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ANSWER THREE QUESTIONS ONLY 1. EITHER ‘ The UK-EU Trade and Cooperation Agreement (TCA) has been described in the Council’s Decision on its signature and provisional application as of a ‘unique and exceptional nature’. Viewed against the previous relationship between the UK and the EU, what does the above mean? In your answer, examine the general scheme and content of the Agreement. OR ‘Article 50 TEU provides a legal mechanism that has proved to be both sensible and effective. Any problems that arose in the context of the withdrawal of the UK from the EU are due to political, rather than legal, factors’. Discuss.
2. ‘TherulesonstandinginArticle263TFEUaimtolimitthenumbe rofactionsbrought by non-privileged applicants. However, there is a fine line between meeting this objective whilst ensuring effective judicial protection. The drafters of the Treaties and the case-law of the Court of Justice of the European Union ensure that this line is observed’. **Discuss.
- ‘Whilst conditional, acceptance of the principle of** supremacy by domestic courts has been without major upheavals. However, the symbiotic relationship between the European Court of Justice and domestic courts should not be taken for granted’. Discuss with reference to the case-law of German courts **and the courts of another Member State.
- The European Union has passed Directive 2018/456 EU of** the Council and Parliament (‘the Directive’) on the protection and facilitation of financial transactions on-line (fictitious). The Preamble states that, ‘whereas consumers are reluctant to use internet commerce, this Directive is
**aimed at providing consumers with a high level of financial security in order to promote the market in e- commerce.’ The Directive must be implemented by 1 June
Article 2 states that ‘Member States shall ensure that a compensation fund be established for consumers who suffer losses due to internet fraud arising from the payment for merchandise or services on-line.’ Article 3 states that ‘no such claim shall be payable if the consumer were to blame for the loss incurred.’** Page 2 of 5 Article 4 requires that any credit card merchant or bank facilitating online transactions ‘shall have in place security measures to provide a high level of protection for consumers against fraud, particularly relating to any new and large transactions.’ The government of Germany introduced the ‘Internet Financial Protection Act 2020’ (fictitious) to implement the Directive. Under that Act, the compensation fund for consumers (the Safer Banking Scheme ‘SBS’) is the responsibility of the banking industry to finance and administer. The Act also states that consumers may not claim from the SBS if they were negligent when making their payment. The Act contained no other relevant new laws. The Germany Bank Act 1950 requires all banks to ‘protect customer deposits by requiring identification to be produced’ when withdrawals are made. Gunther paid 10,000 euros for a diamond-encrusted gold watch online from Swanky Watch. When paying, he did not notice that the Swanky Watch website had been hacked by a group calling itself ‘The Black Friday Brigade’ who were sworn enemies of ‘capitalist excess’. The group had substituted its own bank details for those of Swanky Watch. Gunther had never previously bought through Swanky Watch and needed to set up a new payee through Greenhill, his bank. Greenhill did not check the payee details and authorized the payment. The bank is partly-owned by the German government after it recently had to be bailed out.
- Followingherrejectionforthejob,thesamemonth,sheappliedforag rantfrom the Milan local authority to take a short course that would lead to her taking the certificate of fluency that she had been told she needed. The grant was refused on the basis that she was not residing in Italy under European Union law. The grant is paid to persons who have been lawfully resident in Italy ‘under national or European law’ for two years.
- In July 2019, Angela was contacted on the phone by Juanita, a Mexican citizen with whom Angela had been in a relationship in the distant past and whom she had not seen for over three years. They realized how much they had missed one another and agreed to try and rekindle their relationship. Juanita travelled to Milan in July 2019, moved in with Angela and started looking for a job. Her application to the Milan Tourist Office as a guide was rejected because her visa did not permit her to work.
- Angela was frustrated and angry by the difficulty that she and Juanita had had finding a job. In August 2019, she wrote an article in a daily Italian newspaper. The article was entitled ‘Why don’t you like us?’ and accused the Italian state of insularity and distrust of foreigners. A week later she received a letter from the Italian Ministry of the Interior informing her that she was expelled from Italy with immediate effect. This decision had been taken due to her article which was viewed by the authorities as hostile and inflammatory. Examine the legality under EU law of the measures adopted by the Italian authorities under (a), (b), (c) and (d) above. 6. DanielrunsacomicbookcompanycalledActionHeroesfromalittlestorei nHelsinki (Finland). He lawfully sells a successful range of comics in Finland some of which cover topical issues such as contemporary politics, as well as featuring graphic war scenes.
