Examiners report 2013

Examiners report 2013 LA3024 EU law Zone A Introduction The examination paper for EU law consisted of a mixture of essays questions and problem questions. There were two slight differences to previous years: generally the emphasis was more on the constitutional and substantive elements of EU law and less focd on the institutional aspects. Also, several questions were on extremely topical points of EU law. It was therefore crucial that candidates had read and absorbed the Recent developments. Some of the answers were particularly good in criticising some recent decisions of the European Courts, and made specific alternative proposals. In some of the constitutional questions, topical issues such as the impact of the financial crisis on EU governance were included, showing extra reading and awareness of current affairs. Unfortunately, there were several instances of candidates providing answers totally unrelated to the questions or using, nearly verbatim, the same answer provided for another question to reply to a different one. It is was also quite clear that some candidates had already pre-prepared a standard answer that was simply copied and pasted regardless of the specific issues raised by the questions. It is important therefore to stress that it is always good practice to take time to read the examination questions properly and not to rush to answer the ones that at first sight look more approachable. Furthermore, candidates should not simply write everything they know about a particular topic but should address the issues raised by the questions. Another general issue is the managing of time. Many candidates have struggled to answer the four questions exhaustively. In many cases two or three answer are followed by a mere paragraph or nothing at all. In some cases this could be attributed to lack of knowledge. However, time management seems also to be an issue for potentially good candidates. In some instances, writing two or three outstanding answers meant that the candidate run out of time and could not answer a fourth question. Specific comments on questions Question 1 Litter & Co. is a UK company producing chocolate biscuits called ChocoCrunch. It is about to market its products across the EU and seeks your advice as to the compatibility with EU law, assuming the following facts: 1

LA3024 EU law (i) That advertisement of junk-food is soon to be banned in Italy and TV junk-food advertising is going to be banned between noon and 9.30pm week days and all weekend in Germany. (ii) It has introduced a Sport for Schools scheme which is clearly advertised on the ChocoCrunch wrappers. Under the scheme, for every 1,000 ChocoCrunch wrappers returned to them, the company will provide schools with a piece of sporting equipment. Poland does not allow for the provision of gifts upon purchase, including token collection schemes, nor does it allow for junk-food to be associated in any way with healthy activities, including sports. This question refers to free movement of goods and the application of Article 34 TFEU and possible justifications. 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 C-110/05 Commission v Italy (Mopeds) [2009] ECR I-519 No discussion on distinctly/indistinctly applicable measures. No assessment of Keck test. No discussion on proportionality. Point (i) deals with indistinctly applicable measures and whether they could be classified as a measure equivalent to a quantative restriction (MEQR) under the Dassonville and Cassis De Djon test. Candidates should, however, discuss whether the Keck test applies (selling arrangements equality in law and fact), with reference to cases such as De Agostini but also Gourmet and Doc Morris. Candidates could then go on to discuss whether the recent case law such as Commission v Italy (Mopeds) signals the end of Keck. If they conclude that access to market is restricted, they will move on to justifications (public health? consumer protection? children protection?) and to proportionality (is there a causal link between the measure and the protection of a specific public aim and is there any less restrictive alternative?). Point ii) deals with another indistinctly applicable measure and a possible application of Keck (selling arrangement or product requirement?). An extremely relevant precedent could be found in Familiapress. If they conclude that access to market is restricted they will move on to justification (public health? consumer protection? children protection?) and to proportionality (is there a causal link between the measure and the protection of a specific public aim and is there any less restrictive alternative?). 2

