Examiners’ reports 2018

Examiners’ reports 2018

LA2024 EU law – Zone B

Introduction
The EU law exanimation paper for Zones A and Zone B adopted the usual standard
format of eight questions, consisting of a mix of essay and problem questions.
Students were required to answer four of them. The exam content was firmly based
on the syllabus as contained in the module guide and the recommended readings.
The Pre-exam update was also relevant for the examination.
Examiners were happy to report a general improvement in the quality of the scripts.
Answers completely unrelated to the questions were a rare occurrence and, on the
contrary, there were many exceptionally good papers. Students also showed that
they managed to keep up-to-date with recent developments. As noted for last year,
students seem particularly confident in addressing substantive issue such as the
regulation of trade and the impact of individual rights in EU law. Constitutionally
related questions tend to be answered a little bit more in a uniform and standard
way. Another positive from this year is that most of the exams were properly
balanced, i.e. all four questions were properly addressed. However, it is still worth
repeating that all four questions need to be properly answered as the overall
assessment has to be based on four answers. Equal time and attention should be
given to each of the questions. Finally, it should be reiterated how important it is to
provide a clear structure to the answer and to write in a clear and concise manner.
Good handwriting is always a bonus!
Note that errors in the extracts below were present in the originals.

Comments on specific questions

Question 1
‘In Van Gend en Loos, the CJEU laid the foundation not only for its own
doctrines of individual rights and direct effect, but also opened the way for
the creative use of the preliminary ruling procedure to develop EU law
through the ‘vigilance of individuals’.’
Discuss.
General remarks
This was a question about the importance of the preliminary ruling procedure for the
development of EU law.
Law cases, reports and other references the examiners would expect you to use
Case 26/62 Van Gend en Loos v NederlandseAdministratie der Belastingen [1963]
ECR 1
Case 6/64 Costa v Enel [1964] ECR 585

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Joined Cases C-6 and C-9/90, Francovich and others [1991] ECR I-5357
Case C-106/77 Simmenthal II [1978] ECR 629.
Common errors
Most of the answers focused only on the question of direct effect. There was very
little analysis of the link between the role of national courts and the use of
preliminary reference.
A good answer to this question would…
briefly identify the parameters of the preliminary reference procedure (what it
entails, what courts can refer a question to the ECJ and in which circumstances,
etc.) and note that this procedure is at the basis of a continuous dialogue between
the national courts and the ECJ. A good answer would also discuss the importance
of the direct effect doctrine. As clarified by the CJEU in Van Gend en Loos, 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 through national
courts. Students would go on to discuss the principle of supremacy and the reaction
of national constitutional courts. Better students might draw on internal market case
law such as Dassonville or Cassis de Dijon to show how the ECJ triggered the
development of EU law when usual decision-making avenues were blocked.
Question 2
‘The CJEU has once more stated that, in accordance with its settled case law,
a directive cannot of itself impose obligations on an individual and cannot
therefore be relied upon, as such, against an individual.’ (Case C 413/15,
Farrell, 2017).
Discuss with reference to the CJEU’s case law on direct effect.
General remarks
This was a question about the lack of horizontal effects of directives and
alternatives for ensuring their applicability.
Law cases, reports and other references the examiners would expect you to use
Case C-106/89 Marleasing [1990] ECR I-4135
Joined Cases C-6 and C-9/90, Francovich and others [1991] ECR I-5357
Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835
Case C-176/12 AMS 15 January 2014
Case C-43/75 Defrenne v Sabena (No.2) (1976)
Case C-41/74 Van Duyn v Home Office (1974)
Case 152/84 Marshall v Southampton and South West Hampshire Area Health
Authority (1986)
Mangold and, of course, British Gas and Farrell.
Common errors
Very broad discussion on direct effect with no focus on directives was a common
error.
A good answer to this question would…
define direct effect and show what EU law provisions can have both horizontal and
vertical direct effect. Students would cite cases such as Van Duyn to illustrate that
directives can also have direct effect but would go through case law such as
Marshall and Faccini Dori to show that horizontal effect is not possible and why
(directives are addressed to states and only an emanation of the state can be held

