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European Union Law

 

Question 1 – Direct Effect:

• Explanation of the European Union Communities Act 1972 in particular s.2(1), s.2(2), s.2(4)
• Define Direct Effect = provisions of EU law which confer legally enforceable rights which individuals can enforce by suing in their national courts.
• Explain the difference between vertical and horizontal direct effect.
• Explain which sources of EU Law are capable of DE.
• Provisions of EU law are directly applicable if they become part of Member States’ law, automatically without the need for implementing legislation at national level.
• Vertical and horizontal effect should be addressed and illustrated by cases such as Van Genden Loos [1963] ECR 1 (Case 26/62.)
• In Van Genden Loos [1963] ECR 1 (Case 26/62.) the Dutch court asked the ECJ to rule on whether an individual could sue directly on this Treaty provision in a national court. This key authority decentralised enforcement of EU law by individuals in domestic courts.
• Other authorities key for explanation of the operation of direct effect involve Defrenne v Sabena Case 43/75 [1976] E.C.R. 455, Van Duyn v Home Office [1975] Ch 358 ECJ, Marshall v Southampton AHA [1986] ECR 723 ,
• Directives can only have vertical direct effect because if a Member State fails to implement a directive, an individual cannot be penalised for its failure.
• It is necessary to indicate that as established by key authorities such as Marshall v Southampton AHA [1986] ECR 723 the directives can only give rise to vertical direct effect and that vertical direct effect is extended to public bodies (emanations of the State) as well as the Member States.
• Also it does not matter whether the public body is acting in the capacity of a public body for vertical effect to take effect.
• Foster v British Gas Plc. [1991] 2 AC 306 indicates what institutions will be regarded as a public body or an emanation of the state.
• Final marks will be gained by addressing the state liability as well as the principle of indirect effect and the importance of Francovich v Italy [1991] ECR I-5357, [1993] 2 C.M.L.R. 66; Case C-14/83 Von Colson and Herz [1984]
• It is crucial that the above legal test and principles are applied accordingly to the facts of the scenario.

Question 2- Art 258 Enforcement
• Article 258 (ex Article 226 TEC) identifies why enforcement of European Union law is necessary. It provides that if the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
• If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.
• The wording provides the Commission with discretion whether to take a breach by a member State to the ECJ based on time for settlement negotiations.
• Also if breach minor may be appropriate not to move to next stage.
• The discretion enables account to be taken of political considerations.
• The enforcement process consists of few stages.
• Step (1) Informal discussions. The Commission asks the Member State to respond within a specified period and aims to conclude the stage within a year. The dispute is usually resolved by the Member State making the appropriate changes or by persuading the Commission that there is no breach.
• Step 2 Letter of Formal Notice for example, Commission v Italy Involved an alleged breach by Italy in failing to pay export rebates to its farmers. The letter of formal notice alleged breaches up to 1967 but failed to mention later breaches. When the matter came before the ECJ, it refused to consider the later alleged breaches.
• Step (3) reasoned opinion. This is a coherent statement of reasoning that explains why the Member State is at fault. It establishes the legal arguments against the State and must be as reasoned as possible. The Commission cannot add further grounds later. This stage provides a period of grace for the Member State, usually two months, however in urgent cases two weeks may be acceptable (Commission v Belgium [1986] ECR 1149). For example, Commission v Ireland [1984] ECR 314.
• Step (4) Case referred to the ECJ. The discretion of the Commission should be considered here. The Commission can bring an action any time after the time limit in the reasoned opinion has expired. For example, Commission v Germany [1994] ECR 2039. A delay of 2 years after the time limit expired did not render the action inadmissible.
• If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court. As provided by Article 260 (ex Article 228 TEC)
• If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it
• For example, in the Commission v France Case C-304/02, France was ordered to pay lump sum fine of EUR 20m and a fine of EUR 57,761,250 for each 6 months the breach continued after July 2005. France had failed to comply With EU measures for fisheries conservation – it allowed undersized fish to be offered for sale. In the end France paid a total of EUR 77,761,250!
• Also potential defences should be addressed:
• Legislative difficulties- For example, Commission v Italy (1982)
• Reciprocity.
• Necessity, for example Commission v Italy (Re Ban on Pork Imports).
• Change in practice, for example Commission v France (Re French Merchant Seamen).
• Force Majeure, for example Commission v Italy (case 7/61).
Question 3 – Art 267 Preliminary Referencing

