JUDGMENT OF THE COURT OF 20 JANUARY 2021, C-619/19, LAND BADEN WÜRTTEMBERG (COMMUNICATIONS INTERNES)
SOURCE: Monthly Case-law Digest - January 2021
Reference for a preliminary ruling – Environment – Aarhus Convention – Directive 2003/4/EC – Public access to environmental information – ‘Stuttgart 21’ infrastructure project – Refusal of a request for environmental information – Article 4(1) – Grounds for refusal – Term ‘internal communications’ – Scope – Limitation in time of the protection of such communications
In October 2010, trees were felled in Stuttgart Castle Park, Baden-Württemberg (Germany), for the purpose of carrying out the ‘Stuttgart 21’ infrastructure and urban development project. In that context, D.R., a natural person, sent a request to the State Ministry of the Land of Baden-Württemberg seeking access to certain documents. Those documents involve, first, an item of information transmitted to that ministry relating to the work of a committee of inquiry in respect of a police operation preceding the felling of the trees and second, notes of that ministry relating to the carrying out of a conciliation procedure in connection with the ‘Stuttgart 21’ project. The request for access was refused.
The legal action brought by D.R. against the decision refusing access was upheld by the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg, Germany), according to which no ground for refusing access applied to the documents requested. That court held inter alia that the ground for refusal applicable to ‘internal communications’ of public authorities can no longer be relied upon once the decision-making process of the authority concerned has been completed. That ground for refusing access is laid down by the legislation transposing into German law the directive concerning public access to environmental information, which gives the Member States the power to establish such an exception to the public’s right of access. The Bundesverwaltungsgericht (Federal Administrative Court, Germany), before which an appeal on a point of law was brought, proceeded on the basis of the premiss that D.R. had requested access to environmental information within the meaning of the directive concerning public access to environmental information. Since it had doubts as to the scope and as to the limitation in time of the ground, referred to in the directive, enabling access to ‘internal communications’ to be refused, it decided to submit questions to the Court on those matters.
Findings of the Court
First of all, the Court considers the interpretation of the concept of ‘internal communications’ of public authorities, within the meaning of the directive concerning public access to environmental information. As regards, first, the word ‘communication’, the Court observes that this word relates to information addressed by an author to someone, an addressee who or which may be an abstract entity or a specific person belonging to such an entity. That interpretation is supported by the context of the exception that the Member States may lay down for internal communications. The directive adopts the distinction established by the Aarhus Convention between the term ‘material’, which does not necessarily concern information that is addressed to someone, and the term ‘communication’.
As regards, second, the word ‘internal’, the Court observes that only environmental information which does not leave the internal sphere of a public authority is considered to be ‘internal’. That also applies to information from an external source after it has been received, provided that it has not been disclosed to a third party or been made available to the public. That interpretation is supported by the objective, pursued by the exception available to the Member States, of ensuring that public authorities have a protected space in order to engage in reflection and to pursue internal discussions. The Court states, in that regard, that the fact that an item of environmental information may be liable to leave the internal sphere of a public authority at a given time cannot cause the communication containing it to cease immediately to be internal in nature. Whilst exceptions to the right of access are to be interpreted strictly, that cannot limit the scope of the exception for internal communications in disregard of the directive’s wording.
Consequently, the term ‘internal communications’ encompasses all information which circulates within a public authority and which, on the date of the request for access, has not left that authority’s internal sphere – as the case may be, after being received by that authority, provided that it was not or should not have been made available to the public before it was so received.
Next, the Court examines the temporal applicability of the ground for refusal of access to environmental information included in internal communications. It states, in that regard, that its applicability is not limited in time and does not depend on the drawing up of a document or on the progress in or completion of some administrative process. However, refusal of access to environmental information because it is included in an internal communication must always be founded on a weighing of the interests involved in the particular case. Indeed, in the light of the particularly broad material scope of that exception, the weighing of the interests, which must be carried out on the basis of an actual examination of each situation, is especially important and must therefore be tightly controlled. In carrying out that examination, the public authority to which a request for access has been made is required to consider, in any event, reasons which may support disclosure, such as bringing about a free exchange of views, more effective participation by the public in environmental decision-making or a better environment. It must also examine any particulars provided by the applicant that support disclosure of the information sought, without the applicant being required to set out a specific interest justifying disclosure.
Furthermore, when the information requested is contained in an internal communication, the public authority must take into account the time that has passed since that communication and the information contained in it were drawn up. That authority may take the view that, in the light of the time that has passed since it was drawn up, such information is no longer sensitive. Accordingly, the Court states that the exception to the right of access that the Member States may lay down for internal communications can apply only for the period during which protection of the information sought is justified.
Finally, the Court states that the weighing of interests must be capable of being checked and be amenable to administrative and judicial review at national level. In order to meet that requirement, a decision refusing access must be notified to the applicant and set out why there is a foreseeable risk that the disclosure of information could specifically and actually undermine the interest protected by the exception relied upon.
