Lectures

Lecture – wed sep 16

Contract and property law
 

 What are the differences between common law and civil law approaches for the
damages of nonperformance?
o The starting point of civil law is to allow a claim for damages only if the party
in breach was at fault or can be held responsible for the nonperformance.
o The starting point of common law is that does not matter if the defaulting
party was at fault or not the mere fact of nonperformance gives rise to liability
in damages.

 Notwithstanding the starting point for damages for nonperformance in civil and
common law systems, both systems make use of legal fictions. What legal fiction is
used when?
o In the common law, an implied condition is used to exclude liability in case
performance becomes impossible through no fault of the debtor.
o In the civil law, an implied guarantee is used to hold a debtor liable even
though there was no fault on his/her part.

 "There was an example of a thief (p.102) who stole gold to make a coin and in the
end, he did not acquire the ownership through 'creation' because the labor put into the
coin is still too less considering the value of gold. What happens if the labor put into
the coin were to be more valuable than the gold itself? For example, if a thief were to
steal wood from my property and turn it into a sculptor, could I vindicate the wood
that he stole from me, or is he now the owner of the sculpture since he 'created' it?"
o The thief is now the owner, if the value added by the labour is more than the
value of the material.
o It depends on the relative value of the wood vs the sculpture.

 How does the “competence to dispose” relate to the “nemos dat” rule
o The 'nemo dat' rule holds that nobody can transfer a property right they do not
have themselves; the 'competence to dispose' is the competence to transfer a
property right one has. This links back to the pincushion theory of rights.

 Sara owns a beautiful painting: she gives a usufruct on the painting to her friend Ben.
Several years later, Sara sells the painting to ken.
o Ken now holds “bare ownership”, Ben still holds the right to “use and enjoy”
the painting.
o Sara is only competent to transfer the property right she has, which is bare
ownership (=ownership minus the permission to use and enjoy the object)
because of the nemo dat rule.

 What is necessary for the transfer of ownership in a traditional system?

o Consent to transfer between transferor and transferee as well as a “formalism”
or “special act”. The formalism depends on the kind of property to be
transfered.
 Harry, the postman, has a parcel for Esam. Because Esam isn't at home, he gives it to
Esam's neighbor, Bob, who gives it to Esam later that day. What does that make Bob?
o Detentor

 Sally “buys” a bike off a known bike thief in the streets of Maastricht while drunk one
evening for 5 euros. What does that make Sally?
o Possessor in bad faith

 Sally buys a second-hand bike in a respectable bike shop for 200 euros. Unbeknownst
to her, the bike was stolen by the bike shop’s supplier. What does that make her?
o Possessor in good faith

 What is the difference between detentorship and possession?

o The detentor recognizes the owner’s property right, the possessor does not.

 Why was the “prior tempore” rule not applicable on task 9B (on paritas creditorum)?
o The “prior tempore” rule applies between property rights: in task 9B, there is
only one property right (the mortgage)
o Find this task bellow in the document

Lecture – wed sep 30

Constitutional law

 What are the two main models for the translation of votes into seats in a
representative assembly e.g. parliament?
o Majority and proportional representation systems

 What is true in connection with majority system

o In a majoritarian system a candidate is elected if she receives a defined
majority of votes; the necessary majority depends on the specific system
o Plurality systems and absolute majority systems are types of majority systems

Lecture – wed oct 7

the law of Europe and tax law

 The commission represents and promotes the general interest of the Union
 The European Council represents and promotes the interest of each national state
 The European council determines the general development of the Union

 Allowance  fixed or varying statutory amounts that reduce taxable income

 Deduction  a taxpayer’s expenses that reduce taxable income
 Credit  a reduction of the amount of taxes due

 John has $50.000 of taxable income. The first half ($25.000) is a tax bracket with
20%, the second half ($25.000) in a tax bracket with 30%. What is John’s average tax
rate?
 o 25%
 John has $50.000 of taxable income. The first half ($25.000) is a tax bracket with
20%, the second half ($25.000) in a tax bracket with 30%. There is a third tax bracket
for income exceeding $75.000. What is John’s marginal tax rate?
o 30%

 Global system of income taxation  All types of income (e.g. wages, private
investment, etc.) are taxed in the same manner
 Schedular system of income taxation  Different tax rates apply to different types of
income

 VAT  output pat minus input pat

 ORDER: First look at contributions, returns and investments and pension payments
come last
 Videos

Legal reasoning and basic concepts of law 

 
Basic concepts

 A lawyer needs to: analyse legal position → understand the legal position → Be
specific.
 Legal concepts can mean many different things → it depends on what is behind the
word 

Obligations

 It is used in two different ways:

1. Narrow sense: Counterpart of a claim (someone has to do something)
2. Broad sense: Combination of a claim + narrow obligation 
  Obligation: there is a creditor (person on the other side - thy have a claim)
 Duty: not relational

Claims

 A claim is that someone has to do something, it's always directed at someone.  (Ex:
you have the claim to get the IKEA furniture you ordered)
 You have the competence to transfer your claim to someone else 
 you have the competence to enforce the claim 

Duties

 It generally consists of to concepts:

1. Agent who has duty
2. kind of action agent is obligated to perform 

 Duties
 Meant to guide behaviour
o Do something (ex: pay taxes)
o Not to do something (ex: Prohibition  of theft)

 Imposed by rules
o Often: attached to status
o Duty-imposed rules = mandatory rules

Permissions

 There are 2 kinds:

1. Weak permission - no explicit prohibition 
2. Strong - explicit exception to general prohibition 

 There are exceptions to strong prohibitions (police can do body search - gardener can
walk on the prohibited lawn)

Juridical acts 

 Juridical acts = changing your own legal position - cant change others
 There are exceptions → dutch legislator can change all of our legal positions - he has
the competence
 Juridical acts → act performed with the intention to bring about legal consequences.
 Where law connects legal consequences to the act because they were intended
(the law needs to connect the legal consequence to the intention - stabbing,
doesn't matter the intention there is legal consequence (not a juridical act) -
selling something, you want to give away the product aka legal consequence )
 There are sometimes formalities 
 Competence is needed for a juridical act. 

Competences, immunities, permissions

  Competences
 something needed to change someone’s legal position

 Immunities
 Counterpart to competence → no one can change your legal position

 Permissions
 Mere absence of prohibition. It is assumed that something is allowed if there is
nothing explicitly forbidding it.  

 No permission → You CAN do it but you're not allowed to do it (kill)

 No competence → you're allowed to, but CANNOT do it (doing constitution)

Legal reasoning 

Case

 Gerald Mayo (22) filed a claim against Satan and his staff for causing plaintiff's
downfall 
 The case was denied → they say because there was no address so he could not
serve his papers
 Requirements to sue the devil 
 Legal rule(s)
 Facts that match the conditions of the legal rule (operative facts).
 legal consequence 

Structure of a Legal rule

 IF -conditions of the rule / operative facts - THEN - legal consequence -

 IF a person causes the downfall of another and IF he thereby caused damage to this
person, THEN he must compensate for his damage. 

 Like this you identify if the case meets conditions 

 
Interpretation 

 How to determine if the conditions of the rule are met 

 Interpretation of the rule:

 Interpretation of ambiguous elements of a rule.
 Ex. interpreting what counts as “causing someone’s downfall” 

 Types of  Interpretation 

 Literal rule → grammatical interpretation 
 Mischief rule → Legislative intent - What do they wanna solve with the rule 
  Golden rule → Teleological interpretation (what interpretation you wanna
give it)

 What do we mean with the downfall? - what we really want to prevent is their misery
or any undue obstacles in their path

Classification

 Classification is the translation between abstract case description and concrete facts 
 Establishing facts: 
 Did Satan cause misery? did he deliberately put obstacles on his path? 

 Sources of law 

 A way to distinguish legal rules from other rules (moral religious, etc.)
 Its a legal rule if its originated from an official legal source 
 Official legal sources 
 Legislation: explicitly created general rules →  source of rules 
Can be created on different levels (States, provinces, municipalities, EU) 

 Precedents: official source of law in the common law traditions 

Stare decisis (stand by your decisions)
Only supreme court is not bound by this

 Treaties: contracts between 2 or more states 

Bind the contract parties
Some (human rights treaties, EU treaties) are comparable to legislation
because they assign rights to individual persons or organisations. 

Structure of the argument - combining all elements 

Unclassified case facts ---------> CLassified case facts ---------> legal consequences
                                    legal rule                                   legal rule

 We start from the legal consequences or from the facts 

 If we start from legal consequence we think first what we want and then what rule has
that as a legal consequence.  

Stan caused Gerald                           Satan caused                      Satan must compensate

misery and placed deliberate ------> Geralds downfall ---------> Gerald 
obstacles in his path                  l                                         l
                                          causing misery etc.                IF someone causes another 
                                     CLASSIFIED as causing             person’s downfall, THEN he must
                                                downfall                                     compensate

          Rule cannot be found in                                                            l

           legislation  / precedent /              --------->                  NO valid legal rule 
          any other legal source 

 there is no valid rule - the argument is not valid

 Contract law

- Contract leads to a duty and right  contract leads to a change in legal position
- Contract  a legal relationship between two parties  requires the consent from both
parties
- E.g. sale of goods (sales contract  buying something), employment contract, service
contract (e.g. Hairdresser)

Distinction between types of contracts

- Contracts differ depending on the parties and the content of the contract
- E.g. business to business (B2B), consumer to consumer (C2C) and business to
consumer (B2C)
- Content of the contract (e.g. sale of goods, employment, lease, loan…)

Why do we make contracts? (the rationale)

- Allows a society and economy to exist  no economy without a contract

- Core of a typical contract  exchange

Important rules that influence contract law

- The rules made by contracting partners
- Official rules  National, European and Supranational rules
- Rules made by other (non-State organizations)

In civil law traditions its mainly the legislator that provides the rules for contract law and in
common law jurisdiction it’s the judiciary that provides the rule.

Directives of European legislature

- Numerous rules that are implemented in the national jurisdictions
- Art. 2:101 (1) Principles of European Contract Law  General rules for contract
applied to all jurisdiction

Case examples:

1. Liz and Tom agree to share their class notes for Introduction to Law in case one of
them would fall ill. On Monday Liz misses her tutorial because she is ill. Tom refuses
to give her notes.

- Is it a contract?  no as there is no intention to be legally bound since  law states

that in this type of agreement there is no intention to be legally bound
- Social/domestic agreement  moral sanctions

2. A promise to sell his car (worth 15.000 euro) to B for 10 euro 

 - Law would say this is a binding contract  intention to be legally bound is given 
contract far below the value is a contract

3. B promises to give C her car for free  the gift (gratuitous contract)  some
formalities need to be fulfilled to make contract binding as law finds it suspicious that
someone would give something without receiving anything back  need to be put
into a notary deed (give giving party insight into legal consequence)

4. I promise to come to dinner this Friday  no intention to be legally bound hence it’s
a social promise

5. D promises to pay for driving lessons if his son does not smoke until he is 18 years
old  domestic agreement and hence not enforceable

General Principles:

1. Consent of parties (consensus ad idem)

- Exception: civil law  gratuitous promise (donation) requires a notarial need
- Common law  not only consents is needed but also consideration (quid pro quo 
some kind of counter-performance is needed)
2. Freedom of contract (free to contract at all, with whom one wants and what contents)
3. Binding force of the contract (pacta sunt servanda)

Contractual Remedies

1. Performance of the contract (unless performance is impossible)

2. Damages for breach of contract (fault of the non-performing needed?)
3. Termination for breach of contract (only if non-performance is serious enough)

Art. 9 (1) Directive 2011/83 on consumer rights

- Only for consumer (B2C) contract
Withdrawal right from contract without needing a reason  cool of phase consisting of 14
days
Documents

Solving cases and justifying their solutions

 
  A legal case is a set of one or more facts that call for a legal outcome. This
outcome is a legal consequence that the law attaches to the case by means of a
legal rule. 
 
  Start from the case description then look at the rule condition 
o   So, ex: Peter committed theft 
o   You look at the rule – it says that if someone commits theft, they can go to jail
for a maximum of 3 years 
o   The rule has one condition: if someone commits theft. 
o   The case satisfies the condition so peter can have the legal consequences
 
 Start from a question  look at legal consequences
 o   First look at the case description and ask which legal consequences the law
attaches to the case. 
o   Then, look at all the rules of which conditions are satisfied by the facts of the
case.
o   Often, we start from the question: Can he be incarcerated? Then we look for a
legal consequence that answers the question 
 
  Solution
o   If we have a case of one fact (ex: peter committed theft) and we have one
question (ex: can he be incarcerated) then we follow this step: 
 
1.     Formulate precisely which question you want to answer
2.     Find a rule with a legal consequence that answers this question 
3.     Identify the conditions of this rule.
4.     Carefully check, one by one, whether the facts of the case match
the conditions of the rule. 
5.     Come to a conclusion 
  If the answer is negative, no conclusion can be drawn. It is possible to go
back to step 2.
o  If the answer is affirmative, the rule attaches its legal consequence to the
case. 
 
 You remember this as the IRAC meted (Issue, Rule, Application, Conclusion)
 
   The solution of the case has to be justified – the steps above justifies the
answer so, you take that and match the conditions of the rule to the case. Like
that you create  the justification. 
o   EX: Peter can be incarcerated, because of the rule that those who committed
theft can be incarcerated for a maximum of three years. This rule has only one
condition: that somebody committed theft. In our case it was Peter who
committed the theft. So the conclusion of the rule in this case is that Peter can
be incarcerated for a maximum of three years.
 When the case is more complicated than that (for example it says that peter
took something from lucy) then all the process needs to be done twice (one to
argue that he did theft and the other one to say that he can be incarcerated) 
 
 To avoid repetition, we confine the discussion of the second case to the
justification of its solution 
 
o   EX:
o   Peter can be incarcerated, because of the rule that those who committed theft
can be incarcerated for a maximum of three years. This rule has only one
condition: that somebody committed theft. It can be argued that Peter did
commit theft on the basis of the rule that somebody who takes away a good
that belongs to somebody else commits theft. This rule has three conditions:
o   1. there must be a good;
o   2. this good was taken away by some person;
o   3. this good did not belong to the person who took it away.
 o   In our case the three conditions are satisfied: There was a good, namely the
candle. Peter took this candle away. The candle belonged to Lucinda, and
therefore not to Peter.
o   So we can conclude that Peter committed theft, and from this fact we can conclude that
Peter can be incarcerated for a maximum of three years.
Tasks
 legal reasoning and basic concepts

Task 1 - Solving cases

I=
Is the house immovable?   

