Necessary Elements

        • But if Comm’s application to ECJ found inadmissible on grounds that it is based on objection different from that in reasoned opinion, it will just have to lodge fresh app before ECJ based on same objections as the reasoned opinion (no need to redo pre-liti!)
        • ***BUT note that if Comm’s application to ECJ differs from reasoned opinion in a manner favouring MS – limits what is in the reasoned opinion, it will be accepted! Can also allow extension of subject matter to events after the reasoned opinion, as long as they are of the same kind/constitute same conduct, or is used to show general and persistent pattern/practice (not specific violation)
    • Confidentiality: can indiv complainants disappointed by Comm’s failure to bring proceedings against MS seek access to the reasoned opinion/other relevant docs? – Simialr case in Dentist Airdrie
      • WWF case, 1995: CFI held that MSs entitled to expect confidentiality of Comm, hence court was not prepared to order disclosure, even if investigation closed some time ago.
      • Petrie case, 1999: CFI held that need for confidentiality remains even after matter is brought before ECJ, up until ECJ delivers judgment. Objective of obtaining amicable resolution applies all the way before judgment is given!  
      • Note that since 2002, Comm has maintained electronically accessible list of decisions on infringement proceedings. Also occasionally publishes reasoned opinions.
    • Can MS argue before ECJ that breach has already remedied?
      • NOT a defence if procedural conditions for bringing art 258 proceedings have been fulfilled, and period for compliance (laid down by Comm) has expired w/o adequate response. ECJ only looks to see if MS was in breach at time of expiry of period laid down in RO, not at time of hearing.
      • Different from ECJ’s approach in actions against Union institution for failure to act (art 265)! Reasons:
        1. Comm has continued interest in bringing action (prevent MSs from undermining infringement proceedings, and MSs might re-commence same conduct later)
        2. ECJ should be able to rule on legality of short breaches – might not be less serious than longer breaches (though not if effects of infringement ended before expiry of period)
        3. Judgment can establish MS’  Dentist Airdrie liability (eg. For indiv’s action for redress before nat courts)

Must have failure of member state to fulfil a Treaty obligation

1) Positive act vs omission = both can constitute failure by MS to fulfil Treaty obligation!

Examples of positive acts:

  • Comm v UK, 1994: enactment of legislation expressly contravening EU law. UK had enacted legislation that if you want to fly UK flag on ship, ship must be British-owned – direct contravention of free movement of services/freedom of establishment provisions.
  • Comm v Greece, 2009: includes administrative acts/practices. Rejected MS’ argument that govt didn’t have direct influence on admin practices – insufficient justification for continued breach of Eu law

Discretion as to timing?

      • omm v Netherlands, 1991: there are limits to Comm’s discretion, in respect of length of time taken to bring proceedings. Excessive delay might be prejudicial (though not on the facts, where Netherlands argued period of >5 years from time of first letter, to bringing infringement proceedings, was excessive) – more difficult for MS to refute Comm’s arguments, hence infringing the rights of the defence.
      • Cf Comm v Austria, 2002: ECJ rejected argument that given length of time since events which were subject of infringement proceedings, proceedings would violate principle of legal certainty and indivs’ acquired rights.
      • As for discretion on timing after issuing of reasoned opinion (above cases are on commencement of infringement proceedings in the first place):
          • Comm v Ireland, 1984: though it allowed the Comm action to be admissible, ECJ reprimanded Comm for the short length of time it allowed Denmark for compliance with the reasoned opinion.


  • Comm v Belgium, 1988: proceedings against Belgium deemed inadmissible cos of short time allowed for responding to letter of formal notice and reasoned opinion. Reasonable period must be allowed, unless in circumstances of urgency/where MS was fully aware of Comm’s views long before procedure started.


