Examiners’ reports 2017

Examiners’ reports 2017

LA3024 EU law – Zone A

Introduction
The exam paper
The exanimation paper for Zone A and Zone B adopted the standard format
consisting of a mix of essays questions and problems questions. The content
reflected the syllabus based on the module guide, the study pack and on the
recommended readings. This is the second exam based on the fully revised EU law
guide. It is important to note that the clear majority of papers – even the weakest ones
– at least showed some understanding of the topics. Answers completely unrelated
to the questions nearly disappeared. It is to be repeated how crucial is to spend few
minutes reading the questions very carefully before ‘jumping’ into answering them.
2017 confirmed also last year’s trend with some excellent answers on those
questions that required command of some of the most some topical issues and recent
developments. As in the previous year, questions such as the one on the importance
of EU rights have been brilliantly answered, with students displaying the ability of
linking different topics. Some bad fails with the candidate scoring 0 are to be reported.
We would also like to reiterate an observation we made in previous years: time
management. Many candidates have struggled to answer the four questions
evenly. Quite clearly, some students spent too much time answering two or
three questions and had to resort to either excessively short answers or in
some cases just a skeleton answer. It should be reiterated that the assessment
of the exam is on four answers and students should always be encouraged to
learn how to manage time effectively, devoting equal time and attention to each
of the questions.
Note that errors in the extracts below were present in the original extracts.

Comments on specific questions

Question 1
‘Issues such as direct effect, supremacy and human rights are simply too
important to await action by the Council and the Commission. The very lack
of strong political institutions explains the Court of Justice of the European
Union’s (CJEU) bold activism.’
Discuss.
General remarks
This question should be easy for students as it is a deliberate choice of the EU
examiners always to include a debate on the most important constitutional doctrines
of EU law and the role of the Court.

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Law cases, reports and other references the examiners would expect you to
use
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963]
ECR 1.
Case 6/64 Costa v Enel [1964] ECR 585.
Joined Cases C-6 and C-9/90, Francovich and others [1991] ECR I-5357.
Case C-106/77 Simmenthal II [1978] ECR 629.
R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603.
Case C-131/12 Google Spain SL 13 May 2014.
Safe Harbour Decision 2015.
Opinion 1/1/3 on ECHR accession.
Common errors
Common errors were providing just the definition of directives and regulations and
not addressing the role of the Court of Justice.
A good answer to this question would…
understand that the question focused on some of the most important developments
of EU law: direct effect supremacy and, more recently, the shaping of EU human
rights case law. Thus, students should explain why these doctrines are so
‘essential’ and how they are linked (all of them are about ensuring the full
application of EU law). They would need to show understanding of how the Court of
Justice has helped advancing European integration in these matters, even though
there was little to rely on in the Treaties. As a minimum, students will need to talk
about Van Gend en Loos, Costa, Simmenthal, with better papers discussing the
challenges raised by the principle of direct effect with regards to directives as well
as making reference to the fact that the reception of the principle of supremacy in
the Member States is not always easy. The papers will need to mention human
rights case law, and should include also basic analysis of the post-Charter case law
such as Test Achats, Fransson, Meloni, Digital Rights Ireland, Google Spain.
Poor answers to this question…
just listed the requirements for direct effect of Treaty articles, regulations and
directives with no discussion on the implications of supremacy or discussion on the
Court.
Question 2
A & B Ltd operates regular cross-channel ferry services between Dover in the
UK and Calais in France. The UK immigration authorities fined A & B £50,000
for a breach of the (fictitious) Carriers Liability Act 2015. The Act allows the
immigration authorities to impose a penalty of £50,000 on transportation
providers if a passenger carried by them fails to produce a valid passport or
visa. During a spot check the UK Customs Police found 150 passengers on a
ferry operated by A & B without valid documents. Consequently it was
decided to suspend the operation of the specific ferry until further notice. A &
B contends that the provision of the Carriers Liability Act 2015 and the
decision to block one of the ferries constitute an unjustified obstacle to its
activities, in particular to the right to provide services.
A & B asks your advice as an expert in EU law.