R=
Article 518. Code Civil (France): “Land and Buildings are immovable by their nature.”.
(Maastricht Collection 4, Page 4)  

A=
For the rule to count it has to be land or a building.

C=
The house is immovable so yes Francoise is the new owner of the house
 
Article 518. Code Civil (France): “Land and Buildings are immovable by their nature.”.
(Maastricht Collection 4, Page 4) So the house is immovable and therefore belongs to
Francois because as the context states ‘’They find out he has made them both his heirs:
François to all the immovables in his estate’’.  Since the building was built on that land, it
automatically becomes part of the estate. 

Task 2 - Finding the law and its sources

legal rule= a rule enforced by the state, a principle under which all persons, institutions, and
entities are accountable to laws that are: Publicly promulgated. Equally enforced.
Independently adjudicated. .

 It starts with the way Peter drives the car. Peter is frustrated by the slow speed of
the car before them and tries to speed it up by flashing his car lights several times.
Denise shares Peter’s frustration but informs Peter that his behaviour is in her
eyes nevertheless wrong.
 This is not a legal rule but it is a social rule. We see it as a normal thing not to
flash your lights multiple times from frustration but it is nowhere stated that
this is not legally allowed.
 
 Another source of irritation is the day of the week. Denise is Jewish and she is not
at all happy that they have to work on Saturday. Peter thinks this is nonsense. In
West-Europe Sunday is the weekly day of rest and everybody who wants to live
here should stick to this convention.
 Technically, Israel is the only state that established legal rules for the
Saturdays, meaning that on the day of Shabbat, it is prohibited to work.
 However, they are in Western Europe, where there are no laws laid down to
enforce this religious custom. 
On the other hand
 In the EU charter of fundamental rights it is stated in article 10 of freedom of
thought, conscience and religion that:
“1. Everyone has the right to freedom of thought, conscience and religion.
This right includes freedom to change religion or belief and freedom, either
alone or in community with others and in public or in private, to manifest
religion or belief, in worship, teaching, practice and observance.
2. The right to conscientious objection is recognised, in accordance with the
national laws governing the exercise of this right.”
 So, emphasizing on “freedom to manifest religion” if she is not able to follow
Shabbat on saturday, they are taking away her right to manifest and practice
her religion. 
 
 Whether it is because of the slow car before them or not, Denise and Peter are a
bit late. In order to make it in time, Peter speeds and ignores a red traffic light on
a quiet crossing.
 Red traffic lights → Crossing them is considered to be the violation of general
road regulations and may result in a potential fine. Therefore it is an illegal
act.
 
 Finally, Peter and Denise arrive at the dinner venue. There they have to cooperate
with Henry, who is a bit clumsy. By accident Henry stumbles against Denise, who
falls and gets hurt. She has to see a doctor immediately. Denise wants Henry to
pay the doctor’s bill. (You may ignore the role of insurance.)
 The rule that is applicable is article 6:107 (1)  of the Dutch Civil Code
(maastricht collection vol. iv page 171) which states “If someone, as a result
of an event for which another is liable, suffers physical or mental injury, the
other is obliged to compensate not only the damage of the injured himself, but
also to compensate.”
Thus, in this case, it is indeed a legal rule since Henry is liable for Denise’s
injury, and he is therefore obliged to compensate by paying the doctor’s bill.
 
 
 After Denise has left to see a doctor, Peter and Henry quarrel about the proper
arrangement of the cutlery on the dinner table. According to Henry, Peter does not
know the proper rules.
 These are etiquettes and it is not a legal rule that everyone should know the
proper arrangement of the cutlery on the dinner table.  
 
 Task 3 - Operative facts, legal
consequences, and juridical acts

operative fact= A legal rule is applicable to a case if the facts of the case satisfy
the conditions of the rule 
 
juridical act=Acts that are intentionally performed by a person to bring about a sought legal
effect

1. Joan and James contract for the delivery of 100 kg of fertilizer                                         

-Yes there is an operative fact because of the contract. This makes a legal deal
between Joan and James. If one of the men breaks the contract there will be legal
consequences. This depends on what the terms in the contract are.  It is juridical
fact because they both made the deal to create a contract.
 
2. Bram drives his car on the wrong side of the road.                                                            
-This is an operative fact because Bram is breaking the rules by doing this. On the
other side this is not a juridical act because we assume Bram is not doing so
intentionally. The legal consequences depend on the country probably it will be a
fine. 
 
3. Dennis insults Harriet by not noticing that she had her hair done.                                                         
-This is not an operative fact because there is no contract between these two that
states that Dennis should make compliments about Harriet’s hair.
 
4. The court sentences Dieter to 3 months of incarceration.                                              
-This is an operative fact because the court can give these sentences. It is also a
juridical act because the court is giving this sentence with a reason and intentionally.
The legal consequences for Dieter are that he will go to jail for 3 months
 
5. Celine and Christoffer create a new constitution for their country by writing it down
on the back of a beer mat.
-It does not fall into the category of operative facts, since it does not have an official
legal background. And also not a juridical act because there are no legal
consuquences.
 
6. A public servant of Maastricht grants Elise a building permit.                                              
-This is an operative fact because a public servant has the right to grant building
permits. Also a juridical act because the public servant is giving this to Elise
 intentionally and with a reason. The legal consequences are that Elise is allowed to
build on a specific place in Maastricht. We don’t know for sure if the public
servant has the compentece to give Elise a building permit.

Task 4 - Rights, Duties, Permissions, and

Competences
1. Joan owns a book. Is ownership a right?                                                                                  
-Yes, as said he owns the book so it is his therefore his ownership is a right. It is part
of proberty law. This is an absolute right

2. Claire borrowed €100 from Kristi. Does Kristi have a right against Claire?                 
-This depends on whether they have a contract or not. If they have one then yes
otherwise not. On the other hand, oral contracts are legally binding , it is however
difficult to prove its existence since there is no written proof.

3. John has a fundamental right to education. Is there a corresponding duty, and if so

who is the bearer of this duty?                                                                                                     
-The right to education is part of Human Rights. Hierarchy-wise, fundamental rights
gives the government a duty they have to bear. Fundamental rights give competence
to the citizens because they can go to court if things are not going well conseeing
fundamental rights.

4. The municipality gave the owner of restaurant Au lion d’or the ‘right’ to have tables
on the pavement before the restaurant. What does this ‘right’ involve?                                                 
-This right involves the fact that the owner of Au lion d’or can use the pavement
before the restaurant as his own to have tables on it. This is a strong permission. 

5. Parliament has the ‘right’ to adopt bills. What does this ‘right’ involve?                            
-The Constitution states that the Parliament is embedded with the right to create new
laws, modify, or delete existing ones. They have the competence to do this. 

Contract Law
 Task 5 – iPhone
Joan desperately needs the newest iPhone; at least that is what she thinks. Regrettably, all
items of the newest type seem to be out of stock. Temporarily, but still…, she needs the
phone within two days. Unexpectedly, when walking into a little-known shopping centre, she
sees a shop where an iPhone of the newest type is advertised in the window for the acceptable
price of €1000. Joan enters the shop and tells the seller that she wants to buy the phone for
the asked price. The seller answers that, regrettably, he cannot sell her the phone because it is
the last item and that it is meant for advertising purposes. However, he is completely
prepared to put Joan on a list of prospective customers and warn her when a new set of
iPhones come in.
Joan does not agree to this. She has accepted the seller’s offer, has she not? So that must
mean there is a binding contract.

I= 
Joan wants to buy the last iPhone in the store but the owner won’t sell it to her because it is
the last one and it is meant for advertising purposes

R= 
-“The display of goods in a shop is seen as an offer in French and Swiss law but as a mere
invitation to treat in English law.” (We assumed that if it would be in one of this specific
countries it would be mention)
- Art. 2:201 s.3 PECL (Principles of European Contract Law):
 “Proposal to supply goods or services at stated prices made by a professional supplier in a
public advertisement or catalogue or by a display of goods is presumed to be an offer to sell
or supply at the price until the stock of goods, or the supplier’s capacity to provide the
service, is exhausted.”

A= 
-If we see this law we can state that it is a legal fact that when the stocks of goods are
exhausted the owner is not obligated to sell the last one (in this case the iPhone) since this is
only for advertising purposes and the actual stock of goods is exhausted.  
-The owner is willing to put Joan on the list of prospective customers and make a contract
that way so that when there are iPhone’s available again she is ensured she will be able to buy
one. Joan herself is the one who decides not to agree with this. 

C=
-In conclusion we agreed on the fact that there is no binding contract between Joan and the
seller mainly because of article 2:201 s.3 PECL 

Tutorial conclusion= 

It was an invitation to negotiate, not an offer.

 Task 6 - Library
Lord Hastings sold his castle to a rich parvenu, John Deere, for the stunning amount of
£5,000,000. This sale included everything contained in the castle, be it that the Lord made an
exception for the contents of the ‘library’. All of the Lord’s friends know that the Lord used
the word ‘library’ to mean his richly stocked wine cellar.

Can John Deere claim the contents of the wine cellar, or was that not included in the sale?
(NB the castle did contain a real library, filled with many yearly editions of Reader’s Digest
paperbacks.)

I= 
There is a misunderstanding between Lord Hastings and John Deere if the contract for the
castle contains the wine cellar (which Lord Hastings referred to as the ‘’library”) yes or no. 

R=

Art. 5:101 PECL:

1. A contract is to be interpreted according to the common intention of the parties even

if this differs from the literal meaning of the words.
2. If it is established that one party intended the contract to have a particular meaning,
and at the time of the conclusion of the contract the other party could not have been
unaware of the first party’s intention, the contract is to be interpreted in the way
intended by the first party.
3. If an intention cannot be established according to (1) or (2), the contract is to be
interpreted according to the meaning that reasonable persons of the same kind as the
parties would give to it in the same circumstances.

A= 

Lord Hastings is the first party in this case and the way he interpreted the contract was that
the wine cellar or his so-called library was not included in the seller's contract. We could
assume that the seller is unaware of the name given to the wine cellar (library ) and is
therefore entitled to keeping its contents .

If we focus on the second part of the rule Lord Hastings can keep his wine because he is the
first party in this case and John Deere was unaware of the intention that the library was the
wine cellar and in the rule states that in this case the contract should be interpreted the way
intended by the first party. 

If we focus on the third part of the rule it states that “the contract is to be interpreted
according to the meaning that reasonable persons”, any other person (except the Lord’s
friends) would have taken this library as a place filled with books and not wine. 

C=
Seeing the second part of the rule Lord Hasting is still the owner of his wine because he is the
first party and the contract should be interpreted the way the first party did

Seeing it from the third section of the rule we can state that John Deere can claim the contents
of the wine cellar. Although if we focus where the rule states that “[...] of the same kind as
the parties” and we take these people as the Lord’s friends then since they take the library as
the wine cellar, the Lord has the right to keep the contents of it.

Tutorial conclusion= 
Use the 3 and conclude that a resanable person would say its a library.
Second can’t be used because we cant know if John could have known the library equals the
wine cellar “the other party could not have been unaware of the first party’s intention,”

Task 7 - Car troubles

A. Since Ibrahim Rashid has moved from the countryside to central London, he does not
need his car anymore. He therefore sells it to Sanjee Patel for £380. Sanjee, who lives
in Newcastle, asks Ibrahim to bring the car over. On his way there, Ibrahim drives too
fast, loses control over the car and wraps it around a tree. Thankfully, Ibrahim
remains unhurt; when he arrives in Newcastle, he hands over the keys of the
car(wreck) to Sanjee and asks for his money.

I=
Ibrahim damaged the sold car himself on his way to Sanjee. Sanjee doesn’t not agree with
this and does not want to pay the £380 
 
R=
According to English case of Nicolene Ltd. V. Simmonds (1952): 
-It does not matter whether the failure to fulfil the contract by the seller is because he is
indifferent or willfully negligent or just unfortunate. It does not matter what the reason is.
What matters is the fact of performance. Has he performed or not?
 
-The owner of a car that has been damaged unlawfully by someone else has a right against
the tort- feasor to be compensated. The seller of a car has the right against the buyer of the car
to be paid the price for which the car was sold. And, finally, the owner of a car has a right to
the car itself. This last right differs from the former two. It is not a right against a particular
person such as the tort-feasor or the contract partner; it is a right on a tangible object, namely,
the car. (page 80, introduction to law)
A= 
In light of the previously mentioned rule, even though it can be argued that the physical
damages on the vehicle fell outside the seller’s influence, he is still accountable for them,
hence he is unable to set the same price for said vehicle or should offer compensation. 
Sanjee also hasn’t paid for the car and neither has he the keys or official papers yet so
because of this the owner of the car is still Ibrahim. 
C= 
 It can be said that, since the transaction of the car was not completed, and the car’s conditions
were not acceptable, the contract itself was not valid and could be cancelled by Sanjee. If
Sanjee decides to still hand over the £380 and accept the car keys it would be her own
responsibility and she would have to pay for the repair herself.
If the contract was already completed before then Ibrahim should lower his price or offer a
compensation for the damage
B. Since Ibrahim Rashid has moved from the countryside to central London, he does not
need his car anymore. He therefore sells it to Sanjee Patel for £380. Sanjee, who lives in
Newcastle, agrees to come to London to pick up the car. During his journey he hears some
disturbing news: following the shooting of an unarmed man by the Metropolitan Police,
riots have broken out in London. On his arrival, he is met by Ibrahim who hands him the
keys to the car, but also informs him that the car has been badly burned in the riots and
needs serious repairs. Could he have his money now, please?

