This month’s case law digest contains a number of important constitutional cases on judicial independence and the duty of national courts to request CJEU rulings. It also has updates on the principle of solidarity amongst Member States; the rights of economically inactive Union citizens to be affiliated to the public sickness insurance system of a host Member State, and the interpretation of Directive 2000/78 on combating discrimination on grounds of religion or belief in the workplace..

Court: Court of Justice of the European Union – K. Lenaerts, President

Case: C-709/20 The Department for Communities in Northern Ireland

Date: 15 July 2021

Facts: On 4 June 2020, CG, a Dutch and Croatian national, was granted pre-settled status in the United Kingdom on the basis of the EU Settlement Scheme. In the same month, CG’s application for Universal Credit was refused by the Department for Communities in Northern Ireland. CG claims that the refusal to grant her social assistance, despite the fact she was granted a right of residence for a fixed period under the EU Settlement Scheme, constitutes different treatment by comparison with British citizens and therefore discrimination on the grounds of nationality.

The Appeal Tribunal for Northern Ireland referred a set of questions to the Court of Justice seeking to ascertain whether there is direct or indirect discrimination, for the purposes of Article 18 TFEU, as a result of certain EU citizens residing in the UK being prevented from receiving social benefits due to the legal nature of their right of residence.

Held: The Court of Justice found that the UK legislation is compatible with the principle of equal treatment laid down by Article 24 of Directive 2004/38, and requiring the competent national authorities to check that a refusal to grant social assistance based on that legislation does not expose the EU citizen and his or her children to an actual and current risk of infringement of their fundamental rights, as enshrined in the Charter of Fundamental Rights of the European Union.

Court: Court of Justice of the European Union – K. Lenaerts, President

Case: C-795/19 Tartu Vangla

Date: 15 July 2021

Facts: XX was employed as a prison officer by Tartu Prison (Estonia) for fifteen years. During this, Regulation No 12 of the Government of Estonia on health requirements and medical checks for prison officers entered into force. This regulation prescribes that impaired hearing falling below a certain minimum standards constitutes an absolute medical impediment to the exercise of the duties of a prison officer. As XX fell below the minimum standards, he was dismissed from his job on 28th June 2017.

XX brought an action before the Administrative Court of Estonia arguing that the regulation directly discriminated him on grounds of disability contrary to the Constitution. Whilst this was dismissed by the Administrative Court, the Court of Appeal upheld his appeal and decided to initiate the procedure for reviewing the constitutionality of the provisions of that regulation before the Estonian Supreme Court. Noting that the obligation to treat persons with a disability without discrimination was also part of EU law, the Supreme Court decided to refer a question to the Court of Justice as to whether the provisions of Directive 2000/78 preclude such national legislation.

Held: The Court of Justice found that Regulation 12 falls within the scope of the directive but is not proportionate to its aims and is therefore contrary to Article 4(1) of Directive 2000/78. They concluded that Article 2(2)(a), Article 4(1) and Article 5 of Directive 2000/78 preclude national legislation which imposes an absolute bar to a prison officer remaining in employment when his or her hearing acuity does not meet the minimum standards of sound perception prescribed by that legislation, without allowing it to be ascertained whether the officer is capable of fulfilling those duties after the adoption of reasonable accommodation measures within the meaning of Article 5.

Court: Court of Justice of the European Union – K. Lenaerts, President

Case: C-848/19 P Germany v Poland

Date: 15 July 2021

Facts: In 2009, the European Commission had approved, subject to conditions, the decision of the German Federal Network Agency to exempt the OPAL pipeline from the rules under Directive 2003/55 1 (later replaced by Directive 2009/73 2 ) on third-party access to the gas pipeline network and on tariff regulation. The Republic of Poland brought an action for annulment of that decision before the General Court. The General Court annulled the contested decision because it had been adopted in breach of the principle of energy solidarity, as provided for in Article 194(1) TFEU.

Germany appealed on the grounds that energy solidarity is merely a political concept rather than a legal criterion directly supporting the inference of rights and obligations on Member States.

