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    Hi,
    I have been trying to wrap my head around the direct/indirect effect for few days now, however if it comes to problem questions I'm clueless.
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    Assume that it is 2016 and the European Commission has proposed a new EU Directive on cycling-only Streets in Urban Areas. It uses Article 114 TFEU as the legal basis for the Directive and the Directive is passed by the EU institutions using the consultation procedure.Article 114(1) TFEU reads as follows:“Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of th e internal market.”
    The Directive specifies cycling-only streets in a large numbers of cities throughout the European Union, including London. It provides that specified streets in the centre of London shall be for the exclusive use of cyclists and pedestrians. The Directive states that no vehicles of any kind, apart from pedal cycles, are permitted to use any street within a one kilometre radius of Anne Square in London. The Directive is due to come into force on 1 August 2016. As yet, the UK government has not taken any specific steps to implement the directive. Café Nero is a restaurant on Anne Square. Pharmacorp is a multinational pharmaceutical company which has its European Office in Anne Square. It has warned the UK Government that it will relocate its European Office elsewhere if the Directive is implemented. Café Nova and Pharmacorp want to challenge the legality of the directive as they are concerned about the effect it will have on their businesses.
    The UKGovernment voted against adoption of the Directive in the Council of Ministers as it was concerned at the potential for adverse impact on city centre businesses.
    It is now May 2016.
    Advise Café Nero, Pharmacorp and the UK Government.
    As far as I know, according to Art. 288 TFEU, directives must be implemented into national law during specified period of time. I have completely no idea how can I apply either direct/indirect effect or even state liability.

    If anyone is able to help me out or tell me where to look for an answer I will be extremely grateful. Thanks in advance.
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    (Original post by awooooo)
    Hi,
    I have been trying to wrap my head around the direct/indirect effect for few days now, however if it comes to problem questions I'm clueless.
    Spoiler:
    Show
    Assume that it is 2016 and the European Commission has proposed a new EU Directive on cycling-only Streets in Urban Areas. It uses Article 114 TFEU as the legal basis for the Directive and the Directive is passed by the EU institutions using the consultation procedure.Article 114(1) TFEU reads as follows:“Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of th e internal market.”
    The Directive specifies cycling-only streets in a large numbers of cities throughout the European Union, including London. It provides that specified streets in the centre of London shall be for the exclusive use of cyclists and pedestrians. The Directive states that no vehicles of any kind, apart from pedal cycles, are permitted to use any street within a one kilometre radius of Anne Square in London. The Directive is due to come into force on 1 August 2016. As yet, the UK government has not taken any specific steps to implement the directive. Café Nero is a restaurant on Anne Square. Pharmacorp is a multinational pharmaceutical company which has its European Office in Anne Square. It has warned the UK Government that it will relocate its European Office elsewhere if the Directive is implemented. Café Nova and Pharmacorp want to challenge the legality of the directive as they are concerned about the effect it will have on their businesses.
    The UKGovernment voted against adoption of the Directive in the Council of Ministers as it was concerned at the potential for adverse impact on city centre businesses.
    It is now May 2016.
    Advise Café Nero, Pharmacorp and the UK Government.
    As far as I know, according to Art. 288 TFEU, directives must be implemented into national law during specified period of time. I have completely no idea how can I apply either direct/indirect effect or even state liability.

    If anyone is able to help me out or tell me where to look for an answer I will be extremely grateful. Thanks in advance.
    Hi honey {: this is an example of a harmonisation procedure , which basically means that the EU is imposing a standard that is either a minimum, hybrid or maximum standard - if it is a maximum standard, the UK cannot derogate (see, for example, Dip Dim; Moormann; Com v Germany on uncastrated male pigs), if it is a minimum standard the UK can impose a higher standard (see, for example, KO v De Agostini) and if it is a hybrid standard, the UK can impose a higher standard on DOMESTIC traders but not on imports (for example, Gallaher)

    In this example, Café Nova and Pharmacorp would likely want to challenge the legality of the use of the harmonisation procedure under Article 114. Such use needs to be residuary (Com v Council (VAT)) , for the approximation of national laws (Tobacco Advertising 1 - from hereon called TA1) and needs to either be trying to remove obstacles to trade or distortions in competition (TA1) which are either potential or future obstacles/distortions , but always appreciable/likely (Titanium Dioxide for distortions, TA1 for obstacles).

    In this case, it could be argued that the use of Article 114 was not for the approximation of national laws to establish/improve the functioning of the internal market - cycle-only highways seems truly irrelevant to such an objective. You could point to the case of TA1 where the fact that the Directive had a huge overlap with public health was one of the reasons for the entire Directive being struck down (although also keep in mind that, in TA2, the fact that the Directive had a 'decisive impact' on public health did not affect the validity of the Directive).

    Additionally, even if it was found to be valid, the UK could try to derogate from the standard imposed under Paragraph 4 of Article 114, arguing that for the protection of the working environment, it is vital that they do not implement the Directive. To prove it would affect the working environment, they should point to how P are threatening to move their offices elsewhere, and the fact that it might be a lot harder to receive deliveries etc.

    Hope that helps
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    Thanks for the reply!

    I haven't heard of the harmonisation procedure nor maximum/minimum standard as the exam is on constitutional law not EU law. It's not mentioned in the textbooks nor the slides so I guess that's "too far" :P.

    I did some more research though, would it be enough - at this level, to say that both cafe and P have rights under TFEU art. 263 as non-priviledged applicants to seek an annulment of the directive? MS as well as they are a priviledged applicant, however they not to meet the time requirement laid out in art.263(5). Then argue that the use of Article 114 was not for the approximation of national laws to establish/improve the functioning of the internal market and the cycle-only streets seem to be irrelevant, then finish it off with the argument that it will affect the working enviroment with P threatening to move the offices etc.?

    I would really appreciate if you could clarify it, thanks again for the reply.
 
 
 
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