Europees Recht - UvA - Deeltoets I (2e kans) 2015

Multiple Choice Questions

Question 1

The European Parliament cannot:

1. approve EU legislation;

2. approve the EU budget;

3. adopt a legislative proposal in the field of internal market policy;

4. adopt a motion of censure.

Question 2

Which of the following statements is true/false?

1. Most decisions of the Council are formally adopted by COREPER.

2. The Council can be regarded as part of a ‘bicameral legislature’.

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 3

The so-called ‘Pillar Structure’ of the former EU was designed to:

1. keep the powers of the European Commission intact in the EC Treaty (‘First Pillar’);

2. keep the powers intact of the ECJ in the context of the Common Foreign and Security Policy (‘Second Pillar’);

3. guarantee a dominant role for the Council in ‘Justice and Home Affairs’ (‘Third Pillar’);

4. guarantee a dominant role for the European Parliament in the Euratom Treaty (‘First Pillar’).

Question 4

Which of the following statements is true / false?

1. The Treaty of Lisbon retained the intergovernmental characteristics of EU Common Foreign and Security Policy.

2. The Treaty of Lisbon finally managed to merge the EC and Euratom into one new international organisation called ‘European Union’ (new style).

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

Which of the following statements is true / false?

1. In Van Gend en Loos the ECJ stated that infringements of the EEC Treaty can also be dealt with by the European Commission.

2. Provisions of the EU Treaties that enjoy direct effect also enjoy supremacy over national law.

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 6

A provision of the TFEU will only have direct effect if it contains:

1. an unconditional legal norm;

2. a clear legal norm;

3. a clear and unconditional legal norm;

4. None of the above. 

Question 7

The accession of Montenegro to the EU:

1. depends upon the conclusion of a treaty between the EU and Montenegro;

2. requires ratification by the 28 EU Member States and Montenegro which may in some cases require a referendum;

3. depends upon a positive advice from the European Court of Justice.

4. None of the above mentioned options is correct.

Question 8

From the case of Gabrielle Defrenne (Case 43/75) it became clear that:

1. article 119 EEC (now article 157(1) TFEU) enjoys direct effect as far as direct discrimination between men and woman is concerned;

2. provisions of the EEC Treaty (now the TFEU) cannot enjoy direct effect in national disputes between private parties;

3. some, but not all, provisions of the EEC Treaty (now the TFEU) are directly applicable;

4. all provisions of the EEC Treaty (now the TFEU) are directly effective.

Question 9

The first increase in legislative powers of the European Parliament occurred with the:

1. Single European Act;

2. Treaty of Maastricht;

3. Treaty of Lisbon;

4. Merger Treaty.

Question 10

After the ruling of the ECJ in the Van Gend en Loos case, Member States can:

1. still retain a so-called ‘monist’ constitution in relation to international law;

2. no longer be ‘monist’ when it comes to international law;

3. no longer be ‘dualist’ when it comes to international law;

4. still retain a ‘dualist’ constitution in relation to international law, including EU law.

Question 11

Which of the following sources of EU law is not part of ‘Primary Union law’?

1. The EU Charter of Fundamental Rights.

2. Protocol No. 2 on the Application of the Principles of Subsidiarity and Proportionality.

3. The Framework Decision 2002/584/JBZ on the European Arrest Warrant.

4. The General Principles of Union Law.

Question 12

The so-called ‘pre-emption’ of Member State powers (also known as ‘occupation of the field’ by the EU) can occur in the field of:

1. monetary policy for the Member States whose currency is the Euro;

2. EU transport policy;

3. competition rules necessary for the functioning of the internal market;

4. EU policy on tourism.

Question 13

Article 352 TFEU:

1. cannot be used to harmonize laws of the Member States in those areas where this is precluded by the EU Treaties;

2. can be used to establish the accession of the EU to the European Convention of Human Rights;

3. can be used to harmonize Member State legislation in the field of cultural matters (Art. 167 TFEU);

4. is an exclusive competence of the EU.

Question 14

The digressively proportional representation system in the European Parliament entails that:

1. citizens from small Member States are better represented than citizens from large Member States;

2. the ‘democratic principle’ is leading;

3. the ‘federal’ or ‘sovereignty’ principle is leading;

4. the system of ‘one person, one vote’ applies.

