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THREE IDEAS: A CASE STUDY ON THE SCOPE OF EU
LAW PROTECTING AGAINST DISCRIMINATION
Mattias Derlén & Johan Lindholm*
ABSTRACT: The issue of when EU law applies, its scope, is obviously important
and yet it has no clear answer. Two extreme positions are that EU law has a
general scope, which it does not, and that all EU law provisions have different
scopes, which clarifies nothing. This article explores the middle ground by
seeking to identify underlying ideas capable of explaining when different EU law
provisions apply on the national level and why seemingly similar provisions differ
in scope. The article studies under what conditions an individual seeking
protection against discrimination can invoke EU law on the national level and
concludes that EU law provisions preventing discrimination differ greatly in
scope but that such differences can be explained by the fact that they are based on
different ideas: the idea of the internal market, the idea of actor equivalence, or
the idea of a Europe without borders.
Table of Contents
I. What Is the Scope of EU Law and How Come I Don’t Know This
Already? ............................................................................................................2 II. The Idea of the Internal Market: Protection against Discrimination
under the Treaties ..............................................................................................5 A. The Fundamental Freedoms ......................................................................5 B. The Equal Pay Provision ...........................................................................6 III. The Idea of Actor Equivalence: Fundamental Rights .......................................8 A. Introduction................................................................................................8 B. Category 1 - Implementing EU law ...........................................................8 C. Category 2 - Restricting EU Law...............................................................9 D. A Third Category - or an Unnecessary Complication? ...........................10 E. The Idea of Actor Equivalence - Two Actors, One System ......................13 IV. The Idea of a Europe Without Borders: The General Principle of
Non-Discrimination on Grounds of Nationality .............................................16 V. Some Final Thoughts Towards a General Theory of the (Not
General) Scope of EU Law .............................................................................18 *
The authors are Doctors of Law and Senior Lecturers in Law at Umeå University, Sweden.
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I.
What Is the Scope of EU Law and How Come I Don’t Know This
Already?
”What is the scope of EU law?” Many students of EU law have faced this
deceptively simple question, only to discover that it is yet another of those
important issues in EU law without an easy answer. Instead, we have come to
expect EU law to show up in the most unexpected situations.
The issue of non-discrimination is illustrative of this phenomenon that has
aptly been described as EU law’s “Jack-in-the-Box effect”.1 Discrimination is
broadly defined as “the application of different rules to comparable situations or
the application of the same rule to different situations.”2 Combating
discrimination is an aim of the Union3 and of many substantive EU law rules but
the scope of these rules differs significantly. Here are four examples of such rules
that we will return to and examine more closely below. First, Article 45 TFEU
protects against the discrimination of workers on grounds of nationality but can
only be relied on by “workers”. Second, Article 18 TFEU prohibits any type of
discrimination on the ground of nationality but only “[w]ithin the scope of
application of the Treaties”. Third, Article 157(1) TFEU prohibits gender
discrimination and this applies to both the Member States and private employers
but only when the unequal treatment concerns remuneration for work. Fourth, EU
law prohibits discrimination in other situations as a fundamental right but this
only applies to the Member States and only in situations that fall “within the
scope of European Union law”4 including when a Member State implements EU
law or restricts a right under EU law.
This article seeks to find some order in what seems like randomness in the
scope of EU law rules protecting against discrimination by exploring a seemingly
simple question: under what conditions can an individual seeking protection
against discrimination invoke EU law on the national level? The examination
covers Treaty provisions and general principles but not legislative acts whose
scope is normally defined quite clearly in the act itself.5
The optimal outcome of this examination would be a precise, succinct, and
general definition of the scope of EU law. One might also expect a general
definition to exist considering that sources of EU law, as mentioned above, refer
1
Vilhelmsson, “Jack-in-the-box theory of European Community law” in Eriksson and Hurri
(Eds.), Dialectic of Law and Reality (Forum Iuris, 1999).
2
Case 279/93, Finanzamt Köln-Altstadt v. Schumaker, [1995] ECR I-249, para 30.
3
Art. 3(3) TEU.
4
See e.g. Case C-555/07, Kücükdeveci v. Swedex GmbH & Co. KG, judgment of 19 January 2010,
nyr, para 23. The operative part has also been phrased “Community law” or “Union law”.
5
See e.g. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin, OJ L 180, 19.7.2000, 22; Council
Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment
in employment and occupation, OJ L 303, 2.12.2000, 16; Council Directive 2004/113/EC of 13
December 2004 implementing the principle of equal treatment between men and women in the
access to and supply of goods and services, OJ L 373, 21.12.2004, 37.
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to the scope of the Treaties and of Union law. However, no such general scope
exists. Instead, we identify three ideas that explain the scope of provisions
preventing discrimination and the difference in scope between them: the idea of
the internal market, the idea of actor equivalence, and the idea of a Europe
without borders. Moreover, while these three ideas do not explain the scope of EU
law entire – and can certainly be supplemented by other ideas – they clarify the
scope of many of its core provisions as they apply to other situations than those
involving discrimination.
The meaning of “scope” should be clarified before proceeding with the
examination. Scope can be divided into four aspects or requirements that must be
satisfied in order for EU law to apply. Two of these aspects are relatively
unproblematic. The territorial scope of EU law is defined explicitly in the
Treaties: EU law applies to the Member States and some, but not all, of the
overseas territories.6 The limitation in temporal scope of EU law is normally also
quite clear: as a general rule the Treaties apply to the Member State from the day
of accession,7 and legislation enters into force at a given day.8 Even the scope of
general principles of EU law and the Court’s interpretation of law may
exceptionally be temporally limited.9
This article focuses on the remaining two aspects of scope. The personal
scope of EU law identifies to what persons EU law applies,10 on whom it places
rights and obligations. Article 20(2) TFEU defines the general personal scope of
EU law: “Citizens of the Union shall enjoy the rights and be subject to the duties
provided for in the Treaties.” However, this gives little practical guidance.
Despite its wording Art. 20 does not mean that non-EU-citizens can never rely on
EU law.11 Also, most individual Treaty provisions narrow the personal scope,
6
Art. 52 TEU and Art. 355 TFEU. Literally, these provisions actually define the territorial scope
of the Treaties but the must reasonably apply equally to other sources of EU law emanating from
the Treaties in the absence of any specific limitation, such as the possibility of only directing a
Directive to certain Member States in Art. 288 TFEU. The fact that an action has occurred outside
these territories does not however necessarily mean that it is out of reach of European Union law.
See e.g. Case 214/94, Boukhalfa v. Germany, [1996] ECR I-2253 (holding that the prohibition
against discrimination based on nationality can apply in non-Member States).
7
Case C-122/96, Saldanha and MTS Securities Corporation v. Hiross Holding AG, [1997] ECR I5325, paras. 12–14.
8
Either as specified in the act itself or a within a certain time following publication in the Official
Journal. See e.g. Case C-342/93, Gillespie and Others v. Northern Health and Social Services
Boards, Department of Health and Social Services, Eastern Health and Social Services Board and
Southern Health and Social Services Board, [1996] ECR I-492, para 19 (concluding that national
measures discriminating with regard to maternal leave was contrary to a directive but that it did
not apply at the time of the facts in the case).