I=
The car Ibrahim sold to Sanjee was damaged because of riots even though this is a fact
Ibrahim still want his £380 from Sanjee
 
A=
Using the same rule as in the past case (A) we can say that even though the owner was not
directly responsible for the damages in this case, this does not change the outcome, that being
a damaged good is not suitable for sale. 
 
C= 
Since the condition of the car wasn’t what Sanjee was willing to buy in the first place, the car
was damaged so then the contract is not valid and Sanjee doesn't have the obligation to pay
for the damaged car.
 
C. A variation: Would the outcome of these cases be any different if the car was sold in
Amsterdam, and the applicable law therefore Dutch law?

In this cases we have been using a precedent as a rule if we look into Dutch law civil code
this is what you find: 

Article 7:17 Conformity with the sale agreement

- 1. The supplied object must be in conformity with the sale agreement.
- 2. The object is not in conformity with the agreement if it does not have the qualities that
the buyer, given the nature of the object and the statements of the seller about it, could have
expected on the basis of the agreement. The buyer may expect that the object has the qualities
that are necessary to be able to use it in a normal way and of the presence of which he did not
need to doubt as well as the qualities that are necessary to be able to use it in the particular
way that the buyer intends to make of it as provided for in the agreement.
- 3. Another object than agreed upon or an object of another kind is not in conformity with
the agreement. The same applies if what has been supplied differs in number, weight or
measure from what has been agreed upon.
- 4. Where a sample or model has been shown or handed over to the buyer, the qualities of
the supplied object must correspond with it, unless it was shown or handed over merely to
give an indication without the object needing to be in conformity with it.
- 5. The buyer cannot appeal to the fact that the object is not in conformity with the
agreement if he was aware or reasonably should have been aware, at the time of the
conclusion of the agreement, of the lack of conformity. Neither can the buyer appeal to the
fact that the object is not in conformity with the agreement if this is due to defects in or the
unsuitability of raw materials originating from the buyer, unless the seller should have
warned him about these defects or this unsuitability.
- 6. At the sale of immovable property the mentioning of the size of the surface area is
regarded merely as to be giving an indication without the object needing to be in conformity
with that size.

Making emphasis on “The delivered object must comply with the contract” we can state that
Sanjee signed a contract for a car (not only the keys) and since there is no car the contract is
not valid. 

Propertry Law

TASK 8 – the stolen bicycle

Nienke is the owner of a bike. She lent her bike to Dennis for a month, who as a consequence
has become the detentor of the bike. After a week, the bike was stolen from Dennis, and in
that way Nienke lost possession of the bike.
A few months later, Nienke sees somebody riding her bike and calls a police officer. The
officer stops the guy whose name happens to be Menno. It turns out that Menno stole
Nienke’s bike from Dennis and thus became the possessor of the bike.
Nienke wants to vindicate her bike from Menno. Is that possible, given that Nienke has no
contract with Menno and that Menno stole the bike from Dennis, not from Nienke?

I=
Nienke is the owner of a bike and she lent it to Dennis. Menno stole Nienke’s bike from
Dennis. Nienke wants to prove to the police that the bike belongs to her.
R=
The condition for vindication is that the person who wants to use a legal action against the
wrongful possessor of the object has to be the owner of the bike 
A=
Nienke is the right holder since she is the owner of the bike. Dennis got the bike from Nienke
so his legal position in this is as a detenor (someone who has the factual control over an
object on behalf of another person). Since Menno stole the bike, he is the possessor since he
can control factual power over the bike.
Even though Dennis can testify that Nienke is the owner of the bike, she lacks any formal
documents that can prove said ownership.
C=
Nienke can vindicate her bike from Menno since she remains the owner of the bike. 
No contract is needed since Nienke is the owner of the bike. What she needs now is proof
that she is in fact the owner, this being a testification from Dennis or some kind of receipt. 

TASK 9 – Paritas Creditorium

Andrea has a gambling habit. To finance it, he borrows money wherever he can get
it. From the Banco de Genova he borrowed €100,000 and he granted the bank a
mortgage on his house to obtain the loan. He also borrowed €25,000 from Giovanna,
his sister in law, and three months later €75,000 from his brother Antonino. There
are no other creditors.
Andrea has no money to repay his loans, and he is declared bankrupt. The only
thing of worth that Andrea still has left is his house, which brings €120,000 in a
forced sale.
The bank claims its full €100,000 from the proceeds, but Antonino and Giovanna
want more than the remaining €20,000. They invoke the paritas creditorum and claim
that everybody will receive €40,000.
A. What is paritas creditorum and would its application really lead to a division of
the proceeds of the house into three equal sums?
B. How is this €120,000 to be divided between the Banco de Genova, Antonino
and Giovanna assuming that the Bank exercises its mortgage? Justify your
answer by means of a clear argument.
C. Would the division of the money be any different if there were no mortgage or
other security right? Justify your answer by means of a clear argument.
 NB: You can ignore the role that interest on the loan to the bank might play in this
scenario and pretend that it is a zero-interest loan.

A= 
Paritas Creditorum is a principle of equality, meaning that in case there are more than one
creditor, all creditors are same in rank, thus they are entitled to amounts of money in
proportion to their claim. This function is to secure correct division of money if a debtor
cannot pay all of his debts. 
In this case the bank is the creditor and it holds a security right which will break the paritas
creditorum rule since the bank has the power to take possession and sell the primary property
right of the debtor to a new owner and to satisfy from the proceeds. 
B=
Because of the aforementioned reason, the Bank itself is entitled to receive the €100,000. The
rest (€20,000) is to be divided between the other two parties if they proceed to invoke Paritas
Creditorum. 
A secured creditor is defined in section 3(30) of IBC as a creditor in favour of whom security
interest is created, the term “security interest” was defined under section 3(31) of the code.
Mortgage is a security right.
So, the bank needs to get paid first. Since the other 2 don’t have a security right the rest of the
money will be divided proportional to the claims against Andera.
This means that the bank will receive €100.000, Giovanna will receive €5.000 and Antonio
will receive €15.000
C= 
In this case the Bank was not granted mortgage, without mortgage the bank has no security
right and therefore no privilege. Because of this the Paritas Creditorum could be invoked in
the regular way, meaning that the amount of money could be distributed proportionally.

TASK 10 – Claims and limited property

rights
Jean-Jacques, Comte de Saint-Germain is in dire straits. He needs to lay his hands
on some money quickly, so he decides to sell off the stables on his estate, which are
situated some distance from the castle and were converted to a series of
comfortable apartments for his mother and sister some years ago. Patricia, a self-
made business woman of considerable means is interested, but she notices that one
can only reach the apartments quickly via the driveway to the castle itself; otherwise,
it is an extra 6 kilometres around the castle grounds, to enter the stables area at the
back of the estate.
Saint-Germain offers her a contract that allows access to the driveway for herself
and her guests, but Patricia is not interested in a mere agreement between her and
the Count. After all, she might one day want to sell the apartments again, and the
value of her new accommodations would clearly be lowered if she could not offer a
subsequent buyer the same easy access. Patricia and the Count discuss the best
way to bring about what they want: a servitude or a usufruct.
I=
Patricia is can sign a contract which will give her access to use a passage to the
stables on the estate owned by Jean-Jaques, Count of Saint-Germain. However, if
Patricia happens to sell the stables, she cannot guarantee access to the passage for
the buyers, and they would need to take an extra route encompassing 6 kilometers.
Patricia is worried because the value of the property will be lower if she cannot
guarantee passage. 
 
R=
Right of servitude: it can be created on one piece of land for the benefit of another
land. 
Right of Usufruct: Right to use and enjoy an object that is owned by someone else.
This right comprises the permission to use and enjoy the object of the owner who
then holds bare ownership.
A=
The right of servitude can be the right of way, which allows the owner of the one
piece of land to go through over the other piece of land. This right limits the
ownership of the land on which the servitude runs. The right of servitude is created
on the land, the effect of this is that when the right of ownership of the land is sold
and transferred to someone else, the new owner is still bound by the right of
servitude. While in the right of usufruct the owner would hold “bare ownership”,
meaning that he has given away his permission to use and enjoy the object. 
 
C=
Servitude can be passed to someone else while usufruct is bound to the person
entitled. It would be better for Patricia to use the right of servitude. In that case, if she
decided to sell the property, in light of the right of servitude, the future owners of the
stables would be allowed to use the passage. 
 

TASK 11 – Transfer
From her small Paris apartment, Patty buys a book on the internet from Librairie
International, an internet bookshop which operates under French law. Patty pays for
the book online with her bank card and eagerly waits for delivery. A few days later
the book arrives, but it is heavily damaged. Patty does not want the book anymore
and contacts Librairie International. The book shop states that according to French
law the damage to the book is not their responsibility. Under French law, Librairie
International claims, Patty became owner of the book before the damage occurred,
and, as the owner of the book, the risk of damage during transportation is on her.
Patty wonders if she really became the owner of the book before it was shipped to
her.
NB: You should ignore the possible liability of the shipping company and of the
person who chose to employ this shipping company.
 
Variation: Would the case have a different outcome, had Patty bought the book from
Deuticke.com, a bookseller that operates under German Law from a studio in Berlin?
I= Patty ordered a book from the internet from a French company. The book arrives in an
unacceptable condition. Patty demands a refund from the website, however French law
dictates that from the moment she paid for the book and it was sent out by delivery, she
became the owner instantaneously. Because of that, the responsibility regarding the condition
of the book falls to her.
R=
France uses the consensual system which means that the conclusion of the contact of sale will
transfer the property right from the transferor to the transferee. They distinguish between
immovable and movable objects, with movable objects the buyer is the owner after the
conclusion of the contract. 
Germany uses the tradition system, which requires more than a contract of sale, in this
system there must be a special act to transfer the property right. In the traditional system, a
contract of sale serves as the starting point for the transaction but in itself does not have effect
in property law. 
A=
In France, in the case of the book - an movable object - Patty (the buyer) immediately became
the owner after concluding the contract. 
variation:
If Patty bought the book from Deuticke.com which operates under German Law, then
the transfer of property rights will be based on the tradition system. The ownership of
the object will not be transferred only on the contract of sale. 
C=
In France since she became the owner after concluding the contract, she has no claim for
damage. 
variation:
Based on what was mentioned before on this, the ownership of the book will not be
transferred to Patty based on merely the contract of sale, meaning that she will only
become the owner after delivery and she has a claim for damage.

Tort Law

Task 12 - Formula 1 Frenzy

Sean wants to visit the Formula 1 Grand Prix on the newly constructed Speed Racing Ring.
Tickets are so expensive that it is impossible for him to get in. Fortunately for him, the Ring
terrain includes a cliff overhanging a crucial corner, known as the Schumacher chicane, from
which non-paying visitors can also watch. The Speed Racing Ring has placed a sign there,
which states that Formula 1 races are loud and that hearing loss may result from attending a
race from that place. However, apart from the sign, no precautionary measures were taken.
So on Sunday the 24th of January, Sean sees the Grand-Prix from the Schumacher chicane.
The race is really spectacular and the view from the overhanging cliff is amazing. However,
the sound of the cars is extremely loud, especially because Sean stands much closer to the
track than spectators that paid for their tickets.
Before the race is over, Sean notices loss of hearing on the left side. Moreover, on the right
side there is a beep in his ear that does not go away, also not the next day or the day after that.
When by the end of the week Sean has not recovered any of his hearing and the beep is still
there, he decides to visit a doctor. The doctor immediately sends him to a specialist that
diagnoses a permanent loss of hearing on both sides. Sean sues the owner of the Speed
Racing Ring for damages

Liability 

I= Sean had permanent loss of hearing on both sides after visiting a Formula 1 grand prix for
free on a spot where non-paying visitors can watch. There is just a sign that warns for loss of
hearing, nothing more

R=
Common law:
Donoghue v Stevenson, the tort of Negligence
1. There must have been a duty of care= YES
2. This duty must have been breached= NO
3. There must be damage= YES
4. This damage must have been caused by the breach=NO

The learned Hand Formula:

         The owner’s duty to provide against resulting injuries is a function of three  variables:
1. The probability that she will break away (could you explain this one please) 
2. The gravity of the resulting injury, if she does;
3. The burden of adequate precautions

A balance must be struck between the cost of precautionary measures and the costs of
accidents. If the costs of a precautionary measure are less than the expected costs of the
accident, this precautionary measure is required, and a breach of duty exist if such a measure
is not taken

A= According to the conditions of tort of negligence (Donoghue v. Stevenson) liability

under tort of negligence existed when there is a breach of duty of care. Breach of duty to
care, according to the Learned Hand formula, exists if precautionary measure is not taken.
The precautionary measures were however taken as we can see, the speed ring warned the
non-paying visitors about the risk explicitly by putting up signs indicating the dangers. Sean
saw these signs and still took no extra measure like putting in earplugs . Therefore he
accepted the risk of permanent loss of hearing.

Formula 1 circuits are built in a way that they are encircled by various areas offering space
for spectators. These are generally hills or cliffs that provide a closer viewing experience
than the Grandstands. However, these areas are also only accessible via gates, where one has
to show his/her ticket to enter. If the cliff that the exercise mentioned is freely accessible, it
refers to another viewing part of Formula 1 tracks. These are generally areas outside of the
main track, that are outside of the fences covering the official area. These are popular sights
for fans, because they can have a relatively good spot to view the race without having to pay
for it. Sean probably visited a cliff like this. However, these free areas fall out of the
property of the track, and the track can also not be held liable for the damages. 

Furthermore, since 2014, it is not obligatory to wear ear protection devices due to the
engines being significantly less loud. That, and the fact that Sean was not in the official area
of the track can lead to the conclusion that he is responsible for his ear damages. 

On the other hand, the cliff is part of the Ring terrain. Therefore we can say it is owned by
the speed racing ring. Because of the signs we can conclude they know about the risk. If they
know about them, they could have taken more measure to try to control the damage. 

