EU Law 2

Question 1

Article 28 TFEU

Answer 1

The Union shall comprise a customs union which shall cover all trade in goods. It prohibits customs duties on imports and exports and of all charges having equivalent effect.

Question 2

Article 30 TFEU

Answer 2

• Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States.
• Craig and de Burca state that the CJEU has narrowly interpreted Article 30 TFEU, which has limited its scope and effectiveness in achieving the free movement of goods. The exceptions such as public policy and health safety have been interpreted broadly.
• Stephen Weatherhill notes that it is an essential part of the process of market integration but is not enough on its own to secure neutrality in fiscal law.

Question 3

Article 30 TFEU Cases

Answer 3

1. Legros
2. Commission v Italy - tax on historical, archaeological or artistic significant items.
3. Sociaal Fonds
4. Commission v Italy - Italian statistical levy
5. Commission v Luxembourg and Belgium (Gingerbread)
6. Bresciani
7. Bauhuis
8. Commission v Germany (veterinary charge on live animal imports)

Question 4

Legros

Answer 4

Article 30 applies to levies on goods crossing national frontiers and frontiers internal to a particular member state.

Question 5

Commission v Italy (historical, archaeological or artistic significant items)

Answer 5

• Export tax for items of historical, archaeological or artistic significance.
• Italy said they are not goods or for revenue-raising purposes.
• Goods are anything VALUED IN MONEY and the SUBJECT of a COMMERCIAL TRANSACTION.
• The Purpose and size of the charge is irrelevant, it has a restrictive trade effect.

Question 6

Sociaal Fonds

Answer 6

Belgian 1/3% charge on imported diamonds. The purpose and size of the charge is irrelevant even though it was to finance a social benefit fund for the diamond workers.
Art 30 TFEU applies. Charge prohibited if on goods crossing the border.

Question 7

Commission v Italy (Italian statistical levy)

Answer 7

• Italian statistical levy imposed to gather data on exports. Paying the charge with give data about trade patterns, their location and size.
• HELD: There is an absolute prohibition on charges.
  1. The purpose and low rate is irrelevant, however small.
  2. The advantage to the individual must be specific - some traders might not ever use the data as they already know their marker.
  3. There must be a specific link between the payment and the service provided.

Question 8

Commission v Luxembourg and Belgium (Gingerbread)

Answer 8

Two countries had introduced a special import duty on imported gingerbread.
CJEU rejected the Belgian government’s argument that the charge was needed to equate the price of the foreign product with the price of the Belgian product.

Question 9

Bresciani

Answer 9

• Italian inspection charge (raw cowhides from France to Italy) for veterinary inspections passed onto importers.
  1. It does not matter whether it was a charge based on QUANTITY, it is still not allowed.
  2. The service was too GENERAL in nature and could not be assessed.
  3. INSPECTIONS are in general interest and necessary for health protection under Art 36 TFEU but the charge itself is not justified under Art 30 TFEU. The general public should pay for the costs instead.

Question 10

Bauhuis

Answer 10

• Dutch CHARGES for veterinary inspection of live animals. An exporter challenged it.
• ONE CHARGE was prescribed by EU Dir 64/432 TO PROMOTE the free movement of goods through the application of the charge and it was not unilateral action being taken by the State.
• A charge is not a CEE if it reflects the ACTUAL COST of the inspections to carry out something PRESCRIBED by EU law.

Question 11

Commission v Germany (Veterinary charge on live animal imports)

Answer 11

• Live animal import veterinary charge under Dir 81/389.
  1. There must be a general system of non-discriminatory internal dues or taxes.
  2. A charge for all traders including national ones in the same way at the same rate at the same marketing stage in the process - it then comes under Art 110 instead which could require the rules to be modified
  3. A charge imposed to help the state fulfil EU law obligations in the general interests of the EU is fine. The charge must be prescribed by Union law, must not exceed the actual costs and must be designed to promote the free movement of goods.
  4. Inspections must be obligatory and uniform.
  5. It must be a payment directly linked to the service.

Question 12

Article 110 TFEU

Answer 12

1. MS must maintain a system of non-discriminatory internal dues or taxes based on OBJECTIVE criteria unrelated to the ORIGIN or DESTINATION of the products.
2. The charge must apply to imported and domestic products at the same marketing stage and at the same rate.
3. The chargeable event, giving rise to the duty to pay the charge must be identical for domestic and foreign products (Co-Frutta)

Question 13

Article 110 TFEU Cases

Answer 13

1. Commission v Ireland (alcohol duty payment)
2. Johnnie Walker
3. Bergandi
4. Humblot
5. Feldain
6. Commission v Greece (car tax)
7. Chemial
8. Commission v France (traditional sweet wine tax)

9 . Commission v France (tax on cereal spirits)
10. Commission v UK (wine tax)

I just be having funds going crazy fast - FU

Question 14

Commission v Ireland (alcohol duty payment)

Answer 14

• Ireland required alcohol duty payment but gave domestic producers 4-6 weeks after placing their products on the market. Importers had to pay the alcohol duties at the time of importation.
• The effect of tax gave Irish producers a small obvious advantage. They could pay the tax after selling their products unlike foreign importers.
• It was direct discrimination contrary to Article 110 TFEU.

Question 15

Johnnie Walker

Answer 15

MS can lay down TAX ARRANGEMENTS DIFFERENTIATING between certain products based on objective criteria if it pursues objectives of ECONOMIC POLICY compatible with EU law.

Question 16

Bergandi

Answer 16

• French system of taxation which taxed ‘bad’ games machine at a higher rate than less ‘bad’ game machines was compatible with Article 110 TFEU.
• It was based on objective criteria related to the characteristics of the products and the need to protect public health,

Question 17

Humblot

Answer 17

• A progressive French car tax system captured more imported cars.
• The tax rate and calculations favoured French production.
• It was against Article 110 TFEU and must comply with the principle of neutrality.
• The progressive systems, on the face of it, are allowed as long as they do not contain any discriminatory element and are not protective in nature (Commission v Greece).