SOURCE: Monthly Case-law Digest – May 2021
Law governing the institutions – European citizens’ initiative – Trade with territories under military occupation – Refusal of registration – Manifest lack of powers of the Commission – Article 4(2)(b) of Regulation (EU) No 211/2011 – Common commercial policy – Article 207 TFEU – Common foreign and security policy – Article 215 TFEU – Obligation to state reasons – Article 4(3) of Regulation No 211/2011
On 5 July 2019 Mr Tom Moerenhout and six other citizens communicated to the European Commission, in accordance with the regulation on the citizens’ initiative, a proposed citizens’ initiative entitled ‘Ensuring Common Commercial Policy conformity with EU Treaties and compliance with international law’ (‘the proposed ECI’).
In accordance with the requirements laid down in that regulation, 8 the subject matter and the objectives of the proposed initiative, along with the provisions of the Treaties considered relevant by the citizens for the proposed action, were provided. In accordance with its subject matter, the proposed initiative sought the adoption of provisions regulating commercial transactions with an Occupant’s entities based or operating in occupied territories by withholding products originating from there from entering the EU market.
In that regard, the applicants referred to various provisions of the Treaties, the Charter of Fundamental Rights of the European Union, several regulations and Court of Justice judgments, and provisions and sources of international law. By decision of 4 September 2019 (‘the contested decision’), the Commission refused to register the proposed ECI. The reason it gave for that refusal was that a legal act covering the subject matter of the proposed ECI could be adopted only on the basis of Article 215 TFEU, which requires that a decision be adopted which provides for the interruption or reduction, in part or completely, of economic and financial relations with the third country concerned. However, the Commission found that it did not have the power to submit a proposal for a legal act on that basis. By its judgment, delivered in extended composition, the General Court annuls the contested decision because it does not contain enough information to make it possible for the applicants to know the reasons for the refusal to register the proposed ECI and for the General Court to exercise its power of review of the lawfulness of that refusal. That decision does not comply with the duty to state reasons arising from the Treaty and the regulation on the citizens’ initiative. The General Court accordingly explains the extent of the Commission’s duty to state reasons when it refuses to register a proposed ECI which has been submitted under that regulation.
The General Court’s assessment
The General Court notes that the objectives of the regulation on the citizens’ initiative are to reinforce European citizenship, enhance the democratic functioning of the European Union, encourage the participation of citizens in democratic life, and make the European Union more accessible. It states that the attainment of those objectives would be seriously compromised if a decision refusing a proposed ECI does not have a full statement of reasons. Under that regulation, a proposed citizens’ initiative is to be registered by the Commission provided that that proposed initiative does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act of the European Union for the purpose of implementing the Treaties.
In the present case, the General Court finds that the contested decision does not state sufficient reasons for the Commission’s lack of competence to submit a proposal able to respond to the subject matter and objectives of the proposed ECI. After reiterating the principles of the duty to state reasons for acts of the institutions, the General Court describes the factors which had to be taken into consideration in order for the contested decision to have an sufficient statement of reasons concerning the Commission’s lack of competence for the purpose of the regulation on the citizens’ initiative.
In the first place, the General Court observes that simply referring to Article 215 TFEU, on restrictive measures, does not make it possible to understand why the Commission considered that the proposed action came exclusively within the scope of the Common Foreign and Security Policy (CFSP). The Commission did not explain why it considered that the measure envisaged by the proposed ECI had to be categorised as aiming at an act providing for the interruption or reduction of commercial relations with one or more third countries for the purposes of Article 215(1) TFEU.
In the second place, it observes that the assessment of whether the statement of reasons is sufficient must take account of the relevant context. In their proposed ECI, the applicants referred, explicitly and repeatedly, to the common commercial policy and to provisions relating to that area, such as Article 207 TFEU. In the present case, it was therefore for the Commission to explain the reasons which led it to conclude, implicitly in the contested decision, that the measure aimed at by the proposed ECI, in the light of its subject matter and objectives, did not fall within the scope of the common commercial policy and could not, therefore, be adopted on the basis of Article 207 TFEU. That assessment was of fundamental importance in the Commission decision refusing to register the proposed ECI since, unlike the CFSP, the common commercial policy is an area in which the Commission has the power to draw up a proposal for an EU act on the basis of Article 207 TFEU. In the third place, the General Court states that the adequacy or otherwise of the statement of reasons for the contested decision must also be assessed in the light of the objectives of the provisions of the Treaties 13 and the regulation on the citizens’ initiative, consisting in encouraging the participation of citizens in democratic life and making the European Union more accessible. On account of those objectives, the Commission was obliged to make clear the reasons justifying the refusal to register the proposed ECI. In the absence of a full statement of reasons, the Commission’s objections to the admissibility of the proposed ECI could seriously compromise the possible submission of a new proposed ECI. Consequently, the General Court annuls the contested decision owing to an inadequate statement of reasons.