C= Our conclusion is that Sean himself know about the risk and decided not to take any
extra measures and he was not in an official area of the track which makes him responsible
for his loss of hearing. Although the Speed racing ring could have taken more measures than
just signs to try to control the damage as much as possible but they are not responsible for
the compensation of damages. 

 TUTORIAL CONCLUSION

You should use the learned hand formula (on rules in the IRAC method)

 “If the probability is P; The injury L; and the burden B;

Liability depends upon whether B is less likely than L multiplied P
i.e. whether B is less than PL.”

Here you use numbers and with this you give a final number ($) of how to repair the damage

This is an act of omission – they should have used a fence because there was only a warning
sign not a strict prohibition so they omitted their responsibility for caring their clients – they
know it’s a common things for people to stand there and they didn’t take enough
processionary percussions

Contributor in negligence – he contributed to his own damage because he ignored the sign

Task 13 – Damage
Gérard, a talented professional football player, carefully drives his Porsche Carrera through a
residential area. When he arrives at a red traffic light, he stops. Quite unexpectedly the car
behind Gérard does not brake and runs into Gérard’s Porsche.
The damage is considerable:
1. The physical damage to the Porsche amounts to €4000.
2. Gérard suffered a whiplash. The immediate medical costs are €1000, but for the
rest of his life Gérard cannot work as a professional football player anymore. He
 has to accept a job as a night porter. The monetary damage is estimated to be
€1,500,000.
3. Because Gérard earns less, he cannot maintain his 18-year young girlfriend
Amélie anymore. Amélie used to receive €2000 each month from Gérard.
The driver of the car that bumped into Gérard’s Porsche, was Andrea Gandolfino, the
grandson of Michele Gandolfino, a well-known mafia boss. Michele was the owner of the car
that Andrea drove. The brakes of his Lamborghini did not work properly, because they were
sabotaged by members of a different mafia family. That is impossible to prove, however.
Gérard’s damage is in first instance compensated by his insurance company, but the company
receives all the claims Gérard had on Michele. The insurance company claims that Michele
compensate all the damage that Gérard suffered, being €1,505,000. Michele was not insured
but has lots of money in a bank on the Bahamas.
Amélie moves to an unknown city to stay out of Michele’s reach, but lets her legal
representative demand €240,000 from Michele, which is the amount of money she had
expected to receive from Gérard during the coming 10 years.
In the country in which Gérard, Amélie and Michele live, the Principles of European Tort
Law are used as valid law. Moreover, the country makes the owners of cars liable for all
damage caused by defects of their cars.
I=
Andrea crashed into Gérad’s car, causing damages. The car of andrea is owned by her
grandma (there is a lot of mafia background). Some damage that was caused was physical
and because of this damage Gerard can’t practice his job as a professional football player
anymore. Then there is Gerard’s girlfriend Amelie who has a claim against Andrea.

R=
the Principles of European Tort Law are used as valid law. Moreover, the country makes the
owners of cars liable for all damage caused by defects of their cars.

Article 2:101 of the PETL provides a definition of recoverable damage: damage according to
the PETL consists of material or immaterial harm to a legally protected interest.

What constitutes a protected interest is subsequently indicated in:

Article 2:102 PETL:

1. The scope of protection of an interest depends on its nature; the higher its value, the
precision of its definition and its obviousness, the more extensive its protection.
2. Life, bodily or mental integrity, human dignity and liberty enjoy the most extensive
protection.
3. Extensive protection is granted to property rights, including those in intangible
property.
4. Protection of pure economic interests or contractual relationships may be more
limited in scope. In such cases, due regard must be had especially to the proximity
between the agent and the endangered person, or to the fact that the agent is aware of
the fact that he will cause damage even though his interests are necessarily valued
lower than those of the victim.
 5. The scope of protection may also be affected by the nature of liability, so that an
interest may receive more extensive protection against intentional harm than in other
cases.
6. In determining the scope of protection, the interests of the agent, especially in liberty
of action and in exercising his rights, as well as public interests also have to be taken
into consideration.

A=

According to this rule, there were damages caused that need to be compensated. 
Michele, as the owner of the car he is responsible for the compensation of damages. It
doesn’t matter that Andrea drove it because Michele is still the owner and according to the
rules the responsible one. So he should compensate for Gerard’s and Amelie’s damage. 

The law mentioned above, in section 2 states that “life, bodily or mental integrity” is a
recoverable damage. making this clear that Michele should pay for the physical damage.

In section 4 of this rule it talks about economic interest. Gérard lost his job because of the
physical damage making him economically damaged. Because of this, it can be argued that
the physical/health and the economic aspects are interconnected in this case.

As this was a car accident the car was damaged and focusing on section 3 of the rule
mentioned above, Michelle should pay for the compensation of the damages of the car. 

C= 
As a final conclusion we can state that Michele as the owner of the car needs to compensate
for Gerard’s and Amelie’s damages. Even though he was not aware of the problems with the
brakes of his car it is hard and almost impossible to prove that it was a rival maffia family
who did it.

 TUTORIAL CONCLUSION

Type of liability: strict liability (Because Michelle, the one liable for damages he didn’t do
anything wrong, didn’t temper on the breaks, he wasn’t even driving the car)

(fault liability the one who causes the damage is the one who compensates)

With him paying there is a guarantee that the victim will receive compensation for damages
and because by owning the car you take responsibility of the damages that can happen

The loss of his job can be for compensation since he lost his job because his body was hurt so
this goes with bodily integrity.

Amelie’s economic loss can’t be compensated

THINGS TO DO - if we cate a case like this in the exam:

Start with each cause (damage) and do IRAC for each – so, you analyze rules and then
connect it with thew case facts

- Divide in damages which ones they are and analyze each ones with his conditions

Criminal Law

Task 14 - Death on an oil rig

Ben Fraser cares a great deal about the environment and is a board member of OneLife, an
NGO seeking to protect the environment and to fight pollution. He hears that the city council
of his hometown, Coast City, has just granted a licence for an oil rig to All-Oil Inc.
The oil rig will surely pollute the environment. Despite all of Ben’s and OneLife’s attempts
to stop it, the oil rig gets built. The night before the oil rig is meant to start operating, Ben
and some friends place bombs on it. They don’t want to hurt anyone, their only concern is to
prevent the oil rig from operating. They suspect that at least one security guard may be on
the oil rig and that he or she may get hurt, but they decide to place the bombs regardless. The
bombs go off, destroying the oil rig and injuring the security guard so severely that he dies
of his injuries.
Did Ben and his friends intentionally kill the security guard? Give a brief argument why
(not). You may assume that the case is tried in a civil law jurisdiction.
Your answer should be no longer than 400 words.

B: This is an exam question from 2018/19, in slightly adapted form. More than one answer is
defendable, and it is more important to argue the answer in a correct manner than to give the
‘correct’ answer. Therefore: write down your answer as if it were an exam question. The text
on solving cases and justifying their solutions can help you here.
One or some of you will be asked to present and explain their arguments, showing them also
on screen.
 
I= Did Ben and his friends intentionally kill the security guard?
R= 
Criminal liability line up in the following way:
1. Fulfillment of offense definition (actus reus and mens rea),
2. Wrongdoing,
3. Blameworthiness
 
Conditional intent or Dolus Eventualis - conscious acceptance of a possible risk; consist of:
1. cognitive element of awareness of a risk
2. a volitional element of accepting the possibility that this risk would materialize
 
A=
Even though Ben had no intentions of deliberately harming the security guards on the rig, he
was aware that there could be a chance of that happening and yet they still proceeded to place
the bomb and as a result the security guard was severely injured and he died from his injury. 
The rules under civil law jurisdiction recognize such acts as intentional under the form of
conditional intent or dolus eventualis. 
This is because:
1. Ben and his friends are well aware of the risk that the security guard may be injured
from the bomb
2. Ben and his friends accept the possibility that such risk would materialize.

Ben and his friends also acted unlawful and showed wrongdoing because placing a bomb in
this case is illegal and especially because it ended with the dead of the security guard. 
 
Ben and his friends are also blameworthy because they decided to place the bomb with full
reason and they were aware of the fact that there could be a security guard who they could
injure. It was their own decision to continue, no one forced them or made them. 
 
C=If we follow the tripartite structure we noticed all the conditions were fulfilled. Ben and
his friends act is a fulfillment of offense definition, the show wrongdoing behavior and their
act is illegal and blameworthiness. As said multiple times, Ben and his friends were aware of
the fact that there was a security guard inside and they still placed the bomb 

TUTORIAL CONCLUSION:

Conditional intent – you think there may be a risk of the consequences may happen (e.g. no
querían matar al policía y no estaban seguros si iba a pasar pero aceptan el hecho de que si
esta ahí se va a morir aunque no es lo que quieres que pase)

Indirect intent – they are sure that there will be consequences and they accept that it could
happen but it is not exactly the intention of the action (e.g. no querían matar al policía pero
sabían que iba a estar ahí y que iban a ahber consecuencias)

direct intent – you know what is going to happen and you want it to happen

in common law there is only unconscious intent

(es como culposo y doloso – culposo cuando no hay intencion y doloso cuando si la hay 
pero no hay indirect intent cuando no estas aware de que podría suceder pero no es lo que
quieres que suceda)

In this task it is conditional intent – they realize that there can be consequences and they
accept them

Task 15 - Justifications and Excuses

After an evening of choir practice, Karen walks home through the park. Suddenly, a man
jumps in front of Karen and hits her, momentarily stunning her. When she comes to, her
attacker is trying to undress her, obviously having nothing good in mind. Karen feels around
and comes across a large stone, which she uses to whack her assailant over the head. The
result is an unconscious attacker with a severe concussion, who will have residual headaches
for the rest of his life. Karen is brought to trial and charged with assault.

A. Same story as under A, with one important difference: Karen panics and continues
hitting the attacker, even after he falls unconscious. As a result, the attacker dies.
Karen is charged with unintentional manslaughter.
I-A= Karen is almost being raped, she defends herself with a stone which leads to an
unconscious attacker with a severe concussion, who will have residual headaches for the rest
of his life. Is Karen guilty for her assault? 

I-B= Karen is almost being raped, she defends herself with a stone which leads to an
unconscious attacker, Karen contines hitting and the attacker dies. Is Karen guilty for her
unintentional manslaughter?

R-A+B=  
Self-Defense
= necessary defence
Requirements: 
1.     An imminent and unlawful act 
The defendant cannot wait any longer for the official authorities to protect his interests and
the self-defence must be a fight of right (defendant) against wrong because it must pertain to
a legitimate interest. 
 Self-defense may only be performed at its earliest when danger is already close (no
preemptive strike)
 Self-defense may only be performed only as long as the attack continues; otherwise it
would be retaliation 
2.     Necessity
The act must be a capable and necessary act. The should be no reasonable alternatives to the
use of force
3.     Proportionality
The offense by the defendant should be in proportion to the amount of harm likely to be
suffered by the defendant
The defendant should have used the least intrusive means which are still effective (the
circumstances are taken into account)
The act must not be exactly in proportion with the attack but should not be disproportionate.
The defendant cannot be expected to make a perfect weighing in this situation. 

A-A Karen is almost being raped which is without a doubt an imminent and unlawful act.
The attacker is already trying to undress her which means the danger is already very close.
She stopped when the attacker was unconscious. Her actions were necessary and capable, she
defended herself with the only thing she found around her. Her action was in proportion with
what would happen if she did nothing because this would have ended up in her being
raped.This is therefore a case of self-defense.
A-B= 
Different with Case A, Karen panics and continues hitting the attacker, even after he falls
unconscious.
 
1. Is it an imminent or unlawful act?
 In this case Karen was not able to wait, she was getting attacked in the moment she
acted against the men. 
 It was done in the moment it started and not before 
 Karen’s attack continued after there was no longer any danger since he was already
unconscious. 
 
2. Is the act necessary?
 In this case, at first it started as a necessary act since she was getting attacked, but
then, we know that the attacker had already been unconscious, yet Karen still
continues to hit him until he dies, which makes her action no longer necessary. 

3. Is the act proportional?

 No, since she already disabled the threat posed by the attacker but kept causing
physical harm which ended in homicide

C-A=In this case Karen her act was self defense. She acted neccesary for the moment to
protect her bodily integrity because this man was trying to rape her. She stopped when the
attacker was unconscious and therefore she is not guilty.

C-B= Thus, the act committed by Karen in Case B can no longer be considered as an act of
self-defense because it fails to fulfill the requirement of Imminent, necessity and
proportionality. 

TUTORIAL CONCLUSION:

To convict someone for a crime two things needed: ACTUS REUS (the act itself - offence)
and MENS REA (state of mind of the person)

Let’s see the case:

 Offence  She hit someone in the head with a rock

 The wrongfulness of the act  she does self defense

In the first case it was proportional but in the second case it isn’t.

Act can it be justified?

