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EU Law Problem Questions

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Applying to Uni? Let Universities come to you. Click here to get your perfect place 20-10-2014
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    Hi all,

    Basically having a bit of problem working out how I'm going to go about answering an EU law problem question in an exam. I like having a structure to go through when answering problem questions but am having difficulty working one out in three particular areas, these are the free movement of:

    - People
    - Services
    - Establishment

    I have read different textbook chapters on them but they haven't particularly helped me in working out how I would answer a problem question on one. Freedom of goods semmed really easy to work this out but struggling with these three. Any help would be much appreciated!
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    you always need to go through the same steps:

    1) Scope
    a. Does Union law applies, and what part of Union law?
    i. Union citizen or TCN
    ii. Whole internal situation
    iii. What kind of situation? (vertical or horizontal)
    iv. Case-law?
    2) Breach
    a. Problem in the case?
    i. Direct discrimination
    ii. Indirect discrimination
    iii. Hinder of free movement
    b. What article is breached?
    3) Justification
    a. Defense of the one (MS) who is breaching
    !! What is said about the breach is important for justification as well, because e.g. direct discrimination is harder to find a justification than for indirect discrimination, …
    4) Proportionality + human rights
    a. Problem v. defense
    i. Suitability (Is the measure suitable to attain the aim?)
    ii. Necessity (Is the rule necessary? This means that if there is a less restrictive measure or possibility, the rule they use is not.)

    If you follow this schema you must be able to solve the cases
    Hope it will help
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    Awesome...that helps a lot. Thanks!
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    you're welcome
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    I v got a problem question for EU on free movement of workers:

    Justina a polish national , work as a care assistant in a residential home in the UK. Her partner of 2 n a half yr Kumar possess Indian Nationality. He has been a postgraduate student in UK but now his visa has expired and the UK authorities wish to deport him.

    Joe is a Spanish national. He and his same sex partner Manuel, have registered a civil partnership in Spain. Joe has been offered a job in UK as a result he moved to UK. Manuel had been denied entry.

    Rahul is a German National of extreme Right wing organisation. Membership of the group is not illegal in UK but the UK Gov has spoken out against the organisation on several occassion and has made it clear tthat it discourages membership but are not prepared to go further n make membership illegal. Rahul has received notice to leave UK in 28 days, reason given is that membership of organisation is " incompatible with his status as a temporary uk resident"

    Advice Justina, Joe and Rahul.

    I know the rights of workers are under Dir 2004/38
    but don know how to structure the answer I am really struggling with it. Can someone plz help me answering the q in proper way???!!!
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    For the last issue concerning Rahul I guess it's quite similar to CASE 41/74 (scientology church), for the others follow the schema above and dir 2004/38.
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    Hey thanx katharos 703 it was actually the van duyn case
    Finally my q has been solved!!!
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    (Original post by Katharos703)
    you always need to go through the same steps:

    1) Scope
    a. Does Union law applies, and what part of Union law?
    i. Union citizen or TCN
    ii. Whole internal situation
    iii. What kind of situation? (vertical or horizontal)
    iv. Case-law?
    2) Breach
    a. Problem in the case?
    i. Direct discrimination
    ii. Indirect discrimination
    iii. Hinder of free movement
    b. What article is breached?
    3) Justification
    a. Defense of the one (MS) who is breaching
    !! What is said about the breach is important for justification as well, because e.g. direct discrimination is harder to find a justification than for indirect discrimination, …
    4) Proportionality + human rights
    a. Problem v. defense
    i. Suitability (Is the measure suitable to attain the aim?)
    ii. Necessity (Is the rule necessary? This means that if there is a less restrictive measure or possibility, the rule they use is not.)

