Europees Recht - UvA - Deeltoets I 2015

Part A: Multiple Choice Questions

Question 1

The so-called ‘First Pillar’ of the former EU was comprised of:
1. Euratom, the European Community for Coal and Steel and the European Economic Community;
2. the European Economic Community;
3. Police and Judicial Cooperation in Criminal Matters;
4. Common Foreign and Security Policy.

Question 2

The most ‘intergovernmental’ type of EU decision-taking is present in:
1. Article 83 TFEU;
2. Article 113 TFEU;
3. Article 114 TFEU;
4. Article 177 TFEU.

Question 3

Which of the following statements is true / false?
I. In Van Gend en Loos, the European Court of Justice (ECJ) made no secret of the fact that direct effect of EU law would greatly improve the effectiveness of EU law.
II. Provisions of the EU Treaties have supremacy provided they are sufficiently clear and unconditional.
1. Statement I is true, Statement II is false.
2. Statement I is false, Statement II is true.
3. Both Statements are true.
4. Both Statements are false.

Question 4

Which of the following statements is true / false?
I. The Lisbon Treaty was designed to facilitate the enlargement of the EU with the former Communist countries in Eastern Europe.
II. Many of the changes introduced by the Treaty of Lisbon were copied from the Treaty establishing a Constitution for Europe.
1. Statement I is true, statement II is false.
2. Statement I is false, statement II is true.
3. Both statements are true.
4. Both statements are false.

Question 5

Article 157(1) TFEU:
1. lacks direct effect;
2. has only direct effect in vertical situations;
3. has only direct effect in horizontal situations;
4. has direct effect in both vertical and horizontal situations.

Question 6

Ratification of EU law by national parliaments is not required for:
1. the use of the simplified revision procedure to change the TFEU;
2. the accession of Turkey to the EU;
3. the amendment of the TEU;
4. the use of the so-called ‘Flexibility Clause’ (Article 352 TFEU).

Question 7

The ESM Amendment:
1. was proposed by a Member State Government instead of the Commission;
2. required a unanimous vote in the Council of Ministers;
3. amended article 125 TFEU;
4. amended article 48(6) TEU.

Question 8

In case the EU wants to immediately freeze financial assets in the EU that belong to relatives of Vladimir Putin, the best way to proceed is:
1. to adopt a EU regulation;
2. to adopt a EU directive;
3. to change the TFEU;
4. to change the TEU.

Question 9

Which of the following sources of EU law is not part of ‘Secondary Union law’?
1. The Commission Decision imposing fines on Henkel, Procter & Gamble and others for violating Article 101 TFEU.
2. The Regulation establishing common rules on compensation and assistance to passengers in the event of denied boarding of flights.
3. The Framework Decision 2002/584/JBZ on the European Arrest Warrant.
4. The General Principles of the Union’s Law.

Question 10

The so-called ‘pre-emption’ of Member State powers (also known as ‘occupation of the field’ by the EU) does not occur in the field of:
1. EU agricultural policy;
2. EU social policy;
3. EU transport policy;
4. EU policy on civil protection.

Question 11

Claude Juncker, the current President of the European Commission is also:
1. a member of the European Council;
2. Prime Minister of Luxembourg;
3. a member of the Board of the European Central Bank;
4. a member of the Council of Ministers of the EU.

Question 12

The Member States’ Governments do not:
1. propose candidates for the new European Commission;
2. delegate Ministers to the Council;
3. appoint judges on the Court of Justice of the European Union;
4. dismiss the European Commission.

Question 13

In a ‘special legislative procedure’:
1. the Council is never the dominant institution;
2. the European Parliament is never the dominant institution;
3. sometimes the European Parliament, sometimes the Council is the dominant institution;
4. the establishment of a ‘conciliation committee’ is usually required.

