EU law exam. 2014. zone B examiner’s report.

Standard

TFEU – Education is an EU competence. There are educational goals. There are certain measures that the EU is allowed to use in order to further the stated goals.

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Specific comments on questions

Question 1 ‘The aim of the European Union is European integration. However, the European Union does not enforce its law on its own but relies on the administrative bodies of the Member States. This creates the danger that the application of European law may diverge between the Member States. Diverging application between the now 27 member States would in turn endanger the aim of European integration. Hence, the concept of supremacy of European Union law aims at guaranteeing the uniform application of European Union law within the Member States. This explains the rigid stance adopted by the Court in applying such a principle.’ Discuss.

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General remarks This question refers to the constitutional implications of the supremacy and its impact on uniform application of EU law. Law cases, reports and other references the Examiners would expect you to use C-6/64 Costa v ENEL [1964] ECR 585 C-106/77 Simmenthal II [1978] ECR 629 C-106/89 Marleasing [1991] ECR I-7321 Joined Cases C-6 and C-9/90 Francovich and others [1991] ECR I-5357. LA3024 EU law 2 Common errors Simply listing cases without discussing their implications. Not attempting to link supremacy with uniform application of EU law. A good answer to this question would… discuss the significance of the doctrine of supremacy and in particular its impact on the use of international treaties and the new concept of limited sovereignty. A reflection on the very rigid stance adopted by the Court in cases such as Costa and Simmenthal should be developed as the question clearly invites candidates to reflect on the strategic use of supremacy to ensure the effective and uniform application of EU law via national courts. A case such as Francovich on state liability can also provide some useful points. Poor answers to this question… just listed the requirements for direct effect of Treaty, articles, regulations and directives. No discussion on the implication of supremacy. Student extract [Moreover] the Commssion can bring an action against a Member State under Article 258 TFEU. The article provides should the Commssion consider a Member State has failed to fulfil an obligation, the Commission shall deliver a reasoned opinion. The Commssion may bring then the matter before the ECJ. Thus this article clearly shows how a judicial institution of the EU being able to uphold the rule of law as well as the supremacy of the EU. Next Article 263 of TFEU allows the ECJ to review the legality of the acts of the relevant European institutions. In other words challenges can be made for acting beyond their powers (ultra vires) or abuse of powers before the ECJ. Comment on extract The candidate identified two heads of the European Court of Justice jurisdiction (direct actions and judicial review) as examples of how the Court manages to ensure the uniformity of application of EU law. However, there are two main problems with the extract reported here. First, the candidate does not deal with what the question really requires. The question specifically mentions supremacy as the instrument to ensure the effective and uniform application of EU law. It thus requires candidates to show how this doctrine can be employed to achieve these aims. Cases such as Simmenthal, which imposes a general duty on national courts to do everything possible to give full effect to EU law, or Francovich, which imposes the liability of the state in case of its failure to apply EU law, are good examples. The extract can be perhaps still linked to the question as under these two head of jurisdiction the Court truly upholds the rule of law and thus eventually ensures the uniform application of EU law. However, the second problem with the answer is that the candidate simply repeats the two Treaty provisions that contain the two actions with no comments and no attempt to put the data into context. No reference to important judgments in this area such as Les Vertes (where the Court held that the Treaty should have been considered as the constitutional charter of the EU) is made. Thus the answer has to be considered a fail, not a really bad one, but still a fail.

 

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Question 2 ‘The European Union is first and foremost a Community based on respect for the rule of law of which the European Court of Justice is the guardian.’ Discuss with reference to the role played by the EU judicial institutions in shaping the EU legal order.

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The European Union is founded on the rule of law as stated in the Treaty of Rome 1957 which founded the European Economic Community (which evolved into the EU). The EU certainly represents a new legal order of a supranational nature.

The European Court of Justice (more accurately the Court of Justice of the European Union) is the supreme court of the EU. The ECJ offers clarification for national supreme courts which refer issues to the ECJ. The ECJ adjudicates between the different EU institutions and the member states. A natural person usually lacks the locus standi to appear before the ECJ unless this person is especially individually concerned by a certain law.

One of the cases when a national court sought a reference from the ECJ was Dassonville. The Belgian court asked the ECJ in Luxembourg to give a ruling. The ECJ ruled that the Belgian law about a certificate for whisky importers was illegal. This was because it was more difficult for non Belgian importers to comply with. It was therefore indirectly discriminatory. This was crucial in making the free market a reality..

The ECJ has interpreted and expanded EU law. Van Gend en Loos was a seminal case in 1963. Here it was established that directives were directly effective. The Belgian company Van Gend en Loos did not have to pay even a tiny import tax for bringing in urea formaldyhide from West Germany (as it then was) to the Netherlands.  Van Gend en Loos was a seminal moment partly because the rights were asserted and awarded by a national court – in this case a Dutch one. Citizens could thereafter be the enforcers of their rights. The ECJ welcome this since the ECJ did not have the time to deal with a huge caseload of petty but significant cases brought from all over the EEC as it then was.

