Monthly Archives: February 2016

Rampant rabbits

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I live in a country where rampant rabbits are banned.

Strangely electric toothbrushes sell very well.

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Jokes.

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What does a Chinese mum call a 99% test score?

Failure.

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How do you double a blonde’s IQ?

Cum in her mouth

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Why do so many Japanese live in Harrow?

they get out of Heathrow and say ”taxi Harrow?”

 

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What is the best thing about fucking doggy style?

dOGS are tighter

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What do you call a cowardly chinman?

chicken chow mien.

 

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What do you call a 16 year old Essex girl without a baby?

A lesbian.

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What is the difference between a Japanese comedian and the Hiroshima bomb?

A Japanese comedian is not funny.

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What is the worst food and drink to order in Korea?

A hot dog and a slush puppy

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The Nazis are about to shoot dead a Jew and they say ”do you have any last requests? Like see your family? A glass of schnapps?”

The Jew says yes ”When you shoot me please take the bullet out and give it to my brother’s scrap metal business.”

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What is a gay chat up line?

May I push your stool in?

 

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Why do people say ”The King is dead . Long live the King!?”

Becuase of Elvis.

 

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Family dinner

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At Christmas my extended family gathered. Over 30 people were there at the very formal but jovial dinner. There was a lull in conversation. My cousin Lisa was there – she is 10. She sat beside her brother – my cousin Philip who is 14.

 

My 10 year old cousin Lisa piped up, ”Mum is is true that babies come from the place where boys put their willies?”

You could have heard a pin drop. People then gasped and looked away.

Lisa’s mum paused and decided to answer honestly. ”Yes Lisa, yes my dear. I told you how babies were made last week.”

”Oh now” said Lisa suddenly crying, ”That means that when my brother’s baby comes how will it get out of the vacuum cleaner?”

 

 

 

 

 

examiners report 2011. zone B

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Question 1 Describe the main changes brought about by the Treaty of Lisbon 2009 and discuss any improvements achieved by the changes.

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This treaty is a reworking of the European Constitution that was rejected by France and the Netherlands in referenda in 2004. As the President of the Court of Justice of the European Union Koen Lenaerts said the Treaty of Lisbon is 90% identical to the European Constitution. Indeed when doing teleological interpretation of the Treaty of Lisbon the ECJ has no hesitation in looking at travaille preparatoire of the Constitution in order to clarify matters pertaining to the Treaty.

The Treaty of Lisbon extended the powers of the Parliament. It now has co decision with the Council in relation to legislation.

If a member state chooses to leave the European Union there is an exit procedure laid down by the Treaty.

The European Charter of Fundamental Rights is not justiciable. It is adminstered by the Court of Justice of the European Union. The rulings of the the European Court of Human Rights in relation to the European Convention on Human Rights are adopted en masse by the European Union by article 6 (2) of the said treaty.

There is now an elected President of the European Council. He or she is elected by the Parliament. This person serves for two and a half years. He or she is to be the EU’s head of state. There is a Foreign Relations and Security COmmissioner.

The three pillar structure has been done away with.

The Justice and Home Affairs area has been incorporated in the Treaty on the Functioning of the European Union. Common Foreign and Security Policy has been introduced.

The European Community has been absorbed int the European Union. The EU now has legal personality.

THE eUROPEAN cOUNCIL IS AN institution with its own president.

There is now a Foreign Policy and Security Commissioner who also serves as Vice President of the Commission. This person serves for five years.  This person also takes part in the work of the Council.

Ordinary legislative procedure is now the one generally used.

There is more qualified majority voting on 45 areas of policy. This replaced unanimity which was the case before.

Individuals have more standing in courts. This is for indirect actions under TFEU 263.

There is no a clearer definition of competences.

There are now more regulatory acts. The previous treaties are renamed and reorganised by Lisbon. Their chapters are renumbered.

Qualified Majority Voting is now the norm in the Commission and Council.

States have the right to secede under the Treaty.

It moved power away from electors.

Rome is now TFEU.

Maastricht is amended.