Question 18

Feldain

Answer 18

• A progressive French car tax system had 9 tax bands tax with a sharp rise above 16 CV. Only imported cars fell within this so it was discriminatory/protective. Applicant was seeking reimbursement for the higher tax rate he paid for several years.
• HELD: Art 110 TFEU applies so it is examinable for compatibility.
• The method of assessment was discriminatory and not objective. They were based on things that seem non-discriminatory like power and size but was done to catch non-French products.

Question 19

Commission v Greece (car tax)

Answer 19

• Greek car tax based on engine size. The system mostly affected imported cars especially because of the sharp rises in tax between the different bands.
• HELD: The progressive tax policy was acceptable. It was based on legitimate justifiable objective criteria.
• Bigger cars are more likely to be luxury cars bought by people on high incomes so they should be subject to heavier tax.
• Bigger cars are heavier and are more likely to damage roads and cause pollution. Some Greek cars caught by middle/higher tax

Question 20

Chemial

Answer 20

• Italian synthetic/fermentation ethyl alcohol tax. Synthetic alcohol had much more tax than fermentation ethyl alcohol made from things like potatoes and rain.
• HELD: There was a legitimate choice of economic policy to promote alcohol production from a renewable resource instead of a non-renewable resource.
• The tax had the same effect on domestic producers and importers.
• It dissuaded domestic producers from making synthetic ethyl alcohol.

Question 21

Commission v France (traditional sweet wines)

Answer 21

• It was legitimate for France to tax traditional sweet wines more favourably than other liqueur wines since manufacturers of traditional sweet wine suffer a disadvantage as they were produced in regions with poor soil and low rainfall.
• It was open to manufacturers from any member states to have their products characterised as traditional sweet wine. No nationality distinction since the registration of goods as traditional sweet wine was open to anyone.
• France cannot impose an extra impediment and importers just have to demonstrate they are registered in a similar way in their own state but do not have to register on the French market.

Question 22

Difference between Article 110(1) and 110(2) TFEU

Answer 22

• Craig and de Burca note that the CJEU has interpreted Article 110 broadly to include not only taxes that are explicitly discriminatory but also those that have a discriminatory effect.
• 110(1) means that member states cannot use taxes to give their domestic products AN ADVANTAGE OVER similar products from other member states.
• 110(2) means member states cannot use taxes TO DISCRIMINATE AGAINST products from other member states that are not in direct competition with their domestic products.
• Similar Products would ‘have similar characteristics and meet the same needs from the point of view of consumers’ (Rewe)
• Other Products would be ‘in competition, even partial, indirect or potential’ (Commission v France - tax on spirits)
• SSNIP Test: If a price increase is enough to change consumers’ mind, it satisfies the test.

Question 23

Commission v France (tax on cereal spirits)

Answer 23

• France had a higher rate of tax on cereal spirits, rather than those produced from fruit.
• EU commission argued it was to discriminate against cereal spirits of which France did not produce much.
• HELD: Some common characteristics like high alcohol content and distillation process but there are differences. They taste and smell different (organoleptic properties).
• The CJEU did not distinguish between Art 110(1) and Art 110(2). They just looked at the word ‘other’.
• Commission v France on light and dark tobacco did the same.

Question 24

Commission v UK (tax on wine)

Answer 24

• Tax on wine was up to 5 times higher than that on beer. UK produced a lot of beer and not a lot of wine so it looks like protectionism.
• There is potentially a degree of interchangeability so Art 110(2) TFEU applies.
• Some interchangeable wines were subject to the higher rate of tax since the tax applied to all wines. Some consumers were put off wine by higher tax.
• The products are not same nor similar but there was some competition between them.
• The lower the degree of interchangeability, the more likely we are dealing with Art 110(2) instead of 110(1).

Question 25

Difficulty with Article 30 TFEU and 110 TFEU.

Answer 25

• Weatherhill notes that Article 30 and 110 are complementary but mutually exclusive.
• 2 types of cases where it is hard to say whether is an Art 30 or 110 charge:
  1. levy on importer but by its nature, can be categorised as internal tax.
  2. importing member states does not produce the goods.
  Denkavit and Co-frutta

Question 26

Denkavit

Answer 26

• Tax on imported animal feed from the Netherlands to Denmark. They were met with an inspection charge.
• Distinguishing Feature - The charge was imposed on both domestic and importers at the same rate in the same way at the same point in the process to cover all costs.
• This switches it from Art 30 to Art 110.
  1. Same rate
  2. Same marketing stage
  3. Same purpose.

Question 27

Co-frutta

Answer 27

• Italian Tax on bananas. Italy did not produce bananas but Colombia did. It entered Benelux in the EU.
• When it entered Italy, it imposed a high tax compared to other fruits grown in Italy.
• HELD: Bananas fell into a category of tropical products under their internal taxation system so Article 110 applies.
• The MS must show the charge is not protectionist to domestic products.

Question 28

Article 34 TFEU

Answer 28

• Quantitative restrictions on imports and all measures having equivalent effect [MEQR] shall be prohibited between Member States.
• Quantitative restrictions on exports (Article 35 TFEU).
• EU Directive 70/50 on the abolition of MEQRs on imports is secondary legislation that sheds light on Article 34 TFEU.
• Steven Webber said Article 34 is striking for its brevity. It severely limits existing rules that member states have introduced.
• Irish Public Health Alcohol Bill has not been enacted because of Article 34 as other member states objected to it. They said it makes it more difficult to access the host member state’s market.

Question 29

Questions to ask for MEQR Question

Answer 29

1. Is this a quantitative restriction or MEQR? Is it an indistinctly applicable MEQR?
2. Does it come within the scope of Article 34 TFEU? Does it amount to a selling arrangement under Keck?
3. Is the MEQR justifiable under Cassis or Article 36 TFEU?

