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EU Spring 2012 archive

This is the page for Caroline Bradley’s Spring 2012 EU law class at the University of Miami. We will meet on Wednesdays and Fridays from 11.00 am to 12.20 pm in A216B. There is no casebook for this class: current assignments and materials appear on this page, course materials are also available from the EU materials page and I periodically archive the material which appears on this page.

Class Policies

REVIEW SESSION I have booked Room F200 from 1.30 pm to 3.30 pm on Wednesday 25 April.

April 24: I will be around on Thursday this week also if you have questions.

I said I would give an indication of themes we have considered during the semester which might turn up in an essay question:
1. The Court of Justice’s approach to interpreting the treaty (teleological interpretation, changing the meaning of treaty provisions over time)
2. Supremacy of EU law (where it comes from, what it means, examples of the implications of supremacy)
3. The role of national courts in the EU system (eg preliminary references, damages actions with respect to national courts’ failures to interpret/implement EU law properly
4. The whole question of how much harmonization of law is necessary and appropriate in the EU (we began the semester with some of these questions and the sport document we finished with in a sense comes back to this).

I will also be available on Monday 23rd April (9.30-2.30) and Tuesday 24th April (9.30 to 3.30) to answer questions. It would be a good idea to email me to make an appointment so everyone doesn’t turn up at once. I am happy to speak to people individually or in small groups.

April 20: Here is my Memo on the Paper Assignment

WEEK 14 – April 16-20: On Wednesday we will start by looking at the Commission Communication on Developing the European Dimension in Sport COM(2011) 12 (Jan. 18, 2011). Then we will discuss the Spring 2010 Exam. Note that we have not covered the material relevant to the second essay question. On Wednesday we will finish the class early so you can fill out the evaluations.

For Friday please look at the following past exams:
Spring 2009 exam
Spring 2007 Exam
Spring 2006 exam (notes on Spring 2006 exam)

Some of the material assigned leading up to these exams was different from the material you have read. This affects essay question 1 on the 2007 exam. Also before the Lisbon Treaty it was harder to establish individual standing to challenge EU acts than it is now, and this issue turned up in the exams. Also in other semesters I have spent time on issues of when state procedural rules conflicted with the requirements of supremacy of EU law. So the hypotheticals were a bit different from what you will get. My aim will be to give you an exam that reflects what we did in class.

WEEK 13- April 9-13: On Wednesday we will finish discussing Olympique Lyonnais SASP v Olivier Bernard & Newcastle United FC and International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP we will also discuss Ioannis Lianos & Damien Gerard, Shifting Narratives in European Economic Integration: Trade in Services, Pluralism and Trust. We will also look at Arts 101 and 102 TFEU so you have some idea of EU competition law.

Here are the Notes on Art 34 TFEU and Horizontal Direct Effect I distributed on Friday. Also Arts 101 and 102 TFEU.

For Friday please read the Commission Communication on Developing the European Dimension in Sport COM(2011) 12 (Jan. 18, 2011)

WEEK 12 – Apr. 2-6: On Wednesday we will finish discussing Materials Part 4: Free Movement of Goods. For Wednesday please also read:
1. the Advocate General’s opinion in Frabo SpA. By chance this opinion (published on March 28 2012) relates to the question of the extent to which the free movement provisions of the TFEU produce horizontal direct effects;
2. Olympique Lyonnais SASP v Olivier Bernard & Newcastle United FC, Case C-325/08, March 16, 2010 (cited in the Advocate General’s opinion)
3. International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP, Case C-438/05 (Dec. 11, 2007) (cited in the Advocate General’s opinion).
These cases will allow us to learn something about free movement of persons and freedom of establishment in the EU.

For Friday please read:

Ioannis Lianos & Damien Gerard, Shifting Narratives in European Economic Integration: Trade in Services, Pluralism and Trust, Law and Governance in Europe Working Paper Series 11/2011 (Feb. 2011)

This is a long paper, but I think it should be possible for you to read much of it more quickly than you read the Court of Justice’s decisions. And rather than focusing on reading a small number of decisions the paper describes the evolution of the law relating to services over a period of time.

Week 11 – Mar. 26-30: Next week we will finish discussing Materials Part 4: Free Movement of Goods. I have asked whether our classroom will be available to extend the class for 25 minutes on March 30, April 13 and April 20. This would cover our need to make up the time we lost on Feb. 24.

Mar. 29: You may be interested in the Danish EU Presidency’s Online University; There will be a lecture today on welfare and European economies (live streamed and available subsequently):

Minister of Finance Wolfgang Schäuble (GER) and Minister for Economic Affairs and the Interior Margrethe Vestager (DK) discuss the current state of European welfare in relation to the weakened European economies.

Paper Assignment (and here is the pdf version):

The deadline is Monday March 26 at 4pm. Please deliver a copy of the paper marked with your assigned grading number AND NOT YOUR NAME to my assistant (currently Quita Nimrod who is sitting outside Room 381).
The paper should be typed and no more than 4 pages in length (at approximately 250 words per page).