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General remarks This question was answered well by some. It called for a general discussion of the changes and improvements made by the Lisbon Treaty. Although it was not necessary to discuss all the changes in order to obtain a good mark, answers did need to deal with the major changes: abolition of the three-pillar structure, with incorporation of Justice and Home Affairs in the Treaty on the Functioning of the European union (TFEU) and of the Common Foreign and Security Policy (CFSP) (still as a separate intergovernmental chapter) in the Treaty on the European Union (TEU); European Community (EC) absorbed in the European Union (EU), which acquires legal personality; European Council becomes an Institution: in the discussion too many answers talked of members as ‘heads of state’ – candidates should note that the only head of state is the French president as he has legislative and executive powers, all the others are heads of government (Article 15 TEU refers to heads of state or government for this reason); the European Council (please do not confuse European Council and Council) now has a permanent president, elected for 2½ years (van Rompuy); the new function of Foreign Affairs and Security (Article 18 TEU) is created (term of office five years, double-hatted member of Council and Vice President of the Commission; they also take part in the work of the European Council). 266 0024 EU law 2 Ordinary legislative procedure is co-decision; Parliament has been strengthened by this being made the main legislative procedure. The best answers then went on to address other points: better definition of competences, history of previous treaties, improved standing for individuals in indirect actions (Article 263 TFEU) with introduction of ‘regulatory acts’ in more equitable arrangements in Qualified Majority Voting (QMV) (improvements to be made after 2014, as well as in membership of the Commission).

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Question 2 Describe the development of the doctrine of direct effect of Union law by the European Court of Justice and explain how it is linked with the European Court’s other doctrines of supremacy and State liability for breach of Union law.

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Direct effect is a doctrine that emerged in the van Gend en Loos case in 1963. Directives and regulations are directly effective. They create rights that people can rely on in national courts. Rights were vertical in those days. Now direct effect can work horizontally or indeed triangularly.

EU law is supreme over national law. EU law defeats German Basic Law. In Factortame the Merchant Shipping Act had to be suspended because it might conflict with EU law.

In Francovich it was made clear that there is state liability. A state is liable for any damage arising to people from failure to uphold their rights. In this case Italy had not transposed an EU law into national law by the time limit.

In Von COlson indirect effect was seen. Here a woman who was a social worker suffered gender discrimination from the German prison service.

In Marleasing SA it was shown that Spanish law must be interpreted consistently with as yet unimplemented EU directives.

Van Duyn established horizontal effect. Treaty articles and regulations have direct effect both horizontally and vertically. Horizontal means they can be used against other organisations and people. Vertically means they can only be employed against the state and emanations therefore. This was proven in Foster v British Gas and in Marshall v South West and Southampton Health Board.

In Von Colson EU law was wrongly transposed into German law but this did not prevent Von Colson getting justice.

Mangold and Kukudeveci are about state liability. The same is true of Brasserie du Pecheur and Dillenkofer.

In Costa v ENEL the Italian man tried to use EU rights to prevent the nationalisation of the Italian electricity company. His action was denied. He had refused to pay his bill.

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General remarks This question asked candidates to address the doctrines of direct effect (and indirect effect) and supremacy with the emphasis on direct effect. The development of direct effect should have been briefly traced through Treaty Articles (Van Gend), through Directives (van Duyn) and horizontal and vertical effect. Treaty Articles and Regulations can have both horizontal and vertical direct effect. Directives can only have vertical direct effect (Marshall), widened by emanation of the State (Marshall, Foster and so on). Then answers should have described the ECJ’s search for other solutions and indirect effect (Von Colson, Marleasing) drawing attention to the drawback that there needs to be existing legislation. Good answers then briefly mentioned the different direction taken by the Court in Mangold and Küküdeveci and the development of state liability (Francovich, Brasserie du Pêcheur, Dillenkofer, but see British Telecom). There are various ways in which to describe the link between supremacy and direct effect, starting with Van Gend and Costa v ENEL (supremacy). Good answers gave not just a description of the three doctrines but explained how they are linked. Law cases, reports and other references the examiners would expect you to use SG 6.1–6.2 (direct effect, indirect effect); SG 6.3–6.4 (state liability); SG 6.5–6.6 (supremacy).