SOURCE: Monthly Case-law Digest - January 2021
Reference for a preliminary ruling – Competition – Penalties imposed by the national competition authority – Limitation period – Actions interrupting the limitation period – National legislation precluding, after the initiation of an investigation, the possibility that subsequent action for the purpose of proceedings or investigation may interrupt the new limitation period – Principle that national law must be interpreted in conformity with EU law – Regulation (EC) No 1/2003 – Article 25(3) – Scope – Article 4(3) TEU – Article 101 TFEU – Principle of effectiveness
On 7 September 2009, the Consiliul Concurenţei (Competition Authority, Romania) commenced an investigation on the retail food market against several undertakings, including Whiteland Import Export SRL (‘Whiteland’), in order to ascertain whether those undertakings had infringed the rules of competition law, in particular those laid down in Article 101 TFEU. The undertakings were accused of having concluded anticompetitive agreements between 2006 and 2009 aimed at distorting and impeding competition on the relevant market, by fixing the selling and resale price of the suppliers’ products. By decision of 14 April 2015, the Competition Authority imposed fines on them. Finding that, under the national rules applicable, the limitation period had expired when the Competition Authority adopted its decision, the Curtea de Apel București (Court of Appeal, Bucharest, Romania), hearing an action brought by Whiteland, annulled that decision in so far as it concerned that company. After finding that the limitation period had started to run on 15 July 2009, the date on which the infringement of which Whiteland was accused had ended, that court held that the decision of 7 September 2009 to initiate the investigation had interrupted the limitation period and caused a new limitation period to start to run, expiring on 7 September 2014. It stated that, under a strict interpretation of the national rules governing limitation periods, the measures taken by the Competition Authority after the decision to initiate the investigation were not capable of interrupting the new limitation period and, therefore, that decision is the last action of that authority which is capable of interrupting that period. In addition, that same court held that Article 25(3) of Regulation No 1/2003, concerning the interruption of the limitation period, applied only to the European Commission and did not govern limitation periods for the imposition of fines by national competition authorities It is in that context that the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania, ‘the referring court’), hearing an appeal brought by the Competition Authority against the judgment of the Curtea de Apel București (Court of Appeal, Bucharest), asked the Court of Justice, in essence, whether national courts are required to apply Article 25(3) of Regulation No 1/2003 to the time-barring of a national competition authority’s powers to impose penalties for infringements of EU competition law.
The referring court also requested the Court of Justice to clarify, in essence, whether Article 4(3) TEU and Article 101 TFEU, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation, as interpreted by the national courts having jurisdiction, according to which the decision to initiate an investigation, adopted by the national competition authority, concerning an infringement of EU competition law rules, is the final action of that authority which may have the effect of interrupting the limitation period relating to its power to impose penalties and excludes any subsequent action, for the purpose of proceedings or the investigation, from interrupting that period.
Findings of the Court
As regards the first question, the Court states that national courts are not required to apply Article 25(3) of Regulation No 1/2003 to the time-barring of a national competition authority’s powers to impose penalties for infringements of EU competition law. In that regard, it points out that, in the present case, the possible relevance of Article 25(3) of Regulation No 1/2003 – according to which any action taken by the Commission or by the competition authority of a Member State for the purpose of the investigation or proceedings in respect of an infringement is to interrupt the limitation period for the imposition of fines or periodic penalty payments – depends entirely on whether that provision is applicable to the factual situation in the main proceedings. The Court finds that, in the light of the context of which that provision forms part and its purpose, the provision governs only the powers available to the Commission in relation to penalties. It follows that that same provision does not lay down limitation rules relating to the national competition authorities’ powers to impose penalties. As regards the second question, the Court notes, at the outset, that, in the absence of binding regulation under EU law on the subject, it is for Member States to establish and apply national rules on limitation periods for the imposition of penalties by national competition authorities, including the procedures for suspension and/or interruption. However, the establishment and application of those rules may not render the implementation of EU law impossible in practice or excessively difficult. Consequently, for the purposes of not detracting from the full and uniform application of EU law and not introducing or maintaining in force measures which may render ineffective the competition rules applicable to undertakings, the Court makes clear that Member States must ensure that national rules laying down limitation periods are devised in such a way as to strike a balance between, on the one hand, the objectives of providing legal certainty and ensuring that cases are dealt with within a reasonable time as general principles of EU law and, on the other, the effective and efficient application of Articles 101 and 102 TFEU, in order to safeguard the public interest in preventing the operation of the internal market being distorted by agreements or practices harmful to competition.
