Graduate Diploma in Law 1

European Union Law

Examination Paper
DATE: 7 June 2011
TIME: AM
TIME ALLOWED: THREE HOURS

INSTRUCTIONS TO CANDIDATES
Where questions are sub-divided, candidates should not expect the sub-divisions
necessarily to be of equal weight.
Materials provided: GDL Statutory Extracts (which MUST be returned
UNMARKED at the end of the examination).
You must answer THREE questions out of SIX

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Graduate Diploma in Law 1

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Graduate Diploma in Law 1
QUESTION 1
The European Union adopted Directive 2009/214 (fictitious) aimed at improving
the health and fitness of EU citizens in an environmentally friendly manner. The
last date for implementation of the Directive is 26 May 2011.
Amongst its many provisions the Directive states: ‘employers shall provide
employees with vouchers which they can use to purchase bicycles at half the
recommended sale price’ at an appropriate range of leading retailers.
On 26 May 2011 the UK enacted the Wellbeing at Work Act 2011 (fictitious.)
One of its provisions states: employers shall take all reasonable steps to
encourage its employees to improve their health and fitness levels whilst in the
workplace. Schedule 1 of the Act gives a list of examples of what might be
considered reasonable. The list states that reasonable steps include the following
examples:
 Providing a space on the premises that might be used for exercise classes;
 Allowing staff breaks to be long enough for them to undertake reasonable
physical activity;
 Marking out a measured circuit for staff to walk around at breaks;
 Providing nutritional information to staff in any areas where food is
bought or consumed.
However, bicycles are not explicitly mentioned.
Roger Jow works for JFB LLP ("JFB"), a firm of commercial solicitors. He would
like to cycle to work and has asked JFB whether they will give him the half priced
vouchers. JFB have replied that the scheme would be too expensive to run and
have refused to provide them.
(a) Advise Roger of any claims he might have under EU Law.
Assume for this part of the question that Roger brings a claim against JFB in his
local Employment Tribunal. The case is appealed all the way up to the Supreme
Court. The Supreme Court is not sure whether the word “shall” in the Directive
is to be interpreted to mean “must” or “desirable, but not compulsory”.
(b) Explain how Article 267 of the Treaty on the Functioning of the
European Union (“TFEU”) might affect the Supreme Court’s
decision.

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Graduate Diploma in Law 1
QUESTION 2
WatchYou (‘WY’) is a UK registered charity which runs a care programme for
vulnerable elderly adults who require ongoing care services. Typically WY
workers are trained nurses and they provide nursing care and support in the
client’s home. Their clients are roughly 50% women, 50% men.
WY has decided to expand its nursing team and has used the internet to recruit
Stef who is a male Dutch national. Stef is a qualified nurse and possesses both
Dutch and UK nursing qualifications. At the moment Stef is living in Amsterdam
but he will be relocating to London in order to start his job with WY at the end
of this year. However, when he telephones WY to discuss his start date, his
manager says ‘Oh! We thought you were a woman!’
(a) Explain whether WY is obliged to stand by its employment offer
to Stef under EU Law.
Stef has been informed by WY’s Human Resources manager that as a day shift
worker any taxi fares he incurs in travelling to and from visits will not be
subsidised by WY. Night shift employees do receive such a subsidy. WY has said
that this is because it is dangerous for employees to use public transport in
London at night. One of their night shift employees was recently attacked when
using the Underground Rail Service on her way to visit a WY client at 10pm.
Most of WY’s day shift workers are men, and all of the night shift workers are
women.
(b) Explain whether Stef is able to claim a taxi fare subsidy from WY.
A few months after arriving in the UK, Stef is caught sending text messages while
driving to work. He pleads guilty to careless driving and a minor penalty is
imposed. No one was hurt during the incident and no damage was caused to his
vehicle or any other property. Stef is however worried that he may lose his
right to remain in the UK since he now has a criminal record.
(c) Explain whether or not Stef still has the right to remain in the UK
under EU Law.

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Graduate Diploma in Law 1
QUESTION 3
Zavolax plc is a pharmaceutical business based in France. It has a leading portfolio
of products and medicines that support wellbeing and prevention of illness in
humans. As well as treatment and cures for diseases, they also have a world
leading research laboratory, promising new products and medicines.
Over the past 2 years Zavolax has been developing a new product to assist in
pain relief for headaches. Eventually the new product, with the brand name
Migranese, was released on the North American market in February 2010.
Zavolax now wants to release Migranese on the European market. In order to
test the strength of the product, Zavolax’s board agreed to market Migranese in
the German and Spanish markets only. Should the product be successful, it
would expand the sale of Migranese to other parts of the EU.
However, prior to release of the product, Zavolax has discovered that national
law in Spain requires all headache tablets to be dyed in a distinctive Persian pink
colour.
Zavolax has marketed Migranese using a distinctive sapphire blue colour. Zavolax
is unhappy with the Spanish law requiring the tablets to be a Persian pink colour
as the tablets were marketed successfully in North America in sapphire blue.
(a) (i) Discuss whether or not Zavolax has grounds under EU Law
to challenge the requirement that the Migranese tablets
must be changed to Persian pink.
(ii) Discuss the merits of Zavolax pursuing its claim through
national courts as compared to complaining to the European
Commission.
Zavolax also wants to launch Migranese in Germany with a television advertising
campaign. However, German legislation prohibits the advertising of painkillers on
television, so the TV stations have declined to advertise Migranese. Zavolax’s
board wrote to one of the TV stations, stating that it thought that the German
legislation breached EU Law. However the TV station replied;
“An advertising campaign which does not affect the physical characteristics of
the product will always constitute a selling arrangement and so is outside the
scope of EU Law.”
Zavolax’s board does not understand what this means.
(b) Explain the above statement with reference to relevant case law,
evaluating the extent to which it is an accurate reflection of EU
Law.

