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Protective Purpose

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Abstract

Having looked at different sources of rights, different types of rights, and how to determine whether legal provisions confer rights upon individuals, it is time to turn to the issue of protection. Our first question will concern the protective scope of rights: Who are the beneficiaries of the right (the ratione personae) and what is the beneficial position (the ratione materiae)?

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Notes

  1. 1.

    Cf., e.g., Barrett (2003), p. 369.

  2. 2.

    One example of an express provision on this matter is Article 54 TFEU (Article 48 TEC(A), Article 58 TEEC), which states that companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of the Chapter on freedom of establishment, be treated in the same way as natural persons who are nationals of Member States. Article 62 TFEU (Article 55 TEC(A), Article 66 TEEC) makes this provision applicable to the Chapter on freedom of services. This issue must be solved both as regards the addressees, i.e. the holders of the duties, and the right holders.

  3. 3.

    Joined Cases C-163/94, C-165/94 and C-250/94 De Lera [1995] ECR I-4821.

  4. 4.

    Case C-484/93 Svensson [1995] ECR I-3955.

  5. 5.

    Case C-290/04 FKP Scorpio [2006] ECR I-9461.

  6. 6.

    Case C-290/04 FKP Scorpio [2006] ECR I-9461, paras 35–39.

  7. 7.

    Case C-290/04 FKP Scorpio [2006] ECR I-9461, para 69.

  8. 8.

    Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16). Cf., previously, Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 61, p. 26).

  9. 9.

    Case C-13/95 Süzen [1997] ECR I-1259.

  10. 10.

    Cf., e.g., Case 40/76 Kermaschek [1976] ECR 1669, para 7; and Case C-243/91 Taghavi [1992] ECR I-4401, para 7.

  11. 11.

    Opinion of Advocate General La Pergola in Case C-356/98 Kaba [2000] ECR I-2623, para 34, cf., also, para 36.

  12. 12.

    Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77), Article 24. Turkish nationals are subject to a special regime, the EEC-Turkey Association Agreement (Agreement establishing an Association between the European Economic Community and Turkey, signed on 12 September 1963 at Ankara by the Republic of Turkey, of the one part, and the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1). The judgment in Case C-186/10 Oguz [2011] ECR I-6957 concerned Article 4(1) of the Additional Protocol to this Agreement (Additional Protocol, signed on 23 November 1970 at Brussels and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 17)). The Article is, briefly put, a standstill clause on the exercise of freedom of establishment and the freedom to provide services, cf. Case C-16/05 Tum and Dari [2007] ECR I-7415, para 69; and Case C-92/07 Commission v Netherlands [2010] ECR I-3683, para 47. It was held that the Article could be relied upon by a Turkish national in proceedings against the immigration authorities, where he/she wishes to contest the validity of a refusal to prolong leave to remain in a country. The Court of Justice also noted that such a standstill clause, did not grant any substantive rights, but operated as a ‘quasi procedural’ rule (Oguz, para 28). That is, it merely defined which national rules—or the rules from which time period (ratione temporis)—would be relevant for the substantive assessment.

  13. 13.

    One example where the issue was expressly dealt with is Case C-230/97 Ayowemi [1999] ECR I-6781. A Nigerian national had been living in the United Kingdom for a while and had obtained a ‘Community model’ driving licence. He later moved to Belgium, where he was charged for driving without a valid licence. He contested this charge on the basis, first of all, of the Directive on Community driving licences (First Council Directive 80/1263/EEC of 4 December 1980 on the introduction of a Community driving licence (OJ 1980 L 375, p. 1). Cf., now, Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (Recast) (OJ 2006 L 403, p. 18)). The Court of Justice noted that the Directive applied ‘not only to nationals of Member States but also to holders of a driving licence issued by a Member State, irrespective of nationality’ (Ayowemi, para 22). Consequently, a person in the applicant’s position ‘who holds a Community model driving licence which has been issued by the competent authorities of the United Kingdom and is valid at the material time, falls within the scope ratione personae of that directive’ (Ayowemi, para 23).

  14. 14.

    Case T-196/99 Area Cova [2001] ECR II-3597, para 152.

  15. 15.

    T-238/07 Ristic [2009] ECR II-117 (Summ.pub.), para 60 (judgment not available in English).

  16. 16.

    T-238/07 Ristic [2009] ECR II-117 (Summ.pub.), para 60.

  17. 17.

    Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

  18. 18.

    Cf. Adriaanse (2012), p. 458.

  19. 19.

