A Commentary On Selected Opinions of Advocate General Jacobs
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A Commentary On Selected Opinions of Advocate General Jacobs

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A Commentary On Selected Opinions of Advocate General Jacobs

Fordham International Law Journal Volume 29, Issue 4 2005 Article 6

A Commentary On Selected Opinions of Advocate General Jacobs

Rosa Greaves∗

Copyright c©2005 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj

A Commentary On Selected Opinions of Advocate General Jacobs

Rosa Greaves

Abstract

This Article seeks simply to demonstrate, by reference to carefully selected opinions, Advo- cate General Jacobs’ commitment to the establishment of the internal market (as illustrated by HAG II, Leclerc-Siplec, Alpine Investments, and Silhouette) and to the development of a Com- munity legal order in which individual rights are fully protected at national and Community levels (in, for example, Konstantinidis, Vaneetveld, Unilever, and UPA).

A COMMENTARY ON SELECTED OPINIONS OF ADVOCATE GENERAL JACOBS

Rosa Greaves *

INTRODUCTION

Francis Jacobs retired in December 2005, having been a member of the European Court ofJustice ("ECJ" or the "Court") for seventeen years and the second-longest holder of the office of Advocate General.' He took up his appointment as the Euro- pean Project had just been restarted, following the adoption of the Single European Act 2 and the establishment of the Court of First Instance ("CFI").' The Single European Act provided the Community with further legal bases for action and reformed its

* Allen & Overy Professor of European Law and Director of the Durham Euro-

pean Law Institute, Durham University, UK I am grateful to Albertina Albors-Llorens (University of Cambridge, UK), as well as Roy Davis and Colin Warbrick (University of Durham, UK), for advice on various aspects of this Article. I would like also to thank Sebastian Harter-Bachmann, a research student at the University of Durham (UK), for his assistance with sources and references.

1. Francis Jacobs was appointed Advocate General in October 1988 as the succes- sor to Sir Gordon Slynn. Prior to Sir Slynn's tenure, Advocate General Karl Roemer held the office from February 1953 to October 1973. According to Article 222 of the Treaty Establishing the European Community ("EC Treaty"), the Court shall be assisted by eight Advocates General. For the text of the current consolidated version of the EC Treaty as amended, see Consolidated Version of the Treaty Establishing the European Community, O.J. C 325/33 (2002) [hereinafter Consolidated EC Treaty]. Given that there is a smaller number of posts than Member States, there is an informal agreement between Member States that five Advocates General are appointed from the five largest Member States (France, Germany, Italy, the United Kingdom, and Spain), while the other three rotate among the remaining Member States. Author's Note: All textual references to articles of the EC Treaty refer to the Consolidated EC Treaty. In cases decided prior to the Treaty of Amsterdam, references to articles of the EC Treaty are to the text of the original and the numbers will differ from those mentioned in the text of this Article.

2. Single Europe Act, OJ. L 169/1 (1987), [1987] 2 C.M.L.R. 741 [hereinafter SEA] (amending the Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11 [hereinafter EEC Treaty]).

3. See Treaty Establishing the European Community, art. 222, Feb. 7, 1991, OJ. 224/1 (1992), [1992] 1 C.M.L.R. 573 [hereinafter EC Treaty]. The Treaty on Euro- pean Union ("TEU"), Feb. 7, 1991, O.J. C 224/1 (1992), [1992] 1 C.M.L.R. 719, amended the Treaty Establishing the European Economic Community ("EEC Treaty"), Mar. 25, 1957, 298 U.N.T.S. 11, which had already been amended by the Single Europe Act ("SEA"), supra note 2, OJ. L. 169/1 (1987). The EC Treaty was, in turn, amended by the Treaty of Amsterdam, supra note 1, OJ. C 340/1 (1997). All of these amend- ments were incorporated into the EC Treaty, and the articles of the EC Treaty were renumbered in the Consolidated EC Treaty, supra note 1, OJ. C 325/33 (2002).

A COMMENTARY ON SELECTED OPINIONS

legislative process in order to achieve the objectives of the inter- nal market4 by December 1992.' The establishment of the CFI introduced an appeal structure to the European Community's judicial architecture.

During those seventeen years, Jacobs delivered over 500 opinions.6 Although the ECJ agreed with Jacobs' conclusions in the vast majority of cases, there were some well-documented fail- ures to persuade the Court to take a more radical approach.7

Advocate General Jacobs' background was ideally suited to the role of Advocate General. He had been a Professor of Law at King's College (University of London), an occasional practi- tioner, and a Legal Secretary to Jean-Pierre Warner, the first British Advocate General. His opinions emulated academic pa- pers, with serious consideration of the parties' submissions, a meticulous analysis of existing ECJ case law and relevant litera- ture, and a reasoned, authoritative and robust conclusion. His opinions were awaited eagerly, widely read, and particularly scru- tinized by the academic community.

This Article does not seek to evaluate or analyze Advocate General Jacobs' opinions.8 It is not even possible to consider herein all the most significant opinions delivered by Jacobs. He served during an important and exciting period in the develop- ment of the Community legal order, as the European Economic Area ("EEA") was established,9 certain important institutional

4. The expression "internal market" is the term used post-1988 for "common mar- ket." The expression "single European market" is also used, primarily by politicians.

5. See SEA, supra note 2, art. 13, O.J. L 169/1, at 9 (1987). 6. In the first few years of his mandate, the vast majority of his opinions were on

matters concerning agriculture, staff regulations, taxation and social security, but, given the length of his tenure, it is not surprising that he delivered opinions on most areas of Community competence.

7. In general, the ECJ does not often disagree with the opinion of the Advocates General. One notable exception to this rule, however, was Union de Pequenos Agricultores v. Council of the European Union, Case C-50/00P, [2002] E.C.R. 1-6677, [2002] 3 C.M.L.R. 1 [hereinafter UPA], where the ECJ rejectedJacobs' plea to widen the meaning of "individual concern" within Article 230 of the EC Treaty. This case is discussed further below.

8. For an account of Advocate General Jacobs' opinions in relation to the develop- ment of Community law on intellectual property rights, see generally, NOREEN BuRRows & ROSA GREAVEs, THE ADVOCATE GENERAL AND EC LAw (Oxford Univ. Press, forthcom- ing 2007).

9. The European Economic Area ("EEA") consists of all twenty-five Member States of the European Union as well as Iceland, Liechtenstein, and Norway. It was created in 1992 to allow non-Community countries to benefit from the recently established inter-

692 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 29:690

changes to the Community's legislative process were introduced by amendments to the Treaty Establishing the European Com- munity ("EC Treaty"), the European Union was created by the Treaty of Maastricht,1" and the European Community was en- larged from twelve Member States to twenty-five.1"

This Article seeks simply to demonstrate, by reference to carefully selected opinions, 2 Advocate General Jacobs' commit- ment to the establishment of the internal market (as illustrated by HAG II,'3 Leclerc-Siplec,14 Alpine Investments, 5 and Silhouette6 ) and to the development of a Community legal order in which individual rights are fully protected at national and Community levels (in, for example, Konstantinidis,'7 Vaneetveld,18 Unilever,9

nal market. References to the "Community market" or the "internal market" in the context of this Article include the EEA market.

10. See TEU, supra note 3, OJ. C 224/1 (1992) (amending EEC Treaty, Mar. 25, 1957, 298 U.N.T.S. 11, as amended by SEA, supra note 2, OJ. L. 169/1 (1987). The TEU was amended by the Treaty of Amsterdam, supra note 1, Treaty of Amsterdam amend- ing the Treaty on European Union, the Treaties establishing the European Communi- ties and certain related acts, Oct. 2, 1997, O.J. C 340/1 (1997) [hereinafter Treaty of Amsterdam]. These amendments were incorporated into the TEU, and the articles of the TEU were renumbered in the Consolidated Version of the Treaty on European Union, O.J. C 325/5 (2002) [hereinafter Consolidated TEU].