9
See e.g. Case 43/75, Defrenne v. Sabena (II), [1976] ECR 455, paras. 69–75 (limiting the
horizontal direct effect of Art. 157(1) TEUF, then Art. 119 EEC, to the time after April 8, 1976);
Case C-104/98, Buchner and Others v. Sozialversicherungsanstalt der Bauern, [2000] ECR I3625, para 39 (explaining the criteria for limiting the temporal scope of an interpretation).
10
Spaventa, ”Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its
Constitutional Effects”, 45 CML Rev. (2008), 13–45, at p. 14.
11
For example, in later years much of the discussion concerning the personal scope of EU law has
concerned third country nationals, primarily (but not exclusively) with regard to immigration and
asylum issues. See e.g. Guild and Peers, ”Out of the Ghetto? The Personal Scope of EU Law” in
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defining its specific personal scope more or less clearly. For example, it follows
from Articles 45 and 57 TFEU that only “workers” and “service providers”
respectively can exercise the rights provided therein but it has been left to the ECJ
to determine which persons qualify as such.12 The personal scope is sometimes
distinguished from the material scope of EU law.13 While personal scope defines
who can rely on EU law, the material scope determines in which situations EU
law applies.14
Distinguishing between personal and material scope clarifies the concept of
scope and the distinction is quite clear in certain areas of law.15 The two are
however closely related and largely interchangeable as a question of scope can
frequently be phrased either in personal terms (“does this person enjoy this
right?”) or in material terms (“is this situation covered by the rule?”) without
impacting the analysis or the answer.16 Therefore, the term “scope” is used
broadly herein to refer to the issue of when EU law can be relied on and this
includes both personal and material aspects of scope unless otherwise stated.
Scope should be distinguished from the related issue of substance, what rights
and obligations individuals enjoy,17 not examined herein.18 Substance and scope
may at times be closely related, for example with regard to the fundamental
freedoms. However, in other areas of law there are fundamental differences in the
underlying rationale of scope and substance. One example of such an area is the
protection of fundamental rights. That fundamental rights forms part of Union law
can be attributed to Member States pressuring the EU to develop beyond the
achievement of an internal market and as a compromise necessary to sustain the
principle of supremacy.19 These factors are however incapable of explaining
under what conditions fundamental rights apply on the national level.
Consequently, it is wise to clearly distinguish the former issue, substance, when
examining the latter, scope.
Peers and Rogers (Eds.), EU Immigration and Asylum Law – Text and Commentary (Martinus
Nijhoff Publishers, 2006), pp. 81–114.
12
See e.g. Case 238/83, Caisse d'Allocations Familiales de la Région Parisienne v. Mr and Mrs
Meade, [1984] ECR 2631, para 7; Joined Cases 286/82 and 26/83, Luisi and Carbone v. Ministero
del Tesoro, [1984] ECR 377, para 10; Case 196/87, Steymann v. Staatssecretaris van Justitie,
[1989] ECR 6159, para 14.
13
See e.g. Case C-85/96, Martínez Sala v. Freistaat Bayern, [1998] ECR I-2691, paras. 56–64.
14
Spaventa, op. cit. supra note 10, p. 14.
15
For example with regard to the application of Art. 18 TFEU discussed further infra Part IV.
16
See also discussion infra Part II.A.
17
But see Spaventa, op. cit. supra note 10, p. 14 (arguing that with regard to legislation that is
capable of conferring rights on individuals ”the material scope defines the potential rights that
such individuals might claim.”)
18
Nor do we aspire to define which areas of national law are substantively incompatible with EU
law.
19
See further infra Part III.B.
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II. The Idea of the Internal Market: Protection against Discrimination
under the Treaties
A. The Fundamental Freedoms
The rights of free movement of goods, workers, services, and capital are arguably
among the most important in EU law and the scope of Treaty provisions laying
down these rights is therefore of central importance. These provisions also contain
some of the most important provisions in EU law preventing discrimination since
assuring equal treatment has been crucial for achieving the internal market.20
These provisions’ scope is the subject of many judgments by the European
Court of Justice but some of the most illustrative concern the application of EU
law to sports. In the first of these cases, Walrave, two Dutch nationals argued that
a rule requiring the pacemaker in cycling competitions to have the same
nationality as the stayer constituted discrimination on grounds of nationality
contrary to the free movement of workers.21 The issue put before the ECJ was
quite purely one concerning the scope of the ban on discrimination in Article 45
TFEU. The Court interpreted the scope of Article 45 in the light of the objectives
of the Union as defined in the Treaties and, more specifically, the term “economic
activity”, a phrase at the time found in Article 2 EEC. Pursuing this line of
reasoning, the Court established that sporting activities fall within the scope of
Article 45 if they constitute “economic activity”.22
The ECJ followed this line of reasoning in subsequent cases involving sports
concluding that “having regard to the objectives of the Community, sport is
subject to Community law only in so far as it constitutes an economic activity
within the meaning of Article 2 of the Treaty”23 and, conversely, that aspects of
sport that do not constitute economic activity “might fall outside the scope of
Community law”.24 The Court’s language suggests, quite strongly, that European
Union law has a general scope and that it is limited to “economic activities”. This
is misleading. However, it reveals the immense importance that the ECJ places on
the idea of the internal market when determining the scope of the fundamental
freedoms.
20
See More, ”The Principle of Equal Treatment: From Market Unifier to Fundamental Right?” in
Craig and de Burca (Eds.), The Evolution of EU Law (Oxford University Press, 1999), pp. 517–
553, at p. 522.
21
Case 36/74, Walrave and Koch v. Association Union cycliste internationale, Koninklijke
Nederlandsche Wielren Unie et Federación Española Ciclismo, [1974] ECR 1405, paras. 1–3.
22
Ibid., paras. 4–8.
23
Case 13/76, Donà v. Mantero, [1976] ECR 1333, para 12; Case C-415/93, Union royale belge
des sociétés de football association ASBL v. Bosman, Royal club liégeois SA v. Bosman and others
and Union des associations européennes de football (UEFA) v. Bosman, [1995] ECR I-4921, para
73; Case 176/96, Lehtonen and Castors Canada Dry Namur-Braine ASBL v. Fédération royale
belge des sociétés de basket-ball ASBL (FRBSB), [2000] ECR I-2681, para 32 (emphasis added).
24
Case C-51/96 and C-191/97, Deliège v. Ligue francophone de judo et disciplines associées
ASBL, Ligue belge de judo ASBL, Union européenne de judo (C-51/96) and Pacquée (C-191/97),
[2000] ECR I-2549, paras. 41–44, para 44 qouted (emphasis added).
