Eu Report 2021 B

Examiners’ reports 2021
LA2024 EU law – Zone B
Introduction
The examination paper for Zones A and B adopted the standard format consisting
of a mixture of essays questions and problems questions. The content reflected the
syllabus based on the module guide and recommended readings. Exam preparation
was complemented and supported by the various VLE resources. As customary,
the paper tends to be based on the most important EU constitutional principles and
on core substantive issues such as free movement, citizenship or the fast-evolving
case law on the Charter of Fundamental Rights. The purpose of the examination is
thus never to ‘surprise’ students but to ensure that the focus is on the most
significant and, hopefully, more useful areas of EU law.
Results varied due the huge number of candidates. The online format, however,
alleviated one of issues that usually affect the ‘live’ examination: the calculation of
time. The majority of candidates managed to equally answer the various questions
with therefore better results. It is also encouraging that that the declining trend in
bad fails or irrelevant answers has continued.
Note that errors in the extracts below were present in the original extracts.
Comments on specific questions

Question 1
In December 2020, with a view to reducing carbon emissions, Poland passed
the Motor Vehicles Standards Act (a fictitious measure). The Act, inter alia,
sets out new limits for emissions from motorcycles of up to 125cc power
(‘scooters’). According to the explanatory memorandum accompanying the
Act, scooters are the worst polluters given their wide use in urban centres.
Article 11 of the Act prohibits the use of scooters in cities with a population of
more than 200,000 inhabitants. Article 12 states that any scooters which
violate the provisions of the Act are liable to be seized and the owner and/or
the user may be fined up to €2,000. Praggio, the Italian manufacturer of the
iconic Bee 50 Scooter, seeks your advice on whether the Polish Act is
compatible with EU law.
Advise Praggio.
General remarks
A question about free movement of goods and indistinctly applicable measures. The
first issue is whether the MPC decision could be classified as a MEQR under the
Cassis de Dijon test and the second is whether a breach of Art.34 TFEU could be
justified.
1
Law cases, reports and other references the examiners would expect you to use
Dassonville (whisky in Belgium); Rewe-Zentrale AG v Bundesmonopolverwaltung
für Branntwein; Keck and Mithouard; Doc Morris; Deutsche Parkinson; Arts 34–36
TFEU; Charter of Fundamental Rights.
Common errors
No discussion on distinctly/indistinctly applicable measures.
No identification of what justification could be available.
No discussion on proportionality.
Confusion over use arrangements/Keck.
A good answer to this question would…
appreciate that the measure in question restricts the use of a product not its
modalities of sale. Students can still discuss if the Keck test applies (selling
arrangements – equality in law and fact) but they can dismiss its application by
relying on Commission v Italy (mopeds case) that is rather similar. If the measure
restricts access to the market, the next step would be to discuss possible
justifications (public health? environmental protection?) and finally proportionality (is
there a causal link between the measure and the protection of a specific public aim
and is there any less restrictive alternative?). Cases on Art.36 public health or
environmental protection are therefore relevant. More alert students would discuss
whether the Charter, in particular the right to conduct a business, was violated,
Poor answers to this question…
dealt with services instead of goods and no justifications were put forward.
Question 2
‘Direct effect and supremacy together form a powerful and uncontroversial
tool of enforcement of EU law.’
Discuss.
General remarks
An essay question on direct effect and supremacy.
Art.50 TEU; Costa v ENEL; Simmenthal II; Van Gend en Loos; von Colson;
Marleasing; Taricco; Miller; Polish rule of law cases.
Common errors
Most answers did not even try to link direct effect and supremacy but simply
discussed these two principles in isolation.
critically discuss landmark cases such as Van Gend en Loos, Costa v Enel,
Simmenthal and von Colson, while defining the notions of direct effect, supremacy,
and consistent interpretation. More sophisticated answers might discuss other case
law, in particular, related to the direct effect of directives, etc. There should also be
a discussion about the interplay between national and EU legal orders, while also
touching on reactions from the national courts (Solange, Factortame but also newer
cases such as Miller and Taricco, discussed in the online lecture) and possible
future challenges (rule of law cases).
listed EU sources only.
2
Question 3
To what extent is it correct to say that the EU Charter of Fundamental Rights
has strengthened the protection of human rights in the EU?
General remarks
A question about the Charter and the fast-developing case law of the Court.
Google Spain; Safe Harbour cases; Opinion 1/1/3 on ECHR accession; Fransson;
Commission v Hungary; rule of law case law.
Common errors