 Yes, in the first case (it is self defense) - there was a crime committed but because it
was not wrongful it can be justified
 In the second case it can’t be justified
Insanity is an excuse  Karen is not suffering from a mental disorder but because she was in
a panic state of mind

Check page 142

Task 16 - Between sword & shield

After several anonymous tips about a strong smell coming from a certain house in the
Brusselsestraat in Maastricht, the police decide to act on their suspicion and ask for a warrant
to raid the house. Once the police enter the house, they find the startled owner John. John is
notified of his right to remain silent and his right to a lawyer. In the attic, the police find a
large cannabis plantation. John is arrested and taken to the police station, where he receives a
folder with information about his arrest and his rights while in custody. Prior to the first
interrogation, John is able to consult with his lawyer, who is also present during the following
interrogations. After two days in police custody, an investigative judge orders John to be
taken to a detention centre to be put in pre-trial detention. After 14 days, the investigations in
the Brusselsestraat are still not finished and so it happens that a panel of three judges from the
District Court decides that John has to stay in pre-trial detention. Two months later (John was
already starting to get the feeling he might die of boredom), his trial starts where the same
panel of three judges has to rule on John’s criminal liability. Both John and his lawyer are
present, as well as a much-needed interpreter to translate for John, whose comprehension of
Dutch is not good enough to have a full understanding of what is said.
Criminal law has both a crime control function (the sword) and a safeguard function (the
shield). In what ways are these functions reflected in the case?
Crime Control = 
 Arrested for illegal activity
 Put into detention (until the trial could be held)

Safeguard Function = 
 He was put in custody at first
 He could call a lawyer
 Lawyer could be present at the interrogation
 The police asked for a warrant to raid the house (and therefore respect his privacy
until other orders are given) 
 The case was done in proper judiciary procedure
 He was offered a translator
 He receives a folder with information about his arrest and his rights while in custody

TUTORIAL CONCLUSION:

Shield function - protecting the human rights and making sure that ppl are treated as innocent
until proven guilty (rights you have and can or cannot take):

- Asking for a warrant and helping the police. Having lawyer present, interpreter at court

Sword function – preventing and faithing crime (you have to do it):

- Police custody, judge deciding to move from detention center, checking the house with a
warrant

Proportionality is very important

Constitutional Law

Task 17 - The desirability of democracy

Plato (Athens, about 400 BC) argued that democracy is an inferior form of government. His
argument was based on the assumption that good leaders need to be knowledgeable about the
needs of society and about the actions that should be undertaken to make society prosperous.
Receiving the majority of votes in an election is not the best way to select or create good
leaders. As a matter of fact, elections select leaders on popularity, rather than on expertise.
This makes politics short-sighted, because leaders that execute long-term policies with
unpopular short-term effects will be voted away.
There is much to be said about the view of Plato, both in a positive and in a negative sense.
Questions that may be raised are:
 Is it possible to have expertise on what is good for society? Is it not all a matter of
subjective tastes and preferences and are elections not the best way to pool these
tastes and preferences?
 Is there not a risk that the will of the majority is manipulated by propaganda on social
media? But then, how bad is it if that happens? What is the problem with manipulated
tastes and preferences if it is indeed a matter of subjective tastes and preferences?
 Even if expertise on government is possible, is it possible to select good leaders and to
guarantee that they will not become corrupt?
 Can democracy guarantee human rights? In this connection, who determines which
human rights deserve protection against the will of the majority? Or should the will of
the majority prevail over human rights?
 
These are abstract questions, but they are no less relevant today than they were in Plato’s
time. Think, for example, of recent developments in Poland, Turkey or the United States of
America.
 
In class, you may be asked to defend the view that democracy is desirable, or that it is not. 

Discussing the questions 

We talked about if it was possible to have expertise on what is good for society and agreed
that this is such a broad thing that there will always be someone not happy, not considered or
against the way it is chosen to act towards society. Still, we think that election (as a form of
democracy) is the best way to show the majority interest of the society because they voted
themself for the people that represent them. Therefore we can assume that most of the people
will support the leading party and will be happy with them. Democracy upholds all of human
rights , therefore giving voice to the people through freedom of speech . It is however
virtually impossible to satisfy everyone’s individual wishes, which is why the system of
election based on majority is the most accurate and desirable to give the people what they
want . 

We discussed the manipulation by propaganda aspect and we agreed that propaganda on

social media is a risk nowadays. On the other hand with social media and the internet in
general it is easier to find information from different perspectives. 
We also think that it differs a lot on the culture and education the country has, for example in
a country where there isn’t a lot of education it is a risk that people do not know the
consequences of their choices. Hereby it can be easier for the government to manipulate the
population and get to the results they want to have, looking at their own interests and not
society’s. An example of this is Mexico, here people are manipulated when they get sent food
packages in exchange on the promise that they will vote for that party and the people do it
because their need for that week’s food is bigger than the thought of what voting for that
person will do (because they have no political knowledge). Another example is in WW2
when people were manipulated, the difference then and now is all the information available
on social media and internet in general and all the freedom of speech nowadays. 

We agreed that there will never be a leader that you are 100% happy with and there will
always be things you disagree with. We also agreed that there is never a guarantee that the
government you chose won't become corrupt and it will be what society actually needs since,
you can choose a leader you want because of all the promises they made before the election
but you can never be sure that they will actually become true. Becoming corrupt or just
merely not fulfilling promises does not necessarily go down to the president/prime minister,
the party consists of many individuals who can become problematic on the way. 

Technically, the democratically elected government should be able to protect the citizens’
interests, especially when it comes to human rights. However, there is no guarantee that such
roles will be fulfilled. Most of the time, it is the role of certain intergovernmental
organizations, such as the United Nation to make sure these interests are protected. 

We formulated arguments pro and con democracy: 

Pro
Power for the citizens 
Democracy can offer adjustments in government without antagonism because in a democratic
government the citizens can vote and that way they can move the power from one party to
another. 
 
Avoidance of Monopoly
The government is always restricted to an election term where they have to  compete against
other parties that want the power. This means a fair change for every party and it avoids
monopoly of the controlling party. The controlling party can only keep its power when the
citizens re-elect them.  
There is a balance in power : legislative , executive and judiciary : enables the functioning of
society in an orderly and equal manner , preventing one person and/or party from having total
control. 
Voice of the majority represented 
Elections if managed well and without being corrupt can be a way to show society’s interest
and what the majority of the population want. With this people get to the result of what the
majority thinks is good for them and get the leader they voted for. Democracy is a constant
changing system depending on the voters will and the world problems. 

Con

Choices are made by people who have no political knowledge

In democratic countries, it is the person who has the ultimate right to vote and thereby
their representatives. Every citizen can vote, also people who aren’t aware of the
political circumstances in their country. The voters don’t necessarily need to know
anything about the political issues in their country. This can lead to a wrong decision of
voting to the wrong party by the citizens.

Bureaucracy
In democratic political systems, leaders have to go through several steps and fulfill many
criteria to bring about a certain political change/adjustment. A non-democratic system can
help circumnavigating the bureaucratic steps and getting straight to the root of the issue
faster. In some cases acting swiftly can save catastrophical outcomes. 
 
Flexibility of the election system
Taking for example the United States of America at the moment, there is this debate on how
hard they make the elections and how for some people it's hard to vote since there are really
specific times, days and places to do it. This concludes in a big part of the population not
actually voting because simple things like having to work that day, not wanting to stay in a
line all day or not being able to attend at the time needed. This is a kind of manipulation by
the government since like this - having a big part of the population not voting - it is easier to
get to the results they want to have. 

Task 18 - Constitution-building
The Dutch region Limburg decides to become an independent state and begins negotiating for
independence. Ultimately, the government of the Netherlands agrees and Limburg becomes
the Republic of Limburgia.
A number of law professors (many from Maastricht University), practicing lawyers and
interested citizens come together in the Limburgia Constitutional Convention (LCC) to put in
writing the constitutional law of the Republic of Limburgia. You are part of a team tasked
with advising the LCC on the following topics:
 
1. How to ensure the independence of the judiciary;
2. Which features of direct democracy to implement how, if any at all;
3. Which election system to choose;
4. How to ensure that citizens’ (especially minorities’) rights are protected.
 
For each of these topics, the LCC asks you to propose one solution only, and to explain why
you consider it the best possible solution.
 
1: 
For the first problem we think the solution is to make sure that the trias politica is enforced.
By keeping the powers separate you will have the biggest change that the judiciary is
independence and not influenced by the church or the State 

2:
Direct democracy 

 State powers are exercised by the people themselves → constitutions are made by
themselves for the people
 State puts emphasis on the freedom of citizens and basic human rights

Right now The Netherlands have representative democracy and it has been good for limburg
so when they make themselves an independent republic we think that they could keep this
way of democracy and to be consistent with the neighbouring countries. Although from direct
democracy they could add the emphasis on freedom of citizens and basic human rights. 

3:
We assumed that we have the freedom to make our own kind of system based on the systems
giving in the book. If not we would prefer the Majority System. But as said we would prefer
to make our own system. We will explain the system we created. We would use the Franchise
system mixed with plurality or majority systems (we don’t really understand the difference
between this 2).

From the Majority / plurality system we would take the fact that the leader with most votes is
elected and from the Franchise system we would only take the right of voting from minor
(since they do not have enough knowledge to choose) and we would also take the exclusion
of foreigners since they are not part of the country and their society so they shouldn’t have
the right to vote. 

4: 
Judicial review must be included in the constitution, this is to make sure that if in future cases
there is a law that is contradictory with the citizen’s rights, the citizen may file a claim to the
court to conduct judicial review so that the law can be nulled.

TUTORIAL

Frenchise system  who has the right to vote

Majority  the winner takes all, usually ends as a rase between two parties  votes in
chunks – division in the country  the minority gets lost

Plurality  every individual is counted  votes in a big pile counted instead of chunks  all
the votes count – no party is lost

Administrative Law
Task 19 – Judicial review of legislation: the Hirst-
case
Decisions of the ECtHR can bind the national states that are parties to the Convention. Since
such decisions may imply that national legislation should be set aside or changed, they are a
clear example of how courts check the functioning of the legislative power. Desirable as such
a check may be, it is also a case of a non-democratic body (the judiciary) overruling a
democratic body (the legislature). Therefore, decisions in which a court declares legislation to
be in violation of a human right can be very controversial and seen as ‘meddling’ in the
affairs of the democratically elected legislator.
 
That certainly holds for the Hirst-case, a selection of which is reproduced in the eReader to
give you an impression of how judicial review of legislation works. Read the case, and
answer the following questions:
Questions

1. What are the facts of the case? 

 This is a case between Hirst as the Applicant and the United Kingdom as the
Defendant. 
 The applicant was born in 1950
 On 11 February 1980 the applicant pleaded guilty to manslaughter on the
ground of diminished responsibility
 The guilty plea was accepted on the basis of medical evidence that he was a
man with a severe personality disorder to such a degree that he was amoral
 He was sentenced to a term of discretionary life imprisonment
 The applicant’s tariff expired on 25 June 1994. 
 The applicant, who is barred by section 3 of the Representation of the People
Act 1983 from voting in parliamentary or local elections, issued proceedings
in the High Court under section 4 of the Human Rights Act 1998, seeking a
declaration that this provision was incompatible with the European
Convention on Human Rights

2. What does Hirst want?

 ‘’The applicant complained that he had been disenfranchised’’.  So we can
conclude from this sentence that Hirst want his right to voting back 

3. What is the relevant law?

 National English law
o “The High Contracting Parties undertake to hold free elections at
reasonable intervals by secret ballot, under conditions which will
ensure the free expression of the opinion of the people in the choice of
the legislature.’’ (Article 3 of Protocol No. 1)
 International law
o “Every citizen shall have the right and the opportunity, without any of
the distinctions mentioned in Article 2 (race, colour, sex, language,
religion, political, or other opinion, national or social origin, property,
birth or other status) and without unreasonable restrictions: to vote
 (Artocle 25 (b) of the International Covenant on Civil and Political
Rights) 

4. In section 73 the Court implicitly formulates two conditions that had to be

satisfied if the English legislative measure were to be compatible with the
Convention. What are these two conditions?
 Legitimate aim
 Proportionality

5. Had the conditions been met in the Hirst-case? Why (not)?

 Legitimate aim = The Court accepts that section 3 may be regarded as
pursuing the aims identified by the Government which was to confer an
additional punishment. 
 Proportionality = The court found that the measure lacked proportionality as it
was an automatic blanket ban imposed on all convicted prisoners, which was
arbitrary in its effects and could no longer be said to serve the aim of
punishing the applicant once his tariff had expired 

6. What was the outcome of the case?

 The Court concludes that there has been a violation of Article 3 of Protocol
No. 1.
 The court Dismisses unanimously the remainder of the applicant’s claim for
just satisfaction.

7. Has the United Kingdom accepted the decision of the ECtHR? Why (not)?
What role does democracy play in this context?

The UK has accepted the decision made by the ECtHR. However, the Parliament had
rejected these proposals and declared that the rule of not granting inmates the right to
vote will stay in place. 

Democracy :
The proposal went through parliamentary discussions → democratic process
Even though the Court ruled in favour of Hirst, the parliament was reluctant to change
the law → failure of checks and balances  

TUTORIAL:

 You start with looking at what are the relevant facts of the case  What has to be
checked
The parliament is a sovran legislation in the UK

Task 20 - The hypermarket

Park Town, a city in Dreamland, has a problem, or is it just good luck? The firm BigSales
wants to build a hypermarket on the border of the industrial area of the town. This
hypermarket will provide employment to lots of people, which is very welcome in Park Town
because the town suffers from high unemployment rates. Moreover, many inhabitants of Park
Town would really like to have such a hypermarket in their town. The problem, however, is
that the area in which BigSales wants to build its hypermarket is designated as an industrial
zone, and shops are in principle not allowed in that area. Moreover, the local shop keepers in
Park Town fear that they will be driven out of business if many of their previous customers
shift their loyalty from the city centre shops to the hypermarket on the edge of town.

Mayor and Aldermen of Park Town receive an application from BigSales for a permit to
build the hypermarket, and this permit would include an exception to the rules of the
environmental plans for Park Town.
Mayor and Aldermen are competent to grant such a permit and to make the exception.
However, they refuse to grant the permit because ‘… it would not be opportune to have an
additional supermarket in the municipality’. Rumour has it that this decision was inspired by
the commercial interests of the Mayor, who has still a financial interest in the family
business which owns several shops in the city centre.
BigSales wants to legally contest this decision by Mayor and Aldermen (M&A).  
 
a. Separation of powers
M&A of Park Town advise BigSales not to start a procedure, since decisions about
building permits are typically political by nature and courts of law should, because of
the Trias Politica, not meddle with political decisions.
Are M&A right about the division of powers? Justify your answer by means of a clear
argument.
The Trias Politica is the separation from the 3 main powers (a legislature, an executive, and a
judiciary). Building permits are a political decision indeed but the court can still meddle with
them as long as the judges are completely independent and have no political interest themself
by the case. The judiciary is therefore able to control the politics. 
 