Article 3 of Council Directive 2018/1/EU on the regulation of news and other print media (fictitious) states that ‘the country of origin must ensure that there are sufficient warnings on products which may be harmful towards the welfare of children.’ Daniel wishes to develop his business in the rest of Europe. In doing so, he faces a number of hurdles. (a) In Italy, it is illegal to sell comics by internet mail-order because the government wishes to protect small retail newsagents which are a focal-point for community news. Daniel does not have a wholesale distributor in Italy at present and is not sure his volumes would make it economic to hire one. Page 4 of 5
- (b) In Spain, once they have read them, consumers must recycle comics by placing them in large recycling stations that are located in main towns and cities. There is a small fine imposed on those not complying.
- (c) Comic books in Hungary are subject to a tax rate of 50% whilst newspapers are not taxed. In Hungary, most comics are imported whilst 90% of newspapers sold in the country are published by Hungarian publishers. The government argues that the tax code is designed to promote public information and debate while any revenue collected is used to promote literacy amongst Hungarian children.
- (d) In Germany, to implement Directive 2018/1, an independent body (CLEANCOM) has been set up with industry support ‘to protect consumers from harmful, misleading and offensive material in comics’. German comics publishers pay an annual fee of €1000 to CLEANCOM and their publications can display the logo ‘Cleancom’. Upon importation into Germany, Daniel must have his comics inspected by CLEANCOM. He must also pay a fee of 100 euros per consignment to customs officials towards CLEANCOM’s inspection costs. Daniel must attach a warning sticker to comics containing material breaching CLEANCOM standards. The German government says that it is happy with this system
Discuss in relation to the preliminary reference procedure under Article 267 TFEU.
- In 2016, the EU adopted the (fictitious) Directive on consumer protection. Article 20 of the Directive provides as follows: ‘All horse breeders must be registered with the competent authority of the Member State’. Article 21 of the Directive provides as follows: ‘Registered breeders shall provide prospective purchasers of horses with a certificate issued by a qualified veterinary surgeon setting out detailed information about the horse’s state of health as well as a full medical history of the horse and its parents’. The deadline for implementation of the Directive expired on 31 December 2018. Ireland implemented the Directive in July 2018 by adopting the (fictitious) Consumer Protection Act (2018). Section 20 of the Act provides as follows: ‘All sales of horses shall be accompanied by a certificate issued by a
veterinary surgeon which shall outline the state of health of the animal’. On 1 February 2019, Equus, a Dublin horse riding school, bought Beauty, a horse, for 10,000 euros from Equestrian, a registered horse breeder. The latter produced a certificate from a veterinary surgeon stating that ‘Beauty is healthy’. On 1 May 2019, Beauty was diagnosed with a serious heart condition. She was operated on but died on 3 May 2019. Equus subsequently found out that both Beauty’s parents had also died of heart disease. May Equus bring an action against Ireland for damages for a violation of EU law?
- In 2016, the EU adopted the (fictitious) Doorstep Selling Directive (2016). Article 1 of the Directive provides as follows: ‘This Directive aims to protect consumers who purchase products away from the business premises’. Article 12 of the Directive provides
for financial reasons, cancels his enrolment by writing to the University of Bologna. The latter refuses to accept Mario’s right to cancel, arguing that the condition set out in Section 12 of the Act is not met. While she is waiting for her train in Rome’s Termini Station, Sylvana is approached by a representative of German Easy, a local private language school. She is convinced to sign up for a distance learning course in German. Two days later, and before the course has started, she changes her mind and cancels her enrolment by writing to German Easy. The latter does not accept the cancellation and argues that the condition set out in Section 12 of the Act is not met. May Mario and Sylvana rely on EU law in order to enforce before Italian courts their rights under the Directive against the University of Bologna and German Easy respectively?
Section B Candidates must answer at least one question from this section.