Question 15

From the case of Matthews it became clear that:

1. the EU is directly subjected to the European Convention of Human Rights;

2. the EU Member States are not subjected to the European Convention of Human Rights when they adopt a new treaty amending the EU institutional set up;

3. the European Parliament can be considered a ‘legislature’ in the meaning of Protocol 1 to the European Convention of Human Rights;

4. Gibraltar had to be considered a ‘Member State’ of the EU for the purposes of applying the European Convention of Human Rights.

Question 16

The Presidency of the European Council is held by:

1. one of the representatives of one of the Member States on the basis of equal rotation;

2. one of the ambassadors in the COREPER;

3. a Head of State or a Head of Government of one of the Member States.

4. None of the abovementioned answers is correct.

Question 17

Which of the following statements is true/false?

1. Article 114 TFEU does not allow the EU to legislate in policy areas that are linked to public health issues.

2. Article 114 TFEU vests in the EU a general power to regulate the internal market.

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 18

The accession of the EU to the European Convention of Human Rights (ECHR):

1. is possible since the amendment of the TFEU by the Treaty of Lisbon;

2. will create an external supervision of the EU Institutions’ activities in the field of human rights;

3. is not possible since the ECHR does not allow for international organisations to become a party to this Convention;

4. is not possible since the EU Treaties do not allow for an international organization to accede to the ECHR.

Question 19

The procedure under Protocol Nr. 2 on the application of the principles of subsidiarity and proportionality provides:

1. each national parliament with one vote (or ‘yellow card’) to issue on the Commission’s proposal when it holds that the proposal violates the subsidiarity principle;

2. each national parliament with a veto on a proposal of the Commission;

3. national parliaments with a possibility to oblige the Commission to withdraw its proposal for reasons of violation of the subsidiarity principle;

4. national parliaments with an ‘orange card procedure’ for proposals that initiate the ‘ordinary legislative procedure’.

Question 20

Which of the following statements is true/false?

1. An EU Directive always contains an implementation deadline.

2. EU Decisions are not necessarily addressed to private citizens.

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 Data Retention Directive proved invalid because it:

1. disrespected the ‘essence’ of the Articles 7 and 8 of the EU Charter of Fundamental Rights;

2. limited the rights of Articles 7 and 8 of the Charter of Fundamental Rights in a disproportional manner;

3. limited articles 7 and 8 of the Charter of Fundamental Rights in a manner that was not ‘adequate’ to achieve a certain public interest;

4. limited articles 7 and 8 of the Charter of Fundamental Rights without serving any public interest as recognized by the EU.

Question 22

When the EU adopts a regulation this act will:

1. relate to an exclusive EU competence;

2. not be implemented by Member State legislation;

3. find its legal basis in Article 288 TFEU;

4. have been adopted in accordance with the ‘ordinary’ legislative procedure.

Question 23

Article 31, paragraph 2, of the EU Charter of Fundamental Rights:

1. can only be legally enforced in relation to EU acts that render it concrete;

2. can only be legally enforced before the ECJ;

3. is a typical example of a ‘right’ protected by the EU Charter on Fundamental Rights;

4. is a typical example of a ‘principle’ protected by the EU Charter on Fundamental Rights.

Question 24

If the ‘conciliation committee’ manages to come to an agreement, the EU legislative act:

1. will be deemed to have been adopted accordingly;

2. will be adopted by the European Parliament unless it wants to propose further amendments;

3. may be rejected by the Council of Ministers;

4. may be adopted by the European Council.

Question 25

Which of the following EU institutions is the most ‘intergovernmental’ one?

1. The Council.

2. The European Central Bank.

2. The Commission.

3. The Court of Auditors.

Question 26

The ESM Amendment was:

1. after 25 March 2011 part of ‘primary EU law’;

2. a step in the application of a simplified revision procedure;

3. a step in the revision of the Treaty on European Union;

4. an act taken by the Council acting by unanimity.

Question 27

During the ‘ordinary legislative procedure’:

1. the Council mostly votes by unanimity;

2. the European Parliament never votes by a majority of its component members;

3. the European Parliament mostly votes by a majority of the votes cast;

4. a ‘conciliation committee’ is in most cases established.

