Övningstentor 2017, frågor och svar PDF

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Question 6: Dictatum (‘D’) is a chemical commonly used in eye creams. D is also commonly used by producers of eye creams in the European Union (“EU”). Since 2013, some research institutions located in the US have been publishing reports stating that excessive amount of D may probably cause skin cancer. According to the reports, excessive amount of D is determined to be 60 %. Reacting upon those reports, the Council and the European Parliament (“EP”) adopts a regulation (‘Regulation’) according to Article 294 TFEU. The legal basis is Article 168 TFEU. The Regulation is about production and marketing conditions of eye creams. In June 2014, the Regulation enters into force. According to the Article of 1 of the Regulation: “Eye creams cannot contain more than 50 % of D”. According to the Article of 2 of the Regulation: “Eye creams which contain D must state exact components of those products on the labelling”. Company A (“A”) is a private company situated in Italy. A is the leading eye cream producer in the EU. Its eye creams are called “E” and they are the best sellers in the EU. E contains 51 % of D and some other components which have been created as a result of expensive research and innovation conducted by the scientists working for A. Therefore, those components are kept secret by A. The scientists who work for A claim that combination of 51 % of D and other secret components make E the best eye cream in the EU. A does not produce any other product. Following the entry into force of the Regulation, A is forced to reduce the amount of D and to release all of the components of E on the labelling. A believes that A can go bankrupt due to this Regulation. Accordingly, A brings an annulment action against this Regulation before the European Court in the beginning of July 2014. (a)

Can Company A be heard by the General Court? Why?

(b)

What can be the grounds for annulment of this Regulation? Why?

(c)

Is it possible for the General Court to grant interim relief? If yes, how?

(d)

Can Company A claim damages from the EU?

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Question 8: The Council and the European Parliament adopted Directive XX (‘Directive’) about the wages of workers on 02 January 2012. According to Article 1 of the Directive: ‘Workers are individuals working under an employment relationship in return for remuneration’. According to the Article 2 of the Directive: ‘Member states must guarantee that workers who are working on the evening shift are paid more than workers working on the day shift. While calculating the increase, wages of the workers who are doing the same job, but working on the evening shift and the day shift will be considered. The amount of increase must compensate the difficulties arising from working at night and must encourage evening shifts’. The implementation period expired 02 January 2013. Italy implemented the directive. According to the implementing national rule, there will be 1 (one) % increase in the wages of workers working on the evening shift. Ms. A (‘A’) is working as a taxi driver on the evening shift for a private Company Taxi Mitaly (‘TM’). In the opinion of Ms. A, 1 % increase is too low and is not in line with the Directive. With this view, A tries to negotiate around 10 (ten) % wage increase with TM but negotiations fail because TM believes that 1 % increase is in line with the Directive. Following A brings a case against Company TM before the Italian national court. (a) Is it possible for Ms. A to rely on the Directive against Company TM and have more than 1 % of wage increase? Why? (b) If your answers are affirmative to question (a), will the national rules become invalid? Why? (c) In any case, is it possible for Ms. A to ask for compensation from the Italian government? Question 12: Acrylic ("AR") is a fiber which is made from petroleum. It was created in 2008 to be used in the production of clothes, such as sweaters and cardigans because AR keeps warm and it is quite cheap compared to wool and cashmere. But, since May 2014, some public debates about the possible dangerous effects of AR have started in the US due to an alarming increase in skin cancer in the world. Researchers from the leading research institutions attended in those public debates and they stated that they are carefully researching the possible dangerous effects of AR. The European Union ("EU") closely watched those public debates. In response to those public debates, the Council and the European Parliament ("EP") adopted a regulation ("Regulation") under Article 294 TFEU. The legal basis of the Regulation is Article 168 TFEU (public health). On 1st of December 2014, the Regulation was published and entered into force. According to Article 1 of the Regulation: ‘As from 1 st of December 2014, acrylic cannot be used in clothes which are manufactured in the EU and which are to be sold in the member states’. According to Article 2 of the Regulation: ‘As from 1 st of December 2014, entry and import of clothes which contain acrylic from third countries into the EU is prohibited’. Article 3 of the Regulation clarifies the situation of the clothes containing acrylic, which are already sold in the EU. According to Article 3 of the Regulation: ‘Clothes which contain acrylic and which are currently sold in the member states must be withdrawn from the EU market by the 2

