w1w2.pdf

w1w2 W2 The sources of EU law, I think you also talked about this with Roland, are primary law in the treaties. There are two main founding treaties now: the TEU, the Treaty on the European Union, and the Treaty on the Functioning of the European Union. Main sources of so-called primary law, which i...

w1w2 W2 The sources of EU law, I think you also talked about this with Roland, are primary law in the treaties. There are two main founding treaties now: the TEU, the Treaty on the European Union, and the Treaty on the Functioning of the European Union. Main sources of so-called primary law, which is the treaties. But it's not only treaties; it's also protocols because, you know, international law often questions which are very complicated, very detailed, very technical. You put them into protocols. Or things you want to hide from the public, you also put them into protocols. And a very nice example is the protocol number 17. I think it's number 17. I sometimes mix it up with number 27. Maybe look it up. Otherwise, I'll say something wrong. Is the protocol number-- I don't find it now. Select protocols. I'm told it was number 17. I have to look that up. Let me say it's number 17 because it's the protocol which says that the European Union is based on a market competition legal order, understated competition. I think it's number 17, but it's not in the Blackstone, which is funny. However, so 27, it's number 27. Thank you very much. Sometimes it makes that up. Number 27. Okay. When the Treaty of Lisbon was negotiated, there was a general election in France. It was a general vote on the treaty. And the French said, no, we don't want to have it, except for the Irish as well, actually. The Irish also said, no, sorry. Referendum, thank you very much. Referendum is right. Referendum. And the Irish and French said, no, we don't want to. The Irish campaign is led by a very conservative, I think, anti-European Union campaign, which was funded, I think, from foreign countries, Murdoch and so on. I remember because I lived in Northern Ireland. And they said, when the Treaty of Lisbon will be introduced, there will be a general right to abortion. Exactly. And Ireland will lose its independence, its neutral status on military issues. Not that Ireland has a very big army, which is very important. The abortion question is totally crazy. It was just an invention. There's no right to abortion under EU law. There's just the right of services, free movement of services. So you can go as a woman from Ireland to, I don't know, the UK at that time, now to continental Europe and have an abortion made and Irish have to pay. That's right, actually, but that has been the case before already. So this was just... The French had another idea. It was probably also misleading. They said, well, there's much too much competition in the European Union. And so in order to resolve that problem, what was before Article 4, TEEC, or TEC, Treaty on the European Community, which says there shall be undisturbed competition, was now adhered to in the Protocol No. 27. We have the same rule, and the government of France could say, well, there's no competition rule anymore in the treaty. It didn't say to the public that there’s a competition rule in the protocol. Protocols and treaties have the same legal value for the same legal level. Okay, well that's what they did. Long explanation, but it's just interesting that what you have to try is protocols and sometimes it's necessary to look into that protocol number 27 for means of interpretation as well. ### W2.1: Methods of Interpretation This will be the point we have to also think about is methods of interpretation sorry methods of interpretation this is something we already talked about before um so I can go over quickly there's another point I want to be more into detail so how do we interpret European Union rules that's what I said before already mostly actually teleological okay I have I have that here as the fourth point. Most important teleological approach of interpretation. We use the idea of the common internal markets. We think about uniform application, the aim of ever closer union. And all this together is the teleological approach. We look at the aims and objectives of specific rules. And then the court very often says, well, that's the fate of integration, so that's how we interpret rules. That's only very broad. Language and systematic interpretation play a role. They're not that important because we have 24 official languages. Serbia comes into the EU, we have 25 official languages because the Serbian language and the Croatian language are two different languages. Although I think you can understand the other language. If Ukraine would come to the European Union, then we have the Ukrainian language, which goes to the Polish language. I think it's closer to Polish than it is to Russian. It would be another language. So all the time we have these mistakes with translation. That's why the court, and sometimes you also, that's an important point maybe. Sometimes you can use that. We have different languages as a means of interpretation. I'll give you an example. If you look into Article 101 TAPU, this is the prohibition of cartels. And the prohibition of cartels says that more or less agreements between undertakings and so on, which have as their effects or objects the prevention and restriction of competition, and so on, shall be prohibited. Okay? And there's also a condition that these agreements may affect