These Practice exam questions on European Law are based on a bachelor 1 course at Amsterdam university - 2015/2016

Multiple Choice Questions - set 1

Question 1

The Tobacco Advertising Case (C-376/98) teaches us that:

1. The EU Member States may adopt legislation on the protection of public health as long as this does not result in a distortion of competition

2. The EU Member States are exclusively competent in the area of health care policy

3. The EU is never competent to adopt measures in the field of public health

4. The European Union is competent to adopt measures in the field of public health in case such measures remove the obstacles to trade

Question 2

Under the ‘ordinary legislative procedure’:

1. Neither the European Parliament nor the Council of Ministers can block the adoption of a EU act

2. The European Parliament cannot block the adoption of a EU act

3. The Council of Ministers cannot block the adoption of a EU act

4. Both the European Parliament and the Council of Ministers can block the adoption of a EU act

Question 3

José-Manuel Barroso (President of the European Commission) is also a member of what other EU Institution, in addition to the European Commission?

1. The Council of Ministers

2. The European Council

3. The European Central Bank

4. The European Parliament

Question 4

Which of the following statements is true / false?

1. Under Article 352 TFEU the European Union can adopt legislation to harmonize the laws of the Member States in the field of the protection of human health.

2. The ‘ordinary legislative procedure’ is applicable when the EU wants to harmonize laws of the Member States for the improvement of the functioning of the Internal Market.

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

When the Council of Ministers takes a ‘qualified majority vote’ before 1 November 2014:

1. The individual EU Member States have a veto

2. The Dutch Minister has a weighted vote worth more ‘points’ than the Croatian Minister

3. The German Minister has a vote worth more weighted points than the vote of the Italian Minister

4. The act must be approved by at least 65% of the EU Member States, representing at least 55% of the population of the EU

Question 6

1. One of the sources of law that inspire the European Court of Justice to ‘discover’ General Principles of EU law is international law, such as the European Convention for the Protection of Human Rights and Fundamental freedoms.

2. The European Court of Justice had increased the effectiveness of EU law as a consequence of its judgment in Van Gend & Loos.

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 7

A directive adopted by the EU Institutions:

1. Contains a deadline for its implementation by the EU Member States in their domestic legal order’

2. Is directly effective after its publication in the Official Journal of the EU

3. Needs to be adopted in accordance with the ‘ordinary legislative procedure’

4. Relates to a ‘shared competence’

Question 8

The European Commission:

1. Must resign as a body after the European Parliament adopted a motion of censure

2. Can dissolve the Council of Ministers and call for new European elections

3. Appoints the members of the European Parliament

4. Elects the members of the Court of Justice of the EU

Question 9

The European Union was established as an international organisation by:

1. The Treaty of Nice (2000)

2. The Constitutional Treaty (2004)

3. The Treaty of Maastricht (1992)

4. The ‘Reform Treaty’ (2007)

Question 10

Which of the following legal bases prescribes a ‘special legislative procedure’?

1. Art. 352 TFEU

2. Art. 114(1) TFEU

3. Art. 82(1) TFEU

4. Art. 168(5) TFEU

Question 11

The ESM Amendment Decision:

1. Is a step in the revision of the Treaty on European Union

2. Is a step in the application of the ordinary revision procedure

3. Is a decision taken by the Council of Ministers

4. Has amended since 1 May 2013 the Treaty on the Functioning of the European Union

Question 12

Supremacy of EU law means that:

1. EU law can be directly invoked before a national court of a Member State

2. In case of a conflict with national law, EU law shall prevail

3. EU law is subjected to the national constitutions of the Member States

4. The ECJ always has jurisdiction to answer any question from a national court of the Member States

Question 13

An example of ‘secondary Union law’ includes:

1. Article 114 TFEU

2. The constitutional traditions common to the Member States

3. The Council Framework Decision on the European Arrest Warrant

4. The Charter of Fundamental Rights of the EU

Question 14

If one knows the legal basis upon which a EU act is adopted, one can tell:

1. What type(s) of legislative act(s) may be adopted by the EU institutions

2. Whether the EU act has direct effect

3. Whether the act is in accordance with the subsidiarity principle

4. Whether the act is in compliance with the Charter of Fundamental Rights of the EU

Question 15

Which statement(s) is/are true?

1. Since the Treaty of Lisbon has entered into force, the EU has ceased to be an independent international organisation.

2. After all member states and Montenegro have ratified the accession treaty for Montenegro to join the EU, Montenegro will be the 29th EU Member State.\

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 16

‘Shared competence’ between the EU and the EU Member States implies that:

1. The EU can act only when the EU Member States have not acted in a certain area

2. The principle of subsidiarity does not apply

3. The EU Member States can act if the EU has ceased to exercise its competence

4. Both the EU Member States and the EU can each always act independently from one another

Question 17

National courts of the EU member states cannot:

1. Declare an EU directive valid

2. Independently apply EU law

3. Refer preliminary references to the European Court of Justice under article 267 TFEU

4. Invalidate an EU regulation if it conflicts with the Treaty on the functioning of the European Union

Question 18

The Member State Governments are capable of:

