Examiners' Report 2014: LA3024 EU Law - Zone B

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

Question 1
‘The aim of the European Union is European integration. However, the
European Union does not enforce its law on its own but relies on the
administrative bodies of the Member States. This creates the danger that the
application of European law may diverge between the Member States.
Diverging application between the now 27 member States would in turn
endanger the aim of European integration. Hence, the concept of supremacy
of European Union law aims at guaranteeing the uniform application of
European Union law within the Member States. This explains the rigid stance
adopted by the Court in applying such a principle.’
Discuss.
General remarks
This question refers to the constitutional implications of the supremacy and its
impact on uniform application of EU law.
Law cases, reports and other references the Examiners would expect you to
use
C-6/64 Costa v ENEL [1964] ECR 585
C-106/77 Simmenthal II [1978] ECR 629
C-106/89 Marleasing [1991] ECR I-7321
Joined Cases C-6 and C-9/90 Francovich and others [1991] ECR I-5357.
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LA3024 EU law
Common errors
Simply listing cases without discussing their implications.
Not attempting to link supremacy with uniform application of EU law.
A good answer to this question would…
discuss the significance of the doctrine of supremacy and in particular its impact on
the use of international treaties and the new concept of limited sovereignty. A
reflection on the very rigid stance adopted by the Court in cases such as Costa and
Simmenthal should be developed as the question clearly invites candidates to
reflect on the strategic use of supremacy to ensure the effective and uniform
application of EU law via national courts. A case such as Francovich on state
liability can also provide some useful points.
Poor answers to this question…
just listed the requirements for direct effect of Treaty, articles, regulations and
directives. No discussion on the implication of supremacy.
Student extract
[Moreover] the Commssion can bring an action against a Member State
under Article 258 TFEU. The article provides should the Commssion
consider a Member State has failed to fulfil an obligation, the Commission
shall deliver a reasoned opinion. The Commssion may bring then the
matter before the ECJ. Thus this article clearly shows how a judicial
institution of the EU being able to uphold the rule of law as well as the
supremacy of the EU. Next Article 263 of TFEU allows the ECJ to review
the legality of the acts of the relevant European institutions. In other words
challenges can be made for acting beyond their powers (ultra vires) or
abuse of powers before the ECJ.
Comment on extract
The candidate identified two heads of the European Court of Justice jurisdiction
(direct actions and judicial review) as examples of how the Court manages to
ensure the uniformity of application of EU law. However, there are two main
problems with the extract reported here. First, the candidate does not deal with
what the question really requires. The question specifically mentions supremacy as
the instrument to ensure the effective and uniform application of EU law. It thus
requires candidates to show how this doctrine can be employed to achieve these
aims. Cases such as Simmenthal, which imposes a general duty on national courts
to do everything possible to give full effect to EU law, or Francovich, which imposes
the liability of the state in case of its failure to apply EU law, are good examples.
The extract can be perhaps still linked to the question as under these two head of
jurisdiction the Court truly upholds the rule of law and thus eventually ensures the
uniform application of EU law. However, the second problem with the answer is that
the candidate simply repeats the two Treaty provisions that contain the two actions
with no comments and no attempt to put the data into context. No reference to
important judgments in this area such as Les Vertes (where the Court held that the
Treaty should have been considered as the constitutional charter of the EU) is
made. Thus the answer has to be considered a fail, not a really bad one, but still a
fail.
Question 2
‘The European Union is first and foremost a Community based on respect for
the rule of law of which the European Court of Justice is the guardian.’
Discuss with reference to the role played by the EU judicial institutions in
shaping the EU legal order.
2
General remarks
This is a rather broad question about the role of the Court of Justice. It is
undeniable that the contribution of the ECJ to the process of European integration
has been immense. Arguably the EU could be ‘classified’ as a common law system
based on judicial precedents.
use
C-8/74 Dassonville (Whisky in Belgium) [1974] ECR 837
Case C-413/99 Baumbast, R v Secretary of State for the Home Department [2002]
ECR I-7091
Case C-112/00 Eugen Schimdberger [2003] ECR I-5659.
Common errors
Discussing the structure of the Court.
Mentioning totally unrelated points such as standing requirements.