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Question 3 Analyse the evolving relationship between the European Court of Justice and national courts under Article 267 TFEU (ex Article 234 EC).

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The ECJ is the supreme court of the European Union. Its decisions can overturn those of national courts. For instance in a case where there was a clash between German Basic Law and EU law it was the former that had to give way.

National courts often refer points to the ECJ for clarification.

The ECJ exchanges regular visits with national supreme courts. They informally discuss matters and maintain cordial relations. The ECJ has judges from all member states. This gives it a broader view. This also ensures that all countries feel that they have a stake in the ECJ. Furthermore, the ECJ has a full understanding of Roman law and common law because judges comes from both juridical traditions. The only common law countries in the EU are the United Kingdom (except for Scotland), the Irish Republic, Cyprus and Malta.

The ECJ has many interpreters and lawyer linguists.

ECJ rulings have a profound affect on domestic law. As Lord Denning said European law was like ”an incoming tide” on English law.

Domestic courts have some discretion as to when they will refer matters to the Court of Justice of the European Union for clarification. Sometimes such references are compulsory.

Courts will often ask for an interpretation on une acte claire. This is a piece of legislation that is free from doubt. The trouble is there are 24 languages of the EU and all are equally authoritative. The ECJ has to use its lawyer linguists. The acte claire has to mean the same in all 24 languages to be une acte claire otherwise there is doubt. Sometimes there is nuance.

The ECJ sometimes declines to give rulings for clarification. If it has already ruled on the matter for example or they say the matter is for national courts to decided.

In a Swedish tax case the ECJ ruled on the general principle of criminal penalties for tax evasion but left it up to the Swedish court to determine what constituted a criminal sanction in Swedish law. The ECJ sometimes steps back. As Koen Lenaerts has said the ECJ is eager not to overstep its boundaries and to stray into the legislative field. Nevertheless, the ECJ believes in teleological interpretation. THat is reading legislation and filling in the blanks based on travaille preparatoire before the legislation was passed. This teleological interpretation is usually to expand the law and the powers of the EU. Having said that it is sometimes to restrict the law and to allow national authorities to decide issues.

The ECJ does not want to be overwhelmed with trivial issues. It will not rule on matters which are solely domestic. It does not wish to do the work of national courts for them. In the CILFIT case the ECJ ruled that when matters are so blatant that they should not need clarification from the ECJ then a national court should rule on something for themselves. They have to interpret legislation in context. Une acte clair is only clear when it is unambiguous and there is no discrepancies between all the different language versions of the said law.

In Foglia the ECJ said they would only intervene where there was a genuine dispute. Moreover, it is possible for one member state to take legal action against another on the basis of EU law.

Marleasing SA was  Spanish case where the ECJ ruled that Spanish law must be interpreted in keeping with as yet unimplemented EU directives.

In Factortame it was found that Parliament must not legislate contrary to EU law. The Merchant Shipping Act had to be suspended by the House of Lords whilst they deliberated as to whether this conflicted with EU law.

The ECJ has even ruled on what constitutes a court or tribunal. This was in Broekmeulen v Huisartes Registratie Commissie (Royal Dutch Medical Society). Here is was held that to be a court or tribunal something must fulfill certain criteria. These are that it is established by law, is permanent, its decisions are binding, it has inter partes procedure, that it is independent and that it applies rules of law.

In the Broekmeulen case the tribunal counted as a tribunal even though it was private.

In Dorsch Consult Ingenieuregesellschaft   v Bundesbaugesellschaft Berlin was a case about the procedure for awarding public contracts. The question was whether national authorities are competent to review the procedures for awarding public contracts when such procedures are set up by EU directives.

The ECJ ruled that national courts COULD review such procedures to see that they were in conformity with EU law.

One of the key points is that national courts administer EU law as well as national law.