The Court notes that account must be taken of the specific features of competition law cases and in particular of the fact that those cases require, in principle, a complex factual and economic analysis. Consequently, national legislation laying down the date from which the limitation period starts to run, the duration of that period and the rules for suspending or interrupting it must be adapted to the specific features of competition law and the objectives of applying the rules of that law by the persons concerned, so as not to prejudice the full effectiveness of the EU competition law rules. The Court also finds that national rules on limitation which, for reasons inherent to them, are systematically an obstacle to the imposition of effective and dissuasive penalties for infringements of EU competition law are liable to render application of the rules of that law impossible in practice or excessively difficult. In the present case, according to a strict interpretation of the national rules governing limitation periods at the material time – adopted in some of the national case-law, and in particular by the Curtea de Apel București (Court of Appeal, Bucharest) in the context of the main proceedings – the decision to initiate an investigation for the purpose of proceedings or investigation in respect of an infringement of the rules of competition law is the final action of the national competition authority which may have the effect of interrupting the limitation period relating to its power to impose penalties; none of the actions subsequently taken for the purpose of the investigation or proceedings in respect of the infringement can interrupt that period, even if the taking of such forms of action would constitute an important stage in the investigation and show that authority’s willingness to prosecute the infringement.
In those circumstances, the Court concludes that such a strict interpretation of the national legislation appears likely to compromise the effective application of the rules of EU law by national competition authorities. Indeed, such an interpretation, totally prohibiting the limitation period from being interrupted by action taken subsequently in the course of the investigation, could present a systemic risk that acts constituting infringements of EU law may go unpunished. It is, however, for the referring court to determine whether that is the case here. If that should prove to be the case, the Court finds that it is for the referring court to interpret the national legislation at issue so far as at all possible in the light of EU law, and particularly the rules of EU competition law, as interpreted by the Court, or, as necessary, disapplying that legislation. In that regard, the Court notes that the question whether a national provision must be disapplied, in so far as it conflicts with EU law, arises only if no interpretation of that provision in conformity with EU law proves possible. However, in the present case, it is apparent from the order for reference that such an interpretation appears possible, which it is, however, for the referring court ultimately to ascertain.
SOURCE: Monthly Case-law Digest - February 2021
Reference for a preliminary ruling – Approximation of laws – Directive 2003/6/EC – Article 14(3) – Regulation (EU) No 596/2014 – Article 30(1)(b) – Market abuse – Administrative sanctions of a criminal nature – Failure to cooperate with the competent authorities – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union – Right to remain silent and to avoid self-incrimination
On 2 May 2012, the Commissione Nazionale per le Società e la Borsa (Consob) (National Companies and Stock Exchange Commission, Italy) imposed on DB penalties totalling EUR 300 000 for an administrative offence of insider dealing committed in 2009. It also imposed on him a penalty of EUR 50 000 for failure to cooperate. DB, after applying on several occasions for postponement of the date of the hearing to which he had been summoned in his capacity as a person aware of the facts, had declined to answer the questions put to him when he appeared at that hearing.
Following the dismissal of his appeal against those penalties, DB brought an appeal on a point of law before the Corte suprema di cassazione (Supreme Court of Cassation, Italy). On 16 February 2018, that court referred an interlocutory question of constitutionality to the Corte costituzionale (Constitutional Court, Italy) concerning the provision of Italian law on the basis of which the penalty for failure to cooperate was imposed. That provision penalises anyone who fails to comply with Consob’s requests in a timely manner or delays the performance of that body’s supervisory functions, including with regard to the person in respect of whom Consob alleges an offence of insider dealing. The Corte costituzionale (Constitutional Court) pointed out that, under Italian law, insider dealing constitutes both an administrative offence and a criminal offence. It then noted that the provision concerned was adopted in performance of a specific obligation under Directive 2003/6 and now implements a provision of Regulation No 596/2014. Next, it asked the Court whether those measures are compatible with the Charter of Fundamental Rights of the European Union (‘the Charter’) and, in particular, the right to remain silent.
The Court, sitting as the Grand Chamber, recognises the existence, for natural persons, of a right to silence, protected by the Charter, and holds that Directive 2003/6 and Regulation No 596/2014 allow Member States to respect that right in an investigation carried out in respect of such persons and capable of establishing their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability.
Findings of the Court
In the light of the case-law of the European Court of Human Rights on the right to a fair trial, the Court emphasises that the right to silence, which lies at the heart of the notion of a ‘fair trial’, precludes, inter alia, penalties being imposed on natural persons who are ‘charged’ for refusing to provide the competent authority, under Directive 2003/6 or Regulation No 596/2014, with answers which might establish their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability.
The Court states, in that regard, that the case-law relating to the obligation on undertakings to provide, in proceedings that may lead to the imposition of penalties for anticompetitive conduct, information which may subsequently be used to establish their liability for such conduct cannot apply by analogy to establish the scope of the right to silence of natural persons charged with insider dealing. The Court adds that the right to silence cannot, however, justify every failure to cooperate on the part of the person concerned with the competent authorities, such as refusing to appear at a hearing planned by those authorities or using delaying tactics designed to postpone it. Finally, the Court notes that both Directive 2003/6 and Regulation No 596/2014 lend themselves to an interpretation which is consistent with the right to silence, in that they do not require penalties to be imposed on natural persons for refusing to provide the competent authority with answers which might establish their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability. In those circumstances, the absence of an express prohibition against the imposition of a penalty for such a refusal cannot undermine the validity of those measures. It is for the Member States to ensure that natural persons cannot be penalised for refusing to provide such answers to the competent authority.