Question 30

Cases for whether it is a MEQR

Answer 30

1. Dassonville
2. Commission v Ireland (government campaign)
3. Gilli
4. Cinéthèque
5. Commission v Italy (towing trailers)
6. Swedish Jet Ski
7. Commission v France (franking machines)
8. Rau
9. Smanor
10. Déserbais

Question 31

Dassonville

Answer 31

1. Importation of Scotch whisky from France into Belgium required a Certificate of origin.
2. Para 5 states All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as MEQRs.
3. MS may take measures to prevent unfair trading practices in the absence of harmonising measures BUT THEY MUST BE REASONABLE AND NOT HINDER TRADE

Question 32

Commission v Ireland (government campaigns)

Answer 32

• Government campaign to promote domestic consumerism.
• Para 28 states that measures adopted by the government of Member States which do not have a binding effect may be capable of INFLUENCING TRADERS and CONSUMERS and FRUSTRATING the AIMS of the [EU].

Question 33

Gilli

Answer 33

• Italy required vinegar only to be marketed as such if made from wine.
• CJEU: There was no health implication from apple-based vinegar instead of wine-based vinegar. There were more proportionate responses instead of banning it.

Question 34

Cinéthèque

Answer 34

• French rules on the length of time that had to elapse between the time a movie came out in cinema to availability on home video.
• HELD: It was an EQUAL BURDEN RULE that can still be caught by but compatible with Art 34.
• CJEU acknowledged that it pushed the BOUNDARIES of Art 34.
• AG SLYNN had a different approach and in his view, equal burden rules do not fall within Article 34 TFEU even if it does in fact lead to a restriction or reduction of imports.

Question 35

Commission v Italy (towing trailers)

Answer 35

• Italian law prohibited motorcycles and mopeds from pulling trailers, which only affected imported goods since Italy did not make trailers to be pulled by these vehicles.
• It did not mention origin but only affected imported goods in practice.
• It was an MEQR as it hindered market access for imports but was Justifiable on public safety grounds

Question 36

Swedish Jet Ski

Answer 36

Sweden severely limited jet ski use on INLAND BORDERWAYS for environmental protection reasons.
It was so limited that there was no point in buying a jet ski. It was an MEQR.

Question 37

Commission v France (franking machines)

Answer 37

Every time a British company applied for their franking machine to be used in France, they got rejected so it was a MEQR that discriminated on the basis of nationality.

Question 38

Rau

Answer 38

• Labelling/Packaging Requirements are covered by Articles 2 and 3 of EU Directive 70/50 as measures which hinder imports, including equal burden requirements
• Belgium law required margarine in rectangular-shaped tubs to distinguish it from butter. This went too far and Article 34 TFEU applied.
• Could not be justified on consumer protection because it went too far.

Question 39

Smanor

Answer 39

• French rules on yoghurt marketing. French producers had to label it as deep-frozen fermented product in France.
• This was a WHOLLY INTERNAL situation but Article 34 still applied because it had the potential to be a trade barrier.
• ‘Substantial difference’ test. If the product is substantially different from products normally known by that name, CJEU looks at 1. Codex standards and 2. Other MS rules

Question 40

Déserbais

Answer 40

• Domestic legislation required cheese to have a minimum fat content of 40% to be labelled as cheese. The fat content here was 34.3%.
• CJEU looked at codex standards and international standards.
• It was a difference in the norms but not that substantially different for the fine to be CRIMINAL-BASED.

Question 41

Cases for whether it is a selling arrangement

Answer 41

1. Keck
2. Punto Casa
3. Familiapress
4. DocMorris
5. Leclerc
6. De Agostini
7. Ker-Optica

Keck Played For Days Learning Deep Knowledge

Question 42

Keck

Answer 42

• French law banned the LOSS LEADER marketing practice.
• The Rule did not violate EU law as it was not designed to regulate trade. It was an equal burden rule that related to the conditions under which goods were sold.
  1. Keck applies to Selling arrangements that satisfy certain conditions, who’s nature does not prevent or impede market access any more than domestic products.
  2. MS can legislate on ADVERTISING, SHOP OPENING HOURS and SALES TECHNIQUES but they cannot be discriminatory or protectionist.
  3. Keck does not apply to 1. Selling arrangements affecting the nature of a product and have a 2. Differential impact on national traders and those from other MS.
  4. This decision was to address the increasing tendency of traders to invoke Article 34 TFEU as a means of challenging any rules that limit their commercial freedom even where such rules are not protectionist.
  5. Keck ONLY APPLIES TO INDISTINCTLY APPLICABLE MEQRs.

Question 43

Academic Commentary on Keck

Answer 43

1. Craig and de Burca note that this approach has been criticized by some as overly deferential to national governments, and that it has led to some uncertainty in the application of EU law on the free movement of goods.
2. Catherine Barnard states that Keck created a two-tier approach to the free movement of goods and provided insufficient guidance on how to distinguish selling arrangements from measures having equivalent effect.
3. Keck does not apply to 1. Selling arrangements affecting the nature of a product and 2. Differential impact on national traders and those from other MS.

Question 44

Punto Casa

Answer 44

• Italian Sunday trading rules. Art 34 TFEU not applicable as it was a Keck selling arrangement.
• Note: CJEU has moved away to see if a rule has more of an impact on non-national traders such as a lack of familiarity, you can show that Art 34 applies.

Question 45

Familiapress

Answer 45

• Austria did not allow cash prizes but this was a German magazine’s method of sales promotion.
• It was an integral part of German magazines. If they did not do this, it is less marketable in other MS. Article 34 applied.

Question 46

DocMorris

Answer 46

• German rules prohibited the sale of medicinal products outside pharmacies including on the internet.
• HELD: Article 34 applied. The rule affects pharmacies outside Germany more and can hinder market access.
• This is a MEQR that must be justified.

Question 47

Leclerc

Answer 47

Rules on Advertising is a selling arrangement.

