Final Examination


W.B. Fisch Winter 2001

General Instructions

1. This is a 24-hour take-home examination, consisting of six questions. It is written as the equivalent of a 3-hour timed examination. A suggested time is assigned to each question, reflecting its relative value for grading purposes:

I .................................. 20 Minutes

II ................................. 50 Minutes

III ................................ 30 Minutes

IV ............................... 30 Minutes

V ................................. 30 Minutes

VI ................................20 Minutes

You may commence the test by picking it up in Room 203 at any time during business days of the examination period May 7-18, 2001.

2. Question V consists of 5 short answer questions, each of which requires (i) an answer and (ii) a brief explanation, preferably in 1/4 of a blue-book page or less. The following is suggested to illustrate the form of answer only:

"Judgment for Ireland. The deadline for compliance with the directive has not yet passed, and Ireland is not yet in violation of Community law."

3. Unless the context clearly indicates otherwise, your answers should be based on the pre-Amsterdam text of the EU and Community treaties, as set forth in your 1998 documentary supplement.

4. You must return your answers and this examination sheet to the faculty secretaries in Room 203, no later than 24 hours after you receive it from them. Make sure when you pick it up that they will be available in 203 to receive the completed exam within 24 hours. They will record the time of pickup and the time of return for each student.

5. You may use any materials acquired or prepared by you for the course, including the coursebook and classnotes. You may not use library materials or electronic data bases.

6. Please write/type/print on one side of the bluebook or typed/printed page only.

7. There are 9 pages in this examination, including this cover sheet. Make sure you have the complete test.


(20 Minutes)

Jacques Offenbach is a 21-year-old citizen of France. He applies for and is granted admission to a 4-year program in sport physiology at the University of Louvain, Belgium. Under Belgian law, he is given a student residence permit which allows him to reside in Belgium while pursuing his course of study, provided that he demonstrates that he has the financial means to support himself. Initially he shows that his parents will be supporting him. The law specifically requires that the right to remain a resident is conditioned on continuation not only of the academic program but also of his ability to support himself without becoming a public charge.

After one year his mother becomes ill and his father loses his job, but Jacques is able to get a variety of part-time and occasional jobs which enable him to support himself while continuing as a student. At the end of the third year, however, he applies to the local Belgian welfare office for a basic living support grant, showing that his parents are still unable to support him and that the fourth and final year of his academic program requires so much extra work that he will be unable to take outside jobs. On recommendation of the local caseworker Jacques receives the grant. Two months later, however, a routine review of his case by a supervisor results in the withdrawal of the grant on the ground that he is a registered student of non-Belgian nationality and therefore not eligible for such a living support grant.

Jacques challenges the withdrawal of the grant in Belgian administrative court, which in turn refers to the European Court of Justice the question of whether the denial of such a grant to a citizen of another EU Member State violates Community law. How should the Court answer this question? Explain.


(50 Minutes)

Under Swedish law an unlawful discrimination based on gender is presumed whenever an employer selects a person of one gender for hiring or promotion over a person of the other gender although the person not selected is better qualified for the position or promotion. The presumption does not apply, however, if (among other things) the decision is made in furtherance of the goal of gender equality in the workplace. The law governing higher education provides that academic staff are to be hired and promoted on the basis of skills and accomplishments of a scientific, artistic, pedagogical or administrative character relevant to the position; the applicant's capacity to carry on and disseminate the results of research; and relevant policies concerning equality of opportunity, social security and job development.

In 1999 the government determined that progress toward gender equality in the academic staff of higher education institutions -- specifically, in the proportion of women to men in the professoriate -- was unacceptably slow, and adopted a decree creating 30 new positions in certain state universities. These positions were designated as affirmative action positions, and the universities were required to give priority to candidates of the underrepresented sex over candidates of the opposite sex, unless the difference in their qualifications is so great as to violate the principle of merit in public employment.

Pursuant to this decree State University X was given a position to fill in the natural sciences. Its traditional process for filling open positions was to name a search committee of faculty members which would select a short list of acceptable candidates and -- by majority vote -- recommend one of them to the Rector of the University. The rector is not formally bound by the recommendation but normally follows it. For this new position the 8-member search committee took two votes on the four candidates deemed to be acceptable: the first was based on scientific qualifications alone, and the second took the affirmative action goal of the position into account. On the first vote Daniel Björn got 5 votes and Charlotte Alfredsson got 3; on the second, Alfredsson got 6 votes and Björn got 2. Both of the other candidates were women. The committee then recommended to the Rector that Alfredsson be hired, specifically and unanimously finding that the differences in qualification between Alfredsson and Björn were not so great as to violate the principle of merit. The Rector followed that recommendation.

Björn now files a complaint with Sweden's Grievance Committee for Higher Education (GCHE), claiming that he was wrongfully denied the position at State University X. The GCHE was established by statute to hear complaints arising out of made by public higher education institutions concerning faculty. It has 8 members, including a chair and vice chair both of whom must be current or former career judges; of the 6 other members, 3 must be lawyers. All are appointed by the national government. The statute encourages but does not require a majority of the GCHE to be current or former members of public university faculties. The committee reviews each complaint, hears from all sides, and makes a final decision on the grievance which is not subject to review by any court or other government agency.

The GCHE, on receiving Björn's complaint and preliminary responses from the Rector, suspends its proceeding and requests a preliminary ruling from the European Court of Justice on the following question (introduced by a description of the situation): "Was the decision to appoint Charlotte Alfredsson rather than Daniel Björn consistent with European Community law?"

How should the ECJ respond to this request? Explain.