manufacturers by 1st of April 2015’. Company B ("B") is a private company situated in Italy. B is the biggest clothing company in the EU. B manufactures its clothes in Italy and sells them in the EU. 95 % of the clothes which B manufactures contain AR. As regards as other clothing companies in the EU, only 10 % of their clothes contain AR. B also imports clothes from China to be sold in the EU. All the clothes which B imports from China contain AR. B had purchased 10.000 pieces of clothing from China in September 2014, and they were already in transit to Italy at the time the Regulation was entered into force. On 4 th of December 2014, 10.000 pieces of clothing which B had purchased arrived at the Italian customs, but B was not allowed to receive its clothing pieces due to the Regulation. As a result, 10.000 pieces of clothing were left at the Italian Customs. Apparently, there are some other importers having the same problem in other member states. Consequently, B thinks that it may go bankrupt due to this Regulation. The lawyers working for B think that the Regulation should be annulled as there are different problems with the Regulation. Accordingly, B brings an annulment action against this Regulation before the General Court on 3rd of January 2015. (a) Can Company B be heard by the General Court? Discuss. (b) What can be the grounds for annulment of this Regulation? Why? (c) Is it possible for the General Court to grant interim relief? If yes, how? Question 14: Due to dramatically increasing amount of car accidents in Italy, Italian Government (‘the Government’) decides to regulate traffic in detail for motorised vehicles. To do so, the government establishes the National Registration Authority (‘national authority’), and passes a code (‘the Code’) in the end of March 2014, which enters into force on 1 st of August 2014. This Code brings a registration requirement for motorised vehicles such as cars. According to the Article 1 of the Code, motorised vehicles used or intended to be used in Italy must be registered at the national authority. According to the Article 2 of the Code, only registered motorised vehicles are authorised to circulate on public roads in Italy. Motorised vehicles which have their steering-wheel on the right-hand side are prohibited to be registered at the national authority as from 1st of August 2014. The obligation to register does not apply to foreigners arriving in Italy on a temporary basis (up to 90 days per year) in a motorised vehicle. According to the Article 3 of the Code, sellers or owners can apply for registration until 1 st of August 2014. Left-hand traffic applies in England and Ireland, and therefore cars have their steering-wheel on the right-hand side. In the rest of the member states including Italy, right-hand traffic applies, and cars have their steering-wheel on the left-hand side. Some of the member states also have registration requirements. However, in those member states, this is a purely administrative formality which requires only the payment of symbolic registration fees. Company A (‘A’) is the distributor (seller) of different branded British cars in Italy. Even though British cars are highly preferred in Italy because of their comfortable interior design and lowfuel consumption, demand for British cars dramatically goes down due to the Code. A believes that the Code breaches free movements, and brings a case against the Italian Government. 3

(a) You are working as a lawyer for Company A. Argue for Company A. (b) You are working as a lawyer for the Italian Government. Defend the Italian government (member state). Question 16: In January 2015, the Council and the European Parliament adopt a directive (‘Directive’). According to Article 1 of the Directive: ‘The aim of the Directive is to regulate parental leave as to enable all workers, men and women to benefit from parental leave to a great extent, and to prevent any kind of discrimination as regards as taking of parental leave. In the implementation of this Directive, member states will respect general principle of [EU] law. Each member state will ensure compliance with the provisions of this Directive by employers’. According to Article 2 of the Directive: ‘All workers, who are working under an employment contract, are entitled to parental leave on the birth or adoption of a child’. According to Article 3 of the Directive: ‘Parental leave can be taken until the child has reached an age determined by national law of each member state, but before the age of eight’. According to Article 4 of the Directive: ‘The period of parental leave shall be decided by national law of each member state. However, this period should enable parent(s) to take care of the child effectively’. The implementation period for the Directive expires in March 2015. German Government does not implement the Directive since it is convinced that the current national legislation is in line with the Directive. According to Article 1 of the German Parental Leave Act (‘Act’): ‘Parental leave can be taken until the child has reached before the age of eight. Each parent of a child is separately entitled to take the period of parental leave as settled in this Act’. According to Article 2 of the Act: ‘The period of parental leave to be taken by women employed under an indefinite-term contract is 6 months. The period of parental leave to be taken by men employed under an indefinite-term contract is 2 months’. According to Article 3 of the Act: ‘The period of parental leave to be taken by women employed under a fixed-term contract for 1 year and more is 6 months. The period of parental leave to be taken by men employed under a fixed-term contract for 1 year and more is 2 months’. According to Article 4 of the Act: ‘The period of parental leave to be taken by women employed under a fixed-term contract for less than 1 year is 2 weeks. The period of parental leave to be taken by men employed under a fixed-term contract for less than 1 year is 5 days’. Company A (‘A’) is a private company situated in Germany. Since April 2015, Mr. B (‘B’) has been working at A as an in-house lawyer under a fixed-term contract for 11 months. In May 2015, B becomes father and wants to take parental leave. Company A notifies him of that he has 5 days for parental leave according to the Article 4 of the Act. In Mr. B’s view, the Act is in breach of the Directive. In the opinion of Mr. B, according to the Directive, he should be entitled to take more than 5 days for parental leave. Therefore, Mr. B brings a case against Company A before the German national court. 4

