheme using green certificates to extend that scheme to cover green electricity produced on the territory of another Member State. The Court thus concluded that Directive 2009/28 must be interpreted as allowing a Member State to establish a support scheme, such as that at issue in the main proceedings.

Whether legislation caught by  Article 34 TFEU

The referring court also asked whether Article 34 TFEU must be interpreted as meaning that national legislation such as that at issue in the main proceedings constituted a measure having equivalent effect to a quantitative restriction on imports for the purposes of that provision. If so, the referring court asked whether such legislation might nevertheless be justified in the light of its objective of promoting the production of green electricity.

The Court reiterated that, where a matter had been the subject of exhaustive harmonisation at EU level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in the light of primary law (see, inter alia, Radlberger Getränkegesellschaft and S. Spitz, C‑309/02, EU:C:2004:799).

The Court thus found that it was necessary to determine whether the harmonisation brought about by Directive 2009/28 ought to be regarded as being of such a kind as to preclude an examination of whether legislation such as that at issue was compatible with Article 34 TFEU. In that regard, it should be noted at the outset that, far from seeking to bring about exhaustive harmonisation of national support schemes for green energy production, the EU legislature — as is apparent, inter alia, from recital 25 to Directive 2009/28 — based its approach on the finding that Member States apply different support schemes and on the principle that it is important to ensure the proper functioning of those schemes in order to maintain investor confidence and to enable those States to define effective national measures in order to achieve their mandatory national overall targets under the directive. The Court that it could not be considered that, in covering that aspect of the territorial scope of national support schemes, the harmonisation brought about by Directive 2009/28 in the field of support schemes was of such a kind as to preclude an examination of their compatibility with Article 34 TFEU. 

Whether existence of barrier to trade

The Court stressed that the free movement of goods between Member States was a fundamental principle of the Treaty which found its expression in the prohibition set out in Article 34 TFEU (see, inter alia, Commission v Denmark, C‑192/01, EU:C:2003:492).

Reiterating its famous Dasonville case law, the Court held that in prohibiting between Member States measures having equivalent effect to quantitative restrictions on imports, Article 34 covered any national measure capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see, inter alia, Dassonville, 8/74, EU:C:1974:82, and PreussenElektra, EU:C:2001:160).

As it is, it must be noted in that regard that the legislation at issue is capable, in various ways, of hindering — at least indirectly and potentially — imports of electricity, especially green electricity, from other Member States.

In the first place, it follows from that legislation that suppliers and certain consumers are required to hold on the annual due date a certain number of electricity certificates for the purposes of meeting their quota obligation, which depends on the total volume of electricity that they supply or consume. However, in the absence, inter alia, of an international agreement to that effect, only certificates awarded under the national scheme could be used to meet that obligation. Accordingly, those suppliers and consumers were as a rule required, on the basis of the electricity that they import, to purchase such certificates, failing which they had to pay a specific fee.Such measures were thus capable of impeding electricity imports from other Member States (see, inter alia, by analogy, Ligur Carni and Others, C‑277/91, C‑318/91 and C‑319/91, EU:C:1993:927).

In the second place, the referring court noted both in its order and in its questions that, although green electricity producers might, in the context of the support scheme established by the legislation at issue in the main proceedings, trade their electricity certificates on an open, competitive market that was dedicated to that trade, there was nothing in that legislation to stop the producers from selling those certificates together with the electricity that they produced, as a package.The existence of such a possibility seemed capable in practice of facilitating the opening of negotiations and the establishment of contractual relationships — in some cases, on a long-term basis — concerning the supply of national electricity by those producers to suppliers or electricity users, the latter being able to obtain, in that way, both the electricity and the green certificates that they needed in order to meet their quota obligation. The Court thus found that, to that extent also, the effect of the support scheme at issue in the main proceedings was, at least potentially, to curb electricity imports from other Member States (see, to that effect, Commission v Ireland, 249/81, EU:C:1982:402).