Question 14

Article 352 TFEU:
1. can be used to harmonize laws of the Member States in those areas where this is precluded by the EU Treaties;
2. cannot be used to establish the accession of the EU to the European Convention of Human Rights;
3. is a so-called ‘supporting’ or ‘coordinative’ competence of the EU;
4. can be used to harmonize Member States’ legislation in the field of administrative cooperation (Art. 197 TFEU).

Question 15

Which of the following functions is a function of the European Parliament?
1. The ratification of a treaty amending the TFEU.
2. The ratification of a treaty providing for the accession of a new State to the EU.
3. The election of a new President of the Commission.
4. The right to formally propose new EU legislation.

Question 16

Which of the following statements is true/false?
I. After 1 November 2014 the Council no longer takes decisions by qualified majority vote.
II. The Council meets in different configurations, yet in all configurations it acts as the institution ‘the Council’ (of Ministers of the European Union).
1. Statements I and II are true.
2. Statements I and II are false.
3. Statement I is true; statement II is false.
4. Statement I is false; statement II is true.

Question 17

Which of the following statements about the European Council is true?
1. It does not have a legislative function in the EU.
2. It is appointed once every 5 years.
3. It has a rotating Presidency.
4. It is composed of the Ministers of Foreign Affairs of the 28 Member States.

Question 18

From case C-377/98, Biotechnology, it became clear that:
1. the Member States’ competences to either grant or refuse patents for biotechnological inventions may damage the coherence of the internal market;
2. the genetic manipulation of animals and plants falls outside the scope of the internal market;
3. the Biotechnology Directive breached the principle of subsidiarity;
4. the Biotechnology Directive extended to the processes of cloning human beings.

Question 19

The Presidency of the Council of Ministers is held by:
1. one of the Member States on the basis of equal rotation;
2. one of the ambassadors in COREPER;
3. the President of the European Commission;
4. the permanent President of the European Council.

Question 20

Which of the following statements is true/false?
I. It followed from the Matthews case that the EU Member States are bound by the European Convention of Human Rights when they adopt a new treaty amending the EU institutional set up.
II. The European Convention of Human Rights is directly binding upon the EU Institutions.
1. Statements I and II are true.
2. Statements I and II are false.
3. Statement I is true; statement II is false.
4. Statement I is false; statement II is true.

Question 21

The accession of the EU to the European Convention of Human Rights (ECHR):
1. is possible, and even obligatory, since the amendment of the TEU by the Treaty of Lisbon;
2. will finally create an external supervision of the EU Member States’ activities in the field of human rights;
3. is not possible since the Court of Justice of the European Union (CJEU) has ruled that the EU does not have the attributed competence to accede to the ECHR;
4. is not possible since the EU Treaties do not allow for an international organization to accede to the ECHR.

Question 22

From Joined Cases C-181/91 and C-248/91, European Parliament v. Council and Commission (‘Bangladesh’), it followed that:
1. the representatives of the Member States were acting in their capacity of members of the Council;
2. the, then, EC has no exclusive competence in the field of humanitarian aid;
3. the Commission could not be entrusted with the implementation of an act of the Member States outside the scope of the TFEU;
4. the decision of the Member States to aid Bangladesh was subject to possible annulment under Article 263 TFEU.

Question 23

A ‘Citizens Initiative’:
1. is addressed to the Council and the European Parliament;
2. once successfully completed requires the EU institutions to adopt the requested act;
3. must be supported by at least 1.000.000 EU citizens (excluding citizens from third countries living in the EU);
4. cannot relate to EU acts that need to be adopted in accordance with a ‘special’ legislative procedure.

Question 24

The EU principle of proportionality:
1. relates only to the shared competences of the EU;
2. is only relevant if the EU is competent to act in the first place;
3. relates only to the exclusive competences of the EU;
4. can be the subject of a ‘yellow’ card of the 28 Member States’ national parliaments.

Question 25

A so-called ‘conciliation committee’:
1. may be established in the context of a ‘special legislative procedure’;
2. ends officially the legislative procedure if it manages to reach an agreement;
3. consists of representatives of both the European Parliament and the Commission;
4. must come to an agreement or else there cannot be a ‘third reading’ of the ‘ordinary legislative procedure’.