11. For a comprehensive review of institutional and substantive European Union law see generally, for example, PAUL CRAIG & GRAINNE DE BORCA, EU LAw: TEXT, CASES AND MATERIALS (3d ed. 2003); TREVOR HARTLEY, THE FOUNDATIONS OF EUROPEAN COM- MUNrrY LAw (5th ed. 2003); and STEPHEN WEATHERILL, CASES AND MATERIALS ON EC

LAw (7th ed. 2005). 12. Almost all the selected opinions were delivered in preliminary rulings. This

procedure is provided by Article 234 of the EC Treaty, which enables a national court dealing with a case that raises issues of interpretation and validity of Community law to refer such questions to the ECJ for a preliminary ruling. The national court is bound to apply the ruling on Community law when subsequently deciding the case. See Consoli- dated EC Treaty, supra note 1, art. 234, O.J. C 325/33, at 127-28 (2002).

13. Opinion of Advocate General Jacobs, in SA CNL-SUCAL NV v. HAG GF AG, Case C-10/89, [1990] E.C.R. 1-3711, [1990] 3 C.M.L.R. 571 [hereinafter Opinion of Advocate General Jacobs, HAG II].

14. Opinion of Advocate General Jacobs, in Socit6 d'Importation Edouard Leclerc-Siplec v. TF1 Publicit6 SA and M6 Publicit6 SA, Case C-412/93, [1995] E.C.R. I- 179, [1995] 3 C.M.L.R. 422 [hereinafter Opinion of Advocate General Jacobs, Leclerc- Siplec].

15. Opinion of Advocate General Jacobs, in Alpine Investments BV v. Minister van Finacifin, Case C-384/93, [1995] E.C.R. 1-1141, [1995] 2 C.M.L.R. 209 [hereinafter Opinion of Advocate General Jacobs, Alpine Investments].

16. Opinion of Advocate General Jacobs, in Silhouette International Schmied GmbH & Co KG v. Hartlauer Handelsgesellschaft mbH, Case C-355/96, [1998] E.C.R. I- 4799, [1998] 2 C.M.L.R. 953 [hereinafter Opinion of Advocate General Jacobs, Silhou- ette].

17. Opinion of Advocate General Jacobs, in Christos Konstantinidis v. Stadt Alten-

2006] A COMMENTARY ON SELECTED OPINIONS 693

and UPA21).

I. THE INTERNAL MARKET

In this Part, two Opinions on the compatibility of national marketing rules with the internal market will be considered first. Two Opinions concerning the exercise of intellectual property rights will then be examined.

A. National Marketing Rules and the Internal Market

One ofJacobs' most interesting Opinions concerned the in- terpretation of Article 28 of the EC Treaty, which prohibits quantitative restrictions on imports and measures having an equivalent effect between Member States. 2 1 In Leclerc-Siplec, Ja- cobs sought to persuade the ECJ to reconsider the test, adopted by a Full Court in Keck and Mithouard,2 2 for determining whether a national marketing rule is prohibited under Article 28.23

steig-Standesamt and Landratsamt Calw-Ordnungsamt, Case C-168/91, [1993] E.C.R. I- 1191, [1993] 3 C.M.L.R. 401 [hereinafter Opinion of Advocate GeneralJacobs, Konstan- tinidis].

18. Opinion of Advocate General Jacobs, in Nicole Vaneetveld v. Le Foyer SA and Le Foyer SA v. F~dfration des MutualitCs Socialistes et Syndicales de la Province de Lioge, Case C-316/93, [1994] E.C.R. 1-763, [1994] 2 C.M.L.R. 852 [hereinafter Opinion of Advocate General Jacobs, Vaneetveld].

19. Opinion of Advocate General Jacobs, in Unilever Italia SpA v. Central Food SpA, Case C-443/98, [2000] E.C.R. 1-7535, [2001] 1 C.M.L.R. 21 [hereinafter Opinion of Advocate General Jacobs, Unilever].

20. Opinion of Advocate General Jacobs, in Union de Pequenos Agricultores v. Council of the European Union, Case C-50/OOP, [2002] E.C.R. 1-6677, [2002] 3 C.M.L.R. 1 [hereinafter Opinion of Advocate General Jacobs, UPA]. This opinion was delivered in the context of an appeal from a ruling of the CFI.

21. See Consolidated EC Treaty, supra note 1, art. 28, OJ. C 325/33, at 47 (2002). 22. Bernard Keck and Daniel Mithouard, Joined Cases C-267/91 & C-268/91,

[1993] E.C.R. 1-6097, [1995] 1 C.M.L.R. 101. Cases before the ECJ may be heard either in plenary session (i.e. Full Court renamed Grand Chamber after the 2004 enlargement of the EU) or in Chambers (by a lesser number ofjudges). See EEC Treaty, supra note 2, art. 165, at 106; see also Michael Scott Feely & Peter M. Gilbuly, Green Law-Making: A Primer on the European Community's Environmental Legislative Process, 24 VAND. J. TRANS- NAT'L L. 653, 665 (1991).

23. See Opinion of Advocate General Jacobs, Leclerc-Siplec, Case C-412/93, [1995] E.C.R. 1-179, 1-189, 28, [1995] 3 C.M.L.R. 422, 433. In Keck and Mithouard, decided one year earlier, the ECJ attempted to remove some of the confusion created by the contradictions in previous case law regarding the scope of Article 28 by ruling that a law prohibiting the resale of goods at a loss by retailers lay outside the scope of the treaty provision. The Court, having expressly reversed earlier case law, provided a new test, stating that certain national selling arrangements are outside the scope of the prohibi- tion in Article 28, provided the rules apply equally, in law and in fact, to the marketing

694 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 29:690

Jacobs considered whether a national restriction prohibit- ing the distribution sector from advertising on television 24 was compatible with Article 28.25 He began by stressing the impor- tance of advertising as a proven means of penetrating markets in developed market economies. 26 He warned the ECJ to be "ex- tremely vigilant when appraising the compatibility with Commu- nity law of restrictions on advertising."27 He summarized the prior, contradictory case law, and the ruling in Keck and Mithouard.28 He then applied Keck and Mithouard to the facts of Leclerc-Siplec, concluding without hesitation that the French law prohibition fell outside the scope of Article 28.29 However, he took the opportunity to criticize Keck and Mithouard and to pro- pose a different test, even while admitting that, in Leclerc-Siplec itself, the outcome would be identical.3 0

Jacobs found Keck and Mithouard unsatisfactory for several reasons, including, in particular, its reintroduction of a discrimi- nation test that he found unacceptable.3 ' Jacobs strongly argued for the test to be based not on discrimination but on whether the measure in question substantially restricts access to the Com- munity market.3 2 This would inevitably introduce a de minimis element to Article 28 where the national measure is classified as a non-discriminatory restriction. Acknowledging that the Court

of both domestic products and products from other Member States. See Keck and Mithouard, [1993] E.C.R. at 1-6104, 16, [1995] 1 C.M.L.R. at 124.

24. Specifically, Leclerc-Siplec was prevented by French law from advertising its petrol stations on television. See Opinion of Advocate General Jacobs, Leclerc-Siplec, [1995] E.C.R. at 1-182, 2, [1995] 3 C.M.L.R. at 427.

25. See id. at 1-185, 12, [1995] 3 C.M.L.R. at 429. 26. See id. at 1-186-87, 9 19-22, [1995] 3 C.M.L.R. at 431-32. 27. Id. at 1-187, 21, [1995] 3 C.M.L.R. at 431. 28. See id. at 1-187-88, 99 23-24, [1995] 3 C.M.L.R. at 432. This ruling had already

been confirmed and applied in Hfinermund v. Landesapothekerkammer Baden-Wfirt- temberg, Case C-292/92, [1993] E.C.R. 1-6787, a case concerning national restrictions on advertisements. The restrictions at issue in Hunermund consisted of professional rules of conduct that significantly restricted pharmacists from advertising the products they sold in their pharmacies. The ECJ held the advertising restrictions were non-dis- criminatory selling arrangements, applicable to all pharmacists, which did not affect the marketing of domestic and non-domestic products differently. See Opinion of Advocate General Jacobs, Leclerc-Siplec, [1995] E.C.R. at 1-192-93, 1 35-36, [1995] 3 C.M.L.R. at 436-37.

29. See Opinion of Advocate GeneralJacobs, Lecerc-Siplec, [ 1995] E.C.R. at 1-193-94, 37, [1995] 3 C.M.L.R. at 437-38.

30. See id. at 1-194, 38, [1995] 3 C.M.L.R. at 438. 31. See id. at 1-194, 39, [1995] 3 C.M.L.R. at 438. 32. See id. at 1-195, 40, [1995] 3 C.M.L.R. at 439.