The ECJ has also laid down other far reaching principles. For instance where EU law conflicts with German Basic Law the EU law shall take precedence.

The ECJ has judges from all member states. This gives it a broader perspective and ensures that all EU states fell fully included.

One of the inane aspects of EU jurisprudence is that EU laws are translated into all 24 official languages. All languages are equally valid. Therefore an acte claire is only unambigious if there is no disagreement in nuance in all the languages from Maltese to Bulgarian!

The ECJ has often been accused of being an activist court. The President of the ECJ Koen Lennarets has admitted as much. People who become judges in this system tend to be enthusiasts for it and minded to further EU integration. Lennaerts also noted that some europhiles accuse the ECJ of not being active enough in advancing the cause of ECJ integration.  Lennaerts acknowledges that the court interprets teleologically. He says it does so because it looks at the texts of treaties and laws and see the purpose for which they were written. Teleological interpretation is only textual interpretation according to him. This is like the nuisance rule of interpretation in common law jurisprudence. In Sturgeon and in Nelson v Twohey Travel the ECJ decided that the text was under inclusive. The ECJ then just added law that legislation had not stated. This concerned compensation for air passengers who were delayed or had their flights delayed.

These accusations of judicial activism are valid. The ECJ has been able to do so because of an elite consensus that European integration should go as far as possible. Other EU institutions have assisted this. Member states have done nothing to resist it.

The ECJ strives to develop the four freedoms of the EU – the free movement of people, goods, services and capital. The ECJ recognises there are grounds for restricting these such as public health, public safety, publicy policy.. It must be for a legitimate reason such as to protect human health, to protect children, to uphold a philosophical tradition (such as against gambling or pornography or animal rights) to safeguard the cultural heritage of the nation or suchlike.

The ECJ judges cases relating to the European Charter of Fundamental Rights. This has been justiciable since 2009 when the Treaty of Lisbon came into force. Poland and the United Kingdom have derogations therefrom.

There is a widespread misconception that the European Convention on Human Rights and the court that administers it (the European Court of Human Rights) are EU institutions. Neither the convention nor the Court are EU institutions. However, all member states were required to incorporate the convention into their domestic law. Furthermore, all member states are legally required to obey the rulings of the ECHR. The convention is somewhat malleable. It will stipulate something it do be done or refrained from. These include upholding the right to life but killing people is allowed ”to suppress a riot or rebellion or to uphold the law so long as the use of deadly force is no more than is necessary.”

The EU judicial institutions have circumscribed state sovereignty. States have pooled their sovereignty. As the Factortame case in the United Kingdom revealed the ECJ can strike down UK acts of Parliament.

Costa v ENEL was a vital case that reached the ECJ. In this case an Italian named Costa was not able to prevent electricity being nationalised in his country.

Francovich demonstrated how EU directives have an effect even if a member state fails to transpose the directive into national law. Italy could not rely on its own failure to transpose the law by the deadline to deny its residents rights arising under the law.

In Colson it was found that a badly transposed directive would not prevent a person from having her full rights. This was about a social worker who had suffered sex discrimination at the hands of the German prison service.

EU jurisprudence has broadened the scope of human rights. For instance in R (Baumbast) v Secretary of State for the Home Department  the right for non EU children to stay in the EU while they completed their education was widened. The parents were also allowed to remain.

The ECJ has had to balance some legal imperatives when they collide. A case in point in Eugen Scmidberger. Here a protest in Austria shut a road and prevented trade between member states for a day.. Should Austria have prevented this? The ECJ decided that in this case the right to protest trumped free trade.

Some of the less important decisions have been made by the EU Court of First Instance.

The ECJ tries to follow precedent. This is difficult because it operates in a fairly new and unique are of jurisprudence. It deals mostly with Roman law countries but some countries are Common law countries such as Malta, Cyprus, the UK and the Irish Republic.

The ECJ runs its jurisprudence on some core juridical principles. Chief among this is proportionality. It is fairly flexible.

The ECJ tries to promote legal certainty. Moreover, the ECJ claims to be reluctant to legislate.

The European Union is generally obedient to its own laws. However, there is much financial crime in EU institutions. The EU’s Court of Auditors has refused to sign off on EU accounts for years. Members of the European Parliament have abused travel expenses for years. The Growth and Stability Pact was broken by several member states and no action was taken against this. A travel ban on President Mugabe was broken by France without any consequences flowing.