Under the doctrine of trias politica or the separation of power to Legislative, Executive
(administrative) and judiciary, Courts as the holder of the judiciary power should indeed not
interfere with the decision made by the other branches including the administrative branch.
This, however, is not absolutely true, because some states have applied the checks and
balances system to ensure that abuse of power of a branch does not exist. Thus, with this
system a court can implement its ‘check’ function to check whether the administrative branch
has acted lawfully, this is known as ‘judicial review’
 
b. Standing
Both the Association of Inner City Shop Keepers and the Workers Union want to be
heard in the procedure. The former wants the decision by M&A to be upheld; the latter
wants to get rid of it. BigSales claims that the Inner City Shop Keepers should not be
allowed into the procedure, while M&A claim that the Workers Union has nothing to do
with this issue and should therefore play no role in the procedure.
Who should be allowed to participate in the procedure of the case? How does the
recours subjectif/objectif distinction explain different rules for standing in
administrative procedures?
 
Recours subjectif – only grant standing to an individual where he or she can successfully
demonstrate that the contested administrative action affects his or her rights
 
As stated, according to the recours subjectif only an individual whose rights are affected can
have legal standing before the court. 
Under this concept, the Inner City Shop does not have the standing because the reason behind
their objection is because they fear that they will be driven out of business. This cannot be
classified as violation of their rights because BigSales shall enjoy a Free Market Economy.
 
On the other hand, the Workers Union shall be granted the legal standing as has been stated
in the fact, Park Town suffers from high unemployment rates, and the existence of BigSales
could provide employment to lots of people who are members of the Workers Union.
 
Even though we are not sure if the people are members of the Workers Union they still
represent the interests of the general workers in the industry
 
 
 
Recours Objectif – Quite liberal standing rules; if the aim of the system of administrative
justice is to check the objective legality of the administrative action, it is in the interest of the
legal system itself that a rather loose link between the applicant and the contested
administrative action suffices for the applicant to have access to a court
Because of the existence of this loose link, it can be argued that there does not need to be a
rigid distinction regarding who can participate in the case. In general, all the parties that are
concerned are allowed to take part in the hearing. 
Thus, we can say that in this case, both Workers Union and Inner City Shops have the legal
standing. 
 
c. Grounds for annulment
BigSales’ lawyer drafts a list of complaints against the decision by M&A which would
be suitable to undo their decision. She considers complaining that M&A did not
properly balance the interests of the citizens who want the hypermarket and those of
the existing shopkeepers who do not want it.
1. On which grounds can an independent judge annul an administrative
decision, given that the judge cannot take policy decisions?
-   Annulment is only an option if the unlawful behavior of the executive consisted of a
juridical act, because factual acts cannot be annulled. Annulment is a form of remedy
that is appropriate for:
o   Unlawful restriction of his or her legal sphere by the executive.
o   To deny a particular request: such as the denial to grant a license to open a
restaurant)
 In this case, an independent judge can annul the administrative decision of denying
granting a license to build the BigSales Hypermarket.
 
2. What kind of legal rules determine the limits of what administrative bodies are
legally competent and permitted to do?
 Legislation should set limits to the powers conferred upon the administrations. The
administration is not allowed to use its competences for a different purpose than that
 for which they have been conferred. This is called the Prohibition of Détournement de
pourvoir. 
 The principle of legality imposes limits on the competences of the administrative
body. 
 
3. Which legal remedies are available to an independent court that is asked to
review administrative decisions?
 There are two types of remedies that can be granted by the administrative court
o Annulment
 Deprive the contested measure of its effects 
 Performance
 Force an administrative body to issue a certain measure or to perform a
certain activity and also to perform on its contractual obligations
TUTORIAL:

The law limits the competence the executive power has

The judge has enoulment
Performance  a judge can order the administrative body to perform

The Law of Europe

Task 21 - Institutions & Democracy

The European Union (EU) has several institutions. Sometimes they are similar to institutions
that can also be found in States, but sometimes they are quite different. The differences can
often be explained by the tension that sometimes exist between the EU as a whole and the
Member States that are part of it.
Which institutions does the EU have and how are they similar to, or different from, national
institutions?

- The commission 
Takes a major role in the legislation process since it proposes ideas and it promotes general
interests of the EU. It is similar to a government but different in the fact that is not elected by
the public nor the parliament.  27 members (UK left; it was 28). There is one commission
by country, but they promote general interests of the EU not of their own countries. There are
specific fields
-The European Parliament
The European Parliament, which members are elected by voters in the EU member states(you
can only vote for someone in your own country), has three main functions: it is involved in
the legislative process; it must approve the annual EU budgets; and it supervises the
commission. 
It can be compared to national parliaments but the EP doesn’t have the full competence and
power that they have.  
-The council of the European Union
This council’s main responsibility is to take policy and legislative decisions. It is slightly
similar, in terms of power, to the “Bundesrat” of Germany but it is still different. Different in
which way we are not exactly sure.
-The European Council
Members represent their national states in negotiations and decision-making. Meets at least
twice every six months at the Euro summit. Plays a role in the legislative procedure.There is
nothing similar at a national level  usually meet in brussels –
-The Court of Justice of the European Union
It is the chief judicial authority and is able to overrule national courts but at the same time it
is also dependent on national courts. It has two main tasks: one is to interpret the TFEU and
the TEU since it gives preliminary rulings to national courts and the second is to check the
legality of legislative acts. – you can ask for your national court to apply eu law – is in a
judiciary power (trias politica)
-The European Central Bank 
It has the main responsibility for the monetary policy in the EU. Therefore the primary task
of the ECB is to maintain price stability. It is different from a normal central bank as it has to
delegate the implementation of decisions towards the national central banks. 

It is sometimes said that the European Union is not sufficiently democratic and does not
represent the people in the same way a nation state does. What do you think of this?
This is partially true, because as Europe is much bigger than the individual Member States,
its issues often receive less publicity than national affairs which make the distance between
politics and the citizens is perceived more acutely. And sometimes governments want to limit
the influence of citizens on European Politics because they fear that the citizens may make
wrong decisions for their lack of knowledge and understanding. 
On the other hand it is not true since all legislations have to be approved by the council of the
European Union and the European parliament and the commission is also assigned by the
head of governments. 
It can be seen as democratic because european citizens have the  opportunity to vote for the
members of the european parliament and choose the members of the european council.   

Task 22 - Contaminated cheese

1. NB. The following case is purely fictitious.
After an incident with contaminated cheese that made a lot of people seriously ill, voices
could be heard that ‘the EU should do something about this’. However, the EU ‘doing
something’ about a perceived problem is not a piece of cake. Several conditions must be
fulfilled, both substantive and procedural.

a. Competence
Although most people agree that something should be done about unhealthy food such
as contaminated cheese, not everybody agrees that it is the EU that should be
responsible for guaranteeing food safety. Is that not something that is better left to the
Member States? In particular France, Italy and the Netherlands, which have important
cheese-making industries, want to keep the reins in this area. They claim that the EU
lacks the competence to regulate the production of cheese and that even if the
competence exists, its exercise would not be in line with subsidiarity and
proportionality.
answer: 
France is bound by EU regulations due to it being a member-state, its national power is
inferior to that of the EU due to Lex Superior. Lex Posterior does therefore not apply in this
case. 
According to the subsidiarity principle, the European Union should only use its power where
it can perform a task better than the member States could do themselves; for instance, the EU
is more competent at creating health regulations as the free market necessitates a common
regulation. Furthermore, this corresponds to the proportionality principle as the measures
taken result in a safer, more ergonomic outcome.
b.  Procedure
In order to protect the health of consumers (art. 169 TFEU), the EU prepares
legislative measures to guarantee the safe production of cheese. Which steps should be
taken to create these measures and which organs are involved in this procedure?
answer:
First the Commission submits a proposal to the European Parliament and the council. The
European Parliament adopts its position and communicates it to the council. If the council 
approves the European Parliament’s position, the act concerned iis adopted in the wording
that corresponds to the position of the European Parliament. So the organs which are
involved are  The commision, The European Parliament and The council of the European
Union.
c. QMV
Is it possible for France, if it has serious objections against the measure, to block the
legislative procedure, and if yes, how? (You may assume that Qualified Majority
Voting (QMV) applies in the Council of the European Union in the ordinary legislative
procedure.)
France is not very pleased by the outcome of the legislative procedure, which leads one
politician to tell the press that ‘Europe’s QMV is terrible for our country’. 
Answer:
The ordinary legislative procedure makes it possible to overrule individual Member States in
the procedure with QMV.
According to Article 16, Section 4 of the TEU, a qualified majority shall be defined as at
least 55% of the members of the council, comprising at least 15 of them, and representing
Member States comprising at least 65% of the population of the Union. A blocking minority
must include at least four council members, falling which the qualified majority shall be
deemed attained. 
Thus, France can block the legislative procedure but only if it has the blocking minority
which must include at least four council members.  
d.  Van Gend & Loos
The steps taken by France to block the EU legislation on the production of cheese are
of no avail. The EU adopts a regulation that deviates from the rules that exist in
France. Nevertheless, France does not adapt its national rules. As a matter of fact,
France even makes new rules which are in conflict with the EU regulation. 
When the French state is sued before a French court by a consumer organisation,
claiming that France must adapt its national rules, France claims that it never intended
to be bound by EU rules about the production of cheese. Moreover, the new French
rules were created later than the EU regulation and would, as leges posteriores,
supersede it. 
The consumer organisation claims that this is not correct in the light of the Van Gend
& Loos and the Costa/ENEL judgments
Answer: 
France needs to apply EU legislation since regulations need to be implemented and the
argument with lex posterior is invalid, since in this case lex superior is given. European Law
has precedence over national law (that was given in the Costa/ENEL decision) and therefore
it must be respected by the Member States. 
Moreover, even though French Law does not recognize the EU legislation on the production
of cheese, the consumer organization can still be protected under such legislation
independently. This is according to the Van Gend & Loos case which decided that EU law
can give national rights (and impose duties upon them), independently of national
legislations.
TUTORIAL:

Eu should only take the measure if it can take the problem and do manage it more efficiently
than the member state
The EU cannot regulate whatever they want, only the things inside the EU treaty are the ones
that allows them to do it.

There are steps they need to follow:

They have to check first the treaty of the EU – see if the EU has a legal basis that gives them
the competence to come up with legislation (aka with the answer of the problem)
 yes there is a legal basis

So now we have to check if the EU is the best organization to do it or if it would be better to

leave it for the national state since they have more expertise

If the EU is the one who can make it better then, they have to do proportionality

Then they do the legislation

If the council refuses the proposal is sent back to the commission and parliament and again it
goes to the council and they have to vote again – they start with unanimity but they can
change to qualified majority

There is a website where we can see what would happen if X country agrees and X disagrees
etc. (she’ll post it on announcements)  there is differences in powers since there are smaller
countries with smaller votes and it is unfair if a country can decide more than another (ex.
with veto)
Small countries  find allies to reach what they want
If it takes too long they can change to the QMV procedure where the vote is anonymous

France can’t decide for themselves if they abide by EU rules since treaty of Lisbon says that
the EU can overrule national states – the court of justice decided that EU law is directly
applicable and it always comes first. The national states by joining the EU are giving away
some part of their solemnity and giving it to the EU

Tax Law

Task 23 - Taxes and Justice

John has a gross yearly income of €8,000, Joan has one of €30,000 and James of €80,000. In
the country they live in, there is a basic allowance of €4,000. Above that, income is taxed at a
flat tax rate of 25%. The following graphic visualises this.
1. Situate John, Joan and James on the graphic. How much do they each have to pay in
taxes?
2. What would this graphic look like if instead of the flat tax rate, there was a
progressive schedule of rates, with taxable income up to €25,000 taxed at 20%, the
next €50,000 taxed at 30% and all income above that at 40%? If you are able to do so,
make a graph in a spreadsheet which illustrates the effects of ‘progressive taxation’
for John, Joan and James or draw one on a piece of paper. Bring your graph to class.
How much do they each have to pay in taxes?
3. How do tax systems take care of people like John, who have hardly enough income to
survive even before taxes? Distinguish between different tools that can be used in this
connection.
4. Explain why these tools do (or do not) lead to just results. Also explain why you think
that the results are (un)just. What do you mean by ‘justice’?
 
Answers: 
Taxable income x Tax Rate 
Taxable income = (Gross yearly income - basic allowance) 
1. John → (8000 - 4000) x 0.25= €1000
Joan → (30.000 - 4000) x 0.25= €6500
James → (80.000 - 4000)x0,25= €19.000
 
2. John→  8000x0,20= €1,600
 
Joan→ 25000x0,20= 5,000
5000x0,30=1,500
total= 1500+5000= €6,500
 
James→  25000x0,20= 5,000
50000x0,30= 15,000
5000x0,40=2000
total= 5000+ 15000+2000= €22.000
 
As we can see the lowest and the highest income classes suffer from a
progressive schedule of rates because they both need to pay more whereas the
middle class will stay the same. Of Course this depends on the way the tax
brackets are classified. 
 

 
3. First of all the basic allowance because this means that people with a lower
income don’t need to pay tax over there whole income but just over a part of it
and therefore they will have more money themself 
Tax benefits, because it reduces the amount of your income that is subject to
tax.
 Progressive taxation, as not everybody pays an equal amount of taxes; it
imposes higher taxes on more advantaged persons and no or lower taxes on
less advantaged persons. 
4. Basic allowance. Everyone in a country benefits from this because also people
with a high income have to pay no tax over a certain amount of money. So
seeing this, it is not exactly just a profit for the people with a low income but
for all people. For people with low income the effect will be more clear
because of the little amount of money they have they have to pay less and
really keep more. 
Tax benefits are a profit for people with a lower income because they will
have more deductions what result in the fact that they have to pay less and will
have more money to spend
 
When it comes to progressive taxing, one can say that it is a more just system,
since people are taxed proportionally, hence individuals with a higher income
still have to pay a reasonable amount of taxes.