A COMMENTARY ON SELECTED OPINIONS

had previously rejected a de minimis test for Article 28," Jacobs nevertheless robustly argued that "[r]estrictions on trade should not be tested against local conditions which happen to prevail in each Member State, but against the aim of access to the entire Community market. A discrimination test is therefore inconsis- tent as a matter of principle with the aims of the Treaty."34 Ja- cobs further noted that: "all undertakings which engage in a le- gitimate economic activity in a Member State should have unfet- tered access to the whole of the Community market, unless there is a valid reason for denying them full access to a part of that market."35

Jacobs undoubtedly holds very strong views on this matter, as demonstrated by the mild, but highly unusual, expressed criti- cism of the Court. At paragraph forty-two of the Opinion, he stated "[i]ndeed it is perhaps surprising that, in view of the avowed aim of preventing excessive recourse to Article [28], the Court did not opt for such a solution in Keck."36

Jacobs acknowledged that a de minimis test would necessi- tate careful definition of the circumstances when such a test should be applied, as the national courts would have primary responsibility for applying Article 28." The test should be ap- plied only where the restriction is non-discriminatory, and de- nial to the market must be "substantial."3 Whenever a measure prohibits the sale of goods lawfully marketed in another Member State," a substantial impact on access to the market would be assumed, since the goods are either being totally denied access or permitted access only after modification.4 ° Where a measure is applied without distinction and simply restricts certain selling arrangements, its impact will depend on other factors. 41 There- fore, the scope of a barrier to market access may vary considera-

33. See id. at 1-197, 46, [1995] 3 C.M.L.R. at 441. 34. Id. at 1-195, 40, [1995] 3 C.M.L.R. at 439. 35. Id. at 1-195, 41, [1995] 3 C.M.L.R. at 439. 36. Id. at 1-195, 42, [1995] 3 C.M.L.R. at 439. 37. See id. 38. See id. at 1-196, 44, [1995] 3 C.M.L.R. at 4440. 39. As, for example, in Cassis de Dijon (Rewe Zentral AG v. Bundesmono-

polverwaltung ffir Branntwein), Case 120/78, [1979] E.C.R. 649, [1979] 3 C.M.L.R. 494.

40. SeeOpinion of Advocate GeneralJacobs, Leclerc-Siplec, [1995] E.C.R. at 1-196, 44, [1995] 3 C.M.L.R. at 440.

41. See id. at 1-196, 45, [1995] 3 C.M.L.R. at 440.

2006] 695

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bly, and a particular barrier's compatibility with Article 28 should be assessed by reference to the de minimis test.

4 2

In applying the de minimis test to Leclerc-Siplec, Jacobs ob- served that whether a partial ban on advertising for a certain sector of the economy falls outside the scope of Article 28 should depend on whether it creates a substantial barrier to market ac- cess.43 After considering the relevant factors, Jacobs concluded that there was no substantial impact on market access.44

Although Jacobs' approach is highly persuasive and cen- tered on a fundamental principle of market access, the judges of the Sixth Chamber of the ECJ rejected his de minimis test.45 Un- surprisingly-given that a Chamber rather than the Full Court delivered the preliminary ruling-the judges followed the ruling in Keck and Mithouard without reference to or comment on Advo- cate General Jacobs' alternative approach.46 Fortunately for the parties, the result, as noted, would have been the same.4 v

It is submitted, however, that Jacobs' de minimis test has much in its favor and is fully consistent with the ECJ's approach to defining the scope of Article 81 of the EC Treaty,4 8 which pro- hibits agreements that are anti-competitive and affect inter-State trade.4 9 The main common objective of Articles 28 and 81 is to integrate national markets into one single internal market that is not divided along national territorial boundaries by national laws and regulations or by private contractual arrangements.5"

42. See id. 43. See id. at 1-199, 52, [1995] 3 C.M.L.R. at 442. 44. See id. at 1-200, 55, [1995] 3 C.M.L.R. at 443-44. 45. See Soci& d'Importation Edouard Leclerc-Siplec v. TF1 Publicit6 SA and M6

Publicit6 SA, Case C-412/93, [1995] E.C.R. 1-179, 1-217, 21, [1995] 3 C.M.L.R. 422, 454 [hereinafter Leclerc-Siplec].

46. See id. 47. See id. at 1-218, 24, [1995] 3 C.M.L.R. at 454. 48. The ECJ has fully accepted a de minimis rule in the context of Article 81. See,

e.g., V61k v. Vervaecke, Case 5/69, [1969] E.C.R. 295, [1969] C.M.L.R. 273; see also Com- mission Notice, OJ. C 368/13, 1 (2001) [hereinafter Agreements of Minor Impor- tance (de minimis)].

49. See Consolidated EC Treaty, supra note 1, art. 81, O.J. C 325/33, at 64-65 (2002).

50. The ECJ stated in Schul v. Inspecteur der Invoerrechten en Accijnzen that the con- cept of the common market involves the elimination of all obstacles to intra-Commu- nity trade "in order to merge the national markets into a single market bringing about conditions as close as possible to those of a genuine internal market." Schul v. In- specteur der Invoerrechten en Accijnzen, Case 15/81, [1982] E.C.R. 1409, at 1431-32, 33, [1982] 3 C.M.L.R. 229 at 251.

A COMMENTARY ON SELECTED OPINIONS

While marketing rules remain governed primarily by national laws, obstacles to the free movement of goods between national markets are likely to persist. Only total harmonization of such rules will eliminate all barriers. Meanwhile, however, the denial of access to the market must be managed. The ECJ's earlier rul- ings on the scope of Article 28 were inconsistent, and the Keck and Mithouard ruling remains problematic.51

Another fundamental principle of the internal market is the right to provide services across national borders.5 2 This princi- ple is outlined in Article 49 of the EC Treaty.53 Inevitably, as questions concerning the interpretation and scope of Article 49 have arisen, analogies to the Article 28 case law have been raised. 4 One important case was Alpine Investments.55 The ECJ was asked to rule on whether the Dutch law prohibiting "cold calling"56 was a restriction on the freedom to provide services within the meaning of Article 49 EC Treaty. 7 Alpine Invest- ments, established in the Netherlands, wished to market its fi- nancial services through "cold calls" to potential clients in Ger- many, where "cold calling" was permitted.58

Advocate General Jacobs delivered his Opinion in Alpine In- vestments before a Full Court, a few weeks before the ruling in Leclerc-Siplec was delivered. 59 Both cases were similar insofar as

51. See Franz Leidenmuhler, The Free Movement of Goods Within an EC-Wide Market: Still a Work in Progress, 12 CARDOZO J. INT'L & COMP. L. 163, 167-69 (2004).

52. This right has gained significance since the 1980s, as unprecedented advances in technology and telecommunications have transformed the delivery of services.

53. See Consolidated EC Treaty, supra note 1, art. 49, O.J. C 325/33, at 54 (2002). 54. See, e.g., Staatssecretaris van Financien v. B.G.M. Verkooijen, Case 35/98,

[2000] E.C.R. 1-04071; Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberburgermeisterin der Bundesstadt Bonn, Case 36/02, [2004] E.C.R. 09609; Canal Satelite Digital SL Administracion General del Estado, Case 390/99, [2002] E.C.R. I- 607. But see Hans Reisch v. Burgermeister der Landeshauptstadt Salzburg, Cases 515/ 99, 519/99 to 524/99 and 526/99 to 540/99, [2002] E.C.R. 1-02157.

55. Alpine Investments BV v. Minister van Finaciin, Case C-384/93, [1995] E.C.R. 1-1141, [1995] 2 C.M.L.R. 209 [hereinafter Alpine Investments].

56. "Cold calling" refers to the practice of making unsolicited telephone calls to potential clients.

