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 focused 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:

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(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.
General remarks
This question refers to free movement of goods and the application of Article 34
TFEU and possible justifications.
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
C-110/05 Commission v Italy (Mopeds) [2009] ECR I-519
Common errors
No discussion on distinctly/indistinctly applicable measures. No assessment of Keck
test. No discussion on proportionality.
A good answer to this question would…
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?).

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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 refuses his applications. It also alerts

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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.
General remarks
The question refers to the judicial application of citizenship, in particular of Articles
20 and 21 TFEU.
Law cases, reports and other references the Examiners would expect you to
use
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
Common errors
Discussion limited to free movement of workers. No new cases. Ignorance of the
relevance of the Charter of Fundamental Rights.
A good answer to this question would…
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.

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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 use some of its distribution facilities, at a certain price, and
recently other manufacturers of ‘Choco’ recipe chocolate bars have reached
agreement with Alpha to use 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.
General remarks
This is a question about competition law. It concerns a case on Article 101 TFEU,
dealing mainly with the notion of agreement/concerted practice.
Law cases, reports and other references the Examiners would expect you to
use
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
Common errors
The question was sometimes dealt with under free movement instead of
competition law.
A good answer to this question would…
Candidates should discuss whether the use of distribution facilities can infringe
competition law. There are probably no exceptions applicable. A reference to
possible abuse 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?
General remarks
This question deals with the development and application of the constitutional
doctrine of direct effect.
Law cases, reports and other references the Examiners would expect you to
use
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

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C-106/89 Marleasing [1990] ECR I-4135

Joined cases C-6 and C-9/90 Francovich and others [1991] ECR I-5357
Common errors
Listing of cases with no structure to the answer.
A good answer to this question would…
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. because 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

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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.
General remarks
Question on the development of an EU human rights law dimension in the case law
of the Court.
Law cases, reports and other references the Examiners would expect you to
use
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
Common errors
Discussing direct effect and supremacy. Failure to discuss the relevance of the
Charter.
A good answer to this question would…
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.
General remarks
The question refers to the development of the case law on citizenship rights.
Law cases, reports and other references the Examiners would expect you to
use
C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-
Neuve [2001] ECR I-6193

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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
Common errors
Discussion of European integration in general.
A good answer to this question would…
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.
General remarks
This question deals with the role of the ECJ in shaping the EU law system.
Common errors
Many answers focused on the structure of the court only, not its role, or discussed
direct effect or supremacy only.
A good answer to this question would…
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.

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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 house 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.
General remarks
The question refers to the application of free movement of services – Article 56
TFEU and the possible justifications.
Law cases, reports and other references the Examiners would expect you to
use
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
Common errors
Failure to identify the relevant economic freedom. Focusing on free movement of
goods or supremacy of EU law.
A good answer to this question would…
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.