Examiners report 2013 LA3024 EU law Zone B 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) (ii) 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. 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?). Student extract On the application of the Keck test: 2
In this part we can see that Italy will soon ban advertisement of junk food. From the facts we can say that this is a selling arrangement and not a product requirement beca this legislation does not require any change to the product but concerns marketing. Here we need to consider the Keck principle. According to this case if the measure is a selling arrangement and it applies equally in law and fact the intra-community trade is not affected. Here we first see that this is not a product requirement but a selling arrangement and this rule applies for everyone, both domestic and foreign products. Now we need to consider the effect in both in law and fact. In law we can see this test has its applicability (Punto casa) but problems raise for the in fact test beca domestic products are already familiar to the Italian citizen and for importers like Litter & Co. it might be difficult to expand their business [ ] Moreover in Schutzerveband the ECJ held that the ban on advertisement was not disproportionate beca there was already some other chance to advertise. However in Leclerc Siplec the Court held that a ban on every way of advertisement was nor proportionate thus for Litter and Co. it is really difficult if Italy bans all averstiment on junk food. In Gourmet, the Court also concluded that a national rule banning all advertisement does not apply equally in fact as without advertisement the imported product will remain alien to the consumer. Comment on extract Most candidates struggled with the application of the Keck test. This candidate, in the extract above, correctly placed the analyses of Keck at the very beginning of their analysis. It is the right place as the first issue to discuss in this question is whether the rule can be considered as a selling arrangement or a product requirement. The candidate then discusses whether the rule affects trade in an equal manner in law and fact. If it is concluded that the Keck test applies, the rule falls outside the scope of EU law, and thus there is no engagement of the Treaty. In short, there is no breach of EU law. On the contrary, if it is shown that the measure prevents access to market this will be considered as a breach of Article 34 TFEU. The analyses can then move to proportionality, Thus Keck is not a justification; it is a test that if satisfied makes the national rule immune from scrutiny. Another difficult point is the actual application of the test itself, in particular the question of equality in fact. The candidate here although the form could have been better rightly focs on the case law of the ECJ dealing with advertisement restrictions. It has to be shown that a total ban deprives the trader of any possibility of penetrating another Member State s market. Moreover, a total band would still favour the national producers as they are already familiar with the market structure. The passage, although in a slightly convoluted way, s the case law correctly and identifies the problem for the client. Interpretation of the question: very good Relevance of the answer to the question: good Substantive knowledge: good Use of authorities: very good Articulation of argument: good Accuracy of information: good Clarity of expression: satisfactory Legibility: satisfactory. 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. 3
LA3024 EU law 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 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 4
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. Student extract On Yusuf s position as a worker: The word worker is not defined in any EU treaties or any secondary legislation. However in Lawry Blum, the Court referred to the conditions for someone to qualify as a worker. This means that the concept and the same meaning is ensured throughout the Union and is not subject to variations in national legislation. The key criteria is: providing an activity for someone else for monetary reward. Anyone who works part time or for low wages will almost certainly qualify for Article 45 protection regardless the level of remuneration (Trojani, Levin, Knopf). The minimum condition is that the worker is providing a genuine effective activity. After concluding that Yusuf cannot qualify as an EU worker, the candidate turns to other possible grounds: The loss or acquisition of nationality is purely a matter of national law (Micheletti- Kaur, Chen). However the most significant right of citizenship is the right to move and reside freely within the territory of the MS. (Art 21 of TEFE) This provision is directly effective (Baumbast and R) Citizens may invoke article 21 in combination also with the general rights of nondiscrimination against national of other member states (Martinez Sala Bidar). Comment on extract The style is extremely concise but all the relevant points are examined. The of case law is perfect. In particular, as the question asks the candidate to play the Advocate General, the candidate rightly decided to exhaust all possible avenues. Thus despite not being strictly necessary, the question whether Yusuf could somehow have been assimilated as an EU worker is examined. The analysis of the notion of worker displayed a good command of the case law of the Court. When the candidate turns to the citizenship point once again, despite the brevity of the passages, the analysis is good. It is particularly important that before turning attention to the trilogy of cases relevant to this problem question (Zambrano, Mc Carthy and Dereci) the candidate reminds us of a fundamental point: that Article 21 has direct effect, and thus it can be d by applicants. These extracts show that complex problem questions can be concise and exhaustive at the same time. Interpretation of the question very good Relevance of the answer to the question: very good Substantive knowledge: very good Use of authorities: excellent Articulation of argument: good Accuracy of information: very good Clarity of expression: good Legibility: good. 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 5
