Solutions Introductory case (1) The Administrative Court (Verwaltungsgericht) of Würzburg rejected the recourse by judgement from 9 November 2004 (No W 4 K 04.948) and admitted a leap-frog appeal (Sprungrevision) to the Federal Administrative Court (Bundesverwaltungsgericht). The final revision was rejected by the Federal Administrative Court by judgement from 30 June 2005 (No BVerwG 7 C 26.04). The plaintiff entered a complaint of unconstitutionality which was rejected by the Federal Constitutional Court (Bundesverfassungsgericht) by decision from 14 May 2007 (No 1 BvR 2036/05).

Solutions Introductory case (2) Is a national court empowered or obliged to review a legal act of parliament in the light of national fundamental rights? In Germany each court has to revise the constitutionality of legal acts of parliament concerned. But if it is convinced of unconstitutionality it must submit this question to the Constitutional Court. The Constitutional Court only has the right to quash a legal act of parliament (see Article 100 Basic Law). As an administrative court is not empowered to annulment of a legal act of parliament in Germany, the plaintiff wanted a reference for a preliminary ruling to the Federal Constitutional Court.

Solutions Introductory case (3) If so, is a national court empowered to such a review even if the law is implementing an EU directive? In this case the control in the light of national fundamental rights is limited. Pursuant to the jurisprudence of the German Constitutional Court (Solange-als-Rechtsprechung) it shall not exercise its jurisdiction as long as the European Court of Justice guarantees an equivalent protection of fundamental rights on European level. In its recent judgement from 30 June 2009(Treaty of Lisbon) the Constitutional Court referred to this jurisprudence. In the given case the legal rules, which are mere implementation of the directive 2003/87/EC are not revised in the light of national fundamental rights.

Solutions Introductory case (4) If so, how broad is the control in the light of national fundamental rights in this case? Pursuant Article 249(3) EC a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. In the given case the review is limited to the legal rules, which are not determined by the directive.

Solutions Introductory case (5) Is a national court empowered or obliged to review national legislation in the light of European law? Yes it must because of the primacy of European law. See the following annex to the Treaty of Lisbon: 17. Declaration concerning primacy The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law. The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260): Opinion of the Council Legal Service of 22 June 2007 “It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 [1]) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice."

Solutions Introductory case (6) concerning Directive 2003/87/EC Is a national court empowered or obliged to review a European legal act, like a directive? Yes, it must. Which rules are relevant? The rules of primary EU law are relevant, in the given case fundamental rights on European level. Art. 6 TEU Art. 1 Protocol to the ECHR Art. 17 FRC Right to property Art. 15 FRC Right to choose an occupation and right to engage in work Art. 52 FRC Scope of guaranteed rights The right of freedom to pursue trade or professional activities is recognised by the European Court of Justice (ECJ): Judgment of 13 December 1979. - Liselotte Hauer v Land Rheinland-Pfalz. - Reference for a preliminary ruling: Verwaltungsgericht Neustadt an der Weinstraße - Germany. - Prohibition on new planting of vines. - Case 44/79. Annex to the Treaty of Lisbon, 1. Declaration concerning the FRC The Charter of Fundamental Rights of the European Union, which has legally binding force, confirms the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.

Solutions Introductory case (7) Must a national court review the case in the light of EC law even if a violation of EC law is not invoked by the plaintiff? The German law of judicial procedure in administrative matters is ruled by the ex officio investigation. In the given case the Federal Administrative Court criticized that the Verwaltungsgericht did not cite European fundamental rights. Does the directive 2003/87/EC violate European fundamental rights? For a reasoned opinion the gas emission allowance trading system must be assessed. For general guidelines see the ECJ judgment of 13 December 1979, case 44/79.

Solutions Introductory case (8) The power of the judge Is a national court empowered to quash a national legal act of parliament? - because of violation of national fundamental rights ? Under the German law The Constitutional Court obtains a monopole (see Article 100 Basic Law). - because of violation of EC law? In this case Article 100 Basic Law is not applicable. The court must decide itself, but of course a reference for a preliminary ruling by the European Court of Justice pursuant to art. 234 TEC is possible. Is a national court empowered to quash a European legal act? No, see the Foto Frost doctrine. Judgment of the Court of 22 October 1987. - Foto-Frost v Hauptzollamt Lübeck-Ost. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Lack of jurisdiction of national courts to declare acts of Community institutions invalid - Validity of a decision on the post-clearance recovery of import duties. - Case 314/85.