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General remarks Preliminary reference procedure should have been analysed, describing discretionary and compulsory references (Article 267(2) and (3)); the question ‘what is a court or tribunal’ should have been dealt with (Broekmeulen, Dorsch); when not to make a reference (CILFIT), but also Foglia (1) and (2) (there must be genuine dispute) (see SG 7.4.1). Law cases, reports and other references the examiners would expect you to use SG Chapter 7. Examiners’ report 2011 3

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Question 4 Piet is a long-standing manufacturer of binoculars in Holland. The binoculars are small but particularly powerful and are used a great deal for bird watching. Piet sees a great marketing opportunity in Europe and decides to try out the UK as the potentially largest market. He has updated his technology in binoculars production. He has obtained all the necessary certificates in Holland which approve both his methods of manufacture as being environmentally friendly, and also approve the quality of the finished product. At the beginning of March, Piet despatches a consignment of 1,000 pairs of binoculars to the UK. He has an agreement with several large electrical stores to display and sell these binoculars as a ‘special offer’. This means that, taking into account the extra transport costs, he will make only a very small profit, but he is interested in selling many more later. Time is of the essence as he wants to sell the binoculars before the spring starts, which is the prime season for bird watching. When the consignment arrives in the UK, customs inspectors seize the binoculars and indicate that they need to be properly tested. There has been a lot of trouble with this sort of small, powerful binoculars imported from the Far East, and there have been rumours of the lenses causing spontaneous fires in grassland. These tests take a long time as specialists are needed to carry out the testing. Piet is charged £100 specialist storage per day and the tests will cost £200 an hour of which the UK authorities will pay half. All this takes approximately four weeks. The tests prove to be satisfactory and the binoculars finally arrive at their retail destination at the beginning of April. Electrical store A displays the glasses at the back of the shop, advertising their superior quality, and their relatively low cost. Sales do not go well. Electrical store B wants to go one better and advertises the binoculars as follows: ‘Uniquely powerful binoculars, long use, ideal for birdwatching, one consignment only sold at especially low prices, below their cost of manufacture’. Local Council inspectors check both electrical stores and confiscate the binoculars in supermarket B, as by law in the UK products may not be sold below cost price. Advise Piet as to any breaches of EU law which have occurred. What steps can Piet take to obtain a remedy for any breaches?=

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General remarks 1. Seizure and testing: a) Length of time is of the essence, so the length of any customs hold-up should not be disproportionate. b) Cost of storage – should not have to be paid by importer. c) Testing cost not justified (there is no EU requirement). 2. Article 34 TFEU (SG 10.4): a) Electrical Store A: no breach (possibly breach of contract, but this is not relevant here). b) Electrical Store B – went wrong with its ‘below cost of manufacture’ statement. The statement should have been confined to the first limb. Confiscation is an indistinctly applicable measure (Cassis), but –according 266 0024 EU law 4 to Keck, this is a pure selling arrangement and therefore not caught by Article 34 at all. Remedies 1. Article 30 has direct effect (van Gend), so proceedings should be taken directly against Customs. 2. There is probably no EU law breach in the case of either electrical store. Law cases, reports and other references the examiners would expect you to use Piet’s obstacles under Article 30 and Article 34 TFEU. Any breaches: SG 10.2.1– 10.2.3.

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Question 5 Trendy & Co produce a drink called Funz, which is aimed at the youth market. Funz is low in alcohol and sugar, but contains harmless sugar substitutes and products to give it some fizz. Trendy & Co have had a rapidly expanding market in the UK, thanks to extensive advertising and attractive pricing, and now wish to extend their sales to other EU countries. They target Germany as the largest potential market in the EU. The following rules apply in Germany: a) imported alcoholic drinks must carry a label clearly stating their country of origin and their alcohol content; b) all drinks sold in Germany must comply with Germany’s purity rules prohibiting most additives in alcoholic drinks; c) imported alcoholic drinks must be seized at the border if they appear to be targeted at younger drinkers. German drink manufacturers are required to place labels on their goods saying they should not be consumed by the young; d) no advertising of alcoholic drinks is permitted anywhere in Germany. Advise Trendy & Co on whether they may challenge these rules.

