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Cover design by Cyan Design
The EU Charter of
Fundamental Rights as
a Binding Instrument
Five Years Old and Growing
Edited by
Sybe de Vries, Ulf Bernitz
and Stephen Weatherill
Studies of the Oxford
Institute of European
and Comparative Law
Studies of the Oxford Institute of European and Comparative Law
The entry into force of the Treaty of
Lisbon in 2009 caused the EU’s Charter of Fundamental Rights to be granted binding effect. This raised a host of intriguing questions. Would this transform the EU’s commitment to fundamental rights? Should it transform
that commitment? How, if at all, can we balance competing rights and principles?
(The interaction of the social and the economic spheres offers a particular challenge.) How deeply does the EU conception of fundamental rights reach into and bind national law and practice? How deeply does it affect private parties? How much flexibility has been left to the Court in making these interpretative choices? What is the likely effect of another
of the reforms achieved by the Lisbon Treaty, the commitment of the EU to accede to the ECHR? This book addresses all of these questions in the light of five years of practice under the Charter as a binding instrument.
Sybe de Vries is Professor of EU Single Market Law and Fundamental Rights and
the Jean Monnet Chair at the Europa
Institute of Utrecht University.
Ulf Bernitz is Professor of European
Law at Stockholm University, director of
the Stockhom Institute of European Law
and director of the Oxford/Stockholm
Venture in European Law.
Stephen Weatherill is Professor of European
Law at the University of Oxford, a Fellow of
Somerville College and Deputy Director for
European Law in the Oxford Law Faculty’s
Institute of European and Comparative Law.
Also available from Hart
The Unitary EU Patent System
Edited by Justine Pila and Christopher Wadlow
Legal Challenges in the Global Financial Crisis
Bail-outs, the Euro and Regulation
Wolf-Georg Ringe and Peter M Huber
The EU Charter of Fundamental
Rights as a Binding Instrument
SOIECL
de Vries,
Bernitz and
Weatherill
9781782258254_cov_app.indd All Pages 23/10/2015 10:44

THE EU CHARTER OF FUNDAMENTAL RIGHTS AS
A BINDING INSTRUMENT
The entry into force of the Treaty of Lisbon in 2009 caused the EU’s Charter
of Fundamental Rights to be granted binding effect. This raised a host of
intriguing questions. Would this transform the EU’s commitment to funda-
mental rights? Should it transform that commitment? How, if at all, can we
balance competing rights and principles? (The interaction of the social and
the economic spheres offers a particular challenge.) How deeply does the
EU conception of fundamental rights reach into and bind national law and
practice? How deeply does it affect private parties? How much flexibility
has been left to the Court in making these interpretative choices? What is
the likely effect of another of the reforms achieved by the Lisbon Treaty, the
commitment of the EU to accede to the ECHR? This book addresses all of
these questions in the light of five years of practice under the Charter as a
binding instrument.
Volume 20 Studies of the Oxford Institute of European
and Comparative Law

Studies of the Oxford Institute of European and Comparative Law
Editor
Professor Stefan Vogenauer
Board of Advisory Editors
Professor Mark Freedland, FBA
Professor Stephen Weatherill
Professor Derrick Wyatt, QC
Recent titles in this Series
Volume 12: Article 82 EC: Reflections on its Recent Evolution
Edited by Ariel Ezrachi
Volume 13: Prohibition of Abuse of Law: A New General Principle
of EU Law?
Edited by Rita de la Feria and Stefan Vogenauer
Volume 14: Constitutional Pluralism in the European Union and Beyond
Edited by Matej Avbelj and Jan Komárek
Volume 15: The Protection of Fundamental Rights in the EU After Lisbon
Edited by Sybe de Vries, Ulf Bernitz and Stephen Weatherill
Volume 16: The Involvement of EU Law in Private Law Relationships
Edited by Dorota Leczykiewicz and Stephen Weatherill
Volume 17: Current Problems in the Protection of Human Rights:
Perspectives from Germany and the UK
Edited by Katja S Ziegler and Peter M Huber
Volume 18: Legal Challenges in the Global Financial Crisis: Bail-outs,
the Euro and Regulation
Edited by Wolf-Georg Ringe and Peter M Huber
Volume 19: The Unitary EU Patent System
Edited by Justine Pila and Christopher Wadlow

The EU Charter of
Fundamental Rights as
a Binding Instrument
Five Years Old and Growing
Edited by
Sybe de Vries
Ulf Bernitz
and
Stephen Weatherill
OXFORD AND PORTLAND, OREGON
2015

Published in the United Kingdom by Hart Publishing Ltd
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Library of Congress Cataloging-in-Publication Data
The EU Charter of Fundamental Rights as a binding instrument :
five years old and growing / edited by Sybe de Vries, Ulf Bernitz and Stephen Weatherill.
pages cm
Includes bibliographical references and index.
ISBN 978-1-78225-825-4 (hardcover : alk. paper) 1. Charter of Fundamental
Rights of the European Union (2000 December 7) 2. Civil rights—European
Union countries. I. Vries, Sybe Alexander de, 1970– editor. II. Bernitz, Ulf, editor.
III. Weatherill, Stephen, 1961– editor.
KJE5132.A432E9 2015 341.4’8094–dc23
2015032033
Typeset by Compuscript Ltd, Shannon

Preface
This book is a follow-up to The Protection of Fundamental Rights in the EU
after Lisbon, published in 2013 under the same editorial team. That 2013
volume was the product of a conference (held in Oxford in 2011): the same
is true of this book. A follow-up conference under the title ‘Five years legally
binding EU Charter of Fundamental Rights—What is the state of play in the
protection of fundamental rights in the EU?’ was held in Oxford on 9 May
2014. It was organised by Sybe de Vries, Ulf Bernitz and Stephen Weatherill
under the auspices of the Institute of European and Comparative Law in
the Oxford University Law Faculty. At the conference, our speakers were
Allan Rosas (European Court of Justice and Utrecht), Sionaidh Douglas-
Scott (Oxford), Janneke Gerards (Nijmegen), Jan Komarek (LSE, London),
Gunnar Thor Pétursson (Reykjavik), Ulf Bernitz (Stockholm and Oxford),
Catherine Barnard (Cambridge), Jaan Paju (Stockholm), Stephen Weatherill
(Oxford), Sybe de Vries (Utrecht), Peter Oliver (Brussels), Helene Andersson
(Stockholm) and John Temple Lang (Trinity College Dublin).
This conference reflected on five years of life under the Charter, which
reveals five years of remarkable activity. Some of the questions about the
Charter’s role that we addressed in our first book, published in 2013,
have been answered, although in the main only in part and not always
with compelling logic. Some have not been answered. And some new ones
have emerged. Meanwhile, the legislative institutions of the EU have been
engaged in trying to weave the Charter into their practice, while the Court
too has been active. It has, for example, dealt with search engines and
created an EU ‘right to be forgotten’ via the Charter’s promise of privacy
(Case C-131/12 Google judgment of 13 May 2014); it has annulled the data
retention Directive as an unduly deep and broad interference with private
life (Joined Cases C-293/12 & C-594/12 Digital Rights Ireland judgment
of 8 April 2014); it has grappled with the notion of ‘implementation’ for
the purposes of subjecting Member States to the reach of the Charter (Case
C-206/13 Cruciano Siragusa judgment of 6 March 2014, Case C-198/13
Hernández et al judgment of 10 July 2014); and it has maintained its
insistence on the ‘supremacy’ of EU law over national law even though the
Charter seemed to subvert that (Case C-399/11 Stefano Melloni judgment
of 26 February 2013).
The active role of the Court in applying the EU Charter in a number
of cases seems to be in sharp contrast with the Court’s recent Opinion on
the Draft Accession Agreement concerning the EU’s accession to the ECHR
(Opinion 2/13). Opinion 2/13 may put into question the Court’s role as

vi Preface
human rights court and it asks whether fundamental rights are the first
point on the agenda at the Court of Justice of the EU. Yet, at the same time,
the approach of the CJEU to the ECHR reinforces the importance of the
Charter as the document that ‘enshrines the key political, social and eco-
nomic rights of EU citizens and residents in EU law’.
1
In this second book we discuss these and other issues in light of the rapid
development of the Charter as arguably the very centrepiece of the EU legal
order, reinforced by the growing distance between the EU and the ECHR.
Without the help and support of several people neither the conference
nor the book would have become a reality. The conference was generously
supported by the Wallenberg Foundation, Stockholm, for which we would
like to express our gratitude. Jenny Dix helped very much in the organisa-
tion of this conference and we would like to thank her. Thom Wetzer wrote
the conference report and assisted us in preparing the publication of this
book for which we are very grateful. As ever, Hart Publishing have offered
an exemplary service.
Sybe de Vries,
Ulf Bernitz and
Stephen Weatherill
1
S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights—A
Commentary (Oxford, Hart Publishing, 2014).

Table of Contents
Preface��v
List of Contributors��ix
Table of Cases��xiii
Table of Legislation��xxxi
Introduction: Five Years Old and Growing: The EU Charter
of Fundamental Rights as a Binding Instrument��1
Sybe de Vries, Ulf Bernitz and Stephen Weatherill
Part I: The Constitutional Dimension of Fundamental Rights
1. Five Years of Charter Case Law: Some Observations��11
Allan Rosas
2. The Relationship Between the EU and the ECHR
Five Years on from the Treaty of Lisbon��21
Sionaidh Douglas-Scott
3. Who Decides on Fundamental Rights Issues in Europe?
Towards a Mechanism to Coordinate the Roles of the
National Courts, the ECJ and the ECtHR��47
Janneke Gerards
4. Why National Constitutional Courts Should not
Embrace EU Fundamental Rights��75
Jan Komárek
5. The Interplay Between the Charter and National
Constitutions after Åkerberg Fransson and Melloni:
Has the CJEU Embraced the Challenges of Multilevel
Fundamental Rights Protection?��93
Clara Rauchegger
Part II: The Scope of Fundamental Rights in EU Law
6. The EU Charter of Fundamental Rights Five Years on:
The Emergence of a New Constitutional Framework?��135
Xavier Groussot and Gunnar Thor Petursson

viii Table of Contents
7. The Scope of the Charter and its Impact on the
Application of the ECHR: The Åkerberg Fransson
Case on Ne Bis in Idem in Perspective��155
Ulf Bernitz
8. The Silence of the Charter: Social Rights and the
Court of Justice��173
Catherine Barnard
9. Much Ado About Nothing? How the EU Charter
of Fundamental Rights Could Challenge Prevailing
Notions of Territorial Rights and Solidarity as Regards
National Social Security Systems��189
Jaan Paju
Part III: Safeguarding Fundamental Rights in Europe’s Internal Market
10. Protecting the Internal Market from the Charter��213
Stephen Weatherill
11. The EU Single Market as ‘Normative Corridor’ for the
Protection of Fundamental Rights: The Example of
Data Protection��235
Sybe de Vries
12. The EU Charter of Fundamental Rights and the
Rights to Data Privacy: The EU Court of Justice
as a Human Rights Court��261
Federico Fabbrini
13. Privacy and Data Protection: The Rights of
Economic Actors��287
Peter Oliver
14. Dawn Raids in Competition Cases: Do the European
Commission’s Dawn Raid Procedures Stand the
Test of the Charter?��321
Helene Andersson
15. The Charter and the EU State Aid Procedure��343
John Temple Lang
Index��365

List of Contributors
Helene Andersson is a doctoral candidate at Stockholm University with a
background in private practice. In her research, she focuses on EU compe-
tition law enforcement from a fundamental rights perspective. Alongside
her research, she is a lecturer at Stockholm University, where she teaches
general EU law and EU competition law. Over the years, she has published
numerous articles in journals such as Concurrences and the European
Competition Law Review.
Catherine Barnard MA (Cantab), LLM (EUI), PhD (Cantab) is Professor in
European Union Law and Employment Law at the University of Cambridge,
and Senior Tutor and Fellow of Trinity College. She specialises in EU law,
employment law and discrimination law. She is author of EU Employment
Law (4th edn, Oxford, Oxford University Press, 2012), The Substantive
Law of the EU: The Four Freedoms (5th edn, Oxford, Oxford University
Press, 2013) and is co-editor (with Steve Peers) of European Union Law
(Oxford, Oxford University Press, 2014). She is also editor of various collec-
tions of essays, including The Fundamentals of EU Law Revisited (Oxford,
Oxford University Press, 2007) and (with Okeoghene Odudu) The Outer
Limits of EU Law (Oxford, Hart Publishing, 2009).
Ulf Bernitz is Professor of European Law at Stockholm University, as well
as Senior Research Fellow at St Hilda’s College, University of Oxford. He is
also Director for the Söderberg Foundation Oxford/Stockholm Venture in
European Law, based at the Institute of European and Comparative Law,
University of Oxford. His research interests are in the fields of European
law and private law (especially competition and marketing law, intellec-
tual property law and consumer law). He is President for the Swedish FIDE
Association for European Law.
Sionaidh Douglas-Scott is Anniversary Chair in Law and co-director at the
Centre for Law and Society in a Global Context at Queen Mary, University of
London. She works primarily within the field of EU and public law, human
rights and legal and social theory. She is particularly interested in questions
of justice and human rights in the EU and Europe more generally. She is the
author of the monograph Constitutional Law of the European Union and
her current projects include a monograph on European human rights law
and a co-edited volume on the EU and human rights. She has also published
a monograph, Law after Modernity, which explores at a more abstract level

x List of Contributors
many of the issues of pluralism, justice and human rights that are also to be
found in her work on the EU and, unusually for a work of legal theory, is
illustrated with various images and artistic works.
Federico Fabbrini holds a PhD in Law from the European University Insti-
tute and is Associate Professor of European & International Law at iCourts
(Center of Excellence on International Courts), Faculty of Law, University
of Copenhagen. He is the author of Fundamental Rights in Europe (Oxford,
Oxford University Press, 2014) and the coordinator of the Research Group
on ‘Constitutional Responses to Terrorism within the International Associa-
tion of Constitutional Law’.
Janneke Gerards is Professor of European Law at the Faculty of Law of
the Radboud University, Nijmegen, the Netherlands. Her research concen-
trates on fundamental rights and judicial review in the European, multilay-
ered context. In particular, she examines legal methods of argumentation
and interpretation that national and European courts (European Court of
Justice, European Court of Human Rights) have developed in fundamental
rights cases.
Xavier Groussot is Professor of EU Law at Lund University and Vice Dean
of the Faculty of Law. He is also a guest professor at the European Col-
lege of Paris (Université Paris 2, Panthéon-Assas) and at the University of
Reykjavik. His fields of research are related to EU constitutional law, free
movement and procedural law.
Jan Komárek is an Assistant Professor in EU law at the LSE. He studied law
at the Charles University in Prague (Mgr 2001, JUDr 2002), Stockholm Uni-
versity (LLM 2004) and the University of Oxford (MSt 2007, DPhil 2011).
He worked with the Czech Government Agent before the European Court
of Justice at the Ministry of Foreign Affairs (2004–06) and was a legal sec-
retary to the President of the Czech Constitutional Court (2009–10).
Peter Oliver was, until 2014, a Legal Advisor in the European Commission.
He is a visiting professor at the Université Libre de Bruxelles and the author
of over 70 publications on EU law, including Free Movement of Goods in
the European Union (5th edn, Oxford, Hart Publishing, 2010). His forth-
coming book is entitled The Fundamental Rights of Companies—European
and US Law Compared (Oxford, Hart Publishing). He is also a barrister at
Monckton Chambers.
Jaan Paju is Doctor of Laws at Stockholm University. He defended the thesis
‘Suveränitetserosion?’ (‘Sovereignty Erosion?’) on the impact of EU law on
national social security models in late spring 2015. He has been the editor of
the Nordic Journal on European Law (Europarättslig Tidskrift) since 1998.
He is currently Research Fellow of Christ Church, University of Oxford
(2015–16).

List of Contributors xi
Gunnar Thor Petursson is Associate Professor at the School of Law,
Reykjavik University. He graduated as a Cand juris from the Faculty of
Law, University of Iceland in 1997 and with a LLM degree (1998) and
Dr juris degree (2014) in European Law from the Faculty of Law, University
of Lund, Sweden. He was a Deputy Director at the EFTA Surveillance
Authority (1999–2004), Attorney-at-Law at Logos Legal Service (2004–05)
and Head of Legal, Actavis Group (2005–08). He is also a guest lecturer at
the Faculty of Law, Panthéon-Assas (Paris II), France and at the Faculty of
Law, University of Lund, Sweden.
Clara Rauchegger, Mag iur Mag phil (Innsbruck), LLM (Cantab), is a PhD
candidate at the University of Cambridge (Trinity Hall) and a doctoral
scholar of the Austrian Academy of Sciences and the UK Arts & Humanities
Research Council. Her research project examines the interaction between
European and national fundamental rights from a perspective of EU and
comparative constitutional law. She is also Managing Editor of the Cam-
bridge Journal of International and Comparative Law. Before coming to
Cambridge, she worked at the Court of Justice of the European Union, the
European Parliament and the University of Innsbruck in Austria.
Allan Rosas, Dr Jur, Dr Jur hc, Dr Pol Sc hc, has been a Judge at the Euro-
pean Court of Justice since 2002. He is also a Senior Fellow of the University
of Turku and a visiting Professor of the College of Europe and the Univer-
sity of Helsinki. He was a former Professor of Public Law of the University
of Turku (1978–81) and Armfelt Professor of Law of the Åbo Akademi Uni-
versity (1981–95). Furthermore, he was a former Principal Legal Adviser at
the Legal Service of the European Commission (1995–2001) and a Deputy
Director-General of the said Legal Service (2001–02). His main publications
concern the fields of EU law, international law, and Finnish and comparative
constitutional and administrative law.
John Temple Lang has been with Cleary Gottlieb Steen & Hamilton in Brus-
sels since 2000. He was a Director in the Competition Directorate General
of the European Commission from 1988 to 2000. From 1974 to 1988, he
was in the Legal Service of the European Commission. He is now Senior Vis-
iting Research Fellow at the University of Oxford and a visiting professor at
Trinity College, Dublin. He has published a book on European Community
law and more than 300 articles, mostly concerned with European law.
Sybe de Vries is Professor of EU Single Market Law and Fundamental Rights
and the Jean Monnet Chair at the Europa Institute of Utrecht University.
In 2010, he was a visiting researcher at the Oxford Institute of European
and Comparative Law. He is also the coordinator of the FP7 research pro-
ject ‘bEUcitizenship’ on European citizenship. He is a member of the edi-
torial boards of the Journal for European and Economic Law (SEW) and

xii List of Contributors
The Netherlands Journal for Human Rights (NTM/NJCM-Bulletin). Since
2015, he has been an Honorary Judge in the Court of Rotterdam dealing
with competition and consumer law cases.
Stephen Weatherill is Jacques Delors Professor of European Law at the
University of Oxford, a Fellow of Somerville College and Deputy Director
for European Law in the Oxford Law Faculty’s Institute of European and
Comparative Law.