    Case C-39/94 SFEI [1996] ECR I-3547, para 75.

  20. 20.

    Cf. Köhler (2012), p. 375.

  21. 21.

    Cf. Case C-39/94 SFEI [1996] ECR I-3547, para 75.

  22. 22.

    Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

  23. 23.

    Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14).

  24. 24.

    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 Council Directive 87/164/EEC of 2 March 1987 (OJ 1987 L 66, p. 11). 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).

  25. 25.

    Case C-334/92 Wagner Miret [1993] ECR I-6911.

  26. 26.

    Case C-479/93 Francovich v Italy [1995] ECR I-3843, para 19.

  27. 27.

    Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475). Cf., now, Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 (OJ 2011 L 141, p. 1).

  28. 28.

    Joined Cases C-147/11 and C-148/11 Czop and Punakova [2012] (OJ 2012 C 331 p. 8) (EU:C:2012:538), paras 23–33.

  29. 29.

    Case C-619/11 Dumont de Chassart [2013] ECR I-nyr (ECJ 21 February 2013) (OJ 2013 C 114, p. 16) (EU:C:2013:92), paras 27–31.

  30. 30.

    Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2), in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Council Regulation (EC) No 1399/1999 of 29 April 1999 (OJ 1999 L 164, p. 1). Cf., now, Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

  31. 31.

    Case C-63/01 Evans [2003] ECR I-14447, para 79.

  32. 32.

    Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16).

  33. 33.

    Case C-12/08 Mono Car Styling [2009] ECR I-6653, paras 38–42.

  34. 34.

    Case C-97/96 Verband deutscher Daihatsu-Händler [1997] ECR I-6843, para 23.

  35. 35.

    The judgment dealt with Article 6 of the First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ 1968 L 65, p. 8).

  36. 36.

    Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (codified version) (OJ 2009 L 159, p. 11).

  37. 37.

    Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).

  38. 38.

    Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (codification) (OJ 2011 L 26, p. 1). Cf., previously, Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).

  39. 39.

    Case C-570/13 Gruber [2015] ECR I-nyr (ECJ 16 April 2015) (EU:C:2015:231).

  40. 40.

    Respectively, Case C-201/02 Wells [2004] ECR I-723, para 61; and Case C-420/11 Leth [2013] ECR I-nyr (ECJ 14 March 2013) (OJ 1993 C 141, p. 6) (EU:C:2013:166), para 32.

  41. 41.

    Case C-75/08 Mellor [2009] ECR I-3799, para 57; and Case C-182/10 Solvay [2012] (OJ 2012 C 98, p. 5) (EU:C:2012:82).

  42. 42.

    Opinion of Advocate General Kokott in Case C-570/13 Gruber [2015] ECR I-nyr (ECJ 16 April 2015) (EU:C:2015:231), paras 35–36.

  43. 43.

    Cf. Opinion of Advocate General Kokott in Case C-570/13 Gruber [2015] ECR I-nyr (ECJ 16 April 2015) (EU:C:2015:231), paras 39–41.

  44. 44.

    Cf. Case C-570/13 Gruber [2015] ECR I-nyr (ECJ 16 April 2015) (EU:C:2015:231), paras 32–51. Cf. Sect. 11.1.2.2.

  45. 45.

    Case 43/75 Defrenne v Sabena [1976] ECR 455, para 31.

  46. 46.

    Cf., e.g., Eilmansberger (2004), p. 1206.

  47. 47.

    Joined Cases 5, 7 and 13-24/66 Kampffmeyer and Others v Commission [1967] ECR 245.

  48. 48.

    Biondi and Farley (2009), p. 109; cf., also, Schermers and Vaelbrock (2001), p. 555.

  49. 49.

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

  50. 50.

    Opinion of Advocate General Mischo in Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357, footnote 25.

  51. 51.

    Eilmansberger (2004), p. 1226.

  52. 52.

    Nazzini (2009), p. 420.

  53. 53.

    Lenaerts et al. (2014), p. 517.

  54. 54.

    Cf. Sect. 11.1.1.2.

  55. 55.

    Case C-94/10 Danfoss [2011] ECR I-9963, para 33 (my emphases).

  56. 56.

    Case T-196/99 Area Cova [2001] ECR II-3597.

  57. 57.

    Case T-238/07 Ristic [2009] ECR II-117 (Summ.pub.).

  58. 58.

    Case T-259/03 Nikolaou v Commission [2007] ECR II-99 (Summ.pub.), para 211 (judgment not available in English).

  59. 59.

    Joined Cases 106 and 107/63 Toepfer [1965] ECR 405.

