Examiners’ reports 2019

Examiners’ reports 2019

LA2024 EU law – Zone B

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 case-law on the internal market - be it free movement of goods, of
workers, freedom to provide services, or right of establishment - is based on
a set of common principles. The Court of Justice easily considers a measure
to be restrictive of trade or free movement, thereby putting the emphasis on
analysing whether the measure in issue is justified and is proportionate.’
Discuss in relation to at least TWO economic freedoms.
General remarks
A question on whether the internal market is governed by some common principles.
Law cases, reports and other references the examiners would expect you to use
Rau, Cassis de Dijon, Beer Purity Act, Peerbooms, Watts, Van Duyn, Alpine, Sager,
Bosman, Golden Shares case law, Italian Trailers.

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Common errors
A discussion on one economic freedom only.
A good answer to this question would…
try to identify those general principles. They are nicely listed in the Trailers case: no
discrimination, double burden (mutual trust) and access to the market. Students
might highlight how the latter is now the ‘preferred’ test (a reference to the decline
of the Keck test could be appropriate). They then need to discuss how the Court
strikes a balance between free trade and the preservation of public aims. Students
need to define the principle of proportionality. In particular, the test devised by the
Court (suitability – less restrictive alternative and proportionality strictu sensu). They
will need to rely on case law relevant to at least two economic freedoms.
Poor answers to this question…
only listed what freedoms are part of the internal market.
Question 2
Mario and Luigi own a private company that imports olive oil in plastic bottles
from Italy to Denmark. There have been widespread reports in the Danish
media that some Greek olive oil has been contaminated with potentially
poisonous chemicals at the stage of production. This was blamed by the
media on the use of plastic bottles.
The Danish Minister of Health issues an emergency order prohibiting the sale
of olive oil in non-glass containers taking effect in one week’s time. This is to
protect the environment and ensure the safety of Danish consumers.
Advise Mario and Luigi on how European Union law related to the free
movement of goods may apply to these circumstances.
General remarks
A question about free movement of goods, still the ‘core’ of the internal market.
Law cases, reports and other references the examiners would expect you to use
Dassonville (whisky in Belgium), Rewe-Zentrale AG v Bundesmonopolverwaltung
für Branntwein (Cassis de Dijon) Keck and Mithouard, Italian Trailers, Scotch
Whisky Association.
Common errors
Keck considered as a justification, no discussion on distinctly–indistinctly applicable
measures. No discussion on proportionality.
A good answer to this question would…
discuss whether Article 34 applies and the definition of measures having equivalent
effect. Students will have to deal with the application of Article 34 to indistinctly
applicable measures as potentially national and foreign olive oil is affected by the
Danish legislation. If students qualify the measure as a distinctly applicable one, it
could be acceptable. They need to move to the question of justifications. They need
to apply a case law exception – consumer protection, although public health under
Article 36 TFEU is probably the best bet. Finally, they need to provide their
assessment of the proportionality of the measure.
Poor answers to this question…
did not discuss proportionality.

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 Examiners’ reports 2019

Question 3
Laura is an Italian student studying philosophy at a university in France. She
assures the French authorities that she has sufficient resources as well as
sickness insurance. In order to support herself, Laura does occasional work
in a restaurant. In the course of her studies she becomes very ill, and it turns
out that for the last year or so she has not paid her insurance contributions
under the private hospital insurance policy she had taken out. As a result, the
French authorities refuse to offer her treatment. They claim that, as an Italian
citizen, she is not entitled to state-subsidised healthcare, and advise her to
return to Italy.
Advise Laura.
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, Greczleskly, Bidar, Dano.
Common errors
Not relevant issues such as direct effect. No case law.
A good answer to this question would…
determine whether Laura is a worker, on account of her occasional job in a
restaurant (Levin). If Laura can be considered a worker, then she should be entitled
to the same treatment as French workers (assuming that is state-subsidised
healthcare). However, students will note that we do not have enough data in the
case to ascertain whether Laura’s work for the restaurant is just marginal and
ancillary, and will also assess her rights under the Citizenship Directive, noting that
Laura is required to have comprehensive sickness insurance in order to fall under
Article 7. Students should discuss whether Laura is entitled to equal treatment in
these circumstances, relying on the often-contradictory case law of the Court
(Grzelczyk, Bidar, Dano). Finally, students will note that Laura cannot be asked to
leave French territory as she is protected against expulsion under Article 29 of the
Directive. Students are not required to asses Laura’s eventual rights in case she is
publicly insured in Italy as this was not discussed in the syllabus, although some
might do so.
Poor answers to this question…
did not discuss the case law and focused on irrelevant issues such as supremacy.
Question 4
‘The European Union protects the fundamental rights of its citizens only to a
limited extent, even though the European Court of Justice refers often to the
EU Charter of Fundamental Rights.’
Discuss.
General remarks
Question on the relevance of human rights protection in EU law.
Law cases, reports and other references the examiners would expect you to use
Google Spain SL, Safe Harbour 2015, Fransson, Opinion 1/1/3 on ECHR
accession.
Common errors
Replies on supremacy, no reference to the Court’s recent case law.

