15. Sources of Rights

Cf. Prechal (1997), p. 5.

Case 34/73 Fratelli Variola [1973] ECR 981, para 8; cf., also, Case C-253/00 Muñoz [20002] ECR I-7289, para 27.

Cf., for a rather opposite view, von Oettingen (2010), p. 168.

Cf. Picod (2013), p. 83.

Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389).

Cf. Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) 23.

The legal literature sometimes argues that the European Union law notion of individual rights is a sort of ‘minimum’ requirement, meaning that national concepts of protected interests in torts, etc., must be applied in light of the principle of equivalence. As Engstroem suggests: ‘The Court’s interpretation of the concept of conferral of rights has been understood quite narrowly. This makes it unlikely that national law has a narrower concept. It is plausible that the national court can (or has to, under the principle of equivalence) apply national rules on how to determine the protective scope, as those often will be more beneficial to the individual’ (Engstroem 2009, p. 226). It makes little sense however to consider the Union law right as ‘widened’ through national law. The point must therefore be that if one is faced with an interest which does not represent a Union law right—but which is still somehow rooted in Union law—national law on, e.g., liability will have to accept damages claims where those interests are negatively affected, if national law in general accepts damages claims where comparable interests are so affected. This is, however, a consequence of the general requirement of equivalence, not of a Union law right being some sort of ‘minimum’.

Cf. Póltorak (2015), p. 116.

Cf. Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1), Article 39. Cf., now, Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ 2013 L 347, p. 320).

T-415/03 Cofradía [2005] ECR II-4355, upheld in Case C-6/06 P Cofradía [2007] ECR I-164 (Summ.pub.).

Council Directive 64/433/EEC of 26 June 1964 on health conditions for the production and marketing of fresh meat (OJ, English Special Edition 1963–64, p. 185), as amended by Council Directive 91/497/EEC of 29 July 1991 (OJ 1991 L 268, p. 69) and Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (OJ 1989 L 395, p. 13). Cf., now, Directive 2004/41/EC of the European Parliament and of the council of 21 April 2004 repealing certain directives concerning food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption and amending council directives 89/662/EEC and 92/118/EEC and council decision 95/408/EC (OJ 2004 L 157, p. 33).

Cf. Case C-102/96 Commission v Germany [1998] ECR I-6871.

Council Directive 64/433/EEC of 26 June 1964 on health conditions for the production and marketing of fresh meat (OJ, English Special Edition 1963–64, p. 185), as amended by Council Directive 91/497/EEC of 29 July 1991 (OJ 1991 L 268, p. 69). Cf., now, Directive 2004/41/EC of the European Parliament and of the council of 21 April 2004 repealing certain directives concerning food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption and amending council directives 89/662/EEC and 92/118/EEC and council decision 95/408/EC (OJ 2004 L 157, p. 33).

Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (OJ 1989 L 395, p. 13).

Cf., inter alia, Case 5/77 Tedeschi [1977] ECR 1555, para 35; Case 227/82 Van Bennekom [1983] ECR 3883, para 35; Case C-37/92 Vanacker and Lesage [1993] ECR I-4947, para 9; Case C-323/93 Centre d’insémination de la Crespelle [1994] ECR I-5077, para 31; Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others [1996] ECR I-3457, para 25; Case C-324/99 DaimlerChrysler [2001] ECR I-9897, para 32; and Case C-322/01 Deutscher Apothekerverband [2003] ECR I-14887, para 64.

Cf. Case C-322/01 Deutscher Apothekerverband [2003] ECR I-14887, para 64; Case C-309/02 Radlberger Getränkegesellschaft and Spitz [2004] ECR I-11763, para 53; and Case C-145/02 Denkavit [2005] ECR I-51, para 22.

C-131/88 Commission v Germany [1991] ECR I-825.

Namely, Nettesheim (1999), p. 43.

Namely, Beljin (2000), p. 139.

Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389).

Cf., in general, Sánchez (2012), pp. 1573–1575.