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Examiners’ report 2014 3 General remarks This is a rather broad question about the role of the Court of Justice. It is undeniable that the contribution of the ECJ to the process of European integration has been immense. Arguably the EU could be ‘classified’ as a common law system based on judicial precedents. Law cases, reports and other references the Examiners would expect you to use C-8/74 Dassonville (Whisky in Belgium) [1974] ECR 837 Case C-413/99 Baumbast, R v Secretary of State for the Home Department [2002] ECR I-7091 Case C-112/00 Eugen Schimdberger [2003] ECR I-5659. Common errors Discussing the structure of the Court. Mentioning totally unrelated points such as standing requirements. Discussing other EU institutions. A good answer to this question would… discuss the Court role by using the many examples its case law offer them: from the seminal judgments such as Van Gend en Loos, Costa v Enel Francovich that shaped the European Constitutional framework, to cases such as Dassonville that started a process of market deregulation, to judgments that ‘created’ entire areas of EU law such as citizenships or respect of human rights. Candidates should however examine whether accusation of judicial activism can be justified. Very good answers could discuss the reasons why the Court was able to assert such an active role (lack of political will of EU institutions, alliance with national courts and so on). Poor answers to this question… Simply described the appointment criteria, composition and jurisdiction of the Court of Justice.

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Question 3 SuperSpecs is a UK Company which produces and sells products and services in the field of optics. It wants to expand its activities in Germany and thus its starts circulating advertising material offering its customers free eyesight examinations in the shops they are going to open. However the German Consumer Protection authorities order the withdrawal of these ads as German law prohibits any commercial exploitation of medical services and requires also that eye examinations have to be carried out by qualified ophthalmologists only. SuperSpecs seeks your advice on whether the German measures can be in violation of EU law.

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What SuperSpecs wants to do in terms of selling goods and services in Germany is legal insofar as the EU is all about the free movement of goods and services.. It would seem there is no product requirement that Germany is imposing that is unlawful.

Advertising is being circulated. States are allowed to restrict or even bad advertising if it is for something unhealthy or potentially harmful such as tobacco, alcohol or risky financial products. In De Agostini Sweden was allowed to ban advertisements aimed at children. This is not a direct parallel since the adverts are not primarily aimed at kids.

The Gourmet case will help SuperSpecs. In Gourmet Sweden was not allowed to ban alcohol advertising because this discriminated against foreign producers. Swedish products were already known to Swedish consumers. The ban was indirectly discriminatory. However, this case is not entirely analogous since alcohol consumption is injurious to the health whereas glasses are beneficial.

Under Rewe Zentral AG v Bundesverwaltung fur Brantwein it was established that unduly restrictive national rules cannot keep products from other member states off the market. That would create a double burden and be unfair. It would fly in the face of the EU’s core [principles.

Germany is entitled to have a selling arrangement rule.

SuperSpecs wants to offer free glasses and eye tests in Germany and only in Germany. This is unlawful because it is a market distortion. It is unfair competition for companies already in Germany offering such services and goods.

In Gebhard v Milan Bar Council a German lawyer was allowed to practise in Italy. There is freedom of establishment in the EU.

This is a bit like van Duyn. Overly burdensome rules will fail

The German law saying that only ophthalmologists can carry out these tests is permissible. A member state is entitled to legislate on such matters. Some countries are more stringent than others. This is a measure for the protection of human health. So long as it is proportionate this limitation on the free movement of services is allowed. It could not be achieved in a less onerous manner thus is is proportionate to the legitimate aim pursued.

There have been cases where member states have been able to ban products. These would be the Danish love dolls in the UK. Italy was able to ban mopeds. Shopping centres were banned in Spain. Alpine Investments was not allowed to cold call non professional investors in the Netherlands because it could hoodwink the gullible.

The commercial exploitation of medical services is probably not a rule that is allowed. This is permitted in every other member state. It is too great a limitation on free trade. Germany could allow this is to uphold a philosophical tradition but that would probably fail.

Keck and Mithouard – here beer was resold at a loss. France forbade this. They prosecuted Keck and Mithouard. The defence claimed the sale was allowed under TFEU because to prohibit this would be restrict trade between member states. The Court held that France was allowed this law on beer prices. This law applied to French and foreign products. It did not discriminate in law or practise. On this basis Germany’s rules will be allowed.

 

 

 

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General remarks Problem question on free movement and possible justification available to member states. Law cases, reports and other references the Examiners would expect you to use Case C-275/92 Schindler [1994] ECR I-1039 C-120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649 C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097 C-55/94 Gebhard v Milan Bar Council [1995] ECR I-4186 Case 570/07 Blanco Perez 1 June 2010. LA3024 EU law 4 Common errors Not discussing which freedom should apply. Using services provisions only. Not discussing proportionality. A good answer to this question would… first decide which fundamental freedoms apply. Is it goods (as it will impede the free flow of optical products)? Is it services (advertising restriction) or is it establishment (deterrence from establishing a branch)? Good answers would refer to the centre of gravity test (Schindler case). Candidates will then need to establish the possible breach (access to market so depending on the choice of fundamental freedoms, e.g. Mopeds case, Alpine Inv, Spanish Shopping Centres). The measure is anyway clearly indistinctly applicable. If the question is dealt with under the free movement of goods candidates should discuss Keck and cases such as De Agostini and Gourmet. Once the possible restriction to access to the market is identified, a justification probably based on public health should be discussed. Drawing inspirations from the case law on this specific ground, candidates should assess the proportionality of the measures, in particular whether the measure is suitable to attain the aim of protecting public health and whether any less restrictive alternatives are available. Poor answers to this question… did not discuss which freedom should apply and focused only on whether there is a breach of the Treaty with no discussion of possible justifications.