Question 48

De Agostini

Answer 48

• Swedish advertising restrictions had 1. a ban on advertising aimed at children and 2. advertising on certain products like cosmetics or detergents without evidence.
• HELD: This had a differential effect on marketing because Swedish consumers will be more familiar with Swedish products compared to other MS products.
• It impeded market access, but this was a matter for the national court.

Question 49

Ker-Optica

Answer 49

• Hungarian law required online contact lens retailers to have a store in Hungary.
• Selling arrangements are to be seen as hindering trade and MEQRS unless the State shows that they affect everyone equally and are equal in law and fact.

Question 50

Cases for whether an MEQR is justifiable/Article 36 TFEU

Answer 50

1. Cassis de Dijon
2. Commission v Germany (beer purity laws)
3. Sandoz
4. Mars
5. Commission v France (fortified foods)
6. Red Bull GmbH
7. Scotch Whisky Association

Cassy goes shopping mainly for red shoes

Question 51

Article 36 TFEU

Answer 51

Article 36 allows member states to impose restrictions on the grounds of:
1. public morality
2. public policy
3. public security
3. protection of health and life of humans, plants and animals, and
4. protection of national treasures
but they cannot constitute a means of ARBITRARY discrimination or a DISGUISED restriction on trade.

Question 52

Cassis de Dijon

Answer 52

• German alcoholic strength requirements regarding importation of liqueur from France into Germany was a MEQR.
  1. The RULE OF REASON ALLOWS MS to impose Mandatory requirements restring the free movement of goods for reasons like fairness of commercial transactions and defence of the consumer.
  2. Labelling disclosure rules must be proportionate.
  3. Principle of mutual recognition - if something is lawfully marketable and manufactured in one member state, it must be lawfully manufactured and marketable in all member states.

Question 53

Commission v Germany (beer purity laws)

Answer 53

• Compositional requirements for beer.
• Labelling is a more proportionate response.
• Looking at UN codex and WHO guidelines, Additives here did not present a public health risk and the measures were inconsistent and not justified in the circumstances.
• The Art 36 exception for Health protection can only be used where necessary. Lots of things are risky but we do not necessarily need to ban them.
• Generally need evidence that it is detrimental to human health.

Question 54

Sandoz

Answer 54

1. Where scientific uncertainty exists and there is no harmonizing measure at EU level, the MS can take action if there is some scientific evidence supporting their case (precautionary principle).
2. However, some authorisations must get through the process and they must show evidence of a seriously considered policy.
3. It must be proportionate and necessary to the aim pursued and the means must suit the objective.

Question 55

Mars

Answer 55

• German rules addressing unfair competition. A sweet wrapper with the marking “10%” was said to be misleading and therefore the said wrapper was prohibited from being marketed in the German national market.
• The effect of this rule was to prevent access into the German market for the product concerned unless the manufacturer produced a specific wrapper for that market.
• CJEU held that the “mere possibility” that the wrapper concerned may mislead consumers was an insufficient basis for banning the circulation of the said wrapper altogether.
• It is important to have informed consumers but the claim should be stronger.
• If a law has elements of both a Keck selling arrangement and a Dassonville MEQR, the requirement to alter a product’s characteristics brings it within the scope of Article 34 TFEU.

Question 56

Commission v France (fortified foods)

Answer 56

National authorisation procedures must be:
Accessible, Quick, Open to Appeal where there is a refusal of authorisation. It must not have too many hoops to jump through to be considered for authorisation. There must be reasons if authorisation is refused.
MS must do a risk assessment.
It must have:
1. Risk Analysis (scientific investigation with research to back up claim that there is a risk),
2. Risk Management (what you do with that information and how you manage the risk),
3. Risk Communication (how you communicate the risk with the public).

Question 57

Red Bull GmbH

Answer 57

• A MS must give evidence as to why they refused to authorise a product.
• Here, there was a Commission-backed (SHCN) report about consuming caffeine and taurine in the quantity they were in Red Bull.
• Since the report clearly supported France, the burden on proof switches from the MS to the Commission to produce evidence as to why the restriction was not necessary and why the MS was not right.

Question 58

Scotch Whisky Association

Answer 58

Scotland introduced rules for minimum unit pricing on alcohol.
CJEU offered potentially more proportionate alternatives to minimum unit pricing but the MS were more informed of their specific circumstances and their situation was unique.
The rule in Article 36 TFEU should not be relaxed if human life and health can be protected by measures less restrictive of trade but the national court can determine this.

Question 59

Introduction of additional measures by Member States

Answer 59

1. Article 5 of EU Regulation 2015/1535 & 2019/515: MS must notify new technical regulations that impose barriers to trade to the Commission. The Commission will then notify other MS and they can object.
2. Art 169 TFEU - Member States can have more stringent measures on consumer protection but they must be compatible with the Treaties and notify the Commission.
3. Irish Supreme Court has applied the Cityview Press “principles and policies” test set out in domestic law in an EU context (Maher Case). An applicant may be able to claim that the delegated power involved more than the mere giving effect to the principles and policies laid down in parent legislation.

Question 60

Free Movement of Workers

Answer 60

• Initially, free movement was primarily aimed at workers so they get more rights than EU citizenship rights.
• Article 45 TFEU: Free movement of workers shall be secured within the Union. Includes the right to bring family members in the State while you work.
• Right to accept offers of employment, move freely within MS for this purpose, stay in MS for employment and remain after employment
• Public service exception under Article 45(4) TFEU: Jobs related to things like national security can be exempted to not allow free movement of workers. Armed force, police, judges.
• Public policy, public security and public health exception under Article 45(3) TFEU must be proportionate, non-discriminatory, not go beyond aim and be appropriate to achieve the objective.

Question 61

Questions to Ask for Article 45 TFEU Problems

Answer 61

1. Is X a “worker” under EU law and what protections does that afford them?
2. Does Article 45 apply to the body?
3. Can the refusal to employ X be JUSTIFIED?
4. Does the prohibition on nationality discrimination help X?