Table of Cases
European Union
A (C-112/13) ECLI:EU:C:2014:2195��76, 91, 116
Aalborg Portland v Commission (C-204/00 P)
ECLI:EU:C:2004:6��353
A-Punkt Schmuckhandels GmbH v Claudia Schmidt
(C-441/04) ECLI:EU:C:2006:141��215
ABNA (C-453/03) ECLI:EU:C:2005:741��311
Agrana Zucker (C-365/08) ECLI:EU:C:2010:283��148
Agrokonsulting (C-93/12) ECLI:EU:C:2013:432��122
Air One SpA v Commission (T-395/04) ECLI:EU:T:2006:123��346, 357
Åkerberg Fransson. See Åklagaren v Hans Åkerberg Fransson
Åklagaren v Hans Åkerberg Fransson (C-617/10)
ECLI:EU:C:2013:105��2, 4, 14, 17, 19, 43, 50, 55,
61, 93–131, 151, 155–72,
177, 193, 208, 248, 257
Akzo Chemie BV v Commission (53/85)
ECLI:EU:C:1986:256��310
Akzo Nobel Chemicals Ltd and Akcros Chemicals
Ltd v Commission (C-550/07 P) ECLI:EU:C:2010:512��122, 340
Albany International BV v Stichting Bedrijfspensioenfonds
(C-67/96) ECLI:EU:C:1999:430��217
Alemo-Herron (Mark) v Parkwood Leisure Ltd
(C-426/11) ECLI:EU:C:2013:521��142–45, 180, 183,
214, 232–34, 241, 242
Alliance for Natural Health (C-154/04 & C-155/04)
ECLI:EU:C:2005:449��71, 229, 230, 232
AM & S Europe Ltd (155/79) ECLI:EU:C:1982:157��39
AMS. See Association de médiation sociale (AMS) v
Union locale des syndicats CGT
Amministrazione delle Finanze dello Stato v Simmenthal
(‘Simmenthal II’) (106/77) ECLI:EU:C:1978:49��18, 91, 168
Anged (C-78/2011) ECLI:EU:C:2012:372��16
Angonese (Roman) v Cassa di Risparmio di Bolzano
SpA (C-281/98) ECLI:EU:C:2000:296��140, 239
Annibaldi (Daniele) v Sindaco del Comune di Guidonia
and Presidente Regione Lazio (C-309/96)
ECLI:EU:C:1997:631��99, 197, 198
Aragonesa de Publicidad Exterior (C-1/90 &
C-176/90) ECLI:EU:C:1991:327��231
Association belge des Consommateurs Test-Achats
(C-236/09) ECLI:EU:C:2011:100��13, 14, 129, 136,
138, 145, 148, 287

xiv Table of Cases
Association de médiation sociale (AMS) v
Union locale des syndicats CGT (C-176/12)
ECLI:EU:C:2014:2��97, 151, 173, 186, 193,
195, 196, 202, 205,
206, 250, 251
Association Kokopelli (C-59/11) ECLI:EU:C:2012:447��150, 151
Associazione delle cantine sociali venete v European
Ombudsman and European Parliament (T-103/99)
ECLI:EU:T:2000:135��293
Athinaki Techniki (C-521/06 P) ECLI:EU:C:2008:422��348
Athinaki Techniki (C-362/09 P) ECLI:EU:C:2010:783��348
Bank Austria Creditanstalt v Commission (T-198/03)
ECLI:EU:T:2003:296��310, 314, 318
Baumbast and R v Secretary of State for the Home
Department (C-413/99) ECLI:EU:C:2002:493��203
Baustahlgewebe v Commission (C-185/95 P)
ECLI:EU:C:1998:608��293
Besselink (Leonard) v Council (T-331/11)
ECLI:EU:T:2013:419��29–31, 70
Bidar. See R (on the application of Bidar) v Ealing
LBC and the Secretary of State for Education and Skills
Bilka Kaufhaus (170/84) ECLI:EU:C:1986:204��47, 48
Bonda. See Criminal Proceedings against Lukasz M Bonda
Booker Aquaculture v Scottish Ministers (C-20/00 & C-64/00)
ECLI:EU:C:2003:397��136, 290
Borsana (C-2/97) ECLI:EU:C:1998:613��98
Bosphorus (C-84/95) ECLI:EU:C:1996:312��32, 33
Bressol (C-73/08) ECLI:EU:C:2010:181��15
Brey. See Pensionsversicherungsanstalt v Peter Brey
Buet (382/87) ECLI:EU:C:1989:198��215
Bundeswettbewerbsbehörde v Donau Chemie (C-536/11)
ECLI:EU:C:2013:366��347
Camar v Commission and Council (C-43/98 P(R))
ECLI:EU:C:1998:166��311
Camar and Tico (T-79/96) ECLI:EU:T:2006:25��346
Cartesio Oktató és Szolgáltató bt (C-210/06)
ECLI:EU:C:2008:723��157
Cassis de Dijon. See Rewe Zentrale v Bundesmonopolverwaltung
fur Branntwein
Cementos Portland Valderrivas (T-296/11) ECLI:EU:T:2014:121��318
Chartry (C-457/09) ECLI:EU:C:2011:101��150
Citroën Belux (C-265/12) ECLI:EU:C:2013:498��215
Commission v Agrofert Holding SA (C-477/10)
ECLI:EU:C:2012:394��312
Commission v Austria (C-28/09) ECLI:EU:C:2011:854��219
Commission v Austria (C-614/10)
ECLI:EU:C:2012:631��268, 271, 279, 285
Commission v Bavarian Lager Co Ltd (C-28/08 P)
ECLI:EU:C:2010:378��307

Table of Cases xv
Commission v Belgium (C-2/90) ECLI:EU:C:1992:310��220
Commission v Belgium (C-254/05) ECLI:EU:C:2007:319��215
Commission v Denmark (302/86) ECLI:EU:C:1988:421��220
Commission v Editions Odile Jacob (C-404/10 P)
ECLI:EU:C:2013:808��312
Commission v France (C-262/02) ECLI:EU:C:2004:431��231
Commission v France (C-166/03) ECLI:EU:C:2004:422��215
CILFIT (283/81) ECLI:EU:C:1982:335��167
Commission v Germany (178/84) ECLI:EU:C:1987:126��146
Commission v Germany (C-518/07) ECLI:EU:
C:2010:125��268, 269, 271,
279, 280, 283
Commission v Germany (C-271/08) ECLI:EU:
C:2010:426��15, 226, 227, 254
Commission v Italy (C-132/06) ECLI:EU:C:2008:412��161, 162
Commission v Luxembourg (C-319/06)
ECLI:EU:C:2008:350��181
Commission v Pilkington Group (C-278/13 P(R))
ECLI:EU:C:2013:558��303, 311, 312
Commission v SGL Carbon (C-301/04 P)
ECLI:EU:C:2006:432��291
Commission v Stichting Greenpeace Nederland
(C-673/13 P) not yet reported��313
Commission v Strack (C-579/12 RX-II) ECLI:EU:C:2013:570��16
Commission v Technische Glaswerke Ilmenau
(C-139/07 P) ECLI:EU:C:2010:376��312
Commission v UK (40/82) ECLI:EU:C:1984:33��225
Commission, Council and UK v Yassin Abdullah
Kadi (‘Kadi II’) (C-584/10 P, C-593/10 P & C-595/10 P)
ECLI:EU:C:2013:518��247, 280
Conegate (121/85) ECLI:EU:C:1986:114��71
Connolly v Commission (T-163/96) [1999] ECR II-463��37
Connolly v Commission (C-274/99 P) ECLI:EU:C:2001:127��290
Consiglio nazionale dei geologi (C-136/12) ECLI:EU:C:2013:489��217
Cook v Commission (C-198/91) ECLI:EU:C:1993:197��347
Corpul Naţional al Poliţiştilor v Ministerul Administraţiei
şi Internelor (MAI) (C-134/12) ECLI:EU:C:2011:83��150, 175
Costa (C-72/10–C-77/10) ECLI:EU:C:2012:80��122
Costa v ENEL (6/64) ECLI:EU:C:1964:66��18, 119
Cp-Pharma (C-448/06) ECLI:EU:C:2008:418��71
Criminal Proceedings against Lukasz M Bonda (C-489/10)
ECLI:EU:C:2012:319��165
Cruciano Siragusa v Regione Sicilia (C-206/13)
ECLI:EU:C:2014:126��2, 18, 98, 99, 104, 150, 159, 248
Da Silva Martins (C-388/09) ECLI:EU:C:2011:439��197
Dano v Jobcenter Leipzig (C-333/13)
ECLI:EU:C:2014:2358��152, 190–93, 208
Dassonville. See Procureur du Roi v Benoît and Gustave Dassonville
De Groot (C-147/04) ECLI:EU:C:2006:7��215

xvi Table of Cases
DEB v Bundesrepublik Deutschland (C-279/09)
ECLI:EU:C:2010:777��15, 41, 42, 105,
122, 146, 293, 295, 302
Defrenne (Gabrielle) v Société anonyme belge de
navigation aérienne Sabena
(‘Defrenne II’) (43/75) ECLI:EU:C:1976:56��250
Denise McDonough v Ryanair Ltd (C-12/11)
ECLI:EU:C:2013:43��232
Deponiezweckverband Eiterköpfe (C-6/03)
ECLI:EU:C:2005:222��98
Dereci (Murat) v Bundesministerium für Inneres
(C-256/11) ECLI:EU:C:2011:734��197, 198
Deserbais (286/86) ECLI:EU:C:1988:434��215, 225
Deutsche Bahn v Commission (T-289/11,
T-290/11 & T-521/11) ECLI:EU:T:2013:404��317, 318, 321, 331, 332
Deutsche Bahn v Commission (C-583/13 P)
ECLI:EU:C:2015:92��332, 342
Deutsche Weintour v Land Rheinland-Pfalz (C-544/10)
ECLI:EU:C:2012:526��138, 144, 148, 180, 231–33
Digibet (C-156/13) ECLI:EU:C:2014:1756��20
Digital Rights Ireland Ltd v Minister for Communications,
Marine and Natural Resources (C-293/12 & C-594/12)
ECLI:EU:C:2014:238��2, 14, 15, 51, 70, 71,
97, 116, 122–25, 128, 131, 136,
139, 142, 145, 146, 148, 244–46,
257, 272–74, 279, 280,
282–85, 287, 288,
300–02, 307–09
Dimos Agiou Nikolaou Kritis (C-82/09) ECLI:EU:C:2010:220��98
Dominguez (Maribel) v Centre informatique du Centre
Ouest Atlantique and Préfet de la region (C-282/10)
ECLI:EU:C:2012:33��140, 149, 249, 250
Domnica Petersen v Berufungsausschuss für Zahnärzte
für den Bezirk Westfalen-Lippe (Case C-341/08)
ECLI: EU:C:2010:4��185
Dumont de Chassart (Patricia) v Office national d’allocations
familiales pour travailleurs salariés (ONAFTS) (C-619/11)
ECLI:EU:C:2013:92��192, 197
Dynamic Medien (C-244/06) ECLI:EU:C:2008:85��216, 217, 241, 254
Dyrektor v Profaktor Kulesza (C-188/09)
ECLI:EU:C:2010:454��161, 162
Echternach and Moritz (C-389/87 & C-390/87)
ECLI:EU:C:1989:130��203
El Dridi (C-61/11 PPU) ECLI:EU:C:2011:268��122
Elliniki Radiophonia Til é orassi AE and Panellinia
Omospondia Syllogon Prossopikou v Dimotiki Etairia
Pliroforissis and Sotirios Kouvelas and Nicolaos
Avdellas (C-260/89) ECLI:EU:C:1991:254��94, 97, 108, 109,
136, 193, 217, 248, 293

Table of Cases xvii
Elissavet Paraschi v Landesversicherungsanstalt Württemberg
(C-349/87) ECLI:EU:C:1991:372��197
Elsen (Ursula) and Bundesversicherungsanstalt für Angestellte
(C-135/99) ECLI:EU:C:2000:647��192, 197
E.ON (C-510/13) ECLI:EU:C:2015:189��104
E.ON Energie AG v Commission (T-141/08) ECLI:EU:T:2010:516��322
E.ON Energie AG v Commission (C-89/11 P) ECLI:EU:C:2012:738��322
ERT. See Elliniki Radiophonia Til é orassi AE and Panellinia
Omospondia Syllogon
Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios
Kouvelas and Nicolaos Avdellas
Essent Belgium (C-204/12–C-208/12) ECLI:EU:C:2014:2192��220
European Medicines Agency v Abb Vie Inc (C-389/13 P(R))
ECLI:EU:C:2013:794��311
Executiv Central Ministerul Public—Parchetul de pe
lângă Curtea de Apel Constanţa v Radu (C-396/11)
ECLI:EU:C:2013:39��35
Exportslachterijen van Oordegem (C-2/93)
ECLI:EU:C:1994:223��150
Eyssen (53/80) ECLI:EU:C:1981:35��215
Fag og Arbejde (FOA) acting on behalf of Kaltoft (C-354/13)
ECLI:EU:C:2014:2463��96, 151
Familiapress (C-368/95) ECLI:EU:C:1997:325��145
Fenoll (Gérard) v Centre d’aide par le travail ‘La Jouene’
and Association de parents et d’amis de personnes
handicapées mentales (APEI) d’Avignon (C-316/13)
ECLI:EU:C:2015:200��251
Fierro and Marmorale (C-106/13) ECLI:EU:C:2013:357��97
Foglia v Novello (No 2) (244/80) ECLI:EU:C:1981:302��55
Foster (A) v British Gas plc (C-188/89) ECLI:EU:C:1990:313��249
Foto Frost (314/85) ECLI:EU:C:1987:452��26
Fra.bo SpA v Deutsche Vereinigung des Gas- und
Wasserfaches eV (DVGW)—Technisch-Wissenschaftlicher
Verein (C-171/11) ECLI:EU:C:2012:453��249
France v Commission (T-366/13) ECLI:EU:T:2013:396��348
Francovich and Bonifaci v Italy (C-6/90) ECLI:EU:C:
1991:428��353, 355, 356, 358
Fuchs and Köhler v Land Hessen (C-159/10 & C-160/10)
ECLI:EU:C:2011:508��16, 185, 186
Gardella (Simone) v Istituto nazionale della previdenza
sociale (INPS) (C-233/12) ECLI:EU:C:2013:449��141, 152, 239
Gauweiler (C-62/14) ECLI:EU:C:2015:400��116
Gentile (C-499/12) ECLI:EU:C:2013:77��97
Georgiev v Tehnicheski universitet—Sofia, filial Plovdiv
(C-250/09 & C-268/09) ECLI:EU:C:2010:699��185
German Beer case. See Commission v Germany (178/84)
Germany v Council (C-280/93) ECLI:EU:C:1994:367��230
Germany v Parliament and Council (‘Tobacco Advertising I’)
(C-376/98) ECLI:EU:C:2000:544��255

xviii Table of Cases
Germany v Parliament and Council (‘Tobacco Advertising II’)
(C-380/03) ECLI:EU:C:2006:772��228
Gestevisión Telecinco v Commission (T-95/96) ECLI:EU:T:1998:206��346
Glatzel (C-356/12) ECLI:EU:C:2014:350��51, 71
Global Trans Lodzhistik (C-29/13 & C-30/13) ECLI:EU:C:2014:140��150
Google Spain SL and Google Inc v Agencia Española
de Protección de Datos (AEPD) and Mario Costeja
González (C-131/12) ECLI:EU:C:2014:317��2, 51, 125,
149, 150, 246, 252, 258, 275,
276, 279–85, 287, 300
Gouvernement de la Communauté française and
Gouvernement wallon v Gouvernement flamand
(C-212/06) ECLI:EU:C:2008:178��206
Grima (C-117/14) ECLI:EU:C:2015:60��97
Groupe Gascogne (C-58/12 P) ECLI:EU:C:2013:770��288
Groupement des cartes bancaires (C-67/13 P)
ECLI:EU:C:2014:2204��353
Grzelczyk. See Rudy Grzelczyk v Centre public d’aide
sociale d’Ottignies-Louvain-la-Neuve (C-184/99)
Gutmann (Max) v Commission of the EAEC (18/65 &
35/65) ECLI:EU:C:1967:6��162
Hadj Ahmed (C-45/12) ECLI:EU:C:2013:390��97
Harrow LBC v Ibrahim (C-310/08) ECLI:EU:C:2010:80��203–05
Hauer (Liselotte) v Land Rheinland-Pfalz (44/79)
ECLI:EU:C:1979:290��127, 235
Hauptzollamt Muenchen-Mitte v Hauptzollamt
München-Mitte (C-269/90) ECLI:EU:C:1991:438��180
Henn and Darby (C-34/79) ECLI:EU:C:1979:295��71
Hernández v Reino de Espana (C-198/13) ECLI:EU:
C:2014:2055��2, 96–100, 103, 104, 159
Hoechst v Commission (46/87 & 227/88)
ECLI:EU:C:1989:337��11, 37, 317
Höfner and Elser (C-41/90) ECLI:EU:C:1991:161��310
Hörnfeldt v Posten Meddelande AB (C-141/11)
ECLI:EU:C:2012:421��16, 186
Huawei Technologies (C-170/13) ECLI:EU:C:2015:477��145, 303
Iida (C-40/11) ECLI:EU:C:2012:691��18, 99, 103, 104
Industrias Químicas del Vallés (C-326/05 P)
ECLI:EU:C:2007:443��71
Ingeniørforeningen i Danmark, acting on behalf
of Ole Andersen v Region Syddanmark (Case C-499/08 )
ECLI: EU:C:2010:600��185
Institut professionnel des agents immobiliers (C-473/12)
ECLI:EU:C:2013:715��302
International Transport Workers’ Federation and Finnish
Seamen’s Union (‘Viking Line’) (C-438/05) ECLI:EU:
C:2007:772��71, 87, 140, 214, 223–27,
232, 234, 241, 254

Table of Cases xix
Internationale Handelsgesellschaft v Einfuhr- und
Vorratsstelle für Getreide und Futtermittel (11/70)
ECLI:EU:C:1970:114��11, 18, 19, 94, 112,
135, 146, 159
Interseroh Scrap and Metals Trading GmbH (C-1/11)
ECLI:EU:C:2012:194��310, 313
Ireland v Parliament and Council (C-301/06)
ECLI:EU:C:2009:68��272
Ismeri Europa Srl v Court of Auditors (C-315/99 P)
ECLI:EU:C:2001:391��314
Ivana Skattolon (C-108/10) ECLI:EU:C:2011:542��144
Jeremy F (C-168/13 PPU) ECLI:EU:C:2013:358��35, 120, 121
Kadi and Al Barakaat International Foundation v
Council and Commission (‘Kadi I’) (C-402/05 P &
C-415/05 P) ECLI:EU:C:2008:461��43, 145, 247,
280, 290, 353
Kadi II. See Commission, Council and UK v Yassin
Abdullah Kadi
Kaltoft. See Fag og Arbejde (FOA) acting on behalf
of Kaltoft (C-354/13) ECLI:EU:C:2014:2463��96, 151
Kamberaj (Servet) v Istituto per l’Edilizia sociale
della provincia autonoma di Bolzano (IPES)
(C-571/10) ECLI:EU:C:2012:233��16, 43, 195–97, 200, 207, 209
Karlsson and others (Case C-292/97) ECLI:EU:
C:2000:202��143
Keck and Mithouard (Cases C-267 and C-268/91)
ECLI:EU:C:1993:905��149
KME v Commission (C-389/10 P) ECLI:EU:C:2011:816��146
KME Germany v Commission (C-272/09 P) ECLI:EU:
C:2011:810��360
Kohll (Raymond) v Union des caisses de maladie
(C-158/96) ECLI:EU:C:1998:171��194, 197, 199
Kokopelli. See Association Kokopelli
Koninklijke Wegenbouw Stevin BV v Commission
(T-357/06) ECLI:EU:T:2012:488��341
Križan (C-416/10) ECLI:EU:C:2013:8��76
Kücükdeveci (Seda) v Swedex GmbH & Co KG
(C-555/07) ECLI:EU:C:2010:21��43, 186, 196,
202, 205, 249–51
Kunqian Catherine Zhu and Man Lavette Chen v
Secretary of State for the Home Department (C-200/02)
ECLI:EU:C:2004:639��204
Kuusijärvi v Riksförsäkringsverket (C-275/96)
ECLI:EU:C:1998:279��197
Laboratoires Boiron (C-526/04) ECLI:EU:C:2006:528��353
Ladbrokes (C-258/08) ECLI:EU:C:2010:308��221
Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet
(C-341/05) ECLI:EU:C:2007:809��71, 140, 181, 182, 214,
223–27, 232, 234, 239

xx Table of Cases
Leyman (Ketty) v Institut national d’assurance
maladie-invalidité (INAMI) (C-3/08) ECLI:EU:C:2009:595��207–09
Liga Portuguesa (C-42/07) ECLI:EU:C:2009:519��149
Limburgse Vinyl Maatschappij (PVC II) (C-238/99 P)
ECLI:EU:C:2002:582��295
Lindqvist (C-101/01) ECLI:EU:C:2003:596��136, 265
Lorenz v Germany (120/73) ECLI:EU:C:1973:152��344
Loreti (C-555/12) ECLI:EU:C:2013:174��97
LSG/Tele2 (C-557/07) ECLI:EU:C:2009:107��64
Mangold v Helm (C-144/04) ECLI:EU:C:2005:709��43, 205, 250
Markus Stoss (C-316/07) ECLI:EU:C:2010:504��221
Marleasing SA v La Comercial Internacional de
Alimentacion SA (C-106/89) ECLI:EU:C:1990:395��249
Martínez Sala (María) v Freistaat Bayern (C-85/96)
ECLI:EU:C:1998:217��206
Massimiliano Placanica (C-338/04) ECLI:EU:C:2007:133��221
Matra (C-225/91) ECLI:EU:C:1993:239��347
McB (J) v LE (C-400/10 PPU) ECLI:EU:C:2010:582��15, 41, 42,
192, 197, 200
ME v Minister for Justice, Equality and Law Reform
(C-493/10) ECLI:EU:C:2011:610��34
Meca-Medina & Majcen v Commission (C-519/04 P)
ECLI:EU:C:2006:492��217
Melki and Abdeli (C-188/10 & C-189/10)
ECLI:EU:C:2010:363��76, 91
Melloni (Stefano) v Ministerio Fiscal (C-399/11)
ECLI:EU:C:2013:107��2, 4, 18, 19, 24, 35, 50,
53, 55, 56, 58, 93–131,
156, 159, 160, 257
Michel Trojani v Centre public d’aide sociale de
Bruxelles (CPAS) (C-456/02) ECLI:EU:C:2004:488��190
Míla v EFTA Surveillance Authority (E-1/13)
[2014] EFTA Ct Rep��347
Ministerul Administraţiei şi Internelor (MAI), Inspectoratul
General al Poliţiei Române (IGPR) and Inspectoratul
de Poliţie al Judeţului Tulcea (IPJ) v Corpul Naţionalal
Poliţiştilor—Biroul (C-134/12) ECLI:EU:C:2012:288��175
Netherlands v Commission (C-48/90 & C-66/90) ECLI:EU:
C:1992:63��346, 350, 362
Netherlands v Commission (T-380/08) ECLI:EU:T:2013:480��315
Netherlands and Nederlandse omroep Stichting v
Commission (T-231/06 & T-237/06) ECLI:EU:T:2010:525��347
Nexans France SAS and Nexans SA v Commission (T-135/09)
ECLI:EU:T:2012:596��321, 337–40
Nold v Commission (4/73) ECLI:EU:C:1974:51��11, 143, 266, 290, 293
Novo Nordisk (C-249/09) ECLI:EU:C:2011:272��147
NS and ME v Secretary of State for the Home Department
(C-411/10 & C-493/10) ECLI:EU:C:2011:865��15, 17, 34, 35,
42, 108, 109, 174

