Spring 2010 Archive
This is the page for archived assignments, questions, and comments for the Spring 2010 semester.
There will be a review session on Wednesday May 5 at 6.30 pm in Room F302.
April 9: Here is a link to the Charter of Fundamental Rights of the European Union.
WEEK 14: April 19-23
On Wednesday we will finish discussing Materials Part 5: Challenges to EU Acts. On Friday we will review the themes of the course.
Here are some past exams:
Spring 2006 Exam (Notes on Spring 2006 exam)
Spring 2005 Exam (Notes on Spring 2005 exam)
April 23: Here are some Notes on the Paper Assignment.
WEEK 13: April 12- 16
Please read Materials Part 5: Challenges to EU Acts
WEEK 12: April 5-9
For this week please read the rest of Materials Part 4: Free Movement of Goods.
Here is the paper assignment (also here):
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.
Explain these two paragraphs of the Advocate General’s opinion, and how the Court of Justice’s judgment in the case differs from this “current line of case law”. In your paper please also explain, with reasons, how you think the Court of Justice should have decided the case.
Please submit your paper by Friday 9 April to my assistant, Adoracion Carrillo (G 388, acarrillo@law.miami.edu), using your assigned grading number.
WEEK 11: March 29 – April 2
This week we will begin discussing Materials Part 4: Free Movement of Goods. Please read to page 26 for this week.
WEEK 10: March 22-26
For Wednesday please read these two papers:
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)
How do these papers change your understanding of the cases you have read so far in this course?
Then for Friday we will think about free movement of workers and sport. Please read:
Olympique Lyonnais SASP v Olivier Bernard & Newcastle United FC, Case C-325/08, March 16, 2010;
EU Commission, White Paper on Sport, COM(2007) 391 (Jul. 11, 2007)
Spring Break: March 15-19
Have a good break. I will post the next set of materials by the end of the week.
Here is the paper assignment (also here):
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.
Explain these two paragraphs of the Advocate General’s opinion, and how the Court of Justice’s judgment in the case differs from this “current line of case law”. In your paper please also explain, with reasons, how you think the Court of Justice should have decided the case.
Please submit your paper by Friday 9 April to my assistant, Adoracion Carrillo (G 388, acarrillo@law.miami.edu), using your assigned grading number.
WEEK 9: March 8-12
Please read the rest of Materials Packet 3: Age Discrimination for this week. In the Mangold case the Court of Justice says that a Member State should disapply a rule of national law that conflicts with the general principle of EU law against age discrimination (this would be similar to what we saw happening in Defrenne, except apparently without the need to satisfy the requirements for direct effect). The Advocate General had suggested that the Court should use the (more limited) principle of interpretation which requires that national courts should, as far as possible, interpret domestic law to be consistent with EU law. This principle of interpretation has in earlier decisions been limited by the principle of legal certainty (where a directive is concerned for example the court has said in some cases that a directive should not be a source of criminal liability).
After reading the rest of the packet please look at the rules the UK introduced to implement the directive: The Employment Equality (Age) Regulations 2006. In particular we will focus on the ways in which the UK exercises the discretion allowed to it under the directive.
WEEK 8: March 1-5
This week we will finish Part 2 of the class materials. Then we will look at this Directive:
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).
We are reading this directive for three reasons: first to develop an understanding of what type of an instrument a directive is. We are studying cases which mention directives, so it makes sense to read one. Second, this is the directive at issue in the two cases we will be studying next. And third, we have been thinking about this issue of discretion on the part of the Member States when it comes to implementation, and we will consider this question as we examine the directive. I think that finishing up damages actions and the directive should be enough material for Wednesday.
So, when you read the directive please consider how much discretion the Member States have about how to go about implementing the directive. When are the Member States required to implement the directive? Do you think that the directive would be likely to produce direct effects?
Next we will be working on Materials Packet 3: Age Discrimination. Please read to page 16 of this packet for this week.