Question 62

Free Movement of Workers Cases

Answer 62

1. Hoekstra
2. Roman Angonese
3. Levin
4. Steymann
5. Raulin
6. Lawrie-Blum
7. Antonissen
8. Brown

HR leaves students randomly looking at banks

Question 63

Hoekstra

Answer 63

• MS definitions could be arbitrary if it were up to individual MS to define what a “worker” is. They might set a high bar and prescribe a minimum number of hours.
• CJEU looked at Art 45 teleologically and elements of ‘working.’
• Free movement of workers is part of the foundations of the EU and it is up to the EU to define a worker is and who can avail of the protections for a worker. It gets maximum applicability and is defined as broadly as possible.

Question 64

Roman Angonese

Answer 64

• German-speaking Italian national who went to University of Vienna. He was fluent in Italian and German. He wanted to apply for a job at a bank in Italy.
• He was excluded from the competitive process because all applicants needed a type B certificate to be considered for the competitive process for the job to demonstrate language fluency.
• Art 45 has both horizontal and vertical direct effect. Art 45 TFEU is not specifically addressed to MS. It would compromise the principle if it only applied to public sectors.
• Equivalent qualifications must be acceptable also.

Question 65

Levin

Answer 65

• A worker is someone who engages in genuine economic activity (defined in broadest term possible).
• The work must be GENUINE and EFFECTIVE, anything that improves your living status.
• Motives are irrelevant but marginal and ancillary work is no genuine.

Question 66

Steymann

Answer 66

• A German plumber in the Netherlands gave up his job to join a religious community who ran some events. The community provided for his needs in return for his work.
• Anyone who provides Services of value for consideration is engaged in Genuine economic activity. Consideration does not have to be remuneration.
• The work was a vital part of the way the community operates quid pro quo work

Question 67

Raulin

Answer 67

• French waitress in Netherlands worked for a total of 60 hours as an on-call waitress when they were short-staffed. Her maintenance grant application for a course was rejected.
• The fact that she was ‘on-call’ was not decisive.
• CJEU looked at the irregular nature of the work, the limited duration, and her constant availability. It was not her fault that she did not do more work but always had to be available.
• There must be a link between the job and course being studied. If you give up a job to engage in education, there must be a link between the two. Exception is involuntary redundancy - starting education after being made redundant so there does not need to be a link.

Question 68

Lawrie-Blum

Answer 68

• UK national doing teacher training in a German university was denied access to the practical side of the training since they were not a German national.
• A worker is someone who performs A SERVICE UNDER ANOTHER’S DIRECTION IN EXCHANGE FOR REMUNERATION
• The level of pay is irrelevant and teachers got a small allowance to complete their education.

Question 69

Antonissen

Answer 69

• Belgian national moves to UK but does not work there. He looked for work for a bit but was not successful. He challenged a deportation from the UK government saying that he had a right to remain in UK as a worker.
• CJEU held Article 45 TFEU can apply to people who are seeking work.
• Some protection is included but some protections are excluded. They have residency rights but not necessarily social advantages rights until they obtain genuine economic activity.

Question 70

Brown

Answer 70

• French national moved to UK. While in France, Brown was accepted to an electrical engineering position in the Uni of Cambridge.
• He got ‘Pre-university industrial training’ before doing undergraduate studies in Cambridge. His application for a grant in the UK was refused.
• It was ‘ancillary’ work. He could not get the maintenance grant.
• He only got the work because of the education and did not get the education because of the work.
• There must be a link between the job and course being studied. If you give up a job to engage in education, there must be a link between the two. Exception is involuntary redundancy - starting education after being made redundant so there does not need to be a link.

Question 71

Direct Discrimination

Answer 71

• Any measure that distinguishes between nationals and non-nationals from other EU member states.
• It is contrary to Article 45 TFEU UNLESS IT CAN BE JUSTIFIED on grounds of public policy, security and health derogations under Article 45(3) TFEU and EU Directive 2004/38.
• Commission v France - France favoured French nationals to be hired as ship crew. It was contrary to Art 45 TFEU.

Question 72

Indirect Discrimination

Answer 72

• Situations where nationals will more easily satisfy the criteria set out for an opportunity, even the potential to discriminate against non-nationals.
• It must fulfill the test in Gebhard:
  1. it is applied in a NON-DISCRIMIANTORY manner
  2. it is justified by overriding requirements in the general interest
  3. the means suit the objective and
  4 . it does not go beyond what it necessary
  5. Carpenter added the criterion that measures which curtail fundamental freedoms and are justified by public interest considerations must respect the individual’s fundamental rights.

Question 73

Nationality Discrimination Cases

Answer 73

1. Ugliola
2. Sotgiu
3. Groener
4. Bosman
5. Danish Cars
6. Graf
7. Evan
8. Grzelczyk

Under Some Good Braces, Dentists Grab every Grill

Question 74

Ugliola

Answer 74

• German males had to do compulsory military service. German law allowed employers to take periods of German military service into account when availing of employment benefits.
• There was no distinction based on nationality but it was Indirect discrimination because Germans were likelier to fulfil this.

Question 75

Sotgiu

Answer 75

• A provision in German law granted a separation allowance if you met certain conditions.
• For example, if you took up an offer of employment to move from one part of Germany to another part of Germany. It was to cover costs attached to moving.
• HELD: Indirect discrimination because more likely that Germans will be entitled to this allowance.

Question 76

Groener

Answer 76

• A part-time Dutch teacher living and working in Ireland was interviewed for a full-time position.
• She could not take up the job as it required a certain level of proficiency in Irish.
• It was justifiable indirect discrimination.
  1. MS and employers can insist on a minimum level of competence in a particular language where it is essential to carry out the duties of the post. You need to examine the nature of the job to see if the language requirement can be legitimately used.
  2. There also has to be the ability for candidates to take retests.

Question 77

Bosman

Answer 77

• Transfer fee rules and participation rules were against Article 45 TFEU. Both were indirect discrimination as they cut off employment opportunities for people moving across states for opportunities due to fee payment or limitations on their participation in football matches.