SOURCE: Monthly Case-law Digest – April 2021
Reference for a preliminary ruling – Equal treatment between persons irrespective of racial or ethnic origin – Directive 2000/43/EC – Article 7 – Protection of rights – Article 15 – Sanctions – Action for compensation based on an allegation of discrimination – Defendant acquiescing to a claim for compensation without recognition on its part of the discrimination alleged – Connection between the compensation paid and the discrimination alleged – Article 47 of the Charter of Fundamental Rights of the European Union – Right to effective judicial protection – National procedural rules preventing the court seised from ruling on whether there was discrimination as alleged, despite the express request of the claimant
In 2015, the captain on board an internal Swedish flight operated by the airline Braathens Regional Aviation AB (‘Braathens’) decided to subject a passenger of Chilean origin resident in Stockholm (Sweden) to an additional security check. Acting on behalf of the passenger, who considered that he had been the subject of discrimination for reasons connected with his physical appearance and ethnicity, the Diskrimineringsombudsmannen (Equality Ombudsman) asked the Stockholms tingsrätt (District Court, Stockholm, Sweden) to order Braathens to pay that passenger compensation for discrimination. Braathens agreed to pay the sum claimed without however recognising the existence of any discrimination.
The first instance court therefore ordered the payment of that sum but declared inadmissible the Equality Ombudsman’s claims seeking a declaratory judgment making a finding of the existence of discrimination. That court considered that, under Swedish procedural law, it was bound by Braathens’ acquiescence and was thus required to dispose of the litigation without examining whether there had been any discrimination. After having unsuccessfully appealed against the judgment of the first instance court, the Equality Ombudsman brought an appeal before the referring court, the Högsta domstolen (Supreme Court, Sweden).
Having doubts as to whether the Swedish legislation complies with the requirements of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which guarantees every person the right to an effective judicial remedy, the Supreme Court decided to refer a question to the Court of Justice as to whether, where a defendant acquiesces to a claimant’s claim for compensation, the court seised must nevertheless be able to examine the question of the existence of discrimination upon the request of the party who considers that he or she was subject to it.
Findings of the Court
At the outset, the Court recalls that the purpose of Directive 2000/43 is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment. Compliance with that principle requires the effective judicial protection of the right to equal treatment of persons who consider themselves victims of such discrimination, whether those persons act directly or through the intermediary of an association, organisation or other legal entity. In addition, the sanctions put in place in order to transpose that directive into the national legal order of a Member State must ensure real and effective judicial protection of the rights that are derived from it. The severity of the sanctions must be commensurate to the seriousness of the breaches for which they are imposed, in particular by ensuring a genuinely dissuasive effect, while complying with the general principle of proportionality.
In that regard, the Court holds that Articles 7 and 15 of Directive 2000/43, read in the light of Article 47 of the Charter, precludes a national law which prevents a court that is seised of an action for compensation based on an allegation of discrimination prohibited by that directive from examining the claim seeking a declaration of the existence of that discrimination where the defendant agrees to pay the compensation claimed without however recognising the existence of that discrimination.
In the first place, it follows from Article 7 of Directive 2000/43 that any person who considers himself or herself to have been the victim of discrimination based on racial or ethnic origin must be able, in the context of proceedings to assert rights derived from the principle of equal treatment, to obtain a ruling from the court on the possible breach of those rights, if the defendant does not recognise the discrimination alleged. Therefore, the payment of the monetary amount alone is not capable of ensuring effective judicial protection for a person who seeks to obtain a ruling of the existence of such a breach. In the second place, such a national law is contrary to both the compensatory function and the dissuasive function required of the sanctions laid down by the Member States in accordance with Article 15 of Directive 2000/43.
The payment of a sum of money is insufficient to meet the claims of a person who seeks primarily to obtain recognition, by way of compensation for the non-material damage suffered, of the fact that he or she has been the victim of discrimination. Similarly, the requirement to pay a sum of money cannot ensure a truly deterrent effect as regards the author of the discrimination where, as in the present case, the defendant contests the existence of any discrimination but considers it more advantageous, in terms of cost and reputation, to pay the compensation claimed by the claimant. The Court also states that the option of bringing criminal proceedings does not make it possible, due to the specific purposes that such proceedings pursue and the constraints inherent therein, to remedy the failure of civil law remedies to comply with the requirements of that directive.
