Equal Treatment (15 points max)
Joanna, a young Dutch woman residing in the Netherlands, is fond of her birthplace Goes, located in the province of ‘Zeeland’. She has never crossed borders, not even to other provinces within the Netherlands. She has always dreamt of a career at a mussel factory. To her joy, the mussel factory “Uitjeschelp” currently is seeking for new employees. Its advertisement reads: “Are you a man and do you like mussels? Then you are the musselman we are looking for!” Explain whether a job advertisement excluding female applicants is allowed under EU law and whether it is relevant that Joanna has never crossed the border.
EU citizenship (7 points max)
What is reverse discrimination? Please give an example.
Freedom to provide services and right of establishment (25 points max)
Arjen Berendam is a Dutch law student participating in an Erasmus exchange program at the University of Bologna. While playing football he injured his knee. He was brought to the hospital where he was told that he needed a MRI-scan for a diagnosis. Arjen filed a request for prior authorization for the reimbursement of the costs of the hospital treatment with his Dutch health insurance company AZ. However, he did not wait for AZ’ response and had the MRI-scan in the hospital in Italy. AZ refuses Arjen’s request for authorization and does not substantiate its refusal. Under the national legislation there is no possibility to challenge this refusal. In its insurance policy, AZ indicates that the substantive criterion for authorization of hospital treatment in other EU Member States is that the costs may not unreasonably exceed the costs of similar treatments in the Netherlands. Dutch legislation prescribes that patients must request a prior authorization from insurance companies for hospital treatment in other EU Member States. The requirement is meant to guarantee the financial balance of the social security system. According to this legislation, health insurance companies enjoy discretion in determining the criteria and procedure upon which approval depends. Is the Dutch legislation compatible with EU Law, in particular with the free movement of services as enshrined in Article 56 TFEU?
Article 102 TFEU (6 points max)
Explain what the SSNIP test is.
Free movement of workers and posting of workers (12 points max)
Are migrant workers and economically inactive EU citizens entitled to equal treatment with the nationals of a host Member State with regard to the conditions for obtaining student loans? Explain.
Mergers (15 points max)
Explain the differences between horizontal, vertical and conglomerate mergers and their potential effects on competition in the relevant market.
The area of freedom, security and justice (20 points max)
Ole Lauritsen is the leader of a group of alt-right activists in Denmark. On the evening of 15 October 2018, Johansson held a speech on a square of Odense, calling for the harassment and assault of transgender persons, and members of other sexual minorities. In the same night, three transgender students of the local university were attacked and severely injured by a person who attended Lauritsen’s speech. On the morning after the events, Lauritsen flees to Slovakia. On 22 October 2018, the Danish Prosecution Service (which is a judicial authority) issues a European Arrest Warrant against Johansson, who is charged with making public statements threatening members of a group of persons because of their sexual orientation or gender identity, as mentioned in the EAW framework decision. This hate speech crime is punishable by a maximum penalty of five years of imprisonment in Denmark. There is no hate speech legislation in Slovakia. Lauritsen is soon arrested in Slovakia, and presented before a judge. Is Slovakia (and Slovakian courts) under an obligation to surrender Lauritsen to the Danish Prosecution Service? State your reasons, and the legal provisions applicable in the present case.
Reverse discrimination consists in a less favourable legal position of EU nationals who never exercise free movement than those who move from one Member State to another (2 points). This is because parts of EU law are only applicable to cross-border situations. If the national law is less favourable than EU law, non-applicability of EU law leads to less favourable treatment of “non-moving” nationals. (2 points). Example from the textbook (can be a different one): under regional law, higher education in Scotland is free for Scottish students domiciled in Scotland but not for others. EU students studying in Scotland benefit from the EU law principle of non-discrimination on the basis of nationality and as a result are entitled to free education in Scotland. In turn, for students from England and Wales studying in Scotland cannot rely on EU law and national law is applicable to them with the result that they need to pay for education in Scotland(3 points).
Medical services provided for remuneration fall within the scope of the provisions on the freedom to provide services ( Watts, para. 86 “It should be noted in that regard that, according to settled case-law, medical services provided for consideration fall within the scope of the provisions on the freedom to provide services, there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment”). (5 p.)
Optional: This includes also the freedom to be the recipient of services (Watts, para. 87). The Services Directive is not applicable.
Secondly it must be determined whether imposing the requirement for a system of prior authorization amounts to a restriction of the free movement of services. This is the case when a national rule has the effect of restricting market access (Watts, para. 94 “Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State”) In Watts (para. 95) the Court ruled that this appears to be the case where prior authorization is required for reimbursement of hospital treatment in another Member State. (5 p.)