Cf., e.g., Dubout (2014). Some particular questions arise for the United Kingdom and Poland, due to reservations under the Lisbon Protocol 30 (Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom (OJ 1997 C 305, p. 156)). Although this Protocol has been a source of uncertainty with respect to the status of Charter rights in those countries (cf., in particular, House of Commons, European Scrutiny Committee, The application of the EU Charter of Fundamental Rights in the UK: a state of confusion, Forty-third Report of Session 2013–14, Published 2 April 2014), it should be noted that there is no doubt that the Charter is also applicable in these countries regardless of the Protocol, cf. Joined Cases C-411/10 and C-493/10 NS [2011] ECR I-13905, paras 116–122. The Protocol will impact the interpretation of the substantive rights set out in Title IV of the Charter (on solidarity). In Bonda, a preliminary reference from the Polish Supreme Court (Sąd Najwyższy), the Court of Justice dealt with the right not to be tried and punished twice for the same offense (ne bis in idem), without linking this to Article 50 of the Charter; instead it referred to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 4(1) of Protocol 7 (cf. Case C-489/10 Bonda [2012] (OJ 2012 C 217, p. 2) (EU:C:2012:319), inter alia, paras 36 et seq). It still seems unlikely that this was due to considerations on the applicability of the Charter as such, even though the Advocate General had based her opinion on the prohibition against double punishment as set out in the Charter, cf. Opinion of Advocate General in Case C-489/10 Bonda [2012] (OJ 2012 C 217, p. 2) (EU:C:2012:319), paras 32 et seq.

Cf., in general, Groussot et al. (2011).

Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17).

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

Case C-617/10 Fransson [2013] ECR I-nyr (ECJ 7 May 2013) (OJ 2013 C 114, p. 7) (EU:C:2013:105), para 19. Cf. on the topic of ‘implementing EU law’ also, Case C-390/12 Pfleger [2014] ECR I-nyr (ECJ 28 April 2014) (OJ 2014 C 194, p. 3) (EU:C:2014:281), paras 30–36.

Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State (OJ 1989 L 395, p. 36).

Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) 35.

Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) 35.

Cf., inter alia, Lenaerts (2012), p. 399.

Cf., similarly, Lenaerts (2012), p. 400.

Cf., e.g., Guðmundsdóttir (2015), pp. 687–688.

Cf. Chap. 16.

Cf. Sect. 15.3.2.

See, instead, e.g., Tridimas (2006).

Joined Cases 9 and 12/60 Vloeberghs v High Authority [1961] ECR 199.

Hofmann et al. (2011), p. 178.

Cf., e.g., Craig (2012), pp. 549 (footnote 1) and 549 et seq; and, including comparisons between, mainly, European Union, English and French law, e.g., Schønberg (2000); and Thomas (2000). On cases, cf., e.g., Case C-152/88 Sofrimport [1990] ECR I-2477; Case T-43/98 Emesa Sugar v Council [2001] ECR II-3519; Case T-174/00 Biret [2002] ECR II-17; Case T-210/00 Biret [2002] ECR II-47; and Case T-271/04 Citymo [2007] ECR II-1375.

Craig (2012), p. 553.

Cf. Sharpston (1990), p. 92.

Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1). Cf., now, Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671).

Commission Regulation (EC) No 896/2001 of 7 May 2001 laying down detailed rules for applying Council Regulation (EEC) No 404/93 as regards the arrangements for importing bananas into the Community (OJ 2001 L 126, p. 6).

Cf. Case C-443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I-10945, para 91; and Case C-496/08 P Angé Serrano and Others v Parliament [2010] ECR I-1793, para 93.

Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v Commission [2006] ECR I-5479, para 147; cf., also, e.g., Case C-506/03 Germany v Commission (unpub.) (EU:C:2005:715) para 58; Case C-47/07 P Masdar [2008] ECR I-9761, para 81; and Case C-213/06 P EAR v Karatzoglou [2007] ECR I-6733, para 33.

Joined Cases C-104/89 and C-37/90 Mulder v Council and Commission [1992] ECR I-3061.

