EU Law Past Questions (SEM 1) PDF

**Summer 2017: -** **PART A** **QUESTION 1** *Council Regulation (EU) No 123/2014 (fictitious) on Sustainable Agricultural Policy (hereafter SAP Regulation) provides for a European Agricultural Support Fund (EASF). The SAP Regulation specifies the categories of farmers that can access the EAS and lays down the specific conditions for farmers to be deemed eligible for funding. It also provides for the annual publication on a devoted website of the names of the farmers beneficiaries of the EASF. Mr Fergus Landlord is a beneficiary of the EASF and, in 2016, has received 70.000 Euro funding to carry out his organicofarm. However, he does not want his name published on the website and claims that the SAP Regulation constitutes unjustified interference with his rights to respect for his private and family life and the protection of personal data, set out in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. Advice Fergus Landlord as to whether he can seek the annulment of the SAP Regulation under Art. 263 TFEU.* **ANSWER** **Issue** Can Mr. Landlord, a non-privileged applicant, establish standing to challenge the SAP Regulation and argue that it infringes his fundamental rights under the CFR? **Law** 1. **Article 263 TFEU**: a. Establishes the procedure for annulment actions in the EU, enabling applicants to challenge the legality of EU acts. b. Applicants must prove: i. **Standing**: 1. Privileged applicants (e.g., Member States, EU institutions) have automatic standing. 2. Non-privileged applicants (e.g., individuals) must show **direct** and **individual concern** or challenge a regulatory act that does not require implementing measures. ii. **Grounds for annulment**: Include lack of competence, procedural infringements, breaches of EU law, or misuse of powers. iii. **Reviewable acts**: Must be binding legal measures with direct effects on the applicant. 2. **Standing requirements for individuals**: c. **Direct concern**: The measure must directly affect the applicant without requiring further implementing acts (e.g., **Plaumann v Commission**). d. **Individual concern**: The measure must distinguish the applicant from others (Plaumann test: must be part of a closed or definitive class of individuals). 3. **Fundamental rights and proportionality**: e. Articles 7 and 8 CFR guarantee respect for private life and data protection. Any infringement must satisfy the **proportionality principle** (e.g., **Digital Rights Ireland v Ireland**): iv. The interference must pursue a legitimate aim, be necessary, and not exceed what is required to achieve that aim. **Application** 1. **Standing**: a. **Direct concern**: Mr. Landlord can argue that the SAP Regulation directly affects him, as it mandates the publication of his name and funding amount without requiring further implementing acts. b. **Individual concern**: Meeting this criterion may be challenging. The SAP Regulation applies to all beneficiaries of the EASF, creating a general class. However, Mr. Landlord could argue that the specific publication of his name creates a unique impact on his privacy and reputation, distinguishing him individually. 2. **Grounds for annulment**: c. Mr. Landlord may argue that the SAP Regulation disproportionately infringes his rights under Articles 7 and 8 CFR. d. While the EU may justify the publication as promoting transparency and accountability in the use of public funds, Mr. Landlord can contend that such objectives could be achieved through less intrusive measures (e.g., anonymized data or aggregated reports). 3. **Reviewable act**: e. The SAP Regulation is a binding legal act. It establishes rights and obligations, making it a reviewable act under Article 263 TFEU. **Conclusion** Mr. Landlord has a plausible case for challenging the SAP Regulation. However, the key hurdle lies in demonstrating **individual concern**. If successful, he could argue that the Regulation disproportionately infringes his fundamental rights under Articles 7 and 8 CFR. The outcome will depend on the CJEU's interpretation of proportionality and its willingness to recognize him as uniquely affected. **QUESTION 3** *Critically discuss the role of the European Parliament in EU legislative procedures.* **The Role of the European Parliament in EU Legislative Procedures** The European Parliament (EP) has undergone a remarkable transformation since its inception, evolving from a consultative assembly to a significant legislative body within the European Union (EU). Its role in legislative procedures has grown substantially, particularly with the introduction of the Ordinary Legislative Procedure (OLP) and its participation in Special Legislative Procedures. This essay critically evaluates the EP's legislative role, focusing on its powers under the OLP, its contributions to Special Legislative Procedures, and its broader influence on EU policymaking, while incorporating relevant treaty provisions and case law to illustrate its legislative authority and limitations. **The Evolution of the European Parliament's Role** The European Parliament's legislative powers are rooted in the **Treaty on the Functioning of the European Union (TFEU)**, particularly **Articles 289--294**, and have been developed through successive treaty amendments. Initially established as the Assembly of the European Coal and Steel Community, the EP's role was limited to providing non-binding advice. However, reforms such as the **Single European Act (1986)** introduced the cooperation procedure, enhancing the EP's legislative influence. The **Maastricht Treaty (1993)** marked a further milestone, introducing the co-decision procedure, which has since evolved into the OLP. The **Lisbon Treaty (2009)** represents a key development in the EP's empowerment, making the OLP the standard legislative procedure for most EU policy areas. Furthermore, it expanded the EP's powers in areas such as budgetary control, international agreements, and judicial appointments, reinforcing its position as a co-legislator alongside the Council of the European Union. **The Ordinary Legislative Procedure (OLP)** The OLP, as outlined in **Article 294 TFEU**, establishes the EP as a co-legislator with the Council, ensuring that legislation is subject to democratic scrutiny. Under this procedure, the EP has the power to propose amendments, reject proposals, and engage in conciliation with the Council to resolve disagreements. The process involves multiple readings, during which the EP plays a central role in shaping legislation. 1. **Illustrative Case Law and Examples** a. In ***European Parliament v Council (C-70/88**)*, the Court of Justice of the European Union (CJEU) emphasized the EP's role in the legislative process, highlighting the need to respect the procedural rights conferred by the treaties. This case reinforced the EP's position as an integral legislative actor. b. The EP's influence is evident in its work on the **General Data Protection Regulation (GDPR)**, where it advocated for robust data privacy protections. This demonstrates its ability to assert its legislative priorities, particularly in areas affecting fundamental rights. c. The EP's rejection of the **Anti-Counterfeiting Trade Agreement (ACTA)** in 2012 illustrates its role as a defender of citizen interests. In this instance, the EP exercised its veto power under the consent procedure, reflecting its commitment to protecting privacy and freedom of expression. 2. **Strengths and Limitations** d. The OLP enhances the democratic legitimacy of EU legislation by ensuring that the EP, as the only directly elected EU institution, represents citizens' interests in policymaking. e. However, the EP's lack of legislative initiative, reserved exclusively for the Commission under **Article 17 TEU**, limits its ability to shape the legislative agenda. f. Moreover, the requirement for conciliation with the Council can lead to compromises that dilute the EP's legislative preferences, reflecting the inter-institutional balancing act inherent in EU governance. **Special Legislative Procedures** In addition to its role under the OLP, the EP participates in Special Legislative Procedures, which apply to specific policy areas such as taxation, foreign policy, and international agreements. These procedures include the **consultation procedure** and the **consent procedure**. 1. **Consultation Procedure** a. Under the consultation procedure, the EP provides a non-binding opinion on legislative proposals, with the Council retaining the final decision-making authority. This procedure is typically used in sensitive areas such as taxation and competition law. b. In **European Parliament v Council (C-317/04)**, the CJEU acknowledged the importance of the EP's consultative role but highlighted its limited influence in areas governed by this procedure. 2. **Consent Procedure** c. The consent procedure requires the EP's approval for certain decisions, such as the ratification of international agreements and the accession of new Member States. d. The EP demonstrated its influence in the **SWIFT Agreement** case, where it withheld consent for a data-sharing agreement with the United States, citing concerns about data protection and fundamental rights. This highlights the EP's ability to use its veto power to safeguard citizens' interests. While these procedures enable the EP to influence EU policymaking, their restrictive nature often marginalizes its role, particularly in areas where Member States prioritize intergovernmental decision-making. **Broader Legislative Influence** Beyond formal legislative procedures, the EP exerts significant influence through its budgetary powers, supervisory functions, and advocacy for progressive policies. 1. **Budgetary Authority** a. Under **Article 314 TFEU**, the EP shares authority with the Council to adopt the EU's annual budget. This power allows the EP to shape funding priorities and influence policy implementation. b. The EP's role in negotiating the **NextGenerationEU Recovery Fund** underscores its ability to drive key initiatives, particularly in response to crises. 2. **Supervisory Role** c. The EP holds the European Commission accountable through mechanisms such as parliamentary questions, debates, and the power to censure the Commission under **Article 234 TFEU**. d. In **Roquette Frères v Council (C-138/79)**, the CJEU affirmed the EP's role in ensuring transparency and accountability, further legitimizing its supervisory functions. 