1. Submitting EU legislative proposals under art. 267 TFEU

2. Amending an EU regulation after ratification of such amendment in accordance with their respective constitutional requirements

3. Introducing national legislation in the field of the common commercial policy

4. Submitting a proposal to start the ‘ordinary revision procedure ’of the Treaty on European Union and/or the Treaty on the Functioning of the European Union

Question 19

The principle of subsidiarity ensures that:

1. The European Union shall only act if the objectives of the proposed action cannot be sufficiently achieved by the Member States

2. The European Union shall not legislate in areas of law that fall under the exclusive competence of the EU Member States

3. The European Union shall always act in accordance with human rights

4. The European Union shall not impose obligations upon citizens that are not necessary to achieve a certain policy aim

Question 20

The European Parliament shall:

1. Propose candidates for any post of European Commissioner

2. Adopt legislation concerning the internal market without the cooperation of the Council

3. Adopt EU legislation together with the European Council

4. Elect the new President of the European Commission

Question 21

The term ‘direct applicability’ refers to

1. the way EU directives should operate in the member states

2. the status of EU law in the national legal orders of the member states

3. both concepts mentioned under 1) and 2)

4. neither concept mentioned under 1) and 2)

Question 22

For accession of Montenegro to the EU it is not necessary that:

1. The accession Treaty is ratified by the Dutch parliament

2. The accession Treaty is ratified by the Montenegrin parliament

3. The accession treaty is ratified by the European Commission

4. The European Parliament gives its consent

Question 23

What is nota substantive condition to EU lawmaking?

1. An EU act must be based on a Commission proposal

2. An EU act must respect the principle of subsidiarity

3. An EU act must respect the EU Charter of Fundamental Rights

4. An EU act must respect the principle of proportionality

Question 24

Article 37 of the EU Charter of Fundamental Rights

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

2. can only be legally enforced before the ECJ

3. can only be legally enforced before national courts

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

Question 25

The European Court of Justice

1. consists of a number of judges that is smaller than the number of member states

2. is a component body (‘branch’) of the EU Institution called ‘Court of Justice of the European Union’

3. cannot answer questions for a preliminary ruling from the Hoge Raad

4. can only interpret the ‘acquis communautaire’

Question 26

Article 195 TFEU is an example of:

1. A shared power of the EU

2. An exclusive power of the EU

3. A legal basis that authorizes the EU to act

4. A directly effective Treaty provision

Question 27

In the ordinary legislative procedure, the European Parliament can reject the Council’s position in ‘Second Reading’

1. by a majority of the votes cast

2. by a majority of its component members

3. by a unanimous vote

4. by a qualified majority vote

Question 28

For accession of the EU to the European Convention of Human Rights

1. there was no legal basis in the TEU or TFEU prior to the Treaty of Lisbon

2. a treaty is necessary between the EU and the United States of America

3. the EU Charter of Fundamental Rights first had to be amended

4. the EU Member States first have to withdraw from that Convention to avoid a ‘treaty dilemma’ for the EU Member States

Question 29

The principle of subsidiarity in EU law cannot

1. be reviewed by national parliaments

2. be applied in the areas of exclusive competences of the EU

3. be reviewed by the ECJ

4. be applied in the areas of shared competence of the EU

Question 30

The EU Citizens’ Initiative

1. is addressed to the European Parliament and Council

2. requires that ‘signatories’ come from at least 55% of the EU Member States

3. is open to all ‘signatories’ that live in the EU, regardless of their nationality

4. should be signed by no less than 1,000,000 EU citizens

Answers set 1

1. d

2. d

3. b

4. b

5. b

6. c

7. a

8. a

9. c

10. a

11. d

12. b

13. c

14. a

15. d

16. c

17. d

18. d

19. a

20. d

21. b

22. c

23. a

24. a

25. b

26. c

27. b

28. a

29. b

30. d

Open Questions - set 1

Question 1

Source Analysis (max. 20 points) read carefully case Simmenthal II

1. How did this case come before the ECJ?

2. The judgment mentions several times the term ‘Community Law’. Explain what this term historically refers to and explain why today it has become an old-fashioned term. (Max. 5 points; max. 100 words)

3. Is there a difference between the relationship between EU law and existing Italian law on the one hand and between EU law and new, subsequently adopted, Italian law on the other hand? (Max. 10 points; max. 150 words)

Question 2

Case (max. 20 points)‘Goose Torture a.k.a. “Foie Gras”’Goose liver (‘Foie Gras’) is an expensive delicatesse much appreciated by the more fashionable restaurants. Originally a French product, it is produced by force feeding geese so that their liver expands to an unnaturally large size before the geese are slaughtered and the livers sold for consumption. Animal’s rights organizations have been fighting this production method for years as the force feeding of the geese is said to be very painful for them, if not downright torture! In some countries in the EU, such as Denmark, law prohibits this production method whereas in other Member States, like Poland and France, force-feeding the geese is allowed under French respectively Polish law. The result is that for Danish producers of foie gras, the production is very costly (they can only produce smaller livers) whereas Polish or French producers can produce larger livers which means a lower production cost per kilogram. As a result, Danish foie gras costs about 100 Euro per kilogram whereas Polish or French foie gras comes at about 60-70 euros per kilogram. The Danish Government wants EU legislation to render the differences in legislation between the Member States smaller as the Danish producers of foie gras now suffer unfair competition from their French and Polish competitors.

