Enforcement of EU Law - Case studies for the Seminar II
Case 1
Read Craig and de Burca, pp380 - 425
Consider the following scenario:
You are a lawyer practicing in the Kingdom of Öfland o Pöfland (KÖP), an EU member state.
Mrs Cucurbita, one of your clients, calls you early one morning to say that KÖP’s
Competition Authorities (KCA) have carried out a raid of her family home. She is a director
of a large retail company, Wallworths SA, and the competition authorities were looking for
evidence that her company had entered into an agreement with another retail company,
N&T SA, in breach of EU competition law, in particular Article 101 TFEU.
Your client is outraged that her privacy and her family home have been violated in this way.
The KCA officials woke up her children and scared her husband. She had asked them to
come back later when her children were in school but they refused and forced their way in.
They then searched through your client and her family’s most intimate and private
belongings, including their correspondence. She has instructed another law firm to deal
with the competition law matter, but asks you for advice on whether she may have grounds
for bringing an action against the KCA for breach of her fundamental rights.
You do some research and consider that your clients may have an argument that the
actions of the KCA breached the following fundamental rights provisions:
Charter of Fundamental Rights of the European Union
Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and
communications.
European Convention on Human Rights (ECHR)
Article 8
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
Basic Law of the Kingdom of Öfland o Pöfland
Article 1
The privacy of the home is inviolable. State officials must not enter private homes
without the express consent of the occupier, unless this is strictly required in order to
save life or serious damage to property, or to prevent serious crime
You do some further research and find out that:
a) The Constitutional Court of KÖP has held that action aimed at the investigation of
alleged economic crimes is not action that can be considered strictly required in
order to prevent serious crime, within the meaning of Article 1 of the Basic Law of
KÖP.
b) The European Court of Human Rights has held that searching a private house of a
company director in order to find evidence of offences allegedly committed by the
company is an interference with the rights set out in Article 8 of the ECHR.
c) You are unable to find any case law of the Court of Justice of the EU on whether
searching a private house of a company director in order to find evidence of offences
allegedly committed by the company is or is not an interference with Article 7 of the
Charter.
Encouraged by your findings, you write a letter before action to KCA, setting out your
client’s complaint in general terms, and indicating that you intended to begin proceedings
against them in the Royal Administrative Court of Klïster Est (the capital of KÖP) unless
you have a satisfactory response within 14 days.
You receive a response a week later. The KCA denies that it breached Mrs. Cucurbita’s
rights. Furthermore, the KCA states that it was merely complying with a request by the
European Commission, under Article 22(2) of Regulation 1/2003 EC (the Modernisation
Regulation). This provision states:
Article 22
1 […]
2. At the request of the Commission, the competition authorities of the Member States
shall undertake the inspections which the Commission considers to be necessary under
Article 20(1) or which it has ordered by decision pursuant to Article 20(4).
You are asked to advise your client on the following questions:
1. What legal avenues may be available to Mrs Cucurbita to challenge the KCA’s actions
on the grounds that it breaches her fundamental rights? Please consider all 3
fundamental rights provisions set out above, and advise on which courts may be
available to her in order to enforce those rights. Provide reasons for your advice.
2. Article 1 of the Basic Law of KÖP seems to provide greater protection to Mrs.
Cucurbita’s right to privacy. If it is the case that the KCA were acting on behalf of the
Commission, under Article 22(2) of the Modernisation Regulation, would Mrs
Cucurbita be able, under EU, to rely on that greater level of protection?
Case 2
Read Craig and de Burca, pp551 – 558 (Ch 15.4 B). Read in addition the following cases:
Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut
Eifert v Land Hessen
C-60/00 Mary Carpenter v Secretary of State for the Home Department
C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v
Viking Line ABP and OÜ Viking Line Eesti.
Focus in particular on how the Court of Justice deals with the justification of the
interference with fundamental rights. Discuss:
Who is the bearer of fundamental rights in each case?
Who is required to respect fundamental rights?
How does the Court apply the principle of proportionality in each of these cases? Is the
Court’s approach the same in all cases? If not, how does it vary?