Question 26

The use of Article 114 TFEU as a legal basis for secondary EU law:
1. always requires appreciable distortions of competition to be removed for the improved functioning of the internal market;
2. always requires obstacles to trade to be removed for the improved functioning of the internal market;
3. either requires the removal of appreciable distortions of competition or the removal of obstacles to trade;
4. requires both the removal of appreciable distortions of competition and the removal of obstacles to trade.

Question 27

The practice of so-called ‘Trilogues’:
1. is an example of an informal practice involving the European Parliament, the Council and the Commission;
2. is used to prepare the ordinary revision procedure to change the TFEU;
3. is another word for the ‘conciliation committee’ meetings;
4. is only used in the context of a ‘special’ legislative procedure.

Question 28

The action for Treaty infringement in Article 258 TFEU:
1. is an example of decentralised enforcement of EU law;
2. requires a reference to the ECJ from one of the national courts in the Member States;
3. can be initiated by a Member State;
4. is always dealt with by the CJEU in Luxembourg.

Question 29

The Dutch Government alone can veto the adoption of an EU act if:
1. the act concerned is based on a proposal from the European Commission;
2. the Council is to vote by Qualified Majority;
3. the act concerned is based on Article 192(1) TFEU;
4. the act concerned is based on Article 115 TFEU.

Question 30

Which of the following statements is true/false?
I. Article 288 TFEU provides the legal basis for the EU to adopt a EU regulation in the field of the internal market.
II. EU decisions are always addressed to private individuals or companies, not to the EU Member States.
1. Statements I and II are true.
2. Statements I and II are false.
3. Statement I is true; statement II is false.
4. Statement I is false; statement II is true.

Part B: Open Questions

Question 1: Case (max. 28 points)

‘Ahmad Qajar’
Ahmad Qajar is an Iranian national and long-time opponent to the Iranian regime led by the Ayatollahs. At the age of 41 he was released from prison in Tehran and decided it was time to flee the country. After terrible tribulations he illegally arrived by boat in the Greek city of Thessaloniki without any official documents (as they were all withheld by the Iranian Authorities). He then travelled onwards to The Netherlands where the authorities soon discovered he was an illegal immigrant. Although he wanted to seek asylum in The Netherlands, the Dutch authorities sent Mr. Qajar back to Greece. Regulation 343/2003 (also known as the Dublin Regulation) which is based on Article 78(2)(e) TFEU determines that since Greece was the first country where Mr. Qajar (illegally) entered EU territory, it is the only competent Member State to deal with his asylum application.
Mr Qajar was placed in a closed institution on the Island of Lesbos where he suffered terrible hardships. There was neither fresh water nor proper sanitation and he had to share one cell of 10 square meters with four other asylum seekers. His Greek lawyer filed an official complaint, stating that by applying Regulation 343/2003 the Dutch authorities had violated inter alia Article 4 of the EU Charter of Fundamental Rights and that the Greek authorities, also by applying Regulation 343/2003, had violated Article 24 of the Greek Constitution.

1.a. Can Member States like The Netherlands directly apply a EU Regulation to the detriment of an individual such as Mr. Qajar?
(max. 4 points, max. 50 words)

1.b. - Do you think Article 4 of the EU Charter of Fundamental Rights amounts to a ‘right’ or to a ‘principle’?
- What is, generally speaking, the legal relevance of this distinction?
(max. 6 points; max. 200 words)

1.c. Could the Greek court in Lesbos have declared Regulation 343/2003 invalid for violation of Article 24 of the Greek Constitution?
(max. 6 points, max. 100 words)