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General remarks 1. This is an indistinctly applicable measure. (Cassis). There may be possible application of the Article 36 exception (health of humans, animals and plants). Consumer protection under Cassis is more likely, but is it proportionate? 2. See SG 10.4.4. This refers to the German Beer Purity case. This is direct discrimination; protection under Article 36 (health, animal and plants) will most likely not be accepted. 3. The seizure is a distinctly applicable measure (Article 34) and cannot be justified under Article 36 as it is disproportionate. This is borne out by the second limb of the question stating that the domestic German drink manufacturers must label their drinks saying they should not be consumed by the young. If, therefore, imported drinks were not seized by Customs but were merely required to be labelled in the same way this may be acceptable as an indistinctly applicable measure justified by the non-exhaustive Cassis exceptions. This was not the case in Cassis based on the doctrine of mutual recognition, but in this question the aim is to protect the young and this could arguably be sufficient justification. 4. Selling arrangement (Keck), but see case law. It is up to the national court to decide if this is disproportionate. Examiners’ report 2011 5 Law cases, reports and other references the examiners would expect you to use SG 10.4 and following. Question 6 Global warming has caused an upsurge in the market for sun-protective fabrics of all kinds, particularly in Southern Europe. Surekids, an Irish manufacturer of sun-protective children’s dresses, has found an expanding market in Spain and now sells about 40% of all the sun-protective children’s dresses in Spain. In Ireland it is the only manufacturer and has until now been the only firm selling these dresses in Ireland. Surekids also sells the fabric for the dresses to a large Spanish manufacturer of children’s clothing, Infanta. Because of bank transfer difficulties Infanta has delayed paying its recent bills, and Surekids now refuses to supply any more fabric to Infanta. Surekids also sells some of its fabric to manufacturers of children’s clothing in Romania and Bulgaria and then discovers that some of its Romanian and Bulgarian customers are now supplying Infanta. Surekids asks them to stop doing this, as otherwise it will no longer supply them. A German company, Karlotta A.G., has started its own sun-protective children’s clothing line and obtains all its fabric from Surekids. It has been asked by Infanta to supply fabric, but it has been told by Surekids what has happened and not to comply. It does, however, tell Regal A.G., the largest German manufacturer of sun protective children’s dresses, that it will not be supplying Infanta and advises Regal that Regal can supply Infanta as it is a ‘good risk’. Both Regal and Karlotta are members of the same trade association. Regal tells Karlotta what prices it would charge Infanta and Karlotta realises that the prices it has been charging are identical. Karlotta is now worried about this and asks a friend at the European Commission Competition Directorate if this is all right. The Directorate then investigates and discovers that Regal has suddenly stopped supplying customers in Spain and that Surekids is intending to stop supplying customers in Germany. Consider any breaches of competition law which may have occurred. General remarks 1. SG 11.4: this concerns Article 102 TFEU. Is there dominance? Answers should have considered first the relevant market; referring to case law (does 40% constitute dominance in Spain?). There is no percentage referred to for Romania and Bulgaria, just the information that ‘some of the fabric’ is sold there. Answers should have considered refusal to supply and when it is acceptable (i.e. no abuse of dominant position). 2. SG 11.2: similar prices would indicate a concerted practice, but it appears it could be a coincidence, as Karlotta asks the Commission for advice after having found out that they are charging identical prices. 3. However, there then seems to be a concerted practice uncovered by the Commission between Regal and Surekids. Law cases, reports and other references the examiners would expect you to use SG Chapter 11. 266 0024 EU law 6

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Question 7 Arturo is a Romanian champion rower who came to the UK in 2009 in order to improve his performance by better training. He has worked in the UK as a rowing trainer since his arrival. He has now taken time off to practice for the London Olympics in 2012. He still works part-time as a personal fitness trainer for a Health Centre, but has to claim additional social security benefits. He has now contracted a skin disease, which makes his participation in the Romanian Olympic team doubtful, but he hopes this will be cured in time. He is a member of the Romanian Rowing Federation which will send a rowing team to the Olympics. Advise him on the following:

a) He has been asked to leave by the UK immigration authorities because he is claiming social security and because of the skin disease, with which they are afraid he might infect others.

b) He would like to enrol in a university in the UK to study sports law, which he thinks will assist him in furthering his career. However, the immigration authorities say he cannot do this, as he does not have permanent residence in the UK.

c) He has met and fallen in love with Olga, a Russian, some years ago and he would like to bring her to the UK to live with him as his partner, but Olga has been refused entry by the UK immigration authorities as she is not an EU national.