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General remarks
This is a question on free movement of services and possible justifications available
to Member States. Students should discuss whether Article 56 TFEU applies and
possible state justifications.
Law cases, reports and other references the examiners would expect you to use
Alpine inv.
Case C-438/05 ‘Viking Line’ [2007] ECR I-10779.
C-34, 35 & 36/95 KO v De Agostini [1997] ECR I-3843.
C-405/98 KO v Gourmet International Products [2001] ECR I-1795.
Common errors
Common errors were no discussion on proportionality of the measure and dealing
with the question under free movement of workers.
A good answer to this question would…
identify the relevant freedom (the question is specifically mentioning services) and
may want to rely on the ‘Viking Line’ judgment (ferry services) The measure can
probably be considered as an obstacle restricting access to provisions of services
under the case law of the Court interpreting Article 56 of TFEU. On the question of
possible justifications, likely grounds that the MS can invoke are public policy or
public security. Students should assess the proportionality of the measure and note
the severity of sanctions (free movement of workers’ case law may also be
appropriate).
Poor answers to this question…
focused on immigration issues or workers’ rights despite the rubric clearly indicating
that the question dealt with the claim brought by the company and that the issue
concerned services. Further, in a free movement question, it is not enough to simply
state that a possible justification is available. Students need to provide at least
some kind of assessment of the proportionality of the measure (in this case,
sanctions were extremely severe and thus may be disproportionate).
Question 3
John Kerry is an Irish rugby player. At the end of the 2015/16 season he was
engaged by the Paris Rugby Club to take part in the final stage of the French
Rugby championship. Kerry played two matches only for Paris and the team
managed to win the league. After some complaints from another club, the
French Rugby Association decided to deduct five points from the score of the
Paris Rugby Club and award to another team the championship on the
grounds that the Paris Rugby Club should not have fielded Kerry. The
Association argued that Mr Kerry’s move to the Paris Rugby Club breached
the rules concerning transfers of players. These rules prohibit clubs from
fielding in the national championship players coming from other leagues if
they have been transferred after the second half of the season.
Mr Kerry asks your advice on whether rules of a sports federation which
prohibit a club from fielding a player in a competition if he has been engaged
after a specified date are compatible with the principle of freedom of
movement for workers.
Advise Mr Kerry.
General remarks
This is a question on free movement of workers – with a bit of emphasis on sport.

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Law cases, reports and other references the examiners would expect you to use
C-415/93 Bosman [1995] ECR I-4921.
C-53/81 Levin [1982] ECR 1035.
Common errors
Wrong classification as a question on services – despite the rubric clearly pointing
to workers.
A good answer to this question would…
discuss if the Treaty applies against a sport federation (Bosman and Deliège) and
whether the transfer rules can be classified as an obstacle to Article 45 of the
Treaty. The question is modelled on Bosman and the acqui on sport and EU law, if
students conclude that there is a restriction, possible justifications should be
analysed. It should be noted that the restriction is indistinctly applicable thus
specific ground such a ‘fairness of sport’ can be acceptable. Students should
assess the proportionality of the measure. Bosman is of course the case to rely
upon but students can successfully use any cases on Article 39 of TFEU as well.
Poor answers to this question…
made no attempt to come up with possible justifications.
Question 4
The Natural Farming Association – an association partially funded by the UK
Government – is responsible for the promotion of natural organic products. In
response to the debate about genetically modified food, it decides to launch a
campaign called ‘Follow the Red, White and Blue Tractor’. The campaign
involves 20 different TV advertisements. At the end of each commercial, a
logo appears containing a red, white and blue tractor with the words ‘British
Guaranteed Products’. Viva la Natura (VN) is an Italian producer of organic
products. VN exports 60% of its products to the UK. It seeks your advice on
whether this campaign may be in breach of Article 34 of the Treaty on the
Functioning of the European Union (TFEU).
Advise VN.
General remarks
This was a rather straightforward question on free movement of goods. Article 34
TEU and possible 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-120/78Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein [1979]
ECR 649.
Some consumer protection cases (Rau, Sandoz, UHV).
Common errors
Common errors were no discussion on the meaning of the Cassis de Dijon case or
on proportionality.
A good answer to this question would…
discuss whether Article 34 applies and the definition of measures having equivalent
effect. They will have to deal with the application of Article 34 and the possible
protectionist impact of the measures. The measures are state measures (Buy Irish
case) once they conclude that there is a breach of Article 34, they need to move to
the question of justifications. They need to apply a case law exception probably in
both cases – consumer protection, although public health under Article 36 TFEU