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responsible; private parties cannot be bound by directives for reasons of legal

certainty; horizontal effect would eliminate the distinction to Regulations). Students
would show critical thinking by analysing how the lack of horizontal effect of
directives can lead to discrimination or lack of legal certainty. Students will discuss
the remedies developed by the case law to counteract the lack of horizontal effect
of directives: a large notion of the state (as per Foster/Farrell); the principle of
consistent interpretation (cite Von Colson, Marleasing); Member States liability
(Francovich/Factortame). Better students would discuss the general principles case
law that brings about horizontal effect of directives, such as Mangold. This question
is very much helped by relying on updates, as Farell is a very recent judgment.
Question 3
Latvia has decided to ban the use of the word ‘light’ or ‘lite’ on the packaging
or name of food products because consumers might be led to believe that are
low in fat.
Another Latvian law prohibits all forms of advertising of food supplements
other than at the point of sale. According to the government, food
supplements serve no purpose that cannot be achieved through a healthy
diet.
The European Commission is assessing whether these two measures comply
with EU law. You are the official in charge of the file. Please write your report.
General remarks
A rather straightforward question on free movement of goods and a Cassis de Dijon
scenario and possible justifications available to Member States.
Students should discuss whether Article 34 applies and the definition of measures
having equivalent effect. Then possible State 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 für Branntwein [1979]
ECR 649
C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097
C-34, 35 and 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
Case C-110/05 Commission v Italy (mopeds) [2009] ECR I-519
Some public health/consumer protection cases (Rau, Sandoz, UHV).
Common errors
Common errors included no discussion on the meaning of the Cassis de Dijon case
or on proportionality. There was no need to discuss Keck.
A good answer to this question would…
identify that the first measure is a MEQR within the meaning of Article 34, more
specifically a product requirement as per Dassonville/Cassis. The second measure
would be identified as a selling arrangement but, as all restrictions on advertising,
most probably failing the Keck test as per Gourmet or De Agostini – 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 would then undertake a proportionality analysis – the measure is not
discriminatory, hence both mandatory requirements (probably consumer protection)

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and Article 36 (public health) can be employed. Students would 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
Latvia to achieve the goals.
Poor answers to this question…
stopped after identifying a restriction to Article 34 and did not go on to analyse
potential justifications and the proportionality of the measure.
Student extract
Prohibitions laid down in in Article 34 are not absolute. Article 36 provides
derogations from those prohibitions. The measure in question must be
justified on one of the grounds provided in this article provided that they are
proportionate (Comm v Austria). The first measure is likely to fall under the
grounds of protection of health and life of humans, plants and animals.
However, in order to succeed with this defence, an actual risk needs to be
proven before the Court (UHT milk). In the case of the second measure
(advertising) the derogations that can be pleaded before the Court are
probably the same grounds. If derogations are not provided then the Court
will consider these measures as in breach of EU Law [student then considers
possible application of mandatory requirements to indistinctly applicable
measures].
Comments on extract
This seems to be a recurring problem so let us tackle it again. The extract clearly
shows a good understanding of the law of free movement of goods. Once a
possible breach of the Treaty is identified, the question is then if such a breach can
be justified. The extract selected correctly discusses Article 36 and the ground of
public health. The correct case (UHT milk) is used to explain how this particular
ground works. However, it simply states that these grounds need to be accepted by
the Court but it does not discuss another fundamental step: the issue of
proportionality. It should be reiterated that in order to fully answer a free movement
question, the candidate needs to explain what the proportionality test consists of
and then, through a discussion of the criteria of necessity and the less restrictive
test, s/he needs to attempt to state whether in the case at hand the measure should
be considered as proportionate or not. The answer is thus correct and it is a high
2:2/ borderline 2:1 but it could easily have been higher.
Question 4
In Spain, gambling is subject to Law 20/1965 (fictitious). This law prohibits
the organization of games of chance in the following places: government
buildings, churches and other places of worship, healthcare establishments,
educational establishments, pharmacies, post offices, credit institutions,
railway stations, bus stations, airports and ports. “Wizard Inc.”, a
multinational gambling company with headquarters in Malta, rapidly expands
its activities in Spain, mainly by renting shops in the proximity of churches,
hospitals, railways, and airports. The success is immediate, with lots of
people queuing to gamble on sport and other events. The Spanish authorities
decide to close the shops, arguing that these activities are a violation of Law
20/1965. Wizard argues that such a decision violates Article 56 of the TFEU.
You are instructed by Wizard to assess the compatibility of Law 20/1965 with
the EU freedom to provide and receive services.
General remarks
This is question of free movement of services and possibly goods and on how to
use justifications.
Law cases, reports and other references the examiners would expect you to use
C-34, 35 & 36/95 KO v De Agostini [1997] ECR I-3843

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C-405/98 KO v Gourmet International Products, [2001] ECR I-1795