    • Non-privileged parties sometimes try bringing ‘failure to act’ actions (art 265 TFEU) against Comm, for Comm’s failure to initiate infringement proceedings under art 258.
      • Rejected by ECJ in Star Fruit case, 1987: clear that art 258 does not bind Comm to commence proceedings – Comm has discretion!
    • Justification for discretion (and lack of role for indivs)? [Snyder] highlights that the main form of dispute settlement used by the Comm is negotiation, of which the ability to initiate infringement proceedings is but one part. Comm also uses litigation as part of long-term strategy, with focus on establishing basic principles/playing for rules, not just winning each case – Manchester Taxi
    • Self-imposed admin constraints (by the Comm):
      • 1989: decided to bring immediate infringement proceedings against any defaulting MS as soon as time limit for implementation of directive has passed
      • 1990: routinely issued letters of formal notice whenever MS fail to notify national measures implementing directives due for implementation
      • Also codified its own internal procedural rules, in response to pressure from Ombudsman


The reasoned opinion:

    • FUNCTION: provides procedural protection for MS (natural justice); official means of communication to MS about substance of complaint, and specifies time limit for compliance.
    • FORM: no formalism, and is not subject to review (action for annulment) because it does NOT have binding effect
    • ➔ but MS can contest lack of adequate reasoning by raising matter before ECJ if proceedings reach the referral stage.
    • **CONTENT:
        • Art 296 TFEU: general rule that legal acts must state reasons on which they are based
        • Art 258: specific requirement of reasoning in relation to opinions issued by Comm


  • Comm v Italy, 1961: must have coherent statement of the reasons which led the Comm to believe that MS failed to fulfil an obligation under the Treaty.


        • But no need to address every argument made by MS at pre-litigation stage, nor indicate steps to be taken by MS to remedy the breach.
        • But Comm must respond to MS’ reply to letter of formal notice
      • Scope/subject matter of proceedings is delimited by letter of formal notice _ reasoned opinion. Essence of complaint must be the same throughout!
        • Comm cannot later amend substantive content of submission, even if both parties want ECJ to consider other aspects of MS’ conduct – must start art 258 procedure afresh! But note that MS is not bound to raise defence during pre-litigation stage – can raise new matters as defence before ECJ!

The Consequences of Failure

  • Rex’s career illustrates attempt to create system of legal rules may miscarry in 8 ways
    • 1. Failure to achieve any rules at all
    • 2. Failure to publicize rules expected to observe.
    • 3. abuse of retroactive legislation: doesn’t allow guide and also undercuts prospective rules since it threatens to change them
    • 4. Failure to make rules understandable
    • 5. Enactment of contradictory rules
    • 6. Rules that require conduct beyond the powers of the affected party
    • 7. Introducing too many and frequent changes in rules that subject cannot orient his action by them
    • 8. Failure of congruence between rules as announced and their actual administration.
  • If fail in one of these eight: no legal system at all.  Government makes kind of covenant, “if you follow rules, you have assurance that they are rules that will be applied to your conduct.

Case study generated by Dentist CalgaryCitizens predicament, when things like Nazi Germany happen and there is drastic and general deterioration in legality. In these situations, no simple principle by which to test the citizen’s obligation of fidelity to law, any more than there can be such a principle for testing his right to engage in a general revolution.   THUS, respect for constituted authority must be kept separate from fidelity to law (Rex’s subjects remained faithful to him as king but not faithful to his law, for he never made any).


Principle is that V complains about something and as a result suffers a consequence.

 Less favourable treatment than someone in the same position who had not

complained etc of behaviour that was contrary to RRA or SDA.

 Other e/es who support V are covered by the victimisation rules as well

 No need of conscious motivation by employer

 Allegations might have been unfounded, but must have been made in good

faith, for employee to succeed.

Special Cases

 Pregnancy and maternity

o Direct discrim – no need to compare unless for illness persisting after

maternity leave ended – then compare.

 Gender reassignment

o SDA amended to include as direct discrim.


 Declaration of rights – can have terms void. Bit pointless as all it does it tell

the e/ee that he has the right not to be discriminated against – not a significant


 Order to take action to remove the effect of the act complained of…. A

recommendation by the ET for :

the e/er to remove the effect of the act by, for example,

disciplining the responsible e/ee,


expanding training on re discrimination,

training re interviewing.

If an extra promotion comes up the e/er mut consider the V (but

could therefore discriminate against others) and/or

 Compensation

o Which can include damages for injured feelings and PI damages for

psychiatric harm.

 No limits on compensation (average award £13,000)

 Not many claims successful, not many brought.

 Includes pecuniary losses such as LOE

 Can get aggravated damages if V dealt with in an insulting or aggressive manner. If you suffer any problems, direct your concerns to Legislation Notary London


NB – Schroeders case – female employee won over £1m, damage to employer huge,

lost millions due to adverse publicity and lost man hours. So employer’s need to take

claims very seriously, and take their time answering the questionnaire.