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The European Court of Justice has applied the same line of reasoning to other
sectors interpreting the scope of the fundamental freedoms in light of the aim of
establishing an internal market for economic activities. However, in many
situations it has done so when determining who or what constitutes “goods”,
“workers”, “services”, and so on.25 The Court’s case law concerning the
application of fundamental freedoms illustrate how the underlying idea of the
internal market and the accompanying focus on economic activity defines the
scope of these rights in a way that cuts across the distinction between personal
and material scope who, as mentioned, are closely connected.26
The idea of the internal market impacts the scope of the fundamental
freedoms in different respects. First, it is primarily economic actors that are
relevant to the internal market and it is therefore only they who can be holders of
the rights connected to the fundamental freedoms, including the right not to be
discriminated. Second, only situations that are likely to impact movement
between Member States are relevant from the perspective of the internal market
and, therefore, only situations that involve a “cross-border dimension” fall within
the scope of the fundamental freedoms.27 Also, the fundamental freedoms have a
particularly extensive scope in that obligations created through the Treaties,
including not to discriminate, apply not only to Member States but may also bind
private organizations and individuals. According to the Court, the reason for
imposing such duties on private parties is that the abolishment of discrimination
and other obstacles to free movement would otherwise be compromised.28 There
is thus a quite clear connection between the scope of these provisions and the
realization of the internal market.
B. The Equal Pay Provision
When discussing the idea of the internal market and EU law rules preventing
discrimination, protection against gender discrimination deserves special
attention. According to Article 157(1) TFEU, also known as the equal pay
provision, “[e]ach Member State shall ensure that the principle of equal pay for
male and female workers for equal work or work of equal value is applied.”
25
See e.g. Steymann, op. cit. supra note 12, para 14 (concluding that ”Article 2 of the EEC Treaty
must be interpreted as meaning that activities performed by members of a community based on
religion or another form of philosophy as part of the commercial activities of that community
constitute economic activities in so far as the services which the community provides to its
members may be regarded as the indirect quid pro quo for genuine and effective work.”).
26
See supra Part I.
27
See also further infra Part V.
28
See e.g. Walrave, op. cit. supra note 21, paras. 17–19; Bosman, op. cit. supra note 23, paras. 82–
84; Case C-281/98, Agonese v. Cassa di Risparmio di Bolzana SpA, [2000] ECR I-4161, paras.
32–36; Case C-341/05, Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet and Others,
[2007] ECR I-11767, para 98; Case C-438/05, International Transport Workers’ Federation and
Finnish Seamen’s Union v. Viking Line ABP and OÜ Viking Line Eesti, [2007] ECR I-10779,
paras. 56–61.
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The equal pay provision was the only provision in the Rome Treaty that
mentioned gender equality and is as such of fundamental importance to the
protection of gender equality in EU law. However, despite the fact that the equal
pay provision promotes equality between men and women, it was not primarily
the pursuit of gender equality that caused the Member States to include the
provision in the Treaties. Like the fundamental freedoms, the equal pay provision
is founded on the idea of the internal market. More specifically, the provision was
included to allow businesses in France, which had enacted equal pay laws, to
compete on equal terms with businesses from Member States lacking such laws.29
The right to equal pay can in this respect be regarded as a supplement to the
fundamental freedoms by ensuring that competition between actors in different
Member States is not distorted due to women being paid lower wages.
That the equal pay provision is based on the idea of the internal market rather
than protecting a fundamental right to equal treatment of men and women is
reflected in its scope. First, like the free movement of workers only those who are
economically active, more precisely gainfully employed, fall within the
provision’s scope. Second, the provision only covers discrimination with regard to
salary and other remuneration for work. This is narrower than Article 45 TFEU
which includes remuneration but also discrimination with regard to other
conditions of employment. That Article 157’s scope is limited to “pay” appears
related to the aim of ensuring competition on equal terms within the internal
market and that unequal treatment in other respects was considered less likely to
impact the internal market.30 Third, with regard to the necessity of a cross-border
dimension the idea of the internal market operates in the opposite direction, giving
Article 157 a broader scope than Article 45: unequal wages is capable of
distorting the internal market by lowering the cost of goods and services even if
the employee does not move to another Member State. Article 157 therefore
covers situations where a person has not exercised his or her right to free
movement.31 Finally, like the prohibition against discrimination of workers on
grounds on nationality, the prohibition against unequal pay enjoys horizontal
direct effect.32
29
Cichowski, ”Women’s Rights, the European Union, and Supranational Constitutionalism”, 38
Law and Society Review (2004), pp. 489–509, at pp. 493, 501; Defeis, ”Equality and the European
Union”, 32 Georgia Journal of International and Comparative Law (2004), pp. 73–98, at pp. 75–
76. See also Defrenne II, op. cit. supra note 9, para 9; Council Directive 75/117/EEC of 10
February 1975 on the approximation of the laws of the Member States relating to the application
of the principle of equal pay for men and women, OJ L 45, 19.2.1975, p. 19, preamble
(“implementation of the principle that men and women should receive equal pay contained in
Article 119 of the Treaty is an integral part of the establishment and functioning of the common
market…”).
30
This is partially supported by the fact that the Court has emphasized the employer’s contribution
to a benefit when determining if it constitutes “pay” for purposes of Art. 157 TFEU. Compare
Case 80/70, Defrenne v. Belgium (I), [1971] ECR 445 and Case C-262/88, Barber v. Guardian
Royal Exchange Assurance Group, [1990] ECR I-1889, paras. 21–30 (reaching opposite
conclusions regarding two otherwise similar pension schemes).
31
See e.g. Defrenne II, op. cit. supra note 9.
32
Defrenne II, op. cit. supra note 9, para 40.
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III. The Idea of Actor Equivalence: Fundamental Rights
A. Introduction
Despite the Court’s language in cases concerning the application of EU law to
sports, EU law does not have a general scope that includes all economic activities
and excludes all non-economic activities.33 This is clear when considering the
difference in scope of the prohibition of gender discrimination with regard to
salaries and gender discrimination in other situations; the scope of Article 157
stands in stark contrast to that of the general right to gender equality under EU
law. The difference between the two is made clear in the third case adjudicated by
the ECJ concerning Gabrielle Defrenne. Whereas the Court ruled in Defrenne II
that she could rely directly on Article 157(1) TFEU against her employer, it
declared in Defrenne III that EU law and, more specifically, the general principle
of equal treatment under EU law protected her against gender discrimination in
the work place in other regards than unequal remuneration but that this right did
not bind her employer.34 The scope of the general principle of equal treatment is
broader than the principle of equal pay in that it applies beyond situations
concerning salaries. On the other hand, the scope is narrower in that it only
applies to the Member State and only in certain situations. As we shall explain in
this section, the scope of fundamental rights (of which equal treatment of women
and men is an example) is dictated by a completely different idea than the internal
market, namely the idea of actor equivalence.
Following the case law of the ECJ, Member States are bound to respect
fundamental rights in situations “where national legislation falls within the field
of application of Community law”.35 Two categories are frequently referred to in
the literature as indicating the scope of application of fundamental rights vis-à-vis
the Member States,36 here referred to as implementing EU law and restricting EU
law.