trade between member states. The German wording of Article 101 is not “ affect”, because we don't have that word. It fits very nicely. “Effect” you say in German, the word in German is "hindern" which hindern, hindering, okay you understand in English as well, which hinders trade with member states. Now the question was whether Article 101 is applicable if an agreement- specific case has positive effects, effects now with E, effects on trade with member states which can be the case in specific situations. Okay, effect with E or affect or hinder it? What is the right interpretation? The German argument would be well, hinder means less straight. So Article 101 is only applicable if you have less straight. English affect is very open. Affect means any effect, okay? Always get “ If the specific cartel agreement somehow has an effect on the trade of member states.” Now the court, the argument was, well, how is the French version of the treaty? In French it says affectui, affecti, affecti. Affecti is like in English, like effect, okay? and the version in Spain also the same and so on lots of languages they look at all language versions and sometimes see what's only the German version says hindering and there's a reasoning that and a good argument that what is meant is the effect not hindering is you can use that if you look into different languages that is a language interpretation where you take different languages to account, which of course means you have to look at the Polish language, the Croatian language, all the languages. Normally you look into the German, English, French, maybe Spanish language, and one Slavic language and you try it. Google Translate or so, or DeepL, and then you can look up whether there might be an argument for your case. What we never use, I wrote here hardly ever, or we saw that never, is historical interpretation. Okay, the court did not become a friend of historical interpretation, because that's also in theory something which is somehow funny. Historic interpretation means what the lawmaker thinks that they want. But actually, who is the lawmaker? Is that the parliamentarian who wrote in favor, but never knew something about most parliamentarians have no idea what the voting is about? There are somewhere around 700 people in the European Parliament, and the work, as in all parliaments, is done in committees. So there are 20 or 15 or 30 people on the committee, and they have maybe, in the best case, an idea, but there's one rapporteur, who is doing the work, actually, and he or she knows what's going on. Okay, so we don't put much confidence in what the parliaments do. It's of course necessary that we have parliaments, but historical interpretation, it's maybe also something that the Commission wanted, but the Commission is not the lawmaker, so the court doesn't use historical interpretation. Principle of Effectiveness Last point for today, but very important: effectiveness. We already had that. Effet utile is very, very important for business law, and that's why we have to have a closer look. So I give you a very nice example, or one you already know. It's the question of Panchen and Loos, of course. There's one about Frank Poulsen, a very nice example is the Courage case. Panchen and Loos is also a principle of Effuitil. So let me give you an example of the Courage case. about the interpretation which goes over interpretation, as a principle of interpretation, but also as a principle of developing law. So when the court has the leeway interpretation, it will take the interpretation which has more, better, useful effects for the objectives of the European Union. So that's what we saw in van Geen laws. There were two possible interpretations of Article 30 with or without direct effect. And the court said, well, direct effect has useful effects. It's effective. (no shit) It will be better for European integration. Now there was a nice case, the Courage case. And von Coulson is also nice. I'll come back to von Coulson in a moment. In the Courage case, there was the question whether, actually, the case was about beer. A pub in Great Britain was buying beer. The pub was claiming damages against the brewery. no, that's too far away. So it was a case, a pub against a brewery which was in a cartel with other breweries, so the price of beer was too high. The EU cartel law says it’s void (art.101/2). It was a cartel. The problem was that the effects of or the legal consequence of European cartel law is that the cartel is void. Okay, that's article 101 paragraph 2. And the next effect is that the commission can release a fine against the breweries, okay? They have to pay, say, 500,000 pounds or euro, whatever. That's also nice, or a million, or a billion, or whatever, okay? Depends on how big the cartel is, and so on. But the pub, over years, has paid too much money because the beer was overpriced. Now, but the question of Courage was, does Article 101, which is the contract revision, there's no wording about this, also mean that the private party which has damage has the right to claim damages? Okay? Okay? So this was the question. Right to damages. The problem was that British law, the same as German law actually, did not foresee any right to claim cartel damages. It's now different. You know, the cartel damage directive. But at that time there was no such directive and there was no national transpose law. So it was just a very open question. Of course, you can always apply German law in some way that there would be a possibility that there's a damage claim. We have lawyers. I don't know if it's in China or in EU countries, but we think always lawyers can do almost everything. We apply national law and we can interpret it in almost any way. So the court was at the question: does Article 101 mean that there's also a right to damages? And what's the correct answer? Is there an argument that there should be a right to claim damages even if Article 101 only says that the following shall be prohibited and that is cartels? There's nothing else. What argument could we make to develop the right to claim damages? The old one was Article 85, exactly, until 2000. 