By Christopher Unseld
“Viking, Laval and Beyond”, edited by Mark Freedland and Jeremias Prassl, constitutes the first volume of Hart’s new series on “EU Law in the Member States”. In the series’ foreword Sacha Prechal lays out how crucial it is to understand the “genuine life of EU law in the Member States” since EU law – of course – is generally transposed, applied and enforced at the domestic level. But that is easier said than done. One needs good knowledge of EU law, domestic and comparative (EU) law to come close to some understanding of what Prechal calls EU law’s genuine life. And, let’s be honest, it is often hard enough to keep up with the current developments in EU law while not losing touch with domestic legal issues. Continue reading
Yesterday, the Court decided to give horizontal effect to Article 34 TFEU on the free movement of goods. In the Fra.bo case, the Oberlandesgericht Düsseldorf had asked whether a private-law association (DVGW) ought to be subject to the principle of free movement of goods. The organisation at issue operates both to draw up technical standards for products used in the drinking water supply sector and to certify products based on these standards.
As Laurens has pointed out in his post on the Advocate General’s opinion, the Court has accepted such horizontal effect for the other Treaty freedoms, but not yet for the case of the free movement of goods. Advocate General Trstenjak, however, suggested in her Opinion to extend the reasoning of cases like Bosman, Viking and Laval by analogy. Based on their horizontal effect, fundamental freedoms could thus be imposed in cases where non-public organisations held the power to draw up certain kinds of collective rules. In the present case, the German private organization DVGW possessed in her view a de facto competence to determine what fittings could be offered for sale on the market in pipes and accessories for drinking water supply in Germany (para 41). The Advocate General pointed out that horizontal effect was required by the effet utile of European Union law because (paras 46 ff.) the abolition of obstacles to trade imposed on Member States might otherwise be compromised by obstacles erected by private parties. Also, the fact that some Member States would rely on public standardisation bodies while others turn to private organisations may lead to inequalities in the application of EU law. Continue reading