3. **Policy Advocacy** e. The EP has been instrumental in advocating for progressive legislation, such as the European Green Deal, reflecting its commitment to addressing climate change and promoting sustainability. **Case Law Supporting the EP's Role** Case law has played a crucial role in affirming and clarifying the EP's legislative powers. - ***European Parliament v Council (C-65/93)***: The CJEU ruled in favor of the EP's right to be consulted in the legislative process, emphasizing the principle of institutional balance. - ***Commission v Council (C-176/03)***: The Court highlighted the EP's role in areas of shared competence, ensuring its participation in decisions with significant policy implications. - ***Kadi v Commission (C-402/05 P*)**: While not directly related to legislative power, this case reflects the EP's influence in shaping EU policies that respect fundamental rights, which often inform its legislative priorities. **Strengths of the European Parliament's Legislative Role** The EP's powers enhance the democratic legitimacy of the EU by ensuring that citizens' voices are represented in the legislative process. Its ability to amend, reject, and negotiate legislation under the OLP strengthens accountability and transparency. Furthermore, the EP's budgetary and supervisory functions enable it to influence EU policymaking beyond formal legislative procedures. **Challenges and Limitations** Despite its significant role, the EP faces structural and procedural constraints. Its lack of legislative initiative restricts its ability to set the EU's policy agenda, limiting its autonomy as a legislative body. Additionally, its influence is marginalized under Special Legislative Procedures, particularly in areas such as taxation and foreign policy. The conciliation process under the OLP further complicates its ability to assert its legislative preferences. **Conclusion** The European Parliament plays a central role in EU legislative procedures, particularly through the Ordinary Legislative Procedure, where it acts as a co-legislator with the Council. Its powers have been enhanced over time, reflecting efforts to address the EU's democratic deficit. However, the EP's influence is tempered by structural limitations, including its lack of legislative initiative and its restricted role in certain policy areas. Strengthening the EP's legislative powers, particularly by granting it a greater role in initiating legislation, would further enhance its ability to represent citizens and ensure accountability, thereby consolidating the EU's democratic legitimacy. **PART B** **QUESTION 1** *Eva is a German citizen who came to Ireland to improve her English by taking up a position as an au pair with a Dublin family, the Dubliners. In return for accommodation and meals and a small financial reward, she minds the two Dubliner children five days a week till lunchtime, and three afternoons a weak when Mrs. Dubliner goes to the gym. Eva is otherwise free and as her long-term plan is a career in business, she decides to attend a night programme at Dublin Institute of Business (fictitious), where she applies to pursue an introductory course in online business. She is told that in addition to the €2000 tuition fee for the course, as a foreign national, she will have to pay an enrolment fee of €500, which is not applicable to Irish nationals. Moreover, she discovers that Irish nationals who are in employment, but wish to requalify are entitled to a grant from the government towards their tuition fees. When she enquires further into this grant, she is told she is not eligible as she is not an Irish national. Advise Eva on her rights under EU law, with reference to the CJEU case law.* **Issue** The issue is whether Eva, a German national residing in Ireland, can challenge the €500 enrolment fee imposed solely on foreign nationals and the denial of a tuition grant under EU law. The analysis focuses on whether these actions contravene Eva's rights under **Articles 18, 20, and 21 TFEU** concerning non-discrimination and the rights of Union citizens, as well as relevant case law. **Law** 1. **Union Citizenship and Free Movement Rights** a. **Articles 20 and 21 TFEU** establish the status of Union citizenship, granting all EU nationals the right to move and reside freely within the Union, subject to limitations and conditions. b. Union citizenship is complemented by the principle of non-discrimination on the grounds of nationality under **Article 18 TFEU**. 2. **Education Rights and Social Advantages** c. **Regulation 492/2011 (Article 7(2))** provides that migrant workers are entitled to the same social and tax advantages as nationals of the host Member State. d. In **Bidar (C-209/03)**, the Court of Justice of the European Union (CJEU) held that educational assistance can qualify as a \"social advantage\" under EU law, provided there is a sufficient link between the applicant and the host state. 3. **Equal Treatment in Access to Vocational Training** e. The principle of equal treatment extends to access to vocational training, as affirmed in **Gravier (C-293/83)**. Imposing discriminatory fees on foreign nationals may breach EU law unless objectively justified and proportionate. 4. **Case Law Supporting Non-Discrimination** f. In **Graziana Bernini (C-3/90)**, the CJEU ruled that a person providing services in a host Member State could claim equal treatment regarding educational rights if their activity bore the characteristics of a genuine and effective economic activity. g. In **Dano (C-333/13)**, the Court clarified that EU citizens who are economically inactive might face restrictions on equal treatment in accessing certain benefits unless they meet residency requirements. **Application** 1. **Enrolment Fee** a. Eva's €500 enrolment fee, imposed solely on foreign nationals, constitutes direct discrimination based on nationality, prohibited under **Article 18 TFEU**. b. As confirmed in **Gravier**, such fees are impermissible unless objectively justified. Ireland may argue that the fee reflects additional administrative costs, but such justification must be proportionate and non-discriminatory. 2. **Denial of Tuition Grant** c. The denial of a tuition grant to Eva breaches the principle of equal treatment under **Regulation 492/2011** if she qualifies as a worker. d. Eva's role as an au pair involves regular, structured activities in exchange for accommodation, meals, and a financial allowance. This arrangement likely qualifies her as a \"worker\" under **Lawrie-Blum (C-66/85)**, which defines a worker as someone performing services under the direction of another in return for remuneration. e. If Eva qualifies as a worker, she is entitled to the same social advantages as Irish nationals, including tuition grants. 3. **Link to Host State** f. Under **Bidar**, Member States may impose a residency requirement to ensure a genuine link between the applicant and the host state. However, such requirements must not disproportionately exclude Union citizens. If Ireland imposes an unreasonable or excessive residency requirement, this may breach EU law. **Conclusion** Eva can challenge the €500 enrolment fee as direct discrimination under **Article 18 TFEU**, as it violates the principle of equal treatment without objective justification. Additionally, she can claim equal access to the tuition grant under **Regulation 492/2011**, provided she qualifies as a worker. If Ireland applies disproportionate residency requirements, Eva can invoke **Bidar** to argue for a broader interpretation of her rights under EU law. Overall, Eva has a strong legal basis to contest the discriminatory measures. **Autumn 2017:-** **PART A** **QUESTION 1** *\"One of the most significant-and most \'constitutional\'- innovations introduced by the Lisbon Treaty is a more detailed and organic discipline of the competences enjoyed by the European Union.\" Do you agree with this statement? Outline and critically assess the overall system of EU competences and the principles governing it as envisaged by the Treaties.* The Lisbon Treaty, which entered into force on 1 December 2009, represents a watershed moment in the evolution of the European Union\'s constitutional framework. One of its most notable contributions is the refinement and clarification of the EU\'s competences, establishing a more structured and transparent division of powers between the Union and its Member States. This essay argues that the Lisbon Treaty significantly enhanced the discipline and constitutional structure of EU competences. It will critically assess the categorization of competences, the principles governing them, and the overall implications for the balance of power within the EU. **The Categorization of EU Competences under the Lisbon Treaty** The Lisbon Treaty introduced a more systematic classification of competences, which are now clearly enumerated in the Treaty on the Functioning of the European Union (TFEU). Article 2 TFEU distinguishes competences into three categories: 1. **Exclusive Competences**: Areas where only the EU may legislate and adopt binding acts, with Member States acting only to implement such acts. These include customs union, competition rules necessary for the functioning of the internal market, monetary policy for eurozone states, and common commercial policy (Article 3 TFEU). 2. **Shared Competences**: Both the EU and Member States can legislate, but Member States can act only where the EU has not exercised its competence or has chosen to cease doing so (Article 4 TFEU). Examples include the internal market, environment, and consumer protection. 3. **Supporting, Coordinating, or Supplementary Actions**: In these areas, the EU\'s role is limited to supporting Member State actions without superseding national competence. This includes education, culture, and health (Article 6 TFEU). This categorization is a significant step toward legal clarity and predictability, addressing longstanding criticisms of the EU's previous competence structure. By explicitly delineating the scope of EU authority, the Lisbon Treaty reduces the risk of competence creep and ensures a more transparent framework for legislative action. **Principles Governing EU Competences** The Lisbon Treaty also reaffirmed and strengthened several constitutional principles governing the exercise of EU competences, ensuring that the division of powers respects the sovereignty of Member States while enabling effective EU action. The key principles are: 1. **Principle of Conferral**: Article 5(1) TEU codifies that the Union can act only within the limits of competences conferred upon it by the Member States through the Treaties. This principle serves as a foundational safeguard against overreach, reinforcing the idea that the EU is a union of delegated powers. 2. **Principle of Subsidiarity**: Article 5(3) TEU stipulates that in areas of shared competence, the EU may act only if the objectives of the proposed action cannot be sufficiently achieved by Member States but can be better achieved at the Union level. The Protocol on the Application of the Principles of Subsidiarity and Proportionality enhances this principle by introducing a mechanism for national parliaments to issue "reasoned opinions" when they believe subsidiarity has been violated. 3. **Principle of Proportionality**: Article 5(4) TEU ensures that the content and form of EU action do not exceed what is necessary to achieve the Treaties\' objectives. This principle acts as a further limitation on EU power, preventing excessive interference in Member States\' affairs. These principles collectively ensure a disciplined approach to the exercise of EU competences, maintaining a delicate balance between enabling the EU to address transnational challenges effectively and preserving Member State sovereignty. **Critical Assessment of the System of Competences** While the Lisbon Treaty represents significant progress in constitutionalizing EU competences, certain challenges and criticisms remain. 1. **Competence Creep**: Despite the principle of conferral, the EU\'s competences remain dynamic, and the Union has expanded its influence in areas not explicitly listed in the Treaties. This often occurs through broad interpretations of shared competences or implied powers under Article 352 TFEU. For example, environmental policy has evolved significantly beyond its original Treaty mandate due to judicial interpretation and political necessity. 2. **Subsidiarity Mechanism Effectiveness**: While national parliaments have a role in monitoring subsidiarity, the "yellow card" and "orange card" procedures have been criticized for being cumbersome and rarely used. Moreover, these mechanisms do not allow parliaments to block EU legislation outright, limiting their practical impact. 3. **Complexity and Overlap**: The categorization of competences, while clear on paper, often leads to overlapping jurisdiction in practice, particularly in areas of shared competence. This can create legal uncertainty and interinstitutional conflicts, as seen in disputes over competences in public health and industrial policy during the COVID-19 pandemic. 