Foreign Qualifications Training
European Union Law
Question 1 (a) and (c)
Article 43 of the EC Treaty provides that restrictions to the freedom of establishment shall be prohibited and this article can be relied on where qualifications one other Member State are not recognised by another. The way in which ECJ case law has reasoned its way through this by virtue of the case of Thieffry. Here a Belgian national was refused admission to the French bar on account of the fact that he did not possess an actual French degree.
The ECJ held that once all measures required in order to obtain the equivalent qualification are carried out, the authorities of that member state cannot justifiably refuse to recognise the qualification.
Council Directive 89/48 grants the right of establishment by obliging member states to mutually recognise foreign qualifications as equivalent subject to the completion of a required adaptation period following three years of higher education, where the member state deems qualifications to be substantially different to their own. The new directive, 2001/19/EC, called the SLIM directive, provides that host member states must examine whether relevant practical experience will bridge the gap between differences in education and training.
These directives do not include non EU State qualifications but Vlassopoulou stated that where a member state decides to recognise such a qualification, the state must also take into account practical training and professional experience that has been obtained in another member state.
In the present case, this therefore means that the Law Society for the Bar Council of the United Kingdom is obliged to assess the practical training and professional experience that Apollo has gained in Greece but they are under no obligation to deem the American qualification as mutually recognisable. The three hour English law examination is a condition of recognition by the Law Society, which if passed, will oblige recognition of the qualifications by the UK.
(b)
The scope of Article 43 (EC) is very wide and there is specific provision for the right to freedom of establishment in more than one member state at the same time. In Klopp a German lawyer was refused admission to the Paris Bar due to the fact that he already had a German office and the bar only allowed him to open one office within the district of the court where the lawyer was admitted. This non discriminatory rule represented a bar to the freedom of establishment in more than one member state.
This case is clear authority that the Law Society and Bar Council Rules are in breach of Article 43 (EC).
(d)
Sexual orientation discrimination is not recognised as being sex discrimination under Article 14 of the ECHR. This was established in Grant v South West Trains Ltd in which travel concessions were refused to a same sex partner of an employee.
Same sex partners cannot therefore be classified as a family member of an EU national and would therefore not be granted the right to reside in an EU member state under Article 10 of Regulation 1612/68. This applies despite the fact that unmarried companions may be referred to as a social advantage that benefits the free movement of workers under Article 7(2).
Therefore, regardless of Mitch's criminal conviction, as a same sex partner he cannot be classified as a social advantage for the purpose of Article 7(2)
(e)
There are limitations to the free movement of workers based on grounds of public policy, security and health under Article 39(3) of the EU Treaty. A health justification must however be substantiated by adequate evidence and until there is a diagnosis, immigration officials can do nothing. Once there is a diagnosis, the disease must fall under the list in the annex to directive 64/221 that are deemed to endanger public health, as specified under Article 4 of the directive. If the disease does fall under the list in the directive, Apollo must undergo all procedures within the directive for application for entry into the UK, and subsequent challenges in the event of a refusal. Public health grounds do however leave little scope for manoeuvre and it is unlikely that Apollo will be granted an entry permit should his disease be listed under the annex to directive 64/221.
Question 2
Article 249 stipulates the types of legislative action that the Community may invoke and the most important of these are Regulations and Directives.
With regard to the direct effect of a Regulation, Article 249 stipulates that it
shall be binding in its entirety and directly applicable to all Member States
The language of this statement suggests that Regulations can be upheld before a national court as soon as they are enforced by and this is certainly the interpretation of the ECJ.
Under Article 249, the decision is deemed to be
binding in its entirety upon those to whom it is addressed
A decision is therefore different from a regulation as it is targeted at a specific individual or group. The statement in Franz Grad v Finanzamt Traustein states that direct effect that is attributable to regulations does not lead to a logic that would immediately categorise both the decision and the directive as effectual only upon ratification into national law.
The court decided that a decision may be directly applicable where the instructions are sufficiently clear and precise so that they can be invoked before a national court. In addition, the mere fact that decisions have specific addressees in no way constitutes preclusion to direct effect. Interestingly, in this case, the question of direct effect hinged entirely on the concept of whether or not the provision could be invoked before a national court. There are however other criterion that the ECJ has used to determine the meaning and required criterion for direct effect but for the current purposes it is sufficient to state that the case confirmed the point that the exclusive use of express reference to regulations as being directly applicable does not preclude this quality for other types of legislation.
With regard to the Directive, Article 249 stipulates that it shall:
be binding as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods...
Franz Grad was silent on the matter of the directive, but, in Van Duyn v Home Office, it was stated that by being binding, the possibility of direct effect before a national court cannot be ruled out. Once again, the virtue of sufficient clarity was seen as a requirement for the provision to directly applicable.
It is necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between Member States and individuals
Discussion of the Statement in Franz Grad is a discussion of Article 249 interpretation. From analysis of case law that questions the direct effect of directives and decisions, it is clear that the courts adopted three distinct stages in their line of thought. Firstly, absence of express reference to direct effect for decisions and directives in Article 249, coupled with such express reference to regulations, only leads to the conclusion that regulations are always directly applicable. Secondly, since the wording of Article 249 does not expressly preclude decisions and directives from being directly applicable, the courts have applied logic to the question of direct applicability that has led them to the conclusion that sufficient clarity of the provision is enough to allow it to be invoked before a national court.