Very out of date discussion – failure to understand difference between Charter
rights applied to EU law and Charter rights applied to national law.
assess the impact of the CJEU case law both on EU law and national law,
focusing on judgments such as Google Spain or Digital Rights Ireland, where the
Court annulled the Directive at stake and imposed new human rights standards.
The application of Arts 51 and 52 of the Charter with respect to national law should
be analysed (Fransson) and the horizontal effect of the Charter. Recent cases such
as Commission v Hungary (education) and rule of law cases (Poland) also need to
be discussed.
mixed Charter and citizenship issues.
Student extract
Article 51(1) of the Charter is to be applicable to the Member States only
when they are implementing Union law. Exactly when a Member State is held
to be ‘implementing EU law’ has been the subject of much disagreement.
In Fransson the Court of Justice found that the Charter is most likely to apply
to acts of Member States when they have a stronger connection to European
interests, especially the internal market.
Even though these proceedings were related to income tax which is not
harmonized at the EU level, the Court found that the tax penalties and the
criminal proceedings constituted the implementation of law and therefore fell
within the scope of the Charter.
Contrast this case with Siragusa. The national court asked CJEU whether
this matter was linked to EU law because it related to the protection of the
landscape, and ultimately the protection of the environment, an issue that
falls clearly within the ambit of EU action.
The Court held that the implementation of EU law required a connection
above and beyond the matters covered being closely related or one of those
matters having an indirect impact on the other’’.
The CJEU also held that a numbers of factors must be established to
determine whether national legislation ‘‘involves the implementation of Article
51 of the Charter’, namely ‘the legislation is intended to implement a
provision of EU law; the nature of that legislation and whether it pursues
objectives other than those covered by EU law, even if it is capable of
indirectly affecting EU law; and also whether there are specific rules of EU
law on the matter or capable of affecting it.’
3
Comments on extract
At the outset, the candidate clearly states that the analysis will be divided on CJEU
case law on the Charter with reference to EU law and CJEU case law on the
Charter with reference to Member States implementing EU law. This simple but
effective structure makes a lot of sense, as the issues are markedly different and
allows the candidate to discuss the specific points within a clear and very readable
framework. As for the passage above, when the candidate turns to the effect of the
Charter on national law, they rely on the right Charter Article and uses two perfect
authorities to illustrate the most problematic issue: the potentially very wide
application to national law of Charter rights. Note the clever use of the possibilities
allowed by an online exam. Instead of a long and possibly complex discussion, the
candidate simply quotes from the Court judgment This is again a simple but
effective tool to express your views and it support your argument. Overall, a very
coherent but also extremely clear discussion of a complex point of EU law.
Interpretation of the question: very good.
Relevance of the answer to the question: very good.
Substantive knowledge: very good.
Use of authorities: very good.
Articulation of argument: very good.
Accuracy of information: very good.
Legibility: excellent.
Question 4
Kaspar is an Estonian national, residing in Romania since birth. Kaspar has
never entered into a formal employment contract with anyone, but has carried
out odd jobs from time to time and relied on family funds. In 2018, while
attending an English language course, he fell in love with the tutor, Helen,
and married her in 2019. Helen is an American national who entered the
country on a tourist visa in 2016 and never left. In 2020 Kaspar was arrested
for drug possession, but was released shortly afterwards. In 2021 he was
again arrested for drug possession, and an expulsion order was issued in his
name. Helen has received an expulsion order as well, on the grounds that, as
a third country national she can only remain in the country if her husband, an
EU national, is eligible to stay there.
Advise Kaspar and Helen whether EU law can be of assistance in their case.
General remarks
A problem question dealing with the application of Directive 2008/38, Arts 20 and 21
TFEU and Charter rights.
Zambrano; Orphanopolus; Arts 20 and 21 TFEU; Directive 2008/38; McCarthy;
Dereci; Dano; Directive 2004/38; on the rights of EU citizens: Charter of
Fundamental Rights.
Common errors
Thinking that Romania is not an EU Member State; not considering the impact of
the Charter.
discuss the question both under Treaty provisions of free movement of workers and
citizenship and under Directive 2004/38. It is a bit difficult to argue that Kaspar
should be considered as a worker as she never pursued an occupation in Romania.
4
Another problem is that Directive 2004/38 makes the EU rights conditional on