WEEK 7: February 22-26
We have seen (in Part 2 of the class materials which we are in the process of working through) how the doctrine of direct effect developed. Although there are hints in Van Gend en Loos that the doctrine was potentially far reaching, we can see that the Court of Justice developed the doctrine incrementally (beginning with just negative obligations, then recognizing positive obligations could produce direct effects and even against non-state entities, then holding that Art. 157 could produce direct effects not just with respect to direct discrimination but also with respect to indirect discrimination (or disparate impact). Next we will see how the Court addresses the question of the direct effect of directives. Why do you think that a Treaty provision which expressly imposes obligations on a Member State can be treated as imposing obligations on a private sector employer, but that a directive is not treated as imposing obligations on non-state entities?
The damages action the Court developed in Francovich and later cases helps to fill this gap. This week we will begin where we left off on Friday and finish this packet and then we will look at this Directive:
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).
When you read the directive please consider how much discretion the Member States have about how to go about implementing the directive. When are the Member States required to implement the directive? Do you think that the directive would be likely to produce direct effects?
WEEK 6: February 15-19
February 16: For the avoidance of doubt, we will not have class tomorrow.
FEBRUARY 15 : My husband is in intensive care after emergency surgery. I plan to hold our class on Friday this week and would like you to read the rest of the current packet of materials for that class (although we won’t get through it all). We had 300 spare minutes at the beginning of the semester. Normally I’d use them but it means that we are not yet in the make-up zone.
WEEK 5: February 8-12, 2010
We will only have one class this week, on Wednesday, because of the 3rd DCA visit on Friday. We will start with preliminary references and consider the questions at the end of the first packet about how much legal harmonization is necessary within one market. Then we will begin to learn more about how EU law affects the legal systems of the Member States, focusing on the Court of Justice’s jurisprudence rather than on EU legislative measures. There is a new materials packet: Materials Part 2: The Effect of EU Law. Please read to page 16 of this packet for Wednesday’s class.
WEEK 4: February 1-5, 2010
We will continue working through Materials Part 1: Introduction. Last week we began to notice that judgments of the Court of Justice are constructed differently from judgments of courts in the US. This week we will go over some of the features of EU institutions other than the courts and then we will focus in more detail on the courts.
Feb. 5: Jurisdiction Outline
WEEK 3: January 25-29, 2010
This week we will continue working through Materials Part 1: Introduction. Please read the rest of this packet for this week. We will begin on Wednesday by reviewing the idea of deepening, using the timeline in the appendix and then we will focus on pages 16-27. After that we will review the material on the different institutions. We will be reviewing the material on the Court of Justice and the General Court in more detail than the material on the other institutions. In particular it will be necessary to make sure we understand the differences between enforcement actions, challenges to acts of the EU institutions and preliminary references.
WEEK 2: Jan. 18-22, 2009
On Wednesday we will begin with the question about how much of what we read in the EU 2020 document would likely involve changes to law (rather than, say, an investment of money or some other non-legal mechanism) (EU Commission Working Document, Consultation on the Future “EE 2020” Strategy, COM (2009)647 (Nov. 24, 2009) ). Then we will look briefly at the CAP document (EU Commission, Directorate-General for Agriculture and Rural Development, Why Do We Need a Common Agricultural Policy?, Discussion Paper (Dec. 2009) ).
Here is Materials Part 1: Introduction. For this week please read pages 1-27 of this packet and also look at pages 72-4. In class I plan to go over pages 1-15 first (although we will likely come back to some of this material later as well) then look at pages 72-4 for an overview of the history of the EU, then come back to pages 15-27. 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.
Jan 19: Ms Jeleva withdrew as a nominee for the Commission and the Bulgarian Government announced it would nominate Ms Kristalina Georgieva, currently Vice-President of the World Bank, in her place.
For class on Friday January 15.