Question 78

Danish Cars

Answer 78

• A Danish law required employers from other Member States to register company cars belonging to employees resident in Denmark.
• This had the effect of deterring employers from employee employees resident in Denmark since they had an extra obligation. It violated Article 45 TFEU.

Question 79

Graf

Answer 79

National law only allowed workers to get compensation in cases of involuntary redundancy. This did not infringe Article 45 TFEU because it did not affect access to the labour market and its effects were uncertain since it was based on future hypothetical events.

Question 80

Evan

Answer 80

Entitlement to a larger pension linked to world war 2 contributions was permissible.
It was not a social advantage since it was not linked to the individual’s status as a worker or to their objective status as residents in the host member states.

Question 81

Grzelczyk

Answer 81

• A French national studying in Belgium applied for an allowance in his fourth year, which was rejected since he was not a Belgian national.
  1. Since Belgian students did not have to be a worker before receiving the allowance, it had to also apply to him.
  2. EU citizens lawfully resident in a MS can rely on Article 18 TFEU in all situations falling within the scope of EU law and when exercising free movement and residence rights stemming from EU citizenship.
  3. Non-EU students may be able to get derived benefits from EU family members to later apply for allowances.

Question 82

Access to Vocational Training in EU

Answer 82

• Article 18 TFEU prohibits discrimination based on nationality. EU law uses a teleological approach to interpret the other Treaty provisions in light of this.
• Courts have married Articles 18 and 166 TFEU to ensure there is no discrimination based on nationality for access to vocational training.
• Vocational training is defined in the widest terms possible as anything that prepares an individual for any trained profession or employment. It should provide transferrable skills.
• Article 7 of Regulation 1612/1968 - 492/2011 prohibits discrimination on the grounds of nationality regarding work and employment and gives EU workers a right to access vocational training and social and tax advantages like national workers.
• Gravier and Blaizot.

Question 83

Gravier

Answer 83

• A French art student went to college in Belgium to get a qualification in cartoon art and was charged an enrollment fee when Belgian students were not charged the same fee.
• He was not a worker but could derive rights from the treaty provisions on non-discrimination based on nationality along with provisions like vocational training policy.
• The charge was discriminatory and Article 18 TFEU exists to support workers and increase opportunities for access to employment.
• His course was deemed to be vocational training defined broadly. He needed it to qualify for a profession, trade or employment and it provides skills for it.
• If it provides some ‘general education’, it is vocational training as long as it not for personal use.

Question 84

Blaizot

Answer 84

• Based on Gravier, French veterinary students applied for a refund of enrolment fees. Their course was 6 years with 3 years of undergraduate and 3 years of doctorate.
• The first 3 years did not lead to professional qualification but you cannot do the last 3 without the first 3 years.
• Both stages here were vocational training. You needed the first 3 years to vet into the last 3 years and the first 3 years gave necessary skills for the last 3 years. The last 3 years were to practice as a vet, so the whole 6 years were vocational training.
• No retrospective effect with a judgement like this so they did not have to get a refund from the university.

Question 85

EU Citizenship

Answer 85

1. Free movement of persons initially aimed at “workers”. EU Citizenship now gives rise to rights to live and reside irrespective of a person’s economic status in other EU MS.
   - Article 20 TFEU - Anyone holding the nationality of a MS is an EU citizen. EU citizenship is additional.
   - Article 21 TFEU - free movement of EU citizens within Member States.
2. Articles 21-24 TFEU set out the rights of EU citizens.
3. Article 24 TFEU does not allow EU citizens to get social assistance from another MS if residing there for less than 3 months unless they intend to become a worker. This time period can be extended.
   - EU Citizens have no right to a maintenance grant before acquiring a right of permanent residence but workers have this right.
4. EU Directive 2004/38 sets out citizens’ rights to move and reside in MS

Question 86

EU Directive 2004/38 on EU Citizenship

Answer 86

• Article 2 defines family members, includinga partner EU citizen has contracted a registered partnership with under a MS legislation.
• Article 6 of the Regulation grants EU citizens right of residence for up to 3 months in another MS
• Article 7 gives EU citizenship right of residence for more than 3 months if they are a “worker,” even if temporarily unavailable to work due to illness or accident and if made involuntarily redundant after over one year’s work OR if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system and have comprehensive sickness insurance cover OR if on vocational training without being a burden to the social assistance of the MS and with insurance. Family members of these people will be examined under the heading family members.
• Article 16 means after 5
  years of uninterrupted residence, Union citizens and their family members obtain permanent
  residence.
• Article 24 gives EU citizens the right to equal treatment as nationals.
• Articles 27-33 have exceptions such as public policy and public security threat.
• Article 28 means they cannot get deported after 10 years of residence unless they are a threat to public security.

Question 87

EU Citizenship Cases

Answer 87

1. Zambrano
2. Baumbast
3. Chen
4. Bidar
5. Metock
6. Dano
7. Collins

Zambrano beat chen badly making death come

Question 88

Zambrano

Answer 88

• Mr. Zambrano, a Columbian national brought proceedings in Belgium challenging its refusal to grant him unemployment benefits under Belgian legislation. Two of his children were born in Belgium and were Belgian citizens.
• CJEU stated that “citizenship of the Union is intended to be the fundamental status of nationals of the Member States”
• Refusal to grant a right of residence to Mr Zambrano, a third country national with dependent EU citizen children and refusal to grant a work permit would make the children have to leave.
• TFEU applies to wholly internal situations but the EU Directive 2004/38 does not apply to wholly internal situations, only when a national of one MS moves to another MS.
• McCarthy case and the Derici case is more
  restrictive.

