Examiners’ report 2013

Examiners’ report 2013

LA3024 EU law – Zone B

Introduction
The examination paper for EU law consisted of a mixture of essays questions and
problem questions. There were two slight differences to previous years: generally
the emphasis was more on the constitutional and substantive elements of EU law
and less focused on the institutional aspects. Also, several questions were on
extremely topical points of EU law. It was therefore crucial that candidates had read
and absorbed the Recent developments.
Some of the answers were particularly good in criticising some recent decisions of
the European Courts, and made specific alternative proposals. In some of the
constitutional questions, topical issues such as the impact of the financial crisis on
EU governance were included, showing extra reading and awareness of current
affairs.
Unfortunately, there were several instances of candidates providing answers totally
unrelated to the questions or using, nearly verbatim, the same answer provided for
another question to reply to a different one. It is was also quite clear that some
candidates had already pre-prepared a standard answer that was simply copied
and pasted regardless of the specific issues raised by the questions.
It is important therefore to stress that it is always good practice to take time to read
the examination questions properly and not to rush to answer the ones that at first
sight look more approachable. Furthermore, candidates should not simply write
everything they know about a particular topic but should address the issues raised
by the questions.
Another general issue is the managing of time. Many candidates have struggled to
answer the four questions exhaustively. In many cases two or three answer are
followed by a mere paragraph or nothing at all. In some cases this could be
attributed to lack of knowledge. However, time management seems also to be an
issue for potentially good candidates. In some instances, writing two or three
outstanding answers meant that the candidate run out of time and could not answer
a fourth question.

Specific comments on questions

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(i) That advertisement of junk-food is soon to be banned in Italy and TV

(ii) It has introduced a “Sport for Schools” scheme which is clearly

General remarks
This question refers to free movement of goods and the application of Article 34
TFEU and possible justifications.
Law cases, reports and other references the Examiners would expect you to
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
C-110/05 Commission v Italy (Mopeds) [2009] ECR I-519
Common errors
No discussion on distinctly/indistinctly applicable measures. No assessment of Keck
test. No discussion on proportionality.
A good answer to this question would…
Point (i) deals with indistinctly applicable measures and whether they could be
classified as a measure equivalent to a quantative restriction (MEQR) under the
Dassonville and Cassis De Djon test. Candidates should, however, discuss whether
the Keck test applies (selling arrangements – equality in law and fact), with
reference to cases such as De Agostini but also Gourmet and Doc Morris.
Candidates could then go on to discuss whether the recent case law such as
Commission v Italy (Mopeds) signals the end of Keck. If they conclude that access
to market is restricted, they will move on to justifications (public health? consumer
protection? children protection?) and to proportionality (is there a causal link
between the measure and the protection of a specific public aim and is there any
less restrictive alternative?).
Point ii) deals with another indistinctly applicable measure and a possible
application of Keck (selling arrangement or product requirement?). An extremely
relevant precedent could be found in Familiapress. If they conclude that access to
market is restricted – they will move on to justification (public health? consumer
protection? children protection?) and to proportionality (is there a causal link
between the measure and the protection of a specific public aim and is there any
less restrictive alternative?).
Student extract
On the application of the Keck test:

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In this part we can see that Italy will soon ban advertisement of junk food.
From the facts we can say that this is a selling arrangement and not a
product requirement because this legislation does not require any change to
the product but concerns marketing. Here we need to consider the Keck
principle. According to this case if the measure is a selling arrangement and it
applies equally in law and fact the intra-community trade is not affected. Here
we first see that this is not a product requirement but a selling arrangement
and this rule applies for everyone, both domestic and foreign products. Now
we need to consider the effect in both in law and fact. In law we can see this
test has its applicability (Punto casa) but problems raise for the ‘in fact’ test
because domestic products are already familiar to the Italian citizen and for
importers like Litter & Co. it might be difficult to expand their business […]
Moreover in Schutzerveband the ECJ held that the ban on advertisement
was not disproportionate because there was already some other chance to
advertise. However in Leclerc Siplec the Court held that a ban on every way
of advertisement was nor proportionate thus for Litter and Co. it is really
difficult if Italy bans all averstiment on junk food. In Gourmet, the Court also
concluded that a national rule banning all advertisement does not apply
equally in fact as without advertisement the imported product will remain alien
to the consumer.
Comment on extract
Most candidates struggled with the application of the Keck test. This candidate, in
the extract above, correctly ‘placed’ the analyses of Keck at the very beginning of
their analysis. It is the ‘right’ place as the first issue to discuss in this question is
whether the rule can be considered as a selling arrangement or a product
requirement. The candidate then discusses whether the rule affects trade in an
equal manner in law and fact. If it is concluded that the Keck test applies, the rule
falls outside the scope of EU law, and thus there is no engagement of the Treaty. In
short, there is no breach of EU law. On the contrary, if it is shown that the measure
prevents access to market this will be considered as a breach of Article 34 TFEU.
The analyses can then move to proportionality, Thus Keck is not a justification; it is
a test that if satisfied makes the national rule ‘immune’ from scrutiny. Another
difficult point is the actual application of the test itself, in particular the question of
‘equality in fact’. The candidate here – although the form could have been better –
rightly focuses on the case law of the ECJ dealing with advertisement restrictions. It
has to be shown that a total ban deprives the trader of any possibility of penetrating
another Member State’s market. Moreover, a total band would still favour the
national producers as they are already familiar with the market structure. The
passage, although in a slightly convoluted way, uses the case law correctly and
identifies the problem for the client.
Interpretation of the question: very good
Relevance of the answer to the question: good
Substantive knowledge: good
Use of authorities: very good
Articulation of argument: good
Accuracy of information: good
Clarity of expression: satisfactory
Legibility: satisfactory.
Question 2
Yasif is an Algerian national. He unlawfully entered in France in 2005 and
applied for political asylum. His application was eventually rejected in 2007.
That year he met Dominique, a French national.