The answer should explain that the preliminary reference procedure is a mechanism whereby national courts refer questions of EU law to ECJ
• It ensures uniformity of interpretation of EU law. Avoids separate versions of EU law developing in different MS.
• The definition or explanation of Article 267 TFEU (ex Article 234 TEC) should be included, for example:The Court of Justice of the European Union shall have jurisdiction to give preliminary rulingsconcerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;where such a question is raised before any court or tribunal of a Member State, that court or Tribunal may, if it considers that a decision on the question is necessary to enable it to givejudgment, request the Court to give a ruling thereon.
• Role of ECJ is to give ruling on the question of EU law that is then sent back to national court to apply.
• It should be noted that national court is sovereign in respect of issues of fact and domestic law. The ECJ only has jurisdiction to rule on EU law. The respective courts work in partnership.
• Fundamentally different from an appeal procedure. ECJ does not impose a judgment –only rules on EU law.
• Critically discussion should include that the procedure depends for its success on mutual co-operation between the national courts and the ECJ. Much depends on:
a) the national courts knowing how and when to refer, and
b) the ECJ knowing when to accept and when to decline a reference
• It can be described as a horizontal relationship because neither court is ‘higher’ than the other. The two courts work together on an equal footing.
• It can also be described as a bilateral relationship because the ruling of the ECJ is delivered to the referring national court only and is binding only in that particular case.
• The need for the procedure should be observed as Art 267 ensures uniformity of interpretation of EU law. Avoids separate versions of EU law developing in different MS.
• Prevents supremacy of EU law being undermined.
• Educates national courts with the workings of EU law.
• Has enabled the ECJ to create the new legal order. E.g. through concepts of supremacy, direct effect, indirect effect, state liability.
• ECJ can give rulings on what EU law has direct effect.
• The treaty provision states that any court or tribunalmay refer a question if it considers that a decision on the question is necessary.
• But the treaty provision also states that a court against whose decision there is no judicial remedy under national law,…shall bring the matter before the ECJ
• Relevant case law: Broekmeulen Case (1981) B, a Belgian was refused registration as GP in Holland. Dutch appeal committee for medicine was not a court or tribunal under Dutch law. However, de facto its decisions had serious consequences and the ECJ held it was a court or tribunal who could make a preliminary reference to the ECJ.
• Discussion on who can make a reference to the ECJ should involve: Borker (1981) Borker a member of Paris bar who was in dispute with courts of another MS over right to practise. Paris bar council sought ruling on behalf of Borker from ECJ. ECJ held Paris bar was not a court or tribunal. It was not acting as a court to determine the issues.
• Narrow definition. In Bulmer v Bollinger (1974) Lord Denning considered only the highest Court in the land had this mandatory duty e.g. HL in UK
• Wide definition. Costa v ENEL (1964) Involved a claim for less than £2 in Italian small claims court. No appeal against its decisions because of small claims. Was obliged to refer to ECJ point of community law.
• CILFIT: The ECJ indicated that a reference would not be necessary in following circumstances
• Where the question of EU law is not relevant OR
• Where the question of EU law has already been interpreted previously in a decision before the ECJ OR
• Where the correct interpretation of EU law is so obvious as to leave no scope for reasonable doubt.
• Also relevant to discuss Acte Clair doctrine –comes from French administrative law.
• In simple terms the doctrine is that if the answer to a question of law is clear there is no question of interpretation for the court to decide.
• Problem with doctrine is it is open to abuse. It can undermine the whole purpose of preliminary references. Can lead to fragmentation.
• Who decides what is clear? R v Henn & Darby (1979)
• Critical evaluation of the procedure: Some courts may use the doctrine to get out of making a reference.