 

 

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Question 4 John, a British national, came to Spain five years ago. He worked for a bank in Madrid until six months ago when he was convicted and sentenced to twelve months in prison for possessing an illegal firearm on bank premises. He is scheduled to be released next month, taking account of his good behaviour. The Spanish authorities have stated that they will seek his deportation to the United Kingdom immediately on his release. Carla, John’s wife, is a Spanish national. She claims that John’s deportation will leave her without any financial support and will endanger her marriage. In addition, she will also have difficulties looking after their son Francisco, who has learning difficulties. Advise John, Carla, and Francisco as to their rights under EU law.

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The EU promotes the four fundamental freedoms. One of these is the free movement of persons. EU citizens are generally free to reside anywhere in the European Union. However, under special circumstances a member state may expel someone from the national territory even if he is from another EU member state. This very rarely occurs. A Lithuanian who murdered his wife was allowed to come to the UK for instance. There is common EU citizenship which supplements and does not replace national citizenship.

The Spanish could probably expel John because he has committed a serious crime. His sentence of 12 months is so short that this probably does not reach the threshold for kicking him out. Moreover, he was only obliged to serve six months and he behaved in prison. Suggests he is not dangerous.

The fact that he is wed to a Spaniard helps John. As for financial support he could send her money from abroad. She could work. There is a social security system to help her. This line of argumentation is not convincing.

Directive 2004/38 means that EU nationals are normally allowed to live in other EU countries.

The court will be sympathetic to the child with learning difficulties. They could all move to the UK though. Under Baumbast a child has a right to complete their education and the primary carer can remain too. John is not the primary carer especially because he was in gaol.

There is a right to family life under the European Convention on Human Rights. The Charter of Fundamental Rights will also help John. This has been justiciable since the Treaty of Lisbon in 2009.

Under Zambrano Belgian children were allowed to have their Colombian parents stay with them in Belgium despite the parents entering illegally.

Zhu would seem to help them. Here a Chinese baby was born in Northern Ireland and automatically became an Irish citizen. The parents and brother were allowed to stay in the UK to be with their Irish relative.

In Kadi a man was accused of funding Al Qa’eda. The UN blocked funding to Al Qa’eda. This impacted on Kadi and breached his rights. He was then allowed to use his money again. The EU state went too far in blocking his accounts and assets. Insufficient evidence was adduced. The decision needed judicial review.

In Garcia Avello someone was not allowed to change his surname. He was living in one state but was a citizen of another.

Workers are allowed to move and this includes seeking work. If John is out of work for over 3 months and is a burden on the state then Spain;s case to boot him out will improve. Spain would want to argue he is a threat to public security if they wish to remove him. It shall be hard to do so convincingly.

The criminal element will make it more difficult for John. But he will probably win.

 

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General remarks This was a problem question on the free movement of workers and citizenship. The impact of the Charter of Fundamental Rights should also have been discussed. Law cases, reports and other references the Examiners would expect you to use Case C-482/01 Orphanopoulos [2004] ECR I-05257 Case C-413/99 Baumbast, R v Secretary of State for the Home Department [2002] ECR I-7091 Case C-200/02 Kunqian Catherine Zhu [2004] ECR I-9925 Case C-34/09 Ruiz Zambrano, 8 March 2011 Directive 2004/38. Common errors Analysing only one of the individual situations. Not discussing citizenship provisions. Examiners’ report 2014 5 Not discussing the right to family life or the use of the Charter of Fundamental Rights. A good answer to this question would… discuss the question both under Treaty provisions of free movement of workers and under Directive 2004/38. Member states are of course entitled to deport nationals on specific grounds such a ‘serious threat to public security’. In this case candidates should discuss first of all whether the conduct of John – a migrant worker – could be considered as falling within the definition of serious threat to public security (see the case law of the Court, such as Orphanopoulos) and whether the deportation is proportionate. Then the position of his family members under the Directive that extends workers’ protection to their families should be analysed. Good answers would refer to the citizenship provisions (Articles 20–21) and the case law of the Court in judgments such as Baumbast or Garcia Avello, and also to the Charter of Fundamental Rights, in particular to the provisions dealing with family life and the protection of children, as both provisions have been employed by the Court in many judgments. Poor answers to this question… were exclusively based on the provisions of Directive 2004/38 with no reference to the Treaty or the Charter.