Thirdly, the question arises whether the restriction can be justified. According to the case of Watts (para. 103: “The Court has already held that it is possible for the risk of seriously undermining the financial balance of a social security system to constitute an overriding reason in the general interest capable of justifying an obstacle to the freedom to provide services”). This is possible in the present case because there is a public interest objective, namely the financial balance of the social security system. (5 p.)
In principle, a system of prior authorisation is suitable/appropriate to safeguard the financial balance of the social security system (see for instance, Watts, para. 113). Nonetheless, it needs to be determined whether the system of prior authorisation in this specific case is proportionate in relation to its objective, in the sense that it does not restrict the free movement of services more than necessary. The Dutch legislative rule is not proportionate because it does not ensure that prior authorization is based on objective, non-discriminatory criteria which are known in advance (cf. paras. 106 and 114). The national rule does not circumscribe the exercise of the national authorities discretion so that it is not used arbitrarily. (See Watts, para. 116). Moreover, there seems to be no possibility to challenge the refusal. (see further Watts, paras. 117-118). (10 p.)
The test of small but significant and non-transitory increase in price (SSNIP) is used to determine the product market in cases under EU competition law. It estimates the likeliness that people would switch to a similar product when the investigated product’s price is raised by around 5-10%.
A person who is a ‘worker’ gets a study loan on the same conditions as nationals of that MS. Art. 7(2) Reg. 492/2011 says that a worker has the right on social advantages. Art. 24(1) Dir 2004/38 also provides for equal treatment. For being a worker s/he has to satisfy the Lawrie Blum criteria. If that is the case the answer is yes. A person who is not economically active doesn’t have the right of equal treatment concerning student loans like nationals as long as they have not obtained the permanent right of residence (art. 24 (2), art. 16 Dir. 2004/38. After the non-economically active person has obtained the permanent right of residence (so after 5 years), than he has right to study loans on the same conditions as nationals (art. 24(1)).
Students should refer to article 1(2) EAW.
The European arrest warrant is issued for the prosecution of offences punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months, or for the execution of custodial sentences or detention orders for a period of at least four months (Article 2(1)). The Member State to which the arrest warrant is addressed may make surrender subject to the condition that the acts must also constitute an offence under its own legal system (Article 2(4)). (10 points)
Under Article 2(2), that rule, which is known as the double criminality rule, does not apply in respect of 32 categories of offence, provided that the issuing Member State punishes those offences by a prison sentence of a maximum of at least three years. (5 points) The list does not include hate speech against persons because of their gender identity. (2,5 points)
This does not mean that the execution of the EAW must be refused. Absence of dual criminality is a cause for optional non-execution (article 4(1)). Whether or not double criminality is examined for such offences is an option for the Member State, not an obligation. Therefore, Member States are free to decide whether they will apply the condition of double criminality to offences not listed in Article 2. (2,5 points)
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European Law - UU - Practice exam 2018-2019Equal Treatment (15 points max)
Joanna, a young Dutch woman residing in the Netherlands, is fond of her birthplace Goes, located in the province of ‘Zeeland’. She has never crossed borders, not even to other provinces within the Netherlands. She has always dreamt of a career at a mussel factory. To her joy, the mussel factory “Uitjeschelp” currently is seeking for new employees. Its advertisement reads: “Are you a man and do you like mussels? Then you are the musselman we are looking for!” Explain whether a job advertisement excluding female applicants is allowed under EU law and whether it is relevant that Joanna has never crossed the border.
EU citizenship (7 points max)
What is reverse discrimination? Please give an example.
Freedom to provide services and right of establishment (25 points max)
Arjen Berendam is a Dutch law student participating in an Erasmus exchange program at the University of Bologna. While playing football he injured his knee. He was brought to the hospital where he was told that he needed a MRI-scan for a diagnosis. Arjen filed a request for prior authorization for the reimbursement of the costs of the hospital treatment with his Dutch health insurance company AZ. However, he did not wait for AZ’ response and had the MRI-scan in the hospital in Italy. AZ refuses Arjen’s request for authorization and does not substantiate its refusal. Under the national legislation there is no possibility to challenge this refusal. In its insurance policy, AZ indicates that the substantive criterion for authorization of hospital treatment in other EU Member States is that the costs may not unreasonably exceed the costs of similar treatments in the Netherlands. Dutch legislation prescribes that patients must request a prior authorization from insurance companies for hospital treatment in other EU Member States. The requirement is meant to guarantee the financial balance of the social security system. According to this legislation, health insurance companies enjoy discretion in determining the criteria and procedure upon which approval depends. Is the Dutch legislation compatible with EU Law, in particular with the free movement of services as enshrined in Article 56 TFEU?
