Examiners’ reports 2018

Examiners’ reports 2018

LA2024 EU law – Zone A

Introduction
The EU law exanimation paper for Zones A and Zone B adopted the usual standard
format of eight questions, consisting of a mix of essay and problem questions.
Students were required to answer four of them. The exam content was firmly based
on the syllabus as contained in the module guide and the recommended readings.
The Pre-exam update was also relevant for the examination.
Examiners were happy to report a general improvement in the quality of the scripts.
Answers completely unrelated to the questions were a rare occurrence and, on the
contrary, there were many exceptionally good papers. Students also showed that
they managed to keep up-to-date with recent developments. As noted for last year,
students seem particularly confident in addressing substantive issue such as the
regulation of trade and the impact of individual rights in EU law. Constitutionally
related questions tend to be answered a little bit more in a uniform and standard
way. Another positive from this year is that most of the exams were properly
balanced, i.e. all four questions were properly addressed. However, it is still worth
repeating that all four questions need to be properly answered as the overall
assessment has to be based on four answers. Equal time and attention should be
given to each of the questions. Finally, it should be reiterated how important it is to
provide a clear structure to the answer and to write in a clear and concise manner.
Good handwriting is always a bonus!
Note that errors in the extracts below were present in the originals.

Comments on specific questions

Question 1
‘In Van Gend en Loos, the CJEU laid the foundation not only for its own
doctrines of individual rights and direct effect, but also opened the way for
the creative use of the preliminary ruling procedure to develop EU law
through the ‘vigilance of individuals’.’
Discuss.
General remarks
This was a question about the importance of the preliminary ruling procedure for the
development of EU law.
Law cases, reports and other references the examiners would expect you to use
Case 26/62 Van Gend en Loos v NederlandseAdministratie der Belastingen [1963]
ECR 1
Case 6/64 Costa v Enel [1964] ECR 585

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Joined Cases C-6 and C-9/90, Francovich and others [1991] ECR I-5357
Case C-106/77 Simmenthal II [1978] ECR 629.
Common errors
Most of the answers focused only on the question of direct effect. There was very
little analysis of the link between the role of national courts and the use of
preliminary reference.
A good answer to this question would…
briefly identify the parameters of the preliminary reference procedure (what it
entails, what courts can refer a question to the ECJ and in which circumstances,
etc.) and note that this procedure is at the basis of a continuous dialogue between
the national courts and the ECJ. A good answer would also discuss the importance
of the direct effect doctrine. As clarified by the CJEU in Van Gend en Loos, effective
application of EU law and individual rights protection are two sides of the same
coin: individuals are charged with the task of enforcing EU rights through national
courts. Students would go on to discuss the principle of supremacy and the reaction
of national constitutional courts. Better students might draw on internal market case
law such as Dassonville or Cassis de Dijon to show how the ECJ triggered the
development of EU law when usual decision-making avenues were blocked.
Question 2
‘The CJEU has once more stated that, in accordance with its settled case law,
a directive cannot of itself impose obligations on an individual and cannot
therefore be relied upon, as such, against an individual.’ (Case C 413/15,
Farrell, 2017).
Discuss with reference to the CJEU’s case law on direct effect.
General remarks
This was a question about the lack of horizontal effects of directives and
alternatives for ensuring their applicability.
Law cases, reports and other references the examiners would expect you to use
Case C-106/89 Marleasing [1990] ECR I-4135
Joined Cases C-6 and C-9/90, Francovich and others [1991] ECR I-5357
Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835
Case C-176/12 AMS 15 January 2014
Case C-43/75 Defrenne v Sabena (No.2) (1976)
Case C-41/74 Van Duyn v Home Office (1974)
Case 152/84 Marshall v Southampton and South West Hampshire Area Health
Authority (1986)
Mangold and, of course, British Gas and Farrell.
Common errors
Very broad discussion on direct effect with no focus on directives was a common
error.
A good answer to this question would…
define direct effect and show what EU law provisions can have both horizontal and
vertical direct effect. Students would cite cases such as Van Duyn to illustrate that
directives can also have direct effect but would go through case law such as
Marshall and Faccini Dori to show that horizontal effect is not possible and why
(directives are addressed to states and only an emanation of the state can be held