• Some courts may end up making a reference when it is not really necessary, because CILFIT requires them to be convinced that the matter is equally obvious to the courts of other Member States and to the ECJ!
• The effect of the preliminary referencing:
• Costa v ENEL the ruling is binding on all courts considering the particular question of EU law.
• The national judge has consulted the oracle and must accept the reply as what indeed the Treaties say it is: a ruling, not an opinion.’ By Brown and Jacobs
• N.B. Not binding on issues of fact or domestic law. See problems in Arsenal v Reed.
Question 4 FMOG
Begin with a very brief introduction to the free movement of goods in the internal market, referring to Article 26 TFEU.
• Discuss Article 34: Quantitative restrictions on imports and all measures having equivalent effect hall be prohibited between Member States
• Article 35 Same prohibition for exports
• Article 36 Contains derogations (exceptions) to prohibition
• Articles 34 and 35 apply to Member States; however the ECJ has defined scope broadly to include all forms of government national and local, and activities of public bodies.
• Explain what is meant by Quantitative Restrictions: Riseria Luigi Geddo v EnteNazionaleRisi “Any measures which amount to a total or partial restraint on imports, exports or goods in transit”
• Measures having an equivalent effect to a quantitative restrictions (MEQR) . MEQR’s more common in practice than QR’s..
• 2 categories of MEQR’s identified in Directive 70/50
• Distinctly applicable – i.e. MEQR applies distinctly only to imports.
• Indistinctly applicable – i.e. MEQR applies indistinctly to both domestic and imported goods but still capable of restricting FMOG
• ECJ’s defined MEQRs in Dassonville as:
“All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.’
• Effect of potential hindrance suffices; intent to discriminate is not required.
• Actual hindrance unnecessary provided such an effect potentially can occur.
• No de minimis exception.
• The extraordinary breadth of Dassonville formula is capable of catching any actual or potential direct or indirect barrier to FMOG that is non-fiscal.
• Examples of MEQR’s from the existing case law include
• Promotion of home produced goods
• Origin labelling requirements
• Price fixing both minimum and maximum
• Import or export restrictions or requirements
• Examples: Buy Irish campaign” case [1982] In 1978 Irish Goods Council –an enterprise funded by private industry and Irish Govt embarked on a concerted campaign to achieve a 3% switch in Irish consumer spending from imports to goods produced by Irish industries.
• Contrast with Apple & Pear case (case 222/82) Apple and Pear development council set up by UK govt to market UK fruit growers goods. Marketing drew attention to qualities of UK fruit such as the appearance and crispness of English apples with the slogan “Polish up your English”.ECJ held ban on non-fiscal barriers does not prevent drawing attention to particular qualities of fruit grown in MS.
• According to the principle of mutual recognition, there is an assumption that if goods have been lawfully produced and marketed in one Member State there is no reason why they should not be introduced into another without restriction (Cassis, Prantl, Walter Rau).
• Consider the impact of Art 30 and 110
• Discuss what fiscal barriers are and why they are prohibited
• Arts 30 and 110 are mutually exclusive (Deutschmann v FRG [1965] ECR 469).
• Commission V Italy (Case 24/68) Define charges having equivalent effect
• To avoid ‘hedging your bets’ over which Art applies to a charge, simply think about the basic characteristics of a charge equivalent to a customs duty and the basic characteristics of a discriminatory tax.
• Are the charges discriminatory or non-discriminatory?
• Discriminatory charges are applied only to imported goods
• Discriminatory CEE’s will usually fall foul of Article 30.
• In a number of cases Member states have tried to defend such a charge on the basis it is levied to benefit the importer. E.g.
• Fees for a serviceCommission v Italy
• Fees for an inspection Commission v Belgium, Bauhuis v Netherlands [1977] ECR 5, Commission v Germany (Animal inspection fees) Case 18/87
• No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products-Art 110(1).
• Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.’-Art 110(2)
• Feldain v DirecteurDes Services Fiscaux [1987] ECR 3536
• Humblot v Directeur des Services Fiscaux(case 112/84)