Held: The Court of Justice upheld the judgment of the General Court noting that the principle of solidarity is a fundamental principle of EU law, which is mentioned in several provisions of the EU and FEU Treaties and which finds specific expression in Article 194(1) TFEU. That principle is closely linked to the principle of sincere cooperation, which requires the European Union and the Member States, in full mutual respect, to assist each other in carrying out tasks which flow from the Treaties. It therefore cannot be ruled out that that principle produces binding legal effects. The Court concluded that the legality of any act of the EU institutions falling within the European Union’s policy on energy must be assessed in the light of the principle of energy solidarity, even if there is no express reference to that principle in the secondary legislation applicable, in this case, Directive 2009/73.

 

Court: Court of Justice of the European Union – K. Lenaerts, President

Case: C-791/19 Commission v Poland

Date: 15 July 2021

Facts: The European Commission brought an action before the Court of Justice seeking a declaration that, in adopting the new disciplinary regime applicable to judges of the Polish Supreme Court and to judges of the ordinary courts, Poland has failed to fulfil its obligations under EU law.

Held: The Court of Justice upheld all the complaints made by the Commission and found that Poland had failed to fulfil its obligations deriving from EU law. The Court highlighted that the Disciplinary Chamber of the Supreme Court does not provide all the guarantees of impartiality and independence and, in particular, is not protected from the direct or indirect influence of the Polish legislature and executive. With this in mind, the disciplinary regime allows the content of judicial decisions adopted by judges of the ordinary courts to be classified as a disciplinary offence; accordingly, allowing it to be used in order to exert political control over judicial decisions. As the Court found that there has been a failure to fulfil obligations, the Member State concerned must be required to take the measures necessary to rectify the situation.

Court: Court of Justice of the European Union – K. Lenaerts, President

Case: C-535/19 A (Public health care)

Date: 15 July 2021

Facts: A, an Italian national married to a Latvian national, left Italy and settled in Latvia to live with his wife and their two infant children. Shortly after arriving in Latvia on 22 January 2016, he applied to the Latvian National Health Service to become affiliated to the Latvian social security system. His request was refused by decision of 17 February 2016, which was confirmed by the Ministry of Health on the ground that A was not included within any of the categories of recipients of medical care financed by the State since he was neither employed nor self-employed in Latvia.

Having his action against the refusal decision of the Latvian authorities dismissed, A brought an appeal before the Latvian Regional Administrative Court, which also delivered a judgment unfavorable to him. The Latvian Supreme Court hearing an appeal brought by A, decided to ask the Court of Justice about the compatibility of the dismissal by the Latvian authorities of A’s request with EU law in the areas of citizenship and social security.

Held: The Court confirmed the right of economically inactive Union citizens residing in a Member State other than their Member State of origin to be affiliated to the public sickness insurance system of the host Member State in order to obtain medical care financed by that State. The Court however stated that the host Member State of an economically inactive Union citizen may provide that access to that system is not free of charge in order to prevent that citizen from becoming an unreasonable burden on the public finances of that Member State.

Court: Court of Justice of the European Union – K. Lenaerts, President

Case: Joined Cases C-804/18 and C-341/19 WABE and MH Müller Handel

Date: 15 July 2021

Facts: IX, a special needs carer, and MJ, a sales assistant and cashier, both wore an Islamic headscarf at their respective workplaces whose companies were governed by German law. IX’s employer, WABE eV asked her to remove that headscarf and, following her refusal, temporarily suspended her from her duties on two occasions and gave her a warning. MJ’s employer, MH Müller Handels GmbH, following her refusal to remove that headscarf at her workplace, first transferred her to another post in which she could wear that headscarf and then, after sending her home, instructed her to attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs.

IX brought an action before the Hamburg Labour Court seeking an order that WABE remove from her personal file the warnings concerning the wearing of the Islamic headscarf. MJ brought an action before the national courts seeking a declaration that Müller Handel’s instruction was invalid. MJ’s action before those courts was upheld and Müller Handel subsequently brought an appeal on a point of law before the German Federal Labour Court.