57. See Alpine Investments, [1995] E.C.R. at 1-1169, 1, [1995] 2 C.M.L.R. at 233. 58. See Opinion of Advocate General Jacobs, Alpine Investments, Case C-384/93,

[1995] E.C.R. 1-1141, 1-1152, 36, [1995] 2 C.M.L.R. 209, 220. Alpine Investments presented a novel situation to the ECJ. Normally, in situations involving cross-border provision of services, the receiving (host) Member State imposes restrictions on the delivery of the service. In Alpine Investments, however, the Netherlands (the home State) had imposed the challenged restriction. See id. at 1-1144, 1, [1995] 2 C.M.L.R. at 213.

59. The Opinion for Alpine Investments was issued January 26, 1995; the ECJ ruling

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the Dutch prohibition was non-discriminatory and did not have the object or effect of favoring domestic service providers over those from other Member States.6 °

Jacobs' approach in Alpine Investments resembles that which he adopted in Leclerc-Siplec. He stated that:

Whether a rule of the Member State of origin constitutes a restriction on the freedom to provide services should be de- termined by reference to a functional criterion, that is to say, whether it substantially impedes the ability of persons estab- lished in its territory to provide intra-Community services. It seems to me that that criterion is consonant with the notion of an internal market and more appropriate than the crite- rion of discrimination.61

The governments of the Netherlands and of the United Kingdom had submitted that the ruling in Keck and Mithouard should apply by analogy and that the disputed prohibition on cold calling should be classified as a selling arrangement outside the scope of Article 49.62 Not surprisingly, given his view of Keck and Mithouard, Jacobs rejected this. He agreed that there were similarities between the two freedoms, and similar principles should apply to the interpretation of Articles 28 and 49 EC Treaty, but Keck and Mithouard was the wrong test to apply. 63 Ja- cobs expressly referred to the difficulties in determining the ef- fect of the ruling in Keck and Mithouard, as set out in his opinion in Leclerc-Siplec, and proceeded to highlight the differences be- tween the two situations.6 4 It would be inappropriate to apply Keck, he argued, since the exporting Member State in Alpine In- vestments sought to control the provision of services in the host State. 65 If both the non-discriminatory restrictions of importing and exporting Member States fell outside Article 49, the service

for Leclerc-Siplec was issued February 9, 1995. See generally Alpine Investments, [1995] E.C.R. 1-1141, [1995] 2 C.M.L.R. 209; Leclerc-Siplec, Case C-412/93, [1995] E.C.R. 1-0179, [1995] 3 C.M.L.R. 422.

60. See Opinion of Advocate General Jacobs, Alpine Investments, [1995] E.C.R. at I- 1153, 38, [1995] 2 C.M.L.R. at 220; Opinion of Advocate GeneralJacobs, Leclerc-Siplec, [1995] E.C.R. at 1-0200, 54, [1995] 3 C.M.L.R at 444.

61. Opinion of Advocate General Jacobs, Alpine Investments, [1995] E.C.R. at I- 1155, 47, [1995] 2 C.M.L.R. at 222.

62. See id. at 1-1151, 32, [1995] 2 C.M.L.R. at 219. 63. See id. at 1-1159, 60, [1995] 2 C.M.L.R. at 226. 64. See id. 65. See id.

A COMMENTARY ON SELECTED OPINIONS

provider would have to comply with both sets of rules.6 6

The ECJ paid much less attention in its ruling to the anal- ogy with Keck and Mithouard and expressly refuted Jacobs' at- tempt to rely on the ruling.67 Instead, the Court-arguably un- necessarily, having rejected the analogy argument-restated the Keck and Mithouard test, adding by way of extra explanation that, "[t]he reason is that the application of such provisions is not such as to prevent access by the latter to the market of the Mem- ber State of importation or to impede such access more than it impedes access by domestic products."68

The situation in Alpine Investments was totally different, as the cold calling prohibition directly affected access to the mar- ket in services in other Member States. The use of the language of "access to markets" rather than "selling arrangements" is much closer to Jacobs' reasoning.

Thus, in Alpine Investments, Jacobs concluded that the Dutch prohibition on "cold calling" was a non-discriminatory restric- tion within the meaning of Article 49.69 The Court agreed, since the prohibition "deprive[d] the operators concerned of a rapid and direct technique for marketing and for contacting potential clients in other Member States."7 Jacobs then applied the con- ditions for determining whether the restriction was compatible with Article 49.71 Both Jacobs and the ECJ concluded that the restriction was justified in order to protect consumers and to safeguard the reputation of the Dutch securities market.72

66. See id. at 1-1159, 61, [1995] 2 C.M.L.R. at 226. 67. See Alpine Investments, Case C-384/93, [1995] E.C.R. 1-1141, 1-1177, 136, [1995]

2 C.M.L.R. 209, 237. 68. Id. at 1-1177, 37, [1995] 2 C.M.L.R. at 237. 69. See Opinion of Advocate General Jacobs, Alpine Investments, [ 1995] E.C.R. at I-

1159, 62, [1995] 2 C.M.L.R. at 226. 70. Alpine Investments, [1995] E.C.R. at 1-1176, 1 28, [1995] 2 C.M.L.R. at 236. 71. Specifically, Jacobs applied the three conditions that the Court had already

laid down in its case law, asking whether: (1) the rules were justified by imperative reasons of public interest; (2) adequate protection of the public interest could be at- tained by less restrictive means; and (3) the interest in question was not protected ade- quately by the law of the Member State where the provider of services was established. See Opinion of Advocate General Jacobs, Alpine Investments, [1995] E.C.R. at 1-1160, 1 64, [1995] 2 C.M.L.R. at 226.

72. See id. at 1-1163, 78, [1995] 2 C.M.L.R. at 229; see also Alpine Investments, [1995] E.C.R. at 1-1166, 1 44, [1995] 2 C.M.L.R. at 240.

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B. Intellectual Property Rights and the Internal Market

One major barrier to an integrated European internal mar- ket is the protection of intellectual property rights, such as pat- ents and trademarks, which are exclusive national property rights, granted by national laws and exercised over national terri- tories.73 The ECJ has been asked frequently by national courts to define the scope of Article 28 of the EC Treaty in the context of goods protected by intellectual property rights.7 4 Article 30 of the EC Treaty provides an expressed derogation from the prohi- bition of Article 28 in favor of intellectual property owners.75 Al- most two years after his appointment as Advocate General, Ja- cobs delivered his first Opinion on the so-called "inherent" con- flict between national rights of trademark owners and the EC Treaty rules on the free movement of goods,76 in HAG ." He successfully advised the Court to reverse its earlier ruling in HAG L78 As the ECJ rarely expressly overrules earlier decisions, this case has historical significance irrespective of its subject matter.

The ECJ in HAG I had adopted the "common origin" doc- trine: where similar or identical trademarks were originally owned by the same natural or legal person, but later become the property of two different owners in different Member States,

73. See Hugh Laddie, National LP. Rights: A Moribund Anachronism in a Federal Eu- rope, 23 EuR. INTELL. PROP. REV. 402, 403-04 (2001).

74. See, e.g., Administration des douanes et droits indirects v. Rioglass SA and Transremar SL, Case C-115/02, [2003] E.C.R. 12705, [2006] 1 C.M.L.R. 12 (asking the ECJ whether Article 28 protection extends preclude customs detention of goods in- tended for sale in a non-member country while in transit through a member country); Land Hessen v. G. Ricordi & Co. Buhnen- und Musikverlag GmbH, Case C-360/00, [2002] E.C.R. 1-05089, [2004] 2 C.M.L.R. 20 (considering the applicability of non-dis- crimination to copyrights that arose prior to the EEC Treaty's entry into force); Regie Nationale des Usines Renault SA v. Maxicar SpA, Case C-38/98, [2000] E.C.R. 1-2973 (asking whether Article 28 protected the intellectual property rights of an automobile body parts manufacturer).

75. See Consolidated EC Treaty, supra note 1, art. 30, O.J. C 325/33, at 47 (2002) (allowing derogation for "protection of industrial and commercial property").

76. Jacobs has delivered a large number of opinions in cases involving trademark rights and Community law. In particular, after the adoption of the Trade Mark Direc- tive, Council Directive No. 89/104, O.J. L 40/1 (1989), he played a significant role in the development of the Community's trademark law by delivering opinions in almost all of the cases that raised issues of interpretation regarding the Directive's various pro- visions.