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A good answer to this question would…
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,
Test-Achats). 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.
Poor answers to this question…
did not discuss post-Charter case law.
Student extract
Article 51 TFEU provides that the Charter is also applicable to the institutions
of the EU. Member states sought to put directives out of its scope. In
Fransson it was established that the Charter is a benchmark of legality, In
Bauer et al. the CJEU held that the Charter is horizontally applicable as it is
clear and precise.
Comments on extract
This short passage is problematic It does contain some extremely important points
such as the question of the application of the Charter to national law. It also
correctly relies on key authorities such as Fransson and it does mention the most
important recent development – the horizontal effect of the Charter. However, it is
not accurate and conflates many arguments. First, it is not Article 51 of the Treaty
but Article 51 of the Charter. Of course, it is a small mistake but it is still important to
be accurate. On the substance: Article 51 does requires MS to comply with the
Charter when implementing EU law, which MS sought to interpret restrictively
(directives). In Fransson the Court clarified that the scope of Article 51 is wide and
applies to any national legislation that falls within the scope of EU law. The
paragraph mixes many issues and it does not correctly discuss Fransson. It is
absolutely vital to quote and discuss sources correctly and accurately.
Question 5
Fictitious Directive 36/2018 provides:
Article 1
Smoking shall be prohibited in all workplaces.
Article 2
Member States shall provide effective and proportionate sanctions for breach
of the smoking ban.
Article 3
Employees who are unlawfully exposed to cigarette smoke in their work place
shall have a right to at least one month’s salary by means of compensation.
Poland introduces legislation prohibiting smoking in all work places; smoking
is also banned in all places open to the public. Employers who fail to enforce
the smoking ban are liable to a fine of at least €20,000. Those who are caught
smoking unlawfully are fined €10. The smoking ban does not apply to
Government buildings.

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 Examiners’ reports 2019

Nilip Norris is a private company manufacturing cigarettes. It encourages

employees to smoke whilst working. Jane, who does not smoke, works for
Nilip Norris; she suffers from asthma, and, having been seriously ill, decides
to resign from her job. When she applies for compensation, she is told that,
according to Polish law, no compensation is available for employees who, for
whatever reason, voluntarily resign from their jobs.
Vera works for the Polish Parliament where everyone smokes; when she falls
pregnant and complains about the smoke, she is fired. Vera then decides to
sue the Parliament but her action is dismissed on the grounds that the Polish
legislation is clear in allowing smoking in Parliament buildings. Both Jane
and Vera learn about the Directive. They seek your advice on whether they
could in any way rely on its provisions.
Advise Jane and Vera.
General remarks
A practical case about direct effect.
Law cases, reports and other references the examiners would expect you to use
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.
A good answer to this question would…
assess whether the Directive fulfils the conditions for direct effect and then move to
assess the cases of Vera and Jane. In the case of Vera, students will note that she
can rely on the Directive against her employer, as this would be a vertical situation
(Van Duyn, Marshall). However, Jane cannot rely on the Directive against Nilip
Norris, as this is a private company (Faccini Dori). Jane 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).
Poor answers to this question…
confused state liability and indirect effect or provided a too broad discussion on
direct effect.
Student extract
Failure to implement directives will result in Union policies suffering and
therefore the CJEU stated that directives in principle may have direct effect.
Two reasons were given for this in the case of Van Duyn: the first reason was
a functional as it was held that directives have binding effect and they will be
more effectively enforced if individuals can rely on them. The second reason
was ‘the estoppel’ argument (MS cannot benefit from their wrongdoing –
Ratti).
Comments on extract
The passage above is substantially correct. Still it is symptomatic of a general
concern. Q5 is a problem question not an essay on direct effect of directives. The
answer does not satisfactorily provide any advice for the individuals concerned. The
student simply states that directives have direct effect, which is a given but does not
try to apply the case law of the Court to the facts at hand. We do not understand
whether the individuals were going to be able to rely on EU law or not. In a problem
question candidates are asked to provide their view on a specific fact pattern. Here
the style is more of an essay than a problem question.