    If you follow this schema you must be able to solve the cases
    Hope it will help
    Would you please be able to show us something like this for free movement of goods? <3
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    (Original post by saiwa)
    Would you please be able to show us something like this for free movement of goods? &lt;3
    here you go


    Art. 28 => general principle
    Art. 30 => money, pecuniary charge
    Art. 110 => no discriminating taxation
    Art. 34 => quantative restrictions

    Art. 30 TFEU => only two of the question will need to be answered:
    - SCOPE
    - BREACH
    => All you discuss are these two steps, any breach is a violation, no justifications are possible!!
    o There are only three quasi-exception which are recognized by the court, but this situations actually just don’t fall within the scope of art. 30 TFEU
    => Service rendered
    • Must be done specific for importer (e.g. if there is a boat wish is in a haven, it you unload it, is is normal he will have to pay for it)
    => Inspection required by the Union
    => Internal taxation (not art. 30 applies, but art. 110 TFEU)

    Art. 34 TFEU
    1. QR
    a) Definition in Geddo
    b) Art. 36 TFEU
    i. Zero quota can be justified (Henn and Darby BUT Conegate!)
    2. MEE
    => Definition in Dassonville
    a) Distinctly applicable
    a. Grounds on the origin of the good
    b. Everything that is imposed on non-nationals what isn’t on nationals => different burden in law e.g. commission v. Ireland (Buy Irish)
    c. Derogations only possible on grounds of art. 36 TFEU
    i. Sometimes environment will be accepted to, but not settled case law
    b) Indistinctly applicable ~ all product requirements (e.g. the butter case – Rau)
    => for all technical rules Cassis is created!
    a. Same burden in law, different burden in fact
    b. Defense: Art. 36 derogation + mandatory requirements (cassis de Dijon – principle of mutual recognition)
    c) Commission v. Italy (Trailer) ~ like Gebhard in free movement of persons
    a. You can say this case-law goes back directly to Dassonville
    i. Anything that hinders market access
    ~ Alphine Investments => same burden in law and in fact, but it still hinders access
    => Commission v. Italy is quite the same (nobody will buy the product because you may not use it)
    => It creates a catch all rule a certain safety net.
    3. CSA
    a) Keck and Mithuard
    b) CSA are going about
    i. When
    ii. How
    iii. Where
    iv. By whom are they sold
    c) Para. 16 Keck => not discriminatory (~ about market access, is it hindering) => if it doesn’t fulfill para. 16 (so is discriminatory) it will be threaten as indistinctly applicable)
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    Marry me! Thanks!
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    Wow those are really good, i really like structures and that helps a bunch, are there any similar ones for discriminastion or competition law?
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    Hi i have an assignment due really soon and im stuck!
    Here it is...

    the question is about a directive that was adopted by the EU and had an implementation deadline... between the date of adopting the directive and the deadline, a woman was in a situation where the directive would help her loss, however the UK had not implemented it yet....

    So what does that mean!?.. i talk about direct effect but in the case of Ratti, it states that if implementation deadline date has not passed, it cannot have direct effect.

    what about indirect or state liability? anything else that needs to be mentioned?

    she is requesting a refund from a company for her loss... But she cant get it from the company can she? who else might she be able to get it from?

    2) Also, theres another question saying that the UK wants to base a legal claim against the validity of the Directive, how would they do this? on what grounds?...

    PLEASE PLEASE help if you can!!
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    (Original post by Life-by-Law)
    Hi i have an assignment due really soon and im stuck!
    Here it is...

    the question is about a directive that was adopted by the EU and had an implementation deadline... between the date of adopting the directive and the deadline, a woman was in a situation where the directive would help her loss, however the UK had not implemented it yet....

    So what does that mean!?.. i talk about direct effect but in the case of Ratti, it states that if implementation deadline date has not passed, it cannot have direct effect.

    what about indirect or state liability? anything else that needs to be mentioned?

    she is requesting a refund from a company for her loss... But she cant get it from the company can she? who else might she be able to get it from?

    2) Also, theres another question saying that the UK wants to base a legal claim against the validity of the Directive, how would they do this? on what grounds?...