4. **Democratic Deficit**: Critics argue that the complexity of EU competences exacerbates the perceived democratic deficit. Citizens may struggle to understand the division of powers and the accountability mechanisms associated with EU actions. **Conclusion** The Lisbon Treaty has undeniably brought a more detailed and organic discipline to the EU\'s system of competences, strengthening its constitutional framework. By clearly categorizing competences and reinforcing principles such as conferral, subsidiarity, and proportionality, the Treaty enhances legal certainty and safeguards Member State sovereignty. However, challenges such as competence creep, the effectiveness of subsidiarity controls, and practical overlaps in competences highlight the need for continued vigilance and reform. Overall, the Lisbon Treaty represents a significant constitutional innovation, but its full potential depends on the consistent application of its principles and mechanisms. **QUESTION 3** *Discuss the annulment action (Art. 263 TFEU), under which Member States, EU institutions or indeed private persons or undertakings may bring proceedings before the Court of Justice of the European Union (CJEU), seeking to have a legal measure taken by an EU institution annulled. Your answer must address: the circumstances in which the persons/institutions have standing to bring an Article 263 TFEU action, the grounds on which such actions may be brought, the types of measures which may be challenged, and the effects of an annulment.* **Annulment Actions under Article 263 TFEU** Article 263 of the Treaty on the Functioning of the European Union (TFEU) provides a mechanism by which Member States, EU institutions, private persons, and undertakings may seek the annulment of legal measures taken by EU institutions. The Court of Justice of the European Union (CJEU) is tasked with reviewing these measures to ensure their compliance with EU law. This essay examines the standing requirements for different categories of applicants, the grounds on which actions may be brought, the types of measures subject to annulment, and the consequences of annulment. **Standing under Article 263 TFEU** The standing of applicants to bring annulment actions is categorized into three groups: privileged applicants, semi-privileged applicants, and non-privileged applicants. 1. **Privileged Applicants** 2. Privileged applicants, comprising Member States, the European Parliament, the Council, and the Commission, have an automatic right to bring proceedings under Article 263 TFEU. They are not required to demonstrate any specific interest in the outcome of the case. This broad standing reflects their role as key actors in ensuring compliance with EU law and safeguarding the EU's institutional balance. 3. **Semi-Privileged Applicants** Semi-privileged applicants include the European Central Bank (ECB), the Court of Auditors, and the Committee of the Regions. These entities may bring annulment actions only to protect their prerogatives. For instance, the Court of Auditors may challenge measures that encroach upon its budgetary oversight functions. 4. **Non-Privileged Applicants** Non-privileged applicants, such as individuals and private undertakings, face stricter standing requirements. To bring an annulment action, they must demonstrate one of the following: a. The contested act is **addressed to them**. b. The act is of **direct and individual concern** to them. c. In the case of a regulatory act (non-legislative acts of general application), it is of **direct concern** to them and does not entail implementing measures. The seminal case of *Plaumann v. Commission* (Case 25/62) established that an individual is of \"individual concern\" only if they are affected by the act due to unique circumstances that differentiate them from all other persons. This restrictive approach has been criticized for limiting access to justice, prompting some liberalization for regulatory acts under the Lisbon Treaty. **Grounds for Annulment** Article 263 TFEU sets out four grounds on which an annulment action may be brought: 1. **Lack of Competence** The institution that adopted the measure exceeded the competences conferred upon it by the Treaties. For example, in *Commission v. Council* (Case C-22/70), the Council was found to have acted beyond its legal powers. 2. **Infringement of Essential Procedural Requirements** Procedural irregularities, such as failure to consult required parties or inadequate reasoning under Article 296 TFEU, can lead to annulment. The *Roquette Frères* case (Case 138/79) annulled a Council regulation for failing to consult the European Parliament as required. 3. **Infringement of the Treaties or Any Rule of Law Relating to Their Application** Substantive breaches, such as violations of fundamental rights or principles of proportionality, fall under this ground. For instance, the *Kadi* case (Joined Cases C-402/05 P and C-415/05 P) annulled a regulation for infringing fundamental rights. 4. **Misuse of Powers** If a measure is adopted for purposes other than those stated, it constitutes a misuse of powers. This rarely invoked ground was established in cases like *Giuffrida v. Council* (Case 105/75). **Types of Measures Subject to Annulment** Article 263 TFEU applies to \"acts\" of the EU institutions intended to produce legal effects. These include regulations, directives, decisions, and other binding measures. However, measures of a preparatory or recommendatory nature, which lack binding force, fall outside the scope of review. For example, a communication from the Commission would not be challengeable unless it produced binding legal effects. Following the *ERTA* case (Case 22/70), the CJEU clarified that the reviewability of acts depends on their substance and not merely their form. This functional approach ensures that measures with de facto legal effects are subject to judicial review. **Effects of Annulment** If the CJEU annuls a measure, Article 264 TFEU specifies that the measure is voided ab initio. The annulled act ceases to have legal effect, and institutions must take necessary steps to comply with the judgment. In some cases, the court may allow transitional measures to prevent legal uncertainty or disruption, as seen in cases involving complex economic or legislative measures. The annulment judgment has erga omnes effect, meaning it applies universally and not just to the parties in the case. This ensures the integrity of EU law and prevents the perpetuation of invalid measures. **Conclusion** Article 263 TFEU provides a robust mechanism for ensuring the legality of EU acts. By delineating standing requirements, enumerating grounds for annulment, and defining the scope of review, the provision balances access to justice with the need to maintain the functionality of EU institutions. Despite criticisms of its restrictive approach to non-privileged applicants, Article 263 remains a cornerstone of judicial oversight within the EU legal order, safeguarding the rule of law and the proper functioning of the Union. **PART B** **QUESTION 3** *\"As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member States. \...Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.\" (Case C-34/09 Zambrano) Critically discuss the meaning and the scope of Arts. 20 and 21 TFEU on the Union citizenship in light of the Court of Justice of the European Union (CJEU) case law.* **Introduction** The concept of Union citizenship, enshrined in Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU), represents a fundamental aspect of the European Union's legal and political framework. It is intended to confer a set of rights upon nationals of Member States, thus promoting the idea of an integrated European space where individuals can move freely, reside, and participate fully in the political and social life of the Union. However, the scope of these rights has been the subject of significant judicial interpretation, particularly in relation to the intersection of Union citizenship and national sovereignty. This discussion will critically examine the meaning and scope of Articles 20 and 21 TFEU in light of key case law from the Court of Justice of the European Union (CJEU), particularly focusing on the landmark *Zambrano* case (Case C-34/09). **Article 20 TFEU: The Concept of Union Citizenship** Article 20 TFEU establishes Union citizenship, which is afforded to every person holding the nationality of a Member State. It reads: *\"Citizenship of the Union is established by this Article. Every person holding the nationality of a Member State shall be a citizen of the Union.\"* This provision creates a dual legal status for citizens of the Member States: national citizenship, granted by the individual Member State, and Union citizenship, which is a supplementary status providing rights within the EU framework. Union citizenship is intended to complement national citizenship, not replace it, and it aims to foster the integration of Member States into a larger political and legal entity. Union citizenship grants individuals a broad range of rights, including the right to move and reside freely within the EU (Article 21 TFEU), the right to non-discrimination (Article 18 TFEU), and the right to petition the European Parliament, among others. The *Zambrano* case is significant because it reveals the tension between the concept of Union citizenship and national sovereignty. In this case, the CJEU held that national measures that deprive citizens of the Union of the genuine enjoyment of their rights under Union citizenship, even when those citizens are outside the direct territorial scope of the EU, can be precluded by EU law. **Article 21 TFEU: The Right to Move and Reside Freely** Article 21 TFEU is the cornerstone of the rights attached to Union citizenship. It provides that: *\"Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States.\"* This article guarantees the fundamental right of free movement, a crucial aspect of the internal market and the promotion of European integration. However, this right is subject to limitations and conditions laid down by Union law, particularly in the context of public policy, public security, and public health. In the *Zambrano* case, the CJEU made an important clarification regarding the scope of Article 21. The case involved a situation where two third-country national parents were facing deportation from Belgium, but their children, who were Belgian nationals, would be deprived of their right to reside in the EU. The CJEU ruled that the parents could not be expelled if their removal would lead to the children being unable to enjoy their Union citizenship rights in practice. In essence, the Court established that Union citizenship cannot be reduced to a mere formal status; it must involve the genuine enjoyment of rights. The *Zambrano* judgment underscores that Article 21 TFEU does not merely grant a right to move and reside within the EU; it also entails a broader protection of individuals' rights under EU law. The concept of \"genuine enjoyment of the substance of rights\" became a key element of the Court's reasoning. This means that Union citizenship protects not only the freedom of movement but also ensures that individuals, particularly those who are EU nationals, are able to benefit from the rights afforded by that status, including the right to remain with their family members. **The Zambrano Case: Scope and Implications** The *Zambrano* case is a landmark ruling that significantly expanded the scope of Union citizenship rights. It clarified that the protection of Union citizens' rights cannot be confined merely to their physical movement across Member States. Rather, the case set a precedent that Union citizenship confers a broader protective function, particularly when national measures interfere with the ability of Union citizens to enjoy their rights fully. In the *Zambrano* judgment, the Court ruled that the children of the third-country national parents, who were Belgian citizens, would be deprived of the genuine enjoyment of their right to reside and move freely within the Union if their parents were expelled. The Court thus extended the right to move and reside freely, stating that it also covers situations where national measures would prevent the exercise of these rights by EU citizens, even if they were not directly affected by the expulsion of their parents. This case suggests that Union citizenship has a far-reaching effect, potentially protecting individuals even when they have not exercised their free movement rights across Member States. The Court recognized that an individual\'s enjoyment of Union citizenship rights could be undermined by national measures that interfere with the ability of family members of EU citizens to reside within the EU. **Key Cases and Developments in CJEU Jurisprudence** The *Zambrano* case is part of a broader line of CJEU judgments that have progressively interpreted the scope of Union citizenship in relation to family rights and free movement. Some notable developments include: 1. ***Case C-34/09, Zambrano*** -- As discussed above, this case expanded the interpretation of Union citizenship by ensuring that the expulsion of parents could prevent children from enjoying their citizenship rights. 