Some of the gambling cases such as C-36/02Omega [2004] ECR I -9609 and BWIN
(Portugal monopoly).
Common errors
Use of goods provisions instead of services and no discussion of proportionality
were common errors.
A good answer to this question would…
need to identify the relevant freedom, which is obviously Article 57 (the question
specifically mention ion services) and may want to rely on the by now copious case
law on gambling. Students can rely on the BWIN judgment (discussed in the
module guide) and conclude that the measure can be considered as an obstacle
restricting access to the provision of services under the case law of the Court
interpreting Article 56 of TFEU. On the question of possible justifications, the likely
grounds that the MS can invoke are public policy and consumer protections.
Students will be aware of the very generous case law of the Court in this area but
could try to attempt to argue that the measure – being a blanket restriction – is
indeed disproportionate. If students decide to carry a further analysis under Article
52, that is acceptable as well.
Poor answers to this question…
did not discuss possible justifications.
Question 5
‘The CJEU may have developed its protection of fundamental rights for
defensive reasons but now that the Charter of Fundamental Rights is legally
binding this has encouraged the CJEU to be more creative and assertive in its
approach.’
Discuss.
General remarks
The question required an assessment of the impact of the Charter on EU law.
Law cases, reports and other references the examiners would expect you to
use
Case C-260/89ERT [1991] ECR I 2925
C-617/10 Fransson, 26 Feb 2013
Case C-131/12 Google Spain SL. 13 May 2014
Case Safe Harbour 2015
Opinion 1/1/3 on ECHR accession.
Common errors
A failure to provide some specific examples was a common error. Some answers
were excessively vague and there was no discussion of recent cases.
A good answer to this question would…
appreciate that this question deals with the Charter of Fundamental rights and
students should discuss its legal status and in particular whether the fact that the
Charter is now legally binding has had any impact. Does it differ from the ‘old’ case
law that relied on human rights just as a general principle of interpretation, now that
the ECJ uses the rights protected in the Charter as a benchmark of legality for EU
law? Cases such as Google Spain (right to be forgotten) or the so-called Safe
Harbor (privacy) that attracted considerable media attention are perfect candidates
to discuss. The ambiguous case law on the application of the Charter to national

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law (Fransson) and Article 51 of the Charter may also be discussed. Finally, a
discussion regarding Opinion 1/13 on accession to the ECHR needs be included to
show some of the ambiguities in the Court’s approach.
Poor answers to this question…
failed to understand the difference between human rights a general principle of EU
law and the Charter’s legally binding status and made no link with ECHR.
Student extract
Art 51 of the Charter deserves further discussion. It states that the Charter
can only be applied when implementing EU law. The expression ‘when
implementing EU law’ gave rise to disagreement among the drafters of the
Charter and this reflect the attempt by Member States to limit the scope of
the Charter to the mere implementation of Directives. However, the Court
clarified this ambiguity in the case of Fransson stating that the application of
fundamental rights contained in the Charter is available in all situations falling
within the scope of EU law. Further in the case of Siragusa the Court
mentioned that it must consider the nature, intention and objective of EU law
in order to decide the meaning of ‘implementing EU law’.
Comments on extract
The student correctly identifies the interpretation of Article 51 as one of the crucial
issue to be discussed in order to fully assess the impact of the Charter. The
passage is correct, shows a good understanding of the ‘history’ of the Charter and
relies on the proper case law. It relies on the fundamental judgment of Fransson but
also shows that the student is aware of later and more recent developments. In
order to be fully satisfactory, however, it would have been important to highlight the
difference between the two cases. Fransson is a very ‘wide’ reading of Article 51
(the Charter applies virtually to any areas of domestic law that is somehow linked to
EU law). Siragusa is instead a restrictive reading (the Charter applies to domestic
law but there must be direct link). The essay would have been much more
convincing had the student shown full awareness of this point.
Question 6
‘The status of citizen of the EU is intended to have positive connotations. Yet
it is a status that limits the control of national governments over national
borders as well as over national welfare systems.’
Discuss.
General remarks
This was a question mapping the evolution of the concept of EU citizenship.
Law cases, reports and other references the examiners would expect you to use
Case C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-
la-Neuve [2001] ECR I- 6193
C-413/99 Baumbast and R v Secretary of State for the Home Department [2002]
ECR I-7091
Case C-34/09 Zambrano, judgment of 8 March 2011
Case C-256/11 Dereci, judgment of 15 November 2011
Case C-333/13 Dano, ECLI:EU:C:2014:2358.
Common errors
No discussion on evolution of case law was a common error.