B. Category 1 - Implementing EU law
In Wachauf the ECJ for the first time firmly declared that Member States must
respect fundamental rights when implementing EU law.37 The message in
Wachauf has been repeated in other cases, also concerning other EU measures,
such as directives in the Booker case.38 In discussing why the ECJ extended the
33
See supra Part II.A.
Case 149/77, Defrenne v. Sabena (III), [1978] ECR 1365, paras. 26–31.
35
Case C-159/90, The Society for the Protection of Unborn Children Ireland Ltd v. Grogan and
others, [1991] ECR I-4685, para 31.
36
See e.g. Hettne and Eriksson (Eds.), EU-rättslig metod (Norstedts Juridik, 2005), pp. 132–133.
37
Case 5/88, Wachauf v. Bundesamt für Ernährung und Forstwirtschaft, [1989] ECR 2609.
38
Joined Cases C-20/00 and C-64/00, Booker Aquaculture Ltd, trading as Marine Harvest
McConnell and Hydro Seafood GSP Ltd v. The Scottish Ministers, [2003] ECR I-7411, para 88.
34
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requirements of fundamental rights to the Member States in Wachauf we have to
distinguish between the issue why fundamental rights were introduced in the EU
legal order in the first place (in the Stauder case39) and why fundamental rights
were extended to the Member States (in Wachauf). The former development was
pushed through by the Member States, mainly Germany and Italy, concerned by
the lack of fundamental rights protection in community law.40 The latter
development was, in our opinion, driven by rather different interests, namely
those of uniformity and equivalence. As will be developed more in Part III.E
below, the scope of application of fundamental rights can be understood as an
example of actor equivalence, in other words, that the effect of EU law on citizens
should not vary depending on whether the action is performed by the Union or the
Member State.
C. Category 2 - Restricting EU Law
The second category where Member States are bound to respect fundamental
rights is when they are restricting rights and freedoms provided for by EU law.
This was established in the ERT case,41 where Greece sought to limit the free
movement of services by establishing a broadcasting monopoly. The ECJ declared
that Member States must respect fundamental rights when justifying derogations
from the basic provisions of the internal market.42 Thus, only measures fulfilling
the requirements of fundamental rights are acceptable as justification for deviating
from the internal market rules.
The message of ERT was repeated in later cases. For some time it was unclear
whether the requirements of ERT were limited to situations when Member States
rely on an explicit derogation in the Treaties, such as (what is now) Articles 36
and 45(3) TFEU. If that was the case, use of mandatory requirements would fall
outside of the scope of fundamental rights. Some cases indicated this
interpretation,43 based on the general idea that successful use of mandatory
requirements did not provide for an exception, for example to Article 36, but took
the situation in question outside the scope of the Article entirely.
39
Case 29/69, Stauder v. City of Ulm – Sozialamt, [1969] ECR 419.
Hartley, European Union Law in a Global Context (Cambridge University Press, 2004), p. 297.
Due and Gulmann concede that the need to ensure the supremacy of Community law was part of
the explanation for the inclusion of fundamental rights as general principles of EC law, but they
argue that this step was necessary in a wider sense, in order for Community law to be accepted as
a legal system, see Due and Gulmann, “Community Fundamental Rights as part of national law“
in Scritti in onore di Giuseppe Federico Mancini, vol. II (Giuffré, 1998), pp. 405–422, at pp. 405–
406.
41
Case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon
Prossopikou v. Dimotiki Etairia Pliroforissis and Kouvelas and Avdellas and others, [1991] ECR
I-2925.
42
Ibid., para 43.
43
Joined cases 60-61/84, Cinéthèque SA and others v. Fédération nationale des cinémas français,
[1985] ECR 2605, para 26 and further discussion in Besselink, “The Member States, the National
Constitutions and the Scope of the Charter”, 8 MJ (2001), 68–80.
40
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However, this line of thinking was rejected by the ECJ in Familiapress
regarding Austrian legislation limiting the possibility of using prize competition
on magazines.44 The ECJ found the Austrian measure to be an MEQR, affecting
the content of products along the lines of Cassis de Dijon45. Austria relied on the
need to preserve press diversity as a mandatory requirement. While the Court
accepted that press diversity could constitute a mandatory requirement, it stated
that the justification must be interpreted in the light of fundamental rights, in this
case the freedom of expression.46 Thus, national measures relying on mandatory
requirements must respect fundamental rights in the same manner as national
measures relying on express derogations. As noted by Weiler,47 this is hardly
surprising. In both cases we can identify a prima facie breach of EU law and
distinguishing between them when it comes to fundamental rights would be
artificial.
Perhaps the most well known example of this aspect of fundamental rights is
the Grogan case. Here the ECJ avoided the (very sensitive) issue by concluding
that the activities of Grogan and his fellow students did not constitute free
movement of services, and thus the Irish legislation did not restrict said
freedom.48
D. A Third Category - or an Unnecessary Complication?
These two categories are claimed to indicate the scope of application of
fundamental rights vis-à-vis the Member States.49 The first situation (Wachauf) is
sometimes described as positive integration, while the second situation (ERT)
represents negative integration.50 However, many scholars add a third category,
stating that fundamental rights can also be invoked against Member States in
other situations. For example, Groussot adds a third category, encompassing
situations where action by the Member States otherwise "[fall] within the
framework of Community law".51 Within this category Groussot mainly discuss
the development of what is now Articles 18 and 20 TFEU. Craig and de Búrca
state that fundamental rights can be used in situations other than the main
44
Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v. Heinrich
Bauer Verlag, [1997] ECR I-3689.
45
Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de
Dijon), [1979] ECR 649 .
46
Familiapress, op. cit. supra note 44, paras. 18–26.
47
Weiler, The Constitution of Europe (Cambridge University Press, 1999), pp. 121–123.
48
Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v. Stephen
Grogan and others, [1991] ECR I-4685.
49
See e.g. Hettne and Eriksson, op. cit. supra note 36, pp. 132–133.
50
Besselink, op. cit. supra note 43, p. 77.
51
Groussot, Creation, Development and Impact of the General Principles of Community Law:
Towards a jus commune europaeum? (Faculty of Law, Lund University 2005), pp. 387–412.
Similarly, Reichel discusses what is now Arts. 18 and 20 TFEU as part of her discussion of the
ERT category. Reichel, God förvaltning i EU och i Sverige (Jure förlag AB, 2006), pp. 209–220.
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categories and that the issue is difficult.52 Tridimas gives a number of examples of
situations falling within the scope of general principles and fundamental rights,
going beyond the two main situations.53 He notes, inter alia, that Member State
action is reviewable even when it goes beyond minimum requirements imposed
by the Union,54 when the Member State utilizes a mere possibility to act
according to Union legislation,55 when Member States introduce penalties for
violating EU law even though this is not explicitly required by the Union act in
question,56 when Member States undermine an EU act,57 and when Member States
affect an interest protected by EU law58.
We argue that when it comes to the scope of fundamental rights, the
introduction of a third category is an unnecessary complication as the first two
categories are sufficient to describe its scope and the content of the third category
can, more logically, be distributed to other categories, significantly simplifying
the discussion. Firstly, a number of situations can actually be seen as belonging to
the two main categories, if the latter are not understood in an unduly narrow
sense.