77. SA CNL-SUCAL NV v. HAG CF AG, Case C-10/89, [1990] E.C.R. 1-3711, [1990] 3 C.M.L.R. 571 [hereinafter HAG II].

78. Van Zuylen v. HAG, Case 192/73, [1974] E.C.R. 731, [1974] 2 C.M.L.R. 127 [hereinafter HAG I].

A COMMENTARY ON SELECTED OPINIONS

neither current owner could keep the other's trademarked goods, which had been lawfully placed on the market in a Mem- ber State, out of their respective territories.79 Thus the EC Treaty rules on free movement of goods prevailed over nation- ally owned trademark rights."0 Unfortunately, twenty years elapsed before a similar case was referred to the ECJ that would enable the Court to reconsider this heavily criticized8 doctrine.

Advocate General Jacobs' Opinion in HAG H is remarkable for the forthright manner in which he demolished the Court's reasoning in HAG L82 He considered the principal fault of HAG I to be the ECJ's failure to explain why the mere fact that trade- marks have a common origin is relevant in the absence of any market-sharing agreement.8 3 Jacobs directly attacked the doc- trine of common origin, finding no rational basis for it, and chal- lenged the Court to justify it by reference to the EC Treaty. In fairness to the ECJ, Jacobs acknowledged, quoting from the opinion of Advocate General Dutheillet de Lamothe in Sirena v. Eda,8 4 that twenty years earlier there had been a negative atti- tude towards the value of the interests protected by trademarks, by comparison to those protected by patents. 85 However, Jacobs also criticized the Court's attempt to legitimize the doctrine of common origin two years later in Terrapin v. Terranova.8 6 Ac- cording to Jacobs, the Court misunderstood "origin" in the con- text of the essential function of a trademark, which is to guaran- tee to consumers that the product has the same commercial origin, and not to guarantee the historical origin of the trademark it-

79. See id. at 744, 15, [1974] 2 C.M.L.R. at 144. 80. See id. at 744, 13, [1974] 2 C.M.L.R. at 144 81. For criticism of the common origin doctrine, see William R. Cornish, Trade

Marks, Customer Confusion and the Common Market, 38 MOD. L. REv. 329 (1975); see also Francis A. Mann, Industrial Property and the E.E.C. Treaty, 24 ITr'L & CoMP. L.Q. 31 (1975).

82. See Opinion of Advocate General Jacobs, HAG II, Case C-10/89, [1990] E.C.R. 1-3711, 1-3733-34, 1 22, [1990] 3 C.M.L.R. 571, 584-86.

83. See id. at 1-3734, 26(iv), [1990] 3 C.M.L.R. at 585-86. 84. See Opinion of Advocate General Lamothe, Sirena S.r.l. v. Eda S.r.l., Case 40/

70, [1971] E.C.R. 69, 87, 1, [1971] C.M.L.R. 260, 264-65. See also Sirena S.r.l. v. Eda S.r.l., Case 40/70, [1971] E.C.R. 69, 82, 17, [1971] C.M.L.R. 260, 273 (citing Advocate General Lamothe's comment).

85. See Opinion of Advocate General Jacobs, HAG II, [1990] E.C.R. at 1-3731, 1 16, [1990] 3 C.M.L.R. at 582.

86. See id. at 1-3735, 24, [1990] 3 C.M.L.R. at 582 (citing Terrapin (Overseas) Ltd. v. Terranova Industrie C. A. Kapferer & Co., Case 119/75, [1976] E.C.R. 1039, [1976] 2 C.M.L.R. 482).

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self.s 7 By the time Terrapin v. Terranova was decided, the Court had already recognized that trademarks have two functions: to protect the owner's goodwill, and to protect consumers from confusion or deception as to the origin of the goods.8" Jacobs further implied that the Court should have reasoned more logi- cally in Terrapin v. Terranova, instead of confirming the position adopted in HAG L89 He concluded that the doctrine of com- mon origin "is not a legitimate creature of Community law,"9" and reminded the Court that post-HAG I case law on the exer- cise of intellectual property rights had developed and centered around the notion of "consent.""t The doctrine of common ori- gin was not reconcilable with the notion of consent where the property had been expropriated by the State.9 2

The ECJ in HAG I!abandoned the doctrine of common ori- gin, ruling that "it should be stated at the outset that the Court believes it necessary to reconsider the interpretation given in... [HAG 1] in the light of the case law which has developed with regard to the relationship between industrial and commercial property and the general rules of the Treaty, particularly in the sphere of the free movement of goods."93 It is not clear whether this reversal would have happened irrespective of Jacobs' opin- ion. One judge in the case, Ren6 Joliet, was familiar with intel- lectual property rights law and, as a former academic, was fully aware of the criticism of HAG !and Terrapin v. Terranova.94 Nev- ertheless, Jacobs' Opinion is a coherent, authoritative, and ro- bust demolition of the ECJ's reasoning in both rulings.95

87. See Opinion of Advocate General Jacobs, HAG II, [1990] E.C.R. at 1-3735, 24, [1990] 3 C.M.L.R. at 582.

88. Seegenerally Centrafarm v. Winthrop, Case 16/74, [1974] E.C.R. 1183, [1974] 2 C.M.L.R. 480.

89. See Opinion of Advocate GeneralJacobs, HAG II, [1990] E.C.R. at 1-3736-37, 7 26, [1990] 3 C.M.L.R. at 588.

90. Id. 91. See id. at 1-3737, 77 27-28, [1990] 3 C.M.L.R. at 588-89. 92. See id. at 1-3738, 7 31-32, [1990] 3 C.M.L.R. at 590. 93. HAG II, Case C-10/89, [1990] E.C.R. 1-3711, 1-3757, 10, [1990] 3 C.M.L.R.

571,607. 94. For an article illustrating Joliet's familiarity with intellectual property law, see

Ren6 Joliet, Trademark Law and the Free Movement of Goods: The Overruling of the Judgment in Hag I, 22 INT. REv. oF INDUS. PROP. & COPYMGHT L. 303 (1991).

95. Interestingly, Jacobs criticized the Court for lack ofjustifications for adopting the doctrine of common origin in the HAG Iruling, and specifically mentioned the fact that the Court's ruling was set out only in ten short paragraphs. See Opinion of Advo- cate GeneralJacobs, HAG II, [1990] E.C.R. at 1-3732, 21, [1990] 3 C.M.L.R. at 584. In

20061 A COMMENTARY ON SELECTED OPINIONS

The case of Silhouette v. Hartlauey9 6 raised the issue of ex- haustion of trademark rights again in 1998.9' In Silhouette, the national court sought clarification as to whether Community law required Member States to adopt the principle of international exhaustion.98 The doctrine of exhaustion of intellectual prop- erty rights, developed by the ECJ in case law to resolve the con- flict between the prohibition of Article 28 and the derogation in Article 30, has been primarily based on the existence or absence of "consent" on the part of the relevant right-holder.99 If placed on the Community market by (or with the consent of) the own- ers of intellectual property rights, products protected by such rights are free to circulate anywhere within that market.

Community legislation now governs the matter. Article 7 (1) of the Trade Marks Directive1 °° states that: "[t]he trademark

HAG II, even though the ECJ expressly overturned a twenty year-old doctrine, the Court dealt with this whole matter in only ten paragraphs! See HAG II, [1990] E.C.R. 1-3711, 1- 3757-60, 1 11-20, [1990] 3 C.M.L.R. 571, 607-09. This contrasts dramatically with Ja- cobs' opinion in HAG II, which comprised sixty-five paragraphs. See Opinion of Advo- cate General Jacobs, HAG II, [1990] E.C.R. at 1-3727-51, 11 7-72, [1990] 3 C.M.L.R. at 578-605.

96. Silhouette International Schmied GmbH & Co KG v. Hartlauer Handelsgesell- schaft mbH, Case C-355/96, [1998] E.C.R. 1-4822, [1998] 2 C.M.L.R. 953 [hereinafter Silhouette].

97. See Opinion of Advocate General Jacobs, Silhouette, Case C-355/96, [1998] E.C.R. 1-4799, 1-4802, 1 3, [1998] 2 C.M.L.R. 953, 957.