Solutions Case 2 – policeman (1) 1. Finally the Austrian Administrative Court did not have to decide the case on its merits. The decision was restricted to the competences of the different authorities involved in the lawsuit. 2. Assessment whether the application could be based on EU-law: - It has to be taken into account that the disciplinary decision in 1979 did not contravene EU-law, simply because Austria was not a member at this time. - The question therefore is whether upholding (certain) consequences of this decision might constitute a discrimination on the grounds of sexual orientation. - In this context it is important to know that in Austria pensions for civil servants are seen as an ongoing payment of salary, because the civil servant also has (disciplinary sanctioned) duties after his retirement.

Solutions Case 2 – policeman (2) One could ask different control-questions: What if the applicant would have been dismissed in 1979? Would it then be necessary to treat him as if he would not have been dismissed after EU-law turned into force? What if a fine would have been imposed in 1979 and the applicant would have paid it completely? Would it be necessary to pay it back? What if the fine had to be paid in instalments and a rest is still open after EU-law turned into force? Have we to distinguish between completed facts and still remaining effects of such a final decision? Anyway it would be worth (for supreme courts mandatory) to refer such a case to the CEU.

Solutions Case 2 – policeman (3) If upholding the effects of the decision constitutes a discrimination in payment we still have to distinguish: Should we accept payment of active salaries notwithstanding that there was no active work or should we only disapply the reduction of the pensions as a remaining effect of the decision? Anyway, if we find that there is a non justified discrimination on the ground of sexual orientation in payment in the sense of Art. 2/2 and 3/1/c of the Directive we would be obliged to apply the interdiction of discrimination directly after the timeframe for the implementation of the Directive has expired, that means for periods from January 2004 onwards. The immediate applicability of the Directive in Austria would then have created a „new“ legal situation that might have been broken the effects of legal validity of the disciplinary sanction for periods from January 2004 onwards. The case would then have something common with the Ciola-case. - For periods before January 2004 the directive did not have immediate legal effects. The applicant might argue that non-discrimination on the ground of sexual orientation is part of the basic principles of EU-law (See similarities and differences to the Mangold-case). These principles do only apply if the case deals within the scope of application of the Treaty. But before the Directive has „occupied“ this field of labour law, the question of salaries were not ruled by EU-law. Therefore I would refuse direct application of basic principles to situations that were not yet ruled by EU-law (for periods from 2002-2003).

Solutions Case 3 – Legal aid (1) Preliminary remarks: Art. 47 par. 3 FRC provides for legal aid no similar provision in the ECHR, but according to the jurisprudence of the ECtHR, only in exceptional cases under national (Austrian) law only for proceedings concerning administrative offenses

Solutions Case 3 – Legal aid (2) a) VAT case: No civil right => Art. 6 ECHR is not applicable Art. 47 FRC applicable, VAT based on EU law => legal aid has to be provided although there is no national law b) Construction permit: Civil right => Art. 6 ECHR is applicable, but legal aid only in exceptional cases => not, if national law is still applicable (even if it violates art. 6 ECHR) No connection to EU law => art. 47 FRC is not applicable

Solutions Case 3 – Legal aid (3) c) Doctor case: Facts: Applicant is an Austrian citizen who never worked abroad. The hospital is run by a public entity. Under national law the salary depends on the time you already have worked for a public entity/hospital, times in a private hospital are not considered (professional experience). EU law concerned? No discrimination because of age (only professional experience) Art. 47 FRC not applicable Art. 6 ECHR? “arguable claim” based on Art. 47 FRC?

Solutions Case 4 – Change of sex The Verdict of the Swedish Administrative Court: The court found on 14 September 2010 that the new Marriage act that permitted same-sex marriages and the law from 1972 were not “coherent”. The court found that it followed from the cases Parry vs. UK and R. and F. vs. UK that if same-sex marriages are permitted in a country it must be a breach of Article 8 to force persons with a new gender to divorce a partner of the same sex. The court set aside the 1972 Act, returned the case to the National Board of Health and ordered the board to try if the other requirements for determination of a new sex in the act were fulfilled.