    PLEASE PLEASE help if you can!!
    1) I think indirect effect is the only possibility, because indeed direct effect isn’t possible and State liability neither, because the conditions (brasserie du pêcheur) aren’t fulfilled. There isn’t a sufficient serious breach.
    If you use indirect effect, she will claim it from the company because the law which is already there will be interpreted in the light of the EU directive. But you need to know that indirect effect isn’t unlimited, you can’t use it contra legem (for legal certainty) and no criminal liability. And of course there needs to be a law which can be interpreted, so if there isn’t any, you can’t use this!
    2) art. 263 TFEU --> MS is a privileged applicant, you will need to answer the following questions:
    When is an action admissible?
    1. If they have standing (art. 263 (2) & (3) TFEU)
    2. If it is from an institution, body, etc. whose act can be challenged (art .263 (1) TFEU)
    3. If it is an reviewable act (art. 263 (1) TFEU)
    4. It they are within the time limit prescribed in art. 263 (6) TFEU
    So:
    1. General power (because they are a privileged applicant) to seek judicial review against acts of the EU institutions. They don’t have to prove any specific interest. So they have standing.
    2. It is against an act of the Commission, so the second requirement is fulfilled as well. (art. 263 (1) TFEU)
    3. It is a directive – which obviously intend to produce legal effects – so this requirement is fulfilled as well. (art. 263 (1) TFEU)
    4. You will need to look at art. 263 (6) TFEU AND art. 81 (1) Rules of Procedure of the Court of Justice

    Hope this helps
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    Katharos703, hoping you can help if you feel like it :-).

    I am working on a Free Movement of Goods problem question, and I am getting a bit confused on a certain point. Can I have something which is indirectly applicable as well as a product requirement? In my scenario I have a Member State requiring all new cars to be fitted with a device that limits speed. I think that it causes a worse burden on foreign manufacturers than domestic, but it is also a product requirement. If you have any insight it would be appreciated 8(
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    (Original post by saiwa)
    Katharos703, hoping you can help if you feel like it :-).

    I am working on a Free Movement of Goods problem question, and I am getting a bit confused on a certain point. Can I have something which is indirectly applicable as well as a product requirement? In my scenario I have a Member State requiring all new cars to be fitted with a device that limits speed. I think that it causes a worse burden on foreign manufacturers than domestic, but it is also a product requirement. If you have any insight it would be appreciated 8(
    I think you can solve it with the Commission v Italy (trailer) case (http://eur-lex.europa.eu/LexUriServ/...5J0110:EN:HTML)
    If not, you can see whether the conditions of para. 16 and 17 of Keck are fulfilled, if so, than it is permissible, if not it will be indistinctly applicable. But I would try the trailer-case first, Bernard is very in to that one, she thinks it is reversing the Keck-case law ... But for now you can do it in both ways I guess
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    hi, I have a problem question on Actions against the State (direct effect, indirect effect, state liability and action by commission and other MSs)

    Basically the question concerns a directive that's not implemented by the UK and A does not get the benefit of that directive but wishes to know what they can do...
    the questions asks use to advise the state on who could bring an against them for failure to implement the directive....

    I don't want an answer to that question i just want some sort of a structure.... I am also having trouble as I end up writing far to much and that means I am doing something wrong.... what's more important in a problem question relevance or demonstrating knowledge?
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    (Original post by roohan1991)
    hi, I have a problem question on Actions against the State (direct effect, indirect effect, state liability and action by commission and other MSs)

    Basically the question concerns a directive that's not implemented by the UK and A does not get the benefit of that directive but wishes to know what they can do...
    the questions asks use to advise the state on who could bring an against them for failure to implement the directive....

    I don't want an answer to that question i just want some sort of a structure.... I am also having trouble as I end up writing far to much and that means I am doing something wrong.... what's more important in a problem question relevance or demonstrating knowledge?
    Relevance is more important. You have a strict time limit and you need to cover as many issues as you can. Imagine you're a client and your solicitor starts telling you about the history of some case-law: you won't care. If you have the time, throw in a but of knowledge but it's not an essay so try to cover as many issues as possible.