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The couple fell in love and married in 2008 and now have two children. For a
few years Yasif did various jobs. Dominique was employed by the University
of Paris as an IT coordinator until 2011 when she was made redundant.
In 2012, Yasif applied for a residence permit and residence document under
European Union law as the husband of a Union citizen. Yasif argues, in
particular, that without a residence permit he has been unable to work, at
least not lawfully. The French authority refuses his applications. It also alerts
the Immigration authorities who, after considering Yasif’s status, decide to
order his expulsion from France. In the meantime, Dominique, following her
redundancy, applies for unemployment and children benefits which are duly
granted.
In 2013, Yasif decides to appeal against the decision to deport him. Yasif
challenges the decision on the grounds that:
(a) Articles 20 and 21 TFEU confer a right of residence upon a national of
a non-member State lawfully married to a citizen of the Union and the
deportation order would have the effect of depriving a EU citizen of
the rights protected by those provisions;
(b) That Article 20 in conjunction with the provisions of Articles 21, 24
and 34 of the Charter of Fundamental Rights, must be interpreted as
meaning that the right of a minor child who is a national of a Member
State to reside in that State must entail the grant of a work permit to a
parent (who is a national of a non-member State) upon whom the child
is dependent.
The French Court decides to stay proceedings and refers these questions to
the ECJ.
You are the Advocate General assigned to the case; write your opinion.
General remarks
The question refers to the judicial application of citizenship, in particular of Articles
20 and 21 TFEU.
Law cases, reports and other references the Examiners would expect you to
use
C-34/09 Zambrano judgment of 8 March 2011
C-434/09 McCarthy judgment of 5 May 2011
C-256/11 Dereci judgment of 15 November 2011
Directive 2004/38 on the rights of EU citizens
Charter of Fundamental Rights
Common errors
Discussion limited to free movement of workers. No new cases. Ignorance of the
relevance of the Charter of Fundamental Rights.
A good answer to this question would…
Candidates should discuss the Court turning point cases such as Grezclscyk and
Baumbast where the Court declared EU citizenship as the fundamental status of
individuals. Candidates can refer in particular to cases where the Court held that the
rights of family life (Chen) are protected by the provisions of EU citizenships. The
question however deals more directly with application of three new cases:
Zambrano, Mc Carthy and Dereci. Yasif needs to try to distinguish his case from
that of Mc Carthy and Dereci, emphasising the effects of a deportation order on his
family (genuine enjoyment of citizenships rights). Secondly, candidates should

