They said in the information package that for all of the period 5 exams they strive to announce the results of course period 5 no later than Wednesday, 24 June 2020. However, they did say that this is only the targeted day. We don't have any other information for now.
i. The act is not addressed to James (there is not his name written down in the directive);
ii. In directives there is almost never direct concern, because they require implementation by the MS, which breaks the link of causation In James’s case. There is also not individual concern, as also all the other whiskey producers would be affected by it.
iii. the act at stake is no regulatory act, as it is a legislative act (directive) and by definition.
In conclusion, James cannot ask for an action for annulment.
However, what James could do (e.g. after receiving a fine for not labelling its bottles) is to bring his claim before a national court, which could refer a preliminary question to the ECJ (Article 267).
i'm pretty sure this was that enforcement proceedings could NOT be brought against a failure to fulfill a GENERAL obligation; it must be specific. "The Court joined the Council and rejected the
idea that enforcement proceedings could be brought for the failure to fulfil the
general obligation to develop a Union policy. The failure to act would have to be
1. Normally, the Hungarian prohibition at stake would constitute a ‘selling arrangement’, as (i) it describes more ‘how’ you can sell, rather than ‘what’ and (i) it is not discriminatory, as it is also imposed on Hungarian companies, and not only foreign ones.
However, in the controversial case of Ker-Optika, which presents basically the same facts and issues, the Court held that Hungary’s prohibition to sell contact lenses online constituted a MEEQR (‘because it is discriminatory even if not in law, in fact’), which is prohibited under Article 34 TFEU.
2. In that case, the Court reasoned that ‘the prohibition deprives traders from other Member States of a particularly effective means of selling those products and thus significantly impedes the access of those traders to the Hungarian market. Consequently, that legislation constitutes an obstacle to the free movement of goods in the European Union.’
Thus, the prohibition, being an indistinctly applicable ‘measure having equivalent effect to quantitative restrictions’ (i.e. applies on Hungarians as well as foreign) is prohibited, unless justifiable under Article 36 TFEU or Cassis de Dijon. It may easily be argued that the Government is trying to protect public health; however, the measures taken are unnecessary and go too far in relation to the goal that the Government wants to achieve (proportionality requirement is not fulfilled).
Therefore, there is no justification for Hungary’s prohibition to sell contact lenses online.
1. The beer qualifies as a good, as it is a product that can be valued in money and that can be the subject of a commercial transaction (Commission v Italy).
Is the German legislation at stake a MEEQR or a selling arrangement? It is really about ‘what’ you can sell (instead of ‘how’ you can sell): you cannot sell those beverages by labelling it as beer. Therefore, the German legislation on beer is more related to the product than the selling arrangement.
Thus, it is a MEEQRS: the rule could actually (or potentially) hinder intra-[Union] trade, because it was restricting the selling of the producer (who would have to re-label all the bottles).
Is this German rule indistinctly or distinctly applicable? Indistincly, as it applies to all (also to German producers).
2. Being an indistinctly applicable MEEQR, Germany can justify this measure though Article 36 TFEU, but also through the ‘rule of reason’ set out in Cassis de Dijon.
In the latter case, some other justifications, besides those already listed in Article 36, were set out, namely the ‘effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer’ necessary in order to satisfy mandatory requirement.
Does in this case the ‘protection of public health’ play a role as a justification? No; it would be difficult to argue that cherry damage health.
How about the ‘defence of the consumer’ justification? Yes; more likely to be applicable.
Even having established that there is justification to the MEEQR at stake, the proportionality requirement needs to be fulfilled. It is not fulfilled; as the German Government may have found other measures to defend their consumers instead of not qualifying beer a beverage which only adds few things to the ‘original receipt’, e.g. they could just impose to the producers to write the ingredients in the label instead of promoting such a restricting law that has specific requirements for beer.
1. The Perfume qualifies as a good, as it is a product that can be valued in money and that can be the subject of a commercial transaction (Commission v Italy).
Under the Dassonville criteria the court would have said this was a MEEQR.
However, in Keck the Court took a turn and it defined a ‘selling arrangement’. The French law at hand is a selling arrangement because (i) this is not really about the product (but on how it are sold) and (ii) it is not discriminatory.
2. Being a ‘selling arrangement’, this prohibition would fall outside Article 34 TFEU and thus, it does not need to be justified.
The first objective of the Netherlands, namely that to ‘make statistics on the consumption of French cheese in the Netherlands’ may be an implied justification. However, in Statistical Levy, which is a similar case, the court found that the ‘consideration for the service rendered’ implied justification does not apply, as the importers did not ask for this service.
