EU Law – revision lecture• Which EU rules should be applied/considered ie Identify relevant...
Transcript of EU Law – revision lecture• Which EU rules should be applied/considered ie Identify relevant...
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EU SUBSTANTIVE LAW –REVISION POWERPOINT
April 2019
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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!!
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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
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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
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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?
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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)
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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)
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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
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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)
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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?
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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)?
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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?
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GOOD LUCK!