2. ***Case C-413/99, Baumbast*** -- In this case, the Court ruled that Union citizens, who are nationals of a Member State, cannot be denied the right to reside in another Member State on the grounds of insufficient financial resources, so long as they are exercising their free movement rights. 3. ***Case C-333/13, Dano*** -- This case reiterated that Union citizenship does not provide an unconditional right to reside in any Member State. The Court emphasized that the right to reside freely could be restricted based on public policy concerns, such as dependence on social benefits. 4. ***Case C-456/12, O*** -- In this case, the Court held that Union citizens who are economically inactive and who are not a burden on the social welfare system may still have the right to remain in another Member State under certain conditions, provided that they maintain sufficient resources. **Conclusion** In light of CJEU case law, particularly the *Zambrano* decision, it is clear that Union citizenship has evolved into a fundamental legal status that protects the rights of individuals beyond the mere ability to move across borders. Articles 20 and 21 TFEU grant EU nationals a range of rights that include the freedom of movement, the right to reside in any Member State, and protections related to family unity and non-discrimination. The *Zambrano* judgment extended the scope of these rights by protecting the enjoyment of Union citizenship even in cases where individuals are not exercising free movement themselves, but are affected by national measures that obstruct their ability to do so. The CJEU's jurisprudence demonstrates that Union citizenship is a dynamic and evolving concept that continues to balance the rights of individuals with the legitimate interests of Member States. **QUESTION 4** *Aoife, a law graduate of Maynooth University, has been practicing as a solicitor in Dublin for the past two years. Recently, Aoife and her husband Karl, a German citizen, decided to move to Berlin and open a boutique law firm there. Aoife soon discovered that the German Bar Council would only admit her to practice subject to certain conditions being met. Firstly, due to the significant differences between the Irish and German legal systems, Aoife must complete two years of further legal education in Germany. Secondly, to protect the interest of German clients, she must acquire a proficiency in the German language. Finally, Aoife must practice under the direction of a qualified German lawyer for 7 years before being allowed to open her own office. Advise Aoife on her rights, with reference to the relevant Court of Justice of the European Union (CJEU) case law on the freedom of establishment.* **Issue** The primary issue is whether the German Bar Council's requirements for Aoife to practice law in Germany are compatible with her rights under EU law, specifically the right to **freedom of establishment** within the internal market. Aoife, as a qualified solicitor in Ireland, seeks to practice law in Germany but faces significant professional and language barriers. The key question is whether the requirements imposed by the German Bar Council infringe Aoife\'s rights under Article 49 TFEU, which prohibits restrictions on the freedom of establishment of nationals of Member States within the EU. **Law** **1. Article 49 TFEU -- Freedom of Establishment:** Article 49 TFEU guarantees the right of nationals of EU Member States to establish themselves in another Member State. This includes the right to set up a business or a professional practice. According to the Court of Justice of the European Union (CJEU), this right applies not only to the establishment of businesses but also to the establishment of professionals within the regulated professions, such as law. However, the right to establish oneself is not absolute and can be subject to restrictions if these restrictions are justified by legitimate public interest objectives, such as the protection of consumers, public health, or professional competence, provided they are proportionate and necessary to achieve the aim. **2. Relevant CJEU Case Law on Freedom of Establishment for Professionals:** - **Case C-348/96, Calfa**: The CJEU ruled that the freedom of establishment can be restricted where the requirements are proportionate and necessary for ensuring the protection of public interest, such as professional competence. However, these restrictions must not go beyond what is necessary to achieve those objectives. - **Case C-370/05, Commission v. Italy**: In this case, the CJEU addressed restrictions on lawyers seeking to practice in another Member State. The Court emphasized that any requirements that limit the right to establish oneself must be justified by a legitimate public interest and be proportionate to that interest. Requirements that were considered excessive or disproportionate in this context were found to infringe the right of establishment. - **Case C-110/03, Commission v. Netherlands**: This case involved a lawyer from another Member State seeking to practice in the Netherlands. The Court held that the Netherlands' requirement for lawyers to pass a national exam was disproportionate and went beyond what was necessary to ensure public protection, given the qualification of the lawyer from another Member State. - **Case C-218/12, Commission v. Spain**: The Court held that Spain\'s requirement for lawyers from other Member States to complete a conversion exam before practicing in Spain was disproportionate and inconsistent with the principle of freedom of establishment, as it created unnecessary barriers for established professionals within the EU. **3. Proportionality and Necessity of the Requirements:** The CJEU consistently applies the **proportionality test** when assessing whether national requirements that restrict freedom of establishment are justified. This involves evaluating whether the measures are: - **Suitable** to achieve the objective they seek to accomplish. - **Necessary**, meaning no less restrictive measures could achieve the same result. - **Proportionate**, ensuring the burden placed on the professional is not excessive in relation to the objective sought. **Application** **1. Requirement for Further Legal Education (Two Years):** The requirement for Aoife to complete two years of further legal education in Germany raises concerns under the principle of freedom of establishment. Aoife is already a qualified solicitor in Ireland, and under EU law, professionals should not be required to repeat substantial portions of their legal education solely because of differences between the legal systems of the Member States. The CJEU has consistently held that significant educational requirements may be disproportionate if they are not strictly necessary to ensure the quality of the profession. In the case of **Calfa**, the Court emphasized that the requirement for a professional to undergo substantial additional education should be justified by a legitimate interest and should not go beyond what is necessary to ensure that the professional meets the required standards. In Aoife's case, while some adaptation to the German legal system may be necessary, the two-year education requirement seems excessive, especially since Aoife already holds a legal qualification. The requirement could be deemed a disproportionate restriction on her right to establish herself in Germany. **2. Language Proficiency Requirement:** The requirement for Aoife to acquire proficiency in the German language is more likely to be justified under EU law. Language requirements are often seen as necessary to ensure that legal professionals can communicate effectively with clients and in court. However, this requirement must still meet the proportionality test. The language proficiency requirement must be necessary to ensure the effective practice of law and cannot be unduly burdensome. The CJEU has not ruled out language requirements, but these must be reasonable and related to the protection of the public interest. In Aoife's case, proficiency in German is likely to be necessary to ensure she can communicate with clients and meet legal obligations. However, the requirement should not be excessive and should provide Aoife with a reasonable timeframe to meet the proficiency standard. **3. Requirement to Practice Under a Qualified German Lawyer for 7 Years:** The requirement for Aoife to practice under the supervision of a qualified German lawyer for seven years before opening her own practice is a significant barrier. The CJEU has previously ruled that overly long requirements for supervised practice are incompatible with EU law unless they can be justified by an overriding public interest. In **Commission v. Italy** and **Commission v. Spain**, the CJEU found such lengthy restrictions to be disproportionate, as they significantly hindered the freedom of establishment. In Aoife's case, the seven-year requirement is likely to be considered excessive and disproportionate. Aoife is already a qualified solicitor with significant experience and would likely be able to practice independently in Germany much sooner. The requirement for seven years of supervised practice seems to go beyond what is necessary to ensure that Aoife can effectively represent clients and meet German legal standards. **Conclusion** Aoife's right to practice law in Germany is protected under the freedom of establishment guaranteed by Article 49 TFEU. While Germany can impose certain restrictions, such as language proficiency requirements, the other conditions -- namely the two years of additional legal education and the seven years of supervised practice -- appear to be disproportionate and likely violate Aoife's rights under EU law. The CJEU's case law suggests that such burdensome requirements are not justifiable unless they are strictly necessary to protect the public interest and are proportionate to the objective. Aoife should seek legal advice on challenging these requirements before the relevant German authorities or possibly through EU legal channels to assert her right to establish herself in Germany under the freedom of establishment. **Autumn 2018:-** **PART A** **QUESTION 1** *Critically analyse the role played by the European Parliament within the ordinary legislative procedure. Your answer should address how the role of Parliament alleviates or adds to the perceived existence of a \'democratic deficit\' within the EU institutions.