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Supplementary questions for Seminar 4 (for self-study only)
1) With reference to the judgments in Marshall (1), Costanzo and Foster, assess how the CJEU has expanded the possibility of individuals relying on the direct effect of directives against the public bodies of a member state.
2) Outline the ‘estoppel’ type of reasoning employed by the CJEU in cases such as Becker to justify the vertical direct effect of directives.
3) Read the CJEU judgment and Advocate General’s Opinion in Vaneetveld. Do you think that the CJEU’s analysis in that case was flawed? Why?
4) To what extent are the judgments of the CJEU that have been considered by commentators to provide for ‘incidental’ horizontal effects of certain EU directives (e.g. CIA Security) compatible with the Court’s orthodox position regarding the legal effects of directives between private persons?
5) Consider the CJEU judgments in Mangold and Kücükdeveci. To what extent have these cases had an impact on the debate about direct effect of EU directives?
6) To what extent does the principle of state liability provide an effective solution to the problem of limits placed by the CJEU on the extent to which individuals may enforce EU directives against each other?
1) Case problem: Chlorination of Swimming Pools – Version 2
Assume that the hypothetical EU Chlorine Directive 2012/1 mentioned in the case problem for Seminar question 4 above exists. In addition, assume that the following facts and national legislation exist.
To date, EU member state Z has not taken any steps to ensure that chlorination of its swimming pools is banned as required by the EU Chlorine Directive 2012/1. Member state Z has adopted certain national legislation for the purpose of regulating the cleaning of swimming pools, namely the 1994 Health and Safety (Swimming Pool) Regulations. Section 1 of the 1994 Regulations provides:
‘It is the duty of proprietors of swimming pools to ensure that the operation of their swimming pools does not endanger the safety of or harm persons. Persons injured as a result of a breach of this duty are entitled to receive due compensation from the proprietor through the civil courts.’
Section 2 of the 1994 Regulations stipulate that the member state’s Health Ministry may lay down guidelines on details for operational safety. Member state Z’s Ministry of Health established guidelines in 1995, which contain recommendations on how much chlorine should be used as a means of cleaning swimming pools. However, the ministerial guidelines have not been updated so as to be in line with the requirements of the Chlorine Directive.
Sealion swimming pool is an indoor swimming pool situated in Redtown, a town located within Member State Z. The pool is owned by FishBowl Ltd, a private leisure company. Chlorine is used by the company to clean the swimming pool, in accordance with the 1995 ministerial guidelines. Sunita has been off sick from work since 1 August 2013, suffering from respiratory problems. Medical tests have revealed that her illness was most probably caused by the inhalation of chlorine fumes of the type emitted from Sealion swimming pool.
Advise Sunita as to whether she may be able to rely upon the Chlorine Directive in order to be able to obtain compensation in respect of her illness. (Consider, in particular, the doctrine of indirect effect as well as state liability).
Seminar 5 questions for seminar group discussion and an oral presentation
1) What has been the contribution of the CJEU judgments in Dassonville and Keck and Mithouard in relation to the definition of measures having effect equivalent to a quantitative restriction on imports? Why has Keck and Mithouard been criticised in some quarters? How has the Court responded to this criticism?
2) ORAL ASSESSMENT QUESTION
Joint presentation by students to be given on the legal significance of the judgment of the CJEU in:
Case 120/78 Rewe-Zentral AG (Cassis de Dijon)  ECR 649,  3 CMLR 494.
Presenters are referred to the note on p2 of this LW593 Seminar Workbook and the information contained in sections 6.4 and 7.5 of the LW593 Module Outline.
Note: The above judgment contains references to former EU treaty provisions whose numbering has since been amended. It refers to various provisions of the former Treaty of Rome 1957 (EEC Treaty), notably Arts 30 and 37 EEC. These provisions have now been replaced by Arts 34 and 37 TFEU respectively. (Blackstone’s EU Treaties & Legislation contains tables of equivalences.)
3) i) Explain how the ‘mandatory requirements’ defence works in relation to Art 34
TFEU. Which kinds of public interest grounds have been accepted by the CJEU
as ‘mandatory requirements’?
ii) How do these ‘mandatory requirements’ relate to the derogation clause in Art 36
4) Case problem: Snack foods
Assume the following facts are true.
The government of member state A of the European Union estimates that 30% of children aged between 2-15 years of age living in member state A are obese. Concerned to reduce the level in obesity levels amongst children, member state A’s government notifies the European Commission of its intention to adopt the following national legislative measures in relation to the sale of snack foods and soft drinks, as part of its strategy to enhance children’s health:
i) a ban on the sale or advertising of confectionery, soft drinks as well as salted and processed snack foods within the immediate vicinity of shop tills in supermarkets and within 200 metres of any school premises; and
ii) a requirement that all three of the following labels be affixed prominently to the packaging of all confectionery, salted and processed snack foods and soft drinks containing a high sugar, salt and/or fat content:
(1) a large red warning triangle inserted with an exclamation mark
(2) a prominent label stating in emboldened capital letters that ‘WARNING! EXCESSIVE EATING OF SUGARY, SALTY OR FATTY SNACKS IS BAD FOR YOUR HEALTH’
(3) a label providing consumers with information about the maximum recommended daily consumption levels of the particular product for children, in accordance with guidelines on the maximum recommended daily intake by consumers of sugar, salt and fat set out by the Health Ministry of member state A.
iii) failure by persons producing, importing or selling goods in member state A to adhere to the requirements mentioned in (i) and (ii) above will constitute a criminal offence, with a maximum penalty of up to £20,000 fine and/or six months’ imprisonment or community service.
Advise the European Commission whether member state A’s draft legislative measures are in conformity with EU law on the free movement of goods.
Supplementary questions for Seminar 5 (for self-study only)
1) How does Art 34 TFEU fit into the overall scheme of EU law on the free movement of goods? What are the other relevant treaty provisions on the free movement of goods?
2) Give examples of distinctly and indistinctly applicable national measures from the case-law of the CJEU in relation to Art 34 TFEU.
3) Does Art 34 TFEU have horizontal direct effect? To what extent does the judgment in Commission v France (Spanish Strawberries) address the activities of private persons that conflict with the requirements of Art 34 TFEU?
4) What is demonstrated by the judgment in Commission v Ireland (Buy Irish) about the origin and nature of the rules that will be caught by Art 34 TFEU? What is demonstrated by Commission v UK (Origin marking)? How would you assess these so-called ‘origin marking’ cases in the light of public concern about ‘foodmiles’ and climate change?
5) Consider the following judgments: Familiapress, De Agostini, Gourmet, Commission v Italy (Motorcycle trailers) and Mickelsson. To what extent are these rulings compatible with the ‘Keck’ formula on measures having equivalent effect, as set out in Keck and Mithouard?
6) What was clarified by the CJEU in Schmidberger?