Student extract On discussing possible justifications to the breach of Article 34 TFEU: Mandatory requirements can only be invoked to justify indistinctly rules (Commission v Ireland). Italy and Germany may argue that there is a mandatory requirement that is consumer protection and thus the rule falls outside Article 34 of TFEU. Member states must prove that the rule requiring test inspection is proportionate to consumer protection (Walter Rau). [ ] There is another exception to Article 34. It was held that Article 34 would not be applied to selling arrangements provided that the provision applies to all traders and affected in the same way in law and fact the marketing of domestic products and products from another country (Keck). Comment on extract The passage is substantially correct and it refers to relevant and appropriate case law. However, some of the answer is inaccurate and it fails to provide an adequate opinion to the client seeking legal advice. It is debatable whether mandatory requirements mean that the measure is not caught by the Treaty. It is more likely that although a breach of the Treaty has been established, such a breach can be justified. This is the reason why, correctly, the candidate moves to the application of the proportionality test, the principle that needs to be satisfied to save the national measure. The candidate also correctly draws attention to the Keck test. However, in this case we are not dealing with a justification to Article 34. If the Keck test is satisfied, EU law is not engaged; that is to say, Article 34 is inapplicable. The answer does not satisfactorily provide advice for the company. The candidate states that the measure could be considered proportionate on the grounds of consumer protection. However, he or she does not give us any clue on why this could be so. Was the measure suitable? Were there any other less restrictive alternatives available? Although the facts of the case are scarce, candidates should at least attempt to explain how the proportionality test should operate. Thus the mark is in the region of low 2.2, as although it is correct, the answer is not well developed. Interpretation of the question: satisfactory Relevance of the answer to the question: satisfactory Substantive knowledge: satisfactory Use of authorities: good Articulation of argument: satisfactory Accuracy of information: poor Clarity of expression: poor Legibility: good Question 2 Yasif is an Algerian national. He unlawfully entered in France in 2005 and applied for political asylum. His application was eventually rejected in 2007. That year he met Dominique, a French national. The couple fell in love and married in 2008 and now have two children. For a few years Yasif did various jobs. Dominique was employed by the University of Paris as an IT coordinator until 2011 when she was made redundant. In 2012, Yasif applied for a residence permit and residence document under European Union law as the husband of a Union citizen. Yasif argues, in particular, that without a residence permit he has been unable to work, at least not lawfully. The French authority refs his applications. It also alerts 3

LA3024 EU law the Immigration authorities who, after considering Yasif s status, decide to order his expulsion from France. In the meantime, Dominique, following her redundancy, applies for unemployment and children benefits which are duly granted. In 2013, Yasif decides to appeal against the decision to deport him. Yasif challenges the decision on the grounds that: (a) Articles 20 and 21 TFEU confer a right of residence upon a national of a non-member State lawfully married to a citizen of the Union and the deportation order would have the effect of depriving a EU citizen of the rights protected by those provisions; (b) That Article 20 in conjunction with the provisions of Articles 21, 24 and 34 of the Charter of Fundamental Rights, must be interpreted as meaning that the right of a minor child who is a national of a Member State to reside in that State must entail the grant of a work permit to a parent (who is a national of a non-member State) upon whom the child is dependent. The French Court decides to stay proceedings and refers these questions to the ECJ. You are the Advocate General assigned to the case; write your opinion. The question refers to the judicial application of citizenship, in particular of Articles 20 and 21 TFEU. C-34/09 Zambrano judgment of 8 March 2011 C-434/09 McCarthy judgment of 5 May 2011 C-256/11 Dereci judgment of 15 November 2011 Directive 2004/38 on the rights of EU citizens Charter of Fundamental Rights Discussion limited to free movement of workers. No new cases. Ignorance of the relevance of the Charter of Fundamental Rights. Candidates should discuss the Court turning point cases such as Grezclscyk and Baumbast where the Court declared EU citizenship as the fundamental status of individuals. Candidates can refer in particular to cases where the Court held that the rights of family life (Chen) are protected by the provisions of EU citizenships. The question however deals more directly with application of three new cases: Zambrano, Mc Carthy and Dereci. Yasif needs to try to distinguish his case from that of Mc Carthy and Dereci, emphasising the effects of a deportation order on his family (genuine enjoyment of citizenships rights). Secondly, candidates should discuss whether the matter falls within EU law (purely internal situation), and if it does, whether the Charter should apply those articles protecting family life and children s rights. 4