Module Handbook

283CLS – European Union Law

Coventry University
Module Guide

Faculty of Business and Law
283CLS – European Union Law
MODULE GUIDE 2015/2016

This document is designed to supplement information containing in the University’s web – based Module Information Directory, which can be accessed via:

https://webapp.coventry.ac.uk/MidWebCurr/module.aspx?modid=283cls&sec

1. Module Introduction

This module will be delivered through 3 hours of lectures and 1 hour of seminars per week. You should consult your individual timetable for the time and locations of these sessions. This should be done on a regular basis as any changes to times/rooms will be reflected on your timetable if possible.

Seminar groups will be allocated to you through timetabling. You are required to attend only the seminar that has been allocated to you. Attendance will be monitored and absences relayed to Registry.

Full attendance at, and participation in seminars and/or lectures is vital if you are to benefit fully from this module. It is only by engaging fully with the course that the necessary understanding and critical awareness will be developed. To fully develop your understanding of this module you will be expected to read cases, statutes, articles and textbooks as set by the teaching staff.

2. Module Tutor(s)

Module Leader: Karolina Norris
GE215
024 658748
ab5837@coventry.ac.uk
Module Team: Adrian Woodab1630@coventry.ac.uk
Aaron Cooperac0078@coventry.ac.uk
Sue Westwoodab8918@coventry.ac.uk

3. Teaching Plan

Below is an indicative programme of the topics that will be covered throughout the course. The topics will not necessarily be covered in this order and some will be covered in more depth than others.

Topic
1 An outline of the evolution, objectives and development of the European Union.
2 Sources of European Union law and examination of the functions of the main institutional bodies: the Council of Ministers, the European Parliament, the European Commission, and the European Court of Justice. The Law-making process.
3 The nature of European Union Law: supremacy, applicability and direct effect, and the impact on the national law of Member States with particular reference to the UK. The relationship of the European Court of Justice to the national courts of Member States.
4 The enforcement of European Union law in relation to both Member State liability and the European Union
5 An introduction to the substantive law of the European Union with particular emphasis on free movement of goods, persons and services

4. Intended Module Learning Outcomes

The intended learning outcomes are that on completion of this module the student should be able to:

1. Evaluate the role of the Institutions of the European Union and the law making process;

2. Understand and evaluate the impact of UK membership of the European Union on domestic law;

3. Analyse the limits of European Union law in providing remedies to Member States and individuals;

4. Use a wide range of specialist skills in order to formulate responses to problem scenarios covering areas of law specific to this module;

5. Analyse and evaluate the main substantive EU law freedoms in their social, legal and economic contexts.

5. Assessment

Examination – the examination will be held in the Semester 2 examination period and will account for 100% of your total module mark. The examination will be of two hours duration and involve utilising the knowledge and materials covered in your lectures and seminars.

You must achieve at least 40% in the examination component in order to pass the module.

6. Module Resources.

Students have been provided with a copy of:

Unlocking EU Law (Unlocking the Law), Chris Turner, Tony Storey, 6 Mar. 2014 Routledge; 4 edition

Compulsory reading will be set for each seminar from this textbook. If students wish to use an alternative textbook, they should seek advice from their module tutor on this.

All students are expected to check the module page for 388CLS on a regular basis as materials will be provided for you on moodle.

Students will also find a link to the module ‘resource list’ which is on the left hand side of the module page under the ‘links’ block.
Assessment
The exam consists of Part A and B. Part A consists of a compulsory question, Part B will give you a choice to answer one out of two Questions provided. Your seminar attendance is crucial, as the seminar questions will enable you to prepare efficiently for the final exam and help you outline the expectations for the mark you want to obtain.
Seminar Questions

Seminar 1
Introduction to EU Law
1. Discuss what do you know about the history and the foundations of European Union already. (maybe from media or previous studies)
2. Discuss why the EU Law is relevant in the UK.
Seminar 2
History of EU and the Treaties
Answer the following questions:

1. Critically examine the main provisions of the Treaty of Rome (The EC Treaty) and its constitutional significance as a whole.

2. Discussin detail the constitutional changes made to the EC Treaty by the Single European Act 1986.

3.Discussin detail the constitutional changes instituted by the Treaty on European Union.

4. Discussin detail the constitutional changes made by the Treaty of Lisbon
• in respect of the Community institutions
• in respect of other constitutional changes.
5.Consider likely developments in the future of the European Union.