Joined Cases C-104/89 and C-37/90 Mulder v Council and Commission [1992] ECR I-3061, para 15; Case C-264/90 Wehrs [1992] ECR I-6285, paras 13–15; and Joined Cases T-195/94 and T-202/94 Quiller and Heusmann v Council and Commission [1997] ECR II-2247, paras 53–57 subsequently confirmed the legitimate expectations of a further group of ‘SLOM’ producers (‘SLOM III’). (Cf., on the categorisation of different ‘SLOM’-producers as claimants, e.g., Opinion of Advocate General Stix-Hackl in Joined Cases C-162/01 P and C-163/01 P Bouma and Beusmans v Council and Commission [2003] ECR I-4509, paras 46–51.) In his opinion in Wehrs, Advocate General Lenz recalled that the Court of Justice had held, in Mulder, that the principle of legitimate expectations was violated where the circumstances were such that ‘the economic operator was encouraged by a measure of the Community to suspend marketing … it was not foreseeable that the (non-marketing) undertaking given would prevent the producer concerned from resuming his activities on its expiry … the provision in question affects him specifically precisely because he availed himself of the possibilities offered by the Community legislation’ (Opinion of Advocate General Lenz in Case C-264/90 Wehrs [1992] ECR I-6285, para 24).

Joined Cases C-104/89 and C-37/90 Mulder v Council and Commission [2000] ECR I-203.

Cf., also, Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, para 11; Joined Cases 241, 242 and 245 to 250/78 DGV v Council and Commission [1979] ECR 3017, para 11; Joined Cases 261 and 262/78 Interquell Staerke v Council and Commission [1979] ECR 3045, para 14; and Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 P. Dumortier Frères [1979] ECR 3091, para 11.

Joined Cases C-104/89 and C-37/90 Mulder v Council and Commission [1992] ECR I-3061, para 13.

The principle of legitimate expectations is occasionally seen alongside a notion of ‘vested’ or ‘acquired’ rights. Theories of ‘vested rights’ arguably take inspiration from England and the works of, inter alia, A.V. Dicey, cf. Dicey (1890). This is most notably the case in the field of international private law, or the rules on conflicts of laws. It was argued by Dicey that English courts would in fact never apply foreign law, as this would be outside the jurisdiction of the courts. However, the court could recognize that individuals had been vested with certain rights in foreign jurisdictions, which the English courts should then respect. In European Union law, ‘vested rights’ seem to be a sort of sub-principle under the larger heading of a fundamental principle of legal certainty, as the idea of ‘vested rights’ is a variation on the question of retroactivity, cf., e.g., Raitio (2008), pp. 53 et seq. As already noted by other scholars, the difficulty with the theory of vested rights is the need to map out factors to explain what constitutes such a right and to explain why it is ‘vested’, cf. Hartley (2007), p. 147. The theory appears not to add anything to the principle of legitimate expectations, and namely how that principle grants individual rights.

Cf. Sect. 12.​4.​2.​1.

Cf. Sect. 12.​4.​2.

Cf. Sect. 16.​3.​4.

Biondi and Farley (2009), p. 122.

Case 74/74 CNTA v Commission [1975] ECR 533.

Case 74/74 CNTA v Commission [1975] ECR 533, para 38.

Case 74/74 CNTA v Commission [1974] ECR 533, para 42.

Case 74/74 CNTA v Commission [1976] ECR 797.

Cf. Joined Cases 117/76 and 16/77 Ruckdeschel v Hauptzollamt Hamburg-St Annen [1977] ECR 1753, para 7.

Case T-56/00 Dole Fresh Fruit International v Commission and Council [2003] ECR II-577, para 73.

Case T-166/98 Cantina sociale di Dolianova and Others v Commission [2004] ECR II-3991, appealed and set aside on admissibility, cf. Case C-51/05 P Commission v Cantina sociale di Dolianova and others [2008] ECR I-5341. A somewhat particular example is offered by Case C-115/08 ČEZ [2009] ECR I-10265, in which there were national limitations on when an individual could prohibit bothersome—i.e. noisy, smelly, etc.—activities on a neighbouring property insofar as, inter alia, the interference was caused by an officially authorized installation. For properties close to the border, however, there were no similar limitations with respect to neighbours in other countries. The Court of Justice found, in essence, that the principle of prohibition of discrimination on the grounds of nationality precluded that national legislation widen the property rights of individuals in other countries.

