Examiners' Report 2014: LA3024 EU Law - Zone A

Examiners’ report 2014
LA3024 EU law – Zone A
Introduction
This year’s paper adopted the standard format of a mixture of essay questions and
problem questions. The content reflected the syllabus based on the subject guide
and the recommended readings. More precisely, the paper was firmly based on the
substantive aspects of the syllabus focusing on the most important EU
constitutional principles and on core issues such as free movement and competition
law. A deliberate choice was made to have some questions dealing with extremely
topical issues such as citizenship or the use of the Charter of Fundamental Rights
in an attempt to incorporate all the recent developments.
Compared with last year, there was a marked decrease in answers completely
unrelated to the questions and generally more accuracy. However, there remained
the usual problem with time management. Many candidates struggled to answer the
four questions exhaustively. In particular, when three questions were answered
well, the candidate laboured to complete a fourth to the same standard.
Specific comments on questions

Question 1
Some commentators have argued that the judgments in Van Gend en Loos
and Costa made it clear that, once the transfer of sovereign rights had been
completed by the ratification of the Treaty, those sovereign rights have been
relinquished to the Community and are amalgamated in the hands of a new
legal entity. Under this new order ‘the effect on national law occurs as a result
of a breach or a breakthrough of sovereignty. In other words, the result of this
constitutive process is that, when a member state enacts law that is contrary
to directly applicable Community law, it attempts to act beyond and outside
its sovereign rights and thus its law is a nullity.’
Discuss this view of sovereignty with reference to the principles of direct
effect and supremacy.
General remarks
This question refers to the constitutional implications of the doctrines of direct effect
and supremacy.
Law cases, reports and other references the Examiners would expect you to
use
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963]
ECR 1
Case 43/75 Defrenne v Sabena [1976] ECR 455
1
LA3024 EU law
Case C-91/92 Faccini Dori [1994] ECR I-3325

Case C-106/89 Marleasing [1990] ECR I-4135
Joined Cases C-6 and C-9/90 Francovich [1991] ECR I-5357
National constitutional or Supreme Court decisions.
Common errors
Simply listing cases with no discussion of their implications.
Not attempting to link the two concepts.
Not discussing sovereignty.
A good answer to this question would…
discuss the significance of the doctrine of supremacy and direct effect. In particular
the impact on the use of international treaties, enhanced individual protection and
the new concept of limited sovereignty. A reflection on the very rigid stance adopted
on this point by the Court in cases such as Costa and Simmenthal should be
developed as the question clearly invites candidates to reflect on the impact of the
doctrines of supremacy and direct effect on national prerogatives. Thus, a mention
of the reaction in certain member states and in particular by national supreme
courts (Germany, UK, Italy) would have been welcomed.
Poor answers to this question…
confused direct effect and supremacy and merely repeated what the Costa case
was about.
Question 2
‘Not even the most enthusiastic supporters of the free trade ideology would
advance the idea that market rules have to be applied to areas of public
powers such as health care, education, public services and even to the
fundamental values of the member states constitutional order. The Court of
Justice has definitively gone too far’.
Do you agree?
General remarks
A broad question about the role of the Court and its case law on free movement and
as an instrument to build a fully-fledged internal market.
use
C-8/74 Dassonville (Whisky in Belgium) [1974] ECR 837
C-120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979]
ECR 649
Case C-112/00 Eugen Schmidberger [2003] ECR I-5659
Case C-157/99 Geraets-Smits and Peerbooms [2001] ECR I-5473
Case C-36/02 Omega [2004] ECR I-9609
Case C-438/05 Viking Line Abp [2007] ECR I-10779.
Drawing the boundaries of free movement is an increasingly compelling task,
because the fundamental principle on which the internal market is based is that any
national measure of whatever regulatory nature which has the effect of impeding or
discouraging the free movement of goods, capital, services, establishment and
workers, needs to be considered as a breach (access to market). Such a principle
therefore requires the abolition, not only of all discriminatory obstacles, but also of
any restriction, even if it is indistinctly applicable. It is equally well established that
the very broad formulation of ‘restrictions’ to free movement is coupled with the
possibility for member states to rely on specific public interest points, either to be
2
found in the Treaty itself or in justifications based on ‘imperative requirements of