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QUESTION 4
WindFarms Ltd (WF) manufactures turbine blades for sale to companies involved
in setting up wind farms. Most of its blades have so far been sold to UK
companies, but due to recent technological developments WF blades are
attracting interest from companies throughout the EU. WF has received its
biggest order yet from a Spanish company looking to build turbines on the
northern Spanish coast.
WF has discovered that the Spanish government has passed legislation stating
that any imported goods linked with what it calls ‘clean energy’ must be
subjected to lengthy inspections by a specially created inspectorate to assess the
likely impact of such goods on the environment. Only imported goods are
subject to such tests, and WF has ascertained that the tests will apply to their
blades.
(a) Explain whether, and how, WF can use EU Law to challenge the
Spanish legislation.
Following several more orders to provide wind turbine blades to Spanish
companies involved in setting up wind farms, WF has decided to capitalise on its
success by setting up a service centre on the outskirts of Madrid. The service
centre will provide ongoing engineering advice and maintenance services in
respect of the turbine blades WF provides. WF has chosen to base itself in
Madrid as the central position will allow it to easily despatch its engineers to
work on turbine blades located throughout Spain.
WF has discovered that any business in Spain wishing to provide engineering
advice and maintenance services for wind turbine blades needs prior
authorisation from the Spanish Ministry of the Environment. In particular, as part
of obtaining such authorisation, providers are required to prove they have
carried out a risk assessment of the impact their services will have on the
environment in Spain.
(b) Explain whether WF can use the “Services’ Directive” (Directive
2006/123) to challenge the need for authorisation and in
particular the requirement to provide a risk assessment of the
impact their services will have on the Spanish environment.
Note that the “Services’ Directive” does apply to this sector.

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Graduate Diploma in Law 1
QUESTION 5
GA Ltd (‘GA’) is a company incorporated in the UK and providing pension advice
to businesses and individuals. Recently, GA was contacted by a large German
department store in need of major help restructuring its staff pension scheme.
John Devlin, GA’s managing director has announced that GA will create a
temporary base in Cologne in order to manage this work efficiently. John was
concerned to learn that, in order to ensure consumer confidence, all non-
German companies who provide pension advice in Germany must provide to the
government references from at least four former German clients. GA has never
had a German client before so John cannot provide such references.
(a) Explain whether GA will have to offer the references stipulated if
it wishes to operate in Germany. Note that the “Services’
Directive” (Directive 2006/123) does not apply to this sector.
Due to the temporary nature of the operation, the company has decided to use
freelance consultants to undertake the work in Germany; GA has appointed
Mary Jones to oversee the technical side of the business. Mary is a British
national and a single parent, she relies on her retired parents to help look after
her 4 year old daughter; Mary intends to re-locate to Cologne with her parents
and daughter.
(b) Explain whether Mary can re-locate to Germany and, if she can, is
she able to take her daughter and parents with her?
GA has recruited Dennis, also a British national to oversee the financial side of
the business in Germany. Dennis would like Bernardo, his partner of five years’
to live with him in Germany. Dennis has heard from a German acquaintance that
German law would not allow them to settle in Germany together.
(c) Explain whether Dennis can rely on any provisions of EU Law in
persuading the German authorities to issue Bernardo with a
residence permit.

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QUESTION 6
MegaBalloons plc (MBP), an English company, is a supplier of helium balloons. It
produces a range of standard balloons for special occasions such as birthdays and
anniversaries. It also produces customised balloons made to order for business
customers. The standard balloon market has been very profitable, but MBP has
been struggling to make a profit in the customised balloon market. Its sales of
customised balloons outside the UK are very limited, even though French and
Italian suppliers have been successful in penetrating most of the EU.
Its main competitor in the customised balloon market in the UK is a South
African company, Vuvuzela Toys (Pty) Ltd (Vuvuzela). Vuvuzela also supplies
standard balloons throughout the EU.
In a recent survey the following market shares in the customised balloon market
were reported:

Company Geographic area %

MBP UK 28
MBP EU 3
Vuvuzela UK 26
Vuvuzela EU 4

MBP and Vuvuzela recently held discussions concerning the customised balloon
market after which they entered into a formal agreement to share technical
information in order to increase their penetration of the wider EU market.
Subsequently the managing director of Vuvuzela sent his counterpart at MBP
details of Vuvuzela’s pricing policy for the UK customised balloon market. MBP
has now adopted an identical pricing policy.
(a) Analyse whether or not
(i) the agreement to share technical information, and
(ii) the conduct in relation to the pricing information

breach EU Competition Law. Your answer should include an analysis

of the relevant market.
(b) Explain what action the European Commission could take in
relation to the agreement and conduct referred to in part (a).
Advise MBP whether there is anything it could do to mitigate its
liability.

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