Question 3 Alpha Plc. and Beta Ltd. make milk chocolate to the traditional Choco recipe, and their products are popular mainly in the United Kingdom and Ireland. These products are also bought by consumers in France, Belgium and some other Member States of the European Union, although consumers in these other States generally prefer milk chocolate made to a different recipe. Alpha has a 30% market share, Beta has a 10% market share and other manufacturers each have less than a 5% market share of the Choco recipe chocolate in the EU. This market structure has been approximately the same for the last 10 years. Alpha has a longstanding agreement with Beta which allows Beta to some of its distribution facilities, at a certain price, and recently other manufacturers of Choco recipe chocolate bars have reached agreement with Alpha to these same distribution facilities. However one of these companies, Zocco, has found out that the price paid by Beta under this agreement is 10% less than the price paid by the other companies. Advise Zocco. This is a question about competition law. It concerns a case on Article 101 TFEU, dealing mainly with the notion of agreement/concerted practice. Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C- 129/85 Ahlström Osakeyhtiö and others v Commission [1993] ECR 1307 C-851/76 Hoffman La Roche v Commission (Vitamins) [1979] ECR 461 322/81 Michelin NV v Commission [1983] ECR 34 The question was sometimes dealt with under free movement instead of competition law. Candidates should discuss whether the of distribution facilities can infringe competition law. There are probably no exceptions applicable. A reference to possible ab of dominant position under Article 102 TFEU could be accepted as well. Poor answers to this question concentrated too much on market analysis and not on the law. Question 4 Direct effect is not mentioned anywhere in the Treaties. How did the ECJ develop the doctrine and apply it to different types of Community law? Has the Court gone too far? This question deals with the development and application of the constitutional doctrine of direct effect. 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 43/75 Defrenne v Sabena [1976] ECR 455 C-91/92 Faccini Dori [1994] ECR I-3325 5

LA3024 EU law C-106/89 Marleasing [1990] ECR I-4135 Joined cases C-6 and C-9/90 Francovich and others [1991] ECR I-5357 Listing of cases with no structure to the answer. Candidates should discuss the importance of this doctrine and explain why it is so relevant. Candidates should then check the criteria for applicability of direct effect to different sources of EU law: to the Treaty clear, precise and unconditional; to Regulations by definition; and to Directives same conditions as Treaty articles plus expiry date for their implementation. They should then analyse the difference between horizontal applicability of Treaty Articles (Defrenne, Viking) and lack of horizontal effects for Directives (Marshall, Faccini Dori). They should then explore the possible alternatives: the most important being the doctrine of consistent interpretation (Marleasing) and state liability (Francovich, Factortame). Poor answers to this question did not comment on where the Court has gone too far and on the reasons why direct effect is important for the development of EU law. Student extract On discussing the lack of horizontal direct effect for directives: Advocate General Slynn advised the ECJ that Directives should be given direct effect otherwise it would create inequality. The advice was given in Faccini Dori. But the ECJ confirmed its traditional approach and in order to solve the problem of people, the ECJ developed the concept of indirect effect. In van Colson it said that national courts are under a duty to interpret the national law in the light of the wording and purpose of the directive but with few limitations that is where no other interpretation will lead to criminal liability the directive shall not be given an indirect effect. Comment on extract The candidate deals here with one of the most intricate problems of direct effect: the lack of horizontal direct effect for directives. The candidate correctly cites the Advocate General as an invitation to the Court to change its case law, and then moves to possible alternatives to the fact that the Court keeps denying that directives can be directly effective between individuals. The creation of the doctrine of indirect effect is one of these alternatives. However, the answer totally fails to explain why such a doctrine could replace horizontal direct effect (i.e. beca the duty of consistent interpretation is applicable regardless of the parties involved, whether the directive predates it or it is subsequent to the national law in question). It does not mention the relevant case law, it does not explain how the Court has developed such a principle (now defined by the Court as inherent in the Treaty ) and jumps to the rather minor point of the inapplicability of the doctrine in cases of possible criminal liability. Thus, the answer is adequate as it tackles some of the thorniest issues and it is substantially correct but it is entirely underdeveloped. The language is also a bit sloppy. For example, the Court does not say, it holds, has established and so on. The people is also too vague. Does this refer to the applicants? Individuals? Thus the mark is in the region of low 2.2 as although correct, the answer is not well developed. Interpretation of the question: satisfactory Relevance of the answer to the question: poor Substantive knowledge: satisfactory 6

