New Consumer Rights And A Ban On Greenwashing Are Proposed By The European Commission In The Consumer Rights Directive

The European Commission, with one more step towards the green transition, proposed on Wednesday 30 March, amend the Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, in order to help consumers to make informed decisions when shopping for environmentally-friendly products.

The new objective of the Commission is to increase the rights of consumers, but above all, is to guide consumers to make informed and environment-friendly choices that respect the environment in their purchase decisions.

To ensure this new purpose, it is intended to force sellers to provide trusted information about the duration of the product (how long a product is designed to last for) and the ways of its possible repair, prohibiting them from using false or unreliable environmental claims, known as “greenwashing”.

Information on the durability

The Commission proposes the need to provide information to consumers about the guaranteed durability of products.

The seller will be obliged to correctly inform the consumer of the guarantee and its specific duration, except when the seller has not received these data from the producer, especially when it comes to energy-using good, but in this case, the seller should also report that he has not been informed by the producer.

Information on repairs

The seller must also offer pertinent repair information in a clear and comprehensive way, such as the possibility of the reparability score or any relevant repair information provided by the manufacturer, such as the availability of spare parts or a repair manual. The consumer must be informed about software upgrades given by the producer for smart devices, digital content, and services.

The ban of the ”greenwashing” and practices misleading consumers about the durability of a product.

The proposal extends the list of product characteristics about which a trader cannot mislead consumers is expanded to cover the environmental or social impact, as well as the durability and reparability. It also intends to prohibit all false or unreliable environmental information, since this can mislead the consumer, who will make a decision influenced by information that is not real.

Where and when must the seller inform the consumer about the duration and possible repair of a product?

The seller is obligated to provide this information rather on the packaging or in the product description on the website.

This information should always be given before the purchase.

New prohibited unfair commercial practices

The proposal aims to include ten more new practices as unfair practices on the Annex I of the Directive 2005/29/EC, among which will stand out: practices as displaying a sustainability label which is not based on a certification scheme or not established by public authorities, making an environmental claim about the entire product when it actually concerns only a certain aspect of the product,  omitting to inform the consumer about the existence of a feature of a good introduced to limit its durability, or claiming that a good has a certain durability in terms of usage time or intensity when it does not.

[1] Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council Text with EEA relevance OJ L 304, 22.11.2011, p. 64–88

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Following the Russian military invasion of Ukraine, the Council adopted unanimously an Implementing Decision (EU) 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC. (Temporary Protection Directive), and having the effect of introducing temporary protection, on 4 March 2022, being this the first time the Temporary Protection Directive was activated since its adoption in 2001.


For this reason, many doubts have arisen about what we should understand by some concepts and the demand for further and clear information grew. In this context, a guidelines have been created by the European Commission to better understand this directive and to support Member States in applying it.


This guidelines will help Ukrainian refugees to have a consistent and effective level of rights and the Member States to assume their new responsibilities.


The guidelines clarify some relevant points:


Who can benefit from this directive?


Are entitled to temporary protection, including those persons who benefitted from international protection or an equivalent national protection in Ukraine before 24 February, those who have been displaced from Ukraine on or after 24 February and their family members.


What we should understand by “adequate protection”?


Member States should offer all the possible alternative measures to temporary protection, but that respect the Charter of fundamental rights of the European Union and the objective of the Temporary Protection Directive, respecting always the human dignity and avoiding discrimination.


The guidelines also specify the type of evidence needed to benefit from temporary protection or adequate protection under national law.



What happens to Ukrainians who fled the war before February 24, 2022? Are they not covered by this directive?


Theoretically this group is not covered by the protection of this Directive, but the EU encourages Member States to consider extending temporary protection to persons who strictly-speaking would not fall under the scope of application of the Decision but who need protection such as those who fled Ukraine not long before 24 February 2022.


What specific rights do children and unaccompanied minors have?


They should be immediately appointed with a legal guardian or appropriate representation with full protection and direct access to education, healthcare, psychosocial assistance, etc.


What facilities should the residence permit provide?


The residence permit should serve as a document to prove someone’s status with other authorities, such as employment offices and services, schools, hospitals. But what facilities will they have before issuing them a residence permit? If residence permits are still pending, Member States should facilitate the opening of bank accounts and access to relevant services on the basis of an ID document or proof of entry into the EU after 24 February 2022.


Do they enjoy the right to free movement before and after issuance of residence permits?