Before we begin to look at some of the details of the EU’s institutional structure and law, it’s useful to begin to get a broader picture of the EU. So, we are beginning by looking at how the EU institutions describe what they are doing, and how they are trying to build connections with and support from EU citizens. Now please look at this eutube video, which outlines some of the important developments over the EU’s first 50 years (there will be an outline of some of this history in the materials packet for next week). Whereas the EU and you material we are looking at first focuses on the relationship between the EU and its citizens, this video focuses to a large extent on relations between the EU and the rest of the world:
Please also read the following two documents:
1. EU Commission Working Document, Consultation on the Future “EE 2020” Strategy, COM (2009)647 (Nov. 24, 2009)
2. EU Commission, Directorate-General for Agriculture and Rural Development, Why Do We Need a Common Agricultural Policy?, Discussion Paper (Dec. 2009) (there is some basic information about the Common Agricultural Policy here)
Both of these documents are produced by the Commission which in many ways functions as the executive branch of the EU. The first document is a consultation document which invites feedback from other EU institutions and from “stakeholders” whereas the second is described as a discussion paper. Both documents deal with problems facing the EU and with how to develop policies to address those problems.
What problems do the documents identify? To what extent do you think the problems are worse or better because the EU combines a number of different Member States? What do the documents tell us about the advantages or difficulties associated with combining many different Member States to develop policy? Do you get a sense from these documents of the role of law in the achievement of policy in the EU?
The Commission’s web pages state that :
The Common Agricultural Policy, or CAP, is the European Union policy of which the overall objectives are to ensure a fair standard of living for farmers and to provide a stable and safe food supply at affordable prices for consumers.
It has evolved a lot since it began in 1962. Today, its priorities are to:
* ensure food quality and safety
* protect the environment and animal welfare
* make European Union farmers competitive globally without distorting world trade
* preserve rural communities and boost their dynamism and sustainability.
The reforms of the CAP conducted over the last years reflect a clear political choice:
Continue support for EU agriculture in a manner that meets citizens’, taxpayers’ and consumer needs and expectations and that does not distort world trade.
This is how the US Department of Agriculture describes its position (in its Performance and Accountability Report for 2008:
The Department of Agriculture (USDA) is a diverse and complex organization with programs that touch the lives of all Americans every day. More than 100,000 employees deliver more than $96.5 billion in public services through USDA’s more than 300 programs worldwide, leveraging an extensive network of Federal, State, and local cooperators.
Founded by President Abraham Lincoln in 1862, when more than half of the Nation’s population lived and worked on farms, USDA’s role has evolved with the economy. Today, USDA improves the Nation’s economy and quality of life by:
– Enhancing economic opportunities for U.S. farmers and ranchers;
– Ensuring a safe, affordable, nutritious, and accessible food supply;
– Caring for public lands and helping people care for private lands;
– Supporting the sound, sustainable development of rural communities;
– Expanding global markets for agricultural and forest products and services; and
– Working to reduce hunger and improve America’s health through good nutrition.
Addressing these timeless concerns in the modern era presents its share of challenges. America’s food and fiber producers operate in a global, technologically advanced, rapidly diversifying, and highly competitive business environment driven by sophisticated consumers.
This report provides information on USDA’s core performance measures as described in its Strategic Plan for FY 2005-2010. They are:
– To enhance international competitiveness of American agriculture;
– To enhance the competitiveness and sustainability of rural and farm economies;
– To support increased economic opportunities and improved quality of life in rural
America;
– To enhance protection and safety of the Nation’s agriculture and food supply;
– To improve the Nation’s nutrition and health; and
– To protect and enhance the Nation’s natural resource base and environment.
In a recent paper on food policy the UK Government stated:
This is a UK Government strategy. Many aspects of food policy are devolved. There are separate food policy arrangements in Scotland, Wales and Northern Ireland and we can learn from each other. We are working with the Devolved Administrations to ensure that as the UK, we share a common understanding of the future of food policy and can collaborate whenever it makes sense to do so.
As members of the European Union, the UK food sector benefits from being part of the single market. It also means much of our food policy is influenced by EU legislation. And as the biggest trading block in the world, the EU is a powerful figure on the international stage.