In that context, the two courts decided to refer questions to the Court of Justice concerning the interpretation of Directive 2000/78.

Held: The Court held that Article 1 and Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that a rule of undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, does not constitute direct discrimination on the grounds of religion or belief provided that that rule is applied in a general and undifferentiated way.

The Court also found that Article 2(2)(b) of Directive 2000/78 must be interpreted as meaning that a difference of treatment indirectly based on religion or belief, on prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, may be justified by an employer’s desire to pursue a policy of neutrality with regard to its customers or users, provided that that policy can; firstly, be proven to meet a genuine need on the part of that employer in relation to the legitimate wishes of customers in relation to that policy; secondly, that difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied; and, thirdly, that the prohibition in question is limited to what is strictly necessary. Article 2(2)(b)(i) of Directive 2000/78 can also only be justified if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs. Therefore, a prohibition which is limited to the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs is liable to constitute direct discrimination on the grounds of religion or belief, which cannot in any event be justified on the basis of that provision.

Court: Court of Justice of the European Union – Advocate General Maciej Szpunar’s Opinion

Case: Advocate General’s Opinion in Case C-261/20 Thelen Technopark Berlin

Date: 15 July 2021

Facts: This reference is made in the context of a dispute between MN, which operates an engineering office (’the applicant’), and a property development company (‘the defendant’) concerning the amount of fees owed by the defendant to the applicant. The parties had entered into an contract by which the defendant undertook to pay the claimant a fee which was lower than the mandatory minimum amount provided for by national law (‘the HOAI’). The Defendant paid the applicant the amount agreed in the contract. The applicant however is claiming the difference between the amount paid and the minimum amount obligatory under the HOAI.

The referring court observed, first of all, that on the basis of the HOAI the claimant is entitled to payment of that difference by the defendant. However, it queries whether it is obliged to disapply the national legislation in this case because it is contrary to Article 15(1)(2)(g) and (3) of Directive 2006/123. If so, the applicant would not be entitled to payment of the difference claimed. Furthermore, the national court wondered whether that national legislation is also contrary to Article 49 TFEU.

Held: Advocate General Maciej Szpunar sets out that a national court hearing a dispute between individuals concerning a claim based on a national provision which fixes minimum tariffs for service providers in a manner that is contrary to the Services Directive must disapply such a national provision. That obligation results from the specific nature of the provisions of the Services Directive as provisions giving specific expression to the freedom of establishment enshrined in the Treaty and from the need to respect the fundamental right to freedom of contract guaranteed by the Charter of Fundamental Rights of the European Union.

Court: Court of Justice of the European Union – Advocate General Saugmandsgaard Øe’s Opinion

Case: Advocate General’s Opinion in Case C-401/19 Poland v Parliament and Council

Date: 15 July 2021

Facts: The Republic of Poland brought an action before the Court of Justice for annulment of Article 17 of Directive 2019/790 where providers of online sharing services (so-called ‘Web 2.0’ services) are directly liable when protected subject matter is illegally uploaded by users of their services. Within this, the providers must actively monitor the content uploaded by users in order to prevent the uploading of protected subject matter which the right holders do not wish to make accessible on those services. According to the Republic of Poland, that article infringes the freedom of expression and information guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’). In assessing the lawfulness of Article 17 of the directive, the Court will therefore have to determine whether, and if so under what conditions, imposing monitoring and filtering obligations on online intermediary service providers is compatible with that freedom.

Held: Advocate General Henrik Saugmandsgaard Øe proposes that the Court should find that Article 17 of Directive 2019/790 is compatible with freedom of expression and information and therefore dismiss the action brought by Poland. Whilst the Advocate General considers that the contested provisions do entail an interference with the freedom of expression of the users of online sharing services, that interference satisfies the conditions laid down in Article 52(1) of the Charter and is therefore compatible with the Charter. The Advocate General observes, moreover, that Article 17 of Directive 2019/790 meets an objective of general interest ensuring effective protection of intellectual property rights