Summative Assessment

LAWS20900/30990 European Union Law

Assessment Type Open-book exam

Answer TWO questions

You must answer ONE question from SECTION A and ONE question from
SECTION B

SECTION A

YOU MUST ANSWER ONE QUESTION FROM SECTION A

1. Critically evaluate the role of the principle of supremacy of EU law in UK

domestic law both pre- and post-Brexit (max. 1500 words).

Outline of key issues

• Identify the meaning of the principle of supremacy of EU law (case

law and/or Treaties).
• Discuss the application of the principle of supremacy in UK domestic
law when the UK was a Member State. In particular, discuss the
main conditions set by the UK House of Lords (conferral/EC Act
1972) with reference to relevant case law (Factortame and EOC), the
harmonious construction doctrine in the House of Lords (relevant
case law) and the alternative perspective on supremacy in Thoburn
(EC Act 1972 as common law constitutional statute).
• Discuss and analyse the judgment of the UK Supreme Court in Miller
I, considering in particular the identification of EU law as a new,
independent, direct and overriding source of law.
• Discuss the role of EU law in the UK post-Brexit, particularly the
definition of retained EU law under ss.2-4 EU (Withdrawal) Act 2018
 and the role of the principle of supremacy in relation to such law
under s.5 EU (Withdrawal) Act 2018.

OR

2. Durotar is a fictitious Member State of the European Union.

In 2018, the Council and the European Parliament adopted the (fictitious)
Fair Trade Labelling Directive (“the Directive”). Article 2 of the Directive reads
as follows: “All small and medium-sized enterprises producing fair trade
products are entitled to display the “EU Fair Trade” logo on the product
packaging”. According to the Preamble to the Directive, small and medium-
sized enterprises should be defined according to their staff headcount or their
annual turnover. Member States had to implement the Directive by 31st
December 2020.
In Durotar the Directive was implemented in the Fair Trade Act (FTA) 2020.
According to Section 10 of the FTA, a small and medium-sized producer is
defined as “any company employing fewer than 50 full-time employees”. This
definition was adopted after informal discussion with the European
Commission.
Love Chocolate (LC) is a company producing fair trade chocolate and
employing 60 full-time employees. It is unable to label its products “EU Fair
Trade” under the terms of the FTA and, as a result, experiences falling sales
and lower profits. LC decides to bring an action against the Durotar
government, arguing that it has failed correctly to implement the Directive in
Section 10 of the FTA. At the hearing before the High Court, the lawyer
representing LC urges the Judge to make a reference to the Court of Justice
of the EU (CJEU) seeking an interpretation of Article 2 of the Directive. The
High Court Judge dismisses the application on the ground that the meaning
of Article 2 of the Directive is clear and the FTA has interpreted and
implemented it correctly.
Advise LC on the following:
(a) whether it might be able to recover its losses by bringing an action for
damages against Durotar due to the interpretation and implementation of
Article 2 of the Directive in Section 10 of the FTA; and
(b) whether Durotar could be held liable for damages due to the refusal of the
High Court to refer the question to the CJEU (max. 1500 words).

Outline of key issues

• Examine whether the three conditions for State liability would be satisfied
(Francovich read with Brasserie and Factortame (no. 3); Dillenkofer).
 • Strong students will identify the principles that should govern the award
of damages (effectiveness and equivalence; and “commensurate”
compensation) (Brasserie and Factortame (no. 3)).
• With regard to the second condition for State liability, examine whether
the State could be held liable for a sufficiently serious breach of EU law
(Brasserie and Factortame (no. 3) and relevant CJEU case law). Examine
whether the wording of the Directive is clear and unambiguous and
whether the State has manifestly and gravely disregarded the limits of its
discretion by incorrectly interpreting and implementing the Directive.
Evaluate whether this incorrect implementation could be regarded as
manifestly contrary to the wording and/or the objectives of the Directive
(Dillenkofer; Rechberger; Hedley Lomas); or whether it could be
excused/defended by any mitigating circumstances (BT; Robins;
Denkavit; Brinkmann).
• Examine whether the applicant could also bring a State liability action
because of the decision of the High Court not to make a preliminary
reference (Köbler – was the refusal to refer here a manifest breach of the
applicable case law, e.g. CILFIT? Even if so, was the court adjudicating
at last instance here?)