Table of Cases xxi
Omalet (C-245/09) ECLI:EU:C:2010:808��150
Omega Spielhallen- und Automatenaufstellungs-GmbH v
Oberbürgermeisterin der Bundesstadt Bonn (C-36/02)
ECLI:EU:C:2004:614��70, 71, 218, 222,
223, 239–41, 254
OMT case. See Gauweiler (C-62/14) ECLI:EU:C:2015:400��116
Ordre des barreaux francophones et germanophone
(C-305/05) ECLI:EU:C:2007:383��40
Orkem v Commission (374/87) ECLI:EU:C:1989:387��37, 38, 293, 295
Österreichischer Gewerkschaftsbund (C-328/13)
ECLI:EU:C:2914:2197��234
Österreichischer Rundfunk (C-465/00) ECLI:EU:
C:2003:294��136, 140, 257, 265, 302
Otis (C-199/11) ECLI:EU:C:2012:684��39, 42, 348
Palacios de la Villa v Cortefiel Servicios SA (C-411/05)
ECLI:EU:C:2007:604��87, 185
Paraskevas Louloudakis v Ellinko Dimosio (C-262/99)
ECLI:EU:C:2001:407��161
Parliament v Council (C-540/03) ECLI:EU:C:2006:429��13
Pedone (C-498/12) ECLI:EU:C:2013:76��150
Pergan v Commission (T-474/04) ECLI:EU:T:2007:306��315
Pelckmans Turnhout (C-483/12) ECLI:EU:C:2014:304��18, 96, 152
Peñarroja Fa (C-373/09) ECLI:EU:C:2009:637��146
Pensionsversicherungsanstalt v Peter Brey (C-140/12)
ECLI:EU:C:2013:565��192, 193, 204
Pfleger. See Proceedings brought by Robert Pfleger
Pilkington Group v Commission (T-462/12 R)
ECLI:EU:T:2015:508��311
Poclava v Toeldano (C-117/14) ECLI:EU:C:2015:60��159, 175
Polier (C-361/07) ECLI:EU:C:2008:16��175
Postbank v Commission (T-353/94) ECLI:EU:T:1996:119��310
Posten Norge (E-15/10) 18 April 2012��148, 360
Preussen Elektra (C-379/98) ECLI:EU:C:2001��220
Proceedings brought by Robert Pfleger (C-390/12)
ECLI:EU:C:2014:281��96, 97, 109, 152, 159, 193,
200, 207, 208, 221,
239, 240, 248
Procureur du Roi v Benoît and Gustave Dassonville
(‘Dassonville’) (8/74) ECLI:EU:C:1974:82��240
Promusicae (C-275/06) ECLI:EU:C:2008:54��140, 232, 304
Prysmian and Prysmian Cavi e Sistemi Energia v
Commission (T-140/09) ECLI:EU:T:2012:597��339
R v Secretary of State for Health ex p British American
Tobacco (Investments) Ltd and Imperial Tobacco Ltd
(BAT/Imperial Tobacco) (C-491/01) ECLI:EU:C:2002:741��230, 255
R (on the application of Bidar) v Ealing LBC and the Secretary
of State for Education and Skills (C-209/03)
ECLI:EU:C:2005:169��190

xxii Table of Cases
R (on the application of Vodafone Ltd) v Secretary
of State for Business, Enterprise and Regulatory
Reform (C-58/08) ECLI:EU:C:2010:321��228, 249
Rau (Walter) v De Smedt (261/81) ECLI:EU:C:1982:382��215
Rechtsanwalt Dr Dirk Rüffert v Land Niedersachsen
(C-346/06) ECLI:EU:C:2008:189��181
Rewe Zentrale v Bundesmonopolverwaltung fur
Branntwein (‘Cassis de Dijon’) (120/78)
ECLI:EU:C:1979:42��214–17, 221, 222, 225, 240, 246
Römer (C-147/08) ECLI:EU:C:2011:286��149
Romonta GmbH v Commission (T-614/13) ECLI:EU:T:2014:835��71
Roquette (C-88/99) ECLI:EU:C:2000:652��37
Roquette Frères v Council of the European Communities
(138/79) ECLI:EU:C:1980:249��147
Roquette Frères v Directeur général de la concurrence
(C-94/00) ECLI:EU:C:2002:603��290, 317
Rosa García Blanco v Instituto Nacional de la Seguridad
Social (INSS); Tesorería General de la Seguridad Social
(TGSS) and Cristalina Salgado Alonso v Instituto Nacional
de la Seguridad Social (INSS) and Tesorería General de
la Seguridad Social (TGSS) (C-225/02 & C-306/03)
ECLI:EU:C:2005:34��192
Rosenbladt v Oellerking Gebäudereinigungsges mbH
(C-45/09) ECLI:EU:C:2010:601��184, 185
Rudy Grzelczyk v Centre public d’aide sociale
d’Ottignies-Louvain-la-Neuve (C-184/99)
ECLI:EU:C:2001:458��190
Ruiz Zambrano (C-34/09) ECLI:EU:C:2011:124��97, 149, 150
Rutili (36/75) (36/75) ECLI:EU:C:1975:137��11
Sabou (C-276/12) ECLI:EU:C:2013:678��108, 109, 120
Sähköalojen ammattiliitto v Elektrobdowa (C-396/13)
ECLI:EU:C:2015:86��183
Salemink (A) v Raad van bestuur van het Uitvoeringsinstituut
werknemersverzekeringen (C-347/10) ECLI:EU:C:2012:17��193
Santos Palhota (C-515/08) ECLI:EU:C:2010:589��226
Satamedia. See Tietosuojavaltuutettu v Satakunnan
Markkinapörssi Oy and Satamedia
Sayn-Wittgenstein (Ilonka) v Landeshauptmann von
Wien (C-208/09) ECLI:EU:C:2010:806��222, 223
SC Schuster & Co Ecologic (C-371/13) ECLI:EU:C:2013:748��150
Scarlet Extended SA v Société belge des auteurs, compositeurs
et éditeurs SCRL (SABAM) (C-70/10)
ECLI:EU:C:2011:771��64, 139–41, 241,
242, 252, 258, 304
Scattolon (C-108/10) ECLI:EU:C:2011:542��99
Schaible (Herbert) (C-101/12) ECLI:EU:C:2013:661��148, 231

Table of Cases xxiii
Schecke and Eifert. See Volker and Markus Schecke and Eifert
Schmidberger (Eugen) v Austria (C-112/00)
ECLI:EU:C:2003:333��87, 140, 143, 218,
222–24, 227, 239, 240, 254
Schönberger v European Parliament (C-261/13 P)
ECLI:EU:C:2014:2423��293
Schwarz (Michael) v Stadt Bochum (C-291/12)
ECLI:EU:C:2013:670��139, 246, 283
Scott v Commission (T-366/00) ECLI:EU:T:2007:99��352
Scott (C-290/07 P) ECLI:EU:C:2010:480��352, 363
Seitlinger (C-594/12) not yet reported��287, 307
SEP v Commission (C-36/82 P) [1994] ECR I-1911��310
Servet Kamberaj v IPES (C-571/10) ECLI:EU:C:2012:233��165, 167
SGL Carbon v Commission (C-308/04 P)
ECLI:EU:C:2006:433��40, 294, 295
Simmenthal II. See Amministrazione delle Finanze dello
Stato v Simmenthal
Sindicatos dos Bancários do Norte (C-128/12) ECLI:EU:C:2013:149��177
Sindicato Nacional dos Profissionais de Seguros e Afins
(C-264/12) ECLI:EU:C:2014:2036��153, 178
Sindicatos dos Bancários do Norte (C-128/12)
ECLI:EU:C:2013:149��153
Siragusa. See Cruciano Siragusa v Regione Sicilia
Sky Österreich GmbH v Österreichischer Rundfunk
(C-283/11) ECLI:EU:C:2013:28��142, 144, 148, 231,
233, 242, 243, 245,
258, 259, 304
Sociedade Agrícola (C-258/13) ECLI:EU:C:2013:810��96, 97
Sokoll-Seebacher (Susanne) (C-367/12) ECLI:EU:
C:2014:68��141, 152, 182, 239
Solvay v Commission (C-109/10 P) ECLI:EU:C:2011:686��353
Spain and Finland v Parliament and Council (C-184/02 &
C-223/02) ECLI:EU:C:2004:497��230
SPCM (C-558/07) ECLI:EU:C:2009:430��147
Stanleybet (C-186/11 & C-209/11) ECLI:EU:C:2013:33��221
Stauder (Erich) v City of Ulm (29/69) ECLI:EU:C:1969:57��11, 135
Steffensen (C-276/01) ECLI:EU:C:2003:228��105, 136
Stichting Greenpeace Nederland v Commission
(T-545/11) ECLI:EU:T:2013:523��312
Sumitomo Chemical v Commission (T-22/02 & T-23/02)
ECLI:EU:T:2005:349��315
Surgicare (C-662/13) ECLI:EU:C:2015:89��104
Sweden and API (C-514/07 P) ECLI:EU:C:2010:541��348
Swedish Match AB and Swedish Match UK Ltd v Secretary
of State for Health (C-210/03) ECLI:EU:C:2004:802��255
Sytraval v Commission (C-367/95 P) ECLI:EU:C:1998:154��347, 361
T Port (C-68/95) ECLI:EU:C:1996:452��346
Technische Glaswerke Ilmenau v Commission (T-198/01)
ECLI:EU:T:2004:222��345

xxiv Table of Cases
Technische Glaswerke Ilmenau (C-139/07 P)
ECLI:EU:C:2010:376��345, 358
Teixiera v Lambeth LBC (C-480/08) ECLI:EU:C:2010:83��203–05
Test-Achats. See Association belge des Consommateurs
Test-Achats
Texdata Software (C-418/11) ECLI:EU:C:2013:588��97, 104, 105
Tietosuojavaltuutettu v Satakunnan Markkinapörssi
Oy and Satamedia (C-73/07) (Satamedia)
ECLI:EU:C:2008:727��257, 304
Tobacco Advertising I. See Germany v Parliament and
Council (‘Tobacco Advertising I’) (C-376/98) ECLI:EU:C:2000:544��255
Tobacco Advertising II. See Germany v Parliament and
Council (‘Tobacco Advertising II’) (C-380/03)
ECLI:EU:C:2006:772��228
Torralbo Marcos (C-265/13) ECLI:EU:C:2014:187��17, 18, 96, 97
Toshiba Corp (C-17/10) ECLI:EU:C:2012:72��122, 162
Trade Agency (C-619/10) ECLI:EU:C:2012:531��122
Transocean Marine Paint Association v Commission
(17/74) ECLI:EU:C:1974:106��350
UK v Council and Parliament (C-270/12) ECLI:EU:C:2014:18��228
UK v Parliament and Council (C-66/04) ECLI:EU:C:2005:743��228
Una Coonan v Insurance Officer (110/79) ECLI:EU:C:1980:112��197
UPC Telekabel Wien GmbH v Constantin Film Verleih
GmbH and Wega Filmproduktionsgesellschaft mbH
(C-314/12) ECLI:EU:C:2014:192��64, 252
van Munster (Simon JM) v Rijksdienst voor Pensioenen
(C-165/91) ECLI:EU:C:1994:359��207–09
van Pommeren-Bourgondiën (AJ) v Raad van bestuur
van de Sociale verzekeringsbank (C-227/03)
ECLI:EU:C:2005:431��192, 197
Vandorou (C-422/09, C-425/09 & C-426/09)
ECLI:EU:C:2010:732��150
Varec v Belgian State (C-450/06) ECLI:EU:C:2008:91��310
Viking Line. See International Transport Workers’ Federation
and Finnish Seamen’s Union
Vodafone. See R (on the application of Vodafone Ltd) v
Secretary of State for Business, Enterprise and Regulatory Reform
Volker and Markus Schecke and Eifert v Land Hessen
(C-92/09 & C-93/09) ECLI:EU:C:2010:662��13, 16, 42, 129,
136, 138, 139, 142, 145, 148,
180, 244, 245, 287, 288,
293, 300–02, 304–06
Wachauf (5/88) ECLI:EU:C:1989:321��94, 136, 143, 145, 146
Walrave and Koch v Association Union Cycliste
Internationale (36/74) ECLI:EU:C:1974:140��249
Werhof (C-499/04) ECLI:EU:C:2006:168��183
Westdeutsche Landesbank Girozentrale v Commission
(T-228/99 & T-233/99) ECLI:EU:T:2006:405��357

Table of Cases xxv
Winner Wetten (C-409/06) ECLI:EU:C:2010:503��18
Wouters (C-309/99) ECLI:EU:C:2002:98��217
X (C-199/12–C-201/12) ECLI:EU:C:2013:720��103
Ymeraga (C-87/12) ECLI:EU:C:2013:291��99, 104
Zambrano (Gerardo Ruiz) v Office national de l’emploi (ONEm)
(C-34/09) ECLI:EU:C:2011:124��202
ZZ (C-300/11) ECLI:EU:C:2013:363��146
Zuckerfabrik Franken (77/81) ECLI:EU:C:1982:70��150
Zwartveld (C2/88 Imm) [1990] ECR I-3365��359
European Court of Human Rights
A, B and C v Ireland (25579/05) 16 December 2010��71
Agrotexim v Greece (A/330) (1996) EHRR 250��289
Airey v Ireland (A/32) (1979–80) 2 EHRR 305��291
Amann v Switzerland (27798/95) (2000) 30 EHRR 843��297, 301, 305
Andersson (Anne-Marie) v Sweden (20022/92) (1998)
25 EHRR 722��71
Andersson (Margareta and Roger) v Sweden (12963/87)
(A/226-A) 25 February 1992��139
Association of European Integration and Human Rights v
Bulgaria (62540/00) 28 June 2007��298, 299
Autronic AG v Switzerland (A/178) (1990) 12 EHRR 485��291
Barberà messegué and Jabardo v Spain (A/146) (1989)
11 EHRR 360��349
Behrami v France; Saramati v France, Germany and Norway
(71412/01) (2007) 45 EHRR SE10��27
Bernh Larsen Holding AS v Norway (24117/08) (2014)
58 EHRR 8��316, 318, 328–30, 340
Bigaeva v Greece (26713/05) 28 May 2009��297
Bosphorus Hava Yollari Turizm ve Ticaret Anonim
Sirketi v Ireland (45036/98) (2006) 42 EHRR 1��25, 32, 33, 36–38, 62
Bryan v UK (A/335-A) (1996) 21 EHRR 342��360
Buck v Germany (41604/98) (2006) 42 EHRR 21��299
Canal Plus. See Société Canal Plus v France
Cantoni v France [1996] Reports 1996-V��31, 33
Christine Goodwin v UK (28957/95) (2002) 35 EHRR 18��70
Comingersoll SA v Portugal (2001) 31 EHRR 31��291, 313
Compagnie des Gaz de Pétrole Primagaz v France (29613/08)
21 December 2010��335–39, 341
Connolly v 15 Member States of the EU (73274/01)
9 December 2008��37
Delta Pekárny v Czech Republic (97/11)
2 October 2014��316, 318, 330, 331
DH v Czech Republic (57325/00) (2008) 47 EHRR 3��48
Dickson v UK (44362/04) (2008) 46 EHRR 41��70, 71
Dudgeon v UK, 22 October 1981��296
Earl Spencer v UK (28851/95) (1998) 25 EHRR CD105��313

xxvi Table of Cases
El Shennawy v France (51246/08) 20 January 2011��34
Elcomp v Poland (37492/05) 19 April 2011��292
Engel v Netherlands (A/22) (1979–80) 1 EHRR 647��165
Evans v UK (6339/05) (2008) 46 EHRR 34��71
Fernández Martínez v Spain (56030/07) (2015) 60 EHRR 3��297
Funke v France (A/256-A) (1993) 16 EHRR 297��38
Goodwin v UK (17488/90) (1996) 22 EHRR 123��309
Granos Organicos Nacionales v Germany (19508/07)
22 March 2012��292, 293
Handyside v UK (A/24) (1979–80) 1 EHRR 737��70
Harju v Finland, 15 February 2011��317
Heino v Finland (56716/09) 15 February 2011��317
Hellig v Germany (20999/05) (2012) 55 EHRR 3��34
Hertel v Switzerland (25181/94) 91999 28 EHRR 534��291
Ian Edgar (Liverpool) Ltd v UK (37683/97) 25 January 2000��297
James v UK (A/98) (1986) 8 EHRR 123��70
Janosevic v Sweden (34619/97) (2000) 30 EHRR CD114��165
Klass v Germany (A/28) (1979–80) 2 EHRR 214��273, 299
Koufaki and Adedy v Greece (57665/12 & 57657/12)
7 May 2013��180
Kress v France (39594/98) 7 June 2001��39
KU v Finland (2872/02) (2009) 48 EHRR 52��306
Kuliś and Różycki v Poland (27209/03) 6 October 2009��314
Leander v Sweden (9248/81) (A/116) (1987) 9 EHRR 433��139, 146
Leveau and Fillon v France (63512/00 & 63513/00)
6 September 2005��299
Lithgow v UK (A/102) (1986) 8 EHRR 329��291
Lucky Dev v Sweden (7356/10) 27 November 2014��166, 170
Malone v UK (A/82) (1985) 7 EHRR 14��299
Marper v UK (30562/04) (2009) 48 EHRR 50��274
Matthews v UK (1999) 28 EHRR 361��22, 25
Maurice v France (11810/03) (2006) 42 EHRR 42��56, 71
Menarini Diagnostics v Italy (43509/08) 27 September 2011��360
Michaud v France (12323/11) (2014) 59 EHRR 9��33
Montera v Italy, 9 July 2002��313
MS v Sweden (20837/92) (1999) 28 EHRR 313��266
MSS v Belgium and Greece (30696/09) (2011) 53 EHRR 2��33–35
Nederlandse Kokkelvisserij UA v Netherlands (13645/05)
(2009) 48 EHRR SE18��25
Neij and Sunde Kolmisoppi v Sweden (40397/12) (2013)
56 EHRR SE19��64, 66, 67
Neumeister v Austria (A/8) (1979–80) 1 EHRR 91��348
Niemietz v Germany (13710/88) (A/251-B) (1993)
16 EHRR 97��291, 296–99,
301, 315–17, 326
Observer and Guardian v UK (13585/88) (A/216)
(1992) 14 EHRR 153��71