Question 3
Advice to Momento as to whether the following conditions are compatible with the law governing the free movement of goods within the European Union
(a)
Do either or both requirements to, firstly, package in red square boxes and secondly, place a stamp of origin, constitute measures that have an equivalent effect to a barrier to trade under Article 28?
In the first place, if the packaging requirement does not constitute a normal practice for the exporter, the requirement will incur an extra cost that has the equivalent effect of a barrier to trade. This was found in the case of Rau concerning Belgian butter packaging requirements. Therefore if the requirement will create difficulty and incur extra costs to the exporter, it will be caught by Article 28.
In the second place, can the Made in Italy stamp be justified on grounds of consumer protection? These stamps are likely to have a detrimental effect on sale since tourists would favour souvenirs made in the United Kingdom and they are treated as discriminatory rules because prejudices against foreign products may be asserted. This was held in the case of Commission v UK.
(b)
Does the certificate of origin constitute a mandatory requirement that is justified?
This is a discriminatory measure as a certificate of origin is not required for British goods and this therefore means that the measure is only legal if it falls under one of the Article 30 exceptions, which are public morality, public policy, public security or the protection of health and life of humans, animals or plants. The question of a certificate of origin does not apply to any of these considerations but case law shows that the list need not be exhaustive as environmental protection has also been cited. In addition, the ECJ has blurred the so-called strict designation of Article 30 to discriminatory measures and Cassis de Dijon to non-discriminatory measures. This is seen in Aher Waggon where the ECJ was unsure whether the restriction was discriminatory or not.
Strictly speaking however, the fact that this measure is not covered by an Article 30 justification means that it is a measure that is caught by Article 28.
(c)
Does the charge incurred at the port of entry by the Custom's authorities constitute a charge that has the equivalent effect to a barrier to trade that is prohibited under Article 25?
The ECJ is highly reluctant to allow charges for services rendered and this is seen in both Commission v Italy and Bresciani v Amminintrazione Italiana delle Finanze. The reason is that any charge is strictly scrutinized against the key EU policy for a single market that has abolished duties and charges. There is however one exception, which is that a charge may be levied for a mandatory inspection that is required by EU law or international convention. Therefore, unless this charge is in accordance with such a legal requirement, it will be caught by Article 25.
(d)
Does correspondence with the British Standard constitute a measure having the equivalent effect to a barrier to trade under Article 28?
For the current purpose, the British Standard shall be assumed to constitute a safety standard. This is an indistinctly applicable rule and if it is to be justified, this must be under the heading of public health that was stated in Cassis de Dijon. The case of Commission v Germany illustrates that the key consideration is application of the principle of proportionality. The aim of the British standard must be the minimum achievable in order to secure public health. This case also emphasised the notion of the technological need whereby the safety standard could favour national production methods as opposed to those of other Member States. If either of these tests are not satisfied, the British standard will not constitute a mandatory requirement justified on account of public health.
(e)
Does the quantitative restriction constitute a barrier to trade?
A quantitative restriction is a measure that reduces the flow of trade and this clearly covers quotas. The case of Geddo also defines the quota as a:
measure which amounts to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit
Quotas are explicitly contrary to the prohibition of Article 28, which means that there can be no de minimis exception and they are also contrary to international multilateral and bilateral free trade agreements. There is therefore no doubt that the current quota is unsustainable under EU law.
Bibliography
Legislation
EC Treaty (Nice 2001)
General Agreement on Tariffs and Trade (GATT)
Directives:
64/221
89/48
2001/19
Regulation
1612/68
Case Law
Thieffry v Vounseil de l'Ordre des Avocats a la Cour de Paris [1977] ECR 765
Vlassopoulou v Ministerium für Justiz, Bundes und Europaangelegenheiten Baden Württemberg [1991] ECR 2357
Hocsman v Ministre de l'Emploi [2000] ECR I-6623
Ordre des Advocats v Klopp [1978] ECR 25
European Convention of Human Rights
Grant v South West Trains Ltd [1998] ECR I-621
Netherlands v Reed [1986] ECR 1283
Commission v Italy [1973] ECR 101
Amsterdam Bulb v Produktschap voor Siergewassen [1977] ECR 137
Franz Grad v Finanzamt Traustein [1970] ECR 825
Van Duyn v Home Office [1974] ECR 1337
Rau (Walter) Lebensmittelwerke v De Smedt Pvba [1982] ECR 3961
Commission v UK [1985] ECR 1201
Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [197] ECR 649
Aher Waggon v GmbH v Bundesrepublik Deutschland [1988] ECR I-4473
Commission v Italy [1969] ECR 193
Bresciani v Amminintrazione Italiana delle Finanze [1976] ECR 129
Bauhuis v Netherlands [1977] ECR 5, Freistaat Bayern [1984] ECR 349
Commission v Germany [1988] ECR 5427
Commission v Germany [1987] ECR 1227
Riseria Luigi Geddo v Ente nationale Risi [1973] ECR 865
Textbook Publications
P Craig and G de Burca, EU Law, text, cases and materials, (Oxford, 3rd edition, 2003) chapter 5
E. McGovern, International Trade Regulation, (Globefield Press, 3rd edition, 1995)
A.P. van der Mei, Free Movement of Persons within the European Community, Cross-Border Access to Public Benefits, (Oxford University Press, 2003)
L Woods, Free Movement of Goods and Services within the European Community, (Ashgate, 2004)
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
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