- ‘The judgment in Case 120/78 Cassis de Dijon leads inexorably to deregulation and a race to the bottom’. Do you agree with the above statement? Discuss with reference to specific legal principles and case law.
- Recent reports indicate that drinking large quantities of alcohol may be detrimental to health. Specific concerns have been raised about the appeal of alcohol to university students. In the light of the above, the German Parliament passed the (fictitious) Alcohol Act 2018. It provides for the following measures: (a) All drinks containing more than 5% alcohol imported into Germany are subject to a charge of 50 pence when they cross the
HAPPINNESS! is a Portugal-based company producing and marketing beer containing 6% alcohol. It wishes to penetrate the German market but is concerned about the potential impact of the Alcohol Act 2018 on its sales. HAPPINNESS! has instructed you to advise on the compatibility of the above measures (a), (b) (c) and (d) with EU law.
- Margarita is a Spanish qualified ballet teacher. She has lost her job in Madrid and, given her love for French culture and her working knowledge of French, moves to Paris. She has been living there for four months with her Mexican partner, Frida, and their 16-year old son, Juan. Their elder daughter, Flora, is a 22-year-old Spanish citizen and a qualified language teacher. Margarita is working part-time as a ballet teacher for the private English-speaking Paris School. Her income is supplemented by that of her partner who has sufficient
property to support their family. Margarita applies for a job as a ballet instructor at the Paris State Ballet. Her application is turned down on two grounds: (i) employment in the French public service is reserved to French nationals; (ii) Margarita does not possess the certificate of proficiency in French required for the admission of non-native speakers to that competition. The certificate is awarded by the French Institute on successful completion of the language test in the only authorised examination centre in central Paris. Juan, who is still going to school, has joined a German anti-globalisation group. He joins other members of the group in a rally through central Paris during which riots break out outside the Ministry of International Trade. During the riots, parked cars and litter bins are set on fire. Juan is arrested, convicted of disturbing public peace and is given a suspended sentence. The authorities, then, require that he be expelled from France, as he is considered a threat to public policy.
- ‘It is clear that the EU does not have the power to intervene in all cases where the market does not function optimally, since this would be tantamount to providing the Union with a general legislative power. However, the Union can legislate to overcome the geographic fragmentation of the EU market.’ Do you agree with this statement? Discuss with reference to the case law of the European Court of Justice on Article 114 TFEU.
- Rudy is an Estonian citizen who worked in Tallinn (capital of Estonia) for ten years as a qualified plumber. He went to live in Nice, France in 2017 to enjoy his hobby of sail-boarding. On his arrival in Nice, he did part-time plumbing jobs with a builder, Claude, who was also a fellow sailboarder. Claude let him stay in his workshop. He worked when he was needed and his hours varied from 10 to 20 hours per week. He mainly lived off his savings from Estonia. a. In February 2019, Rudy heard that there had been a spate of incidents in Nice in which Eastern European plumbers had stolen items from houses in which they were working. Soon afterwards, he was stopped by French immigration officials who questioned him about his job. They said he had never registered his presence in France as required by French law and claimed he was not exercising any EU rights. Finally, he was declared a threat to public security. They issued an order
expelling him from France with immediate effect. Rudy remained in France whilst he sought legal advice and began to look for alternative work. b. Six months later, his savings were exhausted and he applied for an income top-up allowance to cover his basic needs. He also applied for a training allowance which was offered by the French authorities and covered the tuition fees of jobseekers who wished to retrain and qualify as electricians. Both his applications were rejected. It was claimed that Rudy did not qualify for any special treatment merely because he was an EU citizen. In any event, it was claimed that he had to have lived in France for ten years to secure social assistance and any training allowance. c. Nadia is Rudy’s partner. She is a national of Russia who met Rudy in France in 2017. She was a student but her visa had expired in 2016. She lived with Rudy at Claude’s workshop but was told by the immigration service that she should leave because she was illegally in the country. In desperation, Rudy and Nadia went back to live in Estonia in March 2020. Rudy then suffered a serious car accident and now relies on Nadia for his daily needs. Nadia, however, has now been ordered to leave Estonia by the Estonian authorities because she has ‘no right to be in the country’. Rudy wrote to the authorities saying that he could not manage without Nadia. Advise Rudy and Nadia on any breaches of EU law that may have occurred by the French authorities under (a) and (b) and the Estonian authorities under (c).