* **Introduction** The **European Parliament** (EP) plays a central role in the governance of the European Union (EU) through the **ordinary legislative procedure (OLP)**, which is the main mechanism for adopting EU legislation. The OLP, formerly known as the **co-decision procedure**, involves the European Parliament, the European Commission, and the Council of the European Union, with the Parliament being one of the two co-legislators. This procedural framework has been progressively developed through the treaties, most recently by the **Lisbon Treaty**, which enhanced the EP's power. However, despite these advancements, the role of the European Parliament has often been discussed in the context of the **EU's democratic deficit**. This essay will critically analyze the EP's role in the OLP and assess how its participation either mitigates or exacerbates concerns about the EU's democratic legitimacy. **The Ordinary Legislative Procedure: The Role of the European Parliament** The **ordinary legislative procedure** is defined primarily by **Article 294 TFEU** and involves several stages of negotiation and decision-making between the three institutions: 1. **Proposal by the European Commission**: The European Commission has the exclusive right to initiate legislation within the EU. The Commission proposes new laws based on its political agenda or in response to Member State or parliamentary requests. 2. **First Reading**: Upon receiving the proposal, the **European Parliament** examines the proposal through its relevant parliamentary committees. The Parliament then votes on its position at first reading. If Parliament agrees with the proposal, the Council may adopt it, and the law is passed. If there are disagreements, Parliament may amend the proposal. 3. **Council's Response and Second Reading**: If the Council does not accept the Parliament\'s position, the proposal returns to the EP for a second reading. If Parliament makes amendments, the Council must approve or reject these changes. 4. **Conciliation**: If disagreements persist after the second reading, the issue is sent to a **conciliation committee** comprising members from both the Council and the Parliament. If a compromise is reached, it is returned to the Parliament and Council for final approval. 5. **Final Adoption**: Once both the Council and Parliament agree on the text, the law is adopted. The EP\'s role is significant because it has the power to **amend**, **reject**, or **approve** legislation, and its decision is often made based on detailed deliberations in committee and plenary sessions. The role of the EP has expanded progressively, especially with the **Lisbon Treaty**, which increased Parliament's power in areas such as **foreign policy** and **budgetary matters**. **Alleviating the Democratic Deficit** The concept of the **democratic deficit** refers to the perceived gap between the EU\'s institutions and its citizens, where decision-making is seen as too distant, complex, or opaque for the average European citizen to influence. The EP's enhanced role in the OLP can be seen as a remedy to this democratic deficit in several ways: 1. **Direct Election of MEPs**: Unlike other EU institutions, the **European Parliament** is directly elected by the citizens of the Member States. Every five years, European citizens vote for **Members of the European Parliament (MEPs)**, ensuring that Parliament's legitimacy is rooted in popular sovereignty. This electoral process gives European citizens a voice in the legislative process and strengthens the democratic character of the EU. 2. **Increased Legislative Powers**: The EP's powers have steadily increased, particularly with the **Lisbon Treaty**, which gave Parliament **co-decision powers** (now OLP) in almost all legislative areas. This increased role allows Parliament to shape and veto legislation, ensuring that it represents the interests of EU citizens in the law-making process. In areas such as the **internal market**, **consumer protection**, and **environmental policy**, the EP has a major say, making it an important player in ensuring laws reflect the public interest. 3. **Public Debate and Scrutiny**: As a democratically elected body, the European Parliament is a forum for **public debate** on EU issues. Through public hearings, debates, and resolutions, Parliament plays a role in scrutinizing the work of the Commission and the Council, holding these institutions to account. MEPs often represent national interests, but they also work across borders within political groups that reflect ideological affinities, fostering greater European-wide engagement. 4. **Transparency and Accountability**: The EP is more transparent compared to the more intergovernmental and opaque Council of the European Union. Its debates and voting records are publicly available, making it easier for citizens to follow and influence decisions. This openness enhances its democratic credentials. **Adding to the Democratic Deficit** Despite its significant role in the OLP, the European Parliament's involvement in EU law-making also gives rise to concerns that may reinforce the perceived democratic deficit: 1. **Indirect Influence of Voters**: While MEPs are directly elected, the complexity of the EU's institutional structure and decision-making can dilute the influence of individual voters. Many citizens may not feel their vote impacts the EU level of governance in a meaningful way, especially given the **multi-layered nature** of European law-making. Voter turnout in EP elections is often low, indicating a level of disengagement or apathy towards EU institutions. 2. **Limited Power over Initiating Legislation**: Despite its strengthened role in the OLP, Parliament still lacks the exclusive right to **initiate legislation**---a power held by the European Commission. This means that the EP can only react to proposals rather than proactively drive the legislative agenda. The **Commission\'s** technocratic nature and the fact that it is not directly elected can contribute to the perception that the real power lies with unelected bureaucrats, not directly with the people. 3. **Fragmentation of Political Representation**: While the EP has political groups that represent different ideologies, these groups often differ widely in terms of policy priorities, making it difficult for citizens to clearly align with one unified European vision. Additionally, national political parties can sometimes dominate the composition of the EP, making it harder for **pan-European issues** to be addressed cohesively, potentially exacerbating feelings of disconnection between citizens and the EU. 4. **Complexity of Decision-Making**: The OLP itself can be seen as a highly complex process that makes it difficult for ordinary citizens to follow and understand. While **Parliament\'s role in co-legislation** has expanded, the overall legislative process still involves multiple institutions and complex negotiations, which may seem distant and undemocratic to the average citizen. **Conclusion** The **European Parliament** plays a crucial role in the **ordinary legislative procedure**, with significant powers to amend, approve, or reject EU legislation. Its role in the OLP strengthens the democratic credentials of the EU by ensuring that citizens' representatives are involved in the decision-making process. The direct election of MEPs, increased legislative powers, and greater transparency all help to alleviate the democratic deficit within the EU. However, the role of the European Parliament alone cannot fully resolve the democratic deficit. The absence of legislative initiative, the fragmented political landscape, and the complexity of the EU\'s decision-making process contribute to persistent concerns about the EU\'s democratic legitimacy. Despite the strides made with the Lisbon Treaty and increased powers for Parliament, there remains a need for further reforms to ensure that the EU becomes more responsive to the democratic will of its citizens. In this sense, the **European Parliament** both mitigates and, at times, reinforces the challenges associated with the EU\'s democratic deficit. **QUESTION 2** *\"One of the most significant and most \'constitutional\'--- innovations introduced by the Lisbon Treaty is a more detailed and organic discipline of the competences enjoyed by the European Union\". (Rossi, 2011) Do you agree with this statement? Outline and critically assess the system of EU competences and the principles governing it envisaged by the Treaties.* **Introduction** The Lisbon Treaty (2009), through its amendments to the **Treaty on European Union (TEU)** and the **Treaty on the Functioning of the European Union (TFEU)**, significantly restructured the legal framework governing the competences of the European Union (EU). In this context, the statement by Rossi (2011) that the Lisbon Treaty introduced a \"more detailed and organic discipline\" of EU competences is particularly pertinent. The Treaties have always set out the scope of EU competences, but the Lisbon Treaty introduced a more explicit and organized approach to the division of powers between the EU and its Member States. This essay will critically assess the system of competences and the principles governing them as envisaged by the Lisbon Treaty, exploring whether it truly represents a more \"detailed\" and \"organic\" discipline of competences, and evaluating the implications of this system for EU law and governance. **EU Competences Pre-Lisbon Treaty** Prior to the Lisbon Treaty, the division of competences between the EU and its Member States was somewhat vague and fragmented. The **European Communities** (EC) system, under the **Treaty of Rome (1957)**, established three main categories of competences: **exclusive competences**, **shared competences**, and **supporting competences**. However, there was little guidance as to when and how these competences should be applied in practice, leading to ambiguities and potential conflicts between national and EU powers. The **doctrine of implied powers**, developed by the **Court of Justice of the European Union (CJEU)**, further complicated matters by allowing the EU to take action in areas not explicitly mentioned in the Treaties, provided such action was necessary to achieve the Union's objectives. **Competences in the Lisbon Treaty** The **Lisbon Treaty** sought to clarify and expand upon the competences of the EU, providing more structure and detail to the division of powers. The key provisions regarding EU competences are found in **Articles 2 to 6 TFEU**, which classify competences into different categories: 1. **Exclusive Competence (Article 3 TFEU)**: The EU has exclusive competence in areas where only the EU can legislate and adopt legally binding acts. Member States are excluded from taking action in these areas. Examples include **customs union**, **competition rules**, and **monetary policy for the Eurozone**. This exclusive competence is crucial for ensuring uniformity and preventing fragmentation across the internal market and other areas. 2. **Shared Competence (Article 4 TFEU)**: In areas of shared competence, both the EU and the Member States can legislate. However, the EU can only act in these areas when the Member States have not already exercised their competences. Shared competences cover a wide range of policy areas, including **environmental policy**, **consumer protection**, and **transport**. This category reflects the complexity of modern governance, where the EU needs to intervene in areas where Member States cannot address cross-border challenges effectively. 3. **Supporting Competence (Article 6 TFEU)**: The EU can act to support, coordinate, or complement the actions of Member States in certain areas without harmonizing national laws. These areas include **education**, **health**, and **culture**. The EU's role here is limited to facilitating cooperation between Member States or providing financial or technical assistance, without intruding into national legislative domains. 