Question 28

Not a Member of the European Council is:

1. Jeroen Dijsselbloem, Dutch Minister of Finance;

2. Jean-Claude Juncker, President of the Commission;

3. Donald Tusk, former Prime Minister of Poland;

4. Charles Michel, current Federal Prime Minister of Belgium.

Question 29

An example of a ‘special’ legislative procedure can be found in:

1. Article 114(1) TFEU;

2. Article 203 TFEU;

3. Article 168 (5) TFEU;

4. Article 178 TFEU.

Question 30

The Dutch Government cannot veto the adoption of an EU act if the act concerned is based on:

1. Article 115 TFEU;

2. Article 81(3), first sentence, TFEU;

3. Article 106(3) TFEU;

4. Article 113 TFEU.

Open Questions

Question 1: Doctrine and Discussion (max. 12 points)

Defend one of the following two statements:

1. The so-called ‘Flexibility clause’, i.e. Article 352 TFEU, renders the principle of conferral pointless.

2. The so-called ‘Flexibility clause’, i.e. Article 352 TFEU, does not render the principle of conferral pointless. (Max. 12 points; max 500 words)

Question 2: Case (max. 28 points)

‘Harengus hollandicus sempervivens’

In the Dutch agricultural university of Wageningen, scientists managed to genetically manipulate ordinary Dutch herring (harengus) into a new breed of fish that has a much longer life expectancy (dubbed the harengus hollandicus sempervivens). This new type of fish is much more profitable than the ordinary herring. Not only is its life expectancy much higher than that of an ordinary herring, its weight and length are at least ten times that of an ordinary herring. Furthermore, it is easy to breed in captivity, as opposed to the ordinary herring that is very hard to keep in water basins or aquariums.

The University of Wageningen decides to take a patent (Dutch: ‘octrooi’) on the newly developed type of fish. In the past Dutch law did not allow for a patent on living creatures (like herring) but a EU Directive (Directive 98/44, the ‘Biotechnology Directive’) now stipulates that Member States must provide patents for such inventions. Dutch law had been changed accordingly.

An environmental protest group called ‘DTS’ (short for ‘Death To Sempervivens’) strongly opposes the grant of such a patent that in their eyes would stimulate the proliferation of ‘Frankenstein fish’ that sooner or later will completely destroy the ecosystems, especially when they escape and make their way into open sea. DTS manages to bring a case before the court in The Hague, demanding that the patent is revoked. One of the grounds on which they rely is that the patent rests on the Biotechnology Directive that could not have been based on Article 114 TFEU.

1. How do you think the court in The Hague will respond to this claim made by DTS? (max. 6 points; max. 250 words)

Assume that the Court in The Hague is of the opinion that DTS is right and decides to revoke the patent and declares the underlying Biotechnology Directive invalid.

2. What basic rules of EU law has the Court in The Hague violated by doing so? (max. 8 points; max. 300 words)

3. Soon the news of the ruling of the Court in The Hague reaches ‘Brussels’. What legal action can be expected from the European Commission in response to the occurrences in The Hague? (max. 4 points; max. 100 words)

The Dutch Government wants to prevent such action from being taken by the Commission and instructs the Dutch Commissioner, Mr Timmermans, to use his influence in the Commission to achieve this.

4. What EU constitutional rule is violated by such action of the Dutch Government? (max. 5 points; max. 150 words)

Eventually DTS initiates a European Citizens’ Initiative with the aim to ask the Commission to amend the Biotechnology Directive. They succeed in collecting more than 1.2 million signatures of citizens resident in The Netherlands.

5. Do you think the Commission is obliged to seriously consider the request to propose the amendment of the Biotechnology Directive? (max. 5 points; max. 150 words)

Answers Multiple Choice Questions

1. c

2. d

3. c

4. a

5. c

6. c

7. b

8. a

9. a

10. a

11. c

12. b

13. a

14. a

15. c

16. d

17. b

18. b

19. d

20. a

21. b

22. b

23. c

24. c

25. a

26. b

27. c

28. a

29. b

30. c

Answers Open Questions

Question 1

As initial points, students were expected to show their knowledge of the principle of conferral and the flexibility clause.

According to the principle of conferral - provided for in Art. 5(2) TEU - the Union is competent to act only within the limits of the competences conferred upon it by the Member States. The different types of competences - i.e. exclusive, shared, complementary and supplementary - are clarified in Art. 3 TFEU. Articles 3 to 6 TFEU set forth the policy areas in which the Union can exercise its competence.

Art. 352 TFEU contains the so-called ‘flexibility clause’. The Article confers powers over the EU to act and adopt measures with the objective to achieve one of the Union goals (enumerated in Art. 3 TEU) in case the Treaties have not provided the necessary powers.

In supporting the argument that the flexibility clause renders the principle of conferral pointless, students were expected to refer to the broad formulation of Art. 352 TFEU, particularly when read in combination to the breadth of the Union goals contained in Art. 3 TEU.

