- Oscola referencing must be used
- Please select and answer any 3 out of the following 6 Questions.
- 1500 word limit per question. Each question must not exceed 1500 words.
- Start each question on a different page
Q1. Consider the legality of each of the following (imaginary) charges under the EU law which have recently been introduced by the German government.
(a) A charge of €10 per box is now payable on face masks coming directly from Turkey.
(b) All lorries arriving into Germany after 9pm are required to use the nearby lorry park overnight instead of immediately continuing on their journeys. A compulsory fee of €40 per night is charged: the government states that this is to cover the cost of the lorry park being protected by 24-hour security and CCTV cameras.
(c) All live rabbits either imported to or exported from Germany are subject to health inspections at the ports and a charge is made for the inspections. The government claims that the inspections are necessary to prevent the spread of a new strain of rabbit flu.
(d) The German government has also decided to impose a 15% tax on beef burgers in an attempt to counter the rise in obesity. Sausages will not carry the tax even though they can contain an equivalent amount of meat.
Q2. OBITU operates a chain of garden centres in Latvia and seeks your advice on the following matters under the EU law.
(a) It has been ordered to withdraw a popular range of Lithuanian weed killer on the grounds that the weed killer contains a chemical that is suspected of causing lung cancer. All imports of this weed killer have been banned by the Department of Health. An (imaginary) EU Directive on Toxic Chemicals prohibits certain toxic ingredients in garden products but does not mention this particular chemical.
(b) Latvian law states that all plants sold in Latvia must be labelled with information giving their country of origin. OBITU would also like to apply a sticker saying, ‘Protect Latvian Trees!’ to all the ornamental trees it sells.
(c) Latvian law also prohibits the advertising of all ornamental trees on television.
(d) Lithuanian garden centre owners are upset with Latvian restrictions. They stage a one-day protest at the Easter weekend blocking the motorway. As a result of this, OBITU is unable to receive its anticipated supplies of garden furniture in time for the start of the peak season for sales of furniture. OBITU wishes to sue the Lithuanian government for allowing the protest and the Lithuanian police for not removing the protestors whose action consequently resulted in their financial loss.
Q3. In 2015, Juma and Bahati, two Tanzanian nationals, arrived on a flight from Zanzibar to Berlin. On arrival, they immediately applied for asylum and were housed in Leipzig until a decision was made. Their application was rejected in 2017 by the German Home Office. They appealed. Whilst awaiting the outcome of their appeal, Carmen gave birth to a baby boy, James, in 2020. Baby James acquired German nationality.
Last week, the couple were told that their appeal had been unsuccessful. They were served with a deportation order via SMS text message requiring them to leave Germany immediately. They are scared to return to Tanzania as they fear for their safety.
Meanwhile, John, a British national married to Sandra, who is a German national, has been told that he must leave Germany as he over-stayed his three months tourist visa. The couple have no children. They are also unemployed, live on state benefits and have past convictions for possession of ‘soft’ drugs.
Sandra’s brother Hans is also upset at the manner in which the German authorities have treated his beloved sister. He has dual German-Ukrainian nationality. He decides to move to Spain to work as a part-time male model. He is prevented from doing so as Spanish law states that in relation to dual nationals your place of birth determines your nationality. Hans was born in Kiev.
Considering the above (imaginary) events, advise Juma, Bahati, Sandra, John, and Hans as to their respective rights under the EU law.
Q4. PIWO ZO is a Polish company that markets itself as brewing ‘real ale’ from only the finest, natural ‘organic’ ingredients. So far, its market has been a somewhat limited, specialist and very small one in Poland, although the quality of their product is recognised as being available from very few other Polish brewers. It is now seeking to exploit a recent fashion on the continent for all things Polish by expanding its outlets to France and Germany.
As a consequence, it is negotiating a distribution agreement with two other equally small continental companies: De Grande SA and Walt GmbH, a French company, and a German company respectively. The negotiations have produced a draft agreement that contains a list of terms to which all parties are prepared to agree. The agreed terms include that PIWO ZO will not appoint any other business to sell their beer in France and Germany; it will not sell beer to French or German customers respectively; De Grande SA and Walt GmbH will not sell to any customers outside France and Germany; they will not advertise for business outside Germany and France; and they will sell beer at the prices fixed by PIWO ZO.
PIWO ZO have asked for your comments about the implications of the above-mentioned terms in the context of EU competition law.
Advise PIWO ZO on whether the concluded agreement with De Grande SA and Walt GmbH complies with EU law.
If the agreement does breach Article 101(1) TFEU, does it qualify for the exemption?
Q5. ‘Article 102 TFEU is directed towards the unilateral conduct of dominant firms which act in an abusive manner. There is nothing illegal per se in finding that a firm is ‘dominant’ in a relevant product market. What is prohibited is when that dominant firm uses its position to behave in a certain manner which is likely to affect trade between Member States in the EU.’
Discuss the validity of the above statement, giving examples of abusive conduct which has been held to be in breach of Article 102 TFEU.
Can abusive conduct by a dominant firm ever be justified?
Q6. `The terms ‘worker’ and ‘activity as an employed person’ may not be defined by reference to the national laws of the Member States, but have a Community (Union) meaning. If that were not the case, the EU rules on freedom of movement for workers would be frustrated, as the meaning of those terms could be fixed and modified unilaterally, without any control by the Union institutions… [I]t must be stressed that these concepts define the field of application of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively.`
53/81 Levin v. Staatssecretaris van Justitie  ECR 1035 at paragraph 11
Critically assess whether the concept of “worker” under EU law has been appropriately defined by the CJEU.