Question 89

Baumbast

Answer 89

• Bombaust was a German national who moved to the UK as an employee with his Colombian wife and family. They had their own house in the UK.
• Bombaust had periods of employment, unemployment and self-employment for the 3 years he was in the UK. He left the EU but his family remained in the UK. Him and his wife were divorced which was irrelevant.
• Articles 20 and 21 TFEU have direct effect for individuals. They needed to show they were self-supporting and not an ‘unreasonable burden’ on the MS, which they did.
• As a third country national, they had to show they lived there at least a year before Bombaust’s departure.
• It would be disproportionate to deport them from the UK because their medical insurance does not cover emergency medical treatment.
• They could use Bombaust’s EU citizen rights since he was no longer a worker.

Question 90

Chen

Answer 90

• There is no minimum age requirement for legal capacity to acquire legal rights, so a jus soli child could avail of legal rights as an EU citizen.
• The family had to show that they were not an ‘unreasonable burden’ on the MS with adequate insurance. It then extends citizenship rights to primary carers in ascending and descending order. If the parents had to leave, the baby would have to leave too.
• Member States cannot restrict the legal effects set out in Article 21 TFEU by placing additional conditions on certain categories of EU citizens, such as investigations into the Chen’s reasons for moving to Belfast in the first place.

Question 91

Bidar

Answer 91

• CJEU read Articles 20 and 21 TFEU on citizenship and Article 18 TFEU on non-discrimination based on nationality with Article 24 of Directive 2004/38 on equal treatment of EU citizens. They distinguished between citizens moving to a State to look for social advantages and citizens residing in a State who then end up seeking social advantages.
• Moving to a State for social advantages would exclude them from Article 24 social advantages.
• Bidar resided in the State since secondary school and needed a maintenance grant for university so he could get Article 24 social advantages.
• A MS can require a ‘Certain degree of integration’ for applicants to get Article 24 rights like social advantages but it must be proportionate to the aim pursued.
• In Forster, a 5-year residency requirement to acquire settled status was legitimate.

Question 92

Metock

Answer 92

• 3rd country spouses applied for residence cards upon marrying EU citizens. They were refused on the grounds that the spouse did not satisfy the condition of prior lawful residence in another MS.
• MS are not entitled to refuse residency to the spouse of an EU national, who does not have prior lawful residence in another MS.
• MS must allow non-EU spouses of an EU citizen, who accompany or join that EU citizen, to rely on Directive 2004/38, irrespective of when and where their marriage took place and of how that spouse entered the host MS, unless the marriage is a sham.
• Extension of Zambrano

Question 93

Dano

Answer 93

To have residency rights attached to citizenship, you need to satisfy the conditions of Regulation 2004/38 like self-sufficiency. If you start being a burden on the MS, you can lose the residency rights attached to citizenship such as social advantages.

Question 94

Collins

Answer 94

• There should be a real link between the jobseeker and the labour market of the MS.
• Jobseeker’s allowance helps people access the jobs market. If he could demonstrate he was a jobseeker actively seeking employment, he should be entitled to the allowance but a MS can place limitations on this (like duration limits and certain requirements) as long as they are proportionate to the aim pursued.
• It cannot be too difficult to qualify.
• It would be disproportionate for a member state to have a residency requirement of too long a period of time to get jobseeker’s allowance since some people move to a State and then begin looking for jobs.

Question 95

Singh

Answer 95

A third-country national who is married to an EU citizen residing in a Member State other than the citizen’s own State can no longer enjoy a right of residence in that State where the EU citizen leaves that State before the commencement
of divorce proceedings

Question 96

Ogieriakhi

Answer 96

CJEU found that for the 5-year residence requirement, a third-country spouse could rely on periods of residence completed before the directive was transposed even if, during that period, the couple agreed to live apart with other partners.
Lassal also held that periods before the directive was transposed counted. It just gives present effect to situations which arose before the date of transposition and is not retroactive.

THE RESIDENCY PERIOD FOR THIRD COUNTRY NATIONALS INCLUDES TIME BEFORE THE DIRECTIVE 2004/38 WAS TRANSPOSED/

Question 97

Free Movement of Capital

Answer 97

• Article 63 TFEU
• Applies for capital between member states and between members states and a third country subject to restrictions
• Applies to member states and collectively regulating bodies.
• Does not apply to wholly internal situations.
• Council Directive 88/361/EEC covers free movement of capital.
• Has vertical and horizontal direct effect if the provisions are clear and unconditional and no implementing provisions are required (Sanz de Lera).
• Applies to national rules that may impede capital movements, even though they are not directly discriminatory (Commission v Portugal)

Question 98

What is considered Capital

Answer 98

1. Loans and Investments (Heirs of the Van Hiltern)
2. Mortgages (Stefan)
3. Shares (Test claimants in the FII Group)
4. Real estate investments
5. Exchange of foreign currency to pay for a service (Luisi & Carbone)

Question 99

Exceptions to Free Movement of Capital

Answer 99

Article 65 of Directive 88/361
1. Direct taxation is fine as long as there is no discrimination based on nationality (Verkooijen).
2. MS can take action to prevent infringement of national law and to effectively administer economic policy within their MS but it must be directly linked to administering policy (ELISA)
3. Public policy and security but the measure must be proportional (Scientology International)
4. Overriding requirements in the general interest but it has to be non-discriminatory, appropriate for the aim and not go beyond what is necessary
5. MS can differentiate between taxpayers on the basis of their residence as long as it is not arbitrary or a disguised restriction on the free movement of capital (Commission v Italy). Claimant held most of his assets abroad so could be differentiated from resident taxpayers.

Question 100

Free Movement of Services

Answer 100

Articles 56-62 TFEU
- Article 56 and 57 TFEU allows for the FMS within the EU where economic activity is engaged on a temporary basis.
- Excludes transport, banking, insurance and wholly internal situations.
- Article 52 and 62 TFEU has allowable restrictions to the Free Movement of Services: public policy, public security and public health. They must satisfy the necessity and proportionality test if in public interest.
- Necessity test - MS should show their actions are genuinely necessary and it is not reasonably practicable to adjust them in the area of health care to allow for FMS (Kohll)
- Services Directive 2006/123/EC excludes healthcare from its scope. Article 8 of Directive 2011/24 provides for the circumstances in which the Member State must have given prior authorisation and those circumstances in which a Member State may refuse authorisation.