EU engagement will therefore continue to be a priority, particularly in emphasising the importance of integrated food policy that meets the needs of Europe’s citizens, and enables a competitive and sustainable food system that supports global food security.
Beyond Europe we will continue to ensure that food security, including the food security of developing countries is given the highest international attention.
This illustrates that there are a number of different levels at which food policy must be developed.
For the first class:
Please begin by reviewing the European Commission’s web pages on “Europe and You in 2009” (subtitled “a snapshot of EU achievements”). These pages are one component of the EU’s public relations efforts, primarily directed at EU citizens (although the EU also engages in public relations management in the US, for example advertising on NPR and supporting educational programs in the US, including the UM/FIU EU Center). The EU has a channel on youtube.
The EU’s website has links to a huge amount of information on the EU, from press releases to official documents and including some useful background information.
As you read the Europe and You material, notice that the EU is involved in policy-making in a wide range of areas. You will note that the web pages link to a number of different types of material: for example, there’s a link to a regulation on mobile phones (this is the equivalent of a statute), and to a Communication from the Commission on the financial crisis (this is a policy document which does not have any binding effect). I’d like you to take a quick look at these two documents please, but you don’t need to click through all the links.
This is a public relations exercise (note the pretty pictures), but some of the linked content is very complex (e.g. the two documents mentioned above). The pages invite readers to vote on which of the identified achievements was most important. What do you think? If you were an EU citizen are these the sorts of things you would expect the EU to be doing? What do you think is missing?
Update Jan. 11, 2009: As of yesterday there’s a new eutube video on this topic:
Comments:
NextGen Internet Law » Negative buzz prompts right-to-forget law – January 11, 2010 : […] doing some digging for my class on the law of the European Union, I came across this rather interesting BBC article about a proposed law in France that would give […]
mcappell – January 27, 2010: Wow. I just looked at my ‘Internet Profile’ on Google and was quite surprised at what came up; I would definitely not object to having some of that information removed. I think the idea is great and that there is amazing potential for a company like this in the future. The EU as an institution appears to be miles ahead of any other organization in helping to protect its citizens from slander and other potentially ‘damaging’ information.
Lauren_Barnes – March 31, 2010: Some of the free movement of goods cases reminded me of Con Law, particularly the (dormant) commerce clause. In the EU cases, if a charge is deemed discriminatory the court will decide if the charge is for a legitimate member state interest and if it did what was necessary/appropriate and nothing more. Similarly, the dormant commerce clause does not say that discriminatory laws are per se unconstitutional. If a state law is found discriminatory against interstate commerce, the state must prove it was for a legitimate state interest and that no other better non discriminatory alternatives exist.
I am not sure some of the EU cases would have turned out the same way if they were US cases dealing with interstate commerce. For example, the Chewing Gum Case seemed very bizarre to me. The Court somehow justified that unwrapped gum was indeed a public health hazard. The Court even brought up ants in its holding. Could the vending machines not be improved to prevent ants?
Then, on the other hand, US states like New Jersey cannot convince the Supreme Court that serving as America’s dumping grounds for waste is indeed a health hazard.
Perhaps the Court in the Chewing Gum Case was convinced that this charge applied to all states, including Austria, and thus was not as problemsome.
Whatever the Court’s reasoning and understanding, I still do not find these cases surprising. I think this is because I am taking Con Law and the cases in that class interpret the Constitution in every which way they see fit.
Thomas Olsen – April 7, 2010: I agree with Lauren’s comments about the commerce clause and the line of cases we have read in EU. Going along with that idea and the our discussion in class as to why the gov’t would not simply allow consumers to decide whether they want unwrapped or wrapped gum by allowing them to stop purchasing it — I cant help but wonder if it has to do with what is generally associated as the cradle to grave relationship many european countries have with their citizens. It is a bit of a stretch but maybe there is just an inherent cultural understanding in Europe where the govt’s believe they play a larger role in each citizen’s life than the govt here traditionally has.
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