98. See id. at 14809-10, 29, [1998] 2 C.M.L.R. at 962; see also Silhouette, [1998] E.C.R. at 14828, 11 14-15, [1998] 2 C.M.L.R. at 975. The goods in question-trade- marked outdated models of spectacle frames-had been placed on the market outside the Community with instructions to the purchaser not to export the goods to any other country. See Opinion of Advocate General Jacobs, Silhouette, [1998] E.C.R. at 14806-07,

16, [1998] 2 C.M.L.R. at 960. The goods, however, were imported into the Commu- nity by a third-party, and Silhouette, the trademark owner, sought to prevent the impor- tation of the trademarked goods claiming that they were not placed on the Community market with its consent. See id. at 14807, I 17-18, [1998] 2 C.M.L.R. at 960.

99. In Deutsche Grammophon Gesellschaft mbH. v. Metro-SB-Grossmirkte GmbH & Co. K.G., Advocate General Roemer proposed a criterion of dependency to reconcile the Free Movement of Goods rules with the rights of intellectual property owners. See Deutsche Grammophon Gesellschaft mbH. v. Metro-SB-Grossmarkte GmbH & Co. KG., Case 78/70, [1971] E.C.R. 487, [1971] C.M.L.R. 631. He concluded that a trade- mark owner exhausted his rights where the goods were placed in the territory of an- other Member State by the trademark owner or an undertaking dependent on the owner. See Opinion of Advocate General Roemer, Deutsche Grammophon Gesellschaft mbH. v. Metro-SB-Grossmarkte GmbH & Co. K.G., Case 78/70, [1971] E.C.R. 487, 506- 08, [1971] C.M.L.R. 631, 647-49. The ECJ, however, replaced the criterion of depen- dency by one of consent. See Deutsche Grammophon, Case 78/70, [1971] E.C.R. at 500, 13, [1971] C.M.L.R. at 657-58.

100. See Council Directive No. 89/104, OJ. L 40/1, at 1 (1989).

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shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trademark by the proprietor or with his consent."

10 1

It was clear from the legislative history of the Trade Mark Directive that Article 7 (1) does not require the Member States to adopt a principle of international exhaustion, but less clear whether Article 7(1) prohibited the adoption of such a principle by a Member State. 102 Jacobs conceded that the adoption of the principle of international exhaustion would be favorable to con- sumers and promote competition.0 3 His main concern, how- ever, was to safeguard the integrity of the internal market.1 °4 In his view, the ECJ's case law on trademarks was developed "in the context of the Community, not the world market."'0 5 He de- cided to interpret Article 7(1) literally, concluding that Article 7 (1) provides for exhaustion only where goods are placed in the Community (that is, the EEA) market.10 6 Thus, Member States could not adopt any other doctrine. He stated that, "[i]f some Member States practice international exhaustion while others do not, there will be barriers to trade within the internal market which it is precisely the object of the Directive to remove.

10 7

The ECJ expressed its conclusions as to the purpose of the Directive and the Member States' inability to provide for interna- tional exhaustion in substantially identical wording.10 8

II. RIGHTS OF INDIVIDUALS UADER COMMUNITY LAW

Before being appointed an Advocate General, Francis Ja- cobs was a well-respected expert on the European Convention on Human Rights ("ECHR") 09 and therefore it is not surprising

101. Id. art. 7(1), OJ. L 40/1, at 7 (1989). 102. See generally Commission of the European Communities, Amended Proposal

for a First Council Directive to Approximate the Laws of the Member States Relation- ships to Trademarks, COM (85) 793 (Dec. 1985).

103. See Opinion of Advocate General Jacobs, Silhouette, Case C-355/96, [1998] E.C.R. 1-4799, 48, 4814-15, [1998] 2 C.M.L.R. 953, 967.

104. See id. at 1-4815, 52, [1998] 2 C.M.L.R. at 967. 105. Id. at 1-4815, 49, [1998] 2 C.M.L.R. at 967. 106. See id. at 1-4810, 30, [1998] 2 C.M.L.R. at 962. 107. Id. at 1-4812, 41, [1998] 2 C.M.L.R. at 964-65. 108. See Silhouette, Case C-355/96, [1998] E.CR. 1-4822, 1-4831, 27, [1998] 2

C.M.L.R. 953, 977. 109. Prior to his appointment, Jacobs was Professor of Law and Director of the

Centre for European Law at King's College, University of London. He is also the co-

A COMMENTARY ON SELECTED OPINIONS

that he sought to promote individual rights. Four Opinions have been selected as typical of his efforts to persuade the ECJ to protect and extend the rights of individuals.

A. Human Rights Protected by Community Law

Jacobs' opinion in Konstantinidis"1 is a rather special exam- ple of his deeply held commitment to the development of human rights principles as an essential element of the Commu- nity's legal order.

The question asked of the ECJ's Sixth Chamber was essen- tially whether a Member State national, established as a self-em- ployed person in another Member State in which a different al- phabet is used, is entitled, by virtue of Articles 12111 and 43 of the EC Treaty, 112 to oppose the transliteration of his names in a manner that seriously misrepresented their pronunciation.

1 3

Apart from considering the transliteration offensive to his relig- ious sentiments, Mr. Konstantinidis also considered that his human rights would have been infringed if this distortion of his name adversely affected his right of free movement.1

1 4

Jacobs approached the problem by first determining whether there was discrimination on the ground of nationality, and then asking whether, even in the absence of discrimination, the treatment accorded to Mr. Konstantinidis restricted his right of establishment under Article 43 and/or breached fundamental rights protected by Community law. 15 Jacobs concluded that there was indirect discrimination: Greek nationals living in Ger- many had to have their names spelled according to a system that neither respected their wishes nor considered the possibility of

author ofJACOBS & WHITE: EUROPEAN CONVENTION ON HUMAN RIGHTS (3d ed. 2002, now edited and continued by Clare Ovey & Robin C.A. White).

110. Christos Konstantinidis v. Stadt Altensteig-Standesamt and Landratsamt Calw- Ordnungsamt, Case C-168/91, [1993] E.C.R. 1-1191, [1993] 3 C.M.L.R. 401 [hereinaf- ter Konstantinidis]. The dispute arose when the applicant's Greek name, Christos Kon- stantinidis, was transcribed into Roman characters according to German national rules which resulted in the applicant's name being rendered as 'Hrstos K6nstantinidgs.'

111. Article 12 of the EC Treaty prohibits discrimination on the grounds of nation- ality. Consolidated EC Treaty, supra note 1, art. 12, O.J. C 325/33, at 43 (2002).

112. Article 43 of the EC Treaty provides for the right of establishment. Consoli- dated EC Treaty, supra note 1, art. 43, O.J. C 325/33, at 52 (2002).

113. See Opinion of Advocate General Jacobs, Konstantinidis, Case C-168/91, [1993] E.C.R. 1-1191, 1-1199, 1-1202, 5, 10, [1993] 3 C.M.L.R. 401, 405, 409.

114. See id. at 1-1199, 5, [1993] 3 C.M.L.R. at 405. 115. See id.

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an objectionable degree of distortion. 116 Thus, Greek nationals were treated differently than nationals from other Member States.1 17 It had been submitted that such indirect discrimina- tion should only be prohibited if tangible disadvantage was shown, such as loss of income or administrative difficulties. Ja- cobs firmly rejected this submission, arguing that:

Community law does not regard the migrant worker (or the self-employed migrant) purely as an economic agent and a factor of production entitled to the same salary and working conditions as nationals of the host State it regards him as a human being who is entitled to live in that State 'in freedom and dignity' . . . and to be spared any difference in treatment that would render his life less comfortable, physically or psy- chologically, than the lives of the native population.

1 18

This was a remarkable assertion, given the well-documented his- torical foundation of the common market, whose four funda- mental freedoms-goods, persons, services, and capital-are the recognized four factors of production in a market economy.1 19

Jacobs took a totally different approach, concluding that it was irrelevant whether economic loss was suffered by the translitera- tion of the applicant's name.1 20 It was enough that documents such as birth, marriage and death certificates-"the most signifi- cant and sacred events in a person's existence"l1 1-were written in a manner that the person found offensive.1 22 Jacobs opined that, "[e]ven as regards entries in official registers [the appli- cant] is entitled to the same treatment as German nationals, un- less there is objective justification for treating him differently,"

123

which was not the case here.