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 Examiners’ reports 2018

responsible; private parties cannot be bound by directives for reasons of legal

certainty; horizontal effect would eliminate the distinction to Regulations). Students
would show critical thinking by analysing how the lack of horizontal effect of
directives can lead to discrimination or lack of legal certainty. Students will discuss
the remedies developed by the case law to counteract the lack of horizontal effect
of directives: a large notion of the state (as per Foster/Farrell); the principle of
consistent interpretation (cite Von Colson, Marleasing); Member States liability
(Francovich/Factortame). Better students would discuss the general principles case
law that brings about horizontal effect of directives, such as Mangold. This question
is very much helped by relying on updates, as Farell is a very recent judgment.
Student extract
However the Courts held that directives would have a direct effect by
implementing after the time prescribed to apply the domestic law has expired.
(Becker). However, it could only have vertical effect. It was argued that if
horizontal direct effect should also be implemented this would have created a
confusion and an overlap between Regulations and Directives (Faccini). The
Court however tried to give effect to horizontal direct effect in two ways. In
order to prevent this loophole the CJEU has developed a wide notion of state
body widely defined as any government body or state entity that has some
impact with the state (Comm v Ireland) where the state introduced
campaigning to promote domestic goods. Or where the company is entirely
funded by the state (Marshall). And under the case of Foster it could also
challenge vertical direct effect.
Comments on extract
The doctrine of direct effect is crucial to fully understand how EU law operates. A
controversial area is still the lack of horizontal effect of directives. The Court has
been – despite many criticisms – very stubborn in reaffirming this case law but at
the same time has provided some ‘alternatives’ such as the notion of ‘state’ or the
doctrine of consistent interpretation. The passage above is thus correct but at the
same time is pretty confusing. First, it is important to use the ‘correct’ terminology.
For instance, ‘implementation’ refers to the time allowed to a Member State to give
effect to a directive. The deadline is contained in the directive itself and not by
domestic law, as stated in the passage. Secondly, the answer is underdeveloped.
For instance, while it is true that one of the issues about granting direct effect to
directives is the possible confusion between regulations and directives, the main
problem is the perceived lack of individual rights protection that the lack of
horizontal direct effect can produce. Further considering that the question used a
quote from a case that deals with how the Foster case has to be interpreted, the
sentence ‘And under the case of Foster it could also challenge vertical direct effect’
is not correct and does not really explain much. Thus the essay had to be marked
as a high 3/borderline 2:2.
Question 3
Latvia has decided to ban the use of the word ‘light’ or ‘lite’ on the packaging
or name of food products because consumers might be led to believe that are
low in fat.
Another Latvian law prohibits all forms of advertising of food supplements
other than at the point of sale. According to the government, food
supplements serve no purpose that cannot be achieved through a healthy
diet.
The European Commission is assessing whether these two measures comply
with EU law. You are the official in charge of the file. Please write your report.

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General remarks
A rather straightforward question on free movement of goods and a Cassis de Dijon
scenario and possible justifications available to Member States.
Students should discuss whether Article 34 applies and the definition of measures
having equivalent effect. Then possible State 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-120/78 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 and 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
Case C-110/05 Commission v Italy (mopeds) [2009] ECR I-519
Some public health/consumer protection cases (Rau, Sandoz, UHV).
Common errors
Common errors included no discussion on the meaning of the Cassis de Dijon case
or on proportionality. There was no need to discuss Keck.
A good answer to this question would…
identify that the first measure is a MEQR within the meaning of Article 34, more
specifically a product requirement as per Dassonville/Cassis. The second measure
would be identified as a selling arrangement but, as all restrictions on advertising,
most probably failing the Keck test as per Gourmet or De Agostini – constituting a
market access restriction as per Italian Trailers. Students failing to mention Keck
but who employ a market-access test as per Italian Trailers would not be penalised.
They would then undertake a proportionality analysis – the measure is not
discriminatory, hence both mandatory requirements (probably consumer protection)
and Article 36 (public health) can be employed. Students would go through the two
limbs of the proportionality test, suitability and necessity, while finding that, under
necessity, potentially other less restrictive means could have been employed by
Latvia to achieve the goals.
Poor answers to this question…
stopped after identifying a restriction to Article 34 and did not go on to analyse
potential justifications and the proportionality of the measure.
Question 4
‘Game Silver’ is a UK company that sells several computer games on the EU
market. It includes the game ‘Build Your Best Team’, where players are
betting on fictitious football teams and matches. Game Silver sells these
games in a number of countries including Poland. The Polish authorities fine
the company and charge the CEO of the company with the crime of illegal
gambling and incitement of children to gamble. Under Polish Law 1/2016
(fictitious), gambling is illegal. Game Silver argues that these are just
computer games which have nothing to do with gambling and the charges
levelled against it and its CEO are disproportionate.
Game Silver seeks your advice as an EU lawyer on the compatibility of the
Polish measures with Article 56 of the TFEU.