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A good answer to this question would…

Students should discuss how initially the concept of EU citizenship was considered
deprived of any legal meaning. They also need to assess how the ECJ developed
such a notion and analyse the turning point cases such as Grezclscyk and
Baumbast and Zambrano where the Court declared EU citizenship as the
fundamental status of individuals. It also held that citizenships rights are
enforceable regardless the exercise of an economic activity. However they would
then need to highlight how in later cases the Court adopted a much more
conservative approach.
Poor answers to this question…
used a confused long list of cases with no comments whatsoever on the meaning of
European citizenship.
Question 7
When discussing the application of the proportionality principle in the C-
333/14 Scotch Whisky Association judgment, the Court held that the burden
of proof cannot extend to creating the requirement that, where ‘the competent
national authorities adopt national legislation imposing [a restrictive
measure], they must prove, positively, that no other conceivable measure
could enable the legitimate objective pursued to be attained under the same
conditions’ (paragraph 55). It added that the national court must also ‘assess
the nature and scale of the restriction on the free movement of goods
resulting from a restrictive measure, by comparison with other possible
measures which are less disruptive of trade within the European Union’
(paragraph 58).
To what extent is this finding in conformity with the standard application of
proportionality in other free movement of goods and services cases?
General remarks
Students can discuss the meaning of the principle and the test used by the Court
(suitability – less restrictive alternative and proportionality strictu sensu).
Law cases, reports and other references the examiners would expect you to use
Old test: Rau – UHV cases
New test – mopeds case (Italy v Commission), Scotch Whisky Association but also
gambling case law.
Common errors
This proved to be a tricky question. Students only discussed the relevance of
Cassis de Djon.
A good answer to this question would…
discuss the meaning of the principle and the test used by the Court (suitability –
less restrictive alternative and proportionality strictu sensu). Students should
discuss how the Court used it as an instrument of integration and market regulation,
i.e. to propose specific standards that the MS had to apply (see for instance the
labelling case law – Rau). They should, however, also analyse the recent case law.
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 gambling case law).

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Question 8
Following widespread public concern and conflicting scientific reports about
the possible adverse effects of noisy toy products on children’s hearing, the
EU decided to pass legislation in order to ensure that dangerously loud toys
are not marketed and sold to the public anywhere in the single market.
Accordingly, in September 2016, Directive 2016/100 (a fictitious measure) was
adopted. Article 1 of the Directive provides that ‘the sale and marketing of any
toy designed for use by young children which produces a noise in excess of
80 decibels is prohibited’. Article 10 states that Member States must
implement the provisions of the Directive by 1 January 2017. In the
discussions of the Council of Ministers leading to the adoption of the
Directive, the Czech Government argued that the Directive is too strict and, at
the very least, should incorporate a much longer time for implementation, in
order to allow businesses sufficient time to adapt to its requirements. The
views of the Czech Government were not followed by the Council.
On 1 February 2017 Matej purchased a toy telephone for his three-year-old
son, Andrej, from a toy shop in the Czech Republic owned by the company
KidGames. The toy telephone emits musical chimes through the earpiece
when the dialling buttons are pressed. It later transpired that, through playing
with the toy, Andrej has become partially deaf in one ear. Under section 1 of
the Toys Noise Reduction Act 2016 (fictitious), which was specifically passed
by the Czech Parliament in order to implement the Directive, ‘no toy products
may be sold within the Czech Republic if they produce a level of noise louder
than that prescribed by Order of the Health Minister’. Section 2 of the 2016
Act states that the Act comes into force on 1 January 2017. So far, however,
the Minister has not introduced any measure prescribing any maximum
decibel levels for toy products.
Advise Matej of his rights, if any, under EU Law.
General remarks
A direct effect/state liability question.
Law cases, reports and other references the examiners would expect you to use
Case 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
A common error was to confine the answer to a general discussion on direct effect.
A good answer to this question would…
cite relevant case law – Francovich, Brasserie/Factortame and assess the
conditions for state liability: rule of law infringed confers rights on individuals; breach
must be sufficiently serious; there must be a causal link between the breach of the
obligation resting on the state and the damage sustained by the injured parties. The
Directive was not implemented correctly in UK law (the Minister failed to introduce
appropriate measures). This might qualify as a sufficiently serious breach,
especially since the text of the Directive is clear enough and does not leave a large
margin of discretion to the MS. One potential challenge will be to establish a causal
link between Andrej’s disability and the failure of the state to implement the
Directive.