4. **Flexibility Clause (Article 352 TFEU)**: The Lisbon Treaty also introduced a more explicit reference to the **flexibility clause**, allowing the EU to act in areas not specifically listed in the Treaties, but where action is necessary to achieve the EU's objectives. This clause provides the EU with some flexibility to address unforeseen challenges, though it requires unanimous approval by the Council and consultation with the European Parliament. **Critical Assessment of the System of EU Competences** **1. Clarity and Precision** The Lisbon Treaty arguably introduced a more detailed and structured approach to EU competences. The clear classification of competences into exclusive, shared, and supporting categories provides greater legal certainty and helps Member States and institutions understand the scope of EU powers. This can reduce the potential for legal disputes and conflicts between national and EU laws, contributing to a more coherent system of governance. However, while the Lisbon Treaty provides greater clarity in principle, the practical application of these competences remains complex. For example, the distinction between **exclusive** and **shared** competences can sometimes be blurred, particularly when it comes to areas like **foreign policy** or **environmental regulation**, where there may be overlapping interests. The **shared competences** category, in particular, has been the subject of much debate, as the EU and Member States often have concurrent powers, leading to potential **conflicts of jurisdiction** or duplication of efforts. **2. Principles Governing EU Competences** The Lisbon Treaty also introduced several important **principles** to govern the exercise of EU competences, most notably: - **Principle of Conferral**: The EU can only act within the competences conferred upon it by the Treaties. This limits the scope of EU power and ensures that the EU does not overstep its mandate. While this principle reinforces democratic legitimacy by ensuring that the EU cannot act arbitrarily, it also creates challenges in determining whether the EU has the necessary competence to act in a given area. The **CJEU** plays a key role in interpreting and defining the boundaries of EU competences, which may sometimes lead to judicial activism in the absence of clear political consensus. - **Principle of Subsidiarity (Article 5 TEU)**: This principle ensures that the EU only takes action in areas that do not fall within the exclusive competence of the Union, provided that the objectives of the proposed action cannot be sufficiently achieved by the Member States at the national or regional level. The principle of subsidiarity is intended to protect the sovereignty of Member States, ensuring that the EU only intervenes when necessary. However, determining when subsidiarity applies can be subjective, and the principle is sometimes viewed as being insufficiently enforced, with the EU sometimes acting in areas where Member States could handle the issue themselves. - **Principle of Proportionality (Article 5 TEU)**: The EU must only intervene in areas where action is proportionate to the desired objective. This principle limits the scope of EU action to what is strictly necessary to achieve its goals. It prevents unnecessary overregulation or interference in Member States' affairs, though its application can be contentious in practice, particularly in areas such as internal market regulation. **3. Challenges and Criticisms** Despite the advancements made by the Lisbon Treaty in clarifying EU competences, there are still challenges and criticisms regarding the system: - **Complexity of Application**: While the Treaties provide a clearer framework for competences, the **practical application** remains complex, particularly in areas where competences overlap or where Member States retain significant discretion. The EU's role in areas of **shared competence** often leads to complex negotiations and compromises, making it difficult for the EU to act swiftly in some cases. - **Legitimacy and Democratic Deficit**: While the Lisbon Treaty strengthened the role of the European Parliament in legislative processes, there are ongoing concerns about the **democratic legitimacy** of the EU's decision-making process. The **democratic deficit** remains a critique, as EU institutions, particularly the Commission and the Council, may not fully reflect the will of the people. The division of competences also means that the EU can sometimes intervene in areas where citizens feel it should not have a role. - **Increased Tension Between EU and Member States**: The clearer delineation of competences in the Lisbon Treaty also exacerbates tensions between the EU and its Member States. National governments are often reluctant to cede powers to the EU, particularly in areas like **foreign policy** or **taxation**, where national sovereignty is a key concern. The **Brexit** referendum is one example of how debates over EU competences can fuel populist movements and result in Member States reconsidering their commitment to EU integration. **Conclusion** The Lisbon Treaty certainly brought about a more detailed and organic system for regulating EU competences. The categorization of competences into exclusive, shared, and supporting competences, along with the principles of **conferral**, **subsidiarity**, and **proportionality**, has provided greater clarity in the division of powers between the EU and its Member States. However, while these innovations have improved the structure of EU governance, the application of these competences remains complex and often contested. The EU's role in areas of **shared competence** and the challenges surrounding subsidiarity and proportionality continue to provoke legal and political debates. Furthermore, the democratic legitimacy of the EU remains a pressing concern, with the EU's competence system both alleviating and contributing to perceptions of a **democratic deficit**. Thus, while the Lisbon Treaty's reforms have made important strides, challenges remain in balancing the EU's powers with respect for national sovereignty and the principles of democratic governance. **Autumnn 2019:-** **PART A** **QUESTION 1** *Dara owns a business called Celtic Rugby, which sells a range of rugby equipment. Dara sees an opportunity to expand his business into the Italian market. He seeks to open a new branch of his business in a suburb of Rome, trading as Latin Rugby. Dara employs an office manager for Latin\|Bugby, Pauline (a French national), and makes plans to import a variety of stock to the new premises. Dara receives two phone calls a couple of weeks later. One is from Pauline, who tells Dara that the Italian authorities have refused to give her American husband a residence permit. Pauline says that she will not be able to take up the job if her husband cannot move to Rome with her. The other call is from a contact in the Italian ministry of sport, Mario. Mario tells Dara that the Italian government have just passed legislation that cuts funding for grassroots rugby in Italy, in favour of supporting grassroots football. As such, according to Mario, schools and youth clubs will no longer continue to place regular, large orders for rugby equipment with local suppliers. Advise Dara on how he might rely upon EU law to ensure the success of Latin Rugby.* **Issue:** The issues at hand are twofold: 1. **Pauline's Employment and Her Husband's Residence Permit**: The refusal of the Italian authorities to grant Pauline's American husband a residence permit may impact her ability to take up her job in Italy. Dara is concerned whether EU law provides her husband with any rights to reside in Italy as the spouse of an EU citizen. 2. **Legislation Affecting Rugby**: The new Italian government legislation reducing funding for grassroots rugby in favor of football could impact Latin Rugby's ability to generate business in Italy, as schools and youth clubs may no longer place large orders for rugby equipment. **Law:** 1. **Freedom of Movement and Residence**: a. **Article 21 TFEU** guarantees the **right of free movement and residence** to all EU citizens within the EU. This includes the right to live and work in any Member State. b. **Directive 2004/38/EC** governs the rights of EU citizens and their family members to move and reside freely within the EU. Under Article 2(2), a "family member" of an EU citizen includes the spouse, regardless of nationality. c. According to **Article 3(2) of Directive 2004/38**, family members (including non-EU spouses) of EU citizens have the right to reside in the host Member State if the EU citizen is residing there, subject to certain conditions. 2. **Freedom of Establishment and Non-Discrimination**: d. **Article 49 TFEU** provides the **freedom of establishment**, allowing EU citizens and companies to set up businesses in other Member States. e. The Italian legislation cutting funding for grassroots rugby may represent a **restriction** on this freedom if it disproportionately affects rugby businesses as compared to other sports, such as football. The **principle of non-discrimination** under EU law prohibits measures that discriminate on the basis of nationality or type of business. **Application:** 1. **Pauline's Employment and Husband's Residence Permit**: a. Pauline, as a French national, enjoys the right to move and reside freely in Italy under **Article 21 TFEU** and **Directive 2004/38/EC**. As her spouse, the American husband is entitled to the right to reside with her in Italy, provided they meet the requirements of the Directive. b. According to **Directive 2004/38**, a non-EU spouse (Pauline\'s husband) has the right to reside with an EU citizen in Italy. The Italian authorities\' refusal to grant him a residence permit could violate EU law, which requires Member States to grant such permits unless the individual is a threat to public security or fails to meet certain conditions (e.g., sufficient resources or health insurance). Dara can argue that the refusal is contrary to the EU\'s principles of family reunification and free movement of persons. 2. **Legislation Affecting Rugby**: c. The new Italian legislation reducing funding for grassroots rugby and prioritizing football may create an obstacle to the success of **Latin Rugby** in Italy. **Article 49 TFEU** ensures that Dara's business, a form of economic activity, can be established and operated in Italy without being hindered by unnecessary restrictions. d. The reduction in funding for rugby could disproportionately affect rugby businesses by limiting potential customers (schools and youth clubs), whereas businesses related to football may benefit from increased funding. If the funding cuts specifically harm rugby businesses and benefit football, this could amount to **indirect discrimination** or a **restriction** on Dara's ability to establish and expand his business in Italy. **EU law** requires that Member States avoid introducing policies that unjustifiably limit the functioning of the internal market and restrict access to economic opportunities for businesses. e. Dara may have grounds to challenge the legislation if it disproportionately impacts businesses in one sector (rugby) while favoring another (football), potentially breaching **EU principles of non-discrimination** and the **freedom of establishment**. **Conclusion:** 1. **Pauline's Husband's Residence**: Dara should advise Pauline to seek legal assistance to challenge the Italian authorities\' refusal to grant a residence permit to her husband. Under **Directive 2004/38**, her husband has the right to reside in Italy with her, as she is an EU citizen exercising her freedom of movement. 