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 Examiners’ reports 2018

General remarks
This is question of free movement of services and possibly goods and on how to
use justifications,
Law cases, reports and other references the examiners would expect you to use
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
Some of the gambling cases such as C-36/02Omega [2004] ECR I -9609 and BWIN
(Portugal monopoly).
Common errors
Use of goods provisions instead of services and no discussion of proportionality
were common errors.
A good answer to this question would…
need to identify the relevant freedom, which is obviously Article 57 (the question
specifically mention ion services) and may want to rely on the by now copious case
law on gambling. Students can rely on the BWIN judgment (discussed in the
module guide) and conclude that the measure can be considered as an obstacle
restricting access to the provision of services under the case law of the Court
interpreting Article 56 of TFEU. On the question of possible justifications, the likely
grounds that the MS can invoke are public policy and consumer protections.
Students will be aware of the very generous case law of the Court in this area but
could try to attempt to argue that the measure – being a blanket restriction – is
indeed disproportionate. If students decide to carry a further analysis under Article
52, that is acceptable as well.
Poor answers to this question…
did not discuss possible justifications.
Student extract
Poland may also seek to justify [such a restriction] on the basis of consumer
protection. Poland may reason that if gambling is made legal, then it will not
only increase criminal activities but it also endanger individuals and families
as they could become addicted to gambling and betting especially children as
they love playing computer games, It may therefore argue that it intends to
prevent such behaviour in order to maintain order in the Polish society
(Schindler, Anomar). However, such measures will only be justified if they are
proportional, thus Poland need to satisfy the requirements of suitability and
necessity [argument to show disproportionate effect follows] However exactly
in cases related to gambling as in the case of Bwin Int., although the
measure seems to be clearly disproportionate, the Court held instead that is
was proportionate emphasising that each of the MS have different social and
cultural background and therefore they must be given a certain degree of
discretion in determining which policies should be better used as to achieve
certain public aims. Such an approach has been reiterated in other cases
such as Omega, Josemans and Scotch Whisky (free move of goods case).
Comments on extract
This passage shows exactly how to deal with proportionality. It is to be repeated
that any question on free movement requires an analysis of three steps: possible
breach of free movement; possible justifications advanced by a Member State; and
proportionality of such a justification. In this problem question related to services,
the student goes through the three steps and s/he devoted most of the time
discussing the most controversial question: if restriction on gambling can be
justified. First, s/he deals let us say with the ‘orthodox’ analysis: possible

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justifications advance by Poland and then counter-argument on why those
measures can be considered as disproportionate. However, the crucial passage is
the last one: here the student focuses on the fact that ‘gambling’ is a bit of a
delicate area as the courts have adopted a very different and ‘softer‘ approach
towards Member States. The student thus showed full command of the basic
principle of free movement and an awareness of the particular issue related to a
specific area. The use of case law of the Court is also perfect – do note the use of a
free movement of goods case to strengthen the argument. The answer was marked
as a First.
Question 5
‘Although the EU Charter has the symbolic value of bringing a wide range of
rights together, its essential function is to secure compliance with human
rights. This cannot be left to the vagaries of the CJEU and should be achieved
through the accession of the EU to the ECHR.’
Discuss.
General remarks
The question required an assessment of the impact of the Charter on EU law.
Law cases, reports and other references the examiners would expect you to
use
Case C-260/89ERT [1991] ECR I 2925
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
A failure to provide some specific examples was a common error. Some answers
were excessively vague and had no discussion on accession to the ECHR.
A good answer to this question would…
appreciate that this question deals with the Charter of Fundamental rights and
students should discuss its legal status and in particular whether the fact that the
Charter is now legally binding has had any impact. Does it differ from the ‘old’ case
law that relied on human rights just as a general principle of interpretation, now that
the ECJ uses the rights protected in the Charter as a benchmark of legality for EU
law? Cases such as Google Spain (right to be forgotten) or the so-called Safe
Harbor (privacy) that attracted considerable media attention are perfect candidates
to discuss. The ambiguous case law on the application of the Charter to national
law (Fransson) and Article 51 of the Charter may also be discussed. Finally, a
discussion regarding Opinion 1/13 on accession to the ECHR needs be included to
show some of the ambiguities in the Court’s approach.
Poor answers to this question…
failed to understand the difference between human rights a general principle of EU
law and the Charter’s legally binding status and made no link with ECHR.