1. Would the EU indeed have the attributed power to adopt legislation that harmonizes the differences in national legislation on the production methods of foie gras? Mention the most appropriate legal basis and provide the legal reasoning as to why this would be the most appropriate legal basis. (Max. 10 points; max 200 words)

Two years later, the EU indeed adopts a directive that deals with the production of foie gras in the EU. Geese are no longer allowed to be force fed until they have reached a certain age. A number of animal rights organizations feel that the EU directive, although a step in the right direction, does not go far enough at it still allows for force feeding of (older) geese. They want the directive legally tested on compliance with animal rights. Before any legal action from the part of these animal rights organizations starts, the Commission releases a press statement in which it claims that such legal action is doomed to fail since the protection of animal rights is not part of the EU Charter of Fundamental Rights and therefore legal review of the directive in the light of animal rights is legally not possible.

2. Give your legal assessment of the Commission’s press statement on this matter. Is the statement that review of the directive is not possible necessarily correct? (Max. 5 points; max. 150 words)

3. What do you think the response of the Danish Government to the Danish Parliament will be? (Max. 5 points; max. 50 words)

Answers open questions - 1

Question 1

1. This question came before the Court through the preliminary reference procedure (this term must be mentioned in full); see par. 1 of the case. The present article in which this procedure is laid down is art. 267 TFEU (before the Treaty of Lisbon that was article 234 TEC). NB: the correct post-Lisbontreaty Article is a vital element in this answer as students must knowhow to transpose old treaty numbers to current ones. (par. 1 HvJ EU Simmenthall II & art. 267 VWEU)

2. In Simmenthal, the Court refers to the law of the European Economic Community. The former European (Economic) Community, and hence Community law, has ceased to exist on 1-12-2009when the Treaty of Lisbon revised the Treaties and turned them into the Treaty on the European Union and the Treaty on the Functioning of the European Union. See also Article 1 TEU: “The Union shall replace and succeed the European Community”. (art. 1 VEU)

3. The answer is no. The principle of supremacy means that in case of conflicts between EU law and national law, EU law takes precedence and the national law cannot be applied. The national law is inapplicable. This applies irrespective of whether the national law was already in existence or has been adopted after the adoption of EU law. Paragraph 21 of the judgment states clearly “that every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule. ”Paragraph 24 of the judgment also states this. “[...] A national court [...] is under a duty to give full effect to those provisions of Community law (...) even if adopted subsequently”. The answer can also be inferred from the case of Costa ENEL where it is stated that “The obligations undertaken under the Treaty establishing the Community would not be unconditional, but merely contingent, if they could be called in question by subsequent legislative acts of the signatories.” (par. 24 HvJ EU Simmenthall II & HvJ EU Costa ENEL)

Question 2

1. Yes the EU would have the attributed power to harmonize the differences in national legislation on the production methods of foie gras. The appropriate legal base would be article 114 TFEU. In the case Tobacco advertising the court explained (in paragraph 95) that the conditions for the use of that article are the following: the directive needs to contribute to the elimination of distortions of free movement of goods or services and/or the elimination of distortion of competition. ONLY the latter reason is a proper ground in this case to use art. 114 TFEU (Not the first ground). In this situation the rules on production of froie gras vary greatly in the respective member states as a result of which the production costs vary among the member states. A directive that would harmonize the differences in national legislation on the production methods of foie gras, would therefore indeed contribute to the elimination of distortion of competition. (art. 114 VWEU & par. 95 HvJ EU Tobacco Advertising)

2. No, there are also the General Principles of Union’s law that must be checked. Maybe these contain animal rights. Thus, the ECFR is not the only EU source against which the directive can be checked. It can also be checked against other EU legal sources. All EU legislation MUST also comply with the General principles of EU law and with other provisions in the Treaties (primary law) such as art. 13 TFEU. After the adoption of the EU directive on foie gras, a lot of foie gras enters the EU internal market that is imported from China. This Chinese foie gras is produced under circumstances that are even worse than those under which foie gras was produced in France and Poland prior to the adoption of the EU directive. The Danish Parliament asked the Danish Government to impose very high customs duties on such Chines foie gras upon entry into the Danish market.

3. EU Member States cannot impose or modify customs duties. The European Union has exclusive competence in the area of customs union (Art. 3(1)(a)TFEU). As a consequence, Member States are not able to legislate any more in this area.(art. 2(1)TFEU). The customs union involves the prohibition of customs duties between Members States, and the establishment of a Common Customs Tariffs for products originating from third countries (Art. 28 TFEU). The Danish government will therefore explain its Parliament that it has no competence to impose customs duties on Chinese products.

Part A: Multiple Choice Questions - set 2

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 - set 2

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 - set 2

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 - set 2

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).

Multiple Choice Questions - set 3

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.

Answers - set 3

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

Open Questions - set 3

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 - set 3

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.