OR

3. “In an attempt to control its ever-increasing workload, the Court of Justice

of the European Union (CJEU) has had to take a flexible approach to the
obligation to refer under Art. 267(3) TFEU in recent years.”
Critically evaluate this statement (max. 1500 words).

Outline of key issues

• Discuss and analyse the purpose of the preliminary reference

procedure, in particular the need to ensure a consistent
interpretation of EU law.
• Discuss and analyse the workload pressures on the CJEU. Link this
point to the purpose of the preliminary reference procedure – how
can the CJEU balance the competing demands of workload and
consistent interpretation?
• Identify the requirements of the obligation to refer under Article
267(3) TFEU applicable to courts against whose decisions there is
no judicial remedy under national law.
• Identify the CILFIT doctrine and criteria. Discuss and analyse post-
CILFIT case law of the CJEU, with a focus on the acte clair doctrine.
Consider whether the CJEU’s interpretation of the acte clair doctrine
has evolved over time and evaluate the impact of that on workload
issues and the purpose of the preliminary reference procedure.
Strong students will consider potential areas for reform.
 AND

SECTION B

YOU MUST ANSWER ONE QUESTION FROM SECTION B

4. Lancre and Ephebe are fictitious Member States of the European Union.

Due to rising public concern about the environmental cost associated with
disposable nappies, Lancre passes national legislation setting out the
following measures:

(a) An internal tax is levied on all disposable nappies marketed within Lancre.
No tax is payable in relation to nappies which are composed of at least
90% biodegradable materials; a 5% tax applies to nappies composed of
50-89% biodegradable materials; and a 10% tax applies to nappies
composed of less than 50% biodegradable materials.

(b) No advertisements for nappies composed of less than 50%

biodegradable materials are permitted on TV or radio. Such
advertisements are also prohibited within print publications which are
aimed specifically at parents.

Domestic producers of disposable nappies within Lancre produce nappies

composed of 45%-95% biodegradable materials.

Cuddlies is a producer of disposable nappies established in Ephebe. The

company has two brands of nappies on the Lancre market: Cuddlies Cozy
Fit (CCF), which are composed of 40% biodegradable materials, and
Cuddlies Eco (CE), which are composed of 75% biodegradable materials.
Since the introduction of the Lancre legislation, Cuddlies have identified
lower sales in the Lancre market for both the CCF and CE brands.

Assuming there is no harmonising EU legislation, advise Cuddlies on its

rights, if any, under EU law (max. 1500 words).

Outline of key issues

• Identify measure (a) as a fiscal barrier to the free movement of

goods. Identify the measure as internal taxation and apply Art. 110
TFEU. Examine whether the tax is directly or indirectly
discriminatory, and/or whether it can be justified on public interest
grounds and whether it is proportionate (CJEU case law). If the tax
is unlawful, identify the remedies available to the company (San
Giorgio; Comateb).
• Identify measure (b) as a non-fiscal barrier to the free movement of
goods. Identify the measure as a potential measure having
equivalent effect to a quantitative restriction on imports (MEE) (Arts.
 34 and 36 TFEU; Dassonville and Cassis). Identify the advertising
measures as certain selling arrangements (CSAs); examine whether
they satisfy the Keck test in order not to breach Art. 34 TFEU – and
especially whether they are factually discriminatory or not (De
Agostini, Gourmet, etc.). Strong students may additionally, or
alternatively, apply the market access test (AG Jacobs in Leclerc-
Siplec, and CJEU in Ker-Optika, and/or Scotch Whisky Association).
If the selling arrangements are found to be factually discriminatory,
and/or capable of impeding market access, it must be examined
whether they can be justified by any mandatory requirements or
express derogations, and whether they are proportionate.

OR

5. “In its case law on Art. 114 TFEU, the Court of Justice of the European
Union (CJEU) has shown itself to be a friend to national sovereignty,
upholding the principle of conferral.”

Critically evaluate this statement (max. 1500 words).