    For directives, I usually used this structure:

    1) Is the directive capable of direct effect?
    2) Has the deadline for implementation passed?
    3) If yes, is there vertical direct effect here i.e. is it the State or an emanation of the state? If so, C can sue.
    4) If there is no vertical direct effect, is indirect effect possible?
    5) If not, can any of the strange situations (Wells, CIA, Mangold/Kucukdeveci) apply?
    6) If not, can C sue for Francovich damages instead? If it's incorrect implementation of a directive, can C sue under ex p BT?
    7) If not, C is somewhat doomed.
    4)
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    The Council has passed two imaginary Directives concerning water pollution. One, Directive 2008/01 concerned the chemical ABC, and the other, Directive 2008/02 concerned another chemical, XYZ. Both chemicals are commonly used in the manufacture of fertilisers and can find their way into waste water from factories, thus contaminating groundwater in surrounding areas. Both Directives were to have been implemented in all Member States by 31 July 2011 and set out not only the maximum amount of each chemical in parts per million (ppm) that could be allowed into waste water from factories, but also a requirement for a compulsory testing regime to be put in place by each Member State to monitor compliance with the maximum limit. The following situations arise:

    (a) The UK has failed to implement Directive 2008/01 with regard to chemical ABC. A manufacturer of fertiliser, Fattenem, has been increasing the use of ABC in its products and has not upgraded its waste water facilities since 2000. Residents in the neighbourhood of the factory have been complaining recently of a bad smell in local streams and ponds, and members of the local gardening club have suffered stomach upsets, which their doctors have traced to the presence of high levels of ABC in their home-grown vegetables. Can (i) the residents generally and (ii) the gardeners specifically, rely on the Directive either against Fattenem or the UK government?

    (b) The UK has implemented Directive 2008/02 within the time limit but the legislation does not provide for the establishment of a compulsory testing regime as required in the directive, preferring instead to rely on each user of XYZ to comply voluntarily. Lawyers for the residents and gardeners believe that Fattenem, who also use this chemical in their products, are taking advantage of the voluntary regime to allow the level of XYZ in the groundwater to rise to unacceptable levels and have the same effect as ABC on the residents and the gardeners. Advise the lawyers as to whether the residents and/or the gardeners could rely on the Directive in a claim against the UK government.


    can anyone help me please??
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    If anyone can please help with structuring this essay as I am finding it ever so difficult . EU has never been a strong subject for me, and this essay questions has just baffled me ...




    The Court of Justice has, in Cassis de Dijon and Keck, radically developed the law on the free movement of goods in such a way as to eliminate the previously held assumption that legislative harmonization was the only answer to the elimination of obstacles to interstate trade. However, an argument can be made that these cases are contrary to the philosophy of Article 34 TFEU.”

    Thank you
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    (Original post by Apples123)
    If anyone can please help with structuring this essay as I am finding it ever so difficult . EU has never been a strong subject for me, and this essay questions has just baffled me ...




    The Court of Justice has, in Cassis de Dijon and Keck, radically developed the law on the free movement of goods in such a way as to eliminate the previously held assumption that legislative harmonization was the only answer to the elimination of obstacles to interstate trade. However, an argument can be made that these cases are contrary to the philosophy of Article 34 TFEU.”

    Thank you
    Just think about whether Cassis de Dijon and Keck are really that radical? If you go back to Dassonville, are they extensions of this case or merely interpretations (in which case, it's radical only in how we think)? Should it be caselaw or legislation creating harmonisation, especially given the wider approach the ECJ is taking these days to what is unlawful. Consider what Article 34 is meant to acheive. Does Keck, in particular, block this? Or is it justified? Does Cassis go too far, perhaps, especially with regard to Trailers.

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