EU Law Exam 2019 PDF

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Examiners’ reports 2019

Examiners’ reports 2019 LA2024 EU law – Zone A Introduction The examination papers for Zones A and B were based on the standard format consisting of a mix of essays questions and problems questions. The content reflected the syllabus of the module guide, the recommended readings and on the EU law Pre-exam updates. Examiners were generally rather satisfied with the results not only in terms of pass/fail rate but in terms of marks as well. There were unfortunately some bad fails and some of the papers were not completed. It is, however, important to note that consistently with the previous year, the clear majority of papers – even the weakest one – at least showed some understanding of the topics. Answers completely unrelated to the questions disappeared. There is a marked tendency to answer those questions mostly related to individual rights (such as those on citizenship and on the use of human rights). Some of the intricacies of EU law (such as direct effect) are – despite being the core of the course – for some students still problematic. We would also like to reiterate an observation we made in all previous years: time management. Many candidates have struggled to answer the four questions evenly. Quite clearly, some students spent too much time answering two or three questions and had to resort to either excessively short answers or, in some cases, just a skeleton answer. It should be reiterated that the assessment of the exam is on four answers and students should always be encouraged to learn how to manage time effectively, devoting equal time and attention to each of the questions. Note that errors in the extracts below were present in the originals.

Comments on specific questions Question 1 ‘The function of the proportionality principle is to secure legitimization for judicial decisions. The fact that the Court of Justice of the European Union is interpreting the proportionality principle in so many ways undermines this function.’ Discuss in relation to at least TWO economic freedoms. General remarks General principles are formal sources of EU law and they have a constitutional rank. Arguably the proportionality principle is the most significant. Law cases, reports and other references the examiners would expect you to use Strict proportionality: Rau, Cassis de Dijon, Beer Purity Act, Peerbooms, Watts, Van Duyn, Orphanopolous .

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Soft proportionality: Dynamic Medien, Omega, Bwin. Role of national courts: Scotch Whisky Association. Common errors Failure to understand the function of an EU general principle. Discussion limited to the enumeration of possible derogations from free movement. A good answer to this question would… briefly discuss the status of the EU general principles. Then the meaning of the principle and the test used by the Court (suitability – less restrictive alternative and proportionality strictu sensu). It should discuss how the Court used it an instrument of integration and market regulation that is to propose specific standards that MS had to apply (see for instance the labelling case law – Rau). A good answer should also analyse the recent case law of the Court. In the last few years the Court has been rather soft with MS derogations – a soft proportionality approach – relying on the national conception of certain possible justifications and deferring to the national scale of values (see for instance Omega and the gambling case law ). Recent important cases such as Scotch Whisky Association on the role of national courts in applying the test should be included. Students need to rely on case law relevant to at least two economic freedoms as clearly indicated by the question. Poor answers to this question… limited analysis to free movement of goods and were confused with the question on whether mandatory requirements can be sued to justify distinctly applicable measures. Question 2 Toni wants to import DVDs of cartoon programmes produced in Finland into Bulgaria. However, a first consignment of DVDs is blocked at the border as their cover indicated ‘suitable for children of any age’ without having been previously assessed by the Bulgarian Children Cartoons Authority. Toni is very surprised as all DVDs had been previously cleared by the Finnish audiovisual authorities. However, he is told that the Bulgarian Children Cartoons Authority is a specific body dealing with children’s cartoons in order to ensure full protection of young people. According to the Bulgarian Constitution, child protection is one of the most important values and principles of law. Furthermore, Toni finds out children’s cartoons cannot be sold or rented in shops for the general public. This is in accordance with the Government policy to reduce screen time for children. Bulgarian law on screen time for children states: ‘Cartoons should, in principle, be broadcast only in cinemas. ’ Toni instructs you to determine whether EU law can be of help to: a) challenge the measure blocking his DVDs at the border; and b) sell his DVDs in shops or to rental facilities. Advise Toni. General remarks A question about free movement of goods, still the ‘core’ of the internal market. Law cases, reports and other references the examiners would expect you to use Dassonville (whisky in Belgium), Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) Keck and Mithouard, Italian Trailers, Scotch Whisky Association.