Outline of key issues

• Discuss and analyse the importance of the principle of conferral and

the requirement for a valid legal basis before the EU can pass
legislation as a method for protecting national sovereignty.
• Discuss and analyse the Tobacco Advertising I judgment, identifying
both areas in which the CJEU extended the EU’s competence in the
field of the internal market and areas in which it limited that
competence.
• Discuss and analyse whether the limits set out in Tobacco
Advertising I remain in subsequent case law: e.g. Swedish Match I
and II; Philip Morris (Tobacco Labelling and E-Cigarettes) etc.
• Examine the judicial deference and restraint by the CJEU (lack of
rigorous scrutiny of the way the EU’s legislature has exercised its
discretion under Art. 114 TFEU and its compliance with the principle
of conferral) and discuss whether this could be seen as an
illustration of competence creep and a threat to national
sovereignty/competence or not.

OR

6. Moria and Erebor are fictitious Member States of the European Union.
Arnor is a fictitious third country.

Kareem is a citizen of Moria, who has recently moved with his wife, Daria
(a citizen of Arnor), to Erebor, where they are both looking for a job. They
are both qualified ski instructors and are living on their savings from their
previous employment with Moria’s Snowsports Federation (MSF) and
income from a property owned by Daria in Moria.

Their applications to fill two ski coach vacancies with Erebor’s national
Snowsports Federation (SFE) are rejected on two grounds: a)
employment with SFE is reserved to citizens of Erebor as it falls within
the public service; b) they do not possess an international transfer
certificate, which coaches require to transfer between federations in
different Member States. That certificate is issued by their federation of
origin upon payment of a compulsory transfer fee by the federation of
destination. SFE refuses to pay the fee to MSF, which in turn refuses to
issue the certificate.

Kareem’s application for a marriage allowance, a benefit which would

allow Kareem to transfer his personal tax allowance to his wife, Daria, is
rejected on the ground that Kareem is not a permanent resident of Erebor
and Daria is not an EU citizen.

Advise Kareem and Daria on their rights, if any, under EU law (max. 1500
words).

Outline of key issues

• Identify Kareem and Daria as job-seekers and identify the rights,

and any limitations to those rights, associated with their status as
job-seekers (Art. 45 TFEU; Lebon; Collins; EU citizen and family
Citizens’ Rights Directive 2004/38).
• Discuss Kareem and Daria’s rights to residence as either job-
seekers or persons with sufficient resources (Art. 45 TFEU;
Citizens’ Rights Directive 2004/38).
• Identify the type of restriction(s) – distinctly or indistinctly
applicable – or discrimination – direct or indirect – facing the
applicants and their origin (professional body with regulatory
autonomy). Evaluate whether the restriction(s) or discrimination
would be justified and/or regarded as proportionate.
• In particular, for measure (a), examine whether the strict criteria
of the public service exception (Art. 45(4) TFEU and CJEU case
law) could apply to defend the rejection of the applicants’
application or not (Com v Belgium I & II; AG Mancini in Com v
France; Com v Luxembourg; Com v Italy; Marina Mercante
Española).
• For measure (b), examine whether there is a restriction on the
free movement of workers and whether it could be justified on
public interest grounds and be considered proportionate (case
law on qualifications justified by the nature of the post – Art. 3(1)
Reg. 492/2011 - and free movement of sportspersons).
• As regards the tax allowance, examine whether Kareem’s right to
equal treatment with regard to access to benefits falling within the
scope of EU law could be subjected or not to any limitations by
the host Member State on public interest grounds and whether
 such limitations would be considered justified and/or
proportionate (Arts 18, 20-21 and 45 TFEU; Art. 24 Citizens
Rights Directive 2004/38; Art. 7(2) Regulation 492/2011; case law
of the CJEU and/or the UKSC).

Students should show the word-count of each individual answer alongside

that answer.

The recommended time for this assessment is 6 hours.

Instructions
Students must choose ONE question from Section A and ONE question from section
B

All work should be formatted according to these standards:

Font Size: 12 Point

Font Type: Arial or equivalent

Line Spacing: 1.5

Left and right hand margins: 2.5 cm/ 1”

Top and bottom margins: 2.5 cm/ 1”

Note that these margins are generally the default in word-processing programs, so
you probably will not have to alter them.

