Barend van Leeuwen

From status to impact, and the role of national legislation: the application of Article 34 TFEU to a private certification organisation in Fra.bo

In Fra.bo, it was held by the Court of Justice of the European Union (“CJEU”) that “Article 28 EC must be interpreted as meaning that it applies to standardisation and certification activities of a private-law body, where the national legislation considers the products certified by that body to be compliant with national law and that has the effect of restricting the marketing of products which are not certified by that body” (authors headnote).

An illusion of protection and an assumption of responsibility: the possibility of Swedish State liability after Laval

This chapter will look deeper into the question of horizontal direct effect in the Viking and Laval cases by focusing on the effects of the Laval judgment. It will be submitted that the Laval case was an example of the horizontal enforcement of the vertical right to be protected by the State against interference with one’s free movement rights under EU law. The trade union acted within a legislative framework which had been established by the State and which provided protection to the trade union. The CJEU’s judgment established that this protection had been illusory, and the Swedish State assumed responsibility by amending two pieces of legislation. However, the reasoning of the CJEU did not sufficiently recognise the vertical nature of the proceedings. As a result, the Swedish Labour Court granted Francovich damages against the trade union, but these damages did not adequately compensate Laval for its losses. Therefore, the extension of horizontal direct effect to trade unions has resulted in inadequate judicial protection in this case. In future cases which present themselves as cases between two private parties the CJEU should more carefully investigate the responsibility of the State. A more careful investigation would open up the possibility of a Francovich claim against the State, if the State bore responsibility for breaches of EU law committed by private parties.