- Directive 123/2017 (fictitious) (‘the Directive) on working conditions was passed in June 2017. It requires in Article 4 that Member States introduce legislation or other legal measures to ensure that ‘all workers have rest breaks totalling at least 45 minutes within any 8-hour shift’. Under Article 6, the Directive also requires Member States to provide employees engaged in heavy-lifting with training to protect them against back-injury. The deadline for implementation of the Directive is 1st^ June 2019. The United Kingdom implemented the Directive on 31st May 2019 through the Workplace Regulations 2018 (‘the Regulations’). These state in Art 4 that ‘rest breaks may be taken as a 45-minute meal break.’ There is no reference in the Regulations to the requirement laid down in Article 6 of the Directive. This said,
Association ('the Association'), a public body entrusted with the regulation of the production of and trade in pharmaceuticals. The Association undertakes research, among other things, on the safety of CBD and its potential benefits. b) All non-prescription drugs marketed in Belgium must include a large warning on their packaging about the potential harm from their over-use. CBD-based products must comply with this provision. There is an EU Directive 123/2005 regulating non-prescription drugs (fictitious) which lists certain drugs that must have warnings on their packaging. CBD-based products are not presently on that list. c) Advertising of non-prescription drugs, including CBD-based products, is prohibited on radio, TV, the internet, in print media and on outdoor posters. Advertising is only permitted in pharmacies. Companies had been able to advertise CBD-products freely before the adoption of the Act and had built up a sizeable following through this. d) Any CBD-based product is subject to a tax of 50% upon the sale price. Beer is subject to tax of only 10%. Wellness argues that CBD is less harmful than beer and should not be penalized by the tax system. The government argues that it has tax autonomy and cannot be challenged. Wellness wishes to enter the Belgian market and seeks your advice on the legality of the above measures under EU law.
- ‘Article 50 TEU has proved wholly inadequate to ensure an orderly process of withdrawal from the European Union’. Discuss.
- ‘It is a myth that the preliminary reference procedure laid down in Article 267 TFEU establishes a procedure of cooperation between the European Court of Justice and domestic courts. In fact, the procedure enhances the former as a superior court in the European Union and renders the latter subservient courts’. Discuss with reference to case-law.
OR ‘‘The amendments to Article 263 TFEU introduced by the Lisbon Treaty address the criticism against the notorious Plaumann judgment: the standing rules for private applicants now respect the rule of law sufficiently whilst protecting truly legislative acts from excessive judicial review.’ Discuss.
- ‘It is a testament to the dynamism and pragmatism that characterise the European Union legal order that principle of supremacy has not been tested seriously in practice even though it may mean different things to different courts’. Discuss with reference to the case-law of the European Court of Justice and that of courts in the United Kingdom Resit examination mark scheme
- a. Rudy: assess whether he was exercising EU law rights / worker (Art 45; Levin definition and Laurie Blum criteria; quid pro quo work per Steymann) / Right of residence under Art 7(1)(a) CRD / Art. 8(1) CRD re: requirement to register and Art 14)(4)(a) CRD re: expulsion / Threat to public security: Art 27 CRD (his own personal conduct , genuine, present and sufficiently serious threat affecting one of the fundamental interests of society) and Art 28(1) CRD. b. Income top-up allowance: equal treatment (Art 18 TFEU, 45 TFEU, 24(1) CRD but, as a job seeker, 24(2) CRD / training allowance: 24(2) CRD distinguishing it from social assistance, as aiming to facilitating access to employment market (Vatsouras) / French authorities discretion to impose conditions aiming to establish integration in the domestic labour market but requirement of proportionality (Vatsouras, Collis, D’Hoop) - 10 yr requirement too exclusive c. Nadia: does she have any EU rights in the first place? Russian citizen, so possibility only of derived rights / not a family member (Art 2(2) CRD) / possibility of partner in a durable relationship under Art 3(2) CRD? Discuss facts: date of meeting, relationship