proving that the person in question is not a burden on the state. However, he is an
EU national and can benefit from the provisions under Articles 20 and 21 of the
Treaty and from ‘generous’ cases such as Zambrano. Students still need to tackle
case law that adopted a narrower interpretation (Dano, Dereci) and, in particular,
McCarthy that is rather similar. It would also be worthwhile to refer to the Charter of
Fundamental Rights, particularly the provisions dealing with family life.
limited the discussion to free movement of workers, cited no new cases and
demonstrated ignorance of the relevance of the Charter of Fundamental Rights.
Question 5
Jarek, a Polish national, owns several boutique hotels in major Eastern
European cities. In January 2021 the police closed his Prague hotel (in the
Czech Republic) on the grounds that Czech gambling legislation was
breached. The hotel operated a mini casino in the basement. Even though
Jarek held a valid gambling licence, the legislation changed overnight, with
the result that only Czech citizens were permitted to provide gambling
services, and also to prohibit gambling outlets from being operated in hotels.
The Czech Government has argued that such a measure is necessary to
protect hotel customers from fraud.
Advise Jarek whether EU free movement law can assist him.
General remarks
The question refers to the application of free movement of services – or
establishment and the possible justifications. It requires students to use the now
copious case law on gambling.
Schindler; Alpine Investments; Omega; Placanica; Bwin, Arts 43–52 and 56 TFEU.
Common errors
No discussion on proportionality. No reliance on gambling case law.
first, decide which Treaty freedom may be applicable: both the freedom to provide
and receive a service or the freedom of establishment can be engaged (Schindler –
primary aim test). More alert students would point to the convergence in the case
law of the two freedoms but both solutions can be acceptable. It is unclear whether
the action of the police is a violation of the Treaty (Placanica). The main issue is
whether there could be justifications and whether the national measures can be
proportionate. It is vital therefore to engage with the Court case law on gambling, a
particularly soft stance adopted by the Court towards Member States and students
should try to distinguish the present case from the case law. In particular, the
draconian measures adopted by the police can be used it show that the action went
beyond what was proportionate (Placanica). Students can also refer to Charter
rights (right to conduct business, right of fair hearing).
approached this from the perspective of free movement of goods.
5
Question 6
According to the Court of Justice of the European Union, EU law is ‘a kind of
legal order, the nature of which is peculiar to the EU, has its own
constitutional framework and founding principles, and a particularly
sophisticated institutional structure and a full set of legal rules to ensure its
operation’. Still, as confirmed by the Court itself, the EU is not a State and ‘is,
under international law, precluded by its very nature from being considered a
State’.
Do you agree? Provide at least TWO examples from your study of EU law
which support your view, and explain why they do so.
General remarks
An open-ended question on the nature of EU legal order.
Common errors
The question asks to focus on two examples – not just a list or vague discussions.
be entitled to look at several issues: the institutional framework highlighting the
supra national/national characteristics, the question of EU competences and its
limits and also supremacy and direct effect. Brexit and Article 50 TFEU are of
course relevant in this context.
gave a list of dates and historical developments only.
Question 7
Jamie is an Irish national with a doctorate in English from University College
Dublin. During his studies, he married his classmate, Zelda. After graduation,
they moved to her home country, Hungary. Jamie applied for a job as an
English teacher in a high school in Budapest, but he was rejected as,
following the interview, it emerged that his knowledge of Hungarian was only
upper intermediate. Jamie has followed an advanced course in Hungarian and
has a certificate from University College Dublin. Yet, according to Hungarian
law, all teachers working in the national education need to have an excellent
level of Hungarian, which is assessed by the employer during an interview.
Discuss whether EU free movement law can assist Jamie in this case.
General remarks
A problem question about free movement of workers.
Levin; Kempf; Antonissen; Groener; Commission v Belgium.
Common errors
No discussion of Art.45(4).
correctly identify the free movement at stake (Levin, Kempf, Antonissen), and note
that Jamie is discriminated on grounds of nationality. Students will then look at
whether the Art.45(4) TFEU is applicable. They will note that the Article only
excludes posts that require the existence of a special relationship of allegiance to
the State and reciprocity of rights and duties that form the foundation of the bond of
nationality (Commission v Belgium). This is unlikely to be the case with a teacher,
regardless of the institution of employment and the measure adopted clearly seems
disproportionate.
6