TUTORIAL:
Tax credits: the calculation first and then di-duct money; it lowers the tax liability
Di-duct the basis allowance 4,000 – 2
James owes 20,000  di-duct the basic allowance
VIDEO ON EXPLANATION

Task 24 - Return to Limburgia

After you have successfully written a constitution, you are drafting a new tax code for the
Republic of Limburgia and are currently contemplating about a system of income taxation for
your residents. Driven by the desire to achieve just and equal taxation, you consider the
following three options: 
1. every resident is taxed €300 of their income, no matter how high it is;
2. every resident is taxed 10% of their income;
3. every resident is taxed progressively as described in scenario 2 of the previous task. 
 
Which option would you choose and why?
1. This option is not ideal, since for multiple citizens, their own income would only
reach that, or just be slightly higher than that number, meaning that they would have
to tax almost all of their money. Moreover, this system will lead to unequal
distribution of wealth and may cause social and economic instability. This is because
with this system the rich will get richer and the poor will get poorer. 
2. This system is more ideal compared to the last one, since it introduces a general rate
at which people can get taxed. however this system is only appropriate until there are
people with significantly higher income, for whom this fixed number (10%), would be
too low. In this case, the progressive taxation can be a better option.
 3. This system is the most suitable for the problem, since it allows the state to tax the
citizens proportionally, based on their income, hence creating a more just system. 
 

Task 25 - Efficient taxation

Elise owns a house that she wants to sell for €250,000. Marilène wants to buy the house and
she is not prepared to spend more than €270,000. Assume that there is a tax of 10% on the
sale of houses.
 
Explain why taxes make it so that Elise cannot sell the house to Marilène.
Who benefits from these taxes, in this case and in general?
 
1. Total price after tax = €250,000 + (€250,000 + 10%) = €275,000
The total price of the house is €275,000 which is slightly above Marliene’s budget
seeing the fact she is not prepared to spend more than  €270,000.
1. In general, tax aimed to add the state revenue to finance government expenditure.
Thus, we can say that the government will benefit from the tax. Also in this case the
tax will go to the government. All taxes go to the government no matter what tax it is.

TUTORIAL:

Since the tax is so high nobody is happy, and nobody get anything at the end

Taxes – it has to be efficient; they have to stay in the limits

International Law
Task 26 - United Nations
The fictional nation of Zairomi has recently gained independence from its former colonial
power and has joined the United Nations. Its newly-fledged Permanent Representative of
Zairomi to the United Nations is still finding her footing in the international arena. In
preparation of her first appearance before the United Nations General Assembly, she asks her
aide (i.e. you) to prepare a brief for her on the United Nations with an overview of what it
does, its main bodies and of their tasks.

Answers:

The General Assembly:

- Consist of representatives of the 193 Member States
- Resolutions issued by the General Assembly are nonbinding recommendations
- Adopt treaties  they need to be ratified by the states
- They discuss,debate, and make recommendations on subjects pertaining to
international peace and security
The Security Council:
- It has 15 members, in which 5 of them are permanent members (China, France,
Russia, USA, and UK); the others are elected periodically by the General Assembly
- The purposes of the Security Council:
- Investigate dispute or situation that might lead to international friction
- Recommend methods of adjusting such disputes or the terms of settlement
- Formulate plans for the establishment of a system to regulate armaments
- Determine the existence of a threat to the peace or an act of aggression and
recommend what action should be taken
- Call on members to apply economic sanctions and other measure not
involving the use of force to prevent or stop aggression
- Take military action against an aggressor

The Trusteeship Council (seized to exist in 1994):

- It is designed to supervise the government of trust territories and to lead them to self-
government or independence
- authorized to examine and discuss reports from the Administering Authority on the
political, economic, social and educational advancement of the peoples of Trust
Territories
- consultation with the Administering Authority they can examine petitions from and
undertake periodic and other special missions to Trust Territories.

The Economic and social Council:

- It is responsible for promoting higher standards of living, full employment, and
economic and social progress; identifying solutions to international economic, social
and health problems; facilitating international cultural and educational cooperation;
and encouraging universal respect for human rights and fundamental freedom.

Committees and Specialized Agencies:

- The General Assembly has established several committees as fora for discussion and
to provide reports and studies on a wide variety of topics

The UN Secretariat:
- Administration of the UN and its employees
- Administration of the international affairs of the UN headquarters in New York and
other offices world wide
- The Secretary-General is the leader and chief-administrator (candidates for this
position are nominated by the Security Council and appointed by the General
Assembly)
- The can bring the attention of the Security Council to any matter they believe may
threaten the maintenance of international peace and security
- Symbolic influence

International Court of Justice:

- It settles legal disputes between states in accordance with international law
- ICJ does not have automatic jurisdiction; it can only settle a dispute if the States
concerned have decided to accept the Court’s jurisdiction.
- Some states don’t acknowledge it
 Task 27 – Oceanistan
Jack Swallow is a retired captain at sea. Since he has spent most of his life on a ship and does
not feel like returning to his native England, he decides to found his own state.

Together with his family and some friends he “occupies” an abandoned BP oil rig, which lies
just inside the 12-mile-zone of British territorial waters and is securely build on concrete
pillars, rooted in the seabed. Swallow proclaims the Maritime Republic of Oceanistan, of
which he is immediately elected president for life.

The founders of Oceanistan draw up a constitution, a flag and a coat of arms. There is a
legislative board, a court, and a small police force. They introduce a currency and start to
print stamps. They also print passports and offer them for sale to foreign nationals to generate
some state revenue. After a while, the first “natives” of Oceanistan are born. The inhabitants
of the old rig manage to achieve autarky by fishing, growing some vegetables and distilling
fresh water from the sea; the “population” can sustain itself permanently.
a. The President of Oceanistan approaches the United Nations and applies for
membership. However, there are as of yet only a few (other) states recognizing
Oceanistan, the Pacific states of Fiji, Nauru and Tuvalu.

b. After a few warnings, the English government decides to send a small fleet to
Oceanistan, to make an end to what it considers to be an unlawful organisation. The
President of Oceanistan asks the Security Council of the United Nations to halt this
threatening invasion.
Answer:

a. Membership is granted by the General Assembly upon the recommendation of the

Security Council. There are three criteria of statehood: Defined territory, permanent
population, and government exercising effective power. Recognition by other states is
not a separate requirement of statehood. A state that fails to be recognized by other
States is still a state.
In this case, the Maritime Republic of Oceanistan has fulfilled the two criterias which
are permanent territory and the government exercising power over it. Moreover, it is
located in British naval territory, and the UK being a P5 member, would veto the
proposal immediately, hence making it impossible for Oceanistan to be recognized.
Also, it does not meet the criteria of defined territory as it is located within the British
territorial waters. So therefore we can conclude that Oceanistan can not be a member
of the UN

b. As has been stated, the territory claimed by the Maritime Republic of Oceanistan is
located within the 12-miles of British territorial sea. Furthermore, Oceanistan being a
man-made structure, under the United Nations Convention on the Law of the Sea it
isn't considered an island and so placed under the jurisdiction of the nearest
state.Thus, the English Government has the right to exercise its jurisdiction over the
Maritime Republic of Oceanistan.

Task 28 - Rising Waters

Climate change, leading to rising sea levels, threatens the very existence of a number of states
whose territory will literally disappear if the water rises much further. Realizing that
individual action is unlikely to impress the big states whose emissions are believed to be
responsible for climate change, the states of Bangladesh, Fiji, Nauru, Tuvalu and the
Solomon Islands join forces in a new intergovernmental organization called ODDS –
Organization for the Defence of Drowning States. Next to coordinating flood protection
efforts and organizing common emergency strategies, the new IGO has the task of
representing the common interests of its member states in the international arena. ODDS is
given observer status in the UN General Assembly. The governing council of ODDS plans to
take immediate action in various ways:

● By filing lawsuits before the International Court of Justice against the three states
with the highest level of carbon dioxide emissions – China, the US and India – for
failure to reduce their emissions and thus causing the destruction of the territory
of ODDS member states. The governing council also considers bringing a similar
suit against the European Union, but doubts whether the ICJ has jurisdiction in
this case.
● By bringing the matter before the UN Security Council and demanding immediate
economic sanctions against the polluter states.
● By sponsoring a UN General Assembly resolution, hoping that it will be adopted
by a majority of member states so as to impose binding obligations on the big
polluters.
● By creating its own body of legal rules on CO2 emissions within its own member
states, establishing much higher standards than exist at the world level. ODDS
will also establish a court which will be competent to try persons and companies
for breach of these rules.

Answer
- A lawsuit against China, the US and India is very unlikely because there is no binding
treaty against the countries and the ODDS. The problem is also that it is difficult for
ODDS to state real facts about the actual damage these countries do in relation with
the climate change.
The ICJ can only hold trials between member states, however, the EU itself is an
international organization
- It would be impossible to demand economic sanctions from these members in the SC.
The reason is that both the USA and China are P5 members, and they would without a
doubt veto any kinds of sanctions imposed on themselves. Moreover India is also an
exceptionally influential state and regulations on it would also not be possible.
- It is possible to pass a resolution in the GA regarding the issue, however, the GA does
not produce binding agreements, hence it would not have to be actually enforced.
- ODDS can and should introduce its own body of legal rules that they can enforce.
However, climate change is a transnational matter, which concerns the whole world.
Even if the ODDS states decided to cut back on emissions, the problem would not be
solved since this matter requires international cooperation.

Task 29 - Jurisdiction
A gang of Polish nationals based in the Cayman Islands has been operating a fake online
casino in Polish for over five years scamming over 25,000 Polish citizens out of their hard-
earned savings. The Current minister of Justice Zbigniew Ziobro has decided that it is time
for action and demands that the Cayman Islands extradite the members of this gang to Poland
for prosecution.

In response, Derek Byrne, the Commissioner of the Royal Cayman Island Police Force,
issued a press release. According to Derek Byrne, the Polish Police authorities have not
presented enough evidence to justify the arrest of the Polish Gang. In the press release he
argues that because none of the 25,000 victims were ever present on the territory of the
Cayman Islands, the Cayman police force has no jurisdiction to arrest the gang in accordance
with the principles of international law on jurisdiction.

In a televised speech Zbigniew Ziobro responds angrily to the press release: ‘If the Royal
Cayman Islands Police Force does not cooperate, I will be forced to order the secret service
to perform an extraordinary rendition and arrest the members of the gang on the territory of
the Cayman Islands. Extraordinary rendition must be accepted under international law since
the precedent established by the Eichmann trial.’

In response to Ziobro’s speech the Minister of Foreign Affairs of the Cayman Islands, Mr.
Martyn Roper wrote an Open Letter of Complaint to the Secretary-General of the United
Nations, claiming that the actions proposed by Zbigniew Ziobro would be a breach of a
fundamental principle of international law. Before the Secretary-General could respond to
this complaint, Brad Ebanks the Commander of the Cayman Military Regiment said in an
interview: ‘I don’t understand what the big deal is? They just want to arrest some of their
own, why should we care?’.

Instructions

Please answer the following questions:

1. What is jurisdiction?
2. How do states exercise their jurisdiction?
3. What principles govern the exercise of jurisdiction? Are there any limits to how
states may exercise their jurisdiction?
4. What is the principle of non-intervention, and are there any possible exceptions to
this principle?
5. What is immunity and how does it relate to universal jurisdiction?

*Side-note: the status of the Cayman Islands as a parliamentary dependency of the

Commonwealth as opposed to an independent state is immaterial for the purposes of this task.

Answers
1. The competence of the State to make and enforce rules in respect of persons, property
or events. This competence may be exercised in the way of either legislation,
adjudication or enforcement.

2. States generally exercise their jurisdiction by settling disputes in front of courts which
are binding. There are three ways in which states can exercise its jurisdiction:
 legislation (by the legislature), adjudication (by the courts), and enforcement (by the
police or the armed forces)

3. There are five main principles.

- The active nation principle, where the jurisdiction of a State may exercise
power over people that have the nationality.
- The passive nation principle, where the jurisdiction of a State may exercise
power over people that have the nationality but are abroad  over conduct
that happens abroad
- The Protective principle, where the jurisdiction of a State may exercise
power over people who threaten vital interests of the State by threatening
national security.
- The Universality principle where the jurisdiction of a State may or must
exercise power over certain crimes that are of great seriousness regardless of
the location of the crime or the nationality of the perpetrator or victim.
- The effects principle, which is a civil jurisdiction a state may exercise when
foreign conduct produces substantial effects on its territory. This tends to be
relied upon in commercial rather than criminal cases.

4. The prohibition of interference in internal affairs or matters with domestic jurisdiction

is a crucial element of traditional international law. it helps to protect state
sovereignty against outside intervention by other states.
There is an exception to this principle; this exception applies when there is violation
to the states’ duty to respect and protect their natural environment and human rights of
their inhabitants. Any violations of these obligations are no longer an internal matter
of the State in question.
In case of violations to said obligations, other states that are parties to the same
convention or that are bound by the same rule of customary international law are
permitted to insist on compliance with those standards; they may make legal
proceedings and apply sanctions against the violating state.

5. Under traditional international law, the highest representative of a State enjoys

immunity from criminal prosecution before foreign courts. This is because bringing
these high representatives of the state to trial before foreign courts would be
incompatible with the sovereign equality of states.
Universal jurisdiction, however, in respect of international crimes, do not make an
exception for high government officials; this is applied in many treaties that have
been widely ratified.

This is a contradiction between the traditional immunity rules and these universal
jurisdiction provisions in respect of international crimes. A compromise would be
found between two contradictory interests, traditional respect for other state’s
sovereignty of the perpetrators of the most serious crimes by assuming that high
officeholders cannot be prosecuted abroad, even for international crimes as long as
they are in office; but as soon as they are no longer in office, such prosecution would
be possible.
 Human Rights & Procedural Law

(12) Task 30 – Tabloids

Britney Bieber, BB for her fans, is a famous pop artist who makes the hearts of many young
people beat faster, both in her home country, France, as well as in Germany. The hearts of
freelance photographers also beat faster when they see BB outside concert venues, in
particular if she is in the company of some handsome girl or boy that happens to have
approximately the same age as BB. A good photograph of a tête à tête that involves BB may
bring tens of thousands of euros if sold to a tabloid journal.

