Eu Report 2019 A PDF

Examiners’ reports 2019
LA2024 EU law – Zone A
Introduction
The examination papers for Zones A and B were based on the standard format
consisting of a mix of essays questions and problems questions. The content
reflected the syllabus of the module guide, the recommended readings and on the
EU law Pre-exam updates. Examiners were generally rather satisfied with the
results not only in terms of pass/fail rate but in terms of marks as well. There were
unfortunately some bad fails and some of the papers were not completed. It is,
however, important to note that consistently with the previous year, the clear
majority of papers – even the weakest one – at least showed some understanding
of the topics. Answers completely unrelated to the questions disappeared. There is
a marked tendency to answer those questions mostly related to individual rights
(such as those on citizenship and on the use of human rights). Some of the
intricacies of EU law (such as direct effect) are – despite being the core of the
course – for some students still problematic. We would also like to reiterate an
observation we made in all previous years: time management. Many candidates
have struggled to answer the four questions evenly. Quite clearly, some
students spent too much time answering two or three questions and had to
resort to either excessively short answers or, in some cases, just a skeleton
answer. It should be reiterated that the assessment of the exam is on four
answers and students should always be encouraged to learn how to manage
time effectively, devoting equal time and attention to each of the questions.
Note that errors in the extracts below were present in the originals.
Comments on specific questions