Article 102 TFEU (6 points max)
Explain what the SSNIP test is.
Free movement of workers and posting of workers (12 points max)
Are migrant workers and economically inactive EU citizens entitled to equal treatment with the nationals of a host Member State with regard to the conditions for obtaining student loans? Explain.
Mergers (15 points max)
Explain the differences between horizontal, vertical and conglomerate mergers and their potential effects on competition in the relevant market.
The area of freedom, security and justice (20 points max)
Ole Lauritsen is the leader of a group of
.....read more European Law - UU - Practice exam 2017-2018Quaglia is a big manufacturer of dry pastas and is based in Italy. Quaglia appoints local distributors to sell its product in each country. The market for pastas in Europe is very competitive so the distributors will only sell Quaglia's products if Quaglia agrees to grant them each an exclusive territory in which Quaglia will not supply any other distributors. In return, the distributors agree that they will not sell pastas made by competing manufacturers and that they will follow Quaglia’s advisory retail minimum price. To maintain their protection, the distributors have persuaded Quaglia to insert a standard clause on all distribution agreements, namely: that the distributors are not to sell in each other’s' territories, nor supply customers from each other’s' territories. Quaglia's market share is around 20% and each of its distributors have a market share of 15%.
Assess whether these agreements are compatible with EU law. Refer to the relevant provision(s) of EU law, and state your reasoning step by step. Also mention whether possible exceptions apply. (20 points)
What changes, if any, would you recommend to make to the agreements inorder for them to comply with EU law? (5 points)
With the entry into force of the Lisbon Treaty the most significant deepening of the integration process occurred in the field of criminal law. Give your opinion on the following statement: “Police and judicial cooperation in criminal matters in Europe has become more supranational.” Provide one argument in favour of this position and one argument against it. Explain your answer.
Tesla-Watt is the first electric car manufacturer in Europe. In 2009, when Tesla-Watt was established in Germany, there were no other firms selling e-cars in Europe (see table below). The commercial strategy of Tesla-Watt is to position the e-cars as a luxury alternative to the “regular” cars, so as to sell it at premium prices. Since 2010, the Swedish car manufacturer Volvy has introduced an alternative brand for e-cars to the European market, which are comparable in quality to the German e-cars. Volvy has adopted a different marketing strategy: it follows a mass-market approach, selling e-cars at low prices. Volvy is able to sell its e-cars at a price 25% lower than Tesla-Watt. The market shares of the two companies over the years in Europe have been as follows:
| Year | 2009 | 2010 | 2011 | 2012 |
| Tesla-Watt | 100% | 90% | 75% | 60% |
| Volvy | 0% | 10% | 25% | 40% |
In 2010 demand forecasts at Tesla-Watt were significantly positively biased, implying that in 2011, the demand levels would significantly be exceeded. As the overly optimistic forecasts failed to meet their expectations, Tesla-Watt was left with an excess in
.....read more European Law - UU - Practice exam 2016-2017Explain the difference between EU citizenship and the free movement of workers. What is the added value of EU citizenship? In your answer, refer to relevant legislation. (15 points)
The Dutch Museum for Comic Books wants to scan every comic book in its collection but doesn't have the money to buy an advanced book scanner. The municipality of Heerlen, in which the museum is located, is considering to offer the museum a 750.000 euro subsidy. This subsidy would have to be used by the museum to buy the latest Book Scanner 3000XL, a professional book scanning machine. The museum director would be very happy with such a generous subsidy as it would enable the museum to open an 'online' branch and become the first online comic book museum. Visitors of this new online museum would have to buy a 5 euro ticket to get access to the museum's comics. Should the Dutch municipality of Heerlen notify the European Commission of its plans? And if so, on what basis? In your answer, refer to relevant legislation and case law. (20 points)
Jan works in Belgium and resides in The Netherlands - his home Member State - where he has a (basic) health insurance. His employer offers additional health care coverage to his employees, on the condition that the (basic) health insurance is from an insurance company established in Belgium. Motivate whether this condition is contrary to EU law. In your answer, refer to relevant legislation. (15 points)
The Area of Freedom, Security and Justice is a particular policy field in the EU law as the Member States are not eager to lose control over the issues falling within this area, such as immigration and asylum. Yet, cooperation in criminal and police matters is necessary as borders have been lifted between the Member States. Which principle has been promoted by the European Council to develop judicial cooperation in civil and criminal matters between the Member States? What does this principle entail and where can you find it in the Treaties? (5 points)
What concrete legal instrument can you name as to how this principle is operationalized? How does this instrument function? Explain your answer by referring to relevant legislation. (10 points)
Amy - a Dutch national - wishes to move to Spain and perhaps open a bed and breakfast. She has been successfully employed in the hospitality business in her home Member State. She is not sure as to whether starting her own business is a viable option for her, but nonetheless, she has the intention of moving to Spain permanently. Under what conditions is Amy able to reside in Spain for the first year? Explain your answer by referring to relevant
.....read more European Law - UU - Practice exam 2012/2013Frizzz is an undertaking having its headquarters in Berlin, Germany. Frizzz is producer of different types of soft drinks. The factories that produces the soft drinks distributes direcly to retail stores in Germany, Belgium, the Netherlands and Spain. Since 2010, X chooses to focus on producing only a few juices, which have been successful over the years. Specifically, X produces orange juice and apple juice.