In the third place, the Court emphasises that that interpretation is not called into question by procedural law principles or considerations, such as the principle that the subject matter of an action is defined by the parties, the principle of procedural economy, and the concern to promote the amicable settlement of disputes. First, a national law such as that at issue in the main proceedings has the effect of transferring the control of the dispute to the defendant, since the claimant may no longer, where the defendant acquiesces to pay the compensation claimed, obtain from the court hearing the case a ruling on the cause on which the claim is based, nor may the claimant prevent the termination of the case brought on his or her initiative. Second, a national court would not in any way infringe the principle that the subject matter of an action is defined by the parties if, despite the defendant’s acquiescence to pay the compensation claimed by the claimant, it examined the existence or otherwise of the discrimination alleged by the latter, since that examination would consider the cause on which the claimant’s claim for compensation is based, which is the subject matter of the dispute. Finally, in the fourth place, the Court recalls that EU law does not as a general rule require Member States to create before their national courts remedies to ensure the protection of rights that parties derive from EU law other than those established by national law.
However, it observes that, in the present case, compliance with EU law does not require the creation of a new right of action, but merely that the referring court refuse to apply a procedural rule which prevents it from ruling on the existence of the discrimination alleged; and that this is so owing to the incompatibility of that rule not only with Articles 7 and 15 of Directive 2000/43 but also with Article 47 of the Charter. Those articles of the directive merely give specific expression to the right to effective judicial protection, as guaranteed by Article 47 of the Charter, which is sufficient in itself to confer on individuals a right which they may rely on as such in a dispute between private persons.
As it has not suspended the application of the provisions of national legislation relating, in particular, to the areas of jurisdiction of the Disciplinary Chamber of the Supreme Court, Poland is ordered to pay the European Commission a daily penalty payment in an amount of €1 000 000...
Click on the file to read more...
SOURCE: Monthly Case-law Digest - May 2021
Reference for a preliminary ruling – Inland transport of dangerous goods – Directive 2008/68/EC – Article 5(1) – Concept of ‘construction requirement’ – Prohibition on laying down more stringent construction requirements – Authority of a Member State requiring a service station to be supplied with liquefied petroleum gas (LPG) only from road tankers fitted with a particular heat-resistant lining not provided for by the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) – Unlawfulness – Decision legally unchallengeable by a category of persons – Strictly limited possibility of obtaining the annulment of such a decision where there is clear conflict with EU law – Principle of legal certainty – Principle of effectiveness
X, a Netherlands resident living in the vicinity of a service station which sells, inter alia, liquefied petroleum gas (LPG), wishes to put an end to that sale on grounds of safety. She therefore requested the College van burgemeester en wethouders van de gemeente Purmerend (Board of the Mayor and Aldermen of the municipality of Purmerend, Netherlands) to withdraw the environmental licence issued to that service station. Although it rejected that request, the Board took a decision by which it imposed two additional requirements on that service station regarding the way it is supplied with LPG. One of those requirements provides that that supply must henceforth be carried out solely by road tankers that are fitted with a particular heat-resistant lining capable of delaying the ‘boiling liquid expanding vapour explosion’ scenario by at least 75 minutes after the start of a fire. Taking the view that the additional requirements imposed by the administrative decision should be annulled on the ground that they could not be implemented because they were incompatible with Directive 2008/68, X brought an action before the rechtbank Noord-Holland (District Court, North Holland, Netherlands). After that action was dismissed, X brought an appeal before the Raad van State (Council of State, Netherlands).
In those circumstances, that court stayed the proceedings in order to refer questions to the Court on the interpretation of Article 5(1) of Directive 2008/68. First, it asks whether that provision precludes a requirement such as that relating to the particular heat-resistant lining at issue. Second, it seeks to ascertain whether the principle of effectiveness, under which a national procedural provision must not make the application of EU law impossible or excessively difficult, precludes a rule of Netherlands law which provides that, in order for a requirement contrary to EU law, imposed by an administrative decision which is legally unchallengeable by a category of persons, to be annulled on the ground that it would be unenforceable if it were implemented by a subsequent decision, the person must establish that it is clearly contrary to EU law.