Ukrainian nationals holding biometric passports or nationalities exempt from the requirement to be in possession of a short-stay visa for entering the Union, have the right to move freely within the Schengen area after being admitted into the territory for a 90-day period within a 180-day period. For non-visa exempt nationalities, the Commission recommends that Member States of first entry issue 15-day visas as the border and that secondary Member States do not impose financial penalties on carriers transporting persons enjoying temporary protection but not in possession of valid documents to enter. After a residence permit is issued, persons with temporary protection have the right to move freely.






[1] Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection ST/6846/2022/INIT DO L 71 de 4.3.2022, p. 1/6





Directive 2008/104/EC applies to workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction.


What we should understand by “temporality”? There is a right to a permanent contract of employment between a user undertaking and a temporary agency worker when the national law is contrary to Directive 2008/104/EC?


Reference for a preliminary ruling in Case C-232/20 NP v Daimler AG 


The Landesarbeitsgericht Berlin-Brandenburg (Germany) referred to the European Court of Justice (ECJ) a request for a preliminary ruling in case C-232/20 asking about the meaning of Article 1 of the Directive 2008/104/EC, specifically if Is the assignment of a temporary agency worker to a user undertaking no longer to be regarded as “temporary” as soon as the employment takes place in a job which is permanent and not performed as cover and when the assignment of a temporary agency worker is for less than 55 months.


The national court also asked if a national provision such as Paragraph 19(2) of the Gesetz zur Regelung der Arbeitnehmerüberlassung (Law regulating temporary agency work) infringe Article 1 of the Temporary Agency Work Directive where it prescribes an individual maximum assignment period of 18 months for the first time as from 1 April 2017, but expressly excludes the taking into account of prior periods of assignment, although the assignment could no longer be classified as temporary if the prior periods of the assignment were taken into account.


In the main proceedings, the applicant, that had been employed by the temporary work agency I. since 1 September 2014 and from 1 September 2014 to 31 May 2019 had been exclusively assigned to the defendant in its capacity as the user undertaking, claimed that the assignment to the defendant could no longer be classified as “temporary” because it had lasted for more than a year, which is contrary to EU law. 


The national law, German Gesetz zur Regelung der Arbeitnehmerüberlassung (Law regulating temporary agency work, “the AÜG”), in the version in force from 1 December 2011 to 31 March 2017, prescribes an individual maximum assignment period of 18 months for the first time as from 1 April 2017, but expressly excludes the taking into account of prior periods of assignment, although the assignment could no longer be classified as temporary if the prior periods of the assignment were taken into account.


The defendant held there was a clarification by the legislature of the “temporary” criterion since 1 April 2017. After that date, derogations from the maximum assignment period of 18 months are permissible under a collective agreement in the sector in which the assignment takes place.


The defendant complied with the provisions of the AÜG’, but what will happen if that national law was contrary to EU law? it may then be declared that there was an employment relationship between the defendant and the party sued well before October 1, 2018?


It is necessary an exhaustive interpretation of Article 1 of the Temporary Agency Work Directive since it does not contain a precise definition for what we should understand for “temporary”. The ECJ has not as yet given any rulings on the interpretation of that criterion.


The Advocate General’s Opinion turns the formulation of the questions referred around and clarifies what the term “temporarily” might mean.


The Advocate General proposed to replace the term “temporary” by “temporality” in the questions referred and clarified that the dispute concerns Article 5(5) of Directive 2008/104, rather than Article 1 of that directive, but it must be read in conjunction with Article 1 to provide a correct answer. 


In his conclusion, the Advocate General held that a Member State law which expressly excludes the taking into account of periods of an assignment before a specific date, but which take place after the date for implementation of Directive 2008/104, such exclusion being relevant to the determination of whether misuse of temporary agency work has occurred, is inconsistent with Article 5(5) of Directive 2008/104 but a temporary agency worker has no entitlement under Directive 2008/104 to the establishment of a permanent employment relationship with a user undertaking in the event of a finding of misuse of temporary agency work under Article 5(5) of Directive 2008/104. The reason was that he considered that in a horizontal action between two private parties, inconsistent Member State laws providing for such exclusion are to be disapplied only if this does not compel contra legem interpretation of Member State law, so the national court should use a national law that conforms with Article 5(5) of Directive 2008/104 to give full effect to EU law.


The Advocate General understood that the word “temporarily” in Article 1 (1) of Directive 2008/104 means “lasting for only a limited period of time” and “not permanent” it relates only to the period of assignment of the temporary agency worker in question, rather than the post to which he or she is assigned, so that permanent jobs and jobs that are not performed to provide cover are not automatically precluded from the scope of Directive 2008/104.