The new SIRISA Government in Greece acknowledges that living conditions in asylum centres like the one on Lesbos are bad. Yet, it maintains that part of the problem lies with the system of Regulation 343/2003 the practical result of which is that (too) many asylum seekers are being sent back to Greece since that country often happens to be the country where potential asylum seekers first crossed the external borders of the EU. The Commission, the European Parliament and most Member States want to accommodate the Greek wishes by changing the system of Regulation 343/2003, yet the Dutch and UK Governments are strongly opposed to such a legislative change.1.d Indicate whether the Dutch and the UK Governments can prevent an amendment of Regulation 343/2003.
(max. 6 points; max. 300 words)

The Dutch authorities had discovered on 12 March 2015 that Mr. Qajar was first in Greece as they had requested from the mobile phone companies and internet providers all his communication data. This right of the Dutch authorities is based on the Dutch Data retention law implementing the EU Data retention Directive. Thus they were able to track Mr. Qajar’s whereabouts back to Greece before he came to the Netherlands.

1.e What could be wrong from a legal perspective with the Dutch Data retention law on 12 March 2015?
(max. 6 points; max. 250 words)

Question 2: Doctrine and Discussion (max. 12 points)

Defend one of the following two statements:
I. After the entry into force of the Treaty of Lisbon, the principle of subsidiarity can be expected to work effectively as a principle restraining EU law making activities.
II. After the entry into force of the Treaty of Lisbon, the principle of subsidiarity cannot be expected to work effectively as a principle restraining EU law making activities.
(Max. 12 points; max 500 words)

Answer Key Multiple choice questions

Question 1: 1

Question 2: 2

Question 3: 1

Question 4: 2

Question 5: 4

Question 5: 4

Question 7: 1

Question 8: 1

Question 9: 4

Question 10: 4

Question 11: 1

Question 12: 4

Question 13: 3

Question 14: 2

Question 15: 3

Question 16: 4

Question 17: 1

Question 18: 1

Question 19: 1

Question 20: 3

Question 21: 1

Question 22: 2

Question 23: 3

Question 24: 2

Question 25: 4

Question 26: 3

Question 27: 1

Question 28: 4

Question 29: 4

Question 30: 2

Model Answers Open Questions

Question 1: Case (max. 28 points)

‘Ahmad Qajar’
Ahmad Qajar is an Iranian national and long-time opponent to the Iranian regime led by the Ayatollahs. At the age of 41 he was released from prison in Tehran and decided it was time to flee the country. After terrible tribulations he illegally arrived by boat in the Greek city of Thessaloniki without any official documents (as they were all withheld by the Iranian Authorities). He then travelled onwards to The Netherlands where the authorities soon discovered he was an illegal immigrant. Although he wanted to seek asylum in The Netherlands, the Dutch authorities sent Mr. Qajar back to Greece. Regulation 343/2003 (also known as the Dublin Regulation) which is based on Article 78(2)(e) TFEU determines that since Greece was the first country where Mr. Qajar (illegally) entered EU territory, it is the only competent Member State to deal with his asylum application.
Mr Qajar was placed in a closed institution on the Island of Lesbos where he suffered terrible hardships. There was neither fresh water nor proper sanitation and he had to share one cell of 10 square meters with four other asylum seekers. His Greek lawyer filed an official complaint, stating that by applying Regulation 343/2003 the Dutch authorities had violated inter alia Article 4 of the EU Charter of Fundamental Rights and that the Greek authorities, also by applying Regulation 343/2003, had violated Article 24 of the Greek Constitution.

1.a. Can Member States like The Netherlands directly apply a EU Regulation to the detriment of an individual such as Mr. Qajar?
(max. 4 points, max. 50 words)
Yes, according to Article 288 (2) TFEU a Regulation shall have general application, it shall be binding in its entirety and directly applicable in all Member States. EU regulations are binding on anyone coming within their scope throughout the European Union. So the Dutch authorities must apply the Regulation directly (Fairhurst).