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could be equally invoked. Finally, they need to provide their assessment of the
proportionality of the measure.
Poor answers to this question…
failed to realise in a free movement question, it is not enough to simply state that a
possible justification is available. Students need to provide at least some kind of
assessment of the proportionality of the measure.
Question 5
When AG Jacobs, in his Opinion in Bickel and Franz, defined the notion of
citizenship as ‘a commonality of rights and obligations uniting Union citizens
by a common bond transcending Member State nationality’, he would
probably not have envisaged that the Court of Justice of the European Union
(CJEU) would have so frequently denied even the existence of such a
commonality of rights.
Discuss this statement in the light of the recent case law of the court on EU
Citizenship.
General remarks
This is a question about EU citizenship. Students need to rely both on secondary
legislation and on case law.
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, 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.
Directive 2004/38.
Common errors
Common errors were mixing citizenship with the protection of fundamental rights
and not taking into account case law.
A good answer to this question would…
question if the AG Opinion is still correct. It is certainly so if the early case law of the
Court from the first tentative steps (Martinez Sala) to the turning point cases such
as Grezclscyk and Baumbast and Zambrano where the Court declared EU
citizenship as the fundamental status of individuals are analysed. The Court also
held that citizenships rights are enforceable regardless of the exercise of an
economic activity. However, it can be questioned if this is still true today. Case law
McCarthy, Dereci and Dano that mark a decisive change in the case law direction
(to a more restrictive approach) would need to be discussed.
Poor answers to this question…
failed to discuss recent case law.
Question 6
‘It seems that the Keck era has come to an end. In its most recent case law on
free movement of goods such as the Italian Trailers, the Court of Justice of
the European Union (CJEU) returned to an overbroad definition of measures
having equivalent effect to quantitative restrictions. The Court used the

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notion of ‘market access’, and put the emphasis on the application of the
proportionality test.’ 
Discuss. 
General remarks
A general discussion on the evolution of Article 34 TFEU case law was required
here.
Law cases, reports and other references the examiners would expect you to use
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 & 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.
C-110/05 Commission v Italy (mopeds) [2009] ECR I-519.
Common errors
A common error was not understanding the rationale of Keck.
A good answer to this question would…
review the free movement of goods case law, while analysing the two underlying
principles: a non-discrimination approach to Article 34 as advocated in Keck or a
market-access logic, as formulated in Dassonville, Cassis and recently in the
Trailers case. Students should identify correctly the relevant case law, as a
minimum, Dassonville, Cassis, Keck, Trailers and recently Scotch Whisky, with
better papers also giving other examples substantiating the Dassonville definition. It
is important that students discuss the emphasis on the proportionality test in recent
case law (for instance Schmidberger), with better papers analysing the distinction
between soft proportionality (as for example in Omega) and hard proportionality
(such as Rau), as well as the implications of applying such tests in preserving
national sovereignty and promoting national interest. Better students will discuss
Scotch Whisky to note the importance of evidence in substantiating arguments of
proportionality.
Poor answers to this question…
mixed up Articles 34 and 110 TFEU and gave no analysis of recent cases.
Question 7
India Chemical is an Indian company active in the production of industrial
chemicals. India Chemical is a leading producer of industrial chemicals used
in the production of domestic (household) cleaning agents worldwide. India
Chemical has extensive business operations in the EU, and it supplies its
products to all major manufacturers of cleaning agents in the different EU
Member States. The industrial chemicals market is considered a stable one
and no other company has attempted to enter into this market in recent years.
India Chemical’s share in the supply of industrial chemicals used in the
production of domestic cleaning agents in the EU is about 80%; its market
share in relation to the production of all types of industrial chemicals in the
EU, however, is considerably lower than this. Two years ago, this market
share was about 50%. India Chemical has a number of competitors in the EU
but none of them holds a market share higher than 2%.
Advise India Chemical on the application of EU competition law to each of the
following proposals:

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a) They would like to offer their customers favourable discounts on

future purchases of all types of industrial chemicals purchased
from them;
b) They are proposing to refuse to supply new customers who do not
commit to purchasing exclusively from them; and
c) They are proposing to raise their prices by 40%. Their customers are
not happy with this possible price increase but they believe that
there is little they can do.
General remarks
This is an Article 102 problem question, fairly popular among students.
Law cases, reports and other references the examiners would expect you to
use
Case C-62/86 AKZO [1991] ECR I-03359.
Case C-95/04 P British Airways [2007] ECR I-02331.
Case C-23/14 Post Danmark, Judgment of the Court (Second Chamber) of 6
October 2015.
Case 85/76 Hoffmann-La Roche [1979] ECR-461.
Joined cases 6 and 7-73 Commercial Solvents [1974] ECR-00223.
Case C-375/97 General Motors Corporation [1999] ECR I-05421.
Case 27/76 United Brands [1978] ECR-207.
Common errors
Many students spent an incredible amount of time establishing dominance but the
subsequent discussion on abuse under (a), (b) and (c) was rather thin. Many
students did not back up their arguments with case law. Some students mixed up
Articles 101 and 102 and wrongly discussed some of the competition matters
presented in the problem question under Article 101.
A good answer to this question would…
identify that, in order to establish dominance for the purpose of Article 102, it is
important to define the market and establish the market share – cite the United
Brands test (the ability to prevent competition and to behave independently of its
customers, competitors, consumers.) Students should also discuss that market
shares are not always conclusive, although per AKZO/Irish Sugar a 50 per cent
market share can be considered very large. In our case, we might have two markets
– the market of the industrial chemicals used in the production of household
cleaning agents and the market of all types of industrial chemicals. The company is
clearly in a dominant position on the first market (80 per cent) and probably also on
the second market (50 per cent two years ago). However, for the second market we
do not have enough data to assess the current market share – students might
mention here that given the market shares of the other competitors are much
smaller (less than 2 per cent) India Chemical holds probably a dominant position as
per British Airways.
For (a), students should discuss whether the company can offer rebates and at
what level. In particular, a discussion of predatory pricing should be made, discuss
AKZO (price below the average variable cost is considered predatory); discuss Post
Danmark (prices below the average total cost might be considered an abuse if
proven that they aim at eliminating a competitor).
For (b), students should discuss exclusive purchasing and advise that, as per
Hoffmann-La Roche, the Court considers such behaviour prohibited under Article