LA3024 EU law 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. concentrated too much on market analysis and not on the law. Question 4 Rodriguez has worked as a bullfighter in Spain for the last two years and is famous for the number of bulls he has killed. He decides to start bullfighting in Portugal as well. He also advertises a four-month summer school in Portugal and intends moving to Portugal to teach the course. Spain does not require its bullfighters to obtain any formal qualifications but in Portugal, before one is allowed to fight, it is necessary to pass a written test on the history of Portuguese bullfighting and to complete a number of evaluated practical exercises designed to ensure adequate safety and animal welfare standards. Portuguese legislation allows bulls to be baited but not killed for entertainment purposes. Rodriguez is warned that he will be prosecuted if he decides to start bullfighting in Portugal. Advise Rodriguez. The question refers to the application of free movement of services Article 56 TFEU and the possible justifications. 6
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. Focus only on free movement of workers. No assessment of proportionality. Candidates should discuss which free movement provisions could be engaged. The main debate should be between services and establishment. Free movement of service should be considered as the main issue as the facts refer to a temporary provision of an economic activity (even if he moves to Portugal for four months Gephardt test). The measure can be therefore considered as an obstacle restricting access to the market under the case law of the Court interpreting Article 56 TFEU. Next comes the point of a possible justification likely under the public policy exception under Article 52 TFEU. However, as the measure is indistinctly applicable, new grounds can be raised (for instance, animal welfare has never been discussed before in the area of services). Finally, candidates should asses the proportionality of the measure. In particular, sanctions are very severe (prosecution) so perhaps disproportionate. However, recent case law of the Court such as in the gambling area (BWIN) stresses the importance of respecting cultural differences. Question 5 The principles laid down by the Court in Van Gend en Loos and Costa v Enel judgments are essentially one: the need to ensure the effectiveness of EU law by empowering individuals. Discuss. Question dealing 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 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 these two fundamental doctrines. As clarified by the CJEU in Van Gend en Loos and Costa, effective application of EU law and individual rights protection are two sides of the same coin: individuals are charged with the task of enforcing EU rights. Candidates need to assess how far these doctrines can go: for instance, horizontal effect of Treaty provisions (Defrenne, Viking) and the question of the lack of horizontal effects for Directives. Candidtes should discuss the case law of the CJEU on this question (Marshall, 7
LA3024 EU law Faccini Dori) and then explore the possible alternatives: the most important being the doctrine of consistent interpretation (Van Colson, Marleasing, Pfeiffer) and state liability (Francovich, Factortame). No real discussion on the two facets of direct effect and whether they are compatible with each other. Question 6 In applying the market access test to all fundamental freedoms, the European Court of Justice is forced to find more and more new grounds of general interest under which national legislation may be cleared. Discuss. This deals with the fundamental importance of the grounds available for justifying a breach of free movement provisions. C-379/98 PreussenElektra [2001] ECR I-2099 C-112/00 Eugen Schmidberger [2003] ECR I-5659 C-36/02 Omega [2004] ECR I-9609 Discussion of the free movement of goods only. By expanding the scope of application of free movement, the Court was forced to accept not only traditional justifications such as environmental or consumer protection, but also the need to preserve press diversity, the protection of children, food safety, the fight against alcoholism and so on. Candidates should then discuss one of the main problems in this process: whether (overtly) discriminatory measure can be justified on grounds not expressly mentioned in the Treaty (Aragonesa) and weather it is inappropriate to have different grounds depending upon whether the measure is discriminatory (directly or indirectly) or whether it involves a nondiscriminatory restriction (see Preussen Elektra for a very weak Court decision). Focd on one economic freedom or just on the access to market test. Question 7 Some commentators perceive the Charter of Fundamental rights as an unnecessary complication. Instead it symbolises what the EU and the Court of Justice case law stand for: the affirmation of the principle of equality and protection of individual rights. Discuss. This was a 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 8
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. This question deals with the relevance of the Charter of Fundamental rights. Candidates should discuss its legal status how the Court is using it both as benchmark for the legality of EU action and for Member State action (see Recent developments case law of February 2013). Candidates must analyse how the ECJ developed a human rights acquis by relying on the idea of general principles of EU law. Cases such as Nold, Wauchauf or ERT could be mentioned. 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 Acahat). Did not discuss the status of the Charter after Lisbon. Question 8 The proportionality test is the principle that regulates what is lawful or unlawful under EU law. Discuss. Discussion of one of the most important general principle of EU law: proportionality. C-120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649 Case C-36/02 Omega [2004] ECR I-9609 Case C-42/07 CA/LPFP (BWIN) judgment of 8 September 2009 Random discussion of direct effect or supremacy. Candidates could discuss the meaning of the principle and the test d by the Court. They should discuss how the Court d it as an instrument of integration and market regulation, that is, to propose specific standards that Member States had to apply (see for instance the labelling case law Rau). They should, however, also analyse the recent case law of the Court. In the last few years the Court has been rather soft with Member State derogations a soft proportionality approach relying on the national conception of certain possible justifications and deferring to the national scale of values (see, for instance, Omega and gambling case law). Simply stated what the principle is about without any discussion on its intensity, its variations and so on. 9