In supporting the argument that the flexibility clause does not render the principle of conferral pointless, students were expected to point out the many safeguards against the circumvention of the principle on conferral, which are laid down in Art. 352 TFEU. The most important requirement is the prohibition of using Art. 352 TFEU as a legal basis in policy areas where the Treaties exclude harmonisation of Member States regulations, such as public health (see Art. 168(5) TFEU). Also the policy area of common foreign and security policy, which still presents strong intergovernmental features, appears to be excluded from the possible use of the flexibility clause as a legal basis to act.

Furthermore, Art. 352 TFEU provides for a special legislative procedure under which the Council must act unanimously. This means that Member States can still exercise control, and to some extent confer power to act to the EU. In addition, national parliaments must be informed, and the control procedure over the principle of subsidiary contained in Protocol (no. 2) on the application of the principles of subsidiarity and proportionality applies.

Finally, students could have also argued that Art. 352 TFEU constitutes a legal basis in itself, and therefore it does not raise issues with respect to the principle of conferral. In Opinion 2/94, the Court of Justice of the European Union clarified the limits of Art. 352 TFEU. It ruled that Art. 352 TFEU was designed to ‘fill the gaps’ where no powers were conferred over the Union, but action was still necessary for the Union to carry its functions. This legal basis cannot however be used to widen the scope of the powers of the Union beyond the general framework created by the Treaties, in such a way that would be tantamount to a Treaty amendment in circumvention of the regular Treaty amendment procedure.

Question 2

1. The question the Court in The Hague faces, i.e. whether Directive 98/44/EC was correctly adopted on the basis of Article 100a TEC (now, after amendment, Article 114 TFEU), has already been dealt with by the CJEU in Case C-377/98, The Netherlands v. European Parliament and Council (‘Biotechnology’, para. 13-29).

   The CJEU, referring to its Opinion 1/94, stated in Biotechnology that the Union is competent, in the field of intellectual property, to harmonize national laws pursuant to Article 114 TFEU (para. 24) and concluded that Directive 98/44/EC had been correctly adopted on the basis of Article 114 TFEU (para. 29).

   The question put before the Court in The Hague can thus be considered a so-called ‘acte éclairé’. As every national court must, in a case within its jurisdiction, apply Union law in its entirety (Case 106/77, Simmenthal II, para. 21), the Court in The Hague will likely dismiss the claim made by DTS.

   Note: As the CJEU has already answered this question in Biotechnology, it is not necessary for the Court in The Hague to request the CJEU to give a preliminary ruling on the validity of Directive 98/44/EC under Article 267 TFEU. On the basis of Foto-Frost (Case 314/85, para. 14), the Court in The Hague may consider the validity of Directive 98/44/EC and, if it considers that the grounds put forward before it by the parties in support of invalidity are unfounded, it may reject them, concluding that the Directive is completely valid.

2. First the rule that national courts can never declare EU acts – here the Biotech Directive -  invalid. In Foto Frost the ECJ ruled that national courts may consider the validity of an EU act and may conclude that this act is completely valid.  On the other hand, these courts do not have the power to declare acts of the EU institutions invalid as this would jeopardize the uniform application of (secondary) EU law. 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 (Article 267b TFEU)  (see Foto-Frost, paras 14 and 15).

   Secondly, by declaring the Biotech Directive invalid, the Dutch court also ignored the rule of supremacy of EU law over national law. In Costa/ENEL the ECJ ruled that the law stemming from the Treaty, an independent source of law, 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 Biotech Directive), enjoy supremacy over all provisions of national law, including the Member States’ constitutions.

3. It can be expected the Commission starts an infringement action under 258 TFEU.

4. The rule in Article 17 (3) TEU does not apply in this case: it refers to the Commissioners seeking instructions. It rather refers to Article 245, first paragraph TFEU that prevents the Member States from seeking to influence the Commissioners in the performance of their tasks. Thus Article 17(3) TEU addresses the Commissioners whereas Art 245 TFEU addresses the Member State Governments.

5. The procedures and conditions for a Citizens’ Initiative are laid down in Regulation 211/2011. Article 7 of that Regulation requires that the signatories shall come from at least one quarter of Member States and it sets a minimum number of signatories per Member State. The DTS initiative has over 1 million signatories, but not from the required quarter of the Member States. Therefore, the Commission is not obliged to respond to this Citizens’ Initiative.

   Note: Reference to Article 11(4) TEU and the words ‘significant number of Member States’ in that article does not answer the question, as Article 11 (4) TEU explicitly refers to further procedures and conditions that need to be elaborated.