Table of Cases xxvii
Perez v France (47287/99) (2005) 40 EHRR 39��348
Pietka v Poland (34216/07) 16 October 2012��292
Pfeifer v Austria (12556/03) (2009) 48 EHRR 8��313
Pla and Puncernau v Andorra (69498/01) (2006) 42 EHRR 25��71
Polanco Torres v Spain (34147/06) 21 September 2010��313
Pretty v UK (2346/02) (2002) 35 EHRR 1��296
Primagaz. See Compagnie des Gaz de Pétrole Primagaz v France
Pye (Oxford) Ltd v UK (44302/02) (2008) 46 EHRR 45��291
Radio France v France (53984/00) (2005) 40 EHRR 29��313
Ravon v France (18497/03) 21 February 2008��333–36, 339, 340
Refah Partisi v Turkey (41340/98) (2003) 37 EHRR 1��71
Rosenquist v Sweden (60619/00) (2005) 40 EHRR SE24��164
Rotaru v Romania (28341/95) 8 BHRC 449��146, 266, 305, 313
RR v Poland (27617/04) (2011) 53 EHRR 31��34
RSz v Hungary (41838/11) 2 July 2013��70
Ruotsalainen v Finland (13079/03) (2013) 56 EHRR 10��164
S and Marper v UK (30562/04) (2009) 48 EHRR 50��71
Saunders v UK (19187/91) (1997) 23 EHRR 313��295
Schüssel v Austria (42409/98) 21 February 2002��313
Selmouni v France (25803/94) (2000) 29 EHRR 403��303
Sidabras v Lithuania (55480/2000) (2006) 42 EHRR 6��296, 318
Société Canal Plus v France (29408/08) 21 December 2010��336, 339–41
Société Colas Est v France (37971/97) (2004)
39 EHRR 17��298, 299, 301, 315–17, 326–28
Spacek v Czech Republic (26449/95) (2000)
30 EHRR 1010��292
Stec v UK (65731/01) (2006) 43 EHRR 47��297, 306
Steel and Morris v UK (68416/01) (2005)
41 EHRR 22��291, 292, 313, 314
Sunday Times v UK (13166/87) (1992) 14 EHRR 229��291
Timpul Info-Magazin and Anghel v Moldova (42864/05)
(2011) 52 EHRR 19��314
Tyrer v UK (A/26) (1979–80) 2 EHRR 1��41
Tysiac v Poland (5410/03) (2007) 45 EHRR 42��296
UJ v Hungary (23954/10) 19 July 2011��314
Valkov v Bulgaria (2033/04) 25 October 2011��180
Van der Mussele v Belgium (8919/80) (1984) 6 EHRR 163��297
Van Marle v Netherlands (A/101) (1986) 8 EHRR 483��297, 309
Västberga Taxi and Vulk v Sweden (36985/97) 23 July 2002��165
VC v Slovakia (18968/07) (2014) 59 EHRR 29��34
Velikovi v Bulgaria (43278/98) (2009) 48 EHRR 27��71
Verein ‘Kontakt-Information-Therapie’ and Hagen v Austria
(11921/86) 12 October 1988��304
Verein gegen Tierfabriken v Switzerland (24699/94) (2002)
34 EHRR 4��291
Vermuelen v Belgium (1996) 32 EHRR 313��349
Von Hannover v Germany (40660/08 & 60641/08)
(2012) 55 EHRR 15��56

xxviii Table of Cases
VP Diffusion v France, 26 August 2008��292
Weber v Germany (54934/00) (2008) 46 EHRR SE5��146, 299
Wendenburg v Germany (71630/01) 6 February 2003��297
Yoh-Ekale Mwange v Belgium (10486/10) 20 December 2011��34
Zolotukhin (Sergey) v Russia (14939/03) (2012)
54 EHRR 16��164–67, 170, 171
International Court of Justice
Belgium v Spain (Barcelona Traction) [1970] ICJ Rep 4��289
US v Italy (ELSI) [1989] ICJ Rep 15��289
Domestic
Austria
Constantin and Wega v UPC Telekabel (‘Kino.to’), 22 CG
120/10, 13 May 2011, Trade Ct Vienna��64
G 47/12-11, G 59/12-10, G 62, 70, 71/12-11,
28 November 2012, Constitutional Ct��123
U 466/11-18; U 1836/11-13, 14 March 2012, Constitutional Ct��76
Belgium
BAF v Telenet and Belgacom (2011/8314) 26 September 2011,
CA Antwerp��64
Bularia
13627, 11 December 2008, Supreme Administrative Ct��123
Cyprus
65/2009, 78/2009, 82/2009, 15/2010, 1 February 2011, Supreme Ct��123
Czech Republic
Pl ÚS 24/10, 22 March 2011, Constitutional Ct��123, 124, 281
Germany
Administrative Court Cologne, 15 December 2011, 6 K 5404/10��64
Constitutional Court (BVerfG) 7, 198, Lüth (1955)��280
Constitutional Court (BVerfG) 95, 220 (1997)��294, 304
Constitutional Court (BVerfG) 118, 168 (2007)��304
Constitutional Court (BVerfG), 9 February 2010,
1 BvL 1/09 (Hartz IV)��60
Constitutional Court (BVerfG), 3 March 2010, 1 BvR 256/08��281
Constitutional Court (BVerfG), 18 July 2012,
1 BvL 10/10 (Asylum Seekers’ Benefits)��60

Table of Cases xxix
Federal Constitutional Court, 20 July 1954, 1 BvR 459,
484, 548, 555, 623, 651, 748, 783, 801/52, 5,
9/53, 96, 114/5, BVerfGE 4, 7��86
Federal Constitutional Court, 2 BvR 197/83
Solange II [1986] BVerfGE 73��115
Federal Constitutional Court, 2 March 2010,
1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08��123, 124
Federal Constitutional Court, 24 April 2013, 1 BvR 1215/07��104, 128
Ireland
2006 3785 P [2010] IEHC 221, High Ct��123
Netherlands
Ziggo and XS4ALL v BREIN, ECLI:NL:GHDHA:2014:88,
28 January 2014, CA The Hague��64
Portugal
Acórdão n º 396/2011, Diário da República,
2.ª série—N º 199—17 de Outubro de 2011��176
Romania
Decision No 1258, 8 October 2009, Constitutional Ct��123, 281
South Africa
Minister of Health v Treatment Action Campaign (TAC),
2002 (5) SA 721 (CC)��60
Soobramoney v Minister of Health, KwaZulu-Natal,
1998 (1) SA 765 (CC)��60
South Africa v Grootboom, 2001 (1) SA 46 (CC)��60
Spain
Melloni (STC 26/2014) [2014] BOE 60, Constitutional Ct��115, 116
Sweden
Åkerberg Fransson, B 192-14, September 2014,
Hovrätten för Övre Norrland��166, 167
RÅ (Regeringsrättens Årsbok) 2009 ref 94, Supreme
Administrative Ct��167
United Kingdom
Adams v Cape Industries plc [1990] Ch 433, [1990] 2 WLR 657��289
Benkharbouche v Sudan Embassy [2015] EWCA Civ 33,
[2015] 3 WLR 301��251

xxx Table of Cases
F-K v Polish Judicial Authority [2012] UKSC 25��35
Lee v Lee’s Air Farming Ltd [1961] AC 12, [1960] 3 WLR 758 (PC)��289
Parkwood Leisure Ltd v Alemo-Herron [2011] UKSC 26,
[2011] 4 All ER 800��183
Petrodel Resources Ltd v Prest [2013] UKSC 34, [2013] 2 AC 415��289
Saeedi [2010] EWCA Civ 990��174
Salomon v Salomon and Co Ltd [1897] AC 22��289
Twentieth Century Fox Film Corp v British Telecommunications
plc [2011] EWHC 1981 (Ch), [2012] 1 All ER 806;
[2011] EWHC 2714 (Ch), [2012] 1 All ER 869��64
United States
Abrams v US, 250 US 616 (1919)��284
Curcio v US, 354 US 118 (1957)��294
Gitlow v New York (1925)��44
Hale v Henkel, 201 US 43 (1906)��294
New York Times v Sullivan, 376 US 254 (1964)��291
US v White, 322 US 694 (1944)��294

Table of Legislation
International
Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS) 1994
Art 1(2)��309
Art 39��309
(2)��310
Geneva Convention relating to the Status of Refugees 1951��15
Universal Declaration of Human Rights 1948��83, 303
European
Council of Europe Convention 108��266
Council of Europe Convention on the Prevention of Terrorism 2005
Art 26(3)��36
Council of Europe Convention on the Protection of Individuals
with regard to Automatic Processing of Personal Data 1981��300, 302
EC Treaty
Art 2��220
Art 3��220
Art 6��220
Art 81(1)��338
Art 152(1)��220
Art 286��307
EU Charter of Fundamental Rights 2000
Preamble��14, 41, 267
Title I��16
Title II��16, 144, 302
Title III��16
Title IV��16, 144, 173, 183, 229
Title V��16
Title VI��16, 294
Title VII��17, 136
Art 1��147, 186, 191, 303, 304, 315
Art 4��35, 303, 304, 311
Art 6��41
(2)��145
(3)��121
Art 7��6, 13, 14, 142, 149, 150, 244, 245,
253, 258, 266, 272, 273, 275,
277–80, 282, 285, 288,
299–305, 307, 308, 310–14,
317–19, 321, 325,
326, 331, 333, 342

xxxii Table of Legislation
Art 8��6, 13, 14, 142, 150, 245, 253, 258,
267, 268, 271–73, 275, 277–80, 282, 283, 285,
288, 299–305, 307, 308, 311–13, 318, 319
(1)��245, 303
(2)��303
(3)��272, 275, 303
Art 9��302
Art 10��302
Art 11��30, 64, 150, 217, 243, 273, 284
Art 12��145
Art 14��302
Art 15��16, 186, 310, 313, 318
(1)��16, 186, 231
(2)��141, 152, 207, 239
Arts 15–17��152, 221
Art 16��64, 141, 142, 144, 145, 148, 152,
182, 183, 214, 229, 231–34, 239,
241–43, 302, 310, 313, 318
Art 17��64, 137, 214, 229, 231,
232, 239, 243, 302, 310, 313
(1)��303
(2)��139
Art 18��15
Art 20��191, 222
Arts 20–23��16
Art 21��14, 145, 173, 184, 186
(1)��149, 186, 201, 202, 205, 206
Art 23��14, 145
Art 24��50, 202, 205, 241
(1)��205
(2)��205
Art 25��205
Art 27��173, 195, 196, 200, 250
Art 28��226
Art 30��242
Art 31��16, 182, 183, 249
(1)��177
(2)��16, 149
Art 32��137, 202
Art 34��16, 190, 194–201
(1)��195, 196–201, 206, 208
(2)��196, 199–201, 206–09
(3)��195, 196, 207
Art 35��220, 221, 229, 231
Art 37��220, 221, 229
Art 38��229, 231, 232
Art 41��50, 356–58, 360
Arts 42–44��293

Table of Legislation xxxiii
Art 43��293
Art 44��293
Art 47��6, 16, 19, 42, 50, 146, 147, 251,
293, 294, 311, 317, 321,
325, 331, 348, 351, 355, 360
(3)��41
Art 48��19, 122, 294, 315
Art 49(1)��294
Art 50��155, 157, 162–64, 168, 170, 294
Art 51��17, 18, 152, 157–60, 191, 208
(1)��17, 76, 93, 95, 96, 100, 105, 106, 108,
112, 130, 157–59, 163, 173, 177, 238, 249
(2)��157, 198, 207, 209, 255
Art 52��137, 138, 242, 244, 245, 359, 360
(1)��4, 14, 101, 136–44, 148, 180,
200, 241, 243, 247, 275, 303
(2)��141, 152, 238, 249
(3)��14, 15, 21, 40–45, 121, 126,
151, 152, 294, 295, 300, 342
(4)��20, 122–26, 131, 241
(5)��151, 194, 198, 200, 205, 206, 250
(7)��14, 41, 100, 158, 163, 299
(32)��303
Art 53��19, 24, 54, 112, 113, 122–24, 131, 160
Protocol 30��174
Art 1(1)��174
(2)��173
European Convention on Human Rights (ECHR) 1950
Art 1��31, 32, 297
Art 3��34, 303, 304
Art 5��41
Art 6��37, 38, 50, 148, 251, 291, 292, 295,
311, 313, 325, 333, 335, 336, 348, 351
(1)��39, 42, 292, 334–37, 348
Art 8��33, 35, 123, 146, 238, 266, 273, 274,
282, 288, 295–303, 309, 310, 313–18,
325–31, 333, 335, 336, 342
(2)��138, 298, 301, 316, 317, 327, 328
Arts 8–11��139
Art 9��138
Art 10��64, 67, 217, 248, 291, 314
(1)��314
(2)��309, 314
Art 11��145
Art 13��34, 335, 336
Art 14��297
Art 34��22, 291
Art 35(3)(c)��55

xxxiv Table of Legislation
Art 46��41
Art 53��24, 54, 94, 114
Protocol 1, Art 1��64, 291, 292, 297, 309
Protocol 4, Art 2(3)��138, 139
(4)��138
Protocol 7��169
Art 1(1)��138
Art 2(2)��138
Art 4��155, 163, 169, 170
Protocol 14��22
Protocol 16��24, 55, 57, 61, 171
Rules of Procedure of the Court of Justice of the
European Union 2012
Art 76��39
r 41��56
Schengen Agreement��162
Statute of the Court of Justice of the European Union
Art 23��116
Treaty establishing a Constitution for Europe 2003��12
Treaty of Lisbon 2009��1, 12, 18, 22, 37, 42, 45, 68, 96, 100,
102, 105, 115, 122, 127–30, 158, 169, 186,
213, 220, 222, 226, 227, 230–32, 234, 240,
246, 256, 262, 263, 267, 268, 271, 293, 319
Protocol��169, 170, 226
Protocol 8��23, 33
Treaty of Rome��175, 309
Treaty on European Union��12
Art 1��305
Art 2��1, 58, 77, 101
Art 3��58
(3)��226
Art 4(2)��4, 20, 115–17, 130, 160, 222, 223, 241
(3)��347, 356, 357, 359, 360
Art 5��148
(1)��255
(4)��244
Art 6��13, 150, 255, 266
(1)��12, 14, 158, 186, 207, 209, 255, 267, 293, 299
(2)��22, 28, 37, 111
(3)��13–15, 20, 43, 100, 167, 174, 290
Art 10��305
Art 19(1)��26
Art 39��301
Art 49��77
Treaty on the Functioning of the European
Union (TFEU)��16, 140, 360
Art 2(2)��217

Table of Legislation xxxv
Art 4(2)(a)��217
Art 7��238
Art 8��238
Art 9��181
Art 11��221, 229
Art 12��229
Art 15��29, 305
(1)��312
Art 16��238, 256, 258, 267, 279, 285, 301, 307
(1)��302
(2)��256, 272, 287, 302
Art 18��206
Art 19��68, 151
Art 20��149
Art 21��222
Art 26��228
Art 34��214, 215, 218, 220, 249
Art 36��214–16, 220, 221
Arts 40–43��148
Art 45��141, 152, 193, 200
Art 48��141, 200
Art 49��141, 152, 182
Art 56��181, 182, 207, 221, 222
Art 78(1)��15
Art 101��295, 310, 323, 335, 336, 353
(1)��338
Art 102��145, 310, 336, 353
Art 114��227–32, 237, 249, 255, 256
(1)��287
(3)��229
Art 152��225
Art 157��250
Art 168��229
Art 191(1)��221
Art 218��22
(11)��23
Art 258��146, 281
Art 263��149, 338, 352
Art 265��346, 350, 358
Art 267��167, 281, 363
Art 275(2)��27
Art 277��317
Art 325��106, 107
Art 339��309, 311
Art 340��314, 340
Art 344��25, 27

xxxvi Table of Legislation
EU Secondary Legislation
Regulations
Regulation 17/62 implementing Arts 85 and 86 of the
Treaty [1962] OJ 204/62��310
Art 14��317
Regulation 459/68 on protection against dumping or
granting bounties [1968] OJ L93/1��349
Regulation 1612/68 on freedom of movement for
workers [1968] OJ L257/2��203
Art 10��203
Art 11��203
Art 12��204, 205
Regulation 659/1999 on rules for application of
Art 93 of the Treaty [1999] OJ L83/1��343, 349, 362
Art 6a(2)��357
Regulation 45/2001 on protection of individuals
with regard to processing of personal data
[2001] OJ L8/1��264, 270, 302, 307,
308, 312, 315, 319
Art 1(1)��307
Regulation 1049/2001 on public access to EU
documents [2001] OJ L145/43��312, 345
Art 4��312
(1)��30
(3)��345
Regulation 1/2003 implementing Arts 81 and 82
EC [2003] OJ L1/1��310, 326, 344, 362
Art 9��354
Art 20��317, 324, 326
(4)��317, 322, 325
Art 27��353
Art 28��309, 311
Art 30��311
(2)��308
Regulation 261/2004 on compensation and assistance
to passengers [2004] OJ L46/1��232
Regulation 883/2004 on the coordination of social
security systems [2004] OJ L166/1��189–92, 197–201, 206–09
Art 70��192, 193
Regulation 2252/2004 on security features in passports
and travel documents [2004] OJ L385/1��246
Regulation 1924/2006 on nutrition and health claims
on foods [2006] OJ L404/9��231
Regulation 593/2008 Rome I [2008] OJ L177/6��181
Art 8(2)��181
Regulation 597/2009 on protection against subsidised
imports [2009] OJ L188/93��349

Table of Legislation xxxvii
Regulation 988/2009 amending Regulation 883/2004
[2009] OJ L284/43��192
recital 17a��192
Regulation 407/2010 European Financial Stabilisation
Mechanism Regulation [2010] OJ L118/1��175, 177
Art 3(3)��175
(5)��176
Regulation 492/2011 on freedom of movement for
workers [2011] OJ L141/1��190, 199, 202–04
Art 10��204
Regulation 604/2013 Dublin II [2013] OJ L180/31��34, 35
Regulation 734/2013 on rules for application of Art 93
of the Treaty [2013] OJ L204/15��343, 344, 346, 348,
350, 357, 362–64
recital 4��357
Art 6a(2)��360
(b)��359
Directives
Directive 77/388 Sixth VAT Directive [1977] OJ L145/1��104–07
Directive 95/46 Data Protection Directive [1995]
OJ L281/31��67, 237, 238, 257, 258,
263–65, 268–71, 276–79,
282, 287, 301, 302, 306–09
Art 1��263
(1)��306
Art 4��263
Art 6��264
Art 7��264
(a)��305
(f)��308
Art 8��67
(1)��264
Art 10��264
Art 12��264
Art 13(1)(d)��302
Art 28��264
(1)��270
Directive 96/71 Posted Workers Directive (PWD)
[1997] OJ L18/1��181, 182, 188
Art 3(1)��181, 182
(a)–(g)��181–83
(7)��182
(8)��181
(10)��182
Directive 98/43 on tobacco advertising [1998] OJ L213/9��255

xxxviii Table of Legislation
Directive 2000/31 E-Commerce Directive
[2000] OJ L187/1��66, 216, 242, 252, 258
Art 15(1)��242, 258
Directive 2000/78 on equal treatment in employment
[2000] OJ L303/16��186, 187
Preamble��187
recital 8��187
recital 9��187
recital 11��187
recital 25��187
Art 6��184, 185
Directive 2001/23 on employees’ rights in transfer
of undertakings [2001] OJ L82/16��142, 183, 232
Art 3(3)��183
Art 8��232
Directive 2001/29 Copyright Directive [2001] OJ L167/10��66
Directive 2002/58 E-Privacy Directive [2002]
OJ L201/37��123, 265, 302, 307, 308
Art 1(1)��307
(2)��307, 308, 319
Art 5(1)��307
Art 15(1)��308
Directive 2002/83 on life assurance [2002] OJ L345/1��68
Art 34��68
Directive 2003/109 on third-country nationals who
are long-term residents [2003] OJ L16/44��195
Preamble��195
recital 3��195
Directive 2004/38 Citizenship Directive [2004] OJ L158/77��203–05
Art 14(3)��190
Art 27(1)��146
Art 38(1)��203
Directive 2004/43 on race equality [2000] OJ L180/22��290
Directive 2004/48 Intellectual Property Enforcement
Directive [2004] OJ L157/45��66
Directive 2004/113 on gender equality in goods and
services [2004] OJ L373/37��14, 290
recital 4��145
Art 5(2)��145
Directive 2006/24 Data Retention Directive [2006]
OJ L105/5414��244–46, 265, 272–75,
279–81, 306–09
Art 1��266
(1)��275
(2)��309
Art 3��265
Art 4��266

Table of Legislation xxxix
Art 5��275
(1)��266
(2)��266
Art 6��266, 275
Directive 2006/112 VAT Directive [2006] OJ L347/1��160, 161, 164
Directive 2008/94 on protection of employees in event
of insolvency of employer [2008] OJ L283/37��98
Art 11��98
Directive 2009/136 Data Retention Directive [2009]
OJ L337/11��123, 124, 129, 146, 302
Directive 2010/13 Audiovisual Media Services Directive
(AMSD) [2010] OJ L95/1��243, 259
Art 15(6)��243
Directive 2014/23 on the award of concessions [2014] OJ L94/1
Art 3��290, 310
Directive 2014/24 on public procurement [2014] OJ L94/65
Art 18��290, 310
Directive 2014/25 on public procurement in utilities
[2014] OJ L94/243
Art 36��290, 310
Decisions
Framework Decision 2002/584 on the European Arrest
Warrant [2002] OJ L190/1��19
Framework Decision 2008/977 on protection of personal
data in police and judicial matters [2008] OJ L350/60��265, 287
Framework Decision 2009/299 European Arrest Warrant
Framework Decision [2009] OJ L81/24��19, 111, 113, 120
Art 4(1)(a)��111, 114
Implementing Decision 2011/344 granting EU financial
assistance to Portugal��176, 177
Art 1(4)��176
Art 3(5)��177
Austria
Constitution��259
Czech Republic
Competition Act
Art 3(1)��330
France
Commercial Code��335

xl Table of Legislation
Germany
Basic Law (Constitution)��86, 124, 259, 304
Art 1(1)��303
Art 19��292
(2)��142
(3)��292
Netherlands
Constitution��50
Portugal
Budget Law 2012��178
Art 21��178
Art 25��178
Budget Law 2013
Art 28��178
Art 29��178
Budget Law 2014
Art 33��179
(1)��179
Constitution��178
Art 282(4)��178
Lei do Orçamento do Estado para 2011��176–78
Ch III��176
Art 19��176
(1)��176
Lei do Orçamento do Estado para 2012��178
Romania
Constitution��124
Spain
Constitution��159
Sweden
Constitution��166
Ch 2, para 19��166
Freedom of the Press Act��160
United States
Bill of Rights��44
First Amendment��44
Fifth Amendment��40
Fourteenth Amendment��44

Introduction
Five Years Old and Growing:
The EU Charter of Fundamental Rights
as a Binding Instrument
SYBE DE VRIES, ULF BERNITZ AND STEPHEN WEATHERILL
I. INTRODUCTION
1
A. Background of the Book
W
HEN THE TREATY of Lisbon entered into force in 2009, it was
generally agreed that the protection of fundamental rights at the
EU level had reached a new and loftier summit. The respect for
human rights more deeply inscribed as a foundational value of the EU, the
Charter of Fundamental Rights elevated to formally binding status and the
EU’s intention to accede to the European Convention on Human Rights
(ECHR) are all important changes that suggest that the EU entered a new
stage in shaping its commitment to human rights protection. The binding
effect of the Charter in particular raised a host of new and intriguing ques-
tions. Would this transform the EU’s commitment to fundamental rights?
Should it transform that commitment? How, if at all, can we balance com-
peting rights and principles? The interaction of the social and the economic
spheres offers a particular challenge. How deeply does the EU conception
of fundamental rights reach into and bind national law and practice? How
deeply does it affect private parties? How much flexibility has been left to
the European Court of Jutice in making these interpretative choices? What
is the likely effect of another of the reforms achieved by the Lisbon Treaty:
the commitment of the EU to accede to the ECHR?
Our first book, The Protection of Fundamental Rights in the EU after
Lisbon, which was published in 2013 and was the result of a conference on
the Charter held in Oxford in 2011, examines these themes. Meanwhile,
the Charter’s prominence today is undisputed. Article 2 of the Treaty on
European Union (TEU) is foundational—‘The Union is founded on the values
1
We would like to especially thank Thom Wetzer, who as a research assistent at the Europa
Institute of Utrecht University wrote the conference report and assisted us in preparing the
publication of this book.