Having found indirect discrimination in breach of Article 12 of the EC Treaty, 124 it was unnecessary forJacobs to consider

116. See id. at 1-1204, 20, [1993] 3 C.M.L.R at 411-12. 117. See id. 118. Id. at 1-1204-05, 24, [1993] 3 C.M.L.R at 412, 413. 119. See Simone Suelzer McCormick, ASEM: A Promising Attempt to Overcome Protec-

tive Regionalism and Facilitate the Globalization of Trade, 10 ANN. SURV. INT'L & COMP. L. 233, 238 (2004).

120. See Opinion of Advocate GeneralJacobs, Konstantinidis, [1993] E.C.R. 1-1191, 1-1205-06, 25, 27, [1993] 3 C.M.L.R. 401, 413.

121. Id. at 1-1205, 26, [1993] 3 C.M.L.R at 413. 122. See id. at 1-1205-06, 1 26, 27, [1993] 3 C.M.L.R. at 413-14. 123. Id. 124. See id. at 1-1207, 77 30, 31, [1993] 3 C.M.L.R at 415.

A COMMENTARY ON SELECTED OPINIONS

the issue of fundamental rights. Nevertheless, he took the op- portunity to explain his deeply-held belief that there is a funda- mental human right to one's own name under Community law. 125 Jacobs criticized the European Convention on Human Rights ("ECHR") for not providing a right of individuals to a name and a personal identity, and for not recognizing an indi- vidual's right to be treated with respect for his dignity and moral integrity. 126 He proceeded to review several Member State con- stitutions that supported his conclusion that there exists "a prin- ciple according to which the State must respect not only the physical well-being of the individual but also his dignity, moral integrity and sense of personal identity.' 2 7 Paragraph forty is worth quoting in full:

A person's right to his name is fundamental in every sense of the word. After all, what are we without our name? It is our name that distinguishes each of us from the rest of humanity. It is our name that gives us a sense of identity, dignity and self-esteem. To strip a person of his rightful name is the ulti- mate degradation, as is evidenced by the common practice of repressive penal regimes which consists in substituting a num- ber for the prisoner's name.'

28

The crucial question in Konstantinidis was whether a person exercising his Community right of free movement was, as a mat- ter of Community law, entitled to object to treatment that consti- tuted a breach of his fundamental rights. 129 Jacobs reviewed the case law, concluding that Community law had developed consid- erably in this respect in the 1980s. 3 He also concluded that migrant Community nationals are entitled not only to enjoy the same living and working conditions as nationals of their host Member State, but also to assume that wherever they go to earn

125. See id. at 1-1207, 1-1209, 31, 40, [1993] 3 C.M.L.R at 415, 417. 126. See id. at 1-1208, 36, [1993] 3 C.M.L.R at 416. 127. See id. at 1-1209, 1 39, [1993] 3 C.M.L.R at 417. 128. Id. at 1-1209, 1 40, [1993] 3 C.M.L.R at 417. 129. See id. at 1-1210, 42, [1993] 3 C.M.L.R at 418. 130. See id. In certain situations, Community law requires national legislation to be

tested for compliance with fundamental rights. These situations arise when the na-

tional legislation implements Community law and when an EC Treaty provision dero-

gating from the principle of free movement is invoked to justify a restriction on free movement. See, e.g., Cin&h4que and others v. F~d~ration nationale des cinemas fran-

4ais, Joined Cases C-60 and C-61/84, [1985] E.C.R. 2605, 2627, 26, [1986] 1 C.M.L.R. 365, 386; Demirel v. Stadt Schwdbisch Gmfind, Case C-12/86, [1987] E.C.R. 3719, 3754,

28, [1989] 1 C.M.L.R. 421, 439-40.

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their living within the European Community, they will be treated in accordance with a common code of fundamental values, par- ticularly those laid down by the ECHR."'3 They are entitled to say "civis europeus sum" and to invoke that status in order to oppose any violation of their fundamental rights.'32 Jacobs dis- missed all major objections to this conclusion on various grounds. 133

Predictably, the Court totally ignored the human rights is- sue, focusing on the circumstances of when the transcription of the name of a migrant Greek national would be incompatible with Article 42, and finding that this would be so where the de- gree of inconvenience interferes with the migrant's freedom to exercise the right of establishment. 13 4 On the particular facts of this case, such interference would be established if the transliter- ation of the migrant's name created a risk that potential clients could confuse him with other persons.'1

5

B. Horizontal Direct Effect of Directives

The Opinions delivered in Vaneetveld 13 6 and Unilever1 37

demonstrate Jacobs' concern with the extent to which individu- als may be affected by a Member State's failure to discharge its Treaty obligations in respect of directives. In Vaneetveld, Jacobs argued robustly and with conviction in favor of a coherent Com- munity legal system under which individuals should be allowed, in certain circumstances, to rely on rights intended to be con- ferred upon them by non-implemented or incorrectly imple- mented directives, not only against Member States or emana- tions of the State (vertical direct effect), but also in national liti- gation against a private party (horizontal direct effect).138 After

131. SeeOpinion of Advocate GeneralJacobs, Konstantinidis, [1993] E.C.R at 1211- 12, 46, [1993] 3 C.M.L.R at 420.

132. See id. 133. See id. at 1-1212-13, 47-50, [1993] 3 C.M.L.R at 420-22. 134. See Konstantinidis, Case C-168/91, [1993] E.C.R. 1-1191, 1218, 15, [1993] 3

C.M.L.R. 401, 424. 135. See id. at 1-1218, 16, [1993] 3 C.M.L.R. at 424. 136. Opinion of Advocate General Jacobs, Vaneetveld, Case C,316/93, [1994]

E.C.R. 1-763, [1994] 2 C.M.L.R. 852. 137. Opinion of Advocate General Jacobs, Unilever, Case C-443/98, [2000] E.C.R.

1-7535, [2001] 1 C.M.L.R. 21. 138. See Opinion of Advocate General Jacobs, Vaneetveld, Case C-316/93, [1994]

E.C.R. at 1-763, 1-773, 1-775-76, 26, 31, 34, [1994] 2 C.M.L.R. 852, 860, 863-64.

A COMMENTARY ON SELECTED OPINIONS

examining the arguments regularly raised against the horizontal direct effect of directives, he argued that there was no longer any rational justification for denying such effect.' 39 At paragraph twenty-six of the Opinion, he stated:

More than [thirty] years ago in Van Gend en Loos [Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belast- ingen, [1963] E.C.R. 1, [1963] C.M.L.R. 105] the Court recognised the specific character of Community law as a sys- tem of law which could not be reduced to an arrangement between States, as was often the case in traditional interna- tional law. After the developments in the Community legal system which have taken place since then, it may be necessary to recognize that in certain circumstances directives which have not been properly implemented may confer rights on individuals even as against private bodies. Perhaps a particu- lar contrast could be drawn in this respect between the Com- munity legal order and the international legal order. 40

Jacobs denied that directives are binding only as to the result to be achieved.14' This was indeed the original objective, but the reality now is very different. The Community legal order is neither static nor complete, but is a continuously evolving legal system, and therefore the ECJ's interpretative rulings may re- quire modification to reflect political and constitutional changes. In practice, Member States' discretion on how to im- plement directives "is severely limited by the detailed, exhaustive nature of much of the legislation now emanating from the Council in the form of directives. Many of the provisions con- tained in directives are, in consequence, ideally suited to have direct effect."' 42

Once again, Jacobs sought a reversal of existing case law"' when the facts did not strictly require him to do so, as confirmed by the subsequent very brief ruling of the Second Chamber of the ECJ.' 4 4 However, at the time Jacobs delivered the Opinion

139. See id. at 1-770-77, 18-36, [1994] 2 C.M.L.R. at 859-65. 140. Id. at 1-773, 26, [1994] 2 C.M.L.R. at 860. 141. See id. at 1-773-74, 28, [1994] 2 C.M.L.R. at 862. 142. Id. 143. See Marshall v. Southampton and South-West Hampshire Area Health Author-

ity, Case 152/84, [1986] E.C.R. 723, [1986] 1 C.M.L.R. 688 [hereinafter Marshall 1]. 144. See Nicole Vaneetveld v. Le Foyer SA and Le Foyer SA v. F6d6ration des Mutu-

alit~s Socialistes et Syndicales de la Province de Lihge, Case C-316/93, [1994] E.C.R. I- 763, 1-780-85, [1994] 2 C.M.L.R. 852, 865-68 [hereinafter Vaneetveld]. On the facts of

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in Vaneetveld-the preliminary reference in Faccini Dori" 5-in which the ECJ had been expressly invited to re-examine the issue of horizontal direct effect of directives, was pending before a Full Court. 14 6 Although clearly speculative, it is reasonable to suggest thatJacobs sought in Vaneetveld to publicize his views on this issue.