1.b. - Do you think Article 4 of the EU Charter of Fundamental Rights amounts to a ‘right’ or to a ‘principle’?
- What is, generally speaking, the legal relevance of this distinction?
(max. 6 points; max. 200 words)

Art. 4 CFR is a right, not a principle. The distinction between rights and principles can be deduced from Art. 52 (5) CFR. Principles set general goals for governmental action, and require implementation through legislative and executive acts of the EU institutions or of the Member States when they are implementing Union law. They are judicially cognizable/enforceable only in the interpretation of such acts. Rights have direct effect and can be directly invoked before a Court. They may follow from principles, but are made concrete in the CFR. They set limits to governmental action. Therefore, the distinction is relevant for judicial review, in particular for the question whether an individual can invoke an Article of the CFR directly before a court.

1.c. Could the Greek court in Lesbos have declared Regulation 343/2003 invalid for violation of Article 24 of the Greek Constitution?
(max. 6 points, max. 100 words)

No, in Foto Frost the ECJ ruled that national courts do not have the power to declare acts of the EU institutions (here Regulation 343/2003) invalid; only the ECJ has that competence. Hence, in case of doubt all national courts are obliged to refer a preliminary question on the (in)validity of the EU act in question to the ECJ (in accordance with Article 267, under b, TFEU) (Foto-Frost, para 14 and 15). Moreover, if the Greek court were to declare the Dublin Regulation invalid, it would ignore the rule of supremacy of EU law over national law. In Costa/ENEL the ECJ ruled that the law stemming from the Treaty could not, because of its special and original nature, be overridden by domestic legal provisions, however framed (para 12). Hence, all provisions of EU law, including secondary EU law (here the Dublin Regulation), enjoy supremacy over all provisions of national law, including the Greek Constitution.
The new SIRISA Government in Greece acknowledges that living conditions in asylum centres like the one on Lesbos are bad. Yet, it maintains that part of the problem lies with the system of Regulation 343/2003 the practical result of which is that (too) many asylum seekers are being sent back to Greece since that country often happens to be the country where potential asylum seekers first crossed the external borders of the EU. The Commission, the European Parliament and most Member States want to accommodate the Greek wishes by changing the system of Regulation 343/2003, yet the Dutch and UK Governments are strongly opposed to such a legislative change.

1.d Indicate whether the Dutch and the UK Governments can prevent an amendment of Regulation 343/2003.
(max. 6 points; max. 300 words)

From the facts of the case it is clear that Regulation 343/2003 is adopted on the basis of Article 78(2)(e) TFEU. Article 78(2) TFEU states that decisions falling within the scope of the aforementioned legal basis should be taken in accordance with the ordinary legislative procedure. This procedure is described in Article 294 TFEU. According to this procedure the Council of the EU decides together with the European Parliament. Decisions can be adopted only if they are accepted both by the European Parliament and the Council of the EU. For the purpose of the application of this procedure the Council of the EU adopts its decisions by qualified majority voting. The calculation of the qualified majority which is applicable as of 1 November 2014 can be found in Articles 16(4) TEU and 11 of the Decision 2009/237and in Annex III of Council Decision 2009/937. A qualified majority is defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union. A blocking minority must include at least four Council members. In our case only two Council members, the representatives of the Netherlands and the United Kingdom, would like to block the decision in question. They cannot do so considering that a ‘blocking minority’ requests the disapproval of at least four and not two Council members.
The Dutch authorities had discovered on 12 March 2015 that Mr. Qajar was first in Greece as they had requested from the mobile phone companies and internet providers all his communication data. This right of the Dutch authorities is based on the Dutch Data retention law implementing the EU Data retention Directive. Thus they were able to track Mr. Qajar’s whereabouts back to Greece before he came to the Netherlands.

1.e What could be wrong from a legal perspective with the Dutch Data retention law on 12 March 2015?
(max. 6 points; max. 250 words)

On 12 March 2015 the Dutch law implements an invalid directive (the Data Retention Directive was declared invalid by the CJEU on 8 April 2014, see case C-293/12 (‘Digital Righs Ireland’) in your syllabus. It is mandatory to mention the case and its date! It therefore now appears that the Dutch law, just like the Directive, violates both Article 7 and 8 Charter of Fundamental Rights just like the Data Retention Directive did. NB In 2015 the court in The Hague indeed declared the Dutch law implementing the Data retention Directive also invalid, for breach of the Charter. See ECLI:NL:RBDHA:2015:2498.