Question 1
‘The function of the proportionality principle is to secure legitimization for
judicial decisions. The fact that the Court of Justice of the European Union is
interpreting the proportionality principle in so many ways undermines this
function.’
Discuss in relation to at least TWO economic freedoms.
General remarks
General principles are formal sources of EU law and they have a constitutional
rank. Arguably the proportionality principle is the most significant.
Law cases, reports and other references the examiners would expect you to use
Strict proportionality: Rau, Cassis de Dijon, Beer Purity Act, Peerbooms, Watts, Van
Duyn, Orphanopolous.
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Soft proportionality: Dynamic Medien, Omega, Bwin.
Role of national courts: Scotch Whisky Association.
Common errors
Failure to understand the function of an EU general principle. Discussion limited to
the enumeration of possible derogations from free movement.
A good answer to this question would…
briefly discuss the status of the EU general principles. Then the meaning of the
principle and the test used by the Court (suitability – less restrictive alternative and
proportionality strictu sensu). It should discuss how the Court used it an instrument
of integration and market regulation that is to propose specific standards that MS
had to apply (see for instance the labelling case law – Rau). A good answer should
also analyse the recent case law of the Court. In the last few years the Court has
been rather soft with MS 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 the gambling case law). Recent
important cases such as Scotch Whisky Association on the role of national courts in
applying the test should be included. Students need to rely on case law relevant to
at least two economic freedoms as clearly indicated by the question.
Poor answers to this question…
limited analysis to free movement of goods and were confused with the question on
whether mandatory requirements can be sued to justify distinctly applicable
measures.
Question 2
Toni wants to import DVDs of cartoon programmes produced in Finland into
Bulgaria. However, a first consignment of DVDs is blocked at the border as
their cover indicated ‘suitable for children of any age’ without having been
previously assessed by the Bulgarian Children Cartoons Authority. Toni is
very surprised as all DVDs had been previously cleared by the Finnish audio-
visual authorities. However, he is told that the Bulgarian Children Cartoons
Authority is a specific body dealing with children’s cartoons in order to
ensure full protection of young people. According to the Bulgarian
Constitution, child protection is one of the most important values and
principles of law.
Furthermore, Toni finds out children’s cartoons cannot be sold or rented in
shops for the general public. This is in accordance with the Government
policy to reduce screen time for children. Bulgarian law on screen time for
children states: ‘Cartoons should, in principle, be broadcast only in cinemas.’
Toni instructs you to determine whether EU law can be of help to:
a) challenge the measure blocking his DVDs at the border; and
b) sell his DVDs in shops or to rental facilities.
Advise Toni.
General remarks
A question about free movement of goods, still the ‘core’ of the internal market.
Dassonville (whisky in Belgium), Rewe-Zentrale AG v Bundesmonopolverwaltung
für Branntwein (Cassis de Dijon) Keck and Mithouard, Italian Trailers, Scotch
Whisky Association.
2
Common errors
Keck considered as a justification, no discussion on distinctly–indistinctly applicable
measures. No discussion on proportionality.
identify that the first measure is a MEQR within the meaning of Article 34. The
second measure will be identified as a selling arrangement but most probably failing
the Keck test as per Gourmet or de Agostini – and constituting a market access
restriction as per Italian Trailers. Students failing to mention Keck but who employ a
market-access test as per Italian Trailers would not be penalised. They will then
engage with justifications – the measures are not discriminatory, mandatory
requirements can be employed (here the reason given is protection of young
people). Students will then go through the two limbs of the proportionality test,
suitability and necessity, while finding that, under necessity, potentially other less
restrictive means could have been employed by Bulgaria to achieve the goals.
Better students will note that, under cases such as Dynamic Medien, the Court
applies a soft proportionality test for grounds of child protection but require
authorisation processes to follow good governance principles.
did not engage with possible national justifications.
Question 3
Marcel is a French national who moved to Germany in 2005 with his mother,
following the divorce of his parents in 2004. He has since completed high
school education, and married Elsa, a German citizen. Marcel and Elsa now
have two minor children. Marcel has never worked, and in June 2018 he was
arrested for drug trafficking. A deportation order was issued against him.
Marcel would like to know if he can rely on EU citizenship law in order to fight
deportation.
Advise Marcel.
General remarks
A question mainly on EU citizenship but with Charter elements.
Law cases, reports and other references the examiners would expect you to us
Directive 2004/38, Tsakouridis, Orfanopoulous, Charter of EU rights.
Common errors
Not referring to relevant issues such as direct effect, nor to case law.
discuss the concept of EU citizenship and the rights protected by the Treaty and
Directive 2004/38. It should note that Marcel is entitled to protection against
expulsion under Article 28(3) as he resided for more than 10 years in Germany
(Tsakouridis – although also other less specific cases can be discussed, such as
Orfanopoulous, etc.). While drug trafficking can be considered as an imperative
ground of public security, the authorities cannot issue ‘automatic’ expulsion orders
and students will need to discuss the proportionality of the measure. This will need
to take into consideration Marcel’s personal situation, including the degree of
integration in the Member State and an assessment of whether the Charter of
Fundamental Rights is observed (Marcel has minor children).
merely discussed the free movement of workers.
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Question 4
‘The EU Charter of Fundamental Rights cannot fully protect European
citizens. The EU should accede to the European Convention of Human
Rights.’
Discuss.
General remarks
Question on the relevance of human rights protection in EU law.
Google Spain SL, Safe Harbour 2015, Fransson, Opinion 1/1/3 on ECHR
accession.
Common errors
Replies on supremacy, no reference to recent case law.
appreciate that the question requires an assessment of the impact of the Charter on
EU law. Students need to touch on fundamental rights case law as developed by
the Court before the Charter of Fundamental Rights. They will then discuss the