1993 was Article 85, in Korygz it was Article 81, now it's Article 101. The numbers were changing a little bit. It’s getting a bit frustrating. We learned the numbers and I hope it doesn't change anymore. Oh, 85? It was 81 at that time in the Korebs case. Why would it be jeopardized if there would be no right to claim damages? I'm not even sure if that is exactly the argument, but you could make that argument. Not exactly the argument what the court made, but it's very near to what the court said. It's very similar, actually, to van der Krempe laws. Yes, Mr. Could you open that out a little bit? It was the rights of the strippers belong to the parties and they're nationals. So they have rights to the kind of stuff. Okay, so under Article 101, let's say, the one brewery to the other brewery could say, well, the agreement is void. So there’s a direct effect of Article 101. That was not a question. The question was, can we develop a new right, actually? And I think you have a good point in mind as well. As Mr. and Mrs. Oben, then it's very similar, very close to what the court at the end said. What would the court say? Right, they think of an individual as an agent. That’s the starting point again. Now, I don't know if you, anybody of you, has an undertaking? Okay. If you have an undertaking, why would you not enter into a cartel? Let's say you make trucks, okay? You are Daimler trucks. Do you know Daimler trucks? No? When you look at the star, Daimler is the biggest German truck maker. They have these huge trucks, also very strong in Europe and all over the world. In the United States, they own Freightliner actually. It's one of the major truck makers. Daimler was actually inventing the first car in the world. Where did it drive? It drove only a few kilometers from Mannheim. Ladenbrock. The car was invented here in Mannheim. Daimler's truck is still producing trucks here in Mannheim. Back to that, Daimler, if you were a Daimler truck, why would you not enter into a cartel? Why would you enter into a cartel? What's a cartel useful for undertaking? You know what a cartel is? Yeah. So when you go into a cartel, what could your incentive be? You can have higher prices. It means more markups, more earnings. That means you get richer. Why would you not enter into a cartel? Sorry? Less margin. Why would you get less margin? In contradiction to that, what Mr. Nikic said is that there are more earnings. And you say now there are less earnings? Why, okay, yeah, but as long as the cartel is functioning, that is your cost doesn’t matter because you can always put up the price. You will just argue with, negotiate with, your cartel members. The price should always be over your costs. You don't even have to innovate anymore because you will get to control the market anywhere, possibly, at least okay, so that means more earnings, but when would a cartel, let's say, become a bit nasty if it's kind of problematic for you exactly? If it's revealed, okay, if the Carter administration, Germany Bundeskartellamt, in the European Union, the Bundeskartellamt, Federal Carter Administration, or the European Commission would reveal the Carter, and you would have to pay a fine. Let's say one billion euro, which is bad. And now you don't only have to pay the fines, which might take all the gains from you. That's how you should have more losses than you have earnings. In order to de-incentivize bias, I think that's the right word, you from entering into a cartel, it should also be the case that now the damaged parties, like the pups, could also claim money from you. That means you have a double whammy. On the one hand, you have to pay the fines, and now you also have to pay the damages, which means it'll be double worse, double bad for you. So the court said, well, first of all, it might not always be the case that the commission can enforce or reveal that there is a cartel. Sometimes also private persons find out that there is a cartel. They could claim the damages, but even if the commission claims damages, finds the cartel companies, now the private parties would also claim the damages, and that would make cartel law more effective. And that's why the court answered to the national court, which asked the question, should there be a right to claim damages? Yes, there is a right to claim damages because now there's no wording in the treaty at all. The court said it follows from the useful effect. That's what the European Court of Justice, which any constitutional court actually could do, can invent new rules under the principle of FAUT. Okay, so the access to claim for damages was one of the examples. And then even civil procedure law also coming from Article 101, because of course you cannot claim damages if you have to, if you don't have access to information, especially information of the cartel companies. So the