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Question 6
‘The Citizens Rights Directive 2004/38 goes a long way towards harmonising
the treatment of economically active and non-economically active EU citizens.
However, recent judgments of the CJEU in this area are more important and
decisive than ever.’
Discuss.
General Remarks
This was a question mapping the evolution of the concept of EU citizenship.
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 and 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.
Common errors
No discussion on evolution of case law and how the Court applied the directive
were common errors.
A good answer to this question would…
discuss how initially the concept of EU citizenship was considered deprived of any
legal meaning. They also need to assess how the ECJ developed such a notion and
analyse the turning point cases such as Grezclscyk and Baumbast and Zambrano
where the Court declared EU citizenship as the fundamental status of individuals. It
also held that citizenships rights are enforceable regardless of the exercise of an
economic activity. However, they would then need to highlight how in later cases
the Court rigidly applied the provision of the Directive instead of the Treaty (see for
instance Dano).
Poor answers to this question…
used a confused long list of cases with no comments whatsoever on the meaning of
European citizenship.
Question 7
Discuss, by reference to the CJEU case law on free movement of goods and
services, the difference, if any, between a strict proportionality test and a
margin of appreciation test.
General remarks
Students may discuss the meaning of the principle and the test used by the Court
(suitability – less restrictive alternative and proportionality strictu sensu).
Law cases, reports and other references the examiners would expect you to use
Old test: Rau – UHV cases
New test – mopeds case (Italy v Commission), Scotch Whisky Association but also
gambling case law.
Common errors
This proved to be a tricky question. Students only discussed the relevance of
Cassis de Djon.

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A good answer to this question would…
discuss the meaning of the principle and the test used by the Court (suitability –
less restrictive alternative and proportionality strictu sensu). Students should
discuss how the Court used it as an instrument of integration and market regulation,
i.e. to propose specific standards that the MS had to apply (see for instance the
labelling case law – Rau). They should, however, also analyse the recent case law.
In the last few years the Court has been rather soft with MS derogations – a soft
proportionality approach – relying on the national conception of certain possible
justifications and deferring to the national scale of values (see for instance Omega
and gambling case law).
Question 8
Karen is a single mother of Danish nationality, who has been living for the
past six months in Berlin (Germany). While looking for a full-time job, she
works on a part-time basis in a travel agency and is financially supported by
her 20-year-old son, Jens. Karen’s latest application for the post of a
receptionist at the information desk of the Pergamon Museum in Berlin, which
belongs to the German State, was unsuccessful. The Museum justified the
rejection on the following grounds:
a) employment in the German public service is reserved to German
nationals; and
b) all posts relating to German historical and cultural heritage can only
be occupied by persons with an in-depth knowledge of the German
culture. Karen lacked the relevant qualifications.
To what extent can Karen rely on the freedom of movement of workers under
EU law and can she challenge the rejection of her job application by the
Pergamon Museum?
General remarks
This was a question about free movement of workers and citizenship as well.
Students need to rely both on secondary legislation and on case law.
Students should correctly identify that Karen is a worker and a job seeker (case law
and Directive 2004/38). They will have to assess whether the public service
exception of Article 45(4) TFEU can apply to employment in a museum. Students
will note that this exception only excludes posts that require the existence of a
special relationship of allegiance to the state and reciprocity of rights and duties that
form the foundation of the bond of nationality (Commission v Belgium). In any case,
as per Commission v Italy, only positions of management or advising the state in
relation to scientific research could fall within this exception, hence Article 45(4)
cannot apply to justify the museum rejecting Karen’s application for the receptionist
position. The museum can require a certain degree of knowledge of the German
culture for such a post, provided that the measure is proportionate and non-
discriminatory – and certainly of German language if the conditions of Groener are
fulfilled.
Law cases, reports and other references the examiners would expect you to
use
C-53/81 Levin [1982] ECR 1035
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 and R v Secretary of State for the Home Department [2002]
ECR I-7091

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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
Failure to address the specific points and no use of Directive 2004/38 were
common errors.