Use of authorities: poor Articulation of argument: poor Accuracy of information: poor Clarity of expression: poor Legibility: good Question 5 In the Kadi judgment the ECJ held that measures incompatible with respect for human rights are not acceptable in the Community. Critically analyse whether the contribution of the ECJ in protecting human rights is satisfactory. Question on the development of an EU human rights law dimension in the case law of the Court. C-438/05 Viking Line Abp [2007] I-10779 Joined cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council [2008] ECR I-6351 C-236/09 Test Achat judgment of 1 March 2011 C-617/10 Åkerberg Fransson judgment of 14 February 2013 Discussing direct effect and supremacy. Failure to discuss the relevance of the Charter. In Kadi the Court held that protection of human rights is an essential feature of the EU legal order. Candidates could discuss the importance of this judgment in the context of UN sanctions against suspected terrorists and trace the evolution of human rights protection in the EU, first as a general principle of EU law and later based on a legally binding Charter of rights. They should then assess whether the Charter is adding anything extra both in terms of what kind of rights can be protected (see solidarity) and in terms of intensity of review (cases such as Test Achat). Question 6 The notion of citizenship of the Union implies a commonality of rights and obligations uniting Union citizens by a common bond transcending Member State nationality. The introduction of that notion was largely inspired by the concern to bring the Union closer to its citizens and to give expression to its character as more than a purely economic union. The Court case law simply reflects these developments. Discuss. The question refers to the development of the case law on citizenship rights. C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'ottignies-louvain-la- Neuve [2001] ECR I-6193 7

LA3024 EU law C-413/99 Baumbast, R v Secretary of State for the Home Department [2002] ECR I- 7091 C-34/09 Zambrano judgment of 8 March 2011 Discussion of European integration in general. Candidates should analyse the first tentative steps taken by the Court (Martinez Sala) and the turning point cases such as Grezclscyk and Baumbast where the Court declared EU citizenship as the fundamental status of individuals. It also held that citizenships rights are enforceable regardless of the exercise of an economic activity. Very good answers would discuss controversial judgments such as those post-zambrano: Mc Carthy and Dereci. Poor answers to this question Many answers concentrated too much on free movement of workers and the Directive only. No reference to recent developments. Question 7 In a recent article the former President of Germany, Roman Herzog, argued that the ECJ is deliberately and systematically ignoring fundamental principles of western interpretation of law: its decisions are based on sloppy argumentation, it ignores the will of the national legislator and simply makes up legal principles. In short, the ECJ undermines the competences of the member states even in the core of fields of national powers. Discuss. This question deals with the role of the ECJ in shaping the EU law system. Many answers focd on the structure of the court only, not its role, or discussed direct effect or supremacy only. Accusations of judicial activisms have been leveled against the Court for many years. Candidates can decide to examine a specific area, such as for instance the application of the principle of supremacy, or the development of the notion of citizenship, or the expansion of competences under Article 114 TFEU. Generally they should focus on the peculiar characteristic of the EU law order that is essentially a common law type and on whether the Court had interfered too much into member state prerogatives. 8

Question 8 Count Hubert De Vallelongue, a French national, is a keen fox hunter. He regularly visited the UK between 2002 and 2012 to pursue his passion. Each visit he rented a mansion ho in Hertfordshire, complete with a stable for 15 horses, and rented a pack of foxhounds from a local resident. The cost was around 54,000 per visit. In 2012, as usual, he came to Hertfordshire, and together with his guests proceeded to the first hunt of the season. However, he was stopped by the local police force and fined for having breached the law, in particular, the Fox Hunting Act 2011 (a fictitious Act) which bans fox hunting. In the ensuing proceedings, Count Hubert contends that such an act has to be considered as a violation of his freedom to move. The English court decides to make a reference to the European Court of Justice. You are the Advocate General in the case. Please write your Opinion. The question refers to the application of free movement of services Article 56 TFEU and the possible justifications. C-384/93 Alpine Investments [1995] ECR I-1141 C-36/02 Omega [2004] ECR I-9609 C-42/07 CA/LPFP (BWIN) judgment of 8 September 2009 Failure to identify the relevant economic freedom. Focusing on free movement of goods or supremacy of EU law. Candidates should focus on the temporary nature of the activities performed by the Count in the UK: on the fact that the ban prevents him from receiving a series of economic services and how this can be classified as an obstacle to trade (Alpine Investments). They should then move on to possible justifications and the question of what kind of ground can be invoked by MS (animal welfare? Environmental protection?). Finally, an assessment of the proportionality of the measure should be included. 9