1. “Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe.” Eric Stein, Lawyers, Judges and the making of a Transnational Constitution [1981] 75 American Journal of International Law 1.
Critically discuss whether the Court of Justice of the European Union (CJEU), as Stein suggests, in ‘finding’ the relevant EU principles, rights and obligations promoted an integrationist agenda by stealth or has it, more haphazardly, simply made up the operational doctrines as it went along?
2. “Every year a new cohort of law students is inducted into the central articles of faith on the effectiveness of EU law. On the one hand, these concern the forms of action: direct actions (Articles 258 and 259 TFEU); judicial review (Article 263 TFEU); preliminary references (Article 267 TFEU); and actions for non-contractual liability (Article 340 TFEU). On the other hand, these also concern the effects of EU law: direct effect and supremacy; the effects of directives; and state liability. EU law seminarians are soon apprised of the CJEU’s duty to ensure the uniform application of EU law and the national courts’ duty of ‘sincere cooperation’. [...] Yet, for the EU law seminarian, the main focus bears on Article 267 TFEU and state liability. Necessarily, this fixation, given the ad hoc nature of litigation and the variation in national remedies, further compromises the overall coherence of EU law.”
Critically reflect on the extent to which EU law provides for a cogent, complete and compelling system of enforcement.
3. “The free movement of capital is still the least developed European Union internal market freedom”.
Critically discuss the above statement by tracing the development of the EU capital freedom as well as looking at the current case-law.
4. “The judicial system ... has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law.” Opinion 2/13, [176].
Critically assess how Article 267 TFEU has been interpreted so as to ensure the uniformity of EU law and whether this procedure truly represents a partnership between the Court of Justice and national courts.
5. ‘On paper the requirement of a considerable influence on consumer behaviour remains as an extra threshold that must be crossed before a litigant can place on the regulator a burden to demonstrate justification for the imposition of a restriction on use of a product. But in practice that threshold is ill-shaped and vague. Robust judges such as Munby LJ in the Segway case will sweep away adventurous reliance on EU law, but the Court’s vocabulary in its cases on ‘restrictions on use’ inevitably invites and encourages such litigious adventure in future.’ S. Weatherill, ‘The Road to Ruin: “Restrictions on use” and the circular lifecycle of Article 34 TFEU. Oxford Legal Studies Research Paper No. 58/2012.
Discuss critically the instability at the heart of Article 34 TFEU case-law and consider whether Weatherill is right to be so wary.
6. Critically assess the legal and practical differences between the right of establishment as it applies to natural persons and as it applies to legal persons.
Your friend Chug has recently started to work for a small law firm located in Oxford, called Lightning & McQueen LLP. The firm specialises in cases relating to the automobile industry. Chug was asked to look into a number of files as a matter of urgency. They all seem to turn on questions of European Union law. Remembering that you have studied European Union law, Chug has turned to you for some help.
Please advise Chug on the European Union law implications of the following three cases:
a) Mater’s Garage specialises in the restoration of old cars. Recently, Mater’s sought to import into the UK a badly damaged car from the 1980’s in order to restore it. The car was seized by customs officials at Dover on the basis that it is a health hazard and was denied entry into the UK. The customs officials reject that European Union law is relevant at all to what they dismiss as ’a pile of metal garbage’.
b) Guido’s Pitstop sells motorbikes and mopeds in the UK. One of the novelty mini-mopeds the company imports from Italy has been really popular with teenagers. Earlier this year, the Government introduced legislation to ban the use of mini-mopeds by anyone under the age of 16 and also banned the advertisement of mini-mopeds on national TV, radio and the printed media. As a result, Guido’s has seen a significant fall in consumer interest and actual sales in mini-mopeds and seeks to challenge both bans.
c) Fillmore Ltd is one of the largest distributors of new and second-hand motorbikes in the UK. Most of its stock comes from other EU countries. Recently, the Government introduced legislation requiring the importers of all motorbikes not manufactured in the UK to (i) submit the bike to a roadworthiness test in the UK, (ii) register the origin of the bike with the Driver and Vehicle Licensing Agency and (iii) affix a sign identifying it as ’foreign stock’ on the bike prior to its sale. The UK authorities claim these steps are justified as a matter of the protection of health and safety and consumer protection under Article 36 TFEU. It is public knowledge that the legislation in question was introduced following sustained lobbying by the British motorcycle industry.
Andrew, a British national, moved to Athens (Greece) twenty years ago to take up an employment as a translator in a Greek company. However, due to the economic crisis, he has only been working part-time for the last two years and part of his remuneration has consisted in free lunches provided by his company. After slowly becoming depressed, he has begun to drink and has already been arrested twice after getting into fights in bars at night. Now the Greek authorities want to deport him on public policy grounds.
Andrew’s wife - Barbara - is Chilean. She has been working as a piano teacher in Athens for several years. However, her visa expired three years ago. The Greek authorities are currently considering ordering her expulsion from Greece as well.