2. **Legislation Affecting Rugby**: Dara could potentially challenge the new Italian government legislation under **EU law**, arguing that it discriminates against rugby businesses by disproportionately reducing funding for rugby in favor of football. This could be a violation of **Article 49 TFEU** (freedom of establishment) and the **principle of non-discrimination** under EU law. Dara should explore legal options to address the adverse impact of this legislation on his business, possibly through a complaint to the European Commission or an appeal in the Italian courts. In summary, Dara can rely on **EU law** to argue for the protection of his business interests in Italy, both in terms of securing Pauline's husband\'s right to reside and challenging the potentially discriminatory effects of Italian legislation on his rugby business. **QUESTION 2** *Niamh is an Irish national and trained helicopter pilot, who has settled in Finland. She runs a small air-ferry business called Nordic-Hop, which runs luxury VIP transportation services between Helsinki and Stockholm. Niamh employs a number of pilots, mostly of Finnish nationality, and rents a helipad in Stockholm, while running her business exclusively from her offices in Helsinki. One day, the Swedish transport authorities write to Niamh to inform her that new legislation will make it compulsory for any business operating travel services in or out of Sweden to have a permanent office in Sweden, and makes it compulsory for all transport firm staff who operate vehicles to have a Swedish license for the relevant vehicle. This is unwelcome news, but Niamh does later realise that corporation taxes are much lower in Sweden than they are in Finland. She would prefer to maintain her business as it is, but she could potentially make it more profitable while but keeping her operations physically in Finland. She could wind up Nordic-Hop as a Danish company, establish Nordic-Hop as a Swedish company with a \'head office in name only in Sweden, and then establish a subsidiary of the business in Finland. She could then continue to physically run Nordic-Hop from her Finnish subsidiary. However, when she begins to plan this change, she discovers that Finland has a law against tax evasion. Any company whose services are directed \'substantially towards Finnish consumers\' will be treated as a Finnish company,* *and liable to pay Finnish corporation tax. Niamh seeks your advice on whether she could rely on EU law in order to overcome any of the obstacles her business currently faces.* **Issue:** Niamh faces several issues that involve the potential impact of **EU law** on her business. These issues include: 1. **Swedish legislation** requiring a permanent office in Sweden and Swedish licenses for vehicle operators. 2. Niamh\'s desire to **keep her business in Finland** but take advantage of Sweden\'s lower tax rates by setting up a **Swedish company** with a nominal office in Sweden while continuing to operate from Finland. 3. **Finland\'s anti-tax evasion law** that treats companies providing services \"substantially towards Finnish consumers\" as Finnish companies, which could prevent Niamh from benefiting from the lower Swedish tax rates. **Law:** 1. **Freedom of Establishment (Article 49 TFEU)**: a. Article 49 TFEU guarantees the **freedom of establishment** within the EU. This allows businesses in the EU to establish and operate in any Member State, without being subject to disproportionate restrictions. b. Any national law or regulation that requires a business to set up a permanent establishment in a Member State in order to operate there could potentially violate the freedom of establishment, particularly if the requirement is unnecessary or discriminatory. 2. **Freedom to Provide Services (Article 56 TFEU)**: c. Article 56 TFEU provides for the **freedom to provide services** across Member States. This means that Niamh should be able to continue providing her air-ferry services between Finland and Sweden without needing to establish a permanent office in Sweden if her business is already established in Finland. 3. **Taxation and Anti-Evasion Law**: d. **Article 49 TFEU** also prohibits restrictions on freedom of establishment that could hinder a company's ability to choose the Member State with the most advantageous tax regime. e. However, EU Member States have the **right to apply tax rules**, as long as those rules do not amount to **discrimination** or hinder the exercise of **fundamental freedoms**. f. Finland's law that treats businesses targeting Finnish consumers as Finnish companies could conflict with Niamh\'s intention to set up a Swedish company in order to avoid Finnish taxation, depending on how \"substantially towards Finnish consumers\" is interpreted. 4. **Case Law and EU Principles**: g. The **CJEU case law** on the **freedom of establishment** and **freedom to provide services** suggests that Member States cannot impose disproportionate requirements on businesses, such as requiring a permanent office in a specific Member State, unless there is a justifiable reason for doing so. h. In **Daily Mail and General Trust** (C-81/87), the Court ruled that Member States cannot block a business's ability to structure itself in a way that is commercially advantageous under EU law. i. In **Cadbury Schweppes** (C-196/04), the Court emphasized that tax avoidance schemes should not be tolerated, but legitimate planning is allowed, and **tax avoidance** can only be restricted if the business activity lacks economic substance. **Application:** 1. **Swedish Legislation**: a. The requirement for Niamh to establish a permanent office in Sweden and have her staff obtain Swedish licenses could violate the **freedom of establishment** under **Article 49 TFEU**, unless Sweden can demonstrate that these requirements are **necessary and proportionate** for public policy reasons (such as safety concerns in the transport sector). b. If Niamh\'s business is primarily based in Finland and only operates between Finland and Sweden, Swedish authorities may not impose a permanent establishment requirement as it would be an unjustified barrier to the **free provision of services** under **Article 56 TFEU**. Niamh could challenge the legislation if she believes that these new requirements are restrictive. 2. **Swedish Tax Regime and Niamh's Business Structure**: c. Niamh's potential strategy to set up a **Swedish company with a \"head office\"** in Sweden to benefit from lower taxes must be carefully evaluated in light of **EU law**. The **freedom of establishment** should allow her to structure her business in a way that minimizes her tax liability. However, Finland's **anti-tax evasion law** that treats a company as Finnish if its services are directed towards Finnish consumers presents a challenge. d. Under **Article 49 TFEU**, Finland's anti-tax evasion law could be seen as a potential barrier to Niamh's ability to freely structure her business in Sweden, as it appears to restrict her ability to benefit from the Swedish tax regime. If Niamh's services are indeed \"substantially directed\" towards Finnish consumers, Finland may be justified in taxing her company, but this depends on the exact interpretation of what constitutes \"substantial\" services towards Finnish consumers. e. If Niamh structures her business in a way that has **real economic substance** in Sweden (e.g., a genuine operational base), this could help her argue that she is legitimately exercising her **freedom of establishment** and **avoiding discriminatory taxation**. **Conclusion:** 1. **Swedish Legislation**: Niamh could potentially challenge the Swedish legislation requiring a permanent office and Swedish licenses for vehicle operators, as this could infringe upon her **freedom to provide services** (Article 56 TFEU) and **freedom of establishment** (Article 49 TFEU). Sweden would need to justify these measures as proportionate and necessary for public safety or another legitimate public interest. 2. **Taxation and Anti-Tax Evasion Law**: The **Finnish anti-tax evasion law** may restrict Niamh's ability to take advantage of Sweden's lower tax rates by potentially treating her business as Finnish if her services are seen as substantially directed towards Finnish consumers. Niamh could argue that her business structure in Sweden is legitimate under **EU law** as long as it has **economic substance** in Sweden. If Finland\'s law is considered discriminatory, Niamh may be able to challenge it based on the **freedom of establishment** (Article 49 TFEU), but the Court will consider whether the business is genuinely structured to avoid tax avoidance. In summary, Niamh can rely on **EU law** to challenge both the Swedish requirement for a permanent office and the Finnish tax rules, particularly if she can demonstrate that her business operations in Finland are legitimate and that the Swedish legislation unjustifiably restricts her ability to exercise her freedoms within the EU internal market. **QUESTION 4** *Mary is a lawyer with a small practice based in Dublin. She has always dreamed of giving up her job and moving abroad to pursue her true passion - wine. One day she decides to quit her practice and move to Bordeaux, where she opens a boutique wine shop. Things go* *well for a while, but after two years, her business starts to lose money. After three years, Mary realises that the business will soon fail. Mary is single and has no other family or friends in France. However, she has come to love the French way of life so much that she cannot bring herself to leave. She knows that she will have to go back to practicing law if she is to earn a living, but has decided to take a break from work for a short while before doing so. In any event, the French bar authorities have told her that she will need to pass the French bar exam before she can legally practice in France. Mary decides she will tour the vineyards of Bordeaux for six months before setting up a practice in Paris. She has some money saved from her time practicing in Dublin, just about enough to live on, but not enough to tour vineyards. She applies for unemployment benefits, but she is refused these benefits on grounds that she is not a French national. Mary seeks advice on whether EU law grants her any rights that could help her to carry out her future plans.* **Issue:** The main issue is whether Mary, an Irish national, can rely on **EU law** to claim unemployment benefits in France, given that she is not a French national, and whether she has any rights under EU law that would enable her to stay in France while pursuing her professional goals. Specifically, she is looking for clarification on whether EU law provides her with any entitlement to unemployment benefits and the right to practice law in France. **Law:** 1. **Freedom of Movement for Workers (Article 45 TFEU)**: a. **Article 45 TFEU** grants EU nationals the right to move and reside freely within the EU. This includes the right to work, and Member States cannot impose discrimination based on nationality. b. The principle of **non-discrimination** applies to EU nationals who have exercised their right to free movement and residence within the EU, ensuring they are not treated less favorably than nationals of the host Member State. 2. **Directive 2004/38/EC (Free Movement Directive)**: c. This Directive governs the rights of EU citizens and their family members to move and reside freely within the EU. According to **Article 7(1)(b)**, an EU citizen who has been working for a certain period (at least one year) can claim unemployment benefits if they have worked in the host state and have involuntarily lost their job. d. **Article 24** of the Directive provides that EU citizens who are economically active in a Member State (i.e., workers or self-employed persons) have the right to equal treatment with nationals of that State regarding social benefits. 