For example, category 1 (Wachauf) encompasses situations of Member States
implementing EU law. The concept of implementation can be understood in a
narrow and a wide sense. The narrow interpretation would indicate that Member
States are bound by fundamental rights only when their action is directly and
entirely prescribed by EU law. On the other hand, a wider definition would
include all situations where the Member State action is somehow founded upon
EU law.
If one adopts the latter definition, a number of situations described by
Tridimas as Member State action otherwise falling within the scope of EU law are
actually examples of category 1. For example, in Booker, the national legislation
was according to the ECJ founded on a Union act, thereby causing the situation to
fall within the scope of fundamental rights, even though it went beyond the
minimum requirements of the Union act in question. While the national
legislation was not required by EU law the latter was the source and foundation
for the national action, which was de facto an extension of the Union action.
Similarly, the scenario in Klensch, where a Member State making use of a mere
possibility to act was sufficient to push national legislation inside the scope of
fundamental rights, is in fact a replica of the situation in Wachauf, where
Germany had made use of a possibility in the relevant regulation to award
52
Craig and de Búrca, EU Law, 4th ed. (Oxford University Press, 2008), pp. 400–401.
Tridimas, The General Principles of EU Law, 2nd ed. (Oxford University Press, 2006), pp. 39–
42.
54
Booker, op. cit. supra note 38.
55
Joined Cases 201–202/85, Klensch and others v. Secrétaire d'État à l'Agriculture et à la
Viticulture, [1986] ECR 3477.
56
Case 77/81, Zuckerfabrik Franken GmbH v. Germany, [1982] ECR 681.
57
Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96, Garage Molenheide BVBA (C286/94), Peter Schepens (C-340/95), Bureau Rik Decan-Business Research & Development NV
(BRD) (C-401/95) and Sanders BVBA (C-47/96) v. Belgium, [1997] ECR I-7281.
58
Case 207/86, Asociación Profesional de Empresarios de Pesca Comunitarios (Apesco) v.
Commission, [1988] ECR 2151.
53
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compensation to farmers who discontinued the production of milk. In both cases
the national action was directly founded upon the EU act in question. Finally, in
Zuckerfabrik Franken the penalties adopted by the Member State were, while not
expressly required by EU law, a direct consequence of the Union act and therefore
for all intents and purposes an extension of the EU action in the national arena.
The same approach can be used with regard to category 2 (ERT), comprising
restrictions of EU law. A narrow understanding of this concept would limit it to
use of express derogations to the rules of the internal market. However, this is an
unnecessarily strict understanding of the concept. We argue that category 2
includes all situations where Member States in any way restrict existing EU law,
whether by use of an express derogation or not. This interpretation is confirmed
by the approach of the ECJ in Familiapress. As noted above, the court examined
the Austrian legislation in the light of fundamental rights despite the fact that
Austria relied on a mandatory requirement (press diversity) and not a Treaty
derogation. When understood in this wider sense, category 2 includes Garage and
Apesco which Tridimas places in the third category. There is no conceptual
difference between restricting the freedoms of the internal market and
undermining another EU act (Garage) or affect another interest protected by EU
law (Apesco). In all three cases Union law has identified particular interests or
rights, which cannot be altered by the Member States without fulfilling the
requirements of fundamental rights.
Secondly, aspects of the proposed third category should not be included in a
discussion concerning the scope of application of fundamental rights. As noted
above, Groussot analyses Articles 18 and 20 TFEU in connection with a
discussion of the scope of fundamental rights. While the issues of fundamental
rights and non-discrimination on the grounds of nationality might seem obviously
connected, we argue that the scope of application of the latter is better understood
from the point of view of a different idea as compared to fundamental rights.59
Finally, it should be noted that the introduction of the Charter of Fundamental
Rights, made legally binding and put on par with the Treaties by Article 6 TEU,
has not changed the basic scope of the fundamental rights regime of the Union. It
follows from Article 6(1) TEU that the Charter "shall not extend in any way the
competence of the Union as defined in the Treaties".60 Regarding the application
of fundamental rights in the Member States some confusion has arisen due to the
wording of Article 51(1) of the Charter. The latter Article determines the
Charter’s scope of application, stating that it applies to the institutions and bodies
of the European Union and to the Member States "only when they are
59
See further infra Part IV.
Similarly, Art. 51(2) of the Charter itself states that "[t]he Charter does not establish any new
power or task for the Community or the Union, or modify powers or tasks defined by the
Treaties". However, the accuracy of this statement is challenged in the legal literature, as the
Charter undoubtedly contains some novel ideas, such as the right to strike. See e.g. Hellner,
Skyddet av grundläggande fri- och rättigheter i framtidens EU (Sieps, 2003), p. 55.
60
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implementing Union law". However, the intention appears to have been to codify
existing ECJ case law, thus encompassing both category 1 and category 2.61
E. The Idea of Actor Equivalence - Two Actors, One System
We argue that there is a philosophy or a basic idea underlying the approach of the
ECJ regarding the scope of application of fundamental rights, namely the idea of
actor equivalence. According to this idea the Member States are bound by
fundamental rights whenever they play the game of EU law. The Member States
are viewed as an extension of the Union and individuals are to be guaranteed the
same protection, no matter if the EU or the Member States are acting. The idea of
EU law as a uniform and coherent system is repeatedly emphasized by the ECJ.
When the ECJ proclaimed EU law to be a "new legal order" in van Gend en
Loos62 it obviously did not take the "order" part lightly. On the contrary, it has
been working continuously to safeguard that EU law is a complete system of law,
an essential part of which is the uniformity of EU law. The idea that the individual
should not be affected by whether the Union or the Member States are acting
(playing the game of EU law) is evident in for example Bergaderm where the ECJ
employed the same criteria to assess Union liability as was used in the earlier case
Brasserie du Pecheur63 concerning state liability, emphasizing that the protection
of the individual should not vary depending on whether the damage was caused
by the EU or the Member State.64
The Union is bound by fundamental rights in all its activities and will always
be required to live up to an appropriate level of protection65. Fundamental rights
are, in our view, the rules of the game. The Union has no inherent competence in
the area of fundamental rights66 and rarely acts for the express purpose of
advancing those rights, but fundamental rights are rules to be obeyed whenever
the Union is acting. To use a simple football analogy, the purpose of the game
might be to score goals but the rules of the game prohibit certain behavior, such as
moving the football with your hands, and these rules must be obeyed whenever
playing the game and the Union can never play anything but the EU game.
The Member States on the other hand can play different games, sometimes
playing the game of national law, sometimes the game of EU law. In the latter
61
See further Besselink, op. cit. supra note 43; Dutheil de la Rochere, ”Challenges for the
protection of fundamental rights in the EU at the time of the entry into force of the Lisbon Treaty”,
33 Fordham International Law Journal (2010), pp. 1776–1799.
62
Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v.
Netherlands Inland Revenue Administration, [1963] ECR 3.
63
Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v. Germany and The Queen v.