Reading Guidance:

Unlocking EU Law -Tony Storey & Chris Turner, 2011, Chapter 1 and 2

Craig & De Burca EU Law: text, cases and materials (2015) Chapter 1
Fairhurst: Law of the European Union (2010) chapter 2
Foster onEU Law (2013), chapter 1

Seminar 3
Sources and general principles of EU Law
Discuss the following questions:

1. What general principles have been adopted by the ECJ in resolving disputes involving individuals?

2. How are fundamental human rights applied by the ECJ?

3. To what extent have general principles been applied to control actions by Member States and Community Institutions?

Reading Guidance:
Unlocking EU Law -Tony Storey & Chris Turner, 3rd Edition, Chapter 3 and 4
Craig & De Burca EU Law: text, cases and materials (2015) Chapters 2 and 4
Fairhurst: Law of the European Union (2010) chapter 2

Foster on EU Law (2013), Chapters 2 and 4
Seminar 4

Supremacy and nationalsovereignty

1. Explain in detail the term primacy/supremacy of European Union Law and the rationale given for that concept by the Court of Justice.

2. Explain in detail how the doctrine has developed through ALL of the following cases:
• Van Gend en Loos (case 26/62) [1963] ECR 1,
• Costa v ENEL (case 6/64) [1964] ECR 585,
• Internationale Handelsgesellschaft (case 11/70) [1970] ECR 1125,
• Simmenthal (case 106/77) [1978] ECR 629,

3. Explain the facts and significance of the Factortame case in the context of both the primacy of EU Law and the United Kingdom’s constitution.

4. Consider the following two separate (and mutually exclusive) scenarios:

(a) In November 2013 the UK Parliament passed the Employees Inequalities Pay Act which enables employers to legally pay both female and part-time workers less per hour than equivalent male and full-time workers. What is the effect of this Act and is it legally enforceable?

(b) In December 2013 the UK Parliament passed the Anti-European Act 2013 which states that the UK has withdrawn from the European Union, no longer recognises the European Court of Justice and repeals the European Communities Act 1972. What is the effect of this Act and is it legally enforceable?

Reading Guidance:

Storey & Turner: Unlocking EU Law (2011), chapter 8

Craig & De Burca: EU Law, text, cases and materials (2015), Chapter 9

Fairhurst: Law of the European Union (2012), chapter

Foster: EU on EU Law (2013), Chapter 5

Seminar 5

Direct Effect:

1. Fred works for Fast Track Roads PLC (“FTR”), a company incorporated to build, maintain and operate a relief road around Leicester. FTR is authorised to maintain the relief road under the Relief Roads Act 1994, which also gives it powers to restrict the amount of traffic using the road in cases of emergency or national disaster.
Council Directive 007/2006 requires Member States to take “all measures necessary to ensure that road workers are provided with appropriate safety equipment, including fluorescent yellow jackets”.
Directive 007/2006 was due to be implemented by 31 December 2006 but so far the UK has failed to pass any implementing legislation.
The Relief Roads Act 1994 merely provides that companies maintaining relief roads should “take steps to ensure that their employees are advised to wear appropriate clothing”.
In August 2007, Fred sustained serious injuries to both his legs when he was hit by one of the road maintenance vehicles during his regular night-time maintenance shift. He was not wearing a fluorescent yellow jacket because FTR had not provided him with one.
Advise Fred as to whether he can use the principles of direct effect or indirect effect to take legal proceedings against FTR to claim compensation for his injuries. In addition, Fred asks if the principle of state liability will help him.

2. Revision Questions

• How does EU law become part of UK law?
• Does EU law give us as individuals legal rights we can enforce in our national courts?
• What conditions do I need to prove to be able to sue under direct effect in my national court?
• Who can be sued under EU law? Can I sue only a member state or public bodies? Can I sue other individuals? Is the answer the same for treaties regulations and directives?
• What is the definition of an emanation of the state?
• What effect does EU law have (if any) on the interpretation of UK law?
• Does it make any difference if the domestic law pre-dates or post-dates the EU law provision?
• What is meant by sympathetic interpretation
• Can Member States be sued for failure to implement EU law even if the EU law does not have direct effect? If so what must the claimant prove?
Reading Guidance:
Craig & De Burca: EU Law: Text, Cases and Materials (2015) Chapter 7,
Fairhurst: Law of the European Union (2012) Chapter 9
Foster: EU Law Directions (2012), Chapter 8,