Discussing other EU institutions.
discuss the Court role by using the many examples its case law offer them: from the
seminal judgments such as Van Gend en Loos, Costa v Enel Francovich that
shaped the European Constitutional framework, to cases such as Dassonville that
started a process of market deregulation, to judgments that ‘created’ entire areas of
EU law such as citizenships or respect of human rights. Candidates should however
examine whether accusation of judicial activism can be justified. Very good answers
could discuss the reasons why the Court was able to assert such an active role
(lack of political will of EU institutions, alliance with national courts and so on).
Simply described the appointment criteria, composition and jurisdiction of the Court
of Justice.
Question 3
SuperSpecs is a UK Company which produces and sells products and
services in the field of optics. It wants to expand its activities in Germany and
thus its starts circulating advertising material offering its customers free
eyesight examinations in the shops they are going to open. However the
German Consumer Protection authorities order the withdrawal of these ads
as German law prohibits any commercial exploitation of medical services and
requires also that eye examinations have to be carried out by qualified
ophthalmologists only.
SuperSpecs seeks your advice on whether the German measures can be in
violation of EU law.
General remarks
Problem question on free movement and possible justification available to member
states.
use
Case C-275/92 Schindler [1994] ECR I-1039
C-120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979]
ECR 649
C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097
C-55/94 Gebhard v Milan Bar Council [1995] ECR I-4186
Case 570/07 Blanco Perez 1 June 2010.
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LA3024 EU law
Common errors
Not discussing which freedom should apply.
Using services provisions only.
Not discussing proportionality.
first decide which fundamental freedoms apply. Is it goods (as it will impede the free
flow of optical products)? Is it services (advertising restriction) or is it establishment
(deterrence from establishing a branch)? Good answers would refer to the centre of
gravity test (Schindler case). Candidates will then need to establish the possible
breach (access to market so depending on the choice of fundamental freedoms,
e.g. Mopeds case, Alpine Inv, Spanish Shopping Centres). The measure is anyway
clearly indistinctly applicable. If the question is dealt with under the free movement
of goods candidates should discuss Keck and cases such as De Agostini and
Gourmet. Once the possible restriction to access to the market is identified, a
justification probably based on public health should be discussed. Drawing
inspirations from the case law on this specific ground, candidates should assess the
proportionality of the measures, in particular whether the measure is suitable to
attain the aim of protecting public health and whether any less restrictive
alternatives are available.
did not discuss which freedom should apply and focused only on whether there is a
breach of the Treaty with no discussion of possible justifications.
Question 4
John, a British national, came to Spain five years ago. He worked for a bank
in Madrid until six months ago when he was convicted and sentenced to
twelve months in prison for possessing an illegal firearm on bank premises.
He is scheduled to be released next month, taking account of his good
behaviour. The Spanish authorities have stated that they will seek his
deportation to the United Kingdom immediately on his release.
Carla, John's wife, is a Spanish national. She claims that John’s deportation
will leave her without any financial support and will endanger her marriage. In
addition, she will also have difficulties looking after their son Francisco, who
has learning difficulties.
Advise John, Carla, and Francisco as to their rights under EU law.
General remarks
This was a problem question on the free movement of workers and citizenship. The
impact of the Charter of Fundamental Rights should also have been discussed.
use
Case C-482/01 Orphanopoulos [2004] ECR I-05257
Case C-413/99 Baumbast, R v Secretary of State for the Home Department [2002]
ECR I-7091
Case C-200/02 Kunqian Catherine Zhu [2004] ECR I-9925
Case C-34/09 Ruiz Zambrano, 8 March 2011
Directive 2004/38.
Common errors
Analysing only one of the individual situations.
Not discussing citizenship provisions.
4
Not discussing the right to family life or the use of the Charter of Fundamental
Rights.
discuss the question both under Treaty provisions of free movement of workers and
under Directive 2004/38. Member states are of course entitled to deport nationals
on specific grounds such a ‘serious threat to public security’. In this case candidates
should discuss first of all whether the conduct of John – a migrant worker – could be
considered as falling within the definition of serious threat to public security (see the
case law of the Court, such as Orphanopoulos) and whether the deportation is
proportionate. Then the position of his family members under the Directive that
extends workers’ protection to their families should be analysed. Good answers
would refer to the citizenship provisions (Articles 20–21) and the case law of the
Court in judgments such as Baumbast or Garcia Avello, and also to the Charter of
Fundamental Rights, in particular to the provisions dealing with family life and the
protection of children, as both provisions have been employed by the Court in many
judgments.
were exclusively based on the provisions of Directive 2004/38 with no reference to
the Treaty or the Charter.