Secretary of State for Transport, ex parte: Factortame Ltd and others, [1996] ECR I-1029, para
51.
64
Case C-352/98 P, Laboratoires pharmaceutiques Bergaderm SA and Goupil v. Commission,
[2000] ECR I-5291, para 41.
65
See e.g. Case 4/73, Nold v. Commission, [1974] ECR 491, para 13, where the ECJ declared
fundamental rights to take precedence in a case of conflict with other EU measures.
66
As demonstrated for example by Art. 6(1) TEU.
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situation they will be bound by the same rules (fundamental rights) as the Union,
being regarded as de facto extensions of the Union on the national level whenever
their action is founded upon EU law or when they restrict existing EU rights or
freedoms.
This underlying idea explains why the ECJ has included mandatory
requirements in the sphere protected by fundamental rights. While Besselink,
among others, has argued that the use of mandatory requirements is a question of
whether a national measures is within the scope of EU law, and therefore should
not be subjected to fundamental rights review,67 others have noted that in both
cases of express derogations and cases of mandatory requirements a prima facie
breach of Union law has occurred, thus meriting examination from a fundamental
rights perspective.68 To use our language, in both cases the Member State is
clearly playing the game of EU law, interacting with existing Union rights and
freedoms, and must therefore obey the rules of the game. The requirements posed
on the Member States regarding fundamental rights do not have to be explained
from a moral perspective,69 it is a question of legal systematics: because the
Union is bound by fundamental rights the Member States are bound as well
whenever they play the game of EU law.
The idea of actor equivalence explains the extension of the scope of
application of fundamental rights vis-à-vis the Member States, but also the limits.
As soon as the action of the Member States can be separated from the Union, as
soon as the action is not founded upon or restricts Union law, the measure will be
beyond the scope of fundamental rights review. To return to our analogy, the
Member States are in those situations playing a different game. The legal
literature has pointed to situations falling outside the scope of fundamental rights
and criticized the ECJ for making artificial differences between situations. For
example, Toth argues that the fact that a national measure might be inside or
outside the scope of fundamental rights solely depending on whether a connection
can be made with another aspect of Union law is illogical.70 However, we argue
that there is nothing artificial about the distinction. The connection with "another"
aspect of EU law is in fact vital, since the protection of fundamental rights is not
the purpose of the EU law game, but rather the rules according to which the EU
law game must be played.
A number of cases illustrate this idea. In Maurin71 a French citizen was
charged with selling food products after the expiry of the use-by date, thus
67
Besselink, op. cit. supra note 43.
Weiler, op. cit. supra note 47, pp. 122–123; Lenaerts, “Fundamental rights in the European
Union”, 25(6) EL Rev (2000), 575–600, at pp. 590–591.
69
Cf. Lang, “The Sphere in which Member States are obliged to comply with the general
principles of law and community fundamental rights principles”, 91(2) Legal Issues of European
Integration (1992), p. 28, who identifies several reasons for why the Member States are bound by
fundamental rights.
70
Toth, “Human Rights as General Principles of Law, in the Past and in the Future”, in Bernitz
and Nergelius (Eds.), General Principles of European Community Law (Kluwer Law
International, 2000), pp. 73–92, at pp. 84–86.
71
Case C-144/95, Criminal proceedings against Maurin, [1996] ECR I-2909.
68
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violating French legislation on the labeling and presentation of food products.72
Mr. Maurin argued that the proceedings had violated fundamental rights, such as
the rights of the defense.73 In answer to a request for a preliminary ruling, the ECJ
observed that Directive 79/112 concerning labeling, presentation and advertising
of foodstuffs74 did not cover the specific issue of sale after use-by date, and that
the situation thus fell outside the scope of EU law.75 In other words, the French
action was not an extension of the Union and fundamental rights therefore no
longer applied.
Similarly, in Kremzov,76 an Austrian citizen had been sentenced to
imprisonment for life and argued violations of fundamental rights in the criminal
proceedings.77 He argued that the ECJ should examine violations of his
fundamental rights, as he was a Union citizen and had the right to free
movement.78 The ECJ observed that Austria was not restricting the right to free
movement, as Kremzow's possibility to use the free movement was purely
hypothetical79 and that the relevant Austrian criminal legislation was not
connected to the implementation of EU law.80 Consequently, the situation did not
fall within the scope of application of fundamental rights.81
The fact that the distinction itself is not artificial does obviously not exclude
the possibility of the ECJ "tampering" with the borders in extreme cases. The
well-known Grogan case82 is an example. It has been argued that the conclusion
in Grogan that the situation fell outside the scope of EU law was highly
convenient for the Court, which thereby avoided a very difficult and politically
sensitive review of Irish legislation, as well as legally questionable.83 While this
argument clearly has merit, the potential fault lies with the execution of the
system in Grogan, not with the system per se. As long as the Union has no
inherent and independent power in the area fundamental rights will remain rules
of the game, binding the EU and the Member States when they act as an extension
of the Union.
72
Ibid., para 2.
Ibid., para 3.
74
Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the
Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the
ultimate consumer, O.J. L 33, 8.2.1979, 1.
75
Maurin, op. cit. supra note 71, paras. 7–13.
76
Case C-299/95, Kremzow v. Austria, [1997] ECR I-2629.
77
Ibid., paras. 2–8.
78
Ibid., paras. 11–13.
79
Ibid., para 16.
80
Ibid., para 17.
81
Ibid., para 18.
82
See discussion supra Part III.C.
83
Tridimas, op. cit. supra note 53, pp. 329–332.
73
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IV. The Idea of a Europe Without Borders: The General Principle of NonDiscrimination on Grounds of Nationality
Not to be subjected to discriminatory treatment based on nationality is arguably
the most essential aspect of the fundamental freedoms. However, only economic
actors fall within the scope of those rights.84 Those specific prohibitions against
discrimination on grounds of nationality are therefore supplemented by Article 18
TFEU that functions as a lex generalis and applies to situations that fall outside
the scope of the former.85 Article 18’s scope is however also limited in certain
regards.
Unlike previously discussed Treaty provisions, Article 18 TFEU contains no
specific limitation of the personal scope which is therefore the same as the general
personal scope of EU law, Union citizens.86 More significantly, it follows
explicitly from Article 18 TFEU that the provision only catches situations that fall
within the “scope of application of the Treaties”, and its scope is thus connected
to the scope of the Treaties. But what does that mean? Does the “scope of
application of the Treaties” mean the same as the “the scope of Union law” as
interpreted in case law concerning fundamental freedoms or in case law
concerning fundamental rights? The Court’s interpretation of Article 18’s scope
suggests that it is an extended hybrid of both ideas.
First, the Court of Justice has applied the provision to situations related to the
internal market but where no specific provision against discrimination applied. An
example of this is Cowan where the ECJ held that Article 18 prevents a Member
State from denying victim compensation to a tourist from another Member State
when it would have awarded such compensation to its citizens and permanent
residents. Mr. Cowan’s situation fell within “the scope of application of the
Treaties” for the purpose of Article 18 as he was exercising his right to free
movement of services by being a tourist and “the protection of that person from
harm in the Member State in question, on the same basis as that of nationals and
persons residing there, is a corollary of that freedom of movement.”87 That Mr.