In that context, the Court noted that failure by a Member State to adopt adequate measures to prevent barriers to the free movement of goods that had been created, in particular, through the actions of traders but made possible by specific legislation that that State had introduced, is just as likely to obstruct intra-Community trade as is a positive act (see Commission v France, C‑265/95, EU:C:1997:595, and Schmidberger, C‑112/00, EU:C:2003:333, paragraph 58).

The Court thus concluded that t legislation such as that at issue in the main proceedings was capable of impeding imports of electricity, especially green electricity, from other Member States and that, in consequence, it constituted a measure having equivalent effect to quantitative restrictions on imports, in principle incompatible with the obligations under EU law resulting from Article 34 TFEU, unless that legislation could be objectively justified (see, to that effect, inter alia, Commission v Austria, C‑320/03, EU:C:2005:684).

Whether a possible justification
The Court stressed that national legislation or a national practice that constituted a measure having equivalent effect to quantitative restrictions might be justified on one of the public interest grounds listed in Article 36 TFEU or by overriding requirements. In either case, the national provision must, in accordance with the principle of proportionality, be appropriate for ensuring attainment of the objective pursued and must not go beyond what is necessary in order to attain that objective (see, inter alia, Commission v Austria, C‑524/07, EU:C:2008:717).


1. The objective of promoting the use of renewable energy sources

 According to settled case-law, national measures that are capable of hindering intra-Community trade may inter alia be justified by overriding requirements relating to protection of the environment (see, to that effect, Commission v Austria, EU:C:2008:717, paragraph 57 and the case-law cited).

In the present case,   the Court noted that the use of renewable energy sources for the production of electricity, which legislation such as that at issue in the main proceedings sought to promote, was useful for the protection of the environment inasmuch as it contributed to the reduction in greenhouse gas emissions. The Court stressed that the the increase in the use of renewable energy sources constituted one of the important components of the package of measures needed to reduce greenhouse gas emissions and to comply with the Kyoto Protocol to the United Nations Framework Convention on Climate Change, and with other Community and international greenhouse gas emission reduction commitments beyond the year 2012.

The Court found that the objective of promoting the use of renewable energy sources for the production of electricity, such as the objective pursued by the legislation at issue in the main proceedings, was in principle capable of justifying barriers to the free movement of goods.

2. Proportionality 

The Court held the by its very nature, a scheme such as in the present case required for its proper functioning market mechanisms that were capable of enabling traders — who were subject to the quota obligation and who did not yet possess the certificates required to discharge that obligation — to obtain certificates effectively and under fair terms. The Court stressed that it was therefore important that mechanisms be established which ensured the creation of a genuine market for certificates in which supply could match demand, reaching some kind of balance, so that it was actually possible for the relevant suppliers and users to obtain certificates under fair terms.

According to the findings of the referring court, the green certificates were actually sold, in the Member State concerned, on a market that was open to competition and, accordingly, the price of those certificates was determined by the interplay of supply and demand.

The Court held that provided that there was a market for green certificates which actually met the conditions set out above and on which traders who had imported electricity from other Member States were genuinely able to obtain certificates under fair terms, the fact that the national legislation at issue in the main proceedings did not prohibit producers of green electricity from selling to traders under the quota obligation both the electricity and the certificates did not mean that the legislation went beyond what was necessary to attain the objective of increasing the production of green electricity. The fact that such a possibility remains open appeared to be an additional incentive for producers to increase their production of green electricity.

The Court thus concluded that Article 34 TFEU must be interpreted as not precluding national legislation which provided for the award of tradable certificates to green electricity producers solely in respect of green electricity produced in the territory of the Member State concerned and which places suppliers and certain electricity users under an obligation to surrender annually to the competent authority a certain number of those certificates, corresponding to a proportion of the total volume of electricity that they had  supplied or used, failing which they must pay a specific fee.


Text of Judgment