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102 TFEU. A question that might be discussed is whether exclusive purchasing is
prohibited per se (as per Solvay or Imperial Chemicals) or if it is necessary to
examine the effects of such agreement in its context (as per BPB Industries). The
Court operates a stricter standard in this regard than the Commission, which in its
Guidance on Article 102 enforcement priorities suggests a range of criteria that
might be used in order to ascertain abuse in case of exclusive dealing. Exclusive
dealing might be justified in some circumstances, in the case of long-term supply
agreements where the supplier has to make a client-specific investment in order to
be able to supply (as per the guidance on Article 102 enforcement priorities). The
case law on refusal to supply might also be discussed – such behaviour would fall
within the ambit of Article 102 as per Commercial Solvents but might in principle be
justified – although in practice the Court sets a very high standard for the dominant
firms. In this case, however, we are dealing only with refusal to supply new
customers who do not commit to purchasing exclusively from them. As per BPB,
refusing to supply new customers might be allowed in times of shortage but the firm
must use an objective criterion. Favouring loyal customers over the others did not
meet the test in BPB.
For (c) students will need to discuss excessive pricing. The burden of proof in this
case will be on the Commission – or the customers – to show that the price is
excessive (discuss General Motors and United Brands). One way to determine
whether the increase of 40 per cent is abusive is to look at prices charged by other
competitors, as per Corinne Bodson.
Poor answers to this question…
failed to identify the particular competition issues under (a), (b) and (c). Arguments
were not backed up by case law.
Student extract
The Competition Law of EU has helped establish a single internal market
within the EU while promoting economic efficiency and effective allocation of
resources. Commission acts as the guardian of the Treaties and is
responsible for the implementation of EU law as stated in Reg 1/2003 […]
The issue of breach of EU competition law in regards to the following
proposal is a potential breach of Art 102 TFEU as the question does not
suggest the existence of any agreement. The standard for liability under Art
102 is high as it does not have any defences.
Before establishing such breach, first it needs to be ascertained whether IC
can be considered as an undertaking in the light of Hofner and Elser v
Commission whereby IC will have to be involved in a commercial or
economic activity and not funded by state bodies using public funds. Given
that IC is a leading producer of industrial chemicals and providing such
chemicals to domestic cleaning agents it is certainly offering goods or
services on a given market place and such primary characteristic is a clear
indication of economic activity as per FENIN.
IC will be in breach of Art 102 TFEU if it is enjoying a dominant position within
the internal market of EU or a substantial part of it, has acted in abuse of that
dominant position and this has affected intra trade between Member States
(MS).
In determining dominance, Court will look into the relevant market and IC’s
market power on the MS. IC will be regarded dominant if it enjoys a position
of economic strength, enabling it to prevent effective competition within the
internal market by acting independently of its competitors, customers, and
ultimately consumers (United Brands).

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In determining relevant market, relevant product market (RPM) and

geographical area need to be ascertained. RPM is one in which product
substitutions exist (ICI Spa v Commission). This can be analysed by applying
the subsequent tests of cross elasticity of demand and supply. Cross
elasticity of demand means whether industrial chemicals are substantially
interchangeable with other products by reason of their intended use,
characteristics, and price to the consumers (United Brands). On the other
hand, cross elasticity of supply refers to whether other manufacturers can
quickly and easily shift to producing the industrial chemicals IC produce
(Tetrapak, Michelin). Given that IC supplies its products to all major
manufacturers of cleaning agents who then use it to produce cleaning
products, it can be ascertained that the relevant product market here is the
industrial chemicals.
The relevant geographical area is one in which acceptable and available
substitutes exist. It is practical question rather than theoretical which requires
empirical evidence of consumer need, production pattern, volume and
purchasing habits. Since IC supplies to all major manufacturers of cleaning
agents in the different EU MS, the relevant geographical market is the whole
of the EU (United Brands).
Next thing that needs to be considered is IC’s market power for which the
Court will look into its market shares and other barriers to entry. IC will be
considered to be in a dominant position if its market shares is 50% or above
(Akzo) and this must be held for a certain period of time (Hoffman La Roche).
Clearly two years ago when its share was 50% it was enjoying dominance.
However, the question does not state its current share but indicates that IC’s
share on supply of industrial chemicals used in the production of domestic
cleaning agents is 80%. Therefore, it may be ascertained that IC’s market
share may be almost 80% if no other production company supplies the same
products or less than 80%. In any scenario, Court will look into the market
shares of other companies while determining its market shares even if IC’s
market share is 50%. In British Airways the Court held British Airways to
enjoy dominance at 39.7% when the other company’s market share was only
5%. Given that IC’s other competitors in the EU hold a market share not
higher than 2%, there is a high probability for IC to enjoy a dominant position
in the EU.
Moreover IC’s extensive business operations in the EU suggest a well-
developed and structured distribution line (United Brands) and brand image
(United Brands) since no other company has attempted to enter into this
market in recent years. Thus the barriers to entry are high as well such
dominance is enjoyed by IC within the substantial part of EU (Sukier Unie).
Next it needs to be considered whether IC is abusing its dominant position
[…]
Comments on extract
This is a very competent answer to an abuse of dominance problem question (we
reproduced only a part of the whole answer above.) The structure is very good and
easy to follow; the student makes good use of a large body of case law. The level of
detail is quite impressive; however, in the interest of time, the student should have
skipped the lengthy introduction to competition law (see the first paragraph, which,
on the exam paper, is even longer than what we reproduced above). As a general
advice, students should avoid, in problem questions, general introductions to the
topic – such introductions do not answer the question asked and therefore will not
bring extra marks for the paper. There is also a mistake in paragraph 2 – public