Findings of the Court
In the first place, the Court notes that it is clear from the wording of Article 5(1) of Directive 2008/68 that, as regards the national transport of dangerous goods carried out inter alia by vehicles registered or put into circulation within their territory, Member States may not apply more stringent construction requirements on grounds of transport safety. Although Directive 2008/68 does not define the concept of ‘construction requirements’, it provides that the transport of dangerous goods must be carried out in compliance with the conditions laid down in the European Agreement concerning the International Carriage of Dangerous Goods by Road. In the present case, given that the ADR contains ‘construction requirements’, that concept must be understood by reference to the corresponding requirements contained in the ADR. However, none of the construction requirements provided for by the ADR corresponds to a requirement for a heat-resistant lining such as that at issue in the main proceedings. Accordingly, such a lining constitutes a more stringent construction requirement, prohibited by Article 5(1) of Directive 2008/68. The Court adds that that provision, which imposes a clear, general and absolute prohibition, precludes any measure taken by a Member State, including a measure adopted by a municipal authority in the form of an individual administrative decision, which would run counter to that prohibition, even if that measure only indirectly imposed a construction requirement on the operators of road tankers ensuring the supply of LPG to the addressee of that measure. In addition, the use by the national authorities of instruments introduced to ensure that road tankers transporting LPG comply with the requirement relating to the particular heat-resistant lining cannot justify an administrative decision imposing a construction requirement prohibited by Article 5(1) of Directive 2008/68. Furthermore, the Court points out that Article 1(5) of Directive 2008/68 also does not allow Member States to lay down more stringent construction requirements than those provided for by the ADR. Under that provision, a Member State may prohibit or regulate the inland transport of dangerous goods strictly for reasons other than safety during transport. Construction requirements are intended to increase transport safety. Accordingly, Member States cannot lay down, pursuant to Article 1(5) of that directive, transport safety rules other than those laid down in that directive and in Annexes A and B to the ADR, otherwise they would risk jeopardising the dual objective of harmonising safety rules and ensuring the proper functioning of the common transport market.
In the second place, the Court examines the compatibility with EU law of the national procedural rule of the ‘clearness test’, which allows an individual to obtain a finding that a requirement in a final administrative decision cannot be enforced and to obtain, as a consequence, the annulment of that requirement, on condition that a clear conflict between that requirement and EU law is established. According to the Court, that rule seeks to strike a fair balance between the principles of legal certainty and of legality under EU law, by giving preponderant weight to the finality of the requirement in question in order to safeguard legal certainty, while allowing, under strict conditions, exceptions thereto. In the light of that objective, the principle of effectiveness does not, in principle, preclude such a rule. However, in order to ensure that that objective is actually achieved, the clearness test should not be applied so strictly that the condition of clear incompatibility with EU law renders illusory in practice the possibility, for an individual, of obtaining the effective annulment of the requirement at issue.
SOURCE: Monthly Case-law Digest - July 2021
Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Prohibition of discrimination on the grounds of religion or belief – Internal rule of a private undertaking prohibiting the wearing of any visible political, philosophical or religious sign or the wearing of conspicuous, large-sized political, philosophical or religious signs in the workplace – Direct or indirect discrimination – Proportionality – Balancing the freedom of religion and other fundamental rights – Legitimacy of the policy of neutrality adopted by the employer – Need to establish economic loss suffered by the employer
IX and MJ, who are employed in companies governed by German law as a special needs carer and a sales assistant and cashier respectively, wore an Islamic headscarf at their respective workplaces. Taking the view that the wearing of such a headscarf did not correspond to the policy of political, philosophical and religious neutrality pursued with regard to parents, children and third parties, IX’s employer, WABE eV (‘WABE’) asked her to remove that headscarf and, following her refusal, temporarily suspended her from her duties on two occasions and gave her a warning. MJ’s employer, MH Müller Handels GmbH (‘MH’), following MJ’s refusal to remove that headscarf at her workplace, first transferred her to another post in which she could wear that headscarf and then, after sending her home, instructed her to attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs. IX brought an action before the Arbeitsgericht Hamburg (Hamburg Labour Court, Germany) seeking an order that WABE remove from her personal file the warnings concerning the wearing of the Islamic headscarf. As for MJ, she brought an action before the national courts seeking a declaration that MH’s instruction was invalid and compensation for the damage suffered. MJ’s action before those courts was upheld and MH subsequently brought an appeal on a point of law before the Bundesarbeitsgericht (Federal Labour Court, Germany). In that context, the two courts decided to refer questions to the Court of Justice concerning the interpretation of Directive 2000/78. The Court was asked, inter alia, whether an internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, constitutes, with regard to workers who observe certain clothing rules based on religious precepts, direct or indirect discrimination on the grounds of religion or belief; in what circumstances a difference of treatment indirectly based on religion or belief resulting from that rule may be justified and what elements must be taken into consideration in examining the appropriateness of such a difference of treatment.
In its judgment, delivered by the Grand Chamber, the Court explains inter alia the circumstances in which a difference of treatment indirectly based on religion or belief, resulting from such an internal rule, may be justified.
