EXAM QUESTIONS FOR STUDENTS OF THE POSTGRADUATE PROGRAMME
“ADVANCED MASTER OF EUROPEAN STUDIES”
ATTENDING THE CLASS 202 “JUDICIAL PROCESS IN THE EU”
EXAM – February 2010
This is a take home exam. That means that you can answer the question of your choice in the
peace and quiet of your home, using the books, articles and internet resources you find
relevant. This does not mean that you can copy/paste sentences you find on Internet.
Whichever source you use, you must respect rules concerning plagiarism, and if you use an
idea which is not your own, you must quote the source.
Take home exam also does not mean that you can consult among each other on the topics of
the exam, or that you may consult any other person as to the answers to be offered. Both types
of described behavior will be severely punished.
Bellow, you will find a hypothetical case and three essay topics. You need to anwer the
questions asked in the hypothetical case and you must answer to ONE essay question. So,
chose one out of the three offered topics.
The answers should be computer typed and should not, altogether, exceed 5 pages (cca 9000
characters). They should be returned by e-mail before Monday, 15 February 2010, at 11.00
a.m. to the following e-mail address: tcapeta@pravo.hr (if, for any reason, this address does
not function well, you can send your replies to: tamara@irmo.hr. The answers received later
that the stated date and time, will not be taken into consideration.
In order to grade your exam the examiner will take into account not only the arguments
presented and your ability to refer to the literature and the case law, but also the structure of
your answer and the general literacy.
GOOD WORK AND GOOD LUCK!!!
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1. Hypothetical case
‘Save turtles’ and others v 'Green Paradise' Ltd.
Green Paradise is company registered in Boxia, Member State of the European Union. In
2008, the company bought a piece of land on the island Sandia, one of Boxian's many islands.
The land is situated on a cliff over one of the most beautiful beaches on the southern part of
the island, offering magnificent view of the beach. The beach is home to Boxian turtle,
endemic type of tiny turtle that lays eggs only at the beaches of Sandia, and several
neighboring islands. In order to protect the turtles, Boxia passed so called 'Turtle regulation',
by which it limited possibilities of use of beaches at the island Sandia. Regulation prohibits
use of the beaches in the southern part of the island for touristic purposes, such as swimming,
sun-bathing and similar, and only allows visits in guided tours.
In spring 2009, Green Paradise obtained the building permit to build a medical touristic resort
at the piece of land it owns since 2008. As soon as the plans for resort were made public,
many inhabitants of the island and several environmental protection organizations protested
with the local government, and required that they revoke the permit. Local government
refused, explaining that the permit was issued in accordance with Boxian laws and local
building plan. The medical centre will not, according to the institution which issued a permit,
endanger turtles’ habitat, as the land at issue is situated 300 meters over the sea level, and the
usage of the beach is prohibited by ‘Turtle regulation’ which binds Green paradise and their
future clients in the same way as any other person.
As protests did not prevent the beginning of construction work, ‘Save turtle’ decided to bring
the issue to the court. This organization, registered as environment protection association,
joined by a number of citizens, sued Green Paradise in the Sandian Municipal Court requiring
the court to prohibit construction work. They also required that, waiting for the final decision,
the decision prohibiting continuation of building is issued as interim measure, basing its
request on the claim that irreparable damage to the environment will be caused if the work is
not prevented.
In the court they relied, among other things, on the EU Directive on the protection of
endangered species, which provided in its article 5 the following:
“Construction work which might affect endangered species cannot start before impact
assessment is conducted by competent authorities.”
Article I of the directive defines endangered species as animals or plants enumerated in
Annex to Directive and any other animal or plant added to the list by Member State by
implementing laws. Boxian turtles are enumerated in the Annex to a Directive.
Final provisions of the Directive envisage that Member States shall designate authorities
competent to conduct impact assessment referred to in Article 5 and notify them to the
European Commission. The Directive was to be transposed by Member States until December
2006. Boxia did not notify any measures by which it transposed a Directive and the
Commission has initiated infringement proceedings in the ECJ in March 2009. This happened
after a two-month deadline left to Boxia for the transposition of Directive left by the
Reasoned Opinion expired.
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In May 2009, Sandian Municipal Court has decided to stay the proceedings and refer to the
Court of Justice following questions for preliminary decision:
1) Does the assessment of the Office for Building Permits of the Local Government that the
endangered species (Boxian turtles) are not endangered by certain construction works fulfill
the requirements of impact assessment conducted by competent authorities envisaged by
Article 5 of the Directive?
The Sandian Court also requested that the question is answered in urgent preliminary ruling
procedure (PPU) given that a request for interim measures requires urgency.
Green Paradise objected the admissibility of the request for preliminary ruling. They,
1) claim that the Court does not have jurisdiction to answer the question in preliminary ruling
as the case before national court is horizontal case, and directives do not have direct effect in
horizontal relations;
2) argue that the Court does not have jurisdiction to answer this question in preliminary ruling
proceedings, as the Commission has earlier introduced before the same Court an action for
failure to fulfill obligations under the Treaties against Boxia, claiming that Boxia has not
properly implemented Directive on the protection of endangered animals. As the issues of two
proceedings overlap, the Court has to decline jurisdiction to answer preliminary question;
3) argue that the Court has no jurisdiction to interpret internal law of a Member State in
preliminary ruling procedure, as required by the national court;
4) claim that the Court cannot use PPU in order to answer the question asked by national
court.
You are ‘Save turtles’ lawyer. Respond to the submissions of Green Paradise.
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2. Essay topics
1. Reform of Preliminary Ruling Procedure
The year is 2020. Croatia is Member of the EU. Intergovernmental Conference was opened in
January, with the aim to agreeing on new amendments to the Founding Treaties, as lastly
amended by the Lisbon Treaty. Two proposals aiming at relieving the European Court of
Justice of its case-load are at the table:
1. Article 267 ToFEU should be amended so that its paragraph 2, empowering national courts
against whose decisions there is a legal remedy, is deleted
2. Article 267, paragraph 3 ToFEU should be amended so as to only empower and not oblige
domestic courts against whose decisions there is no judicial remedy to refer questions of
interpretation of EU law to the ECJ.
You are acting as an advisor in the Cabinet of Croatian Prime Minister. You were asked to
explain to the Prime Minister the ratio of proposed changes, and suggest the position to be
accepted by Croatian Government in relation to the proposed changes. You are asked to
explain reasons for and against proposed changes. Do not forget that Madam Prime Minister
is lawyer by education, and she likes that the relevant case law is quoted when she receives
opinions that involve legal issues.
2. Limits to interpretative obligation
In its case law, the European Court has set certain limits to the obligation of interpretation in
conformity with EU law, imposed on national courts of Member States. Explain which these
limits are, why were they imposed, and how they should be understood.
3. Standing of individuals in direct actions for annulment
The Lisbon Treaty has amended fourth paragraph of Article 263 ToFEU (previously 230
TEC) regulating standing of individuals in direct actions for annulment. Assess these changes
in the light of the recent case law in cases UPA and Jégo Quéré.
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