Sexual Harassment – old law

Will soon be separate offence according to abogados de accidentes de trabajo

 Generally ongoing rather than a one off and time runs from the last act

 Currently not a separate offence so must use direct discrimination and NOT

indirect D

 Definition : ‘unwanted conduct which violates dignity’

 Unlawful act is subjection to a detriment

 Need less favourable treatment – although sex or specific comments don’t. If

sex/gender specific then you don’t need a comparator – it is sex discrimination

Reed v Stedman. It is victim orientated, ie it is up to the victim to decide if

they are offended or not. Ie, if a woman is called a bitch or a cow it doesn’t

need to be compared to men’s put downs

 It is very subjective and looked at from the victim’s point of view

 IMPORTANT FOR EXAM – Watch for more than one act of discrim – eg

original act complained of and failure to investigate/prevent, if employer has

failed to investigate/prevent then it will be less favourable treatment which

will lead to discrim.

 If act by another employee – check vicarious liability, liability must be ‘in the

course of employment’. It does extend beyond the workplace ie at the office

xmas bash – can’t be too wide though. MUST put staff on notice before do’s

to defend harassment claims.

 In above scenario, V can bring in the e/ee as well as the e/er in case the e/er

has the defence and then V can pursue the e/ee directly

 If boss says stop being soppy, the victim can have a 2 nd D claim for

management not taking the complaint seriously and V could get more for

injured feelings


 Defence – employer took all reasonable steps to prevent discrim, ie

investigated complaints, tried to prevent act, had policy in place, had training

policy etc.

New Harassment laws –Reg 4 (Employment Framework Directive 2000/78)

 Relatively new at the moment so not much case law

 This is the test to use:

Defined offence for first time for race, religion and belief, sexual


 “Unwanted conduct which has a purpose or effect of:

o violating dignity or

o creating an intimidating, hostile, degrading, humiliating or offensive


 Interpretation: appears to be subjective criteria

o Reg 5(2): acts will be unlawful if ‘having regard to all circumstances,

including in particular the perception of the victim, it should

reasonably be considered as having that effect.’


  • Claim: artistic interpretation in our culture is constructive interpretation. How could the interpretation of social practices aim to discover anything like an author’s intention? (Remember: the objection argues that interpretation must be neutral and therefore that the interpreter must aim to discover someone else’s motives and purposes.)    What sense can we make of this in context of social interpretation? Two possibilities:
    • Social practice interpr = discovering purposes or intentions of other participants in the practice, like, e.g., citizens of courtesy.
      • But, social practice creates and assumes crucial distinction between interpreting acts and thoughts of participants one by one and interpreting practice itself. Important distinction because participations DO NOT always agree on best interpretation of practice.
    • Social practice interpr = discovering purposes of community that houses the practice.
  • So, remember, began discussion by objection that constructive account of creative interpretation wrong because creative interpr always conversational interpretation. That objection FAILS for interpretation of social practices even more dramatically than it fails for artistic interpretation.
  • Didn’t get this end of chapter too well (pg 65)


  • Must now refine constructive interpretation into an instrument fir for study of law as social practice. Must be three stages of interpretation:
    • “Pre-interpretive” stage: where rules and standards taken to provide tentative content of the practice are identified (equivalent literary stage is where book is identified textually). Great degree of consensus needed here.
    • Interpretive stage: interpreter settles on some general justification for main elements of the practice identified at pre-interpretive stage, need not cover all, but enough.
    • Post-interpretive stage: one adjusts his sense of what practice “really” requires so as better to serve the justification he accepts at the interpretive stage.
  • Actual interpretation much less deliberate and structured than this analytical structure suggests, it would all happen at once in “seeing”.
  • What someone needs to interpret something:
    • Needs assumptions about what counts as part of the practice to define raw data (pre-interpretive). Members of same interpretive community must share roughly same assumptions about this.
    • Needs convictions about how far justification he proses at interpretive stage must fit the standing features of practice to count as interpretation of it rather than invention of something new.
    • Needs more substantive convictions about which kinds of justification really would show practice in best light, judgments about whether social ranks are desirable or deplorable, eg. the case agaisnt abogados de accidentes firm in Florida

Guest, Ronald Dworkin:

  • Descriptive statements come from observing empirically how things work. Normative statements tell us what “ought to be”. Interpretative statements are calculated to analyse something in the best light possible. Thus, unlike Hart (descriptive approach) and Kelsen (normative approach) Dworkin seeks to show law in its best light possible (interpretative approach). Dworkin’s interpretation says that the normal way to interpret something is to show it in its best light, even if this is not how the thing actually is. For example, he does not claim that interpreting the holocaust by looking at possible good intentions is the true interpretation. Merely that this is the normal paradigm of interpretation. What? This makes no sense. Dworkin is endorsing an interpretation that he claims is normal and at the same time inaccurate. Dworkin says that interpretation of law is different from interpretation of other areas. Why? Hence he says that the true interpretation of law is one that shows law in its best light (i.e. as embodying integrity).