2 Sybe de Vries, Ulf Bernitz and Stephen Weatherill
of respect for human dignity, freedom, democracy, equality, the rule of law
and respect for human rights’—and the EU’s institutions are busy making
good this vision across the wide sweep of EU activity. As the Court boldly
put it in its landmark ruling in Fransson in February 2013: ‘The applicability
of EU law entails applicability of the fundamental rights guaranteed by the
Charter.’ The Charter looms large over everything the EU does—and over
what the Member States do too, insofar as they are ‘implementing’ EU law.
Some of the questions about the Charter’s role that we addressed in our
first book have been answered, although in the main only in part and not
always with compelling logic. Some have not been answered and some new
ones have emerged. Meanwhile, the legislative institutions of the EU have
been engaged in trying to weave the Charter into their practice, while the
Court too has been active. It has, for example, dealt with search engines and
created an EU ‘right to be forgotten’ via the Charter’s promise of privacy
(Case C-131/12 Google, judgment of 13 May 2014); it has annulled the
Data Retention Directive as an unduly deep and broad interference with pri-
vate life (Joined Cases C-293/12 and C-594/12 Digital Rights Ireland, judg-
ment of 8 April 2014); it has grappled with the notion of ‘ implementation’
for the purposes of subjecting Member States to the reach of the Char-
ter (Case C-206/13 Cruciano Siragusa, judgment of 6 March 2014; Case
C-198/13 Hernández et al, judgment of 10 July 2014); and it has main-
tained its insistence on the ‘supremacy’ of EU law over national law, even
though the Charter seemed to subvert that (Case C-399/11 Stefano Melloni,
judgment of 26 February 2013).
The active role of the Court in applying the EU Charter at least in a
number of cases seems to be in sharp contrast with the Court’s recent Opin-
ion on the Draft Accession Agreement concerning the EU’s accession to the
ECHR (Opinion 2/13), according to which the Agreement is contrary to EU
law. The special and autonomous legal order that the EU has created is the
running theme throughout the Opinion, which the Draft Accession Agree-
ment, according to the Court of Justice of the European Union (CJEU),
threatens to jeopardise. Opinion 2/13 may question the Court’s role as a
human rights court and whether fundamental rights are at the first point
of the Court’s agenda. Yet, at the same time, the approach of the CJEU to
the ECHR reinforces the importance of the Charter as the document that
‘enshrines the key political, social and economic rights of EU citizens and
residents in EU law’.
2
In this second book we discuss these and other issues in the light of the
rapid development of the Charter as arguably the very centrepiece of the EU
legal order, reinforced by the growing distance between the EU and the
ECHR.
2
S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights—
A Commentary (Oxford, Hart Publishing, 2014).

Five Years Old and Growing: Introduction 3
This book is the result of a follow-up conference held in Oxford in May
2014 under the auspices of the Institute of European and Comparative Law
and reflects on five years of life under the Charter—five years of remarkable
activity.
B. The Structure of the Book
The book consists of three parts. First, the constitutional dimension, in par-
ticular the relationship between the EU Charter, the ECHR and national
constitutions, is addressed. Second, the scope of application of EU funda-
mental rights is considered. Third, the safeguarding of fundamental rights
in Europe’s internal market is covered.
In chapter one, Allan Rosas makes a number of observations on the
trends in the case law of the ECJ since the Charter acquired binding force.
He touches upon the important role that the Charter has gained in the
Court’s case law, the application of other sources of fundamental rights
than the Charter, the application of the Charter at the national level and the
relationship between the Charter and national constitutions. According to
Rosas, the Court’s case law has contributed to the construction of the con-
stitutional structure of the EU. Furthermore, the status of the Charter as a
binding part of primary EU law further underlines the existence of the EU’s
constitutional and ‘federative’ order.
In chapter two, Sionaidh Douglas-Scott turns to the relationship between
the EU and the ECHR. She extensively reflects on the Court’s Opinion on
the Draft Accession Agreement, in which the CJEU holds that the agree-
ment is contrary to EU law. She also argues that Opinion 2/13 is a ‘robust
declaration of the autonomy of EU law’. Furthermore, she observes that the
Charter rather than the ECHR has become, at least in an increasing number
of cases, the main document of reference to human rights for the ECJ.
In chapter three, Janneke Gerards more specifically focuses on the
roles of the CJEU, the European Court of Human Rights (ECtHR) and
the national courts in deciding on fundamental rights in Europe and how
these roles can be coordinated. These courts seem equally capable of deal-
ing with fundamental rights. Although courts have limited possibilities in
choosing whether to address certain fundamental rights issues or not, they
have a choice, which makes it possible to determine which of the courts
should take the lead in deciding on fundamental rights issues. She suggests
to use the specific tasks or functions of the courts—the ‘raison d’etre’—as a
criterion to guide the courts in choosing which fundamental rights cases
they should take up.
Chapter four bears the intriguing title ‘Why National Courts Should Not
Embrace EU Fundamental Rights’. In this chapter Jan Komárek looks at the
role of the national constitutional courts in protecting fundamental rights

4 Sybe de Vries, Ulf Bernitz and Stephen Weatherill
and comes to the conclusion that they should not decide on EU fundamental
rights. The arguments he brings forward relate to the theory of law and
democracy, the separation of constitutional and ordinary adjudication, and
the fundamental difference between national and EU fundamental rights.
Chapter five, the last chapter of Part I, then addresses the interplay
between the Charter and the national constitutions after the cases of Åkeberg
Fransson and Melloni. In this chapter Clara Rauchegger argues that there
are two major challenges for the protection of fundamental rights in Europe,
which is first to ensure that the various fundamental rights catalogues inter-
act in a way that guarantees a complete and coherent system of protection
and, second, that the marginalisation of the national fundamental rights by
the Charter should be avoided. Among other things, she calls for a greater
role for Article 4(2) TEU to safeguard the national constitutional identity of
the Member States and a constructive dialogue between the CJEU and the
national constitutional courts.
Part II of this book focuses on the scope of application of fundamental
rights, both from a more general perspective (in relation to Member States)
and from a specific perspective (in relation to fundamental social rights).
Chapter six, the first chapter in this part, by Xavier Groussot and Gunnar
Thor Petursson addresses the question whether fundamental rights subse-
quent to the EU Charter are having an impact on the scope and nature of
EU law and thus are bringing about a new constitutional framework. Their
chapter focuses on Article 52(1) of the Charter and whether it constitutes a
new analytical framework for assessing both EU and national measures in
the light of the Charter. Furthermore, they look at the scope of application
of the Charter and at an increasing number of cases where the Charter is
not or hardly mentioned, but, according to them, should be mentioned. All
these questions relate to an emerging constitutional framework in EU law.
Chapter seven specifically focuses on the implications of the Åkerberg
Fransson case in Sweden and beyond. In this chapter Ulf Bernitz explains
how the Court took a relatively broad, if not yet precisely defined, approach
to the circumstances in which the Charter exercises control over national
practices. He also reveals that the Court’s apparent concern in Åkerberg
Fransson to avoid connecting its interpretation of the Charter with the rel-
evant case law of the ECtHR is not in reality the full story. In fact, Charter
rules reinforce ECHR rules where EU law is in play. This is likely to prove a
dynamic process. In the end, Bernitz also draws attention to the subsequent
national application of the judgment and highlights the far-reaching effects
on the case law of the Swedish Supreme Court.
In chapter eight, Catherine Barnard turns to the scope of application of
the Charter with regard to social rights. The captivating title of the chapter,
‘The Silence of the Charter’, relates to three contrasting situations in the
case law of the CJEU, which Barnard further elaborates upon in her chapter
and which reveal the ambivalent attitude of the CJEU towards social rights.

Five Years Old and Growing: Introduction 5
She distinguishes between the situations where the CJEU does not but
should have dealt with the Charter, situations where it does not and should
not have dealt with the Charter and finally situations where it does but
should not have dealt with the Charter. She refers to these situations as a
vow of silence, a welcome silence and a plea for silence.
In chapter nine, the last chapter that relates to the scope of the Charter,
Jaan Paju focuses on national social security systems and how the EU Char-
ter challenges prevailing notions of territorial rights and solidarity. He argues
that it is not so much the Charter in itself that informs national social secu-
rity systems, but rather the internal market through which competences at
the EU level are gradually expanded. In addition, it is questionable whether
the Charter will lead to a substantial expansion of a right to social security.
The third and last part of this book deals with the relationship between
fundamental rights and the EU single market. Various themes are dis-
cussed, such as the interaction between free movement and fundamental
rights, and competition and fundamental rights. But also the interaction
between EU (internal market) legislation and fundamental rights is ana-
lysed. Chapter ten, the first chapter in this part, by Stephen Weatherill is on
‘protecting the internal market from fundamental rights’. Weatherill claims
that the Charter’s softening effects on internal market law are very limited,
as internal market law itself has already long provided for sufficient safe-
guards for the protection of public interests and national values. He fur-
thermore submits that the Charter should not be used to upset the existing
balance between the internal market and public interests; so, for example,
he opposes the use of the economic rights of the Charter as a means to
strengthen the market dimension at the cost of social protection.
In chapter eleven, Sybe de Vries further embroiders on the interaction
between free movement and the Charter. To provide for a deeper under-
standing of this relationship, two tracks are followed: first, how funda-
mental rights may affect the internal market freedoms in the context of
free movement and EU legislation; and, second, how the internal market
freedoms may affect fundamental rights in the context of free movement
and EU legislation. The discussion in this chapter is first approached from
a more general angle and then turns to the fields of data protection and
privacy, which offer an interesting example of how fundamental rights may
become entangled with EU single market law, as a case study.
In chapter twelve, Federico Fabbrini then focuses on the right to data pri-
vacy and how the CJEU in this field has taken up the role as a human rights
court. Fabbrini shows how in the field of data privacy in particular, the
Charter has contributed to the constitutionalisation of the CJEU. But there
are also challenges for the Court, which specifically relate to the relation-
ship between the right to data privacy and other fundamental rights like
the freedom of speech, the right to information or the freedom to conduct
a business.

6 Sybe de Vries, Ulf Bernitz and Stephen Weatherill
Whereas the foregoing chapter more generally discusses data privacy and
the role of the CJEU, chapter thirteen by Peter Oliver analyses the rights of
economic actors in the fields of privacy and data protection. It is generally
assumed that there exists an ambivalent relationship between fundamental
rights and companies: companies tend to enjoy more limited fundamen-
tal rights than natural persons or non-profit entities. Meanwhile, there is
a wealth of case law on the fundamental rights of economic actors, also in
the fields of privacy and data protection. This case law clarifies the extent
to which natural persons acting in a professional or economic capacity and
legal persons enjoy more or limited protection under the rights to privacy
and data protection as enshrined in Articles 7 and 8 of the Charter.
The book is concluded by two chapters on fundamental rights and compe-
tition law written by Helene Andersson and John Temple Lang, respectively.
In chapter fourteen, Andersson focuses on the European Commission’s prac-
tices in relation to dawn raids and the judicial review of such practices. She
analyses whether the procedural safeguards surrounding the Commission’s
dawn raid procedures meet the Charter standards. There are an increasing
number of competition cases where the Charter has been applied, particu-
larly in relation to Article 7 on the right to privacy and Article 47 on the
right to effective judicial protection. Andersson is rather critical as the EU
competition system in place today does not even seem to meet the minimum
standard of the ECHR, which means that a revision is required in order for
the system to meet the Charter standards.
In chapter fifteen, John Temple Lang then addresses the question of how
the Charter must be applied in EU state aid cases. The fact that the rights of
companies and of interested parties in the field of EU state aid procedure are
so limited means that there cannot be an effective remedy in the light of the
Charter and particularly Article 47. Although the state aid procedure has
been reformed, a process that according to Temple Lang has taken too long
a time, there are still many issues that, from the perspective of the Charter,
require close attention.
C. Fundamental Rights Still at the Heart of EU Law?
In the introduction of our first book, it was written that EU fundamental
rights protection does not end with this book. The first book was just the
beginning.
In this book, the quest for the position and role of fundamental rights in
the EU’s constitutional fabric continues. Again, the authors come up with
interesting ideas about how EU law can more fully embrace fundamental
rights and again they raise new and captivating questions relating to the
three main themes of the book.

Five Years Old and Growing: Introduction 7
After five years of a legally binding Charter more well-founded conclusions
can be drawn. For instance, in at least quite a few cases, the Charter has
become the main document of reference for EU fundamental rights protec-
tion; it has not been used so far to undermine the existing division of com-
petences between the EU and the Member States, and the Court, as shown
by Opinion 2/13, is still very (too?) much concerned with the EU’s special
and autonomous legal order, which should be preserved at all costs and
must not be undermined by the EU acceding to the ECHR without taking
adequate account of the need to preserve the special characteristics of the
EU legal order.
The EU’s constitutional framework still has its limits. The five years of
binding EU Charter has not changed that. But human rights feature more
and more prominently in the constitutional self-understanding of the EU.
For a number of fundamental rights, we see that the Court increasingly
takes up the role of a human rights court, particularly in the fields of pri-
vacy and data protection. For other fundamental rights, most notably social
rights, we see that the Court takes a much more restrained approach, ham-
pered by the limited constitutional framework—the limited competences of
the EU in this field—and the politically sensitive nature of social policy.
Opinion 2/13 implies that the claim of the EU as a human rights organisa-
tion may be more untenable than ever before,
3
but it makes clear that the
EU is now thrown back to its own human rights agenda, which will only
strengthen the already dominant role of the EU Charter. The story of the
Charter that began five years ago has certainly not come to an end …
3
P Craig and G de Búrca (eds), The Evolution of EU Law (2nd edn, Oxford, Oxford
University Press, 2011) 495. See also S Peers, ‘The EU’s Acession to the ECHR: The Dream
Becomes a Nightmare’ (2015) 16 German Law Journal 213.

8

Part I
The Constitutional Dimension
of Fundamental Rights

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to become hereditary. The beast of prey does not think the motionless bird,
insect, or crustacean dead. He simply fails to notice them at all; because his
senses, like ours, are much more strongly excited by a moving object than
by a still one. It is the same instinct which leads a boy playing 'I spy' to hold
his very breath when the seeker is near, and which makes the beast of prey
himself in many cases motionlessly lie in wait for his victim or silently
'stalk' it, by stealthy advances alternated with periods of immobility. It is the
opposite of the instinct which makes us jump up and down and move our
arms when we wish to attract the notice of someone passing far away, and
makes the shipwrecked sailor upon the raft where he is floating frantically
wave a cloth when a distant sail appears. Now, may not the statue-like,
crouching immobility of some melancholiacs, insane with general anxiety
and fear of everything, be in some way connected with this old instinct?
They can give no reason for their fear to move; but immobility makes them
feel safer and more comfortable. Is not this the mental state of the 'feigning'
animal?
Again, take the strange symptom which has been described of late years
by the rather absurd name of agoraphobia. The patient is seized with
palpitation and terror at the sight of any open place or broad street which he
has to cross alone. He trembles, his knees bend, he may even faint at the
idea. Where he has sufficient self-command he sometimes accomplishes the
object by keeping safe under the lee of a vehicle going across, or joining
himself to a knot of other people. But usually he slinks round the sides of
the square, hugging the houses as closely as he can. This emotion has no
utility in a civilized man, but when we notice the chronic agoraphobia of
our domestic cats, and see the tenacious way in which many wild animals,
especially rodents, cling to cover, and only venture on a dash across the
open as a desperate measure—even then making for every stone or bunch
of weeds which may give a momentary shelter—when we see this we are

strongly tempted to ask whether such an odd kind of fear in us be not due to
the accidental resurrection, through disease, of a sort of instinct which may
in some of our remote ancestors have had a permanent and on the whole a
useful part to play?