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Examiners’ reports 2019

Common errors Keck considered as a justification, no discussion on distinctly–indistinctly applicable measures. No discussion on proportionality. A good answer to this question would… identify that the first measure is a MEQR within the meaning of Article 34. The second measure will be identified as a selling arrangement but most probably failing the Keck test as per Gourmet or de Agostini – and constituting a market access restriction as per Italian Trailers. Students failing to mention Keck but who employ a market-access test as per Italian Trailers would not be penalised. They will then engage with justifications – the measures are not discriminatory, mandatory requirements can be employed (here the reason given is protection of young people). Students will then go through the two limbs of the proportionality test, suitability and necessity, while finding that, under necessity, potentially other less restrictive means could have been employed by Bulgaria to achieve the goals. Better students will note that, under cases such as Dynamic Medien, the Court applies a soft proportionality test for grounds of child protection but require authorisation processes to follow good governance principles. Poor answers to this question… did not engage with possible national justifications. Question 3 Marcel is a French national who moved to Germany in 2005 with his mother, following the divorce of his parents in 2004. He has since completed high school education, and married Elsa, a German citizen. Marcel and Elsa now have two minor children. Marcel has never worked, and in June 2018 he was arrested for drug trafficking. A deportation order was issued against him. Marcel would like to know if he can rely on EU citizenship law in order to fight deportation. Advise Marcel. General remarks A question mainly on EU citizenship but with Charter elements. Law cases, reports and other references the examiners would expect you to us Directive 2004/38, Tsakouridis, Orfanopoulous, Charter of EU rights. Common errors Not referring to relevant issues such as direct effect, nor to case law. A good answer to this question would… discuss the concept of EU citizenship and the rights protected by the Treaty and Directive 2004/38. It should note that Marcel is entitled to protection against expulsion under Article 28(3) as he resided for more than 10 years in Germany (Tsakouridis – although also other less specific cases can be discussed, such as Orfanopoulous, etc.). While drug trafficking can be considered as an imperative ground of public security, the authorities cannot issue ‘automatic’ expulsion orders and students will need to discuss the proportionality of the measure. This will need to take into consideration Marcel’s personal situation, including the degree of integration in the Member State and an assessment of whether the Charter of Fundamental Rights is observed (Marcel has minor children). Poor answers to this question… merely discussed the free movement of workers.

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Question 4 ‘The EU Charter of Fundamental Rights cannot fully protect European citizens. The EU should accede to the European Convention of Human Rights.’ Discuss. General remarks Question on the relevance of human rights protection in EU law. Law cases, reports and other references the examiners would expect you to use Google Spain SL, Safe Harbour 2015, Fransson, Opinion 1/1/3 on ECHR accession. Common errors Replies on supremacy, no reference to recent case law. A good answer to this question would… appreciate that the question requires an assessment of the impact of the Charter on EU law. Students need to touch on fundamental rights case law as developed by the Court before the Charter of Fundamental Rights. They will then discuss the status of the Charter after the Lisbon Treaty and its use by the European Court of Justice. In particular, they should discuss how the ECJ uses the rights protected in the Charter as a benchmark of legality for EU law (Google Spain, Safe Harbour). They can also discuss the ambiguous case law on the application of the Charter to national law (Fransson, Siragusa). Better students will note the reassertion of supremacy of EU law vis-à-vis national human rights standards in Melloni. Finally, a discussion of Opinion 1/13 on accession to the ECHR should also be included, as well as to the status of the ECHR in EU law. Poor answers to this question… did not discuss post-Charter case law. Student extract [The candidate starts with:] In order to introduce our discussion one could quote AG Kokott, she argued that in a contemporary multi-level system of constitutionalism the fact that EU law chose to use human rights with a lower intensity was because a much higher level of protection would have created tensions and difficulties. [The student first discusses the protection of human rights as a general principle of EU law and then analyses the Charter. The student then moves to prove that instead the EU fully protects human rights.] On the other side, we need to address the impact on Member State legislation. We firstly have the Fransonn case of 2013 where basically a wide test was devised as to know whether individuals such as an EU citizen could rely or not on the Charter. The Court states first: that the Member State legislation concerned rights of the individual and secondly that if fell within EU law (thus the Charter was applicable). This wide principle permitted to link lot of MS legislations to the Charter as to protect European citizens. (This test is confirmed in recent cases) such as Bauer and Bronner [sic] (2018), where EU citizens were protected under Art 32 of the Charter. In this case… [Discussion of the case follows.] Comments on extract Essay questions always benefit from the use of a variety of sources, in particular literature or as in this case an Opinion of an Advocate General of the Court. The