Assessment of the Court
The Court examines, first, in connection with Case C-804/18, whether an internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, constitutes, with regard to workers who observe certain dress codes based on religious precepts, direct discrimination on grounds of religion or belief, prohibited by Directive 2000/78. 3 In that respect, the Court notes that the wearing of signs or clothing to manifest religion or belief is covered by the ‘freedom of thought, conscience and religion’. In addition, for the purposes of the application of Directive 2000/78, the terms ‘religion’ and ‘belief’ must be analysed as two facets of the same single ground of discrimination. Furthermore, the Court recalls its case-law according to which such a rule does not constitute direct discrimination provided that it covers any manifestation of such beliefs without distinction and treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, to dress neutrally, which precludes the wearing of such signs. The Court considers that that finding is not called into question by the fact that some workers observe religious precepts requiring certain clothing to be worn. Although a rule such as that referred to above is indeed capable of causing particular inconvenience for such workers, that has no bearing on the finding that that rule, reflecting a policy of neutrality on the part of the undertaking, does not, in principle, establish a difference in treatment between workers based on a criterion that is inextricably linked to religion or belief. In the present case, the rule at issue appears to have been applied in a general and undifferentiated way, since the employer concerned also required an employee wearing a religious cross to remove that sign. The Court concludes that, in those circumstances, a rule such as that at issue in the main proceedings does not constitute, with regard to workers who observe certain clothing rules based on religious precepts, direct discrimination on the grounds of religion or belief. The Court examines, secondly, whether a difference of treatment indirectly based on religion or belief arising from such an internal rule, may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, in order to take account of their legitimate wishes. It answers that question in the affirmative, while identifying the elements on which that conclusion is based.
In that regard, the Court notes, first of all, that an employer’s desire to display, in relations with customers, a policy of political, philosophical or religious neutrality may be regarded as a legitimate aim. The Court states, however, that that mere desire is not sufficient, as such, to justify objectively a difference of treatment indirectly based on religion or belief, since such a justification can be regarded as being objective only where there is a genuine need on the part of that employer. The relevant elements for identifying such a need are, inter alia, the rights and legitimate wishes of customers or users and, more specifically, as regards education, parents’ wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children.
In assessing whether such a need exists, particular relevance should be attached to the fact that the employer has adduced evidence that, in the absence of such a policy of neutrality, its freedom to conduct a business would be undermined, in that, given the nature of its activities or the context in which they are carried out, it would suffer adverse consequences. The Court then states that that difference in treatment must be appropriate for the purpose of ensuring that that policy of neutrality is properly applied, which entails that that policy is pursued in a consistent and systematic manner. Lastly, the prohibition on wearing any visible sign of political, philosophical or religious beliefs in the workplace must be limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting that prohibition. Thirdly, the Court examines, in connection with Case C-341/19, whether indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting the wearing of visible signs of political, philosophical or religious beliefs in the workplace, with the aim of ensuring a policy of neutrality within that undertaking, can be justified only if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs or whether a prohibition limited to conspicuous, large-sized signs is permissible, provided that is implemented consistently and systematically. It points out, in that regard, that such a limited prohibition is liable to have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign, such as a head covering.
Thus, where the criterion of wearing conspicuous, large-sized signs of the aforementioned beliefs is inextricably linked to one or more specific religions or beliefs, the prohibition on wearing those signs based on that criterion will mean that some workers will be treated less favourably than others on the basis of their religion or belief, which would amount to direct discrimination, which cannot be justified. Should direct discrimination not be found to exist, the Court observes that a difference of treatment such as that at issue in the main proceedings would, if it results in a particular disadvantage for persons adhering to a particular religion or belief, constitute indirect discrimination which can be justified only if the prohibition covers all visible forms of expression of political, philosophical or religious beliefs. It notes, in that regard, that a policy of neutrality within an undertaking may constitute a legitimate objective and must meet a genuine need on the part of the undertaking, such as the prevention of social conflicts or the presentation of a neutral image of the employer vis-à-vis customers, in order to justify objectively a difference in treatment indirectly based on religion or belief.
Such a policy can be effectively pursued only if no visible manifestation of political, philosophical or religious beliefs is allowed when workers are in contact with customers or with other workers, since the wearing of any sign, even a small-sized one, undermines the ability of that measure to achieve the aim allegedly pursued. Finally, the Court holds that national provisions protecting the freedom of religion may be taken into account, as more favourable provisions, in examining the appropriateness of a difference of treatment indirectly based on religion or belief. In that regard, it notes, in the first place, that, when examining whether the restriction resulting from a measure intended to ensure the application of a policy of political, philosophical and religious neutrality is appropriate, within the meaning of Article 2(2)(b)(i) of Directive 2000/78, account must be taken of the various rights and freedoms in question and that it is for the national courts, having regard to all the material in the file in question, to take into account the interests involved in the case and to limit the restrictions on the freedoms concerned to what is strictly necessary.
That ensures that, when several fundamental rights and principles enshrined in the Treaties are at issue, the assessment of observance of the principle of proportionality is carried out in accordance with the need to reconcile the requirements of the protection of the various rights and principles at issue, striking a fair balance between them. It notes, in the second place, that, by not itself carrying out, in Directive 2000/78, the necessary reconciliation between the freedom of thought, conscience and religion and the legitimate aims that may be invoked in order to justify unequal treatment, and by leaving it to the Member States and their courts to achieve that reconciliation, the EU legislature allowed account to be taken of the specific context of each Member State and allowed each Member State a margin of discretion in achieving that reconciliation.