Seminar 6
Preliminary Referencing:
1. Please prepare to discuss the essay question below:

‘Critically discuss the role of Article 267 TFEU in ensuring the uniformity of the European Union.’
2. Revision Questions
• What is the preliminary ruling jurisdiction of ECJ?
• Why have preliminary rulings?
• When may a court refer? Discretionary references.
• When must a court refer? Mandatory references.
• What is meant by the term a “court or tribunal”? I.e. Which bodies can refer?
• When can ECJ refuse to give a ruling?
• Are there any situations when a reference is not necessary?
• What are the strict conditions for “acte clair” to apply?
• What is the effect of a preliminary ruling?

Reading Guidance:
Storey & Turner: Unlocking EU Law (2011) Chapter 7,
Craig & De Burca: EU Law: Text, Cases and Materials (2015) Chapter 13,
Fairhurst: Law of the European Union (2012) Chapter 6,
Foster on EU Law (2013) Chapter 6,

Seminar 7
Enforcement against Member States:
1. In an attempt to reduce obesity in children, the Council has issued the Healthy Eating at School Directive. The Directive requires Member States to enact legislation requiring schools to implement healthy eating policies. The date for implementation of the Directive was 1 April 2005.The UK has failed to implement the Directive within the time limit

The UK has raised the following defences to justify its non-compliance:
• Latvia has also failed to implement the Directive within the time limit.
• The UK government was unable to implement the Directive because road works outside the Houses of Parliament caused many Members of Parliament to miss the debate on enactment of the necessary legislation.
• There have been numerous outbreaks of violence by angry groups of parents who object to their children being told what to eat.

Advise the Commission of the measures which it is authorised to take under the Treaty to enforce the obligation imposed by the Directive, of its powers of enforcement and any relevant defences.
2. Revision Questions:

• What is the need for enforcement rules?
• What does the Treaty say?
• What criticisms can be levelled at the enforcement mechanism?
• How does enforcement take place? Stages.
• Are there any defences?
• The parallel procedure for enforcement by other member states

Reading Guidance:
Storey & Turner: Unlocking EU Law (2011) Chapter 6
Craig & De De Burca: EU Law: Text, Cases and Materials (2015) Chapter 12,
Fairhurst: Law of the European Union (2012) Chapter 7,
Foster on EU Law (2013), Chapter 6,

Seminar 8 and 9
Free movement of Goods and Fiscal Barriers.

1. Following the election of a Government that has a strong policy of environmental protection, Spain has introduced the following fiscal measures:

a. A charge to contribute towards the cost of testing the emissions levels of all imported cars that have petrol or diesel engines. The charge is based on the engine size.

b. An internal tax on both imported and domestically produced four-wheel drive cars. The revenue from this tax is to be used to assist the Spanish car producers with their continuing research in improving the performance of hybrid engines to protect the environment.

c. An internal tax on both imported and domestically produced cars. However, cars with a petrol or diesel engine have to pay a much higher charge than hybrid electric cars. Most cars produced in Spain are now have, hybrid electric engines.

Advise Spain as to their potential liability under Articles 30 and 110 TFEU.

2. FrankYourOwn is a UK manufacturer of special plates for franking machines, which it has supplied to franking machines manufacturers in the UK and Germany for the past ten years. FrankYourOwn now plans to expand the business and import its plates into Poland.
FrankYourOwn has been advised that under Polish legislation a special license is required for the import of any parts for the franking machines (FMs). License applications are considered by the Polish authorities only in January and July each year. FrankYourOwn has also learned that Poland has an annual limit on the number of plates that may be imported and has regulations stipulating that the industrial machinery parts, including the plates, can only be sold through government sales outlets.