The denial of the horizontal direct effect of directives


The direct effect of the directives comes as a result of a sanction to those Member States that after the time set for the transposition of a Directive do not transpose it to their internal legal systems or interpose it erroneously. In this way, the direct effect of a directive is recognized because the Member States are the cause of the infringement, but the direct effect of a directive is not recognised in the field of horizontal relations between two private parties.


Although it is an established doctrine (Cases C-152/84, Marshall and C-91/92, Faccini Dori) and has its legal basis, this has been one of the most common problems regarding the direct effect of directives. The problem here is that indirectly, the member state is also to blame for not transposing that directive correctly. 


Although the other logic that contrasts is, what happens if the directives happen to have a direct horizontal and vertical effect? In this case, the member states would benefit from their infringement, since they will not be “subjected to the necessity” of transposing a directive since it will take effect anyway.


However, we cannot forget that the directives only establish the basic guidelines and minimum requirements, leaving the member states the freedom to develop it according to their internal legal systems and possibilities.


Thereby, If the member states abuse this right conferred by the directives, they are also limiting their possibilities to adapt the basic content of the directives with the introduction of personalized paragraphs.


The ECJ Judgment, in this case, will be delivered on 17 March.

[1] Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work DO L 327 de 5.12.2008, p. 9/14


[2] Request for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg (Germany) lodged on 3 June 2020 — NP v Daimler AG (Case C-232/20). 




[4] Paragraph 19(2) of the Gesetz zur Regelung der Arbeitnehmerüberlassung


[5] Request for a preliminary ruling 03/06/2020 Daimler. Paragraph 24.


[6] Opinion of Advocate General Tanchev delivered on 9 September 2021(1) Case C‑232/20 NP v Daimler AG, Mercedes-Benz Werk Berlin. ECLI:EU:C:2021:727


[7] As concluded in point 51 of the Opinion of Advocate General Sharpston in KG (Successive assignments in the context of temporary agency work) (C‑681/18, EU: C:2020:300)


[8] Opinion of Advocate General Tanchev delivered on 9 September 2021(1) Case C‑232/20 NP v Daimler AG, Mercedes-Benz Werk Berlin. ECLI:EU:C:2021:727. Paragraph 6.



Request for a preliminary ruling in Case C-177/20 ‘Grossmania’ Mezőgazdasági Termelő és Szolgáltató Kft. v Vas Megyei Kormányhivatal


The Administrative and Labour Court, Győr, Hungary, in the proceedings instituted at the request of the commercial company ‘Grossmania’, against the Vas Megyei Kormányhivatal, in connection with a dispute concerning legal transactions in land, referred a question to the European Court of Justice (ECJ) about the interpretation of the Article 267 TFEU.


The Court asked specifically if Article 267 of the TFEU be interpreted as meaning that, where the Court of Justice of the European Union, in a decision given in preliminary ruling proceedings, has declared a legislative provision of a Member State to be incompatible with EU law, that legislative provision cannot be applied in subsequent national administrative or judicial proceedings either, notwithstanding that the facts of the subsequent proceedings are not entirely identical to those of the previous preliminary ruling proceedings?


In the main proceeding, Grossmania, a commercial company comprising nationals of the Member States other than Hungary, whose usufruct rights over some immovable properties were cancelled in the Property Register under national law (Paragraph 108(1) of the 2013 Law on transitional measures).


By judgment of 6 March 2018, SEGRO and Horváth, Joined Cases C-52/16 and C-113/16, the ECJ held that Article 63 TFEU, regarding the free movement of capital and the prohibition of imposition of restrictions, precludes national legislation, declaring it is contrary to EU law, being this national law, one of the objects of conflict of the Grossmania case. 


From its part, the defendant stated that the application for re-registration by Grossmania was inadmissible since the controversial national law was still in force. Moreover, the defendant also considered that the judgment delivered by ECJ in Joined Cases C-52/16 and C-113/16 had been given in particular circumstances and applied only to the cases to which the requests for a preliminary ruling related.


Problems with this request of a preliminary ruling 


Firstly, the parties here were already aware of the content of the judgment delivered by the ECJ Cases C-52/16 and C-113/16, where it was held that paragraph 108(1) of the 2013 Law on transitional measures infringed EU law. 


Secondly, Grossmania did not take any action against the administrative decisions cancelling its rights of usufruct. Only, due to the judgment in Joined Cases C-52/16 and C-113/16, the applicant applied to have its rights of usufruct re-registered. 