Question 5
Biborova is a Latvian company producing vodka, well known in particular for
Bibotal, a line of ready-made vodka cocktails that it markets in 1 litre plastic
bottles. Bibotal is mainly destined to home consumption, and is not
distributed to pubs, bars or restaurants. In May 2014 Biborova decides to
enter the Polish market with Bibotal, but encounters several difficulties. First,
the Intoxicating Substances Law of 2003 provides that intoxicating
substances no matter how big the alcohol concentration can only be
marketed in glass bottles, for reasons of consumer protection and public
health. Biborova will thus incur high packaging costs in order to be able to
sell its products on the Polish market. Second, according to the
Advertisement Law of 2004, alcohol can only be advertised in pubs, bars and
restaurants, as well as in specialized gastronomic magazines.
Biborova fears that this will seriously diminish its chances to be known on
the Polish market. Biborova’s advisors think that the Intoxicating Substances
Law of 2003 and the Advertisement Law of 2004 are contrary to European law,
but come to you for a second opinion.
General remarks
This was a question on Article 34 TFEU (free movement of goods) and Article 36
(justifications) plus mandatory requirements.
use
C-8/74 Dassonville (Whisky in Belgium) [1974] ECR 837
C-120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979]
ECR 649
C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097
C-34,35 & 36/95 KO v De Agostini [1997] ECR I-3843
C-405/98 KO v Gourmet International Products [2001] ECR I-1795
C-322/01 Doc Morris [2003] ECR I-14887
Case C-110/05 Commission v Italy (Mopeds) [2009] ECR I-519
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LA3024 EU law
Common errors
Not discussing distinctly/indistinctly applicable measures.
Not assessing the Keck test.
Not discussing proportionality.
The measures are indistinctly applicable but can restrict access to the Polish
markets. Cases such as De Agostini and Gourmet are of course solid precedents
that can be used in this context as they concern similar national provisions. On the
issue of advertisement, candidates should discuss and probably dismiss the
application of the Keck test, especially in light of the cases mentioned above. The
question mainly revolves around whether public health grounds can be invoked
successfully. Drawing inspiration from the case law on this specific ground,
candidates should assess the proportionality of the measures, and in particular
whether they think the measure is suitable to attain the aim of protecting public
health and if any less restrictive alternatives are available. Recent case law of the
ECJ has been rather generous towards member states (Gourmet, Doc Morris) thus
it might be hard to show that the measures are disproportionate.
failed to identify the different measures and did not discuss the proportionality of the
public health defence.
Student extract
The facts clearly show that the Act applied equally to national and non-
national products, Thus there appears no discrimination. However Biborova
can argue according to the well-established Cassis de Dijon case law that
the Act posed a dual burden on the company. It not only had to comply with
the provisions in its member state but also with the rules lay down in the
host member state. More precisely Biborova can argue that the host
Member state must respect the principle of mutual recognition laid down in
Cassis De Dijon case. It can argue that it freely produced and marketed its
product in its own Member state and therefore the second one must take
this into consideration. However we need to consider Poland stance that
the rules laid down in the Act protect consumers and concern public health.
Any measure taken by the State must be proportionate to the objective to
be achieved. In this case the State can rely on the mandatory requirement
of consumer protection laid down again in Cassis de Dijon. Biborova can
argue following the case of Walter Rau that the state measure is
disproportionate as it requires that intoxicating substances can only be
marketed in glass bottles, whilst a requirement of labelling would have been
enough. Repackaging will also make it economically less attractive
Comment on extract
The extract shows a good understanding of the issues involved. The candidate
competently deals with the main issues with clarity and conciseness, presenting a
straightforward legal opinion for the ‘client’. The issues are: first, why the national
measure can be considered as violation of free movement of goods and on what
grounds such a conclusion can be made; second, to ‘pre-empt’ possible objections
or defences the member state in question might have. The extract does exactly
that; it identifies in the dual burden and in the violation of the principle of mutual
recognition the grounds for establishing a breach of Article 34 of the Treaty and
moves then to possible justifications. These arguments are backed up with
references to good case law. The answer then deserves a 2.1. Some further
references to more recent case law – especially in the area of labelling and
alcoholic products would have improved the answer.