Cf., e.g., Craig (2012), pp. 496 et seq.

Case T-166/98 Cantina sociale di Dolianova and Others v Commission [2004] ECR II-3991. Cf. Sect. 12.​1.

Case T-166/98 Cantina sociale di Dolianova and Others v Commission [2004] ECR II-3991, para 84.

Case T-166/98 Cantina sociale di Dolianova and Others v Commission [2004] ECR II-3991, para 160, with references to Case C-259/87 Greece v Commission [1990] ECR I-2845 (Summ.pub), para 26; Case T-171/99 Corus UK v Commission [2001] ECR II-2967, para 55; and Joined Cases T-44/01, T-119/01 and T-126/01 Vieira v Commission [2003] ECR II-1209, para 86.

Case T-166/98 Cantina sociale di Dolianova and Others v Commission [2004] ECR II-3991, paras 161–162.

Case T-166/98 Cantina sociale di Dolianova and Others v Commission [2004] ECR II-3991, paras 160 and 162.

Case T-178/98 Fresh Marine [2000] ECR II-3331, appealed and damages upheld, cf. Case C-472/00 P Fresh Marine [2003] ECR I-7541.

Case T-178/98 Fresh Marine [2000] ECR II-3331, appealed and damages upheld, cf. Case C-472/00 P Fresh Marine [2003] ECR I-7541.

Case T-342/99 Airtours v Commission [2002] ECR II-2585.

Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (Official Journal L 395, p. 1), cf. now Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (Official Journal L 24, p. 1).

Case C-269/90 Technische Universität München [1991] ECR I-5469, para 14; Case T-167/94 Nölle v Council and Commission [1995] ECR II-2589, paras 73–76; order of the Court of First Instance in Case T-369/03 Arizona Chemical and Others v Commission [2005] ECR II-5839, para 88; Case T-285/03 Agraz and Others v Commission [2005] ECR II-1063, para 49 (appealed and set aside in Case C-243/05 P Agraz and Others v Commission [2006] ECR I-10833); and Case T-231/97 New Europe Consulting and Brown v Commission [1999] ECR II-2403, paras 37–45; cf. Case T-212/03 MyTravel [2008] ECR II-1967, para 49.

Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12), Article 4(1).

Case C-176/12 Association de médiation sociale [2014] ECR I-nyr (ECJ 15 January 2014) (OJ 2014 C 85, p. 3) (EU:C:2014:2). Cf. Sect. 15.3.2.

Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (OJ 2002 L 80, p. 29).

Cf. Rott (2005), pp. 343–344.

Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51), Article 1(2).

Cf. Claes (2006), p. 71 (footnote 8).

Cf., e.g., Koch (1986), p. 470.

Cf., e.g. Zakrzewski (2005), pp. 105–106.

Article 2(5) of Council Regulation (EEC) No 797/85 of 12 March 1985 on improving the efficiency of agricultural structures (OJ 1985 L 93, p. 1) and of Article 5(5) of Council Regulation (EEC) No 2328/91 of 15 July 1991 on improving the efficiency of agricultural structures (OJ 1991 L 218, p. 1). Cf., now, in general, Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80).

Nolte (1994), pp. 196–197.

Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), as amended by Commission Regulation (EC) No 1829/94 of 26 July 1994 (OJ 1994 L 191, p. 5). Cf., now, Commission Regulation (EC) No 612/2009 of 7 July 2009 on laying down common detailed rules for the application of the system of export refunds on agricultural products (Recast) (OJ 2009 L 186, p. 1).

Council Directive 82/76/EEC of 26 January 1982 amending Directive 75/362/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate effective exercise of the right of establishment and freedom to provide services and Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1982 L 43, p. 21). Cf., now, Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22).

Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23), as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1). Cf., now, Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (Codified version) (OJ 2008 L 283, p. 36).

Cf., e.g., Hilson (2005), pp. 692–693.

Case 82/77 Van Tiggele [1978] ECR 25; and Case 27/80 Fietje [1980] ECR 3839.