Moreover, even if the underlying factual situations of the present case and the mentioned Joined cases are different, the relevant legislative provision is identical.


Finally, should the national Court disapply the national law because it was declared contrary to EU law by the ECJ in a previous case and therefore require the defendant to re-register the usufruct rights over Gossmania´s immovable properties?




If national Courts have doubts about whether or not to apply a national law or about the interpretation of the EU law, they are obliged to refer a preliminary ruling to the ECJ, unless the European Court has already ruled on a similar matter previously, this follows inter alia from the fact that the obligation imposed on courts of the last instance to refer a question for a preliminary ruling has an exception: where “the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case”.


The national court and the Hungarian authorities must stop applying the national law that has been declared contrary to the EU since the authorities of the Member State are obligated to take all the general or particular measures necessary to ensure that Community law is complied with.


We can never forget that the general system of EU law revolves around the principle of loyal cooperation, unity and coherence and that the primary objective of judges and member states is to give full effect to EU law. If we leave it to the discretion and free will of a state or a national court to continue applying a national law declared contrary to EU law, the ruling of the ECJ will have no meaning or effectiveness, in this regard, the judgments of the ECJ must have a binding effect to facilitate a harmonious interpretation of EU law. 


The Advocate General Tanchev in his opinion delivered on 16 September 2021 in this case, proposed to the CJEU to answer that the national court must disapply the national legal norm that infringes EU law, opinion, with which I fully agree, because only in this way can EU law be given full effect. 

In addition, this allows us to ensure that a judgment issued by the ECJ not only binds the national court that has formulated the request but also all the other national authorities, unanimously, since the objective of EU law is to create a uniform application in all the countries of the union.


On March 10, 2022, the ECJ hearing on this matter will take place, what do you think its position will be?


[1] Request for a preliminary ruling from the Győri Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 7 April 2020 — ‘Grossmania’ Mezőgazdasági Termelő és Szolgáltató Kft. v Vas Megyei Kormányhivatal (Case C-177/20)




[3] Judgment of the Court (Grand Chamber) 6 March 2018, SEGRO v Horváth, ECLI:EU: C:2018:157


[4] Judgment of 6 October 1982, Cilfit and Others (283/81, EU: C:1982:335, paragraphs 13 and 14)


[5] OPINION OF ADVOCATE GENERAL TANCHEV Delivered on 16 September 2021(1) ECLI:EU: C:2021:748 


The Ukrainian Refugee Crisis Receive an Unprecedented European Response and help.

Following Russia’s invasion of Ukraine, thousands of Ukrainians and citizens who were living there are trying to flee towards Europe from the disastrous humanitarian conditions caused by the armed violence.


From the beginning of this situation, a migration crisis was expected, and European countries, with the help of the EU, were already prepared to offer humanitarian aid and welcome refugees. 


The European Commission´s President von der Leyen expressed in a statement that the EU “welcomes with open arms those Ukrainians who have to flee from Putin’s bombs” and that the Commission is “mobilising every effort and every euro to support the Eastern Member States to host and take care of these refugees”.


Unlike previous migratory crises, the European member states have shown a rapid and unified political response to welcome Ukrainian refugees. Poland has opened its borders to all Ukrainians with a lot of facilities to reduce formalities to a minimum due to the urgency of the situation and the rest of the European countries are prepared to receive them without any number restriction. 


The European Commission declared the possibility to activate a never-used and potential asylum law that could help millions of Ukrainians fleeing Russia’s invasion to find shelter across the European Union. 


This mechanism is the Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between the Member States in receiving such persons and bearing the consequences thereof, commonly known as the Temporary Protection Directive. 


This is a never-used directive that only received the green light now with the Ukraine crisis, since its publication in 2001. It constitutes an exceptional scheme that grants immediate and temporary protection to displaced people from non-EU countries. It is exceptional because it only applies when there is a clear risk that the standard asylum system will not be able to cope with the demand stemming from a mass influx that risks hurting the processing of applications.


How did this Instrument work? What benefits and facilities gives?


This mechanism conditions the member states to adopt all the necessary measures to provide help and grant visa or residence permits to the displaced persons for the entire duration of the protection. 


Among the help and assistance offered, we find evacuation; access to suitable accommodation or, if necessary, receive the means to obtain housing; social welfare; medical care; means of subsistence; employment; education to displaced under 18 years of age under the same conditions as nationals of the host Member State, admission of adults to the general education system, but optionally; representation of unaccompanied minors, etc. 


It must be borne in mind that this directive establishes the general aid guidelines, but leaves complete freedom to the Member States to adopt other types of more favourable facilities.