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Question 5 Biborova is a Latvian company producing vodka, well known in particular for Bibotal, a line of ready-made vodka cocktails that it markets in 1 litre plastic bottles. Bibotal is mainly destined to home consumption, and is not distributed to pubs, bars or restaurants. In May 2014 Biborova decides to enter the Polish market with Bibotal, but encounters several difficulties. First, the Intoxicating Substances Law of 2003 provides that intoxicating substances no matter how big the alcohol concentration can only be marketed in glass bottles, for reasons of consumer protection and public health. Biborova will thus incur high packaging costs in order to be able to sell its products on the Polish market. Second, according to the Advertisement Law of 2004, alcohol can only be advertised in pubs, bars and restaurants, as well as in specialized gastronomic magazines. Biborova fears that this will seriously diminish its chances to be known on the Polish market. Biborova’s advisors think that the Intoxicating Substances Law of 2003 and the Advertisement Law of 2004 are contrary to European law, but come to you for a second opinion.

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This case chiefly concerns the four fundamental freedoms of the European Union. These are the free movement of goods, services, people and capital. A state is entitled to restrict these four freedoms for reasons of public security, public health, the protection of children, the protection of cultural heritage or the protection of a philosophical principle. The restriction must be proportionate to the aim pursued. The test is that the same objective cannot be adequately achieved by a less intrusive measure.

Article 34 TFEU is about these four freedoms. Article 36 of the same states various reasons which can be cited to permit a member state limiting the said freedoms.

Much of this is about distinctly or indistinctly applicable measures.

Alcohol jeopardises human health. States are entitled to have limitation thereon and on the advertising of the said product.

The law prohibiting alcohol advertising is contrary to the Swedish case of Gourmet Internationa products. This case is strikingly akin to the aforesaid case. This advertising ban is a market distortion. The products already known in Poland have an unfair advantage. It is hard for this new competitor to get a foothold. Consumers will be left paying over the odds for products which may be below par in quality. The law against advertising is prima facie non discriminatory. However, as it operates in practise it discriminates against products coming from another member state. There is the freedom of establishment. One must be allowed to set up a business or professional practice in another EU state.

Advertising restrictions are sometimes permitted as in De Agostini. In that case Sweden was allowed to forbid advertising to children. This ban was upheld. As alcohol cannot be retailed to minors. The advertising rules are a selling arrangement and not a product requirement. States have more leeway with regard to selling arrangements.

In Doc Morris Germany was not allowed to stop a DUtch company selling medicines by mail order. This was because it was a measure having equivalent effect to quantitative restriction. It impacted more on foreign companies than German ones

The glass bottles rules is a product requirement since it concerns the physical properties of the product. Notwithstanding this is about the container and not the contents it is still a product requirement. Such a restriction will be allowed if it is pursuant to a legitimate aim and its proportionality is in keeping with the aim pursued. In this case there seems to be no proper purpose served by the said rule and it were it it dubious as to whether this is proportionate. The same aim could likely be realised by a less burdensome measure. This is discriminatory. The consumer protection and public health justifications will not stand.

This is like the Belgian butter and margarine case with the special shape for packages. That was Walther Rau. In that case the health aim could be achieved by labelling. Insisting on different packaging was disproportionate to the aim pursued. Moreover, it would have made the sale of foreign products uneconomic because of the costs imposed by the necessity of repackaging the product.

This is like Dassonville – Whisky in Belgium. The law is non discriminatory on the face of it. In reality it makes life harder for non Belgian companies. Therefore the law was unfair and was overturned.

Rewe Zentral AG v Bundesverwaltung fur Brantwein is a pertinent case. This is because a dual burden was not allowed. Germany was not permitted to insist that French brandy have the same alcohol content as Germany brandy. That would be unfair. This is analogous in this regarding Poland.

Keck and Mithouard is also a relevant case. That was about minimum beer pricing in France. The question is will this measure pass the Keck test? Probably it shall not.

Commission  v Italy (Mopeds) is one of the few cases which favours Poland. Here a member state was able to forbid the importation of products it ruled were dangerous.

The Intoxicating Substances Law and the other law are probably illegal. The clash with EU law. In that case they shall be struck down or more likely severed in part. This is as per Factortame. When the German constitution collided with EU law it was the former that had to change. These measures that Poland has imposed restrict access to the market in an unwarranted fashion. The general principle is there must be mutual recognition of products. There is not sufficient reason to allow the member state to derogate from this.