Poland also has a product approval legislation requiring all the parts used for FMs to obtain a national endorsement certificate. This legislation has recently been introduced following the publication of a research study, conducted by the Polish machinery industry. The study suggests that, over the past six months, the domestic franking plates have been proven to be a lot more reliable due to the self-clearing filter that they are fitted with. FrankYourOwn plates do not comply with the Polish legislation. They are not fitted with the self-clearing filter; however, FrankYourOwn believes that their plates operate much more efficiently than the self-clearing filter units required by the legislation.

Advise FrankYourOwn as to the application, if any, of EU law on the free movement of goods under Art 34.
3. Revision questions

Consider the following measures recently introduced by the MalteseGovernment and comment on their compatibility with EU law:

• A charge for veterinary and public health inspections carried out on the importation of raw meat products. Domestic products are not inspected and so are not subject to the charge.
• An internal tax on both imported and domestically produced motorbikes. Importers are required to pay the tax immediately on importation but domestic producers are given up to 3 months to pay the tax.
• An internal tax on both imported and domestically produced milk. The revenue produced is to be used to fund investment projects in small scale Maltese dairy farms.
• An internal tax on both imported and domestically produced table fruits, but with apples being taxed at a higher rate than oranges. Malta has a thriving orange producing industry but grows very few apples.
• A requirement for imported milk to be inspected by the Maltese Milk inspection board to check that imported milk meets Maltese food safety requirements. No charge is levied for these inspections but importers are objecting to the delay these inspections cause

Reading Guidance:
Craig & De Burca: EU Law: Text, Cases and Materials (2015) Chapters 17, 18, 19,
Fairhurst: Law of the European Union (2012) Chapter 17 and 18,
Foster on EU Law (2013), Chapter 8,

Seminar 10
Revision Drop in Sessions
Please prepare the revision questions included under each seminar topic and see your seminar leader in order to verify the answers and discuss any exam queries you may have.
You can also test your knowledge with the MCQ below:
Question 1
Which Treaty created the European Economic Community?
a) The European Coal and Steel Community Treaty
b) The Treaty of Rome
c) The Single European Act
d) The European Convention on Human Rights

Question 2
How would you describe the structure of the European Union, as set up by the Treaty on European Union 1992?
a) A structure incorporating national parliaments
b) A two-pillar structure
c) A three-pillar structure
d) A structure incorporating the European Court of Human Rights

Question 3
What term is often applied to the complex and fragmented constitutional structure established by the Treaty on European Union 1992?
a) A Europe of variable geometry
b) The acquis communautaire
c) Supranationalism
d) Intergovernmentalism

Question 4
What is meant by ‘subsidiarity’?
a) Decisions or action taken at Union level
b) Decisions or action taken at national level
c) The relationship between national law and Union law
d) Where decisions or action are taken at Union level, rather than at national, regional, or local level, this must be justified
Question 5
What is the composition of the Council?
a) Representatives elected by the citizens of the Union
b) Representatives elected by the European Parliament
c) Ministers of the Member States
d) Individuals appointed by the European Commission

Question 6
How does qualified majority voting currently operate?
a) Any one Member State can veto a legislative proposal
b) Legislation cannot be adopted without the agreement of at least 80% of the Member States
c) As a system of weighted votes
d) Unanimity is required for all legislation save for legislation concerning the internal market

Question 7
What is the composition of the European Commission?
a) Representatives of Member State governments
b) Individuals who are directly elected by the citizens of the Union
c) Individuals who are nominated by the President of the Commission and Member States and approved by Member States and the European Parliament
d) Individuals appointed by the European Court of Justice
Question 8
Which of the following statements correctly describes a key feature of a directive?
a) A directive must be implemented by Member States
b) A directive must be implemented by the European Parliament
c) A directive has retrospective effect
d) A directive is binding on the governments of third countries
Question 9
‘A [ ] shall have general application. It shall be binding in its entirety and directly applicable in all Member States.’
a) Directive
b) Decision
c) Recommendation
d) Regulation

Question 10
What is meant by the ‘legal base’ of a Union measure?
a) The draft measure proposed by the European Commission
b) The Treaty article conferring the power to legislate in a particular area
c) The Council’s decision to adopt a Union measure
d) The approval of a measure by the European Parliament

Question 11
What is meant by the ‘supremacy’ of Union law?
a) Union citizens bringing claims in national courts must rely on any relevant provisions of Union law, rather than on relevant provisions of national law.
b) The ECJ operates as a supreme court of appeal, with the power to overturn decisions of national courts.
c) Decisions of the European Parliament bind national courts.
d) Union law takes precedence over conflicting provisions of national law.