Students must submit their completed examinations through TurnItIn. Work

submitted by students for assessment will be subjected to electronic systems for
detecting plagiarism or other forms of academic malpractice such as collusion.

Your name must not appear on the work, and you must use your student number in
the submission process.

Questions
Questions that might be directed at an invigilator in a regular exam may be
addressed to the TLSEO via email, and will then be passed to an appropriate
member of staff. Answers will be provided only to those questions that could be
answered in an exam setting. Please note, too, that while questions will be
answered as quickly as possible, responses will not be immediate.

Please do NOT send questions to teaching staff.

Timing
We suggest that you spend no more than 6 hours on this assignment. This is three
times the duration of the planned examination. Please note that you will NOT be
timed.

Referencing
Direct and indirect quotations must be acknowledged by means of a simple in-text
reference, in line with what we would expect in a conventional open-book exam. At
the minimum, this will name the author of books or articles being quoted (for
example “As Barnard argues…”); the short title of the case or statute in question
should be used when providing support for a point of law (for example, Keck and
Mithouard, or “Cassis”, or Citizens’ Rights Directive (CRD) 2004/38). Precise
references to statutory provisions (for example, “Art. 34 TFEU” or “Citizens’ Rights
Directive 2004/38, Arts. 2 and 7” – rather than simply “TFEU” or “Citizens’ Rights
Directive (CRD) 2004/38”) should be given. Footnotes, full case citations and full
bibliographies are NOT required.

Any direct quotations must be clearly shown as such through the proper use of
quotation marks.

Failure to acknowledge sources may be treated as poor practice or as malpractice.

If in doubt, students should include a reference.

University Policy on Plagiarism and Collusion

All work submitted by you must be your own work. Plagiarism is the use of
someone else’s work without proper acknowledgment, presenting the material as if it
were your own. The University regards plagiarism as a form of cheating, and
therefore as a serious academic offence; the consequences are severe.

The University of Manchester’s policies on plagiarism, collusion, and other academic

malpractice can be found at
http://documents.manchester.ac.uk/display.aspx?DocID=639
Information on how to avoid plagiarism can be found here:
https://www.escholar.manchester.ac.uk/learning-objects/mle/avoiding-
plagiarism/story_html5.html

All instances of suspected plagiarism will be investigated. Students who are found to
have plagiarised will be penalised; the penalty may extend to degree failure,
temporary suspension or expulsion from further study.

Word limit

The word-limit for each component question of the examination is shown alongside
that question. Note that word counts cannot be shared between questions. For
example, if the requirement is that students should write two 1500-word essays, this
does not mean that one can be 2000 words if the other is only 1000.

Students should declare the word-count for each question attempted. Markers may
check the accuracy of your stated word-count.

The word-count includes body text and any subheadings that the student chooses to
use.

Rather than applying a penalty to work that exceeds the word-limit, markers will use
a “guillotine” system. Under this system, markers will impose a cut-off, and not take
into account anything you write after the word-limit has been passed. For example, if
the question requires a 1500-word answer, anything you write after the 1500-word
mark has been passed may be ignored. It is therefore advisable that you aim for
concision.

You will not be penalised for answers that are shorter than the limit: answers will be
given credit for being comprehensive, rather than for being a certain length.
Submission Deadlines

Assessed work must be submitted no more than 7 calendar days from the time that
the assignment is released. For example, an assignment released at 10:00 BST on
a Tuesday will be due no later than 10:00 BST the following Tuesday.

Failure to submit by this date and time will be treated as absence from the
examination, and work will be given a zero mark.

Note that the deadline represents the latest time that a piece of work can be
submitted, and not a target. You are advised to plan ahead and submit work well in
advance of the deadline to ensure that any last-minute delays do not result in late
submission. This includes taking into account that the system may run more slowly
at times of high demand, such as close to deadlines.

Extensions

No extensions will be permitted. For clarity, please note that the 7 day automatic
extension some DASS students are entitled to as part of their support plan is NOT
applicable to any online exams.