Considering that this protection has a limited duration, the duration of temporary protection is for one year, however, it may be extended automatically by six-monthly periods for a maximum of one year.


Are asylum applications and temporary protection compatible?


People covered by temporary protection can submit an asylum application at any time, nevertheless, Member States may reject the combination of the status of the beneficiary of temporary protection with the status of asylum seeker when the application is still being considered by the competent authority.




Without a doubt, this enormous and incredible humanitarian step that has been taken with the European Commission’s proposal to activate this directive for the first time, is being highly applauded by the international community and has given hope to the Ukrainians fleeing the war, but what it is needed to put this mechanism into practice? Why it has not been activated previously in some similar cases?


It is important the agreement of the Member States with the proposal, but it is even more important, taking into account the lack of clarity of the concept of “mass influx”, to determine if this requirement has a place in this current event or not, since this mechanism has not been activated with the previous refugee crisis. 


Moreover, since there is no limit of the numbers of Ukrainians that may be beneficiaries of this Directive, there may be difficulties and dangerous situations in the reception of large groups of displaced persons, since there are some frontline Member States that are already overburdened, so the Temporary Protection Directive may present a further challenge.


Another possible controversy could be that, if it is agreed to activate this directive, only Ukrainians of origin will be beneficiaries of this temporary protection, since the Directive expressly establishes in its Article 1 “country of origin”, but once again, no clear definition is provided for what we should understand by the word “origin”.


We are very happy with the possible application of this protection mechanism for the Ukrainian people who need our help, and we really want it to be the starting point for better solidarity between peoples, but we also want it to be applied without any discrimination. 




[2]  Council Directive 2001/55/EC of 20 July 2001, OJ L 212, 7.8.2001, p. 12–23.


[3] Article 17.1 and 19.1 of Council Directive 2001/55/EC of 20 July 2001



Sanctions are an essential tool in the EU’s common foreign and security policy, through which the EU can target governments of non-EU countries with travel bans, asset freezes and restrictions on imports and exports, where it is necessary to prevent conflict or respond to massive human rights and International Law violations. The EU can implement mandatory UN sanctions or adopt autonomous sanctions or supplementary measures.  


Following the Russian aggression against Ukraine, the EU has taken numerous sanctions in response to Russia´s military aggression, for what it has created a package of sanctions targeting different sectors, (technology, finance, energy and transport) to remove several Russian banks from SWIFT (world´s dominant global interbank payment system) while freezing the assets and banning the transactions of the Russian´s central bank. It also prohibited, starting from 28 February, Russian aircraft and private jets from overflying EU airspace.


The EU harshly condemned the illegal and unfair and continue violence from Russia and offered help and support to Ukraine and its people, with no similar precedent, since, as an exception and for the first time, the EU decided to finance the purchase and deliver weapons and equipment to Ukraine, as a new tool to help a country that is under attack. Since Ukraine is not a member of NATO, an intergovernmental military alliance governed by the Washington Treaty in which the member states agreed to defend any of its members that is attacked by an external power, NATO cannot intervene in the conflict, therefore this was the way to help militarily.


However, even if the economic sanctions have had a significant impact on the Russian economy as a whole, they are not being effective enough to persuade Russia to change its behaviour. Sanctions are an alternative to armed force and an amazing preventive and proportional measure, but the dialogue and peace attempts are the solutions that are needed now. It is not a good idea to continue with political clashes while the war continues to drag on causing more deaths. The lives of thousands of people are in danger and they need protection with measures taken with the least possible harm to civilians in mind. 


The EU and the U.S. have adopted all possible sanctions at once, without waiting to see the effect it will have on Russia, the sanctions must be progressive depending on the results and the behaviour of the Russian Government. ? Will the adopted measures change the situation? If they burn all the ballots now, what will be left to persuade Putin?


The EU is known as the creator of peace and the path to peace-making. It has been able to transform the disaster of World War II into a more peaceful world. We hope soon for help from the EU in the creation of a peaceful agreement.


We condemn all kinds of violence and the illegal and illegitimate invasion of Ukraine by Russia, we stand for Ukraine and support its people, but we also want an effective and peaceful solution for them and the entire international community. 







The direct effect of the EU law

In this relevant case, concerning the direct effect of the community law (EU law), it was clarified by the European Court of Justice (ECJ) that National courts are required to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved, and that also applies in the case of unimplemented directives.

Thus, the duty of harmonious interpretation was not limited to legislation adopted specifically to implement a directive.