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General remarks This was a question on Article 34 TFEU (free movement of goods) and Article 36 (justifications) plus mandatory requirements. Law cases, reports and other references the Examiners would expect you to use C-8/74 Dassonville (Whisky in Belgium) [1974] ECR 837 C-120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649 C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097 C-34,35 & 36/95 KO v De Agostini [1997] ECR I-3843 C-405/98 KO v Gourmet International Products [2001] ECR I-1795 C-322/01 Doc Morris [2003] ECR I-14887 Case C-110/05 Commission v Italy (Mopeds) [2009] ECR I-519 LA3024 EU law 6

Common errors Not discussing distinctly/indistinctly applicable measures. Not assessing the Keck test. Not discussing proportionality. A good answer to this question would… The measures are indistinctly applicable but can restrict access to the Polish markets. Cases such as De Agostini and Gourmet are of course solid precedents that can be used in this context as they concern similar national provisions. On the issue of advertisement, candidates should discuss and probably dismiss the application of the Keck test, especially in light of the cases mentioned above. The question mainly revolves around whether public health grounds can be invoked successfully. Drawing inspiration from the case law on this specific ground, candidates should assess the proportionality of the measures, and in particular whether they think the measure is suitable to attain the aim of protecting public health and if any less restrictive alternatives are available. Recent case law of the ECJ has been rather generous towards member states (Gourmet, Doc Morris) thus it might be hard to show that the measures are disproportionate. Poor answers to this question… failed to identify the different measures and did not discuss the proportionality of the public health defence.

Student extract

”The facts clearly show that the Act applied equally to national and nonnational products, Thus there appears no discrimination. However Biborova can argue according to the well-established Cassis de Dijon case law that the Act posed a dual burden on the company. It not only had to comply with the provisions in its member state but also with the rules lay down in the host member state. More precisely Biborova can argue that the host Member state must respect the principle of mutual recognition laid down in Cassis De Dijon case. It can argue that it freely produced and marketed its product in its own Member state and therefore the second one must take this into consideration. However we need to consider Poland stance that the rules laid down in the Act protect consumers and concern public health. Any measure taken by the State must be proportionate to the objective to be achieved. In this case the State can rely on the mandatory requirement of consumer protection laid down again in Cassis de Dijon. Biborova can argue following the case of Walter Rau that the state measure is disproportionate as it requires that intoxicating substances can only be marketed in glass bottles, whilst a requirement of labelling would have been enough. Repackaging will also make it economically less attractive”

Comment on extract

The extract shows a good understanding of the issues involved. The candidate competently deals with the main issues with clarity and conciseness, presenting a straightforward legal opinion for the ‘client’. The issues are: first, why the national measure can be considered as violation of free movement of goods and on what grounds such a conclusion can be made; second, to ‘pre-empt’ possible objections or defences the member state in question might have. The extract does exactly that; it identifies in the dual burden and in the violation of the principle of mutual recognition the grounds for establishing a breach of Article 34 of the Treaty and moves then to possible justifications. These arguments are backed up with references to good case law. The answer then deserves a 2.1. Some further references to more recent case law – especially in the area of labelling and alcoholic products would have improved the answer. Examiners’ report 2014

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Question 6 ‘The question then is whether this Charter (the Charter of Fundamental Rights of the European Union) is likely to be an effective instrument for the furtherance of peoples’ rights in other countries, or for the protection of our own rights in instances where they are not fully enforced or respected. The answer, unfortunately, is quite clearly “No”. By its own account, the Charter merely establishes the rights which already exist on the basis of the common constitutional traditions and international obligations of the member states, listing the European Union’s own treaties and legal precedents as well as the European Convention for the Protection of Human Rights and Fundamental Freedoms. The language of the Charter is also often vague to the point of meaninglessness.’ Discuss.

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The statement is largely accurate.  Most of the provisions of the Charter of Fundamental Rights were found in the constitutions of most of the member states. The said document largely restated rights that had long been recognised. Moreover, it overlapped with the European Convention on Human Rights which was promulgated in 1948.

The Charter was drawn up in 2000. In 2009 it became part of the legal order of the EU in the Treaty of Lisbon. It was intended to be part of the European Constitution but that was voted down.

The Charter also complements the Universal Declaration of Human Rights. It repeats the ideas of the Convention on the Elimination of all forms of Discrimination Against Women, The Convention Against Torture, Inhuman and Degrading Treatment; the Convention on the Elimination of Racial Discrimination and so so forth. This is because the Charter bans torture and the death penalty. It says that all adults of sound vote may vote if not undergoing imprisonment for a crime. It states that there is the right to a fair trial and to juridicial personality. It outlaws racial discrimination. It bans gender discrimination.

The Charter has been pertinent in some cases such as International Association of Workers v Viking Abp. In this it was held that the right to free trade was more important than that of the right to protest.  This was when workers demonstrated and tried to prevent Viking Abp reflagging when that threatened their jobs.

The Charter is justiciable. Plainly this is relevant as it has been cited by the European Court of Justice in many cases.

It is pertinent in that it is used to judge the legality of the EU’s actions such as in Test Achats de Consommateurs Belges. In Test Achats the Gender Discrimination directive was put into Belgian law. Gender discrimination in car insurance was outlawed. SOme felt that the ECJ was legislating.

In Deustches Weintor eG the Charter was invoked. The court was ruling on health claims relating to an alcoholic drink. The court gave a wide definition of health. Those who claim their products have health promoting properties need to be able to prove them.