Jacobs' concern with legal certainty and the effect on indi- vidual rights of "new-style" directives, particularly in their con- tractual arrangements governed by national law, may also be seen in his Unilever opinion."' 7 That case, before the national court concerned a dispute involving the supply of olive oil by Unilever to Central Food."' 8 Central Food refused payment be- cause the oil was not labeled in conformity with Italian legisla- tion. "'4 9 That legislation, however, had not received European Commission approval, as required by the relevant directive.' 5

Previously, in CIA Security, 1 ' the ECJ had ruled that a na- tional court must refuse to apply, in litigation between private parties, a national technical regulation that had not been noti- fied to the European Commission as required by the relevant directive.' 52 Jacobs expressly approved this ruling insofar as it provided that, in order to safeguard the effectiveness of the con- trol mechanism established by the directive, a Member State should not be able to enforce against individuals a technical reg-

the case, the accident, which led to the civil litigation before the national court, took place before the time period for implementing the directive into national law had

elapsed. See Opinion of Advocate General Jacobs, Vaneetveld, Case C-316/93, [1994] E.C.R. at 1-763, 1-768-69, 7 13-15, [1994] 2 C.M.L.R. 852, 857-58. Directives can be relied on by individuals before national courts only after the expiry of the period laid down in the directive for implementation into national law. See Vaneetveld, [1994] E.C.R. at 1-784, 16, [1994] 2 C.M.L.R. at 867.

145. Faccini Dori v. Recreb Srl., Case C-91/92, [1994] E.C.R. 1-3325, [1995] 1 C.M.L.R. 665. Faccini confirmed that directives can have direct effect only against the State or an emanation of the State. See id.

146. See id. at 1-3355, 19, [1995] 1 C.M.L.R. at 689.

147. Unilever Italia SpA v. Central Food SpA, Case C-443/98, [2000] E.C.R. 1-7535, [2001] 1 C.M.L.R. 566 [hereinafter Unilever].

148. See id. at 1-7576-77, 7 18-22, [2001] 1 C.M.L.R. at 596.

149. See id. at 1-7576, 19, [2001] 1 C.M.L.R. at 596.

150. See id. at 1-7576, 20, [2001] 1 C.M.L.R. at 596.

151. CIA Security International SA v. Signalson SA and Securitel SPRL, Case C-

194/94, [1996] E.C.R. 1-2201, [1996] 2 C.M.L.R. 781 [hereinafter CIA Security].

152. See id. at 1-2228, 75, [1996] 2 C.M.L.R. at 807.

A COMMENTARY ON SELECTED OPINIONS

ulation adopted without prior notification.1 53 However, the CIA Security ruling was sufficiently wide to be interpreted as granting, in all national litigation,1 54 horizontal direct effect to that direc- tive. In Unilever, Jacobs focused on persuading the Full Court not to extend the CIA Security ruling, by distinguishing the cases on their facts. 155 He stressed that the CIA Security ruling had concerned litigation between competitors on the basis of na- tional rules prohibiting unfair trading practices. 156 In Unilever, the national litigation concerned civil litigation based on the parties' contractual relationship.

157

Jacobs fully acknowledged the various solutions that the ECJ had already devised to counter the problems arising from the failure of Member States to implement a directive properly within the specified period.1 5 In earlier rulings the relevant di- rectives were intended to confer rights on individuals. 59 Jacobs argued, however, that the directive in Unilever was of a different nature since its objective was not to harmonize laws and grant rights to individuals, but to protect the free movement of goods via a preventive control mechanism. 161 Jacobs concluded that, under the circumstances, "the use of concepts such as transposi- tion into national law and failure to do so within the applicable time-limit is thus clearly not helpful,"'16 1 thereby dismissing ex- isting case law as inappropriate and proposing to consider the matter "on the basis of general principles of Community law alone. ' 162 Thus, if the non-notified national technical regula- tion constituted an obstacle to the free movement of goods, indi- viduals could rely on Article 28 without the need to refer to the directive.

163

153. See Opinion of Advocate General Jacobs, Unilever, Case C-443/98, [2000] E.C.R. 1-7535, 7558, 92, [2001] 1 C.M.L.R. 21, 587.

154. Jacobs' reference to the Opinion of Advocate General Elmer in CIA Security supported this interpretation. See id. at 1-7558, 96, [2001] 1 C.M.L.R. at 588.

155. See id. at 1-7553-54, 11 64-71, [2001] 1 C.M.L.R. at 582. 156. See id. at 1-7554, 71, [2001] 1 C.M.L.R. at 583. 157. See id. 158. Specifically, the doctrine of consistent interpretation of national law in the

light of directives; the vertical direct effect of directives; and the absence of horizontal direct effect of directives. See id. at 1-7555, 1 78, [2001] 1 C.M.L.R. at 584.

159. See id. at 1-7557, 86, [2001] 1 C.M.L.R. at 586. 160. See id. at 1-7555-56, 1-7557, 1 79, 86, [2001] 1 C.M.L.R. at 584, 586. 161. Id. at 1-7555-56, 79, [2001] 1 C.M.L.R. at 584. 162. Id. at 1-7556, 81, [2001] 1 C.M.L.R. at 585. 163. See id. at 1-7557, 85-86, [2001] 1 C.M.L.R. at 585-86.

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Jacobs then highlighted the problems that would arise for individuals should the CIA Security ruling be applied to all types of civil proceedings, particularly legal certainty and injustice.

1 6 4

Regarding legal certainty, it would be very difficult for traders to be aware of whether Member States have complied with the pro- cedural requirements under the directive.165 It would also be unjust if failure to notify would render a technical regulation un- enforceable in private civil litigation-an individual would lose not because of his own failure to comply with a Community law obligation, but because of a Member State's failure.16 6

The ECJ rejected Jacobs' reasoning, expressly finding that CIA Security applied to all types of litigation between private par- ties.16 7 The Court expressly stated that the case law providing that directives cannot themselves impose obligations on individ- uals-and therefore cannot be relied on as such against other individuals-did not apply where non-compliance with procedu- ral requirements of a directive constituted a substantial procedu- ral defect, rendering inapplicable a technical regulation adopted in breach of its provisions.

168

C. Locus Standi of Non-Privileged Applicants before the ECJ

The fourth paragraph of Article 230 of the EC Treaty pro- vides for limited direct access to the ECJ for non-privileged ap- plicants, namely natural and legal persons, when seeking annul- ment of an act adopted by a Community institution. 169 Individu- als may only challenge the legality of a Community act of "direct and individual concern" to them.

1 7 0

UPA1 7 1 concerned an appeal against an Order of the CFI that had dismissed the application of an association of Spanish farmers seeking the annulment of a regulation as inadmissi- ble.17 2 The CFI dismissed the case on the ground that the associ-

164. See id. at 1-7559-60, 99-101, [2001] 1 C.M.L.R. at 588-89. 165. See id. at 1-7560, 100, [2001] 1 C.M.L.R. at 588. 166. See id. at 1-7560, 101, [2001] 1 C.M.L.R. at 588-89. 167. See Unilever, Case C-443/98, [2000] E.C.R. 1-7535, 1-7584, 49, [2001] 1

C.M.L.R. 21, 600-01. 168. See id. at 1-7584-85, 1 50, [2001] 1 C.M.L.R. at 601. 169. See Consolidated EC Treaty, supra note 1, art. 230, at 126. 170. See id. 171. UPA, Case C-50/00P, [2002] E.C.R. 1-6677, [2002] 3 C.M.L.R. 1. 172. See Opinion of Advocate General Jacobs, UPA, Case C-50/OOP, [2002] E.C.R.

1-6677, 1-6681, 1 1, [2002] 3 C.M.L.R. 1, 6.

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