court said, well, under Article 101....right to also have an insight, to have the right to access files of the defendant's company. That was the Donau Chemie case. You don't have to remember that or any examples. So it's just the examples. Right to have access to access files of an antitrust proceeding in order to enable you to claim for damages. And so on and so on. And all this is a consequent Article 101 TPU. What I want to show you here is not that you remember the specific cases. First of all, I want to make you sensible for the way how the European Court of Justice argues. That's not just the aim of this slide here. So the court can decide a lot on the principle of ephratil. This is one, let's say, one consequence of ephratil, is the court decides and develops new rules. Van Gerderloos was developing a new rule. Costa- Anell was developing a new rule. And I'd say here courage, courage is in English, courage, not courage, it's courage, it was also inventing a new rule. Okay, so this is like one possibility. And what the court also says, as in another light of, or another, yeah, let's say outcome of a fair deal is the principle of harmonious interpretation. And this is something I would also like to, at least in the last 10 minutes today, show you in a little bit more detail. Maybe we have to go on with that tomorrow, on Wednesday. So this means, a harmonious interpretation means, that member states' judges have to interpret their national law in the light and wording of EU law, of directives and of European Union law. All okay. What does that mean? I'll give you an example: the fun course in common case. I'll skip that for a second. Okay, the fun course on common case was a nice case. It was also about equal access for females to jobs. So two ladies, Mrs. von Kohls and Mrs. Carman, wanted to work in a prison. They applied for a job in a prison to be guards. Okay? The German authority in Niedersachsen, that's a bit north of Germany, Niedersachsen is the place where the Anglo sections came from. Anglo sections are coming from Germany in the area of Niedersachsen. Same word. And Anglo is another Anglo. It’s a little river and place of Angel Saxon between Angles and Saxons. That’s where the first settling settlers of the first German settlers to England came. That’s why it's called Anglo-Saxon. Uh, well, traditions, um, so they spoke German, actually all German at that time. What I want to say is, uh, in the Mrs. von Coulson and Mrs. Carman case, they were rejected. Why? Because they were women. They were female. Why would you reject female guards because they should guard in a prison where the inhabitants, the prisoners, were men? I don't know if it's a good idea. Female guards guard male prisoners, but at least it's not impossible. So there can be reasons because some men are very, say, criminal, very violent, but there are also men who are not. I heard about this. You too, as well, totally. There are men who are nice guys. There are men who are not nice guys. So, however, maybe the argument of the person was a bit broad. So, Mrs. von Poulsen, Mrs. Cameron, went to court. And the court said, you're right, there was discrimination in this case because there was no such rule. There was not... They didn't even reason. They just said they're female and we don't accept female applications to this male prison. Okay, this accepted that there was an infringement of the directive. Now the directive says they have to have equal access to jobs without looking at whether female or male. Okay? Now, what is the sanction? There was no sanction in the directive. So the German court looked into the German law. It was at that time paragraph 611A of the BGB, German civil law book. And there it said, well, you have a right to claim so-called negative damage, which was the damage in an amount if they would not have applied to the job. Now if Mrs. Fulson, Mrs. Cameron, would not have sent the letter, they would have spared three German marks. That was their damage. So the court said, well, you have a right to claim three German marks as a consequence of the breach of equal rights for women. The German court had the idea to ask the court of justice, that's like maybe not effective. Maybe we should do we have to is that okay with that directive if we say the legal consequence is 3 marks there is no rule in European law about sanctions so how should we decide but the case was in 1983 and how did the court decide the whole case but it is like the case when you look at that case you know how courage has been designed maybe, okay? What did the poet say? Is free German marks a sufficient sanction for a female being treated unfairly? Most of the students here are female. I don't know. What would you say? In Indonesia, is that, Mrs. Tobing, is that a sufficiently effective sanction? No. The German prison would say, well, three marks, perfect, let's do it. We just discriminate all the time. If you only have to pay three marks, three marks is now 1.50 Euro, not about 1.45 Euro, then you say, well, that's okay, we'll do that all the time and we don't mind breaching the rights of female workers. So the court said that's not, the answer of the court is no, that's not effective, you have to engage in just serious sanctions. Coming back, the case came back to the German Bundesgerichtshof, German Federal Court, maybe it was another court, doesn't matter. And what did the German court do? And now that's about the principle of common interpretation. The court said, the