This decision gave entirely fulfilment to Article 5 of the EEC Treaty, which established that the Member States shall take all general or particular measures which are appropriate for ensuring the carrying out of the obligations of the Treaty.

The ECJ ruling extended the interpretation given by some previous similar cases, such as C-14/83, Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen and C-152/84, M. H. Marshall v Southampton.

Case Summary

The Juzgado de Primera Instancia e Instrucción No 1, Oviedo, Spain, referred the ECJ for a preliminary ruling in proceedings pending between Marleasing SA and La Comercial Internacional de Alimentación S.A. on the interpretation of Article 11 of the First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by the Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, to make such safeguards equivalent throughout the Community. 


Marleasing claimed that the founders’ contract that establish La Comercial is void on the ground that the establishment of the company lacked cause, was a sham transaction and was carried out to defraud the creditors, which is illegal under Spanish law. 


La Comercial, from its part, alleged that Article 11 of Directive 68/151, which lists exhaustively the cases in which the nullity of a company may be ordered, did not include lack of cause.


In this context, the national court asked the ECJ if Article 11 of Council Directive 68/151/EEC of 9 March 1968, is directly applicable even if it has not been implemented in the national law.


The ECJ ruled that a national court must interpret its national law in the light of the wording and the purpose of the community law, in this specific case following a directive even if it was not implemented in the national legal system. 


[1] Judgment of the Court of 13 November 1990. C-106/89, Marleasing SA v La Comercial Internacional de Alimentacion S.A, ECLI:EU:C:1990:395.


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Right of residence of national of the third-country parent of Union citizen child: The ECJ will limit the extent of the application of Article 20 TFEU or will prioritize the principle of the best interests of the child?

Right of residence of national of third country parent of Union citizen child:

The ECJ will limit the extend of the application of Article 20 TFEU or will prioritize the principle of the best interests of the child?

C-459/20 X v Staatssecretaris van justitie en veiligheid 

On 15 September 2020 the Rechtbank Den Haag, Zittingsplaats Utrecht (Netherlands) lodged a request for a preliminary ruling to the European Court of Justice (ECJ) asking whether Article 20 TFEU is to be interpreted as precluding the refusal of an application for a residence permit from a third-country national where that third-country national has a dependent minor child who is a national of a Member State of the Union but has never resided in the Union since such a refusal would have the effect of preventing the child from exercising his rights of residence as a citizen of the Union.


In the main proceedings, the applicant, who has Thai nationality and was married to a Dutch national, gave birth to a child in Thailand. The child has Dutch nationality but was raised in Thailand by the applicant’s mother and has never been to the Netherlands. After the birth, the applicant returned to the Netherlands, but after her divorce, her right of residence there was withdrawn and she was deported to Bangkok since the application for a residence permit was refused, what drives the applicant to bring an action before the Rechtbank Den Haag (District Court, The Hague).


She alleged that she has a right to reside in the Netherlands because her child has Dutch nationality and she can derive a right of residence from his Union citizenship. 


The defendant part understood that it was not clear that the child was dependent on his mother since the child has been resident in Thailand since birth living with his grandmother, so consequently, it is hard to demonstrate that it is in the interests of the child to allow the applicant to reside in the Netherlands. Furthermore, the defendant part alleged that there is no record and recognition of the Thai Judgment that granted sole parental responsibility to the applicant. 


We can see that in this case, the parental responsibility of the child and the dependency relationship have an important role in the decision. For this reason, the referred Court also asked the ECJ if these specific circumstances create a decisive factor to determine the rights conferred by the citizenship of the Union.


Previous ECJ Judgments in similar cases 


In C-133/15, Chavez-Vilchez and Others, one of the most detailed Judgments in this topic, the ECJ ruled that a non-EU citizen, as the parent of a minor child who is a citizen of an EU country, may rely on a derived right of residence, if their children’s rights as EU citizens could be violated if forced to leave the EU. However, the European Court also clarified that is the competence of the Member State concerned to undertake, based on the evidence provided by the third-country national, the necessary enquiries to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences. 


The ECJ in C-34/09, Ruiz Zambrano v ONEm, ruled that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third-country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third-country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.


The ECJ in C-356/11 and C-357/11, O. and Others, specified one more time that the refusal of a resident permit to third-country national should not entail, for the Union citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union.




Following similar rulings of ECJ, third-country national parents of EU-citizen minor children can have a derived right of residence in the EU. Thus, parents can obtain residence permits based on their children’s EU citizenship, but only if they meet certain conditions.