Cowan’s and similar situations fall within the scope of Article 18 can thus be
explained by the idea of the internal market. In such situations, Article 18 extends
the right of non-discrimination on grounds of nationality to include non-economic
actors that fall outside the scope of the fundamental freedoms but that are
nevertheless relevant to the internal market.
Second, Article 18 TFEU also applies to national measures that in other ways
are capable of affecting the exercise of a fundamental freedom. The ECJ has in
84
See supra Part II.A.
See e.g. Case 305/87, Commission v. Greece, [1989] ECR I-1461, para 13; Case C-379/92,
Criminal proceedings against Peralta, [1994] ECR I-3453, para 18; Lehtonen, op. cit. supra note
23, para 37.
86
Art. 20(2) TFEU. Thus, non-EU citizens cannot rely on Art. 18 TFEU if discriminated on
grounds of nationality. Case C-291/09, Francesco Guarnieri & Cie v. Vandevelde Eddy VOF,
judgment of 7 April 2011, nyr, paras. 19–20. See also supra Part I.
87
Case 186/87, Cowan v. Trésor public, [1989] ECR 195, paras. 14–20, para 17 qouted. The ECJ
does not explicitly address why Mr. Cowan could not rely on the more specific right not to be
discriminated against when exercising the free movement of services laid down in Art. 56 TFEU.
85
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several cases used the provision to strike down national discriminatory procedural
rules including rules requiring foreign litigants to provide security pending
judgment (cautio judicatum solvi), for example in Data Delecta regarding
payment for the supply of goods and in Phil Collins regarding copyright
infringement. Both these cases concerned substantive and procedural issues not
covered by EU law. Nevertheless, the situations fell within “the scope of
application of the Treaties” and consequently within the scope of Article 18
because national law was capable of indirectly affecting intra-Union trade in
goods and services.88 That such situations fall within the scope of Article 18 can,
like the previously discussed situations, be understood as an extension of the idea
of the internal market. It does however also resemble situations where a Member
State restricts a right under EU law and where they are bound to respect
fundamental rights.89 The main difference is that rules such as those in Data
Delecta and Phil Collins restrict EU law more indirectly. Article 18’s scope can in
this regard be viewed as based on an extended version of the idea of actor
equivalence.
Third, Article 18 also applies when a Member State refuses a citizen of
another Member State a right that is covered by EU legislation but when the
person in question falls outside the personal scope of that legislation. For
example, the ECJ has examined the right of lawfully residing, foreign nonworkers to receive social benefits establishing that Article 18 prevents Member
States from discriminating on grounds of nationality in awarding social benefits
covered by EU legislation applicable to workers.90 If the discriminated individual
was within the personal scope of the legislation, he or she would be able to rely on
it. In these situations, Article 18 extends rights created to support the internal
market to others than the economically active originally intended to be within the
personal scope. In this regard, Article 18 operates as an extension of the idea of
the internal market. A person seeking to rely on Article 18 in such situations must
however be a citizen of one Member State that is lawfully residing in another
Member State.91
Fourth, a situation can fall within the scope of Article 18 TFEU solely on the
ground that the EU has legislative competence in a related area. In Saldanha a
foreign litigant brought a claim in an Austrian court against an Austrian
corporation in which he was a shareholder seeking to prevent the corporation
from transferring assets to a subsidiary. In that process, Mr. Saldanha challenged
the validity of a discriminatory Austrian rule of cautio judicatum solvi. The ECJ
concluded that it was unnecessary to determine whether he fell within the scope of
any fundamental freedom since the Treaties provide the Union with competence
88
Case C-43/95, Data Delecta Aktiebolag and Forsberg v. MSL Dynamics Ltd., [1996] ECR I4661, paras. 14–15; Joined Cases C-92/92 and C-326/92, Phil Collins v. Imtrat
Handelsgesellschaft mbH and Patricia Im- und Export Verwaltungsgesellschaft mbH and Leif
Emanuel Kraul v. EMI Electrola GmbH, [1993] ECR I-5145, paras. 19–28. See also Guernieri,
op. cit. supra note 86 (not applying Art. 18 since the claimant fell outside its personal scope).
89
See supra Part III.C.
90
Martínez Sala, op. cit. supra note 13, paras. 28, 57. See also Case C-184/99, Grzelczyk v. Centre
public d'aide sociale d'Ottignies-Louvain-la-Neuve, [2001] ECR I-6193.
91
See e.g. Martínez Sala, op. cit. supra note 13, para 63; Grzelczyk, op. cit. supra note 90, para 32.
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to legislate for the purpose of protecting shareholders’ interests and this was
sufficient to place Mr. Saldanha’s situation “within the scope of the Treaty” and
consequently within the scope of Article 18.92
Article 18’s scope thus appears to be based on an independent idea that in
some situations acts as an extended version of the two ideas previously discussed,
but in other situations is independent of and extends beyond these. Saldanha can
for example be compared to Maurin where legislative competence was
insufficient to place a situation “within the scope of Union law” for the purpose of
an individual invoking fundamental EU rights against a Member State.93 The
scope of Article 18 is in this regard significantly greater than in situations
discussed above. In fact, the scope of Article 18 is so generous that it is difficult
to imagine a situation where a citizen of one Member State lawfully residing in
another Member State would be unable to invoke the provision against the host
Member State if it discriminates on grounds of nationality. Considering that the
Court has extended the scope of Article 18 to every situation that has any
connection to Union law, no matter how small, we refer to its underlying idea as
one of a Europe without borders.
V. Some Final Thoughts Towards a General Theory of the (Not General)
Scope of EU Law
Numerous EU law sources suggest that EU law has a general scope. For one
thing, the Treaties refer to the scope of Union law and the scope of the Treaties on
numerous occasions, including when defining the powers of the European Union94
and when prohibiting discrimination on grounds of nationality95. Moreover, the
ECJ has extensively referred generally to the scope of Union law when
determining whether a right under EU law can be invoked in a particular situation
when the right in question is a right to free movement protected by the Treaties,96
a fundamental right protected as part of the general principles of EU law,97 and
when an individual claims that a Member State has discriminated against him or
her on grounds of nationality.98
Such referrals to the scope of Union law and to the scope of the Treaties are
unfortunate as the reader will reasonably assume that EU law has a general scope
92
Saldanha, op. cit. supra note 7, paras. 21–23. The Court placed no relevance on the fact that the
EU had not used this competence to enact legislation applicable to situations such as the one at
hand. It should be noted that it follows from the previously discussed cases that lack of legislative
competence does not place a situation outside the scope of Art. 18 TFEU. See e.g. Phil Collins, op.
cit. supra note 88, para 22.
93
See discussion supra Part III.E.
94
Arts. 14, 16(2) and 33 TFEU.
95
Art. 18 TFEU and Art. 21(2) of the Charter.
96
See e.g. Walrave, op. cit. supra note 21, para 4.