In the Kücükdeveci Case (Case C-555/07, Jan 19, 2010, Materials Packet 3) Advocate General Bot wrote:

65. In sum, the current line of case-law concerning the effect of directives in proceedings between private parties is as follows. The Court continues to oppose recognition of a horizontal direct effect of directives and seems to consider that the two principal palliatives represented by the obligation to interpret national legislation in conformity with Community law and the liability of the Member States for infringements of Community law are, in most cases, sufficient both to ensure the full effectiveness of directives and to give redress to individuals who consider themselves wronged by conduct amounting to fault on the part of the Member States.
66. The answer to be given to the court making the reference could, in the classic manner, therefore be to refer to the case-law I have just set out and state that the national court is required to use all the tools at its disposal to interpret its national law in accordance with the objective which Directive 2000/78 seeks to achieve and, if it is unable to find such an interpretation, to call upon Ms Kücükdeveci to bring a civil liability action against the Federal Republic of Germany on the basis of the incomplete transposition of the directive.

Write a critical analysis of the Court of Justice’s decision in Kücükdeveci. In your answer, explain how the Court of Justice’s judgment in the case reflects or does not reflect the approach suggested by Advocate General Bot in the paragraphs of his opinion set out above. What are the advantages and disadvantages of the approach the Court of Justice adopted in this case?

Week 10 — Mar. 19-23:
I hope you had a good break.

For Wednesday please read:
Antoine Vauchez, “Integration Through Law”: Contribution to a Socio-History of EU Political Commonsense, EUI, Robert Schuman Centre for Advanced Studies, Working Paper No. 2008/10 (Vauchez 1)

Antoine Vauchez, Embedded Law – Political Sociology of the European Community of Law: Elements of a Renewed Research Agenda, EUI, Robert Schuman Centre for Advanced Studies, Working Paper No. 2007/23 (Vauchez 2)

For this week please also read Materials Part 4: Free Movement of Goods (read to page 13 for Wednesday and to the end for Friday).

Week 8 — Mar. 5-9: On Wednesday we will discuss Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ No. L 303/16 (Dec. 2, 2000). Please also read Materials Part 3: Age Discrimination. For Friday please also read:

Antoine Vauchez, “Integration Through Law”: Contribution to a Socio-History of EU Political Commonsense, EUI, Robert Schuman Centre for Advanced Studies, Working Paper No. 2008/10 (Vauchez 1)

Antoine Vauchez, Embedded Law – Political Sociology of the European Community of Law: Elements of a Renewed Research Agenda, EUI, Robert Schuman Centre for Advanced Studies, Working Paper No. 2007/23 (Vauchez 2)

Here is the paper assignment (and here is the pdf version):

The deadline is Monday March 26 at 4pm. Please deliver a copy of the paper marked with your assigned grading number AND NOT YOUR NAME to my assistant (currently Quita Nimrod who is sitting outside Room 381).
The paper should be typed and no more than 4 pages in length (at approximately 250 words per page).

In the Kücükdeveci Case (Case C-555/07, Jan 19, 2010, Materials Packet 3) Advocate General Bot wrote:

65. In sum, the current line of case-law concerning the effect of directives in proceedings between private parties is as follows. The Court continues to oppose recognition of a horizontal direct effect of directives and seems to consider that the two principal palliatives represented by the obligation to interpret national legislation in conformity with Community law and the liability of the Member States for infringements of Community law are, in most cases, sufficient both to ensure the full effectiveness of directives and to give redress to individuals who consider themselves wronged by conduct amounting to fault on the part of the Member States.
66. The answer to be given to the court making the reference could, in the classic manner, therefore be to refer to the case-law I have just set out and state that the national court is required to use all the tools at its disposal to interpret its national law in accordance with the objective which Directive 2000/78 seeks to achieve and, if it is unable to find such an interpretation, to call upon Ms Kücükdeveci to bring a civil liability action against the Federal Republic of Germany on the basis of the incomplete transposition of the directive.

Write a critical analysis of the Court of Justice’s decision in Kücükdeveci. In your answer, explain how the Court of Justice’s judgment in the case reflects or does not reflect the approach suggested by Advocate General Bot in the paragraphs of his opinion set out above. What are the advantages and disadvantages of the approach the Court of Justice adopted in this case?

Week 7- February 27- Mar.2 For Wednesday please read the rest of EU Materials Part 2: The Effect of EU Law. For Friday please read:
1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ No. L 303/16 (Dec. 2, 2000).
2. Materials Part 3: Age Discrimination.

WEEK 6: Feb 20-24
On February 22 we will have class at our usual time but in Room D201 and our guest speaker will be Ramon Mullerat. Here is the outline for the talk.