CHAPTER XXVI.
WILL.
Voluntary Acts.—Desire, wish, will, are states of mind which everyone
knows, and which no definition can make plainer. We desire to feel, to have,
to do, all sorts of things which at the moment are not felt, had, or done. If
with the desire there goes a sense that attainment is not possible, we simply
wish; but if we believe that the end is in our power, we will that the desired
feeling, having, or doing shall be real; and real it presently becomes, either
immediately upon the willing or after certain preliminaries have been
fulfilled.
The only ends which follow immediately upon our willing seem to be
movements of our own bodies. Whatever feelings and havings we may will
to get come in as results of preliminary movements which we make for the
purpose. This fact is too familiar to need illustration; so that we may start
with the proposition that the only direct outward effects of our will are
bodily movements. The mechanism of production of these voluntary
movements is what befalls us to study now.
They are secondary performances. The movements we have studied
hitherto have been automatic and reflex, and (on the first occasion of their
performance, at any rate) unforeseen by the agent. The movements to the
study of which we now address ourselves, being desired and intended
beforehand, are of course done with full prevision of what they are to be. It
follows from this that voluntary movements must be secondary, not primary,
functions of our organism. This is the first point to understand in the
psychology of Volition. Reflex, instinctive, and emotional movements are
all primary performances. The nerve-centres are so organized that certain
stimuli pull the trigger of certain explosive parts; and a creature going
through one of these explosions for the first time undergoes an entirely
novel experience. The other day I was standing at a railroad station with a
little child, when an express-train went thundering by. The child, who was
near the edge of the platform, started, winked, had his breathing convulsed,
turned pale, burst out crying, and ran frantically towards me and hid his

face. I have no doubt that this youngster was almost as much astonished by
his own behavior as he was by the train, and more than I was, who stood by.
Of course if such a reaction has many times occurred we learn what to
expect of ourselves, and can then foresee our conduct, even though it
remain as involuntary and uncontrollable as it was before. But if, in
voluntary action properly so called, the act must be foreseen, it follows that
no creature not endowed with prophetic power can perform an act
voluntarily for the first time. Well, we are no more endowed with prophetic
vision of what movements lie in our power than we are endowed with
prophetic vision of what sensations we are capable of receiving. As we must
wait for the sensations to be given us, so we must wait for the movements
to be performed involuntarily, before we can frame ideas of what either of
these things are. We learn all our possibilities by the way of experience.
When a particular movement, having once occurred in a random, reflex, or
involuntary way, has left an image of itself in the memory, then the
movement can be desired again, and deliberately willed. But it is impossible
to see how it could be willed before.
A supply of ideas of the various movements that are possible, left in the
memory by experiences of their involuntary performance, is thus the first
prerequisite of the voluntary life.
Two Kinds of Ideas of Movement.—Now these ideas may be either
resident or remote. That is, they may be of the movement as it feels, when
taking place, in the moving parts; or they may be of the movement as it
feels in some other part of the body which it affects (strokes, presses,
scratches, etc.), or as it sounds, or as it looks. The resident sensations in the
parts that move have been called kinæsthetic feelings, the memories of them
are kinæsthetic ideas. It is by these kinæsthetic sensations that we are made
conscious of passive movements—movements communicated to our limbs
by others. If you lie with closed eyes, and another person noiselessly places
your arm or leg in any arbitrarily chosen attitude, you receive a feeling of
what attitude it is, and can reproduce it yourself in the arm or leg of the
opposite side. Similarly a man waked suddenly from sleep in the dark is
aware of how he finds himself lying. At least this is what happens in normal
cases. But when the feelings of passive movement as well as all the other
feelings of a limb are lost, we get such results as are given in the following
account by Prof. A. Strümpell of his wonderful anæsthetic boy, whose only
sources of feeling were the right eye and the left ear:
[53]

"Passive movements could be imprinted on all the extremities to the
greatest extent, without attracting the patient's notice. Only in violent forced
hyperextension of the joints, especially of the knees, there arose a dull
vague feeling of strain, but this was seldom precisely localized. We have
often, after bandaging the eyes of the patient, carried him about the room,
laid him on a table, given to his arms and legs the most fantastic and
apparently the most inconvenient attitudes without his having a suspicion of
it. The expression of astonishment in his face, when all at once the removal
of the handkerchief revealed his situation, is indescribable in words. Only
when his head was made to hang away down he immediately spoke of
dizziness, but could not assign its ground. Later he sometimes inferred from
the sounds connected with the manipulation that something special was
being done with him.... He had no feelings of muscular fatigue. If, with his
eyes shut, we told him to raise his arm and to keep it up, he did so without
trouble. After one or two minutes, however, the arm began to tremble and
sink without his being aware of it. He asserted still his ability to keep it
up.... Passively holding still his fingers did not affect him. He thought
constantly that he opened and shut his hand, whereas it was really fixed."
No third kind of idea is called for. We need, then, when we perform a
movement, either a kinæsthetic or a remote idea of which special movement
it is to be. In addition to this it has often been supposed that we need an
idea of the amount of innervation required for the muscular contraction. The
discharge from the motor centre into the motor nerve is supposed to give a
sensation sui generis, opposed to all our other sensations. These accompany
incoming currents, whilst that, it is said, accompanies an outgoing current,
and no movement is supposed to be totally defined in our mind, unless an
anticipation of this feeling enter into our idea. The movement's degree of
strength, and the effort required to perform it, are supposed to be specially
revealed by the feeling of innervation. Many authors deny that this feeling
exists, and the proofs given of its existence are certainly insufficient.
The various degrees of 'effort' actually felt in making the same
movement against different resistances are all accounted for by the
incoming feelings from our chest, jaws, abdomen, and other parts
sympathetically contracted whenever the effort is great. There is no need of
a consciousness of the amount of outgoing current required. If anything be
obvious to introspection, it is that the degree of strength put forth is
completely revealed to us by incoming feelings from the muscles

themselves and their insertions, from the vicinity of the joints, and from the
general fixation of the larynx, chest, face, and body. When a certain degree
of energy of contraction rather than another is thought of by us, this
complex aggregate of afferent feelings, forming the material of our thought,
renders absolutely precise and distinctive our mental image of the exact
strength of movement to be made, and the exact amount of resistance to be
overcome.
Let the reader try to direct his will towards a particular movement, and
then notice what constituted the direction of the will. Was it anything over
and above the notion of the different feelings to which the movement when
effected would give rise? If we abstract from these feelings, will any sign,
principle, or means of orientation be left by which the will may innervate
the proper muscles with the right intensity, and not go astray into the wrong
ones? Strip off these images anticipative of the results of the motion, and so
far from leaving us with a complete assortment of directions into which our
will may launch itself, you leave our consciousness in an absolute and total
vacuum. If I will to write Peter rather than Paul, it is the thought of certain
digital sensations, of certain alphabetic sounds, of certain appearances on
the paper, and of no others, which immediately precedes the motion of my
pen. If I will to utter the word Paul rather than Peter, it is the thought of my
voice falling on my ear, and of certain muscular feelings in my tongue, lips,
and larynx, which guide the utterance. All these are incoming feelings, and
between the thought of them, by which the act is mentally specified with all
possible completeness, and the act itself, there is no room for any third
order of mental phenomenon.
There is indeed the fiat, the element of consent, or resolve that the act
shall ensue. This, doubtless, to the reader's mind, as to my own, constitutes
the essence of the voluntariness of the act. This fiat will be treated of in
detail farther on. It may be entirely neglected here, for it is a constant
coefficient, affecting all voluntary actions alike, and incapable of serving to
distinguish them. No one will pretend that its quality varies according as the
right arm, for example, or the left is used.
An anticipatory image, then, of the sensorial consequences of a
movement, plus (on certain occasions) the fiat that these consequences shall
become actual, is the only psychic state which introspection lets us discern
as the forerunner of our voluntary acts. There is no coercive evidence of
any feeling attached to the efferent discharge.

The entire content and material of our consciousness—consciousness of
movement, as of all things else—seems thus to be of peripheral origin, and
to come to us in the first instance through the peripheral nerves.
The Motor-cue.—Let us call the last idea which in the mind precedes the
motor discharge the 'motor-cue.' Now do 'resident' images form the only
motor-cue, or will 'remote' ones equally suffice?
There can be no doubt whatever that the cue may be an image either of
the resident or of the remote kind. Although, at the outset of our learning a
movement, it would seem that the resident feelings must come strongly
before consciousness, later this need not be the case. The rule, in fact,
would seem to be that they tend to lapse more and more from
consciousness, and that the more practised we become in a movement, the
more 'remote' do the ideas become which form its mental cue. What we are
interested in is what sticks in our consciousness; everything else we get rid
of as quickly as we can. Our resident feelings of movement have no
substantive interest for us at all, as a rule. What interest us are the ends
which the movement is to attain. Such an end is generally a remote
sensation, an impression which the movement produces on the eye or ear, or
sometimes on the skin, nose, or palate. Now let the idea of such an end
associate itself definitely with the right discharge, and the thought of the
innervation's resident effects will become as great an encumbrance as we
have already concluded that the feeling of the innervation itself is. The
mind does not need it; the end alone is enough.
The idea of the end, then, tends more and more to make itself all-
sufficient. Or, at any rate, if the kinæsthetic ideas are called up at all, they
are so swamped in the vivid kinæsthetic feelings by which they are
immediately overtaken that we have no time to be aware of their separate
existence. As I write, I have no anticipation, as a thing distinct from my
sensation, of either the look or the digital feel of the letters which flow from
my pen. The words chime on my mental ear, as it were, before I write them,
but not on my mental eye or hand. This comes from the rapidity with which
the movements follow on their mental cue. An end consented to as soon as
conceived innervates directly the centre of the first movement of the chain
which leads to its accomplishment, and then the whole chain rattles off
quasi-reflexly, as was described on p 115-6

The reader will certainly recognize this to be true in all fluent and
unhesitating voluntary acts. The only special fiat there is at the outset of the
performance. A man says to himself, "I must change my clothes," and
involuntarily he has taken off his coat, and his fingers are at work in their
accustomed manner on his waistcoat-buttons, etc.; or we say, "I must go
downstairs," and ere we know it we have risen, walked, and turned the
handle of the door;—all through the idea of an end coupled with a series of
guiding sensations which successively arise. It would seem indeed that we
fail of accuracy and certainty in our attainment of the end whenever we are
preoccupied with the way in which the movement will feel. We walk a
beam the better the less we think of the position of our feet upon it. We
pitch or catch, we shoot or chop the better the less tactile and muscular (the
less resident), and the more exclusively optical (the more remote), our
consciousness is. Keep your eye on the place aimed at, and your hand will
fetch it; think of your hand, and you will very likely miss your aim. Dr.
Southard found that he could touch a spot with a pencil-point more
accurately with a visual than with a tactile mental cue. In the former case he
looked at a small object and closed his eyes before trying to touch it. In the
latter case he placed it with closed eyes, and then after removing his hand
tried to touch it again. The average error with touch (when the results were
most favorable) was 17.13 mm. With sight it was only 12.37 mm.—All
these are plain results of introspection and observation. By what neural
machinery they are made possible we do not know.
In Chapter XIX we saw how enormously individuals differ in respect to
their mental imagery. In the type of imagination called tactile by the French
authors, it is probable that the kinæsthetic ideas are more prominent than in
my account. We must not expect too great a uniformity in individual
accounts, nor wrangle overmuch as to which one 'truly' represents the
process.
I trust that I have now made clear what that 'idea of a movement' is
which must precede it in order that it be voluntary. It is not the thought of
the innervation which the movement requires. It is the anticipation of the
movement's sensible effects, resident or remote, and sometimes very remote
indeed. Such anticipations, to say the least, determine what our movements
shall be. I have spoken all along as if they also might determine that they
shall be. This, no doubt, has disconcerted many readers, for it certainly
seems as if a special fiat, or consent to the movement, were required in

addition to the mere conception of it, in many cases of volition; and this fiat
I have altogether left out of my account. This leads us to the next point in
our discussion.
Ideo-motor Action.—The question is this: Is the bare idea of a
movement's sensible effects its sufficient motor-cue, or must there be an
additional mental antecedent, in the shape of a fiat, decision, consent,
volitional mandate, or other synonymous phenomenon of consciousness,
before the movement can follow?
I answer: Sometimes the bare idea is sufficient, but sometimes an
additional conscious element, in the shape of a fiat, mandate, or express
consent, has to intervene and precede the movement. The cases without a
fiat constitute the more fundamental, because the more simple, variety. The
others involve a special complication, which must be fully discussed at the
proper time. For the present let us turn to ideo-motor action, as it has been
termed, or the sequence of movement upon the mere thought of it, without a
special fiat, as the type of the process of volition.
Wherever a movement unhesitatingly and immediately follows upon the
idea of it, we have ideo-motor action. We are then aware of nothing
between the conception and the execution. All sorts of neuro-muscular
processes come between, of course, but we know absolutely nothing of
them. We think the act, and it is done; and that is all that introspection tells
us of the matter. Dr. Carpenter, who first used, I believe, the name of ideo-
motor action, placed it, if I mistake not, among the curiosities of our mental
life. The truth is that it is no curiosity, but simply the normal process
stripped of disguise. Whilst talking I become conscious of a pin on the
floor, or of some dust on my sleeve. Without interrupting the conversation I
brush away the dust or pick up the pin. I make no express resolve, but the
mere perception of the object and the fleeting notion of the act seem of
themselves to bring the latter about. Similarly, I sit at table after dinner and
find myself from time to time taking nuts or raisins out of the dish and
eating them. My dinner properly is over, and in the heat of the conversation
I am hardly aware of what I do; but the perception of the fruit, and the
fleeting notion that I may eat it, seem fatally to bring the act about. There is
certainly no express fiat here; any more than there is in all those habitual
goings and comings and rearrangements of ourselves which fill every hour
of the day, and which incoming sensations instigate so immediately that it is

often difficult to decide whether not to call them reflex rather than
voluntary acts. As Lotze says:
"We see in writing or piano-playing a great number of very complicated
movements following quickly one upon the other, the instigative
representations of which remained scarcely a second in consciousness,
certainly not long enough to awaken any other volition than the general one
of resigning one's self without reserve to the passing over of representation
into action. All the acts of our daily life happen in this wise: Our standing
up, walking, talking, all this never demands a distinct impulse of the will,
but is adequately brought about by the pure flux of thought."
[54]
In all this the determining condition of the unhesitating and resistless
sequence of the act seems to be the absence of any conflicting notion in the
mind. Either there is nothing else at all in the mind, or what is there does
not conflict. We know what it is to get out of bed on a freezing morning in a
room without a fire, and how the very vital principle within us protests
against the ordeal. Probably most persons have lain on certain mornings for
an hour at a time unable to brace themselves to the resolve. We think how
late we shall be, how the duties of the day will suffer; we say, "I must get
up, this is ignominious," etc.; but still the warm couch feels too delicious,
the cold outside too cruel, and resolutions faints away and postpones itself
again and again just as it seemed on the verge of bursting the resistance and
passing over into the decisive act. Now how do we ever get up under such
circumstances? If I may generalize from my own experience, we more often
than not get up without any struggle or decision at all. We suddenly find
that we have got up. A fortunate lapse of consciousness occurs; we forget
both the warmth and the cold; we fall into some revery connected with the
day's life, in the course of which the idea flashes across us, "Hollo! I must
lie here no longer"—an idea which at that lucky instant awakens no
contradictory or paralyzing suggestions, and consequently produces
immediately its appropriate motor effects. It was our acute consciousness of
both the warmth and the cold during the period of struggle, which paralyzed
our activity then and kept our idea of rising in the condition of wish and not
of will. The moment these inhibitory ideas ceased, the original idea exerted
its effects.
This case seems to me to contain in miniature form the data for an entire
psychology of volition. It was in fact through meditating on the

phenomenon in my own person that I first became convinced of the truth of
the doctrine which these pages present, and which I need here illustrate by
no farther examples. The reason why that doctrine is not a self-evident truth
is that we have so many ideas which do not result in action. But it will be
seen that in every such case, without exception, that is because other ideas
simultaneously present rob them of their impulsive power. But even here,
and when a movement is inhibited from completely taking place by contrary
ideas, it will incipiently take place. To quote Lotze once more:
"The spectator accompanies the throwing of a billiard-ball, or the thrust
of the swordsman, with slight movements of his arm; the untaught narrator
tells his story with many gesticulations; the reader while absorbed in the
perusal of a battle-scene feels a slight tension run through his muscular
system, keeping time as it were with the actions he is reading of. These
results become the more marked the more we are absorbed in thinking of
the movements which suggest them; they grow fainter exactly in proportion
as a complex consciousness, under the dominion of a crowd of other
representations, withstands the passing over of mental contemplation into
outward action."
The 'willing-game,' the exhibitions of so-called 'mind-reading,' or more
properly muscle-reading, which have lately grown so fashionable, are based
on this incipient obedience of muscular contraction to idea, even when the
deliberate intention is that no contraction shall occur.
We may then lay it down for certain that every representation of a
movement awakens in some degree the actual movement which is its object;
and awakens it in a maximum degree whenever it is not kept from so doing
by an antagonistic representation present simultaneously to the mind.
The express fiat, or act of mental consent to the movement, comes in
when the neutralization of the antagonistic and inhibitory idea is required.
But that there is no express fiat needed when the conditions are simple, the
reader ought now to be convinced. Lest, however, he should still share the
common prejudice that voluntary action without 'exertion of will-power' is
Hamlet with the prince's part left out, I will make a few farther remarks.
The first point to start from, in understanding voluntary action and the
possible occurrence of it with no fiat or express resolve, is the fact that
consciousness is in its very nature impulsive. We do not first have a
sensation or thought, and then have to add something dynamic to it to get a

movement. Every pulse of feeling which we have is the correlate of some
neural activity that is already on its way to instigate a movement. Our
sensations and thoughts are but cross-sections, as it were, of currents whose
essential consequence is motion, and which have no sooner run in at one
nerve than they are ready to run out by another. The popular notion that
consciousness is not essentially a forerunner of activity, but that the latter
must result from some superadded 'will-force,' is a very natural inference
from those special cases in which we think of an act for an indefinite length
of time without the action taking place. These cases, however, are not the
norm; they are cases of inhibition by antagonistic thoughts. When the
blocking is released we feel as if an inward spring were let loose, and this is
the additional impulse or fiat upon which the act effectively succeeds. We
shall study anon the blocking and its release. Our higher thought is full of it.
But where there is no blocking, there is naturally no hiatus between the
thought-process and the motor discharge. Movement is the natural
immediate effect of the process of feeling, irrespective of what the quality of
the feeling may be. It is so in reflex action, it is so in emotional expression,
it is so in the voluntary life. Ideo-motor action is thus no paradox, to be
softened or explained away. It obeys the type of all conscious action, and
from it one must start to explain the sort of action in which a special fiat is
involved.
It may be remarked in passing, that the inhibition of a movement no
more involves an express effort or command than its execution does. Either
of them may require it. But in all simple and ordinary cases, just as the bare
presence of one idea prompts a movement, so the bare presence of another
idea will prevent its taking place. Try to feel as if you were crooking your
finger, whilst keeping it straight. In a minute it will fairly tingle with the
imaginary change of position; yet it will not sensibly move, because its not
really moving is also a part of what you have in mind. Drop this idea, think
purely and simply of the movement, and nothing else, and, presto! it takes
place with no effort at all.
A waking man's behavior is thus at all times the resultant of two
opposing neural forces. With unimaginable fineness some currents among
the cells and fibres of his brain are playing on his motor nerves, whilst other
currents, as unimaginably fine, are playing on the first currents, damming or
helping them, altering their direction or their speed. The upshot of it all is,
that whilst the currents must always end by being drained off through some

motor nerves, they are drained off sometimes through one set and
sometimes through another; and sometimes they keep each other in
equilibrium so long that a superficial observer may think they are not
drained off at all. Such an observer must remember, however, that from the
physiological point of view a gesture, an expression of the brow, or an
expulsion of the breath are movements as much as an act of locomotion is.
A king's breath slays as well as an assassin's blow; and the outpouring of
those currents which the magic imponderable streaming of our ideas
accompanies need not always be of an explosive or otherwise physically
conspicuous kind.
Action after Deliberation.—We are now in a position to describe what
happens in deliberate action, or when the mind has many objects before it,
related to each other in antagonistic or in favorable ways. One of these
objects of its thought may be an act. By itself this would prompt a
movement; some of the additional objects or considerations, however, block
the motor discharge, whilst others, on the contrary, solicit it to take place.
The result is that peculiar feeling of inward unrest known as indecision.
Fortunately it is too familiar to need description, for to describe it would be
impossible. As long as it lasts, with the various objects before the attention,
we are said to deliberate; and when finally the original suggestion either
prevails and makes the movement take place, or gets definitively quenched
by its antagonists, we are said to decide, or to utter our voluntary fiat, in
favor of one or the other course. The reinforcing and inhibiting objects
meanwhile are termed the reasons or motives by which the decision is
brought about.
The process of deliberation contains endless degrees of complication. At
every moment of it our consciousness is of an extremely complex thing,
namely, the whole set of motives and their conflict. Of this complicated
object, the totality of which is realized more or less dimly all the while by
consciousness, certain parts stand out more or less sharply at one moment in
the foreground, and at another moment other parts, in consequence of the
oscillations of our attention, and of the 'associative' flow of our ideas. But
no matter how sharp the foreground-reasons may be, or how imminently
close to bursting through the dam and carrying the motor consequences
their own way, the background, however dimly felt, is always there as a
fringe (p. 163); and its presence (so long as the indecision actually lasts)
serves as an effective check upon the irrevocable discharge. The

deliberation may last for weeks or months, occupying at intervals the mind.
The motives which yesterday seemed full of urgency and blood and life to-
day feel strangely weak and pale and dead. But as little to-day as to-morrow
is the question finally resolved. Something tells us that all this is
provisional; that the weakened reasons will wax strong again, and the
stronger weaken; that equilibrium is unreached; that testing our reasons, not
obeying them, is still the order of the day, and that we must wait awhile,
patiently or impatiently, until our mind is made up 'for good and all.' This
inclining first to one, then to another future, both of which we represent as
possible, resembles the oscillations to and fro of a material body within the
limits of its elasticity. There is inward strain, but no outward rupture. And
this condition, plainly enough, is susceptible of indefinite continuance, as
well in the physical mass as in the mind. If the elasticity give way, however,
if the dam ever do break, and the currents burst the crust, vacillation is over
and decision is irrevocably there.
The decision may come in either of many modes. I will try briefly to
sketch the most characteristic types of it, merely warning the reader that this
is only an introspective account of symptoms and phenomena, and that all
questions of causal agency, whether neural or spiritual, are relegated to a
later page.
Five Chief Types of Decision.—Turning now to the form of the decision
itself, we may distinguish five chief types. The first may be called the
reasonable type. It is that of those cases in which the arguments for and
against a given course seem gradually and almost insensibly to settle
themselves in the mind and to end by leaving a clear balance in favor of one
alternative, which alternative we then adopt without effort or constraint.
Until this rational balancing of the books is consummated we have a calm
feeling that the evidence is not yet all in, and this keeps action in suspense.
But some day we wake with the sense that we see the matter rightly, that no
new light will be thrown on it by farther delay, and that it had better be
settled now. In this easy transition from doubt to assurance we seem to
ourselves almost passive; the 'reasons' which decide us appearing to flow in
from the nature of things, and to owe nothing to our will. We have,
however, a perfect sense of being free, in that we are devoid of any feeling
of coercion. The conclusive reason for the decision in these cases usually is
the discovery that we can refer the case to a class upon which we are
accustomed to act unhesitatingly in a certain stereotyped way. It may be