Andrew’s brother - Connor, who is also a British national - has been studying architecture in Germany for two years. He applied for a maintenance grant this year but his application was rejected since German law prescribes that this grant can only be awarded to foreign students who have studied for at least three years in Germany, a condition that Connor does not fulfill.
Advise Andrew, Barbara and Connor on their rights under EU law and corresponding remedies before the national courts.
In Lettuvia, an EU Member State, football is by far the most popular sport, and the matches in the "Premier League" attract considerable interest both domestically and abroad. The sale of TV rights for matches generates €3 billion per year, making the Lettuvian Football Association (LFA) one of the wealthiest sporting associations in Europe. All major Lettuvian football clubs are members of the LFA.
The EU Commission decided to open proceedings against the LFA pursuant to complaints from football agents. According to the statutes of the LFA, players in the “Premier League” could only be represented by agents authorized by the LFA, which only authorised agents holding Lettuvian nationality. The Commission instituted proceedings under Regulation 1/2003, claiming that the statutes of the LFA 1) represented an unlawful decision taken by an association of undertakings and 2) an abuse of a dominant position. The LFA claimed that the EU competition rules did not apply to it, as it was a non-profit organization promoting sporting interests and contributing to the flowering of the cultural life of the State.
Discuss critically whether the statutes of the LFA might be contrary to Article 101 TFEU and/or Article 102 TFEU.
In January 2012 the European Commission adopted the Environmental Protection Directive 12/78 (fictitious). The Directive required that national law provide an authorisation procedure for industrial activities with high potential for pollution, and laid down minimum licensing requirements by installations in order for authorisation to be granted. The Directive also required, amongst other things, that national law provide interim relief for individuals who might be adversely affected by pollution. The transitional period expired on 1 January 2014.
Fred lives in Exetown, a town situated approximately one mile downwind from an agricultural chemical factory run by ExeChem Ltd. The ExeChem factory was classified as high risk according to the Environmental Protection Act 2000 (EPA; fictitious), but was licenced to operate. Under the EPA only the Environment Agency may seek interim relief pending any determination by a court under the Act. However, the Environment Agency found in a series of reports that emissions of inflammable and toxic gas are often blown on the prevailing wind towards Exetown, and Fred’s house. While the EPA did not forbid such emissions, the Directive prohibited these toxic emissions and required that their emission be criminalized. In February 2014 Fred asked the Environment Agency to close the plant under the authority of the Directive. The Agency refused to do so, arguing that under the EPA the operation of the plant was lawful.
Fred would like to challenge the continuing operation of the ExeChem plant by way of judicial review. Advise Fred as to his rights and remedies under EU law.
Maria is a mature Finnish student studying at Exmouth University. Maria works part time at the ‘Free World Café Collective’ as a waitress, though she is paid in kind through free food and drink.
The Daily Globe, a national newspaper, starts a campaign accusing the UK Government of being ‘soft on terror’ and turning the UK into a safe haven for ‘dangerous foreign activists.’ The paper runs a series of in-depth investigations on the violent anti-capitalist demonstrations in Europe. Pictured in the story were photographs of Maria at an anti-globalisation demonstration in Estonia over two years ago. During the demonstration several shop fronts were smashed by demonstrators, the city was set on fire and a number of passers-by and police officers were badly assaulted.
In April 2015 the Home Secretary discovered not only that Maria had been convicted in Estonia of criminal damage as a consequence of her involvement in the demonstration, but also had other convictions arising out of her attendance at violent rallies in Denmark and Germany. The Home Secretary orders Maria’s deportation to Finland.
Advise Maria as to any rights and remedies she might have under EU law.
A Ltd is a UK company which produces a particular type of smart phone, the ‘G- Type’. According to the latest market statistics, in Europe, A Ltd has 60% of the market for ‘G-Type’ phones; its nearest competitor B Ltd, has 35%. However, in the European market for smartphones in general, A Ltd has only 20% market share.
Consider BOTH of the scenarios below:
a) A Ltd enters into an agreement with C Ltd, a new manufacturer which has developed a new type of smartphone equipped with new incredible applications, which can even prevent road accidents. C Ltd does not have the financial resources to develop the prototype of the new smartphone, so it agrees to produce it and sell it only to A Ltd, in return for the necessary financial support to develop the project;
b) A Ltd has a distribution agreement with two chains of electronic shops across Europe, one named ‘Electro Europe’, and the other called ‘HighTech Supermarket’. A Ltd sells its ‘G-Type’ phone to Electro Europe for £300, and to HighTech Supermarket for £400. In addition to that, SciFi Shops, a third chain of electronic shops has recently approached A Ltd for an agreement on the distribution of its ‘G-Type’, but A Ltd is refusing to supply it.
The European Commission has received complaints against A Ltd in relation to the above scenarios, and asks for your advice. Advise the European Commission.