It is indispensable to prove the relationship of dependency between the child and the third country parent. Moreover, in the case of separated or divorced parents, it is important to prove that the parent of that third country is the one who takes care of the child and that a failure to grant the residence permit would result in no other option than the child’s leaving the EU, due to the child’s dependence on the parent. 


In this present case, it is difficult to prove that the child will be affected by leaving the EU since even if he is a national of The Netherlands, he has never resided in the Union. However, taking into account the principle of the best interests of the child, a principle that in recent years have been explicitly recognised in several opinions of Advocates General and judgments of the Court of Justice, should be considered the possibility that shortly the child may move to live with his mother in that Member State, and therefore, if the mother is denied a residence permit, that possibility will be diminished.


The ECJ is facing two conflicting realities regarding how far it is willing to go in terms of extending the application of article 20 TFEU and how to apply the principle of the best interests of the child as a priority. 


The hearing of this case, from the Court of Justice, was programmed for this week, but there is no delivery yet, so what do you think the EC J’s decision will be?


[1]Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Utrecht (Netherlands), Case C-459/20, X v Staatssecretaris van Justitie en Veiligheid OJ C 443, 21.12.2020, p. 10–11


[2] Judgment of 10 May 2017, C-133/15, Chavez-Vilchez and Others, EU: C:2017:354


[3] Judgment of 8 March 2011, C-34/09, Ruiz Zambrano, EU: C:2011:124


[4] Judgment of 6 December 2012, C-356/11 and C-357/11, O. and Others, EU: C:2012:776





Principle of direct effect of the EU law – Directives

This is a right of individuals to invoke before National Courts apply the European Union Law in their legal relations with public administrations or individuals, regardless of whether there are texts in national law.

In this relevant case, the European Court of Justice (ECJ) specified that Directives can have direct effect only when their implementation period has expired, so consequently, the unexpired directives could not have relied upon.

The objective of this clarification by the ECJ is to prevent a Member State from using its lack of implementation of a directive to continue making use of a previous national law that does not adopt the changes established in the Community law (EU law).

Case Summary

The Pretura Penale, Milan (Italy) referenced to the ECJ for a preliminary ruling in the action pending before that court between Pubblico Ministero (public prosecutor) and Tullio Ratti, on the interpretation of Council Directive NO 73/173/EEC of 4 June 1973, related to the classification, packaging and labelling of dangerous preparations (solvents) and Directive NO 77/728/EEC of 7 November 1977, related to the classification, packaging and labelling of paints, varnishes, printing-inks, adhesives and similar product. 


In the main case, Tullio, that sold solvents and varnishes, was prosecuted for failure to comply with an Italian law NO 245 of 5 March 1963 that require manufacturers of products containing benzene, toluene and xylene to affix to the containers of those products labels indicating, not only the fact that those substances are present, but also their total percentage and, separately, the percentage of benzene.


Tullio argued that his business complied with these two Directives, so he should not have to comply with that stricter Italian law. He also understood that the Italian law entered in conflict with these two Directives. 


He defended that the Italian government did not incorporate the Directive NO 73/173 of 4 June 1973 to its internal legal order within the mandatory established period, and that therefore, if it had been implemented, that would have meant the repeal of the Italian law, which he was charged with contravening. 


The ECJ ruled that a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its failure to perform the obligations which the directive entails, clarifying in this way that after the expiration of the period fixed for the implementation of a directive a Member State may not apply its internal law which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive. 


However, the ECJ specified that being the Directive NO 73/173 to which the term to incorporate it into the internal legal system has expired, is the only one the applicant can rely on and not in the Directive 73/173, since its term of incorporation had not expired yet. 


[1] Judgment of the Court of 5 April 1979, Tullio Ratti, Case 148/78, ECLI:EU:C:1979:110. Paragraph 22 and 24


Read the whole case here.



Hungary and Poland Vs EU: The Rule Of Law

The rule of law war between Hungary, Poland and the European Union it is not over yet.

The origin of the problem


The continuous challenging of the rule of law, the judicial independence, the primacy of the EU law and the LGBTI rights are some of the problems that are affecting the relation of these two countries with the EU.


Poland adopted a disciplinary regime for Supreme Court, Judges and Ordinary Courts, creating a new Disciplinary Chamber within the Supreme Court with those competencies, which, according to the European Commission, does not guarantee the principles of independence and impartiality, and they also banned LGBTIQ content and books that portrays homosexuality for individuals under 18 and even the Poland’s Constitutional Tribunal rejected the principle of the primacy of EU law over national legislation in certain judicial matters.