  • On the criticism that many judges DO use policy to determine the outcome of a case, Guest points out too that many judges prefer principle, being cautious to leave policy discussions up to parliament. He also says that since Dworkin’s theory is one of “best light” interpretation and a rejection of descriptive approaches, it is no argument to say that Dworkin’s account doesn’t fit reality. To do so is to assume the correctness of descriptive legal philosophy of Hart. In which case what use is it in stating what constitutes a legal system and what law is? His brand of optimistic interpretation is departed from reality (e.g. the Hercules scenario) and should therefore be read as political philosophy in the same mould as “The rights of man” or “the Communist manifesto”. It is so far departed from reality that to claim he is “interpreting” is a false use of that word.


  • Guest recognises that Dworkin’s theory only works if the 4 values existing in an associative community exist (see nots on Law’s Empire).

Cotterrell Politics of Jurisprudence, Ch.6

  • Dworkin’s view is calculated to allow judges to protect the rights of individuals (which he sas are incorporated in rights) against majoritarian tranny.
  • Says Dworkin is right that there is no room in common law for strong judicial discretion as the court’s purpose may be creative but is not legislative. Wrong: If two competing principles are at work then the judge can still decide between them in any way he likes and where the principles are broad then the discretion/ability to make law will be broad too.
  • Dworkin explains constructive interpretation by analogy to a writer continuing a story that was started by earlier writers. The style and storyline must fit, but within the possible options that fit he must select the best option.
  • Dworkin argues that “community” is the basis of law. However Dworkin doesn’t say what community actually is or why law should be seen as an expression of community values (especially since judges are NOT delegates of majority will- in fact to suggest this would be contrary to what Dworkin himself believes). Dworkin only uses an internal perspective which prevents us from answering these questions.
  • Dworkin says that because the law is based in community, all participants of the community who accept its basic values of integrity etc are as entitled to interpret the law as judges. Therefore people are entitled to act according to his own considered and reasonable view of the law, since community members are duty bound to obey the true interpretation of the law, not one person’s or one judge’s interpretation of it. This is the basis for civil disobedience. This is retarded. Seriously retarded. (1) Who will determine anarchy? Not the courts since clearly Dworkin sees them as having no more right to interpret the law than anyone else, such as the person who refuses to comply with their interpretation. (2) This would lead to anarchy- nobody would follow laws which they considered not to have “integrity”. (3) IT DOESN’T REALLY HAPPEN and is therefore invalid as a description of our system- people DO follow court orders even when they think the court has got it wrong. Submitting to court decisions is not voluntary.

Book review of Taking Rights Seriously; Haworth:

  • Dworkin says rights are legal trumps. This is in contrast to utilitarianism and he sees rights as a way of restraining the state. This is because rights guarantee integrity i.e. they allow a person to be treated with equal respect concern as anyone else. However Dworkin is wrong to say that this distinguishes him from the positivists as Hart himself does not purport to be utilitarian. Positivism does not say that rights should not be enshrined in law, or even that secondary rules shouldn’t enshrine them: he merely says that this doesn’t happen automatically (arguably Hart is coming from the perspective of saying what law is, whereas Dworkin is saying what law ought to be in order to allow rights to be supreme.)
  • Equal right to respect and concern does not fulfil the idea that taking rights seriously is contrasted with utilitarianism. Utilitarianism may view welfare in the long run as being maximised by observing the right to equal concern and respect. Utilitarianism makes calculations based on the suffering of each individual and so it needs to do what Dworkin is saying. Really? What about where we are prepared to make a minority suffer a certain amount in order to greatly improve the welfare of the majority, e.g. Heathrow 3rd Haworth is wrong to claim that Dworkin’s position and utilitarianism are the same.