Questions

Question 1

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.

Question 2

EU citizenship (7 points max)

What is reverse discrimination? Please give an example.

Question 3

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?

Question 4

Article 102 TFEU (6 points max)

Explain what the SSNIP test is.

Question 5

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.

Question 6

Mergers (15 points max)

Explain the differences between horizontal, vertical and conglomerate mergers and their potential effects on competition in the relevant market.

Question 7

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.

Answers

Question 1

1. The exclusion of women from applying, is direct discrimination on the basis of sex. (art. 2(1)(a) of Directive 2006/54/EC) (3 pnt).
2. Art. 14(1)(a) of Directive 2006/54 bans direct discrimination on the basis of sex in relation to conditions for access to employment (3 pnt).
3. So this type of exclusion is not allowed under EU law, unless exceptions allowed by the directive apply (2 pnt):

•  Article 14(2) (1 pnt)
• (article 2(2c) (1 pnt)
• Article 3 (1 pnt)

4.  It’s hard to imagine that one of those exceptions are applicable to this case (2 pnt).The provisions of the directive are also applicable in wholly internal situations, so a cross-border element is not necessary (2 pnt)

Question 2

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).

Question 3

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.)

Question 4

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%.

Question 5

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)).

Question 6

• Horizontal concentration (2,5 points): This occurs when a concentration takes place between undertakings which are competing in the same product and geographic market and at the same level of production/distribution.
• Vertical concentration (2,5 points): A concentration between undertakings operating at different levels of economy (for example between manufacturer and supplier). It does not increase concentration of the relevant product market.
• Conglomerate (2,5 points): This refers to a concentration between undertakings that are not competing with each other in any product market and which does not result in any vertical integration.
• Most likely to adversely affect market structure? Horizontal concentrations are most likely to adversely affect market structure because after it the number of competing undertakings in the relevant market is reduced. The new merged undertaking has a larger market share and possibly a dominant position. After the merger, the structure of the market, in the sense of its competitiveness is reduced. (2,5 points) Vertical concentrations do not directly affect the market structure of a relevant product market. However, they can give rise to a number of competition issues (foreclosure or a more favorable environment for collusive behavior might be created). (2,5 points) Conglomerate concentrations are ordinarily neutral, or even beneficial for competition. (2,5 points)

Question 7

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)