6
Question 6
‘The question then is whether this Charter (the Charter of Fundamental Rights
of the European Union) is likely to be an effective instrument for the
furtherance of peoples’ rights in other countries, or for the protection of our
own rights in instances where they are not fully enforced or respected. The
answer, unfortunately, is quite clearly “No”. By its own account, the Charter
merely establishes the rights which already exist on the basis of the common
constitutional traditions and international obligations of the member states,
listing the European Union’s own treaties and legal precedents as well as the
European Convention for the Protection of Human Rights and Fundamental
Freedoms. The language of the Charter is also often vague to the point of
meaninglessness.’
Discuss.
use.
Case C-438/05 Viking Line Abp [2007] ECR I-10779
C-236/09 Association belge des Consommateurs Test-Achats ASBL v Conseil des
ministres, 1 March 2011
C-544/10 Deutsches Weintor, 6 June 2012
C-617/10 Fransson, 26 February 2013.
Common errors
Not discussing the Charter.
Not discussing recent case law.
Not positioning the Charter in the context of EU law.
This question deals with the relevance of the Charter of Fundamental Rights:
candidates should discuss the legal status of the Charter and in particular whether
the fact that it is now legally binding has had any impact (Article 51). It is clear that
the Court is now using the Charter both as benchmark for the legality of EU action
(Test Achat) but also as an instrument to review member states’ action when this
falls within the scope of the Treaty (Fransson). Thus a discussion of the importance
of respect of fundamental rights in the EU should be included. In particular the
relationship – perhaps very controversial – of the Charter with other instruments of
human rights protection such as the ECHR or national constitutions should also be
discussed.
An answer dealing with the EU and politics or discussing only protection of
fundamental rights as a general principle of EU law with no reference to the
Charter.
Question 7
‘To accept an endless variation on the application of the proportionality test
endangers the uniform application of EU law as this test is becoming too
unpredictable. The Court should at least make explicit the criteria it uses to
determine what kind of scrutiny it employs to determine the lawfulness or
unlawfulness of Members States’ actions.’
Discuss.
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LA3024 EU law
use
Case C-112/00 Eugen Schimdberger [2003] ECR I-5659
Case C-36/02 Omega [2004] ECR I-9609.
Common errors
Not answering the question asked.
Discussing the organisation of the Court.
Arguably this is one of the key principles that allowed the Court to balance the need
to further market integration with the preservation of public aims. Candidates should
first discuss how the test applies (suitability and less restrictive alternative)
highlighting the intensity of judicial scrutiny and how the Court used proportionality
as a way of laying down common standards (see for instance the case law on
labelling). They should then discuss whether the Court has always been consistent
in its application. Cases such as Schimdberger, Omega or the gambling case law
could offer good examples to show that in reality the test can be subject to different
variations depending on the grounds invoked by member states.
failed to identify proportionality and did not use examples to discuss the issue.
Question 8
‘Recent judgments in the “post-Zambrano” phase clearly show that the Court
is revisiting its case law on the application of EU citizenship rights.’
Discuss.
General remarks
Question on the very recent case law on the application of Articles 20 and 21.
use
Case C-127/08 Metock [2008] ECR I-6241
Case C-34/09 Zambrano, 8 March 2011
Case C-434/09 McCarthy, 5 May 2011
Case C-256/11 Dereci, 15 November 2011.
Common errors
Not discussing post-Zambrano case law.
Not critically assessing ECJ case law.
analyse the turning point cases such as Grezclscyk and Baumbast and Zambrano
where the Court declared EU citizenship as the fundamental status of individuals. It
also held that citizenship rights are enforceable regardless of the exercise of an
economic activity. However, the question required in particular an analysis of the
post-Zambrano case law. The McCarthy and Dereci judgments mark a decisive
change in the direction of the case law as the Court nearly overruled the very
generous approach taken in Zambrano (genuine enjoyment of citizenship rights).
Candidates should discuss if this is so because of the specific circumstances of the
cases (all dealing with third countries nationals) or where this case law can have an
impact on the general notion of citizenship.
Merely discussed old case law or just Zambrano with no critical assessment of
recent developments.

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Examiners’ report 2014

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LA3024 EU law – Zone B

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