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Examiners’ reports 2019

candidate here is very smart as he/she uses a quote that later he/she starts dismantling. It is a very good technique as it makes the essay interesting and engaging. The second passage also reveals that the student is on top of the material as it identifies one of the sticky points about the Charter: its impact on national law (thus this link with the opening quote) the key case is identified (Fransson) a discussed. Plus an extremely recent case is quoted a sign of the importance of the Charter. Thus a perfect mix of sources – proper identification of the issues – personal contribution to the answer. To make it perfect, the writing could have been just a bit more accurate (‘a lot of legislation’) and a mention of Article 51 was probably necessary. Nonetheless, a good example of how to deal with an essay question. Question 5 Fictitious Directive 1/2018 on equality provides: Article 8 Member States shall take the necessary measures to ensure that workers who are parents of children with disabilities are entitled to carer’s leave of at least ten days per year. Lithuania has not adopted the necessary implementing legislation by the transposition deadline and does not provide for any special arrangements for parents of disabled children. Angela works for a private company, Zigurauskas, and has a one-year- old daughter. Julia is a lecturer at the (fictitious) Free University of Lithuania and has a one-year-old son. The University is largely autonomous but is publicly funded for about 80 per cent of its budget. It has degree-awarding powers in accordance with Lithuanian legislation. Both children have just been diagnosed with severe disabilities. Angela is refused any break from work following this news, and Julia is given a short break of only five working days. The employers argue that both women have had generous maternity leave and are not entitled to further leave according to labour law. Both Angela and Julia learn about the Directive. They seek your advice on whether they could in any way rely on its provisions. Advise Angela and Julia. General remarks A practical case about direct effect. Law cases, reports and other references the examiners would expect you to use Van Gend en Loos v Nederlandse Administratie der Belastingen, Faccini Dori, Marleasing, British Gas, Farrell, Francovich, Factortame. Common errors A general discussion on direct effect with no reference to the facts of the case. A good answer to this question would… assess whether the Directive fulfils the conditions for direct effect and then move to assess the cases of Angela and Julia. Angela cannot rely on the Directive against Zigurauskas, as this is a private company (Faccini Dori). Angela will have to rely on one of the remedies developed by the case law to counteract the lack of horizontal effect of directives: namely the principle of consistent interpretation (assess the application of Marleasing) or, failing that, Member States liability (Francovich/Factortame). Julia might be able to rely on the Directive against the Free University of Lithuania provided she can prove that this is an emanation of the