public interest’. Both sets of derogations are of course subject to the fulfilment of the
proportionality test. Candidates could discuss – as the quote suggests – certain
controversial areas. For instance, in the area of free movement of services, the
case law on the right of patients to receive treatment in another member state
(Peerbooms) or other examples from ‘tough’ cases involving frictions between
national ‘basic’ rights and free movement such as Omega.
merely discussed seminal cases such as Dassonville or Cassis de Dijon or gave a
general illustration of the four freedoms.
Question 3
SuperSpecs is a UK Company which produces and sells products and
services in the field of optics. It wants to expand its activities in Germany and
thus its starts circulating advertising material offering its customers free
eyesight examinations in the shops they are going to open. However the
German Consumer Protection authorities order the withdrawal of these ads
as German law prohibits any commercial exploitation of medical services and
requires also that eye examinations have to be carried out by qualified
ophthalmologists only.
SuperSpecs seeks your advice on whether the German measures can be in
violation of EU law.
General remarks
Problem question on free movement and possible justification available to member
states.
use
Case C-275/92 Schindler [1994] ECR I-1039
ECR 649
C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097
C-55/94 Gebhard v Milan Bar Council [1995] ECR I-4186
Case 570/07 Blanco Perez 1 June 2010.
Common errors
Not discussing which freedom should apply.
Using services provisions only.
Not discussing proportionality.
first decide which fundamental freedoms apply. Is it goods (as it will impede the free
flow of optical products)? Is it services (advertising restriction) or is it establishment
(deterrence from establishing a branch)? Good answers would refer to the centre of
gravity test (Schindler case). Candidates will then need to establish the possible
breach (access to market so depending on the choice of fundamental freedoms,
e.g. Mopeds case, Alpine Inv, Spanish Shopping Centres). The measure is anyway
clearly indistinctly applicable. If the question is dealt with under the free movement
of goods candidates should discuss Keck and cases such as De Agostini and
Gourmet. Once the possible restriction to access to the market is identified, a
justification probably based on public health should be discussed. Drawing
inspirations from the case law on this specific ground, candidates should assess the
proportionality of the measures, in particular whether the measure is suitable to
3
LA3024 EU law
attain the aim of protecting public health and whether any less restrictive
alternatives are available.
did not discuss which freedom should apply and focused only on whether there is a
breach of the Treaty with no discussion of possible justifications.
Question 4
John, a British national, came to Spain five years ago. He worked for a bank
in Madrid until six months ago when he was convicted and sentenced to
twelve months in prison for possessing an illegal firearm on bank premises.
He is scheduled to be released next month, taking account of his good
behaviour. The Spanish authorities have stated that they will seek his
deportation to the United Kingdom immediately on his release.
Carla, John's wife, is a Spanish national. She claims that John’s deportation
will leave her without any financial support and will endanger her marriage. In
addition, she will also have difficulties looking after their son Francisco, who
has learning difficulties.
Advise John, Carla, and Francisco as to their rights under EU law.
General remarks
This was a problem question on the free movement of workers and citizenship. The
impact of the Charter of Fundamental Rights should also have been discussed.
use
Case C-482/01 Orphanopoulos [2004] ECR I-05257
Case C-413/99 Baumbast, R v Secretary of State for the Home Department [2002]
ECR I-7091
Case C-200/02 Kunqian Catherine Zhu [2004] ECR I-9925
Case C-34/09 Ruiz Zambrano, 8 March 2011
Directive 2004/38.
Common errors
Analysing only one of the individual situations.
Not discussing citizenship provisions.
Not discussing the right to family life or the use of the Charter of Fundamental
Rights.
discuss the question both under Treaty provisions of free movement of workers and
under Directive 2004/38. Member states are of course entitled to deport nationals
on specific grounds such a ‘serious threat to public security’. In this case candidates
should discuss first of all whether the conduct of John – a migrant worker – could be
considered as falling within the definition of serious threat to public security (see the
case law of the Court, such as Orphanopoulos) and whether the deportation is
proportionate. Then the position of his family members under the Directive that
extends workers’ protection to their families should be analysed. Good answers
would refer to the citizenship provisions (Articles 20–21) and the case law of the
Court in judgments such as Baumbast or Garcia Avello, and also to the Charter of
Fundamental Rights, in particular to the provisions dealing with family life and the
protection of children, as both provisions have been employed by the Court in many
judgments.
4