On February 24 we will not have class and I will schedule a make-up class. On Friday there is a seminar discussing the state of the European Union at UM.

We agreed to move the deadline for the short paper to Monday March 26.

WEEK 5 – Feb. 13-17: This week we will finish discussing Part 1 of the class materials. Please also read EU Materials Part 2: The Effect of EU Law

Feb. 8: Access to documents rules: Art 2 of Regulation (EC) No 1049/2001 Regarding Public Access to European Parliament, Council and Commission Documents provides:

1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.
2. The institutions may, subject to the same principles, conditions and limits, grant access to documents to any natural or legal person not residing or not having its registered office in a Member State.

So the right applies to residents as well as citizens.

On the judicial independence question the Statute of the Court of Justice provides in Art 18:

No Judge or Advocate-General may take part in the disposal of any case in which he has previously taken part as agent or adviser or has acted for one of the parties, or in which he has been called upon to pronounce as a member of a court or tribunal, of a commission of inquiry or in any other capacity.
If, for some special reason, any Judge or Advocate-General considers that he should not take part in the judgment or examination of a particular case, he shall so inform the President. If, for some special reason, the President considers that any Judge or Advocate-General should not sit or make submissions in a particular case, he shall notify him accordingly.
Any difficulty arising as to the application of this Article shall be settled by decision of the Court of Justice.
A party may not apply for a change in the composition of the Court or of one of its chambers on the grounds of either the nationality of a Judge or the absence from the Court or from the chamber of a Judge of the nationality of that party.

WEEK 4 — Feb. 6-10: For Wednesday please read to page 62 of the first materials packet. We will spend a few minutes at the beginning of class on the Council but most of the class will be on the Court of Justice and General Court. On Friday we will not have class because of the Oral Arguments. At the end of next week I will post the assignments for the following week.

Update Feb 6th: We will have class on Friday at 2 pm in our usual room.

On February 22 we will have class at our usual time but in Room D201 and our guest speaker will be Ramon Mullerat. On February 24 we will not have class and I will schedule a make-up class.

WEEK 3 – Jan 30 – Feb 3: Please read to page 57 of the first materials packet. On Wednesday we will begin where we left off, considering the rationale for harmonisation of the regulation of unfair commercial practices in the EU. We considered how the fact of differences between rules in force in different member states could be seen as impediments to a single market, and I asked whether harmonization was the only way to address these impediments, or whether there might be ways in which the market would adjust. We discussed the idea that harmonization of environmental regulation might be justified by the need to create an internal market (and has been), but you should note that protection of the environment is now an independent basis for regulation (for example materials packet 1 page 21 and this 2010 directive on industrial emissions (you are not required to read this)). The consumer protection provision in Art 169 operates alongside Art 114. We will continue to think about how legal harmonization is justified within the EU on Wednesday next week (and the issue is raised in a slightly different way at the end of this materials packet). A 2010 directive on the protection of animals used for scientific purposes was based on TFEU Article 114.

Here are links to eubusiness stories on the two issues I mentioned in class on Friday Jan. 27: on personal data and privacy and on enforcement with respect to cruelty to hens.

And here is a link to an article which discusses the issue of what happens to the UK’s EU membership if the referendum on Scottish independence results in Scottish independence (the answer is that the other Member States would need to agree to Scotland becoming a member of the EU in its own right and that the rest of the UK would continue the UK’s membership of the EU).

Week 2 – Jan. 23-27: EU Materials Part 1: Introduction and The Development of the EU (Tables). For this week please read to page 28 of this packet and also look at the tables. In class we will begin with an overview of the history of the EU, then come back to pages 15-28. The history of the EU is complex and we could spend an entire semester (at least) on this, but I think for our purposes it makes sense to get some idea of the timelines of widening and deepening which can help to provide some of the context for the cases we will read. You may find it helpful to read this outline of the history of the EU on the Europa website.

Have a good weekend.

Jan. 25: A joint project of 6 European newspapers examines the EU.

For the first class, please begin by watching these two videos:

They are available from the EU’s youtube channel, which is a part of the EU’s public relations activities. What do the videos tell you about the EU?

The EU’s website has links to a huge amount of information on the EU, from press releases to official documents to links to the EU material on youtube and to the EU’s twitter feed and facebook page.

2012 is the European Year of Active Ageing and Solidarity between Generations. A glance at one of the Commission’s news web pages shows something about the range of issues the EU deals with.

Also for the first class please read:

Charles Grant, Nothing to Celebrate (Jan. 4, 2012)

Commission Work Programme 2012: Delivering European Renewal, COM(2011) 777 (Nov. 15, 2011)

After the first class we will begin to read the following document:

EU Materials Part 1: Introduction (read this with The Development of the EU (Tables))

For class on Friday January 20th please read pages 1-15 of the introductory materials (and look at the tables on the development of the EU). But first please read Martin Schulz’s speech on being elected as President of the EU Parliament

2010 Materials are here