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state (Foster v British Gas, Farrell). Failing that, she will have to rely on the same remedies as Angela. Poor answers to this question… confused state liability and indirect effect or provided a too broad discussion on direct effect. Question 6 ‘The principle of direct effect led naturally to the recognition of the primacy of EU law. If EU law was to be applied by the national courts, it had to be applied across the EU as a whole. There was therefore no room for the idea that the application of EU law might conflict in some Member States with national law. EU law must necessarily prevail over national law. The principle of primacy is inherent in the very idea of an EU based on the rule of law.’ Discuss. Law cases, reports and other references the examiners would expect you to use Van Gend en Loos, Simmenthal, Costa v ENEL, Taricco, Miller (UK CS). Common errors Too much discussion on one of the doctrines only. A good answer to this question would… discuss the importance of these two fundamental doctrines. As clarified by the CJEU in Van Gend en Loos and Costa, effective application of EU law and individual rights protection are two sides of the same coin: individuals are charged with the task of enforcing EU rights. Students will then focus on foundational supremacy EU case law, such as Costa v ENEL, Internationale Handelsgesellschaft and Simmenthal, and give some examples of national reactions to the principle, with Germany (Solange) and the UK (Factortame, Miller) being discussed in the online lecture. Ambitious students might go into more sophisticated case law such as Taricco, but students would not be penalised for not mentioning it. Finally, better answers will engage critically with the material and assess to what extent uniform application of EU law is ensured or desirable. Poor answers to this question… merely listed the direct effect of EU provisions. Question 7 Data Solutions is an Irish company offering data storage services. Their file hosting service, ShareBox, is becoming more popular given its userfriendliness and low price. Data Solutions have their servers in Ireland, the UK, and Spain, but also need to set up a server in Poland. While their market studies reveal that setting up a server in Poland is the right choice, Polish legislation imposes a significant hurdle. The (fictitious) Pristine Internet Act does not allow the ‘display, transmission, or storage of images that would contain Nazi or Soviet symbols’. Companies that infringe these rules risk hefty fines of €1,000,000. This is in order to protect the integrity of the Polish State and the Polish Constitution. Data Solutions considers it would be very difficult for them to know whether their customers store this type of material in ShareBox. Advise Data Solutions. General remarks This is a free movement of services question.

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Examiners’ reports 2019

Law cases, reports and other references the examiners would expect you to use Alpine Investments, Omega, Bwin. Common errors Wrong identification of relevant freedom. A good answer to this question would… recognise that this is a question that might touch both on free movement of services and freedom of establishment, with good students noting that recent case law of the Court of Justice no longer emphasise the distinction between the two freedoms but rather on the existence of a restriction to free movement (Commission v Italy – car insurance). However, a straight focus on services is still a good answer. Students should note that the indistinctly applicable Pristine Internet Act constitutes a restriction to free movement of services, as it would make it more difficult for a company such as Data Solutions to set up a server in Poland (Alpine Investments ). They then assess justifications, potentially on grounds of public policy. They would analyse the proportionality of the measure (suitability and necessity) and note that the Court might be very likely to leave a large margin of manoeuvre to the Member State in such situations (Omega). Still the question remains whether soft proportionality can still be applied in cases of such hefty fines, of €1,000,000 and a good answer could question whether the procedures followed when establishing the fine respect good governance principles. Poor answers to this question… did not discuss proportionality. Student extract [The candidate has argued that the national measure in question is a restriction on the free movement of services. Then he/she acknowledges that Poland can rely on a series of justifications – under Article 52 – public policy. Then student moves on to:] The measure must however be proportionate [ Sky Italia, Da Costa]. To be proportionate the measure must be suitable and there must be necessity. The prohibition of these (the Nazi) symbols seems to be suitable to maintain social peace in the society. The issue here is whether there is necessity; this means that it must be evaluated whether there are any other light options. A fine of 1 million seems quite high when taking into account how hard is for Data Solutions to control the content on their [platforms]. Comments on extract The extract clearly shows a good understanding of the issues involved. The candidate competently deals with the main issues each in its turn with clarity and conciseness presenting a straightforward legal opinion for the ‘client’. As for any internal market question (be it goods/services/capital and up to a certain extent workers) the issues to be identified are: first, why the national measure can be considered as violation of free movement and on what grounds such a conclusion can be made; secondly, to ‘pre-empt’ possible objections or defence the Member State in question might ...