97
See e.g. Grogan ,op. cit. supra note 48, para 31.
98
See e.g. Grzelczyk, op. cit. supra note , para 30.
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whereas, as demonstrated above, it does not. It is also unfortunate because it will
lead the same reader to believe that the phrases “scope of Union law” and “scope
of application of the Treaties” have a consistent meaning which, again, we have
demonstrated it does not. What falls within the scope of EU law differs depending
on the context and on what idea the scope of EU law is based. There is thus no
magic formula, defining the scope of EU law.
One might also expect that that only situations with a cross-border element
fall within the general scope of EU law or, reformulating the same proposition,
that purely internal situations fall outside the scope of EU law.99 While the
examination shows that the existence of a European dimension is a central
requirement for placing a situation within many EU law provisions preventing
discrimination, it also shows that other such provisions may cover situations
lacking cross-border elements.
The situation appears chaotic, without any perceivable pattern, as seemingly
similar situations of discrimination fall within and outside the scope of EU law.
An illustrative example is the differences in outcome in Saldanha100 and
Bartsch101. In Saldanha, the Union’s legislative competence in the area was
sufficient to bring the situation within the scope of EU law even though it had not
exercised this competence. This can be contrasted with the situation in Bartsch.
Mrs. Bartsch was denied survivors pension since she was more than 15 years
younger than her deceased husband and the issue was whether she was protected
by the general principle prohibiting discrimination on grounds of age. The ECJ
noted that the implementation period for Directive 2000/78 on equal treatment102
had not yet passed and concluded that Article 19 TFEU, which gives the Union
the right to take action to combat discrimination, could not bring the situation
within the scope of EU law.103 Consequently, the situation fell outside the scope
of EU law, distinguishing Bartsch from for example Mangold104 where
implementation legislation existed.105
It is difficult to understand the differences in approach in Saldanha and in
Bartsch if we take our point of departure in the purpose of the relevant rules. The
aim and purpose of Article 18 TFEU is obviously closely related to the aim and
purpose of the general principle prohibiting discrimination on grounds of age,
going beyond the confines of the internal market and creating a Union of social
and political rights, and yet the scope of EU law is determined differently in
Saldanha and in Bartsch. In the former case legislative competence was sufficient
to activate Article 18 TFEU, while in the latter the general principle could not be
99
See e.g. Groussot, op. cit. supra note 51, pp. 387–388, who attempts to negatively define the
scope of EU law by discussing the doctrine of purely internal situations.
100
Discussed supra Part IV.
101
Case C-427/06, Bartsch v. Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH, [2008]
ECR I-7245.
102
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for
equal treatment in employment and occupation, OJ L 303, 2.12.2000, 16.
103
Bartsch, op. cit. supra note 101, paras. 8–13 and 15–18.
104
Case C-144/04, Mangold v. Rüdiger Helm, [2005] ECR I-9981.
105
Bartsch, op. cit. supra note 101, para 24.
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employed even though the Union both had legislative competence in the field and
had exercised it.
The difference in outcome between Bartsch and Saldanha can however be
explained if we take our point of departure in the underlying ideas of the scope of
EU law. While rules on discrimination vary in scope, it is not random but depends
on which main idea governs the scope: the idea of the internal market, the idea of
actor equivalence, or the idea of a Europe without borders. Saldanha concerns
Article 18 TFEU whose scope is determined broadly in accordance with the idea
of a Europe without borders in order to promote European integration. In contrast,
Bartsch concerns a fundamental right whose scope is determined in accordance
with the idea of actor equivalence so that the individual’s protection against
discrimination by the EU and by the Member States is the same in situations
where the latter act as an extension of the former. These different ideas will lead
to diverging approaches to the issue of the scope of the provisions. While Article
18 requires only the weakest of links with EU law, fundamental rights can only be
employed when the action of the Member State is a de facto extension of the
Union. As soon as the Member State’s action can be separated from the Union,
when the chain is broken, the situation falls outside the scope of EU law.
One of the most significant differences between the ideas lies in the
relationship between scope and substance. With regard to rules on the internal
market and Article 18 TFEU the ideas underlying the scope relate to the purpose
of the substantive rules: scope is determined in a way which gives effect to the
rules, for example are internal market rules given a scope that promotes the
creation and functionality of the internal market, most obviously by including
only economic activity. The same does not hold true for fundamental rights where
one must distinguish between why Union law protects fundamental rights and
why this obligation is extended to the Member States. When determining
fundamental rights’ scope the main issue is securing the coherence and uniformity
of the EU legal system by ensuring actor equivalence and offering individuals
maximum protection is only indirectly a concern.106
In this article we have demonstrated that all is not chaos when it comes to the
scope of EU law, that the scope of Union law is governed by different ideas, but
also that these ideas are internally coherent. Each idea makes sense on its own.
For example, as discussed above,107 the fact that action by Member States only
fall within the scope of fundamental rights when the Member State is
implementing or restricting EU law is not, contrary to claims in the literature,108
artificial but rather a natural consequence of the underlying idea. As fundamental
rights is not an independent competence of the Union they remain rules of the
game, secondary obligations which enter into play if (and only if) other, primary
EU obligations are present, in order to achieve the same protection for EU citizens
no matter if the EU or the Member States are acting. Since the three ideas of the
scope of EU law are very different, reflecting the characteristics of the areas, the
practical application of the rules on discrimination will vary correspondingly.
106
See discussion supra Part III.
See Part III.E.
108
Toth, op. cit. supra note 70, pp. 84–86.
107
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That variations in the scope of EU law can be explained by different
underlying ideas, and that these ideas are rational per se, does not exclude
criticism; it appears haphazard when EU rules relating to a single issue, such as
discrimination, differ so greatly in scope. For example, imagine that the facts of
Grzelczyk were different and that Belgium denied Mr. Grzelczyk minimum
subsistence allowance on the basis of his gender and not his nationality. He would
no longer fall within the scope of Article 18, nor would he be able to rely on
Article 157 TFEU because that only applies to difference in payment. He would
also fall outside the scope of the general principle of equal treatment since
Belgium was neither implementing EU law nor restricting a right under EU law
and he was not exercising a fundamental freedom. Thus, the seemingly small
difference that the ground for discrimination was gender rather than nationality
would cause Mr. Grzelczyk’s situation to fall outside the scope of all EU law rules
protecting him against discrimination.109
We would like to emphasize that the underlying ideas presented in this article
apply not only to rules on discrimination but generally within the three areas. For
example, the scope of rules on restrictions in the internal market is determined in
the same way as rules on discrimination in the internal market, concentrating on
economic activity. Similarly, the scope of all fundamental rights, even those not
concerned with discrimination, is determined in the same manner, including
situations where the Member States are implementing and restricting EU law.
Finally, the existence of three underlying ideas obviously does not rule out
the existence of additional ideas. We look forward to further academic discussion
on this topic, moving beyond paralyzing dichotomies to the fertile middle ground
that is the underlying ideas shaping European Union law.
109
For the purpose of this example we obviously disregard the existence of secondary legislation
in the field.
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