(a) Is it possible for Mr. B to rely on the Directive against Company A and to take a period of parental leave more than 5 days? Why? (b) If your answers are affirmative to question (a), will the national rules become invalid? Why? (c) In any case, is it possible for Mr. B to ask for compensation from the German government? Why? Question 19: Chemicals used for killing insects and microorganisms that are harmful to plants are essential for the protection of all agricultural products for many reasons. For example, some plants are used produce pills to cure certain diseases. Those chemicals used to kill insects and microorganisms that are harmful to plants are called ‘pesticides’ or ‘plant protection products’. Following a decision made by all research institutions in the US in 2006, finding that the chemical Goxa (‘G’) is the most effective substance for pesticides, all producers of pesticides in the European Union (‘EU’) have started using G in their products. While these pesticides can have non-beneficial effects upon plants, their content may involve risks and hazards for humans and the environment. Therefore, the EU decided to regulate the content of pesticides in 2006. With this purpose, the European Safety Authority (‘ESA’), one of the main research institutions working for the EU, tested safety of G and found that G had no harmful effects. Following the finding of ESA, the European Parliament (‘EP’) and the Council adopted a Regulation (‘Regulation 1’) according to ordinary legislative procedure in the end of 2006. The legal basis of Regulation 1 is Article 43 TFEU (Agriculture). Regulation 1 entered into force on 1st of January 2007. According to Regulation 1: ‘Producers of plant protection products (‘pesticides’) in the EU are authorized to use Goxa. Each producer will apply to the Ministry of Agriculture in their member state and will automatically obtain certificate of authorization. If use of Goxa is to be found dangerous in the future by the European Safety Authority, the EU can restrict or prohibit use of Goxa in pesticides’. Company A (‘A’) is located in Italy. A is producing pesticides since 2004 and selling its products in the EU. Following Regulation 1, A applied to the Italian Ministry of Agriculture, has obtained the certificate of authorization and started to use G in its products as from 2007. Surprisingly, starting from 2015, some scientific reports conducted by the US leading research institutions indicate that G leaks into the water through plants and G may be dangerous for humans. These reports state that hazardous effects of G on humans are under investigation. Upon those developments, the Council and the EP urgently adopted another regulation (‘Regulation 2’) in January 2016. The legal basis of Regulation 2 is Article 168 TFEU (Public Health). This legal basis requires adoption of the EU acts according to the procedure referred in Article 294 TFEU, and the European Parliament and the Council correctly followed that procedure. On 1st of February 2016, Regulation 2 entered into force. According to Article 1 of Regulation 2: ‘This Regulation applies to producers of plant protection products (‘pesticides’) in the EU which sell their pesticides in the EU (‘EU producers’). As from 1st of February 2016, the EU producers are prohibited from using Goxa’. According to Article 2 of Regulation 2: ‘Certificates of authorization of the EU producers obtained in accordance with Regulation 1 are not valid anymore’. According to Article 3 of the Regulation 2: ‘Pesticides containing Goxa produced by the EU procedures are prohibited from being placed on the EU market. Pesticides containing Goxa 5

which have been produced and already placed on the EU market by the EU producers must be withdrawn from the EU market by the relevant producers by 15th of February 2016’. According to Article 4 of Regulation 2: ‘This Regulation does not apply to imported pesticides from third countries and exported pesticides to third countries’. Company A believes that Regulation 2 will affect its business negatively and there are problems with Regulation 2. Therefore, A brought an annulment action against this Regulation before the General Court on 7th of February 2016. (a) Can Company A be heard by the General Court? Why? (b) What can be the grounds for annulment of this Regulation? Why? (c) In any case, can Company A claim damages from the EU? Why? Question 20: The market for products related to dental care, such as fillings (fillings for teeth will be referred to as ‘fillings’ below) and fake teeth, is heavily concentrated in Italy. Even though products related to dental care must have high quality, the quality of such products unfortunately varies between the member states. Company A (‘A’) is a manufacturer of dental care products such as fillings for teeth and it is located in Italy. A sell its products to individual dentists, private companies that offer dental care, general health check-up centers etc. Company A has 37 % of the market in Italy. The other two big companies producing dental care products in Italy are Company B with 23 % of the market shares and company C with 22 % of market shares in Italy. Since the beginning of 2013 the heads of Company A, Company B and Company C have been meeting regularly. Since the mid of 2013 many consumers have been complaining to the European Commission (‘the Commission’) about the high prices charged by dentists in Italy. As a matter of fact, dentists must charge excessive and similar prices towards consumers in order to cover the high prices which they pay to Company A, Company B or Company C. In the beginning of 2015 a new health care provider, Company D (‘D’), has entered into the Italian market. D offers a variety of health services like dental care, general health check-ups etc. D sees in particular the dental care market as open for new competitors as consumers have been complaining for years about the excessive prices paid to dentists in Italy. At the end of 2015, D could successfully capture 8 % of the market in Italy. When entering the Italian market D had concluded a contract with A regarding supply of dental care products such as fillings. However, in the end of 2015, Company A stopped its supplies of dental care products to D. According to A, its capacity (meaning the amount of products A’s factories can manufacture) hinders A from continuing its supplies to D. Consequently, D turned to Company B and Company C to obtain dental care products, but they also stated that they have no products to supply to D due to capacity problems. Following these events, Company D complained to the Commission. After an investigation, the Commission took a decision directed at Companies A, B and C for breach of the competition rules. Subsequently Companies A, B and C brought a case before the General Court for the annulment of the Commission’s decision. (a) You are a lawyer working for the European Commission. Argue for the Commission. (b) You are a lawyer working for Company A, B and C. Defend Company A, B and C. 6...