(30 Minutes)

Germany has long forbidden the practice of "hiring out" or "temping" workers -- that is, of supplying workers to enterprises for particular jobs, by a separate company which remains the direct employer of the workers so supplied -- in the construction industry. It has done so because the construction industry is particularly prone to abusive hiring practices which deprive workers of adequate wages and benefits which are generally provided for under industry-wide collective bargaining agreements. Such agreements are encouraged and facilitated by German labor relations laws with a view toward achieving uniform wages and benefits for all workers in Germany in any particular sector of the economy.

In response to complaints from German construction enterprises that the prohibition prevents them from adopting the most rational division of function within the industry (in particular, by requiring them to maintain a staff of workers large enough to meet their largest needs, even if they are not needed all the time), the German government decides to modify its rule. It adopts an amendment to the law, which specifies that a prohibited "hiring out" does not occur when the supplier and the purchaser are both members of a construction consortium and all members of the consortium are subject to the same industry-wide collective bargaining agreements, or where both supplier and purchaser are (otherwise unrelated) construction enterprises which are subject to such agreements.

The European Commission receives complaints about this new law from French, Dutch and Italian enterprises wishing to supply construction workers for German jobs. It initiates proceedings against Germany before the ECJ, alleging that the new German law is inconsistent with its obligations under the EC treaty. How should the Court rule on this complaint? Explain.


(30 Minutes)

An EU Member State (MS1) has adopted a comprehensive program to combat alcoholism, which includes a variety of publicity initiatives designed to discourage consumption, treatment centers, and other government spending measures. It also includes a state monopoly on the retail sale of packaged alcoholic beverages, so that the consumer can only obtain them at state-owned stores. Alcoholic beverages can be sold by the drink only in restaurants and other establishments which also serve food. Advertising of alcoholic beverages which encourages consumption is prohibited in all media. All advertising of such beverages on radio and television is prohibited. Such advertising is also prohibited in all print periodicals except those directed to manufacturers, distributors and restaurants, and those sold at the point of sale of the beverages themselves. It appears that the state monopoly in fact choses to sell only its own magazine at the state-owned stores. The general prohibition against encouraging consumption has been held to apply to all billboard ads as well as to material mailed directly to potential consumers.

General Publishers SA, a company with its headquarters in MS1, publishes a magazine called Gourmet, which publishes articles, information and advertising relating to food and drink products. 90% of its subscribers are traders, manufacturers or retailers of such products, and 10% are private individuals. It runs 2 ads in its most recent subscription issue which promote the sale of alcoholic beverages; both happen to promote beverages from other Member States. MS1's liquor control agency institutes proceedings under the above-mentioned law to enjoin GA from publishing these ads. The national court in which the proceedings are instituted refers to the European Court of Justice the question, raised by GA's defense, whether the law in question is inconsistent with MS1's obligations under EU law. How should the ECJ rule on this question? Explain.


(Short Answer Questions)

(30 Minutes)

1. The French parliament enacts a law making it a crime for any person who is not a member of the French bar to give advice on French law to persons located in France. Acropolis, a Greek lawyer not a member of the French bar, is charged in a French criminal court with violating this law. His defense is that the law is invalid because it is inconsistent with Community law. The French court sustains this defense, declaring the law void. Did the court err?

2. The two largest pharmaceutical manufacturers in the EU agree to merge into a single company. Assume that under EU competition law, such a merger is presumptively forbidden, but that the Commission is empowered to approve it if it would be beneficial for the EU economy as a whole. The parties notify the Commission of their intended merger and request approval, supporting their request with comprehensive data designed to show beneficial effects of the merger on the competitive position of the EU in the global economy. The Commissioners are persuaded, on the basis of the material submitted, that the merger would in fact be harmful to the EU economy. Accordingly, they present the following response to the companies' request: "The request of companies A and B for approval of their merger is denied." Did the Commission act properly?

3. Austria enacts a law requiring the national ministry of education to make the employment decision for all public primary and secondary school teachers in the country, and to assign them to particular local schools to fill vacancies which local school districts notify to the ministry. Local school districts, which had been responsible for hiring all of their personnel, retain control over non-teaching staff. A disgruntled school district complains to the European Commission, which issues a "reasoned opinion" that this new Austrian law violates the principle of subsidiarity as articulated in Article 1 of the Treaty on European Union. When Austria fails to respond to this opinion, the Commission institutes proceedings against Austria in the ECJ pursuant to ex art. 169 EC. How should the Court rule on this proceeding?

4. The Council adopts a regulation prohibiting the importation of apples from the United States. Acme Apples, Ltd., a UK company engaged in the importation of apples into the UK from the US and other non-EU countries, applies for a permit to import apples from the US, which is denied on the basis of the regulation. Acme now challenges the denial of the permit in a UK court, on the ground that the regulation forbidding such importation violates the General Agreement on Tariffs and Trade. The UK court in turn refers to the ECJ the question whether the regulation is inconsistent with the GATT, and if so whether the UK court must refuse to apply the regulation. How should the Court rule on this request?

5. Scents, Ltd., is a UK manufacturer of perfumes. It develops and produces a perfume called "Duello", and obtains UK trademark rights for that name. The product is sold exclusively in the UK, and Scents does not obtain trademarks rights to the name in any other country. Arno Chemicals SA is an Italian manufacturer of pest control products. It produces an insect repellent for application to the human skin which it calls "Duello". It has acquired trademark rights to that name in Italy and several other countries. A UK pest control products distributor purchases a large quantity of Arno's "Duello" for importation into the UK. Scents seeks to prevent the importation, on the ground that the product will infringe on its trademark. Is such relief consistent with Community law?



(20 Minutes)

Discuss the role and legal effects of directives in the EU system, and compare them with the mechanisms available in the U.S. constitutional system, if any, by which analogous effects can be achieved.