were exclusively based on the provisions of Directive 2004/38 with no reference to
the Treaty or the Charter.
Student extract
Furthermore, he can claim that he cannot be deported due to his citizenship
rights and due to his rights to respect of family life under Article 8 of the
ECHR. This was seen in the case of Akrich where the person who illegally
entered the host state and had a marriage of convenience was still allowed
to remain in the host state. John can claim the same right as his family is
lawfully present in Spain and also his wife is a Spanish national who can
rely on her EU citizenship rights as well. Lastly, under Article 27 of the
Directive, it is provided that only public health, public security and policy
can be used for a measure against a EU national. However, Article 27
(para. 2) further clarifies that you need to take into account the personal
conduct of the person in question. As seen in Boucherau this means that
there has to be a serious threat and harm for a person to be deported and
his personal conduct has to be taken into account
Comment on extract
After clarifying the status of John as a migrant worker and as European citizen, the
candidate moves on to discuss the question of expulsion. The candidate takes on
board all the relevant facts – the seriousness of the offence, the good conduct of
the individual while in prison – and then starts examining the possible defences that
EU law can offer. There are mainly two, as correctly stated in the extract: one based
on the Treaty provisions Article 20 and 21 EU and the specific provisions contained
in Directive 2004/38. The candidate chooses to start with the Treaty and then
discuss the Directive. Arguably, Directive 2004/38 is more specifically related to the
expulsion of EU citizens, while Article 20 is more of an umbrella provision. Thus, it
would perhaps be better to start by considering the Directive and then move on to
the Treaty. Nonetheless, the correct legal arguments are well identified and
discussed. Most notably the answer relies on very appropriate precedents from the
case law of the Court as the judgments cited are those where the Court had to deal
with very similar facts. The answer put this candidate in the 2.1 bracket.
Question 5
Biborova is a Latvian company producing vodka, well known in particular for
Bibotal, a line of ready-made vodka cocktails that it markets in 1 litre plastic
bottles. Bibotal is mainly destined to home consumption, and is not
distributed to pubs, bars or restaurants. In May 2014 Biborova decides to
enter the Polish market with Bibotal, but encounters several difficulties. First,
the Intoxicating Substances Law of 2003 provides that intoxicating
substances no matter how big the alcohol concentration can only be
marketed in glass bottles, for reasons of consumer protection and public
health. Biborova will thus incur high packaging costs in order to be able to
sell its products on the Polish market. Second, according to the
Advertisement Law of 2004, alcohol can only be advertised in pubs, bars and
restaurants, as well as in specialized gastronomic magazines.
Biborova fears that this will seriously diminish its chances to be known on
the Polish market. Biborova’s advisors think that the Intoxicating Substances
Law of 2003 and the Advertisement Law of 2004 are contrary to European law,
but come to you for a second opinion.
5
LA3024 EU law
General remarks
This was a question on Article 34 TFEU (free movement of goods) and Article 36
(justifications) plus mandatory requirements.
use
C-8/74 Dassonville (Whisky in Belgium) [1974] ECR 837
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
Case C-110/05 Commission v Italy (Mopeds) [2009] ECR I-519
Common errors
Not discussing distinctly/indistinctly applicable measures.
Not assessing the Keck test.
Not discussing proportionality.
The measures are indistinctly applicable but can restrict access to the Polish
markets. Cases such as De Agostini and Gourmet are of course solid precedents
that can be used in this context as they concern similar national provisions. On the
issue of advertisement, candidates should discuss and probably dismiss the
application of the Keck test, especially in light of the cases mentioned above. The
question mainly revolves around whether public health grounds can be invoked
successfully. Drawing inspiration from the case law on this specific ground,
candidates should assess the proportionality of the measures, and in particular
whether they think the measure is suitable to attain the aim of protecting public
health and if any less restrictive alternatives are available. Recent case law of the
ECJ has been rather generous towards member states (Gourmet, Doc Morris) thus
it might be hard to show that the measures are disproportionate.
failed to identify the different measures and did not discuss the proportionality of the
public health defence.
Question 6
‘EU competition law is mainly about promotion of economic efficiency. This
view, is not fully correct as neither the sole nor even the primary purpose of
these laws is, or ever has been, to enhance efficiency. Instead, as the case
law of the Court confirms, the fundamental goal of competition law is to
protect consumers’
Discuss.
use
Case 85/76 Hoffmann-La Roche & Co AG v Commission [1979] ECR 461
Case C-8/08 T-Mobile Netherlands BV [2009] ECR I-4529
Case T-201/04 Microsoft v Commission [2007] ECR II-3601
Case T-203/01 Michelin II [2003] ECR II-4071.
6
Common errors
Discussing only Article 101.
Not mentioning case law.
Not discussing what consumer welfare may entail.
The traditional view is that competition law should aim to promote some form of
economic welfare. This is supported by the more economics-oriented approach that
has been gradually introduced in EU competition law with the implementation of the
EU merger regulation in the 1990s and the reform of the law on vertical restraints.
In particular it also refers to the implementation of the abuse of dominance
provisions of EU competition law. However, candidates should discuss that,
especially in the case law of the Court, enhancement of consumer welfare has
always been equally important. For instance, the CJEU was able to extend the
application of Article102 TFEU to exclusionary conduct that harms the effective
competition structure and prejudices consumers in an indirect way (Hoffman-La
Roche).
were a nearly verbatim repetition of what Articles 101 and 102 provide for.
Question 7
‘Unfortunately no one can say with confidence that Dereci and the recent
case law provide all of the answers in respect to how Article 20 of the Treaty
can be used in relation to the rights that can be enjoyed by EU citizens.’
Discuss.
General remarks
Question on the very recent case law on the application of Articles 20 and 21 to
third country nationals.
use
Case C-127/08 Metock [2008] ECR I-6241
Case C-34/09 Zambrano, 8 March 2011
Case C-434/09 McCarthy, 5 May 2011
Case C-256/11 Dereci, 15 November 2011.
Common errors
Not discussing post-Zambrano case law.
Not discussing the status of third countries nationals.
Not critically assessing ECJ case law.
analyse the turning point cases such as Grezclscyk, Baumbast and Zambrano
where the Court declared EU citizenship to be the fundamental status of individuals.
It also held that citizenship rights are enforceable regardless of the exercise of an
economic activity. However, the question required in particular an analysis of the
post-Zambrano case law. The McCarthy and Dereci judgments mark a decisive
change in the direction of the case law as the Court nearly overruled the very
generous approach taken in Zambrano (genuine enjoyment of citizenship rights).
Candidates should discuss if this is so because of the specific circumstances of the
cases (all dealing with third countries nationals) or whether this case law can have
an impact on the general notion of citizenship.
7
LA3024 EU law