status of the Charter after the Lisbon Treaty and its use by the European Court of
Justice. In particular, they should discuss how the ECJ uses the rights protected in
the Charter as a benchmark of legality for EU law (Google Spain, Safe Harbour).
They can also discuss the ambiguous case law on the application of the Charter to
national law (Fransson, Siragusa). Better students will note the reassertion of
supremacy of EU law vis-à-vis national human rights standards in Melloni. Finally, a
discussion of Opinion 1/13 on accession to the ECHR should also be included, as
well as to the status of the ECHR in EU law.
did not discuss post-Charter case law.
Student extract
[The candidate starts with:]
In order to introduce our discussion one could quote AG Kokott, she argued
that in a contemporary multi-level system of constitutionalism the fact that EU
law chose to use human rights with a lower intensity was because a much
higher level of protection would have created tensions and difficulties.
[The student first discusses the protection of human rights as a general
principle of EU law and then analyses the Charter. The student then moves
to prove that instead the EU fully protects human rights.]
On the other side, we need to address the impact on Member State
legislation. We firstly have the Fransonn case of 2013 where basically a wide
test was devised as to know whether individuals such as an EU citizen could
rely or not on the Charter. The Court states first: that the Member State
legislation concerned rights of the individual and secondly that if fell within EU
law (thus the Charter was applicable). This wide principle permitted to link lot
of MS legislations to the Charter as to protect European citizens. (This test is
confirmed in recent cases) such as Bauer and Bronner [sic] (2018), where
EU citizens were protected under Art 32 of the Charter. In this case…
[Discussion of the case follows.]
Comments on extract
Essay questions always benefit from the use of a variety of sources, in particular
literature or as in this case an Opinion of an Advocate General of the Court. The
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candidate here is very smart as he/she uses a quote that later he/she starts
dismantling. It is a very good technique as it makes the essay interesting and
engaging. The second passage also reveals that the student is on top of the
material as it identifies one of the sticky points about the Charter: its impact on
national law (thus this link with the opening quote) the key case is identified
(Fransson) a discussed. Plus an extremely recent case is quoted a sign of the
importance of the Charter. Thus a perfect mix of sources – proper identification of
the issues – personal contribution to the answer. To make it perfect, the writing
could have been just a bit more accurate (‘a lot of legislation’) and a mention of
Article 51 was probably necessary. Nonetheless, a good example of how to deal
with an essay question.
Question 5
Fictitious Directive 1/2018 on equality provides:
Article 8
Member States shall take the necessary measures to ensure that workers who
are parents of children with disabilities are entitled to carer’s leave of at least
ten days per year.
Lithuania has not adopted the necessary implementing legislation by the
transposition deadline and does not provide for any special arrangements for
parents of disabled children.
Angela works for a private company, Zigurauskas, and has a one-year- old
daughter. Julia is a lecturer at the (fictitious) Free University of Lithuania and
has a one-year-old son. The University is largely autonomous but is publicly
funded for about 80 per cent of its budget. It has degree-awarding powers in
accordance with Lithuanian legislation. Both children have just been
diagnosed with severe disabilities. Angela is refused any break from work
following this news, and Julia is given a short break of only five working
days. The employers argue that both women have had generous maternity
leave and are not entitled to further leave according to labour law.
Both Angela and Julia learn about the Directive. They seek your advice on
whether they could in any way rely on its provisions.
Advise Angela and Julia.
General remarks
A practical case about direct effect.
Van Gend en Loos v Nederlandse Administratie der Belastingen, Faccini Dori,
Marleasing, British Gas, Farrell, Francovich, Factortame.
Common errors
A general discussion on direct effect with no reference to the facts of the case.
assess whether the Directive fulfils the conditions for direct effect and then move to
assess the cases of Angela and Julia. Angela cannot rely on the Directive against
Zigurauskas, as this is a private company (Faccini Dori). Angela will have to rely on
one of the remedies developed by the case law to counteract the lack of horizontal
effect of directives: namely the principle of consistent interpretation (assess the
application of Marleasing) or, failing that, Member States liability
(Francovich/Factortame). Julia might be able to rely on the Directive against the
Free University of Lithuania provided she can prove that this is an emanation of the
5
state (Foster v British Gas, Farrell). Failing that, she will have to rely on the same
remedies as Angela.
confused state liability and indirect effect or provided a too broad discussion on
direct effect.
Question 6
‘The principle of direct effect led naturally to the recognition of the primacy of
EU law. If EU law was to be applied by the national courts, it had to be applied
across the EU as a whole. There was therefore no room for the idea that the
application of EU law might conflict in some Member States with national law.
EU law must necessarily prevail over national law. The principle of primacy is
inherent in the very idea of an EU based on the rule of law.’
Discuss.
Van Gend en Loos, Simmenthal, Costa v ENEL, Taricco, Miller (UK CS).
Common errors
Too much discussion on one of the doctrines only.
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. Students will then focus on foundational
supremacy EU case law, such as Costa v ENEL, Internationale Handelsgesellschaft
and Simmenthal, and give some examples of national reactions to the principle,
with Germany (Solange) and the UK (Factortame, Miller) being discussed in the
online lecture. Ambitious students might go into more sophisticated case law such
as Taricco, but students would not be penalised for not mentioning it. Finally, better
answers will engage critically with the material and assess to what extent uniform
application of EU law is ensured or desirable.
merely listed the direct effect of EU provisions.
Question 7
Data Solutions is an Irish company offering data storage services. Their file
hosting service, ShareBox, is becoming more popular given its user-
friendliness and low price. Data Solutions have their servers in Ireland, the
UK, and Spain, but also need to set up a server in Poland. While their market
studies reveal that setting up a server in Poland is the right choice, Polish