said in general that a great part of every deliberation consists in the turning
over of all the possible modes of conceiving the doing or not doing of the
act in point. The moment we hit upon a conception which lets us apply
some principle of action which is a fixed and stable part of our Ego, our
state of doubt is at an end. Persons of authority, who have to make many
decisions in the day, carry with them a set of heads of classification, each
bearing its volitional consequence, and under these they seek as far as
possible to range each new emergency as it occurs. It is where the
emergency belongs to a species without precedent, to which consequently
no cut-and-dried maxim will apply, that we feel most at a loss, and are
distressed at the indeterminateness of our task. As soon, however, as we see
our way to a familiar classification, we are at ease again. In action as in
reasoning, then, the great thing is the quest of the right conception. The
concrete dilemmas do not come to us with labels gummed upon their backs.
We may name them by many names. The wise man is he who succeeds in
finding the name which suits the needs of the particular occasion best (p.
357 ff.). A 'reasonable' character is one who has a store of stable and worthy
ends, and who does not decide about an action till he has calmly ascertained
whether it be ministerial or detrimental to any one of these.
In the next two types of decision, the final fiat occurs before the
evidence is all 'in.' It often happens that no paramount and authoritative
reason for either course will come. Either seems a good, and there is no
umpire to decide which should yield its place to the other. We grow tired of
long hesitation and inconclusiveness, and the hour may come when we feel
that even a bad decision is better than no decision at all. Under these
conditions it will often happen that some accidental circumstance,
supervening at a particular movement upon our mental weariness, will upset
the balance in the direction of one of the alternatives, to which then we feel
ourselves committed, although an opposite accident at the same time might
have produced the opposite result.
In the second type our feeling is to a great extent that of letting ourselves
drift with a certain indifferent acquiescence in a direction accidentally
determined from without, with the conviction that, after all, we might as
well stand by this course as by the other, and that things are in any event
sure to turn out sufficiently right.
In the third type the determination seems equally accidental, but it comes
from within, and not from without. It often happens, when the absence of

imperative principle is perplexing and suspense distracting, that we find
ourselves acting, as it were, automatically, and as if by a spontaneous
discharge of our nerves, in the direction of one of the horns of the dilemma.
But so exciting is this sense of motion after our intolerable pent-up state
that we eagerly throw ourselves into it. 'Forward now!' we inwardly cry,
'though the heavens fall.' This reckless and exultant espousal of an energy
so little premeditated by us that we feel rather like passive spectators
cheering on the display of some extraneous force than like voluntary agents
is a type of decision too abrupt and tumultuous to occur often in humdrum
and cool-blooded natures. But it is probably frequent in persons of strong
emotional endowment and unstable or vacillating character. And in men of
the world-shaking type, the Napoleons, Luthers, etc., in whom tenacious
passion combines with ebullient activity, when by any chance the passion's
outlet has been dammed by scruples or apprehensions, the resolution is
probably often of this catastrophic kind. The flood breaks quite
unexpectedly through the dam. That it should so often do so is quite
sufficient to account for the tendency of these characters to a fatalistic mood
of mind. And the fatalistic mood itself is sure to reinforce the strength of the
energy just started on its exciting path of discharge.
There is a fourth form of decision, which often ends deliberation as
suddenly as the third form does. It comes when, in consequence of some
outer experience or some inexplicable inward change, we suddenly pass
from the easy and careless to the sober and strenuous mood, or possibly the
other way. The whole scale of values of our motives and impulses then
undergoes a change like that which a change of the observer's level
produces on a view. The most sobering possible agents are objects of grief
and fear. When one of these affects us, all 'light fantastic' notions lose their
motive power, all solemn ones find theirs multiplied many-fold. The
consequence is an instant abandonment of the more trivial projects with
which we had been dallying, and an instant practical acceptance of the more
grim and earnest alternative which till then could not extort our mind's
consent. All those 'changes of heart,' 'awakenings of conscience,' etc., which
make new men of so many of us may be classed under this head. The
character abruptly rises to another 'level,' and deliberation comes to an
immediate end.
In the fifth and final type of decision, the feeling that the evidence is all
in, and that reason has balanced the books, may be either present or absent.

But in either case we feel, in deciding, as if we ourselves by our own wilful
act inclined the beam: in the former case by adding our living effort to the
weight of the logical reason which, taken alone, seems powerless to make
the act discharge; in the latter by a kind of creative contribution of
something instead of a reason which does a reason's work. The slow dead
heave of the will that is felt in these instances makes of them a class
altogether different subjectively from all the four preceding classes. What
the heave of the will betokens metaphysically, what the effort might lead us
to infer about a will-power distinct from motives, are not matters that
concern us yet. Subjectively and phenomenally, the feeling of effort, absent
from the former decisions, accompanies these. Whether it be the dreary
resignation for the sake of austere and naked duty of all sorts of rich
mundane delights; or whether it be the heavy resolve that of two mutually
exclusive trains of future fact, both sweet and good and with no strictly
objective or imperative principle of choice between them, one shall
forevermore become impossible, while the other shall become reality; it is a
desolate and acrid sort of act, an entrance into a lonesome moral wilderness.
If examined closely, its chief difference from the former cases appears to be
that in those cases the mind at the moment of deciding on the triumphant
alternative dropped the other one wholly or nearly out of sight, whereas
here both alternatives are steadily held in view, and in the very act of
murdering the vanquished possibility the chooser realizes how much in that
instant he is making himself lose. It is deliberately driving a thorn into one's
flesh; and the sense of inward effort with which the act is accompanied is an
element which sets this fifth type of decision in strong contrast with the
previous four varieties, and makes of it an altogether peculiar sort of mental
phenomenon. The immense majority of human decisions are decisions
without effort. In comparatively few of them, in most people, does effort
accompany the final act. We are, I think, misled into supposing that effort is
more frequent than it is by the fact that during deliberation we so often
have a feeling of how great an effort it would take to make a decision now.
Later, after the decision has made itself with ease, we recollect this and
erroneously suppose the effort also to have been made then.
The existence of the effort as a phenomenal fact in our consciousness
cannot of course be doubted or denied. Its significance, on the other hand, is
a matter about which the gravest difference of opinion prevails. Questions
as momentous as that of the very existence of spiritual causality, as vast as

that of universal predestination or free-will, depend on its interpretation. It
therefore becomes essential that we study with some care the conditions
under which the feeling of volitional effort is found.
The Feeling of Effort.—When I said, awhile back, that consciousness
(or the neural process which goes with it) is in its very nature impulsive, I
should have added the proviso that it must be sufficiently intense. Now there
are remarkable differences in the power of different sorts of consciousness
to excite movement. The intensity of some feelings is practically apt to be
below the discharging point, whilst that of others is apt to be above it. By
practically apt, I mean apt under ordinary circumstances. These
circumstances may be habitual inhibitions, like that comfortable feeling of
the dolce far niente which gives to each and all of us a certain dose of
laziness only to be overcome by the acuteness of the impulsive spur; or they
may consist in the native inertia, or internal resistance, of the motor centres
themselves, making explosion impossible until a certain inward tension has
been reached and over-passed. These conditions may vary from one person
to another, and in the same person from time to time. The neural inertia may
wax or wane, and the habitual inhibitions dwindle or augment. The intensity
of particular thought-processes and stimulations may also change
independently, and particular paths of association grow more pervious or
less so. There thus result great possibilities of alteration in the actual
impulsive efficacy of particular motives compared with others. It is where
the normally less efficacious motive becomes more efficacious, and the
normally more efficacious one less so, that actions ordinarily effortless, or
abstinences ordinarily easy, either become impossible, or are effected (if at
all) by the expenditure of effort. A little more description will make it
plainer what these cases are.
Healthiness of Will.—There is a certain normal ratio in the impulsive
power of different mental objects, which characterizes what may be called
ordinary healthiness of will, and which is departed from only at exceptional
times or by exceptional individuals. The states of mind which normally
possess the most impulsive quality are either those which represent objects
of passion, appetite, or emotion—objects of instinctive reaction, in short; or
they are feelings or ideas of pleasure or of pain; or ideas which for any
reason we have grown accustomed to obey, so that the habit of reacting on
them is ingrained; or finally, in comparison with ideas of remoter objects,
they are ideas of objects present or near in space and time. Compared with

these various objects, all far-off considerations, all highly abstract
conceptions, unaccustomed reasons, and motives foreign to the instinctive
history of the race, have little or no impulsive power. They prevail, when
they ever do prevail, with effort; and the normal, as distinguished from the
pathological, sphere of effort is thus found wherever non-instinctive motives
to behavior must be reinforced so as to rule the day.
Healthiness of will moreover requires a certain amount of complication
in the process which precedes the fiat or the act. Each stimulus or idea, at
the same time that it wakens its own impulse, must also arouse other ideas
along with their characteristic impulses, and action must finally follow,
neither too slowly nor too rapidly, as the resultant of all the forces thus
engaged. Even when the decision is pretty prompt, the normal thing is thus
a sort of preliminary survey of the field and a vision of which course is best
before the fiat comes. And where the will is healthy, the vision must be right
(i.e., the motives must be on the whole in a normal or not too unusual ratio
to each other), and the action must obey the vision's lead.
Unhealthiness of will may thus come about in many ways. The action
may follow the stimulus or idea too rapidly, leaving no time for the arousal
of restraining associates—we then have a precipitate will. Or, although the
associates may come, the ratio which the impulsive and inhibitive forces
normally bear to each other may be distorted, and we then have a will which
is perverse. The perversity, in turn, may be due to either of many causes—
too much intensity, or too little, here; too much or too little inertia there; or
elsewhere too much or too little inhibitory power. If we compare the
outward symptoms of perversity together, they fall into two groups, in one of
which normal actions are impossible, and in the other abnormal ones are
irrepressible. Briefly, we may call them respectively the obstructed and the
explosive will.
It must be kept in mind, however, that since the resultant action is always
due to the ratio between the obstructive and the explosive forces which are
present, we never can tell by the mere outward symptoms to what
elementary cause the perversion of a man's will may be due, whether to an
increase of one component or a diminution of the other. One may grow
explosive as readily by losing the usual brakes as by getting up more of the
impulsive steam; and one may find things impossible as well through the
enfeeblement of the original desire as through the advent of new lions in the
path. As Dr. Clouston says, "the driver may be so weak that he cannot

control well-broken horses, or the horses may be so hard-mouthed that no
driver can pull them up."
The Explosive Will. 1.) From Defective Inhibition.—There is a normal
type of character, for example, in which impulses seem to discharge so
promptly into movements that inhibitions get no time to arise. These are the
'dare-devil' and 'mercurial' temperaments, overflowing with animation and
fizzling with talk, which are so common in the Slavic and Celtic races, and
with which the cold-blooded and long-headed English character forms so
marked a contrast. Simian these people seem to us, whilst we seem to them
reptilian. It is quite impossible to judge, as between an obstructed and an
explosive individual, which has the greater sum of vital energy. An
explosive Italian with good perception and intellect will cut a figure as a
perfectly tremendous fellow, on an inward capital that could be tucked away
inside of an obstructed Yankee and hardly let you know that it was there. He
will be the king of his company, sing the songs and make the speeches, lead
the parties, carry out the practical jokes, kiss the girls, fight the men, and, if
need be, lead the forlorn hopes and enterprises, so that an onlooker would
think he has more life in his little finger than can exist in the whole body of
a correct judicious fellow. But the judicious fellow all the while may have
all these possibilities and more besides, ready to break out in the same or
even a more violent way, if only the brakes were taken off. It is the absence
of scruples, of consequences, of considerations, the extraordinary
simplification of each moment's mental outlook, that gives to the explosive
individual such motor energy and ease; it need not be the greater intensity
of any of his passions, motives, or thoughts. As mental evolution goes on,
the complexity of human consciousness grows ever greater, and with it the
multiplication of the inhibitions to which every impulse is exposed. How
much freedom of discourse we English folk lose because we feel obliged
always to speak the truth! This predominance of inhibition has a bad as well
as a good side; and if a man's impulses are in the main orderly as well as
prompt, if he has courage to accept their consequences, and intellect to lead
them to a successful end, he is all the better for his hair-trigger organization,
and for not being 'sicklied o'er with the pale cast of thought.' Many of the
most successful military and revolutionary characters in history have
belonged to this simple but quick-witted impulsive type. Problems come
much harder to reflective and inhibitive minds. They can, it is true, solve
much vaster problems; and they can avoid many a mistake to which the

men of impulse are exposed. But when the latter do not make mistakes, or
when they are always able to retrieve them, theirs is one of the most
engaging and indispensable of human types.
In infancy, and in certain conditions of exhaustion, as well as in peculiar
pathological states, the inhibitory power may fail to arrest the explosions of
the impulsive discharge. We have then an explosive temperament
temporarily realized in an individual who at other times may be of a
relatively obstructed type. In other persons, again, hysterics, epileptics,
criminals of the neurotic class called dégénérés by French authors, there is
such a native feebleness in the mental machinery that before the inhibitory
ideas can arise the impulsive ones have already discharged into act. In
persons healthy-willed by nature bad habits can bring about this condition,
especially in relation to particular sorts of impulse. Ask half the common
drunkards you know why it is that they fall so often a prey to temptation,
and they will say that most of the time they cannot tell. It is a sort of vertigo
with them. Their nervous centres have become a sluice-way pathologically
unlocked by every passing conception of a bottle and a glass. They do not
thirst for the beverage; the taste of it may even appear repugnant; and they
perfectly foresee the morrow's remorse. But when they think of the liquor or
see it, they find themselves preparing to drink, and do not stop themselves:
and more than this they cannot say. Similarly a man may lead a life of
incessant love-making or sexual indulgence, though what spurs him thereto
seems to be trivial suggestions and notions of possibility rather than any
real solid strength of passion or desire. Such characters are too flimsy even
to be bad in any deep sense of the word. The paths of natural (or it may be
unnatural) impulse are so pervious in them that the slightest rise in the level
of innervation produces an overflow. It is the condition recognized in
pathology as 'irritable weakness.' The phase known as nascency or latency
is so short in the excitement of the neural tissues that there is no opportunity
for strain or tension to accumulate within them; and the consequence is that
with all the agitation and activity, the amount of real feeling engaged may
be very small. The hysterical temperament is the playground par excellence
of this unstable equilibrium. One of these subjects will be filled with what
seems the most genuine and settled aversion to a certain line of conduct,
and the very next instant follow the stirring of temptation and plunge in it
up to the neck.

2.) From Exaggerated Impulsion.—Disorderly and impulsive conduct
may, on the other hand, come about where the neural tissues preserve their
proper inward tone, and where the inhibitory power is normal or even
unusually great. In such cases the strength of the impulsive idea is
preternaturally exalted, and what would be for most people the passing
suggestion of a possibility becomes a gnawing, craving urgency to act.
Works on insanity are full of examples of these morbid insistent ideas, in
obstinately struggling against which the unfortunate victim's soul often
sweats with agony ere at last it gets swept away.
The craving for drink in real dipsomaniacs, or for opium or chloral in
those subjugated, is of a strength of which normal persons can form no
conception. "Were a keg of rum in one corner of a room and were a cannon
constantly discharging balls between me and it, I could not refrain from
passing before that cannon in order to get the rum;" "If a bottle of brandy
stood at one hand and the pit of hell yawned at the other, and I were
convinced that I should be pushed in as sure as I took one glass, I could not
refrain:" such statements abound in dipsomaniacs' mouths. Dr. Mussey of
Cincinnati relates this case:
"A few years ago a tippler was put into an almshouse in this State.
Within a few days he had devised various expedients to procure rum, but
failed. At length, however, he hit upon one which was successful. He went
into the wood-yard of the establishment, placed one hand upon the block,
and with an axe in the other struck it off at a single blow. With the stump
raised and streaming he ran into the house and cried, 'Get some rum! get
some rum! My hand is off!' In the confusion and bustle of the occasion a
bowl of rum was brought, into which he plunged the bleeding member of
his body, then raising the bowl to his mouth, drank freely, and exultingly
exclaimed, 'Now I am satisfied.' Dr. J. E. Turner tells of a man who, while
under treatment for inebriety, during four weeks secretly drank the alcohol
from six jars containing morbid specimens. On asking him why he had
committed this loathsome act, he replied: 'Sir, it is as impossible for me to
control this diseased appetite as it is for me to control the pulsations of my
heart.'"
Often the insistent idea is of a trivial sort, but it may wear the patient's
life out. His hands feel dirty, they must be washed. He knows they are not
dirty; yet to get rid of the teasing idea he washes them. The idea, however,
returns in a moment, and the unfortunate victim, who is not in the least

deluded intellectually, will end by spending the whole day at the wash-
stand. Or his clothes are not 'rightly' put on; and to banish the thought he
takes them off and puts them on again, till his toilet consumes two or three
hours of time. Most people have the potentiality of this disease. To few has
it not happened to conceive, after getting into bed, that they may have
forgotten to lock the front door, or to turn out the entry gas. And few of us
have not on some occasion got up to repeat the performance, less because
we believed in the reality of its omission than because only so could we
banish the worrying doubt and get to sleep.
The Obstructed Will.—In striking contrast with the cases in which
inhibition is insufficient or impulsion in excess are those in which
impulsion is insufficient or inhibition in excess. We all know the condition
described on p. 218, in which the mind for a few moments seems to lose its
focussing power and to be unable to rally its attention to any determinate
thing. At such times we sit blankly staring and do nothing. The objects of
consciousness fail to touch the quick or break the skin. They are there, but
do not reach the level of effectiveness. This state of non-efficacious
presence is the normal condition of some objects, in all of us. Great fatigue
or exhaustion may make it the condition of almost all objects; and an apathy
resembling that then brought about is recognized in asylums under the name
of abulia as a symptom of mental disease. The healthy state of the will
requires, as aforesaid, both that vision should be right, and that action
should obey its lead. But in the morbid condition in question the vision may
be wholly unaffected, and the intellect clear, and yet the act either fails to
follow or follows in some other way.
"Video meliora proboque, deteriora sequor" is the classic expression of
this latter condition of mind. The moral tragedy of human life comes almost
wholly from the fact that the link is ruptured which normally should hold
between vision of the truth and action, and that this pungent sense of
effective reality will not attach to certain ideas. Men do not differ so much
in their mere feelings and conceptions. Their notions of possibility and their
ideals are not as far apart as might be argued from their differing fates. No
class of them have better sentiments or feel more constantly the difference
between the higher and the lower path in life than the hopeless failures, the
sentimentalists, the drunkards, the schemers, the 'deadbeats,' whose life is
one long contradiction between knowledge and action, and who, with full
command of theory, never get to holding their limp characters erect. No one

eats of the fruit of the tree of knowledge as they do; as far as moral insight
goes, in comparison with them, the orderly and prosperous philistines
whom they scandalize are sucking babes. And yet their moral knowledge,
always there grumbling and rumbling in the background,—discerning,
commenting, protesting, longing, half resolving,—never wholly resolves,
never gets its voice out of the minor into the major key, or its speech out of
the subjunctive into the imperative mood, never breaks the spell, never
takes the helm into its hands. In such characters as Rousseau and Restif it
would seem as if the lower motives had all the impulsive efficacy in their
hands. Like trains with the right of way, they retain exclusive possession of
the track. The more ideal motives exist alongside of them in profusion, but
they never get switched on, and the man's conduct is no more influenced by
them than an express train is influenced by a wayfarer standing by the
roadside and calling to be taken aboard. They are an inert accompaniment
to the end of time; and the consciousness of inward hollowness that accrues
from habitually seeing the better only to do the worse, is one of the saddest
feelings one can bear with him through this vale of tears.
Effort feels like an original force. We now see at one view when it is
that effort complicates volition. It does so whenever a rarer and more ideal
impulse is called upon to neutralize others of a more instinctive and
habitual kind; it does so whenever strongly explosive tendencies are
checked, or strongly obstructive conditions overcome. The âme bien née,
the child of the sunshine, at whose birth the fairies made their gifts, does
not need much of it in his life. The hero and the neurotic subject, on the
other hand, do. Now our spontaneous way of conceiving the effort, under
all these circumstances, is as an active force adding its strength to that of
the motives which ultimately prevail. When outer forces impinge upon a
body, we say that the resultant motion is in the line of least resistance, or of
greatest traction. But it is a curious fact that our spontaneous language
never speaks of volition with effort in this way. Of course if we proceed a
priori and define the line of least resistance as the line that is followed, the
physical law must also hold good in the mental sphere. But we feel, in all
hard cases of volition, as if the line taken, when the rarer and more ideal
motives prevail, were the line of greater resistance, and as if the line of
coarser motivation were the more pervious and easy one, even at the very
moment when we refuse to follow it. He who under the surgeon's knife
represses cries of pain, or he who exposes himself to social obloquy for

duty's sake, feels as if he were following the line of greatest temporary
resistance. He speaks of conquering and overcoming his impulses and
temptations.
But the sluggard, the drunkard, the coward, never talk of their conduct in
that way, or say they resist their energy, overcome their sobriety, conquer
their courage, and so forth. If in general we class all springs of action as
propensities on the one hand and ideals on the other, the sensualist never
says of his behavior that it results from a victory over his ideals, but the
moralist always speaks of his as a victory over his propensities. The
sensualist uses terms of inactivity, says he forgets his ideals, is deaf to duty,
and so forth; which terms seem to imply that the ideal motives per se can be
annulled without energy or effort, and that the strongest mere traction lies in
the line of the propensities. The ideal impulse appears, in comparison with
this, a still small voice which must be artificially reinforced to prevail.
Effort is what reinforces it, making things seem as if, while the force of
propensity were essentially a fixed quantity, the ideal force might be of
various amount. But what determines the amount of the effort when, by its
aid, an ideal motive becomes victorious over a great sensual resistance? The
very greatness of the resistance itself. If the sensual propensity is small, the
effort is small. The latter is made great by the presence of a great antagonist
to overcome. And if a brief definition of ideal or moral action were
required, none could be given which would better fit the appearances than
this: It is action in the line of the greatest resistance.