In the market for distribution of orange juice Frizzz has a market share of 51% in Germany, 47 % in Belgium, 37% in the Netherlands and 28% in Spain. At the European level Frizzz has a market share of 45%, where its main competitors are Juicy and Fresh, both registered in Italy and both distributing their products in the German, Spain, Belgian and Dutch markets. Juicy has a market share of 23% at the European level while Fresh has a market share of 22% at the European level. Juicy and Fresh use the same business model as Frizzz which entails direct distribution to retailers, no wholesalers being involved. During 2010, 2011 and 2012 the prices for orange juice have increased steadily. The table below shows the evolution of prices for the X, Y and Z backpacks throughout these years.
End of 2010 End of 2011 End of 2012
X €45 €47 €49
Y €46 €48 €50
Z €42 €49 €51
The CEO's of Juicy and Fresh went to the same conference in Madrid with the same AirSpain flight departing from Amsterdam, sharing neighbouring business class seats. During the flight and also during the conference they discussed important aspects with regard to the production and distribution of mountaineering equipments in Europe. They both manifested their concern with regard to the costs of the ingredients their companies use for their products; they also exchanged opinions on how their know-how and testing specialists were accustomed to work and, most importantly, they agreed that based on their companies’ production and having in mind the costs incurred, the prices charged for their products are the ‘correct’ ones. Moreover, the two CEO’s were on the same page when talking about the price for the orange juice which they believed should not go below € 1,75 per bottle. During the second day of the conference, they met up with the CEO of Frizzz, with whom they had lunch and a couple of drinks together during the final conference reception. The three CEO’s agreed to keep in touch in the future and maybe organize a nice vacation in the near future.
Since the conference, the CEO’s of Juicy and Fresh exchange constant courtesy emails and phone calls; occasionally, they also send birthday cards to the CEO of Frizzz. In january 2011 the CEO of Frizzz decides not to return the courtesy and moreover, contemplates.....read more
European Law - UU - Practice exam 2011/2012Bloemella is the main producer of liqourice and treacle waffles in the Netherlands. Its shops can mainly be found in Dutch train stations. Their success is due to the way the liqourice and treacle waffles are produced and distributed: each shop has a system of unique small boxes, which keep the candy and cookies fresh and delicious up to the moment that they are sold. Bloemella decides to expand its business activities in other European countries, namely Germany, Italy and Spain. Bloemella concludes several distribution agreements with local retailers in these countries, which aim at becoming Bloemella’s official distributors. Bloemella requires the applicant distributor to satisfy two conditions:
One of the employees of the applicant distributor should attend a three-week course in Utrecht to learn Bloemella’s business model.
The distributor is required to introduce the system of small boxes that is used by Bloemella in the Netherlands in order to safeguard the freshness of the flowers in these countries.
Vilanova is a store placed in Barcelona Central station which sells cookes and candy. Vilanova would like to become one of the official distributors of Bloemella. However, it does not have the system of small boxes requested by Bloemella. In addition, Vilanova is not sure if its clients would like to buy the liqourice and waffles. Finally, Vilanova believes that its employees know how to sell their products, without the need to pay for a training course in Utrecht to learn how to do it. Therefore, Vilanova does not consider such investments necessary. Vilanova submits a complaint to the Spanish Competition Authority arguing that the distribution agreement that Bloemella intends to conclude with its distributors is in breach of the competition law rules. At the same time, German and Italian shops submit similar complaints to their national competition authorities. The European Commission is informed of the proceedings in the different Member States. The European Commission would like to avoid national competition authorities reaching different outcomes in the assessment of the compatibility of Bloemella’s network of agreements with competition law.
On what legal basis can the European Commission rely in order to claim jurisdiction over the case?