3. **Case Law (C-85/96, Martínez Sala)**: e. In this case, the Court of Justice of the European Union (CJEU) ruled that **EU nationals** cannot be discriminated against when it comes to social benefits, regardless of their nationality. This case affirmed that the refusal of benefits based solely on nationality violates EU law. 4. **Right to Practice Law in France (Directive 98/5/EC)**: f. **Directive 98/5/EC** allows EU nationals to practice law in another Member State, but they may be required to pass an exam or demonstrate that they meet certain professional standards. In Mary\'s case, since the French bar authorities require her to pass the French bar exam before she can practice law in France, she is subject to the conditions laid out in the directive. g. However, **Directive 98/5/EC** does provide the right to practice under certain conditions, including the ability to register with the French bar and practice law once certain qualifications have been recognized. **Application:** 1. **Unemployment Benefits**: a. Mary, as an **Irish national**, has the right to move and reside in France, as per **Article 45 TFEU**. The **Free Movement Directive** (2004/38/EC) grants EU citizens, including Mary, the right to claim unemployment benefits in the host Member State (France) if they have been economically active (i.e., working or self-employed) for a period of time. b. However, **Mary\'s case** is complicated because she has not worked in France before applying for benefits. Since she has opened and operated a business (a wine shop), this could be interpreted as self-employment. If Mary has been working in France as a self-employed person for more than a year, she may be entitled to unemployment benefits. However, if she has been unemployed and living in France for less than a year without contributing to the French social security system, the French authorities could legally deny her benefits under the EU law provision that limits benefits to those who have been in the workforce for a reasonable amount of time. c. Given her self-employment status, Mary would need to demonstrate that she meets the conditions set out in the **Free Movement Directive**. If she has made contributions to the French social security system through her business, she could challenge the refusal on the grounds of **equal treatment** under **EU law** (as per **C-85/96, Martínez Sala**). 2. **Right to Practice Law in France**: d. As an EU national, Mary has the right to practice law in France under **Directive 98/5/EC**. However, the French bar requires her to pass the French bar exam before she can practice, which is a restriction based on **national law**. e. Under EU law, this requirement could be seen as **justifiable** because the directive allows Member States to impose specific requirements for the practice of a profession, provided that they do not **unduly restrict** the free movement of professionals. Thus, Mary is required to pass the French bar exam to ensure that her qualifications meet the French standards. The exam requirement does not contravene EU law but rather reflects the balance between the right to free movement and the host state's ability to ensure professional standards. f. If Mary meets the requirements, she could lawfully establish herself as a lawyer in France. However, her desire to take a break before practicing law might not impact her ability to pursue the profession once she is ready to complete the necessary steps to register with the French bar. **Conclusion:** 1. **Unemployment Benefits**: a. Mary has the right to claim unemployment benefits under **EU law** if she has been self-employed in France for a sufficient period and has contributed to the French social security system. If she has not met these criteria, she may not be entitled to benefits. However, she could challenge the French authorities\' decision on the basis of **discrimination** under **Article 24 of Directive 2004/38/EC**, which provides for equal treatment of EU nationals in terms of social benefits. 2. **Right to Practice Law in France**: b. Mary is entitled to practice law in France under **Directive 98/5/EC** as an EU national, but she must meet the requirements set by the French bar, including passing the French bar exam. This is a valid restriction under EU law, as Member States can impose such requirements to ensure professional qualifications are met. Mary can rely on **EU law** to assert her rights to **equal treatment** regarding social benefits and to practice law in France, although her specific eligibility for unemployment benefits will depend on her prior contributions to the French social system. **PART B** **QUESTION 6** *Explain why EU law should not allow Member States, when acting in a public capacity, to compromise the functioning of the internal market, using examples from the case law of the CJEU to illustrate your answer.* The European Union (EU) aims to foster an integrated and unified internal market where goods, services, workers, and capital can move freely between Member States. One of the core principles underpinning the EU's internal market is that Member States should not introduce measures that impede or disrupt this free movement, even when acting in a public capacity. In this essay, I will explore why EU law restricts Member States from compromising the functioning of the internal market through their public actions. This discussion will draw on relevant EU Treaty provisions and significant case law of the Court of Justice of the European Union (CJEU) to illustrate how EU law seeks to prevent national measures from undermining the unity and effectiveness of the internal market. **The Importance of the Internal Market and the Role of Public Measures** The internal market is central to the EU's economic policy. It is founded on the idea that the removal of barriers to the free movement of goods, services, capital, and people will enhance economic efficiency, promote competition, and benefit consumers. Member States, however, are not free to legislate in ways that would create unjustified obstacles to this free movement. Public authorities at the national level, when acting in their regulatory or legislative capacity, must ensure that their actions do not undermine the principles of free trade and competition within the EU. This requirement is enshrined in the **Treaty on the Functioning of the European Union (TFEU)**, specifically in the Articles governing the free movement of goods (**Article 34 TFEU**), services (**Article 56 TFEU**), workers (**Article 45 TFEU**), and establishment (**Article 49 TFEU**). However, these freedoms are not absolute. National measures that interfere with the internal market can be justified under certain conditions, but such justification must meet strict criteria, including necessity, proportionality, and the pursuit of legitimate public interests. The CJEU has consistently ruled that Member States must not create barriers to the functioning of the internal market through public regulations that are discriminatory, disproportionate, or unjustifiably restrictive. **Case Law and the Role of the CJEU** The CJEU plays a crucial role in upholding the principles of the internal market and ensuring that Member States' public measures comply with EU law. Several landmark cases illustrate the Court's approach to ensuring that national measures do not undermine the free movement of goods, services, or workers. In the **C-250/89 Commission v. France (\"French TV\")** case, the French government introduced restrictions on foreign companies providing broadcasting services in France. France argued that these measures were necessary to protect the public interest, but the CJEU held that such restrictions were unjustified as they disproportionately hindered the free movement of services. The Court emphasized that even when acting in a public capacity, such as in regulating the media, Member States could not impose barriers that interfered with the EU's fundamental freedoms without demonstrating that the measures were both necessary and proportionate. A similar principle was established in **C-76/90 Säger v. Dennemeyer**, where the Court found that Germany\'s requirement for a national certificate for businesses offering certain services within the country was an unjustified barrier to the free provision of services. The CJEU ruled that even though the German regulation was framed as a public policy measure, it still hindered the free movement of services in the EU. This case reinforced the notion that Member States cannot use their public functions as a means to impose unnecessary barriers to market access from other Member States. Another critical case is **C-147/03 Commission v. Germany (\"German Workers\' Mobility\")**, in which Germany imposed regulations that restricted the free movement of workers within the EU. The Court ruled that these regulations, which discriminated against non-German workers by imposing unnecessary residence permit requirements, violated the freedom of movement of workers guaranteed under EU law. This case emphasized that public authorities could not impose measures that created unjustifiable barriers to the movement of workers from other Member States, which in turn compromised the functioning of the internal market. The **C-413/99 Baumbast case** is another significant example of the Court asserting the right of EU citizens to freely move and reside within the EU. The case concerned a German national and his family who had moved to the UK and were denied residence rights. The Court ruled that the UK could not deny residence to the Baumbast family, as doing so violated EU law, particularly the freedom of movement. The case demonstrated that even in the context of public law, EU law protects individuals from national measures that unjustifiably restrict their rights to move, work, or establish themselves in other Member States. **Public Measures and the Risk of Compromising the Internal Market** Member States may sometimes act in a public capacity for legitimate purposes, such as protecting public health, the environment, or national security. However, EU law insists that such measures must not compromise the free movement of goods, services, workers, and capital within the internal market unless they are strictly necessary and proportionate. The principle of **proportionality** is fundamental here: any national regulation that restricts the internal market must pursue a legitimate objective, and the measure must be the least restrictive means of achieving that objective. For instance, in **C-413/99 Baumbast**, the Court noted that public measures should not restrict individuals' freedom to move and reside within the EU unless they are justified by public policy objectives that cannot be achieved by less restrictive means. This ensures that the internal market is not unduly hampered by national legislation that could easily be avoided or modified. Furthermore, in cases like **Commission v. Italy (C-305/05)**, where Italy introduced barriers to foreign services by imposing discriminatory taxes on foreign products, the CJEU ruled that public measures that distort competition in the internal market are incompatible with the EU's objectives. Even where Member States act to promote domestic industries or protect public interests, such measures must not distort competition or restrict market access in a way that undermines the effectiveness of the internal market. **Conclusion** EU law ensures that national actions in a public capacity do not hinder the functioning of the internal market, as such actions can create barriers to trade, services, a

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