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discuss whether the matter falls within EU law (purely internal situation), and if it
does, whether the Charter should apply those articles protecting family life and
children’s rights.
Student extract
On Yusuf’s position as a worker:
The word ‘worker’ is not defined in any EU treaties or any secondary
legislation. However in Lawry Blum, the Court referred to the conditions for
someone to qualify as a worker. This means that the concept and the same
meaning is ensured throughout the Union and is not subject to variations in
national legislation. The key criteria is: providing an activity for someone else
for monetary reward. Anyone who works part time or for low wages will
almost certainly qualify for Article 45 protection regardless the level of
remuneration (Trojani, Levin, Knopf). The minimum condition is that the
worker is providing a genuine effective activity.
After concluding that Yusuf cannot qualify as an EU worker, the candidate turns to
other possible grounds:
The loss or acquisition of nationality is purely a matter of national law
(Micheletti- Kaur, Chen). However the most significant right of citizenship is
the right to move and reside freely within the territory of the MS. (Art 21 of
TEFE) This provision is directly effective (Baumbast and R) Citizens may
invoke article 21 in combination also with the general rights of non-
discrimination against national of other member states (Martinez Sala –
Bidar).
Comment on extract
The style is extremely concise but all the relevant points are examined. The use of
case law is perfect. In particular, as the question asks the candidate to ‘play’ the
Advocate General, the candidate rightly decided to exhaust all possible avenues.
Thus despite not being strictly necessary, the question whether Yusuf could
somehow have been assimilated as an EU worker is examined. The analysis of the
notion of worker displayed a good command of the case law of the Court. When the
candidate turns to the citizenship point once again, despite the brevity of the
passages, the analysis is good. It is particularly important that before turning
attention to the trilogy of cases relevant to this problem question (Zambrano, Mc
Carthy and Dereci) the candidate reminds us of a fundamental point: that Article 21
has direct effect, and thus it can be used by applicants.
These extracts show that complex problem questions can be concise and
exhaustive at the same time.
Interpretation of the question very good
Relevance of the answer to the question: very good
Substantive knowledge: very good
Use of authorities: excellent
Articulation of argument: good
Accuracy of information: very good
Clarity of expression: good
Legibility: good.
Question 3
Alpha Plc. and Beta Ltd. make milk chocolate to the traditional ‘Choco’ recipe,
and their products are popular mainly in the United Kingdom and Ireland.
These products are also bought by consumers in France, Belgium and some
other Member States of the European Union, although consumers in these

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other States generally prefer milk chocolate made to a different recipe. Alpha
has a 30% market share, Beta has a 10% market share and other
manufacturers each have less than a 5% market share of the ‘Choco’ recipe
chocolate in the EU. This market structure has been approximately the same
for the last 10 years. Alpha has a longstanding agreement with Beta which
allows Beta to use some of its distribution facilities, at a certain price, and
recently other manufacturers of ‘Choco’ recipe chocolate bars have reached
agreement with Alpha to use these same distribution facilities. However one
of these companies, Zocco, has found out that the price paid by Beta under
this agreement is 10% less than the price paid by the other companies.
Advise Zocco.
General remarks
This is a question about competition law. It concerns a case on Article 101 TFEU,
dealing mainly with the notion of agreement/concerted practice.
Law cases, reports and other references the Examiners would expect you to
use
Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-
129/85 Ahlström Osakeyhtiö and others v Commission [1993] ECR 1307
C-851/76 Hoffman La Roche v Commission (Vitamins) [1979] ECR 461
322/81 Michelin NV v Commission [1983] ECR 34
Common errors
The question was sometimes dealt with under free movement instead of
competition law.
A good answer to this question would…
Candidates should discuss whether the use of distribution facilities can infringe
competition law. There are probably no exceptions applicable. A reference to
possible abuse of dominant position under Article 102 TFEU could be accepted as
well.
Poor answers to this question…
concentrated too much on market analysis and not on the law.
Question 4
Rodriguez has worked as a bullfighter in Spain for the last two years and is
famous for the number of bulls he has killed. He decides to start bullfighting
in Portugal as well. He also advertises a four-month summer school in
Portugal and intends moving to Portugal to teach the course.
Spain does not require its bullfighters to obtain any formal qualifications but
in Portugal, before one is allowed to fight, it is necessary to pass a written
test on the history of Portuguese bullfighting and to complete a number of
evaluated practical exercises designed to ensure adequate safety and animal
welfare standards. Portuguese legislation allows bulls to be baited but not
killed for entertainment purposes. Rodriguez is warned that he will be
prosecuted if he decides to start bullfighting in Portugal.
Advise Rodriguez.
General remarks
The question refers to the application of free movement of services – Article 56
TFEU – and the possible justifications.

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Law cases, reports and other references the Examiners would expect you to
use
C-384/93 Alpine Investments [1995] ECR I-1141
C-36/02 Omega [2004] ECR I-9609
C-42/07 CA/LPFP (BWIN) judgment of 8 September 2009
Common errors
Failure to identify the relevant economic freedom. Focus only on free movement of
workers. No assessment of proportionality.
A good answer to this question would…
Candidates should discuss which free movement provisions could be engaged. The
main debate should be between services and establishment. Free movement of
service should be considered as the main issue as the facts refer to a temporary
provision of an economic activity (even if he moves to Portugal for four months –
Gephardt test). The measure can be therefore considered as an obstacle restricting
access to the market under the case law of the Court interpreting Article 56 TFEU.
Next comes the point of a possible justification likely under the public policy
exception under Article 52 TFEU. However, as the measure is indistinctly
applicable, new grounds can be raised (for instance, animal welfare has never been
discussed before in the area of services). Finally, candidates should asses the
proportionality of the measure. In particular, sanctions are very severe (prosecution)
so perhaps disproportionate. However, recent case law of the Court such as in the
gambling area (BWIN) stresses the importance of respecting cultural differences.
Question 5
‘The principles laid down by the Court in Van Gend en Loos and Costa v Enel
judgments are essentially one: the need to ensure the effectiveness of EU law
by empowering individuals.’
Discuss.
General remarks
Question dealing with the development and application of the constitutional doctrine
of direct effect.
Law cases, reports and other references the Examiners would expect you to
use
26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1
43/75 Defrenne v Sabena [1976] ECR 455
C-91/92 Faccini Dori [1994] ECR I-3325
C-106/89 Marleasing [1990] ECR I-4135
Joined Cases C-6 and C-9/90 Francovich and others [1991] ECR I-5357
Common errors
Listing of cases with no structure to the answer.
A good answer to this question would…
Candidates should 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. Candidates need to assess how far
these doctrines can go: for instance, horizontal effect of Treaty provisions
(Defrenne, Viking) and the question of the lack of horizontal effects for Directives.
Candidtes should discuss the case law of the CJEU on this question (Marshall,