Question 2: Doctrine and Discussion (max. 12 points)
Defend one of the following two statements:
I. After the entry into force of the Treaty of Lisbon, the principle of subsidiarity can be expected to work effectively as a principle restraining EU law making activities.
II. After the entry into force of the Treaty of Lisbon, the principle of subsidiarity cannot be expected to work effectively as a principle restraining EU law making activities.
(Max. 12 points; max 500 words)

As a preliminary matter, students should clarify the principle of subsidiarity. Its definition can be found in Article 5(3) TEU, which provides that in areas which do not fall within the exclusive competences of the Union, the Union shall act “only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”.

1) Students supporting the first statement, i.e. that the principle of subsidiarity can be expected to effectively restrain EU law-making activities, could refer to Protocol No. 2 on the application of the principles of subsidiarity and proportionality, annexed to the Treaties. Protocol No. 2, in its current form, was introduced by the Lisbon Treaty with the intention to involve national parliaments at an earlier stage of the EU legislative process, and to enable them with a procedure to exercise control on whether the Union acts in compliance with the principles of subsidiarity and proportionality.
The details of the procedure are explained in Protocol No. 2, and therefore will not be repeated here. What matters particularly is that national parliaments are given a ‘vote’ each to express a positive or negative opinion on a draft legislative act’s compliance with the principle of subsidiarity. This takes place, within the framework of the ordinary legislative procedure (Article 294 TFEU), right after the Commission’s proposal (i.e., the draft legislative act). Whenever one third of the ‘votes’ is against the draft, it must be reviewed (‘yellow card’ procedure, Article 7(2) of Protocol No. 2). According to the ‘orange card’ procedure, which is triggered when a majority of the ‘votes’ is cast against the application of the principle of subsidiarity in the draft act, the Commission must review its proposal. Differently from the other procedure, here the Commission must receive the approval of the European Parliament and the Council, in the case it decides to not amend the draft legislative act (Article 7(3) of Protocol No. 2).
Judicial enforcement by the EU Court of Justice under Art. 263 TFEU is obviously a possible means to ensure the validity of EU acts, including those allegedly adopted in breach of the principle of subsidiarity.

2) Students supporting the view that the principle of subsidiarity cannot be expected to function properly as a EU law-making restraining principle could point out that the procedures contained in Protocol No. 2 are not tantamount to a ‘red card’ procedure, i.e. national parliaments cannot block a draft legislative act on the basis of a breach of the principle of subsidiarity (see Schütze, p. 47). The ‘yellow card’ procedure only provides that the EU institutions must review that act, but the institutions may decide not to amend it. Even the ‘orange card’ procedure allows the EU legislator not to amend the draft legislative act in spite of a majority of national parliaments opposing it, as long as the European Parliament and the Council vote in favour.
A convincing critique of the principle of subsidiarity refers to its vague formulation, which makes the principle difficult to enforce. It is not easy to assess in which cases certain objectives can be better achieved at the Member State level, especially because such assessment is conducted in abstract terms and prior to the entry into force of the act. It can further be argued that the institution evaluating whether action shall be better taken at the Union level, the Commission, has an inherent interest in claiming that the objectives can be better achieved at the Union level.
Concerning the formulation of the principle, Article 5(3) TEU actually recognizes two tests: a national efficiency test (the Union can only act where the objectives of the proposed action could not be sufficiently achieved by the Member States), which appears to be an absolute standard, and a comparative efficiency test (the Union should not act unless it can better achieve the objectives of the proposed action). It is difficult to see how these tests can be reconciled. Indeed, the wording of Article 5(3) TEU has been called a “textual failure” (see Schütze, p. 45).