The potential gains have recently even increased, on rumours that BB wants to exploit her
tremendous popularity by running for president. If Ronald Reagan could become the
president of the United States, why shouldn’t she be able to become president of France? If
only she could stop those private photographs of her being published in tabloid journals; they
do not contribute to her stature as potential president. In France, the problem is not very big,
because the French journals exercise some self-constraint, but the German tabloids are a true
plague.
The problem in Germany is partly caused by the fact that there is hardly any relevant
legislation that stops the tabloids, as Germany attaches much importance to the freedom of
the press, sometimes at the cost of the privacy of persons. Her legal advisors tell BB that this
offers an opportunity to do something about the photographs in the German tabloids. She
should sue the German government for not stopping the tabloid journals. The advocates of
BB first write a letter to this effect to the German Justizminister, but the minister replies:
-   first, that it is not the German government who publishes the photographs, but the tabloids;
-   second, that the German State has the freedom to decide whether it will let the freedom of
the press prevail over the right to privacy; and
-   third, that Germany has struck a good balance between the freedom of the press and the
privacy of people by allowing only photographs that were made in publicly accessible places.

She does not have any official of the state duties, so it is not on the public eye, important. On
the other hand she is trying to become part of the official of the state
Procedure:
During the tutorial, you and your tutor can choose between two approaches: either discuss
this as a regular discussion task or follow a more moot court-inspired procedure: if the latter,
the group will be split into three subgroups of approximately equal size.
One subgroup has the task to defend the view of BB that the German State should take better
measures to make the tabloids stop publishing photographs of her in private situations. The
second subgroup has to defend the view of the German State that it is not obligated to
undertake any measures. The third subgroup will act as judges. Each group will be given
some time to prepare.  
During the tutorial, the advocates of BB (first group) present their case, followed by a plea by
the advocates of the German State (second group). The advocates of BB then get the
opportunity to respond to the plea briefly, after which the advocates of the German State may
offer a final response. The members of the third group must decide which of the two parties
won the case and why, basing themselves on the outcome of the Caroline von Hannover case.
Since you will not know to which group you belong, it is important to prepare this task in
such a way that you can take any role in the proceedings. In order to help with that, carefully
consider the Hannover-case.
The Hannover-case
The case of Caroline von Hannover against the German state nicely illustrates the
problematics of conflicting human rights. To help you reading (the excerpt from) the case in
the eReader, there is a list of questions that you should answer. The questions relate both to
the case itself and to the background knowledge that you need to understand what is going
on.
Questions that may be useful as guidelines:
1. What were the facts of the case?
-    This is the case between Caroline von Hannover, the applicant, against the Federal
Republic of Germany
-    The applicant is the eldest daughter of Prince Rainier III of Monaco
-    Her official residence is in Monaco, but she lives in the Paris area most of the time
-    As a member of Prince Reiner’s family, the applicant is the president of certain
humanitarian or cultural foundations (Princess grace foundations, prince Pierre of
Monaco foundation)
-    She represents the ruling family at events such as the Red Cross Ball or the opening of
the international circus festival
-    She does not perform any function within or on behalf of the State of Monaco or any
of its institution
-    Since early 1990, she has been trying to prevent the publication of photos about her
private life in the tabloid press
-    The photos that were subject of the proceedings described below were published by
the Burda publishing company in the German magazines Bunte and freizeit Revue,
and by the Heinrich Bauer Publishing company in the German magazine Neue Post

2. At the end of the case you can find the decisions of the Court, which contains
several elements. Explain what these decisions and their elements mean.
The first element is connected with article 8 and article 10 where it states if there is
any violation or not. In the second element include article 42 and the claims that the
applicant has. The third and last element is the unanimous vote including a final
statement of the Court regarding the violations of human rights and the compensation
of the applicant.
3. Under which conditions is it possible for a private person to address the
European Court for Human Rights? Look up in the Convention which
procedure must be followed.
-    Article 34 of the European Convention on Human Rights
o   The court may receive applications from any person, non-governmental
organization or group of individual claiming to be the victim of a violation by
one of the High Contracting Parties of the rights set forth in the Convention or
the Protocol thereto. The High Contracting Parties undertake not to hinder in
any way the effective exercise of this right
Article 5 – the adminisability criteria
 
4. Which parties gave their opinion about the case during the proceedings before
the Court?
-    The applicant
o   In her submission, the protection afforded to the private life of a public figure
like herself was minimal under German law because the concept of a
‘secluded place’ as defined by the Federal Court of Justice and the Federal
Constitutional Court was much too narrow in that respect
o   In order to benefit from that protection, the burden was on her to establish
every time that she had been in a secluded place
o   She was thus deprived of any privacy and could not move about freely without
being a target for the paparazzi
o   With regard to many of the photos that were the subject of this application, it
was impossible to determine the exact time and place at which they had been
taken
-    The government
o   It submitted that German law, while taking account of the fundamental role of
the freedom of the press in a democratic society, contained sufficient
safeguards to prevent any abuse and ensure the effective protection of the
private life of even public figures
o   It submitted that the German courts had in the instant case struck a fair balance
between the applicant’s rights to respect for her private life guaranteed by
Article 8 and the freedom of the press guaranteed by Article 10, having regard
to the margin of appreciation available to the State in this area
o   The protection of the private life of a figure of contemporary society “par
excellence” did not require the publication of photos without his or her
authorization to be limited to showing the person in question engaged in their
official duties
-    The interveners
o   The association of German magazine publishers
 Submit that German law struck a fair balance between the right
to protection of private life and the freedom of the press
 It also complied with the principles set out in Resolution 1165
of the Parliamentary Assembly of the Council of Europe on the
right to privacy and the European Court’s case-law, which had
always stressed the fundamental role of press in a democratic
society
 Given that there was no uniform European standard concerning
the protection of private life, the state had a wide margin of
appreciation in this area
o   Burda
 German law required the courts to balance the competing
interests of informing the public and protecting the right to
control the use of one’s image very strictly and on a case-by-
case basis
 The applicant could not therefore, especially if account were
taken of her official functions, be regarded as a victim of the
press
 The publication of the photos in question had not infringed her
right to control the use of her image because they had been
 taken while she was in public and had not been damaging to her
reputation
We get from the magazine to the state because of her right of privacy was violated
Is a violation that the German state didn’t do anything to protect her rights
5. Who are traditionally seen as the agents who bear the duties that are connected
to human rights?
-    The general orthodoxy is that human rights only create duties for the State
6. Who performed the acts that allegedly violated the privacy of Caroline von
Hannover? And who was the defendant in the case? Explain how it is possible
that these two are not the same agent.
-    The one who violated Caroline von Hannover’s right to privacy are the press: the
Burda publishing company in the German magazines Bunte and freizeit Revue, and
by the Heinrich Bauer Publishing company in the German magazine Neue Post
-    The defendant in this case is Federal Republic of Germany
-    The applicant here filed the case against the Federal Republic of Germany because the
German Court decisions had infringed her right to respect for her private and family
life
7. In section 57 the Court writes about “positive obligations”. Explain what
these positive obligations are and why the positive obligations in the present
case are special from the human rights perspective.
 Positive obligation or duties to fulfill requires the State to take action (such as aiding,
providing, or informing) in order to ensure that somebody enjoys a right that he/she is
presently not enjoying.
 In this case, the court reiterates that there may be positive obligations inherent in an
effective respect for private or family life. These obligations may involve the adoption
of measures designed to secure respect for private life even in the sphere of the
relations of individuals between themselves
8. Why is it not obvious that a state must comply with a positive obligation that
corresponds to a human right? Why would this be different with negative
obligations?
Because positive duties are not universally accepted and it depends on the State
jurisdiction which rights they want to adopt and also because the division between
positive and negative duties have lost their ground. 
9. Which two human rights conflict in this case and from which articles of the
Convention do they each derive their protection?
-    Article 8 European Convention on Human Rights – privacy
o   Everyone has the right to respect for his private and family life, his home and
his correspondence
-    Article 10 European Convention on Human Rights – freedom of the press
o    Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This
article shall not prevent states from requiring the licensing of broadcasting,
television or cinema enterprises
 10. Explain in your own words which techniques are available to a court when it
must decide about a conflict of human rights in a concrete case? Which of these
techniques was adopted by the court in the present case?
They favored the right of privacy more than press  they used hierarchy – privacy
was more important
They chose it like this because she is no official

11. Did the Court limit any of the rights that were involved in the conflict, or did it
make an exception to either one?
The court overruled the freedom of press in favour of the freedom of privacy,
justifying that in this case the latter was more important.
Tutorial = RED
Distinction between Positive, negative and to respect, to protect and to fulfill
No country likes to be told what to do 

(12) Task 31 – Access to Justice

Procedural law contains by necessity a lot of detailed rules specifying amongst others how
courts can be accessed and how legal procedures take place. These rules differ strongly from
one country to another. However, it is possible to formulate a number of general principles of
procedural law which the rules of most countries aim to implement. Many of these principles
are ‘read into’ article 6 ECHR (European Convention of Human Rights) which aims to
guarantee a ‘fair trial’ to everybody. The case law of the ECtHR (the (European Court of
Human Rights) provides a catalogue and an elaboration of the principles of procedural law
that are read into Art. 6 ECHR.
One case which contributed to the development of the principles of procedural law through
the interpretation of Art. 6 ECHR is the case of Golder v. The United Kingdom. An excerpt
of this case is included in the eReader.
The following questions are meant to help you to understand the case and to place it in the
wider perspective of the principles of procedural law.
1. What were the facts of the case?
 In 1965, Mr. Sidney Elmer Golder was convicted in the UK of robbery with
violence and was sentenced to 15 years imprisonment
 In 1969, he was serving his sentence in Parkhurst Prison on the Isle of Wight
 24 October 1969 evening, a serious disturbance occurred in a recreation area
of the prison where Golder happened to be
 25 October, Mr. Lair, a prison officer injured in the disturbance, made a
statement identifying his assailants; mentioning ‘I think his name is Golder …
were swinging vicious blows at me’
 26 October, Golder was segregated from the main body of prisoners
 28 and 30 October, Golder was interviewed by police officers and informed
that it had been alleged that he had assaulted a prison officer
  25 October and 1 November, Golder wrote to his Member of Parliament; 4
November, he wrote to a Chief Constable; about the disturbance and the
ensuing hardships it had entailed for him
 The prison governor stopped these letters since Golder had failed to raise the
subject-matter thereof through the authorized channels beforehand
 5 November, Mr. Laird clarified that when he mentioned the prisoner Golder,
he said ‘I think it was Golder’ and that he is not certain that Golder made an
attack on him
 7 November, another prison officer reported: Golder was in the T.V. room
with him and to the best of his knowledge took no part in the riot
 Golder was returned to his ordinary cell the same day
 10 November, the prison authorities prepared a list of charges which might be
preferred against prisoners, including Golder, for offences against prison
discipline.
 No such charge was eventually preferred against him and the entries in his
prison record were marked ‘charges not proceeded with’ – those entries were
expunged from the prison record in 1971 during the examination of
applicant’s case by the Commission
 20 March 1970, Golder addressed a petition to the Secretary of State for the
Home Department, that is, the Home Secretary
o   He requested a transfer to some other prison
o   The wrong statement by Mr. Laird has recently prevented him being
recommended by the local parole
o   He requested permission to consult a solicitor with a view to taking civil action
for libel in respect of this statement
 6 April 1970, Home office directed the prison governor to notify Golder of the
reply to his petition of 20 March
o   The Secretary of State has fully considered his petition, yet it is not prepared to
grant his request for transfer
o   Nor can he find grounds for taking any action in regard to the other matters
raised in his petition
 Golder submitted two complaints to the Commission relating respectively to
o   The stopping of his letter
o   The refusal of the home secretary to permit him to consult a solicitor
 30 March, the commission declared
o First complaint inadmissible, all domestic remedies had not been exhausted
o   Second complaint admissible, of the merits under Art 6(1) and Art 8 of the
convention
 Golder was released from prison on parole on 12 July 1972
 
2. What were the two legal questions that had to be answered? What was the
answer to the first of these two questions? (The answer to the second question
was omitted from the excerpt.)
(i)      Is article 6 para.1 limited to guaranteeing in substance the right to a fair trial in
legal proceedings which are already pending, or does it in addition secure a right
of access to the courts for every person wishing to commence an action in order
to have his civil rights and obligations determined
 
 (ii)       In the latter eventuality, are there any implied limitations on the right of access
or on the exercise of that right which are applicable in the present case?
 
Article 6 para 1 of the European Convention states that everyone is entitled to a free and
public hearing in regards to civil rights, obligations and criminal charges. There
is not one specific definition on who has in express term access to a court. 
From it, although there are different rights that are taken together in one, in a narrow
sense do not specifically define the relevance of the Article but rather by means
of interpretation whether access to the courts constitutes one factor or aspect to
this right. 

 The case is basically about the access to a trail and that once you’re there does it have to be
fair
3. In section 35 the Court gives its reasons for the conclusion it drew. Formulate
these reasons in your own words. Which legal sources did the Court use to arrive
at its conclusion?
To be able to bring civil claims to the court it is “recognized” as a universal principle
of law. This is backed up by a principle in national law where the denial of justice is
forbidden. 
These principles make the case under Article 6 para. 1 (art. 6-1) of the european
convention on Human Rights the right to a fair trial holds in itself the right to access
justice.
Governments without acting in direct breach of the latter Article can stop cases
reaching courts and therefore converging on their jurisdiction in an arbitrary and
disastreful manner (Lawless judgment of 1 July 1961, Series A no. 3, p. 52 and
Delcourt judgment of 17 January 1970, Series A no. 11, pp. 14 - 15). 
The court says that if you have the right to a fair right then you also have the right to
get to a trial itself - before this case it wasn’t sure that the right to a fair trial gave you
the right to a right itself
4. Formulate a principle of procedural law, based on the decision in the Golder-
case
The decision of the Golder-case formulates one of the main principles of procedural
law, this one being the right to access justice. As Article 6 shows, every person is
entitled to be heard before the court regarding his/her concerns, and this should be
allowed.

Rights