It is also used to judge the legality of member state actions such as in Fransson. The Akerberg Fransson a Swede was prosecuted in his own country for lying in his VAT returns and failing to declare employer’s contributions. He was sent to prison but also a fine was levied. The Court of Justice of the European Union had to adjudge whether this was ne bis in idem. As in the man was being penalised twice for the same act. This touched on the Charter of Fundamental Rights. But did the Charter even apply for an action which was entirely within the scope of a nation state? It did not impinge on EU law. The court found that the Charter was relevant in this case. The ECJ allowed the national court to make the determination as to what was a criminal and what was an administrative sanction.

As has been said the Charter was not intended to innovate. That is why it reformulates pre existing law. It was felt the EU needed something that was its own unique creation. The ECHR predated the EEC and even its antecedent in the shape of the EEC. The Charter drew on the jurisprudence of the EU and its constituent states. The Charter was also designed to cover Roman law countries and common law countries comfortably. The Charter was useful in bringing together all the key legal principles in a single document.

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Law cases, reports and other references the Examiners would expect you to use. Case C-438/05 Viking Line Abp [2007] ECR I-10779 C-236/09 Association belge des Consommateurs Test-Achats ASBL v Conseil des ministres, 1 March 2011 C-544/10 Deutsches Weintor, 6 June 2012 C-617/10 Fransson, 26 February 2013. Common errors

Not discussing the Charter. Not discussing recent case law. Not positioning the Charter in the context of EU law. A good answer to this question would… This question deals with the relevance of the Charter of Fundamental Rights: candidates should discuss the legal status of the Charter and in particular whether the fact that it is now legally binding has had any impact (Article 51). It is clear that the Court is now using the Charter both as benchmark for the legality of EU action (Test Achat) but also as an instrument to review member states’ action when this falls within the scope of the Treaty (Fransson). Thus a discussion of the importance of respect of fundamental rights in the EU should be included. In particular the relationship – perhaps very controversial – of the Charter with other instruments of human rights protection such as the ECHR or national constitutions should also be discussed. Poor answers to this question… An answer dealing with the EU and politics or discussing only protection of fundamental rights as a general principle of EU law with no reference to the Charter.

 

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Question 7 ‘To accept an endless variation on the application of the proportionality test endangers the uniform application of EU law as this test is becoming too unpredictable. The Court should at least make explicit the criteria it uses to determine what kind of scrutiny it employs to determine the lawfulness or unlawfulness of Members States’ actions.’ Discuss

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Proportionality is a key principle in the EU. For instance member states are allowed to restrict the four fundamental freedoms if doing so in pursuit of a legitimate policy goal and of the measure doing so is proportionate to the stated objective.

Proportionality relates to actions which appear to infringe the   European Convention on Human Rights. For instance there is a right to life however the state is allowed to kill when this is a proportionate response to a riot or rebellion. Moreover, there is the right to freedom of expression. Yet the state is entitled to fix limits to this as long as there are proportionate to what is needed in a democratic society to uphold good order and morality.

The ECJ does not have a stare decisis principle but does try to be broadly consistent with earlier rulings. Therefore uniform practice is less imporant for European jurisprudence than it is for common law countries. (Only 4 out of 28 EU countries follow common law). This seems odd since in Roman law one strives for consistency above doing justice in the particular circumstances of the case.

 

Predictability is a desirable outcome. It accords with some classical legal principles such as nul crimen sine lege.

Proportionality is also in consonance with some hoary legal precepts such as de minimis non curat lex.

In the case of Schmidberger the ECJ had to decide on protests in Austria that blocked a road and disrupted trade between various EU member states. Should Austria have prevented this protest? Here two EU objectives collided. One is free trade and the other is freedom of expression. Both these matter and one must judge the proportion to which one may be permitted to infringe the other in relation to the specific situation. In this case the court ruled that the demonstration was allowed and Austria was correct in allowing it to go ahead notwithstanding the disruption to trade that it engendered. The court set out its criteria for arriving at this summation.

Omega was another case where proportionality was adduced. Here Germany wished to prohibit toy laser guns because they were used in a game that simulated killing people. This violated a German constitutional principle that the sanctity of people is sacrosanct. Here the court had to weigh this German constitutional nostrum against the free movement of goods. The Court held that the German ban on such toys was a proportionate infringement on the free movement of merchandise.

In Walter Rau the court came to a different conclusion. Belgium insisted that butter and margarine be packaged in different shaped containers to prevent consumers mixing them up. This measure was implemented with a view to promoting human health. The Court ruled that this law was unduly burdensome. The laudable objective could be adequately attained simply by proper labelling. That was a more suitable way of achieving the same goal.

Likewise when Germany sought to prohibit the trade name Clinique on beauty products because consumers might think the product had health giving properties this measure was not allowed. It was disproportionate to the aim pursued.  The court seeks common standards on goods.

In Dassonville Belgium was not able to insist on a special whisky important licence. That was too onerous for non Belgian importers. A less burdensome measure could be adopted which would achieve the same outcome.

Spain has been allowed to limit alcohol advertising. This is proportionate to the aim pursued which is protecting human health. A total ban would be too much.