legislation imposes a significant hurdle. The (fictitious) Pristine Internet Act
does not allow the ‘display, transmission, or storage of images that would
contain Nazi or Soviet symbols’. Companies that infringe these rules risk
hefty fines of €1,000,000. This is in order to protect the integrity of the Polish
State and the Polish Constitution. Data Solutions considers it would be very
difficult for them to know whether their customers store this type of material
in ShareBox.
Advise Data Solutions.
General remarks
This is a free movement of services question.
6
Alpine Investments, Omega, Bwin.
Common errors
Wrong identification of relevant freedom.
recognise that this is a question that might touch both on free movement of
services and freedom of establishment, with good students noting that recent case
law of the Court of Justice no longer emphasise the distinction between the two
freedoms but rather on the existence of a restriction to free movement (Commission
v Italy – car insurance). However, a straight focus on services is still a good answer.
Students should note that the indistinctly applicable Pristine Internet Act constitutes
a restriction to free movement of services, as it would make it more difficult for a
company such as Data Solutions to set up a server in Poland (Alpine Investments).
They then assess justifications, potentially on grounds of public policy. They would
analyse the proportionality of the measure (suitability and necessity) and note that
the Court might be very likely to leave a large margin of manoeuvre to the Member
State in such situations (Omega). Still the question remains whether soft
proportionality can still be applied in cases of such hefty fines, of €1,000,000 and a
good answer could question whether the procedures followed when establishing the
fine respect good governance principles.
did not discuss proportionality.
Student extract
[The candidate has argued that the national measure in question is a
restriction on the free movement of services. Then he/she acknowledges that
Poland can rely on a series of justifications – under Article 52 – public policy.
Then student moves on to:]
The measure must however be proportionate [Sky Italia, Da Costa]. To be
proportionate the measure must be suitable and there must be necessity.
The prohibition of these (the Nazi) symbols seems to be suitable to maintain
social peace in the society. The issue here is whether there is necessity; this
means that it must be evaluated whether there are any other light options. A
fine of 1 million seems quite high when taking into account how hard is for
Data Solutions to control the content on their [platforms].
Comments on extract
The extract clearly shows a good understanding of the issues involved. The
candidate competently deals with the main issues each in its turn with clarity and
conciseness presenting a straightforward legal opinion for the ‘client’. As for any
internal market question (be it goods/services/capital and up to a certain extent
workers) the issues to be identified are: first, why the national measure can be
considered as violation of free movement and on what grounds such a conclusion
can be made; secondly, to ‘pre-empt’ possible objections or defence the Member
State in question might have; and finally, to provide an assessment whether such a
defence could be successful, through a discussion on the proportionality principle.
The student correctly focuses on proportionality and on the second part of the test
(the least restrictive alternative/strict necessity) and highlights the disproportionate
character of the fine. However, there are some deficiencies: the style could be more
accurate. It is always good practice to use the language used by the EU Court.
Thus ‘light options’ should be replaced by the more correct ‘least restrictive
alternative‘. Further, very little case law is used, in particular, no support is offered
by relying on some cases on public policy ex Article 52 TFEU. The discussion could
be also more sophisticated. The Court has been recently more generous with
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Member States when some ethical/moral grounds have been raised (see Omega,
Bwin, Josemans). For Poland the use of Nazi symbol could be a sensitive issue that
could allow the adoption of more stringent measures. The argument should be
presented but still contested exactly with the arguments put forward in the passage
above (excessive fine – no possibility of control). So in short, a good answer but
could be improved considerably.
Question 8
Children’s Help is a charity established in the Netherlands. They share the
same objective, the protection of children, with Kid’s Hotline, a charity
established in a nearby town in Germany. In order to raise money for their
activities, both charities sell knitted hats. The hats are quite successful and
are sold in shops in the EU. In the Netherlands and Belgium, Children’s Help
holds around 6 per cent of the market for knitted hats, while Kid’s Hotline
holds around 2 per cent. In Germany, Kid’s Hotline holds around 5 per cent of
the market, and Children’s Help holds about 3.5 per cent. Both charities hold
negligible market shares in other EU Member States.
Worried about its declining reputation at home, Kid’s Hotline approaches
Children’s Help with a proposal to stop selling to Germany, promising that
they will not sell to the Netherlands and Belgium either. Children’s Help is
tempted to agree but has some doubts as to whether the agreement breaches
EU competition law.
Advise Children’s Help.
General remarks
This is a competition law question.
Höfner und Elser, Expedia.
Common errors
See below.
have identified Article 101 TFEU as the legal provision applicable in this case.
Students should have noted that the case asked to assess a project of an
agreement, which would be concluded between undertakings. Most students
correctly mentioned that, even if Children’s Help and Kid’s Hotline are charities,
they are engaged in economic activity and can be considered undertakings for the
purpose of competition law (Höfner und Elser). Looking at market shares, students
should have noted that this is an agreement between competitors that hold less
than 10 per cent of the market. However, this agreement cannot be considered de
minimis, as it contains a hard-core restriction (Expedia, de minimis notice) having
an anticompetitive object: market-sharing. Thus, Children’s Help should be advised
not to enter into this agreement as it breaches competition rules. A common
mistake was to consider the agreement as de minimis, hence not falling under
Article 101. Very good papers identified that Children's Help could inform the
authorities about the illegal proposal they received.
See above.

Eu Report 2019 A PDF

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Eu Report 2019 A PDF

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Examiners’ reports 2019

Examiners’ reports 2019

LA2024 EU law – Zone A

Comments on specific questions

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