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General remarks Is Arturo a worker? Probably. This called for a discussion of Article 45 TFEU and the relevant case law: the Lawrie Blum definition and what constitutes part time: Levin and Kempf. a) Arturo has been in the UK since 2009, Romania joined the EU in 2009, so he falls under Directive 2004/38. There are restrictions on Romanian (and Bulgarian) workers, but there was no need for details here; it was simply sufficient to say that he may well be acceptable as a worker because of the specific nature of the job. He would, therefore, have a right to reside (not permanent yet) and to social security (Article 16 of the Directive). He cannot be asked to leave because of the disease (there is no indication that it is on the WHO list anyway) and in any case this is no justification for deportation (see Article 29(2) of the Directive). b) If Arturo has a right of residence as a worker, he should be allowed to apply to read sports law (see SG 12.3.9: case law on students’ rights and rights of workers to further their education (Brown)). c) Olga is non-EU. Their relationship dates from some years ago, so there is indication of durability. There is no civil partnership, but Article 3(2)(b) of the Directive may apply. Also see Netherlands v Reed. Law cases, reports and other references the examiners would expect you to use SG Chapter 12. Examiners’ report 2011 7

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Question 8 Trace the development of legislation and relevant case law leading to Directive 2004/38/EC on the rights of citizens of the European Union and their Family Members to move and reside freely within the Territory of Member States and consider any improvements made by the Directive as well as any difficulties which may have arisen, having regard to recent case law.

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General remarks Answers to this general question should have considered the citizenship articles, how they developed, and the case law leading up to Directive 2004/38. The Directive deals with workers and establishment. Candidates should have discussed the directive in some detail and highlighted relevant points. Good answers linked articles to case law. Candidates should have pointed out that only Articles 10 and 11 of Regulation 1612/68 have been incorporated in the directive, whereas Directive 64/221 has been replaced in its entirety. Good answers referred to recent developments, which show case law emerging re the Directive. For example under SG 12.5.5, the Ibrahim and Teixeira cases which deal with Article 12 of Regulation 1612/68 and preserve Baumbast rather than follow the Directive, say that the right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue their education in accordance with Article 12 of Regulation 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there. The question required a description of developments and case law. Quite a few answers simply described articles in the directive, often with much of the text just copied out, but this was clearly not the intention of the question. Law cases, reports and other references the examiners would expect you to

Commission v Italy 2003. Chocolate.

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In Italy one was only allowed to call something chocolate if it contained no vegetable fat.

Those things which were choc but contained vegetable fat had to call themselves chocolate substitutes. These were foreign products.

The measure was indistinctly applicable.

The Commission said this ruled contravened directive 73/ 241. It was argued that this law also went against TFEU article 34.

The Court held that the Italian measure was unreasonable. Adding vegetable fat did not substantially alter the product. Calling the product a substitute made it less valuable and less marketable. The Italian law would effectively compel British and Danish exporters to change their product or packaging to suit the Italian market.

The Italian law would need to be warranted by a mandatory requirement such as protecting health moreover it would need to be proportionate thereto.

Packaging saying the chocolate contained vegetable fat would be enough to inform consumers about the contents.

The Italian law saying that the product must be called a substitute is out of proportion to the aim pursued – consumer protection. Vegetable fat is not unhealthy and choc containing it can be healthier than other chocolate.

 

 

 

Walter Rau Lebensmittelwerke v De Smedt PVBA

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This is about the free movement of goods in the EU.

In Belgium margarine had to be packaged in cube shaped packages to avoid shoppers mixing it up with butter. This rule was purposive – it was to promote health.

The importer would have to repackage margarine to sell it in Belgium and incur a loss by so doing.

This was an indistinctly applicable measure since both Belgian and other EU providers had to comply with it. It was a product requirement since it touched the physical item despite it being merely the packaging and not the product that people actually used.

Rau said this contravened TFEU article 34.

The ECJ ruled that the aim of protecting human health was praiseworthy but the law was disproportionate to the aim pursued. The same goal would be adequately achieved by a less intrusive measure. This could be done by good labelling. Rau won.