EU SUBSTANTIVE LAW –REVISION POWERPOINT

April 2019

THE EXAM

• This is an open book examination. You can take any materials into the examination room

• UG Exam: 2 hours to do 3 compulsory questions• Recommended time for each question

• 90 minutes (Q1)

• 90 minutes (Q2)

• 60 minutes (Q3)

• Master Exam: 2 hours to do ANY 3 Questions

All questions have equal weight so Recommended time for each question the same!!

ESSAY ANSWERS

• Introduction setting scope and structure of your essay

• Use of subheadings may help

• Refer to legal sources – relevant legislation and cases (if you cite a case as a source put the name in italics so it stands out in the text)

• Every 5 minutes read the question again so you remain focussed.

• Conclusion – address Q directly

• CITE RELEVANT AUTHORITY WHERE APPROPRIATE

PROBLEM QUESTIONS

• Read the end first to identify who you are advising, then read the question

noting facts and issues to be addressed

• Locate the problem: eg goods, services, workers; self-employed;

establishment of natural or legal persons; EU external relations

• Think about the structure of your answer

• Are there preliminary and/or general points you can make at the beginning

of the answer which are common to the specific issues raised by the facts

• What are the legal issues/queries raised by the facts?

• Which EU rules should be applied/considered ie Identify relevant legal sources.

• Apply law to the facts insofar as possible.

• Draw conclusions (hopefully favouring the party you have been asked to advise)

• CITE RELEVANT AUTHORITY WHERE APPROPRIATE

FREE MOVEMENT OF GOODS

• Any harmonising legislation? Definition of ‘Good’? What is the State measure being considered?

• Identify Article 34 (or 35) TFEU

• MEQR/QR (Dassonville)

• If MEQR – does it apply distinctly or indistinctly (Cassis)?

• If indistinctly – is it • Product measure/requirement

• Selling arrangement (Keck)

• Any other measure that hinders market access (eg use of goods)?

• Justifications – Cassis ‘Rule of Reason’ or Article 36 TFEU. Is it genuine and proportionate? – any relevant cases to assist?

FREE MOVEMENT OF SERVICES• Article 56 TFEU

• The meaning of ‘services’: Article 57(1) plus Article 2(1) and 4(1) of Services Directive

• The Services Directive 2006/123 (NB range of services covered by Directive; what services are excluded?)

• Article 6 of Citizens Rights Directive also relevant re services provided for less than 3 months

• What rights are conferred on service providers and receivers

• The limits on the freedom: Treaty derogations: CJEU justifications (terminology different from goods but are results the same?)

• Principles to be respected re justifications: non-discrimination, necessity and proportionality(Gerbhard conditions)

FREE MOVEMENT OF PERSONS(WORKERS)

• Understand major steps in development from 1957 to date• Article 45 TFEU

• Fleshed out through secondary legislation and caselaw (egbroad definition of ‘worker’, extension to family members)

• 1990s - extend FM beyond the economically active (Residency Directives Students/retired/’playboy’ - now replaced by CRD)

• Insertion of EU citizenship provisions by Treaty of Maastricht (Arts 20 & 21 TFEU)

• Caselaw on citizenship

• Directive 2004/38 (Citizens’ Rights Directive)

FREE MOVEMENT OF PERSONS (WORKERS & SELF-EMPLOYED)

• Impact of EU citizenship - breaking the economic nexus?

• Who gets rights? Nationals of MS who are economically active or independent (Article 39 TFEU and Article 7 TFEU)

• Relevance of movement to trigger EU Law - Wholly internal rule/reverse discrimination

• Family rights (including TCNs)

• Grounds for restricting rights/abuse of rights

THE RIGHT OF ESTABLISHMENT

• Article 49 TFEU -Right of establishment of natural persons

• Directive 2004/38 (Citizens’ Rights Directive)

• Right of access to self-employment (eg access to a profession; recognition of equivalent qualifications)

• Right not to be discriminated; duty on MSs to evaluate equivalence

• Rights granted to families of self-employed

• Article 54 TFEU - Freedom of establishment for companies (primary and secondary)

• For legal persons: right of departure (eg Daily Mail Case); right of access to primary and secondary establishment; the problem of regulatory competition (Centros; Uberseering and Inspiring Art)

EU EXTERNAL RELATIONS

The competence issue:

• Does the envisaged agreement relate to one specific external competence of the EU (Art 216(1) TFEU) or several; to one legal basis or several?

• How broad is the scope of this/those EU competence(s)? Could one competence (e.g. the Common Commercial Policy) potentially cover all matters envisaged in the agreement based the “centre of gravity” test?

• Are there limits to the scope of this/these competence(s) (e.g. transport excluded from the scope of the CCP)?

• Is/are the identified competence(s) exclusive? Is/are it/they included in the list of Art 3(1) TFEU, or has/have it/they become exclusive based on Art 3(2) TFEU?

EU EXTERNAL RELATIONS

The cooperation issue: Is a Member State entitled to act?

• Does the MS have the competence to conclude the agreement (i.e. the EU does not have exclusive competence)?

• If so, is there a “beginning of a concerted action” at EU level requiring MS to cooperate with the EU and if need be refrain from exercising their competence (see eg. PFOS)?

EU EXTERNAL RELATIONS

Effects of (the provisions of) the agreement

• Does the obligation relate to EU or Member States’ competence?

• Does the provision meet the conditions of direct effect?

GOOD LUCK!