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funding is irrelevant for the definition of an undertaking. A publicly funded company
might be found in breach of competition rules as well.
Question 8
‘The Court has engaged substantively with and given prominence to
arguments based on the Charter of Fundamental Rights of the European
Union (the Charter) in a growing number of cases. In other words, the
incidence of human rights adjudication before the Court of Justice of the
European Union (CJEU) has been significantly augmented by the adoption of
the Charter as a binding legal instrument.’
Discuss.
General remarks
This is a question on the importance of the Charter of EU Rights.
Law cases, reports and other references the examiners would expect you to
use
Case C-260/89 ERT [1991] ECR I 2925.
C-36/02 Omega [2004] ECR I-9609.
Case C-13/94P v S and Cornwall County Council [1996] ECR I-2143.
C-236/09 Association belge des Consommateurs Test Achats ASBL and Others v
Conseil des ministres, Judgment of the 1 of March 2011.
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.
Common errors were the lack of recent case law, discussion of human rights as a
general principle and mixing up the EU and ECHR.
A good answer to this question would…
focus on recent judgments such as Google Spain/Digital Rights Ireland or the
others in areas such as equality (Test Achat) where the Court used the Charter as a
legality benchmark for EU law, with better papers looking beyond into the
citizenship case law and the restraint operated by the Court in cases such as Dano.
Finally, papers should look also at Opinion 2/14, while noting that the Court has
rejected the accession to the ECHR twice, even though this has been pushed by
the Commission.
Poor answers to this question…
did not discuss the case law but just listed Charter articles.
Student extract
The question is then whether the Charter is to be considered just a
consolidation [of earlier case law and human rights as a general principles of
EU law] or is instead an expansion of the EU Treaties. The alteration of the
legal status of the Charter (Lisbon 2009) same an immediate ascendance of
the court willingness to reference to it in cases. Since 2009, the Charter can
be said to have surpassed its previous soft impact on the case law and can
now be considered a cardinal element of a set of body of rules. This point can
be emphasis[ed] by reference to varied areas of case law. Wide ranging

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areas such a health (Weintor) age discrimantion [sic]. [A list of cases where
the court applied the Charter follows.]
Comments on the extract
Relevance and substantive knowledge – the passage, despite being rather
concise, encapsulates the most important issue that needs to be tackled: the fact
that the Lisbon Treaty conferred a legal binding force to the Charter ‘freed’ the
Court to use it not as a soft instrument as previously but as a validity benchmark. In
a few lines the candidate asks a pertinent question (on the whether the Charter was
somehow just a consolidation of the past or whether it was something new) and
provides the right answer. Then s/he quickly moves to list many cases where the
Court applied the Charter. The passage reveals an understanding of the evolution
of the human rights dimension in EU law and showed knowledge of the more recent
case law. Of course, it would have been better perhaps to discuss in more details
some of those cases so as to provide a fuller analysis of the new attitude of the
Court. However the whole question was marked with a good 2:1.
Use of authority – many cases cited and correctly (albeit in a list form).
Accuracy of information – good.
Clarity of expression – not too bad (with some slightly opaque passages).
Legibility – satisfactory.

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