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Faccini Dori) and then explore the possible alternatives: the most important being
the doctrine of consistent interpretation (Van Colson, Marleasing, Pfeiffer) and state
liability (Francovich, Factortame).
Poor answers to this question…
No real discussion on the two facets of direct effect and whether they are
compatible with each other.
Question 6
‘In applying the market access test to all fundamental freedoms, the European
Court of Justice is forced to find more and more new grounds of general
interest under which national legislation may be cleared.’
Discuss.
General remarks
This deals with the fundamental importance of the grounds available for justifying a
breach of free movement provisions.
Law cases, reports and other references the Examiners would expect you to
use
C-379/98 PreussenElektra [2001] ECR I-2099
C-112/00 Eugen Schmidberger [2003] ECR I-5659
C-36/02 Omega [2004] ECR I-9609
Common errors
Discussion of the free movement of goods only.
A good answer to this question would…
By expanding the scope of application of free movement, the Court was forced to
accept not only traditional justifications such as environmental or consumer
protection, but also the need to preserve press diversity, the protection of children,
food safety, the fight against alcoholism and so on. Candidates should then discuss
one of the main problems in this process: whether (overtly) discriminatory measure
can be justified on grounds not expressly mentioned in the Treaty (Aragonesa) and
weather it is inappropriate to have different grounds depending upon whether the
measure is discriminatory (directly or indirectly) or whether it involves a non-
discriminatory restriction (see Preussen Elektra for a very weak Court decision).
Poor answers to this question…
Focused on one economic freedom or just on the access to market test.
Question 7
‘Some commentators perceive the Charter of Fundamental rights as an
unnecessary complication. Instead it symbolises what the EU and the Court
of Justice case law stand for: the affirmation of the principle of equality and
protection of individual rights.’
Discuss.
General remarks
This was a question on the development of an EU human rights law dimension in
the case law of the Court.
Law cases, reports and other references the Examiners would expect you to
use
C-438/05 Viking Line Abp [2007] I-10779

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Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council [2008]
ECR I-6351
C-236/09 Test Achat judgment of 1 March 2011
C-617/10 Åkerberg Fransson judgment of 14 February 2013
Common errors
Discussing direct effect and supremacy. Failure to discuss the relevance of the
Charter.
A good answer to this question would…
This question deals with the relevance of the Charter of Fundamental rights.
Candidates should discuss its legal status – how the Court is using it both as
benchmark for the legality of EU action and for Member State action (see Recent
developments – case law of February 2013). Candidates must analyse how the
ECJ developed a human rights acquis by relying on the idea of general principles of
EU law. Cases such as Nold, Wauchauf or ERT could be mentioned. They should
then assess whether the Charter is adding anything ’extra’ both in terms of what
kind of rights can be protected (see solidarity) and in terms of intensity of review
(cases such as Test Acahat).
Poor answers to this question…
Did not discuss the status of the Charter after Lisbon.
Question 8
‘The proportionality test is the principle that regulates what is lawful or
unlawful under EU law.’
Discuss.
General remarks
Discussion of one of the most important general principle of EU law: proportionality.
Law cases, reports and other references the Examiners would expect you to
use
C-120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979]
ECR 649
Case C-36/02 Omega [2004] ECR I-9609
Case C-42/07 CA/LPFP (BWIN) judgment of 8 September 2009
Common errors
Random discussion of direct effect or supremacy.
A good answer to this question would…
Candidates could discuss the meaning of the principle and the test used by the
Court. They should discuss how the Court used it as an instrument of integration
and market regulation, that is, to propose specific standards that Member States
had to apply (see for instance the labelling case law – Rau). They should, however,
also analyse the recent case law of the Court. In the last few years the Court has
been rather soft with Member State 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 gambling case law).
Poor answers to this question…
Simply stated what the principle is about without any discussion on its intensity, its
variations and so on.