Can you please help me with these two questions:
An (imaginary) Directive which was adopted by the Council on 1st May 2005 provides as follows:
“Consumers who have purchased goods and services through mail order outlets in any Member State shall have the right to withdraw unilaterally from the contract within 15 days of the date of placing the order by giving notice in writing to the supplier. Within 7 days of receiving such a notice, the supplier shall make a full refund of the contract price to the consumer, subject to the deduction of a reasonable amount in order to cover any costs incurred by the supplier for carriage and administration.”
The Directive provided that it was to be implemented in all Member States by 1st May 2008, but the UK government has so far failed to do so.
Christina, a British national who runs a graphic design business based in Brighton, ordered a new computer system on 5th June 2008 from Avalon Computers Ltd., a mail-order firm specialising in computer equipment designed for professional graphics use and based in Reading. Christina paid £3,000 in full for the equipment and it was delivered to her studio a few days later.
However, the following week she learned that she had lost an important order from clients in America for future design work, and reluctantly decided that she could not afford the new computer system at the present time. She immediately contacted Avalon by fax and asked the company to take back the computer (still boxed and unused) and refund the money paid. The company refused.
Christina has turned to a firm of London solicitors for advice. You are a trainee in this firm and your boss, who knows very little European Community Law, has asked you to prepare a report on Christina’s situation.
Advise her clearly and fully as to her rights under European Community Law (if any) to obtain a refund of the money she has paid for the goods from Avalon. If she is unsuccessful in doing so, can she obtain redress from any other person or body?
(Since your boss knows little EC Law, she will require an explanation of the principles and cases you intend to use, but at all costs do not bore her with irrelevancies. Think all the time about your client’s situation and give appropriate advice.)
How (if at all) would your answer to Part 1 above differ if the legislation had been introduced by means of a Regulation rather than a Directive?
A colleague has just shown you an (imaginary) article appearing in today’s edition of The Times which states:
“…The British government has publicly expressed its opposition to the Directive on the grounds that the wrong Treaty Article was used as the legal base for the measure. A spokesman for the government has also stated that the Directive is seen as an unnecessary encroachment on the part of the Community into an area which should remain within the sovereign powers of the Member States. The UK voted against the Directive when it was adopted by a qualified majority in the Council last year, and the government is now considering taking legal action against the Council in order to have the Directive annulled.”
Explain to your colleague what this means, particularly the possible grounds on which the UK might be able to base a legal claim against the validity of the Directive. Explain also what sort of action would be involved and the conditions under which it may be brought.
Do NOT discuss issues of substantive EC law, English consumer law or English contract law.
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- Thread Starter
- 04-08-2009 18:09
- 04-08-2009 21:45
Both are straightforward once you understand how to approach EU problems.
In Part A, Christina wants to rely on direct effect. The best way to approach direct effect problems (and to an extent essays) is to start with the general rule of no horizontal d.e.; and get yourself a wee list of the exceptions. Run through them one by one and have a look at whether they may or may not apply on the facts. For example, there is the possibility of a Von Colson duty of consistent interpretation taking effect. Perhaps the relevant English contract law could be interpreted to accord with the Directive. Don't forget to actually apply the law to the facts and discuss whether it might apply or not.
As in any direct effect question, you need to consider the alternative possibility of a Francovich claim for damages against the State. Don't forget to consider the pros/cons of this.
In Part B we are looking at a art 230 action for annullment.. You need to run through the four requirements stated by art 230. Its common for people in these questions to skimp over the actual grounds for annullment and just focus on standing. This would be very bad here as the most important issue is the grounds. Here, we are looking at lack of competence and subsidiarity. Note the practical problems with bringing a subsidiarity claim - as cases like Biotech show its fairly hard to demonstrate, and the ECJ are fairly reluctant to arbitrate on it as it involves making political judgments.
- 04-05-2011 22:12
It turns out, i have the exact same question!!!
how did you do in it?
Is avalon an emanation of the state? can they be sued??