On 27 of October, the European Court of Justice (ECJ) in C-204/21 R ordered Poland to pay the European Commission €1 000 000 as a daily penalty payment due to the rule of law dispute[1] as it was established by the order of 14 July 2021 concerns interim measures, compliance with which is necessary to avoid causing serious and irreparable harm to the legal order of the European Union and, consequently, to the rights which individuals derive from EU law and the values, set out in Article 2 TEU, on which that Union is founded, in particular, that of the rule of law.


Furthermore, the ECJ ruled that Poland’s new Regulations for appointing judges to the Supreme Court could violate EU law and on 15 July 2021, it ruled in its judgment in Case C-791/19 that the disciplinary regime for judges in Poland is not compatible with EU law[2].


Hungary, from its part, is involved with a serious breach of the values of the Union by the Constitution, adopted in 2011, and some internal reforms that changed the prerogatives of the Constitutional Court and the powers of the president, along with the immigration crisis and some national judgements that did not respect the rule of law.  


The recent dispute regarding the rule of law between Hungary and the EU took place in the relevant ECJ Judgment of the 23 November 2021, in Case C-564/19, where, it was ruled that the Hungarian’s Supreme Court had improperly interfered with and disciplined a lower court judge[3]. Since this declaration of illegality can easily restrict the adequate judicial protection of individuals’ rights from EU law. The ECJ has been based its decision on the principle of the importance of EU law, which sometimes allows the lower court to disregard the conclusion of the supreme court of the Member State concerned when that decision is contrary to EU law (Article 267 TFEU).


Do Hungary and Poland indeed want to exit the EU?


This continuous list of infractions against the rule of law and the fundamental values ​​and principles of EU law has led the European Commission to deliberate, on several occasions, on a possible application of the mechanism of the Article 7 TUE. 


Lately, rumours of a possible exit of Hungary from the EU, a great ally of Poland, have grown after a speech by Prime Minister Viktor Orban, where he considers that the EU is attacking Hungary and Poland with the excuse of the rule of law. However, there is no official news yet about the possible exit, they only want to keep their sovereignty and they are asking for a comprehensive tolerance and integration.


The “Conditionality Regulation” and the cases C-156/21 and C-157/21


The next step that that EU took was the cut of funding to these two countries, leaning on the Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget[4], known as a “conditionality regulation”, in force since January 2021. This new mechanism allows the EU to take measures such as the suspension of payments or financial corrections to protect the Union budget in case of serious breaches of the rule of law principles by some Member States that may affect or risk the EU financial interests. 


Poland and Hungary in Case C-156/21[5] and Case C-157/21[6] brought an action for annulment in which they requested the ECJ to annul the aforementioned Regulation understanding that it is incompatible with Article 7 TEU and the principle of legal certainty.


On 2 of December 2021, Advocate General Campos Sánchez-Bordona gave an opinion in these two cases, where he considered that the ECJ should dismiss these actions for annulment, since the Article 7 TEU, a mechanism to ensures that all EU countries respect the shared values of the EU, does not authorise the EU legislature to introduce another similar tool to protect the rule of law that applies identical sanctions, and that therefore, this Regulation has no relation with article 7 TEU and the judgments of the CJEU related to the independence of national courts. The Advocate General also understands that the Regulation is compatible with Article 7 TEU and respects the principle of legal certainty, since it requires a sufficiently direct link between the breach of the rule of law and the implementation of the budget, with the result that it does not apply to all violations of the rule of law, only to those directly linked to the implementation of the Union budget. 


The highly anticipated judgements of the ECJ in these cases (C-156/21 and C-157/21), regarding the principles of the EU law, will be heard in a Livestream this Wednesday 16 February[7] with an important impact of the creation on some guidelines that will help to explain how the European Commission will apply the conditionality regulation and to clarify some elements related to the functioning of this Conditionality Regulation.


The hearing in these two cases has exceptional importance.


[1] Case C-204/21, R Commission v Poland [2021] ECLI:EU:C:2021:878


[2] Case C‑791/19, European Commission vs Republic of Poland [2021] ECLI:EU: C:2021:596


[3] Case C‑564/19, IS (Illegality of the order for reference) [2021] ECLI:EU: C:2021:949


[4] Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget [2020] OJ LI 433/1


[5] Case C-156/21 Hungary v Parliament and Council [2021] ECLI:EU: C:2021:974


[6] Case C-157/21 Poland v Parliament and Council [2021] ECLI:EU:C:2021:978