The court will look at sanctions. If they are too severe that would be disproportionate. States must calibrate their policies correctly.

States are allowed different laws on gambling.

Market integration is one of the core functions of the EU.

 

 

 

 

 

 

 

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. LA3024 EU law 8 Law cases, reports and other references the Examiners would expect you to use Case C-112/00 Eugen Schimdberger [2003] ECR I-5659 Case C-36/02 Omega [2004] ECR I-9609. Common errors Not answering the question asked. Discussing the organisation of the Court. A good answer to this question would… Arguably this is one of the key principles that allowed the Court to balance the need to further market integration with the preservation of public aims. Candidates should first discuss how the test applies (suitability and less restrictive alternative) highlighting the intensity of judicial scrutiny and how the Court used proportionality as a way of laying down common standards (see for instance the case law on labelling). They should then discuss whether the Court has always been consistent in its application. Cases such as Schimdberger, Omega or the gambling case law could offer good examples to show that in reality the test can be subject to different variations depending on the grounds invoked by member states. Poor answers to this question… failed to identify proportionality and did not use examples to discuss the issue.

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Question 8 ‘Recent judgments in the “post-Zambrano” phase clearly show that the Court is revisiting its case law on the application of EU citizenship rights.’ Discuss.

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The Zambrano case was about a Colombian couple living illegally in Belgium. Their children were Belgian citizens. Could the parents stay? Yes, they could because their children were Belgians and to kick out the parents would effectively remove the children too. That would be depriving Belgians of the right to dwell in their own country.

The Maastricht Treaty 1993 established European citizenship which supplements and does not replace national citizenship. This means that citizens of a member state are allowed to reside and work in any other member state under normal circumstances. There are exceptions when someone is excluded because of a serious criminal record or because of a communicable disease. People can be kept out if their presence is felt not to be conducive to the public good. This is very unevenly applied. A Lithuanian man who spent time in prison in his own country because he murdered his wife was allowed to live in the UK.

Gert Wilders a Dutch politician was banned from entering the United Kingdom in 2009 despite being invited by British politicians to address a public meeting.

The ECJ has expanded the concept of EU citizenship in various judgments. In 2004 the Zhu case demonstrated this. A girl was born in Northern Ireland to Chinese parents who were in the UK illegally. Because the baby was born in Ireland she was an Irish citizen. This was despite the fact she was born in the British part of Ireland. The Irish Constitution said that anyone born in Ireland was an Irish citizen – there were no exceptions. She was allowed to stay in the UK because she was the citizen of another EU state. Her parents and brother were also allowed to remain in the UK because the right to family life enshrined in the European Convention on Human Rights.

In Grecsylzkyk the Court held that a Frenchman living in Belgium was entitled to the same student status as a Belgian. He could not be discriminated against on the sole grounds of being French.

In the Metock case in Ireland. Here a Cameroonian stayed in Ireland illegally. He was married to a Briton. He was allowed to remain in Ireland by the Court. A member state is not allowed to apply conditions to bringing a citizen of a non EU state in as a spouse unless these conditions relate to the fundamental interests of society. Any illegality will be penalised by a fine and not something so severe as breaking up the family. The EU and not member states regulates the right of non EU nationals who are member states moving into the EU.

In Baumbast a child was in a course of study. The parents were in the country illegally but the child was a citizenship of the country. The primary carer was allowed to stay in the country until the child completed education.

In McCarthy an Irishwoman living in the UK was married to a Jamaican who was in the UK illegally. Could he remain? No, he could not because his wife could not financially support him.

In Dereci relatives of Austrian citizens applied to move to Austria. They were refused.

This shows that the ECJ is revisiting its case law. It is constantly expanding the notion of EU citizenship.

 

 

 

 

 

 

 

 

 

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General remarks Question on the very recent case law on the application of Articles 20 and 21. Law cases, reports and other references the Examiners would expect you to use Case C-127/08 Metock [2008] ECR I-6241 Case C-34/09 Zambrano, 8 March 2011 Case C-434/09 McCarthy, 5 May 2011 Case C-256/11 Dereci, 15 November 2011. Common errors Not discussing post-Zambrano case law. Not critically assessing ECJ case law. A good answer to this question would… analyse the turning point cases such as Grezclscyk and Baumbast and Zambrano where the Court declared EU citizenship as the fundamental status of individuals. It also held that citizenship rights are enforceable regardless of the exercise of an economic activity. However, the question required in particular an analysis of the post-Zambrano case law. The McCarthy and Dereci judgments mark a decisive change in the direction of the case law as the Court nearly overruled the very generous approach taken in Zambrano (genuine enjoyment of citizenship rights). Candidates should discuss if this is so because of the specific circumstances of the cases (all dealing with third countries nationals) or where this case law can have an impact on the general notion of citizenship. Poor answers to this question… Merely discussed old case law or just Zambrano with no critical assessment of recent developments.

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About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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