The facts may be most briefly symbolized thus, P standing for the
propensity, I for the ideal impulse, and E for the effort:
I per se<P.
I + E >P.
In other words, if E adds itself to I, P immediately offers the least
resistance, and motion occurs in spite of it.
But the E does not seem to form an integral part of the I. It appears
adventitious and indeterminate in advance. We can make more or less as we
please, and if we make enough we can convert the greatest mental
resistance into the least. Such, at least, is the impression which the facts

spontaneously produce upon us. But we will not discuss the truth of this
impression at present; let us rather continue our descriptive detail.
Pleasure and Pain as Springs of Action.—Objects and thoughts of
objects start our action, but the pleasures and pains which action brings
modify its course and regulate it; and later the thoughts of the pleasures and
the pains acquire themselves impulsive and inhibitive power. Not that the
thought of a pleasure need be itself a pleasure, usually it is the reverse—
nessun maggior dolore—as Dante says—and not that the thought of pain
need be a pain, for, as Homer says, "griefs are often afterwards an
entertainment." But as present pleasures are tremendous reinforcers, and
present pains tremendous inhibitors of whatever action leads to them, so the
thoughts of pleasures and pains take rank amongst the thoughts which have
most impulsive and inhibitive power. The precise relation which these
thoughts hold to other thoughts is thus a matter demanding some attention.

If a movement feels agreeable, we repeat and repeat it as long as the
pleasure lasts. If it hurts us, our muscular contractions at the instant stop. So
complete is the inhibition in this latter case that it is almost impossible for a
man to cut or mutilate himself slowly and deliberately—his hand invincibly
refusing to bring on the pain. And there are many pleasures which, when
once we have begun to taste them, make it all but obligatory to keep up the
activity to which they are due. So widespread and searching is this
influence of pleasures and pains upon our movements that a premature
philosophy has decided that these are our only spurs to action, and that
wherever they seem to be absent, it is only because they are so far on
among the 'remoter' images that prompt the action that they are overlooked.
This is a great mistake, however. Important as is the influence of
pleasures and pains upon our movements, they are far from being our only
stimuli. With the manifestations of instinct and emotional expression, for
example, they have absolutely nothing to do. Who smiles for the pleasure of
the smiling, or frowns for the pleasure of the frown? Who blushes to escape
the discomfort of not blushing? Or who in anger, grief, or fear is actuated to
the movements which he makes by the pleasures which they yield? In all
these cases the movements are discharged fatally by the vis a tergo which
the stimulus exerts upon a nervous system framed to respond in just that
way. The objects of our rage, love, or terror, the occasions of our tears and

smiles, whether they be present to our senses, or whether they be merely
represented in idea, have this peculiar sort of impulsive power. The
impulsive quality of mental states is an attribute behind which we cannot
go. Some states of mind have more of it than others, some have it in this
direction and some in that. Feelings of pleasure and pain have it, and
perceptions and imaginations of fact have it, but neither have it exclusively
or peculiarly. It is of the essence of all consciousness (or of the neural
process which underlies it) to instigate movement of some sort. That with
one creature and object it should be of one sort, with others of another sort,
is a problem for evolutionary history to explain. However the actual
impulsions may have arisen, they must now be described as they exist; and
those persons obey a curiously narrow teleological superstition who think
themselves bound to interpret them in every instance as effects of the secret
solicitancy of pleasure and repugnancy of pain. If the thought of pleasure
can impel to action, surely other thoughts may. Experience only can decide
which thoughts do. The chapters on Instinct and Emotion have shown us
that their name is legion; and with this verdict we ought to remain
contented, and not seek an illusory simplification at the cost of half the
facts.
If in these our first acts pleasures and pains bear no part, as little do they
bear in our last acts, or those artificially acquired performances which have
become habitual. All the daily routine of life, our dressing and undressing,
the coming and going from our work or carrying through of its various
operations, is utterly without mental reference to pleasure and pain, except
under rarely realized conditions. It is ideo-motor action. As I do not breathe
for the pleasure of the breathing, but simply find that I am breathing, so I do
not write for the pleasure of the writing, but simply because I have once
begun, and being in a state of intellectual excitement which keeps venting
itself in that way, find that I am writing still. Who will pretend that when he
idly fingers his knife-handle at the table, it is for the sake of any pleasure
which it gives him, or pain which he thereby avoids? We do all these things
because at the moment we cannot help it; our nervous systems are so
shaped that they overflow in just that way; and for many of our idle or
purely 'nervous' and fidgety performances we can assign absolutely no
reason at all.
Or what shall be said of a shy and unsociable man who receives point-
blank an invitation to a small party? The thing is to him an abomination; but

your presence exerts a compulsion on him, he can think of no excuse, and
so says yes, cursing himself the while for what he does. He is unusually sui
compos who does not every week of his life fall into some such blundering
act as this. Such instances of voluntas invita show not only that our acts
cannot all be conceived as effects of represented pleasure, but that they
cannot even be classed as cases of represented good. The class 'goods'
contains many more generally influential motives to action than the class
'pleasants.' But almost as little as under the form of pleasures do our acts
invariably appear to us under the form of goods. All diseased impulses and
pathological fixed ideas are instances to the contrary. It is the very badness
of the act that gives it then its vertiginous fascination. Remove the
prohibition, and the attraction stops. In my university days a student threw
himself from an upper entry window of one of the college buildings and
was nearly killed. Another student, a friend of my own, had to pass the
window daily in coming and going from his room, and experienced a
dreadful temptation to imitate the deed. Being a Catholic, he told his
director, who said, 'All right! if you must, you must,' and added, 'Go ahead
and do it,' thereby instantly quenching his desire. This director knew how to
minister to a mind diseased. But we need not go to minds diseased for
examples of the occasional tempting-power of simple badness and
unpleasantness as such. Every one who has a wound or hurt anywhere, a
sore tooth, e.g., will ever and anon press it just to bring out the pain. If we
are near a new sort of stink, we must sniff it again just to verify once more
how bad it is. This very day I have been repeating over and over to myself a
verbal jingle whose mawkish silliness was the secret of its haunting power.
I loathed yet could not banish it.
What holds attention determines action. If one must have a single
name for the condition upon which the impulsive and inhibitive quality of
objects depends, one had better call it their interest. 'The interesting' is a
title which covers not only the pleasant and the painful, but also the
morbidly fascinating, the tediously haunting, and even the simply habitual,
inasmuch as the attention usually travels on habitual lines, and what-we-
attend-to and what-interests-us are synonymous terms. It seems as if we
ought to look for the secret of an idea's impulsiveness, not in any peculiar
relations which it may have with paths of motor discharge,—for all ideas
have relations with some such paths,—but rather in a preliminary
phenomenon, the urgency, namely, with which it is able to compel attention

and dominate in consciousness. Let it once so dominate, let no other ideas
succeed in displacing it, and whatever motor effects belong to it by nature
will inevitably occur—its impulsion, in short, will be given to boot, and will
manifest itself as a matter of course. This is what we have seen in instinct,
in emotion, in common ideo-motor action, in hypnotic suggestion, in
morbid impulsion, and in voluntas invita,—the impelling idea is simply the
one which possesses the attention. It is the same where pleasure and pain
are the motor spurs—they drive other thoughts from consciousness at the
same time that they instigate their own characteristic 'volitional' effects.
And this is also what happens at the moment of the fiat, in all the five types
of 'decision' which we have described. In short, one does not see any case in
which the steadfast occupancy of consciousness does not appear to be the
prime condition of impulsive power. It is still more obviously the prime
condition of inhibitive power. What checks our impulses is the mere
thinking of reasons to the contrary—it is their bare presence to the mind
which gives the veto, and makes acts, otherwise seductive, impossible to
perform. If we could only forget our scruples, our doubts, our fears, what
exultant energy we should for a while display!
Will is a relation between the mind and its 'ideas.' In closing in,
therefore, after all these preliminaries, upon the more intimate nature of the
volitional process, we find ourselves driven more and more exclusively to
consider the conditions which make ideas prevail in the mind. With the
prevalence, once there as a fact, of the motive idea, the psychology of
volition properly stops. The movements which ensue are exclusively
physiological phenomena, following according to physiological laws upon
the neural events to which the idea corresponds. The willing terminates with
the prevalence of the idea; and whether the act then follows or not is a
matter quite immaterial, so far as the willing itself goes. I will to write, and
the act follows. I will to sneeze, and it does not. I will that the distant table
slide over the floor towards me; it also does not. My willing representation
can no more instigate my sneezing-centre than it can instigate the table to
activity. But in both cases it is as true and good willing as it was when I
willed to write. In a word, volition is a psychic or moral fact pure and
simple, and is absolutely completed when the stable state of the idea is
there. The supervention of motion is a supernumerary phenomenon
depending on executive ganglia whose function lies outside the mind. If the
ganglia work duly, the act occurs perfectly. If they work, but work wrongly,

we have St. Vitus's dance, locomotor ataxy, motor aphasia, or minor degrees
of awkwardness. If they don't work at all, the act fails altogether, and we
say the man is paralyzed. He may make a tremendous effort, and contract
the other muscles of the body, but the paralyzed limb fails to move. In all
these cases, however, the volition considered as a psychic process is intact.
Volitional effort is effort of attention. We thus find that we reach the
heart of our inquiry into volition when we ask by what process it is that the
thought of any given action comes to prevail stably in the mind. Where
thoughts prevail without effort, we have sufficiently studied in the several
chapters on Sensation, Association, and Attention, the laws of their advent
before consciousness and of their stay. We shall not go over that ground
again, for we know that interest and association are the words, let their
worth be what it may, on which our explanations must perforce rely. Where,
on the other hand, the prevalence of the thought is accompanied by the
phenomenon of effort, the case is much less clear. Already in the chapter on
Attention we postponed the final consideration of voluntary attention with
effort to a later place. We have now brought things to a point at which we
see that attention with effort is all that any case of volition implies. The
essential achievement of the will, in short, when it is most 'voluntary,' is to
attend to a difficult object and hold it fast before the mind. The so-doing is
the fiat; and it is a mere physiological incident that when the object is thus
attended to, immediate motor consequences should ensue.
Effort of attention is thus the essential phenomenon of will.
[55]
Every
reader must know by his own experience that this is so, for every reader
must have felt some fiery passion's grasp. What constitutes the difficulty for
a man laboring under an unwise passion of acting as if the passion were
wise? Certainly there is no physical difficulty. It is as easy physically to
avoid a fight as to begin one, to pocket one's money as to squander it on
one's cupidities, to walk away from as towards a coquette's door. The
difficulty is mental: it is that of getting the idea of the wise action to stay
before our mind at all. When any strong emotional state whatever is upon
us, the tendency is for no images but such as are congruous with it to come
up. If others by chance offer themselves, they are instantly smothered and
crowded out. If we be joyous, we cannot keep thinking of those
uncertainties and risks of failure which abound upon our path; if lugubrious,
we cannot think of new triumphs, travels, loves, and joys; nor if vengeful,
of our oppressor's community of nature with ourselves. The cooling advice

which we get from others when the fever-fit is on us is the most jarring and
exasperating thing in life. Reply we cannot, so we get angry; for by a sort of
self-preserving instinct which our passion has, it feels that these chill
objects, if they once but gain a lodgment, will work and work until they
have frozen the very vital spark from out of all our mood and brought our
airy castles in ruin to the ground. Such is the inevitable effect of reasonable
ideas over others—if they can once get a quiet hearing; and passion's cue
accordingly is always and everywhere to prevent their still small voice from
being heard at all. "Let me not think of that! Don't speak to me of that!"
This is the sudden cry of all those who in a passion perceive some sobering
considerations about to check them in mid-career. There is something so icy
in this cold-water bath, something which seems so hostile to the movement
of our life, so purely negative, in Reason, when she lays her corpse-like
finger on our heart and says, "Halt! give up! leave off! go back! sit down!"
that it is no wonder that to most men the steadying influence seems, for the
time being, a very minister of death.
The strong-willed man, however, is the man who hears the still small
voice unflinchingly, and who, when the death-bringing consideration
comes, looks at its face, consents to its presence, clings to it, affirms it, and
holds it fast, in spite of the host of exciting mental images which rise in
revolt against it and would expel it from the mind. Sustained in this way by
a resolute effort of attention, the difficult object erelong begins to call up its
own congeners and associates and ends by changing the disposition of the
man's consciousness altogether. And with his consciousness his action
changes, for the new object, once stably in possession of the field of his
thoughts, infallibly produces its own motor effects. The difficulty lies in the
gaining possession of that field. Though the spontaneous drift of thought is
all the other way, the attention must be kept strained on that one object until
at last it grows, so as to maintain itself before the mind with ease. This
strain of the attention is the fundamental act of will. And the will's work is
in most cases practically ended when the bare presence to our thought of the
naturally unwelcome object has been secured. For the mysterious tie
between the thought and the motor centres next comes into play, and, in a
way which we cannot even guess at, the obedience of the bodily organs
follows as a matter of course.
In all this one sees how the immediate point of application of the
volitional effort lies exclusively in the mental world. The whole drama is a

mental drama. The whole difficulty is a mental difficulty, a difficulty with
an ideal object of our thought. It is, in one word, an idea to which our will
applies itself, an idea which if we let it go would slip away, but which we
will not let go. Consent to the idea's undivided presence, this is effort's sole
achievement. Its only function is to get this feeling of consent into the mind.
And for this there is but one way. The idea to be consented to must be kept
from flickering and going out. It must be held steadily before the mind until
it fills the mind. Such filling of the mind by an idea, with its congruous
associates, is consent to the idea and to the fact which the idea represents. If
the idea be that, or include that, of a bodily movement of our own, then we
call the consent thus laboriously gained a motor volition. For Nature here
'backs' us instantaneously and follows up our inward willingness by
outward changes on her own part. She does this in no other instance. Pity
she should not have been more generous, nor made a world whose other
parts were as immediately subject to our will!
On page 430, in describing the 'reasonable type' of decision, it was said
that it usually came when the right conception of the case was found.
Where, however, the right conception is an anti-impulsive one, the whole
intellectual ingenuity of the man usually goes to work to crowd it out of
sight, and to find for the emergency names by the help of which the
dispositions of the moment may sound sanctified, and sloth or passion may
reign unchecked. How many excuses does the drunkard find when each
new temptation comes! It is a new brand of liquor which the interests of
intellectual culture in such matters oblige him to test; moreover it is poured
out and it is sin to waste it; also others are drinking and it would be
churlishness to refuse. Or it is but to enable him to sleep, or just to get
through this job of work; or it isn't drinking, it is because he feels so cold;
or it is Christmas-day; or it is a means of stimulating him to make a more
powerful resolution in favor of abstinence than any he has hitherto made; or
it is just this once, and once doesn't count, etc., etc., ad libitum—it is, in
fact, anything you like except being a drunkard. That is the conception that
will not stay before the poor soul's attention. But if he once gets able to pick
out that way of conceiving, from all the other possible ways of conceiving
the various opportunities which occur, if through thick and thin he holds to
it that this is being a drunkard and is nothing else, he is not likely to remain
one long. The effort by which he succeeds in keeping the right name
unwaveringly present to his mind proves to be his saving moral act.

Everywhere, then, the function of the effort is the same: to keep
affirming and adopting a thought which, if left to itself, would slip away. It
may be cold and flat when the spontaneous mental drift is towards
excitement, or great and arduous when the spontaneous drift is towards
repose. In the one case the effort has to inhibit an explosive, in the other to
arouse an obstructed will. The exhausted sailor on a wreck has a will which
is obstructed. One of his ideas is that of his sore hands, of the nameless
exhaustion of his whole frame which the act of farther pumping involves,
and of the deliciousness of sinking into sleep. The other is that of the
hungry sea ingulfing him. "Rather the aching toil!" he says; and it becomes
reality then, in spite of the inhibiting influence of the relatively luxurious
sensations which he gets from lying still. Often again it may be the thought
of sleep and what leads to it which is the hard one to keep before the mind.
If a patient afflicted with insomnia can only control the whirling chase of
his ideas so far as to think of nothing at all (which can be done), or so far as
to imagine one letter after another of a verse of Scripture or poetry spelt
slowly and monotonously out, it is almost certain that here, too, specific
bodily effects will follow, and that sleep will come. The trouble is to keep
the mind upon a train of objects naturally so insipid. To sustain a
representation, to think, is, in short, the only moral act, for the impulsive
and the obstructed, for sane and lunatics alike. Most maniacs know their
thoughts to be crazy, but find them too pressing to be withstood. Compared
with them the sane truths are so deadly sober, so cadaverous, that the lunatic
cannot bear to look them in the face and say, "Let these alone be my
reality!" But with sufficient effort, as Dr. Wigan says, "Such a man can for a
time wind himself up, as it were, and determine that the notions of the
disordered brain shall not be manifested. Many instances are on record
similar to that told by Pinel, where an inmate of the Bicêtre, having stood a
long cross-examination, and given every mark of restored reason, signed his
name to the paper authorizing his discharge 'Jesus Christ,' and then went off
into all the vagaries connected with that delusion. In the phraseology of the
gentleman whose case is related in an early part of this [Wigan's] work he
had 'held himself tight' during the examination in order to attain his object;
this once accomplished he 'let himself down' again, and, if even conscious
of his delusion, could not control it. I have observed with such persons that
it requires a considerable time to wind themselves up to the pitch of
complete self-control, that the effort is a painful tension of the mind....

When thrown off their guard by any accidental remark or worn out by the
length of the examination, they let themselves go, and cannot gather
themselves up again without preparation."
To sum it all up in a word, the terminus of the psychological process in
volition, the point to which the will is directly applied, is always an idea.
There are at all times some ideas from which we shy away like frightened
horses the moment we get a glimpse of their forbidding profile upon the
threshold of our thought. The only resistance which our will can possibly
experience is the resistance which such an idea offers to being attended to
at all. To attend to it is the volitional act, and the only inward volitional act
which we ever perform.
The Question of 'Free-will.'—As was remarked on p. 443, in the
experience of effort we feel as if we might make more or less than we
actually at any moment are making.
The effort appears, in other words, not as a fixed reaction on our part
which the object that resists us necessarily calls forth, but as what the
mathematicians call an 'independent variable' amongst the fixed data of the
case, our motives, character, etc. If it be really so, if the amount of our
effort is not a determinate function of those other data, then, in common
parlance, our wills are free. If, on the contrary, the amount of effort be a
fixed function, so that whatever object at any time fills our consciousness
was from eternity bound to fill it then and there, and compel from us the
exact effort, neither more nor less, which we bestow upon it,—then our
wills are not free, and all our acts are foreordained. The question of fact in
the free-will controversy is thus extremely simple. It relates solely to the
amount of effort of attention which we can at any time put forth. Are the
duration and intensity of this effort fixed functions of the object, or are they
not? Now, as I just said, it seems as if we might exert more or less in any
given case. When a man has let his thoughts go for days and weeks until at
last they culminate in some particularly dirty or cowardly or cruel act, it is
hard to persuade him, in the midst of his remorse, that he might not have
reined them in; hard to make him believe that this whole goodly universe
(which his act so jars upon) required and exacted it of him at that fatal
moment, and from eternity made aught else impossible. But, on the other
hand, there is the certainty that all his effortless volitions are resultants of
interests and associations whose strength and sequence are mechanically
determined by the structure of that physical mass, his brain; and the general

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The Eu Charter Of Fundamental Rights As A Binding Instrument Five Years Old And Growing Sybe De Vries Ulf Bernitz Stephen Weatherill Editors

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The Eu Charter Of Fundamental Rights As A Binding Instrument Five Years Old And Growing Sybe De Vries Ulf Bernitz Stephen Weatherill Editors

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