only discussed direct effect with no mention of public-sector derogations.
Question 8
According to the Safety of Home Chemicals Directive (fictitious), all chemical
products, including vinegar, need to be packed in containers which have
safety caps that are difficult for children to open. Bulgaria failed to implement
the Directive by the deadline. Elena is a Bulgarian child who was playing
pretend cooking one day and accidentally splashed a lot of vinegar in her
eyes. She required hospitalisation and, while she did eventually recover, her
parents had to pay high healthcare bills. They wonder whether they can use
the Safety of Home Chemicals Directive to get their money back.
Advise Elena’s parents.
General remarks
Question on possible remedies offered by EU law in cases of non-implementation of
Directives.
C-106/89 Marleasing; Francovich; Factortame.
Common errors
No discussion of the doctrine of consistent interpretation and listing cases with no
structure.
check the criteria for applicability of direct effect of Directives is clear, precise and
unconditional plus the expiry date for their implementation. They should then
analyse the 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).
In both scenarios, they would need to provide their legal assessment where the
conditions for applicability of those principles are satisfied in the case at hand.
employed a general discussion on direct effect only.
Student extract
Indirect effect
EP can pose the arguments that the court in Bulgaria have a duty of consistent or
harmonious interpretation a duty developed by the courts to construe parliaments
true intent Von Coulson, Pfeiffer. In Von Coulson the courts held that the national
court is under a duty to interpret existing national law so far as possible (The crucial
factor that limits the rule) to achieve the results laid down by the directive. A
prospect in line with the fact that the courts is a part of the state are bound by
Article 4(3) TEU (Simmenthal). This duty extends to legislation that was before or
after the relevant union legislation or whether it was intended or not… this applies
so far as possible Marleasing. Harmonious interpretation will not always be
possible Wagnher Miret and in particular there is a duty not to go contra legem
AMS. Unfortunately, there is no national legislation that the court can bite into to
give effect to the indirect effect so this would likely fail.
Interpreting this Directive cannot conflict with any general principle of EU law
Kolpinhuis. Under the rule laid out in Mangold affirmed in Kukukdeveci, permits
the lack of horizontal direct effect to be circumvent by if it leads to legal uncertainty.
It must be embodied within the directive and the transposition period must have
passed. Article 24, 38 of the Charter of Fundamental Rights Elena has a right to
in respect for her health and safety and the right of consumer protection of the
7
products that they send out. The Courts can interpret it to conform with the Directive
Kukukdeveci as the Directive in this sense would have a horizontal effect. The fact
that a fundamental right is being affected she will be able to use her charter rights
as a means of claiming against State as it is noted that fundamental rights is
guaranteed in the legal order of the union (Akerberg Fransson. Article 51 Charter
of Fundamental Rights more fundamentally implementing EU law that transposing
an EU Directive into national law so the charter would apply and J could definitely
use the charter articles referred. The family would be able to enforce the Eu
directive against employer and seek damages.
Comments on extract
This is very bold and original legal advice First, it explains that the principle of
consistent interpretation is about relying both on Treaty sources and relevant case
law. It also develops a new argument relying on the Charter. As mentioned, it is a
rather bold step but the student provides ‘evidence’ – cases, Charter Articles – at
every step, showing a full understanding of the topics included. This passage shows
how the application of the Charter is not limited to certain fields but can be relevant
in areas of EU law.
Interpretation of the question: excellent.
Relevance of the answer to the question: excellent.
Substantive knowledge: very good.
Use of authorities: excellent.
Articulation of argument: very good.
Accuracy of information: very good.
Legibility: excellent.

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Examiners’ reports 2021

Examiners’ reports 2021

LA2024 EU law – Zone B

Comments on specific questions

Another problem is that Directive 2004/38 makes the EU rights conditional on

Poor answers to this question…

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