Question 101

Free Movement of Services Cases

Answer 101

1. Van Binsbergen - the free movement of services has direct effect. Restrictions must pursue a legitimate public interest, be non-discriminatory, proportionate to the objective and respect fundamental rights (Carpenter).
2. Deliege - It cannot be a purely internal matter and must involve remuneration. A Belgian sportswoman could only bring an action against the Belgian Judo Federation because she frequently participated in competitions in other MS.
3. Luisi & Carbone - It includes freedom to deliver and receive services.
4. Cowen - FMS must involve remuneration. A tourist spending money in France was considered remuneration but this case could be decided differently today.
5. Laval - Latvian workers were able to go to Sweden to do work and come back.
6. Humbel - education was not a service under Article 56 because it was publicly funded and the State established the system to fulfill its duties to the people.
7. ERT - Any limitation on the FMS must respect fundamental rights.

Question 102

Restrictions to the Free Movement of Services

Answer 102

Article 62 TFEU contains allowable restrictions
1. Danner - restrictions on tax grounds can be used to prevent fraud but not other broader restrictions.
2. Alpine Investments - non-discriminatory restrictions can be caught if it hinders the free movement of services. Here, a ban on cold calling for all nationals hindered the FMS but was justified and proproprionate.
3. Gebhard - CJEU found that all national measures “liable to hinder or make less attractive the exercise of fundamental freedoms” are to be seen as restrictions on movement.
4. Mobistar - the mere imposition of an equally
applicable cost is not a restriction on services. Otherwise, almost every tax or regulation relevant to the services industry could fall within.
5. Commission v Italy (motor insurance) - Italian rule prohibited motor insurers from rejecting a client. CJEU found that foreign insurance companies would be deterred from offering
insurance services in Italy so this was a restriction on the free movement of services. A service provider should be able to do business throughout the EU in the same way, and with the same products, as he provides in home state, unless there is a good reason justifying derogation from this rule.
6. Murphy - Protecting IP was justified if serves overriding reasons in the public interests, is suitable to achieve the public interest objective, and does not go beyond what is necessary.

Question 103

Public Health under FMS

Answer 103

• EU citizens may travel to other MS to receive medical services and seek reimbursement from their own MS or insurance company upon their return.
  Directive 2011/24 - If you are entitled to public health services in Ireland, you may choose to access those services in another member state, public or private, you can be repaid under certain conditions but it excludes organ transplant and long-term care.
• Under Article 52 TFEU, they are permitted to make reimbursement subject to their prior authorisation system as long as the system is justified on the grounds of protecting public health. Prior notification in Ireland is optional.
• Avoiding seriously undermining the financial balance of a social security system and maintaining a balanced medical and hospital system open to all may be justifiable if it contributes to getting a high overall level of health protection.
  1. Geraets-Smits - Dutch law only gave reimbursement when applicants got prior authorisation to travel for medical treatment. This was a restriction that could be objectively justified to maintain a balanced medical and hospital service open to all.
  Authorisation systems must be objective, non-discriminatory criteria known in advance Accessible, Quick, Open to Appeal where there is a refusal of authorisation.
  Medical service paid for by a patient in another MS is still a service if reimbursement is applied for under another MS laws. If national laws allow for reimbursement of costs in a hospital covered by the national system, it has to allow for reimbursement of ancillary costs by a patient authorised to go to another MS for treatment.
  2. Van Riet - CJEU said the prior authorisation systems to reimburse hospital costs incurred in
  other MS, which was granted when it was necessary for the insured person’s health care, was capable of pursuing the legitimate objective of ensuring that there was not an excess of unused hospital beds. Prior authorisation for the reimbursement of non-hospital treatments was contrary to Article 56.
  3. Watts - Article 56 TFEU applies to private insurance schemes and publicly funded schemes like the NHS or HSE. Refusal to grant prior authorisation must be based on objective medical assessment of the specific circumstances and medical condition.
• In Ireland, you can claim reimbursement for the smaller amount of healthcare cost spent abroad or what it would have cost if in Ireland

Question 104

Free Movement of Establishment

Answer 104

Articles 49-54 TFEU
- Article 49(1) TFEU covers primary and secondary establishments. Excludes non-profit establishments.
- Article 49(2) TFEU prohibits unequal treatment and discriminatory measures favouring domestic residents over foreigners.
- Establishment is permanent like setting up a business.
- Public health, public security, public interest exceptions
- Article 54 TFEU - companies should treated like individuals under the FME.
- Critique: it makes it hard to crack down on tax avoidance.

Question 105

Free Movement of Establishment Cases

Answer 105

1. Reyners - FME is directly effective like Van Gend en Loos so individuals van bring a case against the MS or private bodies regulating in a collective manner.
2. Heylens - a qualification in one MS should be acceptable in another MS. Equivalent qualifications are interpreted broadly. Principle of mutual recognition has exceptions where there is different knowledge or qualifications acquired by professionals in other MS.
3. Directive 2005/36 seeks to harmonise qualifications in the EU.
4. Gebhard - national measures liable to hinder or make less attractive the fundamental freedoms or the pursuit of economic activity must be applied in a non-discriminatory manner, proportionate to achieve the objective, not go beyond what is necessary and be justified by important requirements in the general interest.
5. Knoors - FME does not apply to wholly internal situations so individuals must have exercised their right to free movement.
6. Daily Mail - CJEU will focus on the overall objective of the Article but once a company is incorporated in one MS, that MS can set the conditions for incorporation like taxes. Daily Mail tried to move from UK to the Netherlands to avoid taxes but needed to obey UK incorporation rules which include this tax.
7. Gambelli - MS can still have prior authorisation procedures for the establishment of new healthcare providers to avoid the duplication of structures and to ensure public health is adapted to the needs of the population.