Bundesgerichtshof said, under EU law, we have to apply that directive in a way that we have a sufficiently deterrent sanction. That was what the court said. There must be a deterrent effect of the sanction. Prison should next time know if we do that again, that will be very costly. The court said you have to interpret your German private law in a way that at the end there will be a sufficiently serious and deterrent sanction. That's the principle of harmonious interpretation. You interpret your national law in a way that at the end there should be, must be or will be a sanction which is in line with the directive, with the aim, objective directive in order to give female workers the right to work on the markets with the same rights as male workers. So what did the Bundesgerichtshof do? They looked into the national law and said, well, let's interpret the national law in a harmonious way. And it found another rule which said if you infringe personal rights, if you say somebody is ugly or somebody is, I don't know, you take the dignity at that time. Discrimination because of race or color was argued that could be a case of right of personality. There are lots of cases. There was a case where somebody's picture was used. There was a right where an interview with a monarchy and princess, Princess of Carolina, Carolina, that was her name, was invented. That was an infringement of her personality right. Things like that. And then the court said, “Well, a female has also a personality right, and it's infringed if she was discriminated against and attached to this there is a sufficiently serious sanction.” And so the court could argue that the person should pay three monthly wages as a sanction. You see what the court, the German court, did, was applying then totally different private law, trying to get in line with European Union law, and that's the principle of harmonious interpretation. That's what it says here. In the first line, national law has to be interpreted in the light of the wording and purpose of directives and of other EU law. So the German court then used a different rule in order to achieve the result which the directive was objected to. That was his idea of harmonious interpretation. The court applies that rule since then on honest interpretation. You don't have to do everything that you can in order to align your national law as a judge, judge, judge. You have to do everything you can in order to align your national law by interpretation to the purpose and to the results of the directive. You’re not obliged to do it contralegen, which means against the law. You don't have to breach your national law. That's contralegen. Contralegen is Latin. Contra means against or breach of other law. So national courts don't have to breach law because that would be direct effect then. Harmonious interpretation is indirect effect. That means you have to interpret law in order to align with national law, but you only use your national law. We call that indirect effect of European Union law. Direct effect would be if you apply the directive directly; you invoke the directive. That's not what the court did. The court of von Burson and Karmann applied German private law. That is not direct effect; that is harmonious interpretation. Okay, and national courts, if they cannot because of their methodology, interpret the law, so the Irish court would have much less anyway because, let's say, inventing new things by Irish courts might breach the principle of parliamentary sovereignty, not the sovereignty of the parliament, I think. So that is the case at least in Great Britain; it is, and you have the same tradition, I think, more or less, yeah, because you've been occupied by the British for hundreds of years. Lots of principles are similar. So that is like every court would have to follow their national methodology. But if you can, you must. If you cannot, you must not. That's what they have here. So this is quite some information today. I know it's really a lot for the beginning. And maybe you want to read the von Poulsen-Karman case. I uploaded that case as well. It could be interesting for you. We'll come back to that on Wednesday. Maybe you have a look until we repeat that again. There's a little sheet of effective directive , which you can look into as well. Yeah, and then we'll meet on Wednesday. By the way, next Monday, I'm not sure if this course can be held on next Monday, because I will be a private lawyer and there's a big private law professor conference in Heidelberg. Everybody has to go, it's just like... I'm sorry. Maybe I can send an assistant. On Wednesday I have to go to Berlin because I have a conference there where I also am active and a member of the board of that institute. So we could do the next, not this week, but next week we could switch to 8:30 here in this room. I already booked the room so I know 8:30 is very early but I also know that especially on a Wednesday. On Wednesday at 8:30. On Wednesday at 8:30. Okay, if you want to. So you say 8:30, that's so you don't have to put on the camera, as our colleagues today also did not. So you can keep like my son did in the corona pandemic in bed following the school. Probably lots of other students do it at home. So that's — I’m sorry but we have to do it at 8: 30 because I have to get the train to Berlin at 10:07. Okay and no other possibility for me, thank you very much for today, see you on Wednesday then this 10 o'clock 10 10 o'clock — yes this week 10 next week 8: 30.