Question 12
What is meant by the ‘direct effect’ of a Union provision?
a) The provision takes precedence over provisions of national law.
b) No implementation is required.
c) Individuals can rely on the provision in the national court.
d) The provision is binding on national courts from the date of its adoption.

Question 13
What is meant by ‘vertically directly effective’?
a) Describes a provision of Union law that can be invoked in the national court against the state or a public body.
b) Describes a provision of Union law that can be invoked in the national court against an individual.
c) Describes a provision of Union law that can be invoked by individuals in the ECJ.
d) Describes a provision of Union law that can be invoked in the national courts of third countries.

Question 14
In the context of direct effect, which test has been formulated by the ECJ to identify a ‘public body’ or ’emanation of the state’?
a) The Francovich test.
b) The Factortame test.
c) The Union litmus test.
d) The Foster test.
Question 15
Which principle requires that national law be interpreted in accordance with relevant Union law?
a) State liability.
b) Proportionality.
c) Legitimate expectation.
d) Indirect effect.

Question 16
Which principle was established by the ECJ in Francovich?
a) Indirect effect.
b) State liability.
c) Non-retroactivity.
d) Direct effect.

Question 17
In which situation can Francovich liability arise?
a) The Member State has failed to implement a directive.
b) The Member State has opposed the adoption of a directive.
c) The Member State has opposed the adoption of a regulation.
d) The Member State has failed to ratify a Treaty.

Question 18
Which case established state liability for a breach of Union law that did not entail the failure to implement a directive?
a) Marshall.
b) Foster.
c) Von Colson.
d) Factortame.

Question 19
According to Factortame, what was the ‘decisive test’ for a ‘sufficiently serious breach’?
a) The Member State must have committed a breach of the Treaty.
b) The Member State must have failed to provide an explanation for the breach.
c) The Member State must have acted in an arbitrary manner.
d) The Member State must have manifestly and gravely disregarded the limits on its discretion.

Question 20
Following Factortame, the ECJ extended the scope of state liability. To what situation was it applied in BT?
a) Incorrect interpretation of Union law by a national court of last instance.
b) Incorrect implementation of a directive.
c) An administrative breach.
d) Failure to implement a directive.
Formative Assessment Question

This piece of work is highly recommended as a way to provide practice at answering a problem question similar to that which will appear in the examination held after the Easter study break. Moreover, the purpose of the formative assessment is to allow the students to obtain constructive feedback on the work submitted. The deadline is 23:55 on Friday 18th March if you wish to obtain such feedback. Please answer the question below and submit it electronically.

On 1st March 2012 the EU passed a (fictitious) Directive 15/2012 requiring member states to take all the necessary measures to eliminate the production of foods that have been genetically modified by more than 2%. The directive was implemented as a result of an expert report indicating numerous side effects caused by the consumption of the genetically modified food including, pre-cancerous cell growth.
The final date for implementation was the 1st March 2014, but so far the UK has failed to implement the directive. However, the (fictitious) Food Production and Consumer Health Act 2010 imposes a statutory duty on caterers to eliminate unhealthy food and provides for civil liability for failure to comply with this provisions.
Fergie, one of the security guards working for the Charlston Council visited the staff canteen on 3rd June 2014. Fergie purchased a BLT (bacon, lettuce and tomato) sandwich which contained genetically modified tomatoes. Later that day, Fergie suffered from a serious allergic reaction diagnosed as Anaphylaxis. This has caused permanent damage to his gastrointestinal system as well as a serious skin condition. Medical evidence indicates that the Anaphylaxis was caused by the consumption of the delayed ripening tomato that have been genetically modified by more than10%.

Advise Fergie as to whether he can use the principles of direct effect or indirect effect to take legal proceedings against Charlston Council to claim compensation for his injury. In addition, Fergie seeks your advice as to whether or not the principle of state liability could assist him.

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