Rather, this obligation to pay is a CEE (it is in fact a custom duty, but they make it seem like it is not). As such, whatever its purpose, is prohibited (Article 30 TFEU).
The second objective, namely ‘to stimulate the cheese industry in the Netherlands’ may also be considered a CEE (ask yourself: do domestic producers also have to pay taxes here? NO, thus it is a CEE and not a tax), and as such also prohibited under Article 30 TFEU.
Thus, due to the fact that no implicit exceptions apply here, the obligation to pay for both the objectives constitute a restriction to the free movement of goods.
i. The rule was intended to confer rights on individuals
ii. Non implementation is per se a sufficient breach
iii. There is a causal link between the breach and the damage Patrick has sustained
TF, Patrick has right to claim for damages
If there is an open-ended provision in the Dutch Civil code (e.g. the contract may be revoked if the information exchanged by the parties were not sufficiently clear), then the national court will have to try to fit EU law (e.g. if the contract was concluded outside a shop, it can be revoked within 7 days) while applying national law.
However, this may rarely be the case. If there is no such provision, the last resort is State liability.
The relation at stake (Patrick v the Electricity Company) is an horizontal one, which means that there is no direct effect in the case at hand.
The limitation of the rule relating to the wide definition of state is also not applicable in this case.
The action taken by the Union may be argued to be in breach with the proportionality, as well as the subsidiarity principle.
However, it may be also argued that the mere fact that the State is ‘unhappy with the outcome of the legislative process’ is not enough to challenge an act of the Union.
The directives are seen as less intrusive and thus easier to apply using the proportionality principle. This is because the regulations do not even need to be implemented, as the EU just makes the rule and the MS have to rely on it. In our case, we can better choose the directive as a legal instrument.
CORRECTION: Options: Article 168, Article 169 (consumer protection) or Article 114 (internal market) . The latter is very broad and can be applied more often.
Article 168 is not applicable to our case because it does not allow harmonization, while the action that the Commission wants to take are harmonization measure: to label all bottles of alcoholic beverages in all Europe.
Therefore, we can rely on Article 114. According to the Tobacco Advertising case, based on Article 114, to trigger the Union’s harmonization competence: (i) the European law must harmonize national law, (ii) a simple disparity in national law is not enough, the disparity must give rise to obstacles in trade or appreciable distortion in competition; and (iii) the Union legislation must actually contribute to the elimination of obstacles to free movement or distortions of competition.
Is 114 then applicable to our case? Requirement (ii) makes controversies arise: it may be either argued that there is a mere disparity between the MS, which is as such not enough to trigger the harmonization competence, or contrarily that the disparity creates obstacles, which will allow the harmonization competence to apply.
For the purpose of the course and the case, let's assume that Art. 114 applies, so that we can then move on to the next steps.
Hey Guys, i have struggle catching up with the tutorials and the reading stuff. I noticed that much of the reading is not topic in our case book? Are you only concentrating on the tasks in the case book or are you focusing on the whole chapters? Did your tutors say smt. regarding my question?
I received a message saying "you are registered as an exam-only student and cannot do assignment" but I never registered as myself as an exam-only student and I even does not know how to become exam-only student!!! Why is this!? Please help me.
Article 47 DOES NOT apply in this case. Due to the fact that, according to Article 7(1)b, the junior minister does not have full powers, Article 8 subsequently applies, stating that if the represented State does not confirm the decision taken, there is no legal effect related to the unauthorized act performed.
Conclusion: Aphoria is not bound by the Treaty, since the State did not confirm the decision taken by the Junior Minister.
After tutorial CORRECTION:
First thing to do is going through Article 7. In this case paragraph (2)a applies, as the prime minister of Eunomia did have full power and did represent its State. After that, we apply Article 46(1), so that if there was a 'manifest violation', the State can avoid the legal effect of being bound by the treaty. However, due to the fact that there is no clear cut between a manifest and a non manifest violation, both ways may be argued: either that the violation was manifest, and therefore the State is not bound, or that the violation did not fulfill the manifest requirement, and so remains bound by the treaty. (In most cases, we may however state that States are not supposed to know other State's internal law.)
I would do one color for one topic. I divided them into general (institutions, etc.), competences and lawmaking, direct actions before the court, free movement of persons, and free movement of goods. Good luck with the resit!
There is a contents section at the beginning of the book. Save yourself some time and just use that in the exam. If you know where the sections are located in the book you'll find it easier instead of randomly tabbing everything. I found this worked for EU law, but obviously not for International law. Good luck!
Hey, this year's course is starting soon and I was wondering if anyone could provide information on what books we should buy? The course book lists 4 books but buying all of them is incredibly expensive. Does anyone have tips as to what books are less necessary or include information that can be easily found online?