merely discussed of old case law or just Zambrano with no critical assessment of
recent developments.
Question 8
A correct assessment concerning the application of the Charter to the
Member States is that the Treaty by adopting the Charter did not aim at
promoting the harmonisation of the systems of protection of fundamental
rights of Member States but it rather aimed at eliminating the possibility that
Member States in implementing Union law would apply different standards of
protection of fundamental rights. The impact of the Charter is therefore
limited.
use.
Case C-438/05 Viking Line Abp [2007] ECR I-10779
C-236/09 Association belge des Consommateurs Test-Achats ASBL v Conseil des
ministres, 1 March 2011
C-544/10 Deutsches Weintor, 6 June 2012
C-617/10 Fransson, 26 February 2013.
Common errors
Not discussing the Charter.
Not discussing recent case law.
Not positioning the Charter in the context of EU law.
This question deals with the relevance of the Charter of Fundamental Rights:
candidates should discuss the legal status of the Charter and in particular whether
the fact that it is now legally binding has had any impact (Article 51). It is clear that
the Court is now using the Charter both as benchmark for the legality of EU action
(Test Achat) but also as an instrument to review member states’ action when this
falls within the scope of the Treaty (Fransson). Thus, a discussion of the importance
of respect of fundamental rights in the EU should be included.
dealt only with the EU and politics or discussed the protection of fundamental rights
as a general principle of EU law with no reference to the Charter.
Student extract
Moreover the effectiveness of the Charter has been increased by the use
that the Court of Justice made of it in recent cases. Recently the questions
were raised about the scope of the Charter. Article 51 states that the
Charter is binding on EU Institutions and only on Member States when
there are implementing EU law. The drafters of the Charter main concern
was exactly the expression ‘when Member states are implementing EU
law’. Member States wanted it to mean that member States where bound
by the Charter only when implementing EU directives .However, in
Fransson and Melloni,the Court of Justice stated that the Charter applies to
the Member States act within the scope of EU law. Thus, the Charter
should be considered now as a benchmark of legality for the national law
and EU law. Some have argued that the Court is determined to be the last
court of fundamental rights to the expense of the national courts and other
international courts. However, in Siragusa the Court of Justice laid down
some criteria to delimit the scope of application of the Charter.
8
Comment on extract
This question required an up-to-date knowledge of the topic as it involves a
discussion on very recent developments, in particular the use of the Charter of
Fundamental rights in the ECJ case law. The candidate started their answer by
recapping the genesis of the protection of fundamental rights in the EU as a general
principle of law. However, correctly, the answer focuses on the recent
developments. The candidate identifies correctly in the discussion on Article 51 of
the Charter the most controversial issue. Very aptly they identify and discuss very
delicate judgments like Fransson showing an excellent command of their material.
Furthermore, comments on the possible friction between an emerging case law on
‘EU’ human rights and other existing forms of protection such as the one granted by
national courts are also included. This shows an ability to put the material into
context and to offer some critical remarks. The essay deserves a 2.1.

Examiners' Report 2014: LA3024 EU Law - Zone A

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Examiners' Report 2014: LA3024 EU Law - Zone A

Uploaded by

Copyright:

Available Formats

Examiners’ report 2014

Examiners’ report 2014

LA3024 EU law – Zone A

Specific comments on questions

Case C-91/92 Faccini Dori [1994] ECR I-3325

found in the Treaty itself or in justifications based on ‘imperative requirements of

Poor answers to this question…

Poor answers to this question…

You might also like