  60. 60.

    Joined Cases 5, 7 and 13-24/66 Kampffmeyer and Others v Commission [1967] ECR 245, 263.

  61. 61.

    Joined Cases 5, 7 and 13-24/66 Kampffmeyer and Others v Commission [1967] ECR 245, 263.

  62. 62.

    Joined Cases C-225/95, C-226/95 and C-227/95 Kapasakalis [1998] ECR I-4239.

  63. 63.

    Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least 3 years’ duration (OJ 1989 L 19, p. 16). 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).

  64. 64.

    Case C-200/91 Coloroll Pension Trustees [1994] ECR I-4389.

  65. 65.

    Case C-453/99 Courage v Crehan [2001] ECR I-6297.

  66. 66.

    Case C-453/99 Courage v Crehan [2001] ECR I-6297, para 27. It may be mentioned that the Court of Justice dealt with both questions of invalidity and compensation in Courage and it referred to ‘any individual’ in both contexts, cf., respectively, paras 24 and 26. Strictly speaking, however, the reference to ‘any individual’ in the judgment is less clear when it is made in connection to damages claims. When speaking of invalidity, the Court clearly meant everyone when it referred to ‘any individual’. In the context of compensation claims, it held that it would put the effectiveness of the competition rules at risk if it was ‘not open to any individual’ to make such claims. Literally, this may mean not anyone as well as everyone. Although this may seem a rather strained interpretation of the English version of Courage, the Danish version speaks of everyone (‘enhver’) when describing who may invoke invalidity, but not anyone or—perhaps rather—some (‘nogen’) in the context of damages claims. The German version also refers to everyone as regards compensation (‘jedermann’), while speaking of an individual (‘ein Einzelner’) in the context of invalidity, which is even less clear. The French version clearly refers to everyone (‘tout/e’) both when dealing with invalidity and when dealing with compensation. In Joined Cases C-295 to C-298/04 Manfredi [2006] ECR I-6619, however, the Court clearly stated that ‘any individual’ should have a right to claim for damages (para 61).

  67. 67.

    It may be added that while the Courage case concerned invalidity and damages, Advocate General Jacobs, in his opinion in AOK Bundesverband, thought the reasoning in Courage should hold equally true for injunctive relief, cf. Opinion of Advocate General Jacobs in Joined Cases C-264/01, C-306/01, C-354/01 and C-355/01 AOK Bundesverband [2004] ECR I-2493, para 104.

  68. 68.

    Cf. Eilmansberger (2004), p. 1226.

  69. 69.

    Cf. Ross (2004), p. 97.

  70. 70.

    Case C-453/99 Courage v Crehan [2001] ECR I-6297, para 29.

  71. 71.

    Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40). Cf., now, Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (codification) (OJ 2011 L 26, p. 1).

  72. 72.

    Case C-420/11 Leth [2013] ECR I-nyr (ECJ 14 March 2013) (OJ 1993 C 141, p. 6) (EU:C:2013:166).

  73. 73.

    Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40). Cf., now, Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (codification) (OJ 2011 L 26, p. 1).

  74. 74.

    Case C-420/11 Leth [2013] ECR I-nyr (ECJ 14 March 2013) (OJ 1993 C 141, p. 6) (EU:C:2013:166), para 32.

  75. 75.

    Case C-420/11 Leth [2013] ECR I-nyr (ECJ 14 March 2013) (OJ 1993 C 141, p. 6) (EU:C:2013:166), para 35.

  76. 76.

    Case C-420/11 Leth [2013] ECR I-nyr (ECJ 14 March 2013) (OJ 1993 C 141, p. 6) (EU:C:2013:166), para 36.

  77. 77.

    Council Directive 71/305 of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (Official Journal, English Special Edition 1971 (II), p. 678 and p. 682). Cf., now, Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114); and, from 2016, Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), Article 69 (and Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243), Article 84).

  78. 78.

    Case 76/81 Transporoute [1982] ECR 417, para 17.

  79. 79.

    Opinion of Advocate General Lenz in Case 103/88 Fratelli Costanzo [1989] ECR 1839, para 27.

  80. 80.

    Cf., e.g., Hatzopoulos (2012).

  81. 81.

    Cf., e.g., Tryfonidou (2007).

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  1. Department of Private Law, University of Oslo, Oslo, Norway

    Bjarte Thorson

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Thorson, B. (2016). Protective Purpose. In: Individual Rights in EU Law. Springer, Cham. https://doi.org/10.1007/978-3-319-32771-6_18

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