Auteur: H. Wevers
http://www.basicguidetointernationalbusinesslaw.noordhoff.nl/
isbn: 978-90-01-81554-7
© 2013 Noordhoff Uitgevers bv
Answers to the Exercises of Chapter 6
– The free movement of goods, persons, services and capital
Exercise 6.1
Question 1
Ground 1 is a ban and in itself prohibited under Art. 34 TFEU. Justification for
this ban lies in Art. 36 TFEU: public morality justifies this measure. Ground 1
is in order.
Question 2
Ground 2 is a measure having equivalent effect. Case Dassonville holds the
definition of m.h.e.e.: all trading rules enacted by Member States, which are
capable of hindering (…) intra community trade. It is not a ban or a quota
because one is allowed to import the etchings, but it is not possible to sell the
etchings in the UK because of some chemical used in the etchings. In conflict
with the free movement of goods, Art. 34. The justification for this m.h.e.e.
must be found in the rule of reason of the case Cassis de Dijon, as this
measure applies to both foreign and domestic goods and for that reason can
be called an indistinctly applicable measure. Conditions to apply the rule of
reason:
1. no EC regulation on this subject: not mentioned in the case so condition
fulfilled
2. indistinctly applicable m.h.e.e.: fulfilled
3. UK legislation is proportional: the UK legislation on this point seems
reasonable enough
4. UK legislation must also be necessary: reasons of public health can justify
this restriction on the free movement of goods as long as the UK
government proves that this chemical is dangerous to public health. So it
depends whether or not Ground 2 is justified yes or no.
Question 3
Ground 3 is a measure having equivalent effect. Look into the case
Dassonville for the criterion: it is not a ban or a quota because one is allowed
to import the etchings, as long as one has a licence. In conflict with the free
movement of goods, Art. 34 TFEU. The justification for this should be in Art.
36 TFEU but there is no ground to be found that justifies this licence. Ground
3 not in order.
Exercise 6.2
Question 1
Art. 36 TFEU: protection of health and life of humans justifies this restriction
on the free movement of goods in case the German government can prove
that these preservatives are indeed dangerous to human health.
A Basic Guide to International Business Law
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Auteur: H. Wevers
http://www.basicguidetointernationalbusinesslaw.noordhoff.nl/
isbn: 978-90-01-81554-7
© 2013 Noordhoff Uitgevers bv
Question 2
This is a measure having equivalent effect. Case Dassonville holds the
definition of m.h.e.e. (All trading rules enacted by Member States …). It is not
a ban or a quota because one is allowed to import the yoghurt and sell it, but
one cannot sell it as ‘yoghurt’. In conflict with the free movement of goods, Art.
34 TFEU. The justification for this m.h.e.e. must be found in the rule of reason
of the case Cassis de Dijon, as this measure applies to both foreign and
domestic goods and for that reason can be called an indistinctly applicable
measure. Conditions to apply the rule of reason:
1. no EC regulation on this subject: not mentioned in the case so this
condition is fulfilled
2. indistinctly applicable m.h.e.e.: fulfilled
3. German legislation is proportional: the German legislation on this point
seems not reasonable
4. German legislation must also be necessary: no reasons to justify this
restriction on the free movement of goods.
German legislation is to be cancelled at this point.
Question 3
M.h.e.e. are administrative measures that restrict the free movement of
goods. This is a distinctly applicable m.h.e.e. as it applies to imports only. So
use Art. 36 TFEU to find a justification for this restriction of the free movement
of goods. The checks can be justified on health reasons. The fees for parking
and inspection are not to be paid by Best Breakfast, not justified by Art. 36
TFEU.
Exercise 6.3
Question 1
Art. 267 TFEU applies; the conditions for a national court of law to address
the ECJ for a preliminary ruling are:
• Court and tribunal: Dutch court of law is a normal court of law;
• Genuine issue of EC law: there is a real conflict between Luxemburg and
the EC i.e. the lawyer and Luxemburg involving aspects of EC law; this
condition is from the case Foglia – Novello;
• Neccesity of the ruling: none of exceptions mentioned by the case CILFIT
apply and therefore the preliminary ruling must be necessary to enable the
national court of law to give judgement in the case pending before it;
• No remedy under national law: court of law asks for a preliminary ruling
voluntarily so this condition on how to force the national court to address
the Eurropean Court of Justice seems no longer relevant.
The effect of the preliminary ruling is that national proceedings are
suspended; national court has to live up to the preliminary ruling of the ECJ
Question 2
Article 45 TFEU applies here: freedom of movement for workers. A migrant
lawyer is a worker as his work serves an economic purpose. However: Article
A Basic Guide to International Business Law
2
Auteur: H. Wevers
http://www.basicguidetointernationalbusinesslaw.noordhoff.nl/
isbn: 978-90-01-81554-7
© 2013 Noordhoff Uitgevers bv
49 TFEU could apply too: freedom of establishment as a self-employed
person, depending on how the lawyer pursues his professional activities.
Question 3
Member States should apply the same rules to nationals and migrant workers
from other Member States, regarding the employment and its conditions, to
workers (Article 45 TFEU).
Question 4
In case the EC issued a Regulation or a Directive on the mutual recognition of
diplomas of lawyers. It is not up to Luxemburg to assess whether these rules
of EC law safeguard the interests of consumers in Luxemburg properly – it is
not allowed, contrary to EC law, to impose extra rules on migrant lawyers who
seek employment as a lawyer in Luxemburg. EC law takes precedence over
the laws of the Member States.
Question 6.4
Answers to the multiple-choice questions:
1. = A
2. = C
3. = B
4. = D
5. = B
6. = C
7. = C
Answer to Exercise 6.5
Question 1
Article 18 TFEU prohibits any discrimination on grounds of nationality.
Question 2
This Member State is liable to the EC and possibly liable to nationals of that
Member State, in case their nationals suffered damage as a result of the nonimplementation of the Directive (case Francovich).
Question 3
Article 45, 4 TFEU – the freedom of movement for workers does not apply to
workers in the public service.
Question 4
The principal function of a notary, as a public official, is to authenticate legal
instruments. A notary verifies that all the conditions laid down by law for the
drawing up of the instrument are satisfied and that the parties have legal
personality and capacity to enter into legal transactions. An authentic act also
has enhanced probative force and is enforceable. The instruments that are
authenticated are documents and agreements freely entered into by the
parties. They decide themselves, within the limits laid down by law, the extent
A Basic Guide to International Business Law
3
Auteur: H. Wevers
http://www.basicguidetointernationalbusinesslaw.noordhoff.nl/
isbn: 978-90-01-81554-7
© 2013 Noordhoff Uitgevers bv
of their rights and obligations and choose freely the conditions, which they
wish to be subject to when they produce a document or agreement to the
notary for authentication. The notary’s intervention thus presupposes the prior
existence of an agreement or consensus of the parties. Furthermore, the
notary cannot unilaterally alter the agreement he is called on to authenticate
without first obtaining the consent of the parties. The activity of authentication
entrusted to notaries does not therefore involve a direct and specific
connection with the exercise of official authority. The ECJ finds that the
activities of notaries as currently defined in the Member States in question are
not connected with the exercise of official authority within the meaning of
Article 45 TFEU. Consequently, the nationality condition required by the
legislation of those States for access to the profession of notary constitutes
discrimination on grounds of nationality prohibited by the EC Treaty.
A Basic Guide to International Business Law
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