The European Commission obtains jurisdiction over the case and it opens formal investigations. The European Commission defines the product market as the market for the production of liqourices and treacle waffles. This product market has a local geographic dimension. The average market share of Bloemella in these relevant markets is 70-80% in the Netherlands, and 30-40% in Germany, Italy and Spain.
What would be the Commission’s assessment on the compatibility of the agreement with the EU competition law rules?
Madeleine is a citizen of the United Kingdom.....read more
European Law - UU - Additional practice exam (1)Online Betting Ltd. is a company, based in Ireland, involved in digital betting. The company wants to expand its betting activities in the European Union, in particular in Germany, Belgium and Spain. With a view to offer digital betting services to Spanish consumers, Online Betting Ltd. seeks to obtain a license from the Spanish gaming authority. To qualify for an digital betting license, all operators should provide evidence that they meet certain requirements, including financial, technical and social requiremetns of the business.
After a period of liberalization the Spanish government (after being increasingly confronted with Spaniards having become addicted to betting) intends to adopt more stringent rules to avoid the possible negative effects associated with the betting industry. It therefore proposes to amend the Spanish legislation and include requierements for obtaining an digital betting license the requirement that the operator should also have a fixed establishment in Spain. You are asked as a legal advisor to the Spain government to assess whether the proposed amendment complies with EU law, in particular with the free movement of services provision. Please argue whether and why EU law may be violated and/or whether and why a justification ground is available for the Spanish state? Please refer to relevant case law of the ECJ and explain whether or not the Services Directive may be relevant here.
Juanes is of Spain nationality. He came one year ago to the Netherlands to study at the Utrecht University. He is an amateur football player in the Netherlands. The Dutch ministry of education gives 450 euro per year for each amateur sportsmen as expenses for the costs, since it wants to encourage doing sports. This subsidy is given to persons of Dutch nationality only. Suppose that Charles wants to fight a rejection of a claim for this subsidy. Which arguments can he put forward?
Suppose that also another Spanish student, Pedro, is playing in this football team, and is refused this subsidy. The student came two years ago as a member of the family of his father and mother who both found a job in the Netherlands. Does the approach for Juanes also apply for Pedro?
To be recruited as an supervisor in a special unit of the police service (which needs to perform in case of emergency) national legislation requires one to be no older than 35 years. Is this
requirement contrary to EU legislation?
If national legislation required one to be male in order to be recruited as an supervisor in the police service in general, which (art. 19 TFEU-)directive would be applicable to conclude on whether it regards.....read more
European Law - UU - Additional practice exam (2)Within the context of EU legislation seeking to improve the air quality in Europe, France is required as from 1 February 2015 to implement standards on fine dust (PM10) and nitrogen dioxide (NO2) below the maximum threshold set at EU level. With a view to comply with these standards, the Community of Paris adopted an ‘Action Plan for Air Quality’. Next to certain specific measures to promote the use of more environmentally friendly transportation of goods, like the electric car, the Community of Paris also decided to prohibit diesel cars older than 9 years and petrol cars older than 13 years from accessing the city center as from December 2014. The Italian Bruno Maldini is the owner of a 24-hour-Oldtimer Service, established in the Italian community of Pisa. Demoulin is staggered by the plans of the Community of Utrecht, as his company regularly rents out oldtimers (cars which are more than 25 years old) for wedding ceremonies in the center of Paris. He therefore seeks advice from his lawyer to hear which arguments based on EU law and in particular the EU rules on free movement he can raise to challenge the Action Plan of the Community of Paris.
Which arguments could he raise before the District Court of Paris to challenge the decision of the Community of Paris? Please motivate your answer carefully by referring to relevant case law of the Court of Justice.
Students studying at a university in Estonia have to pay an enrollment fee of 3,000 euro per year if they follow an English language master in psychology. Students who follow a Estonian language master in this area pay 400 euro per year. Foreign students complain about this difference, they also want to pay the lower fee.
What arguments are useful to put forward by the students? (NB the assessment of the arguments is subject of b)
What criteria will the Court of Justice use to give an answer to the ques whether this difference in fees is allowed? How will they be applied in this case?
You may assume it regards an EU matter. Refer to the relevant articles and requirements while concluding which EU legislation is applicable and possibly holds grounds for infringement.
Which (art. 19 TFEU-)directive is applicable to the situation whereby a same sex life partner of a deceased employee is refused access to the occupational scheme providing for survivors benefits?
The benefit was refused based on the requirement that only a surviving spouse could apply for such benefit. National law reserved marriage solely to persons of different sex, but it had established life partnership with equivalent.....read more
European Law: Samenvattingen, uittreksels, aantekeningen en oefenvragen - UU
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