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Question 6
‘The concept of primacy of European Union law is an important tool to
guarantee the uniform application of European Union law within the Member
States. Primacy should be recognized by all courts and authorities of the
Member States, as a varying practice may cause legal uncertainty.’
Discuss, tracing the evolution of the principle of primacy and its reception in
the EU Member States.
Law cases, reports and other references the examiners would expect you to use
Costa v ENEL, Simmenthal, Taricco, Miller (UK CS) or any other National
Constitutional Courts case law.
Common errors
General discussion on monist/dualist regimes only. No critical analysis.
A good answer to this question would…
discuss the importance of supremacy as the cornerstone of the EU legal order.
Students should focus on foundational supremacy EU case law, such as Costa v
ENEL, Internationale Handelsgesellschaft and Simmenthal to highlight the main
tenets of such a principle (less sovereign rights for Member States – disapplication
of national law for actual or potential contrast with EU law). Students should then
discuss the possible clashes with national constitutional orders 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 you 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.
Poor answers to this question…
merely cited Costa v ENEL.
Question 7
Hungary has decided to review its gambling legislation. Bill 26/2018 provides
that all interested operators should obtain a licence. The licence criteria
require, inter alia, that the operator deposits, prior to the application:
a) €200,000, not refundable, regardless the outcome of the application;
b) a guarantee that any games of chance would not allow the
customers to gamble more than €300 per day; and
c) a compulsory ‘considerable’ donation to the Hungarian Society for
the Protection of Families of Addicted Gamblers.
You are the Hungarian Government Official in charge of assessing the
compatibility of such legislation with free movement EU law. Write your
report.
General remarks
This is a free movement of services question.

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 Examiners’ reports 2019

Law cases, reports and other references the examiners would expect you to
use
Alpine Investments, Omega, Bwin.
Common errors
Wrong identification of relevant freedom.
A good answer to this question would…
need to identify the relevant freedom, which is obviously Article 57 and may want to
rely on the by now copious case law on gambling. Students can rely on the Bwin
judgment (discussed in the module guide) and conclude that the measure can be
likely to be considered as an obstacle restricting access to provisions of services
under the case law of the Court interpreting Article 56 of TFEU. On the question of
possible justifications, the likely grounds that the MS can invoke are public health
and consumer protection. Students will be aware of the very generous case law of
the Court in this area and will assess whether the requirements for the licence are
proportionate, looking for example at whether the €200,000 processing fee is not
excessive and whether the ‘considerable’ donation is not an arbitrary requirement
that might contradict the good governance principle of transparency. If students
decide to carry a further analysis under Article 52, that is acceptable as well.
Poor answers to this question…
did not discuss proportionality.
Question 8
‘Le Mirage du Mariage’ is a wedding planner company, established in France.
They expand to other Member States, offering a wide range of services and
products connected to the organisation of a wedding. They soon hold around
15 per cent of the EU market for wedding planning. Since 2016, they have
arranged affordable honeymoons for around 45 per cent of the couples that
got married, each year, in Europe. They are now launching a new
comprehensive wedding package ‘From Wedding Dress to Family Life’, which
provides attractively priced honeymoon deals to couples who decide to
purchase all wedding services and products from ‘Le Mirage du Mariage’.
Sun Travel is a German travel company who believes they have lost many of
their customers because of the very favourable honeymoon deals offered by
‘Le Mirage du Mariage’. They hold around 39 per cent of the EU market for
travel packages but in 2018 they sold very few honeymoon packages. Sun
Travel are very worried about the new comprehensive wedding package and
believe that ‘Le Mirage du Mariage’ is breaching EU competition law.
Advise Sun Travel.
General remarks
This is a competition law question.
Law cases, reports and other references the examiners would expect you to use
United Brands, British Airways.
Common errors
See below.
A good answer to this question would…
recognise this is a question about abuse of dominant position in EU competition
law. Students should have identified the correct article of the Treaty to apply, which
is Article 102 TFEU. They should have discussed the relevant product market: can
we conclude that there is a separate market for honeymoon travel? Students should
have recalled the legal test that needs to be satisfied (interchangeability, United
Brands). Most students noted that, in case the honeymoon market is a separate

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market, with a 45 per cent share, Le Mirage du Mariage might be in a dominant
position (British Airways). Students should have noted that Article 102 TFEU does
not prohibit dominance but abuse of dominance and should have mentioned the
criteria that need to be fulfilled for the ‘attractively priced honeymoon deal’ to be
considered predatory pricing (AKZO, Post Danmark, Guidance paper on
enforcement priorities, all discussed in the online lecture). One common mistake
was not to analyse whether the company has abused a dominant position and to
conclude that Article 102 was breached only because of the high market share.
Poor answers to this question…
See above.