QUESTIONS UNIT 1

What distinguishes the EU from other international organizations?

The European Union (EU) stands out among international organizations due to its distinctive characteristics and
evolution. Unlike conventional international bodies governed by Public International Law, the EU operates as a
supranational entity, with member states ceding part of their sovereignty. This grants the EU the authority to enact
laws that directly apply to individuals, creating a unique legal order that is not strictly international or domestic.

A pivotal moment in establishing the EU's legal principles was the Van Gend en Loos case, where the European Court
of Justice (ECJ) declared the EU to be a new legal order of international law. This marked a departure from traditional
international law, as EU laws not only impose obligations on individuals but also confer rights directly upon them.
This principle, known as the "principle of direct effect," allows individuals to invoke EU rights before national courts
without the need for specific national legislation.

The supremacy of EU law further distinguishes the EU from other international organizations. EU law takes
precedence over national laws, ensuring uniformity and consistency across member states. This principle was
solidified by the Costa/ENEL case, emphasizing the autonomy of EU law.

The EU's institutional framework, with entities like the European Commission, the European Parliament, and the ECJ,
contributes to its unique legal system. The ECJ plays a crucial role in interpreting and applying EU law, with the
authority to adjudicate disputes between member states and ensure compliance. The EU's financial independence,
with separate budgets from member states, reinforces its autonomy.

The historical overview underscores the gradual progression from economic cooperation, as seen in the formation of
the European Coal and Steel Community, to a highly integrated political and economic union. Milestones such as the
Treaties of Rome, the Maastricht Treaty, and the Lisbon Treaty mark significant steps in shaping the EU's legal and
institutional landscape.

In summary, the EU's distinctiveness lies in its supranational nature, direct legal effect, supremacy of EU law, unique
legal system, robust enforcement mechanisms, financial independence, and the historical evolution towards a
comprehensive political and economic union. These features set the EU apart from conventional international
organizations.

What does “supranational” mean?

"Supranational" refers to a form of governance or authority that exists above the level of individual nations. In the
context of the European Union (EU), being supranational means that the EU has authority and powers that transcend
those of its individual member states. The term implies that the EU operates as a collective entity with the ability to
enact laws, make decisions, and influence the legal landscape of its member states and that it can exercise these
powers independently of the will of any single member state. The supranational nature of the EU is characterized by
the delegation of certain sovereign powers from its member states to the EU as a whole.

How did what is now the EU start out?

The European Union (EU) traces its origins back to the aftermath of World War II, a period marked by the devastation
of the European continent. The collective desire for peace and stability prompted European nations to explore
avenues for closer cooperation. This vision materialized in 1950 with the Schuman Declaration, where the French
Minister of Foreign Affairs, Robert Schuman, proposed the establishment of the European Coal and Steel Community
(ECSC). This community, initially focused on Germany and France, laid the foundation for economic collaboration.

The Treaty of European Coal and Steel Community in 1951 formalized this collaboration, with founding members
including Germany, France, Italy, Belgium, Luxembourg, and the Netherlands. This marked the creation of a common
market for coal and steel. Subsequent treaties, such as the Treaties of Rome in 1957, saw the establishment of the
European Economic Community (EEC) as a customs union and the European Atomic Energy Community (EURATOM)
for nuclear energy. These communities, along with the existing ECSC, led to the formation of what was commonly
referred to as the European Community (EC).

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In 1967, the institutions of the three communities merged, further solidifying the integration process. This period
witnessed the first enlargement in 1973, with the addition of the United Kingdom, Denmark, and Ireland to the
European Community.

A significant turning point came with the Treaty of Maastricht in 1992, which not only marked the creation of the
European Union but also introduced the framework for economic and monetary union. This treaty established three
pillars: the European Communities, common foreign and security policy (CFSP), and cooperation in the field of justice
and home affairs (JHA). The term "European Union" was officially introduced, reflecting a broader scope of
integration.

The subsequent Lisbon Treaty in 2009 further streamlined and consolidated the EU's structure, introducing a uniform
legal framework and enhancing supranationalism across all working fields. This treaty emphasized efficiency and
democratic functioning, ensuring that the EU could effectively address the challenges of the 21st century.

A significant moment of departure occurred in 2020 when the United Kingdom, after a referendum, decided to leave
the EU in a process commonly known as Brexit. This marked a notable shift in the composition of the EU.

Throughout this historical evolution, the EU transformed from an economic cooperation focused on specific sectors,
such as coal and steel, to a multifaceted and supranational entity. The treaties and institutions created over time not
only facilitated economic integration but also established a unique legal order that set the EU apart from traditional
international organizations.

What are the four main decision-making institutions?

The four main decision-making institutions of the European Union are:

1. European Parliament: The Parliament is directly elected by EU citizens and plays a legislative role by passing
EU laws, approving the EU budget, and providing democratic scrutiny of all EU institutions. It also has
supervisory responsibilities, such as electing the Commission President and approving the Commission as a
body.

2. Council of the European Union: The Council represents the governments of member states and shares
legislative and budgetary authority with the European Parliament. It coordinates EU countries' policies,
develops the EU's foreign and security policy, and concludes agreements between the EU and other entities.
The Council operates with different configurations based on policy areas.

3. European Commission: The Commission acts as the EU's executive arm, proposing new laws for adoption by
the Parliament and the Council, enforcing EU law, representing the EU internationally, and managing EU
policies and funding. It is led by a president and consists of commissioners appointed by member states.

4. European Council: Comprising heads of state or government of EU member countries, the European Council
sets the EU's overall direction and political priorities. It deals with complex or sensitive issues, sets the EU's
common foreign and security policy, and nominates and appoints candidates to certain high-profile EU-level
roles. The European Council does not pass laws but provides political guidance.

What is the difference between the European Council and the Council of the EU?

The European Council, comprised of the heads of state or government of EU member countries, along with the
President of the European Council and the President of the European Commission, operates as a strategic guiding
force. Unlike the Council of the EU, the European Council does not have legislative powers. Instead, it sets the
overarching direction and political priorities for the EU. The discussions within the European Council often revolve
around complex and sensitive issues that require high-level attention. Regular meetings, usually held quarterly,
provide a platform for leaders to address critical matters shaping the EU's political landscape.

On the other hand, the Council of the EU, or Council of Ministers, represents the governments of member states in
specific policy areas. The composition of the Council varies depending on the policy domain under consideration,
such as agriculture, finance, or foreign affairs. The presidency of the Council rotates among EU member states every
six months. Unlike the European Council, the Council of the EU actively engages in legislative and budgetary

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processes, sharing these authorities with the European Parliament. Decisions within the Council are typically made
through a qualified majority vote, though unanimous agreement is required for sensitive topics like foreign policy and
taxation. Importantly, the Council of the EU operates with a degree of transparency, with ministers often meeting in
public when discussing or voting on draft legislative acts.

In essence, while the European Council provides strategic direction and political impetus, the Council of the EU is
deeply involved in the practical and detailed policymaking across various areas, reflecting the diverse policy interests
and concerns of EU member states. Together, these institutions contribute to the complex and nuanced decision-
making processes of the European Union.

What is the single (internal, common) market?

The single market, also known as the internal or common market, is the outcome of a gradual liberalization of trade
that has evolved since the aftermath of World War II. Originating from the Treaties of Rome in 1957, the primary
objective of the European Economic Community (EEC) was to establish a single market and customs union among
member states. The essence of the single market is characterized by the pursuit of the "Four Freedoms," which
include the free movement of goods, services, capital, and persons within the EEC.

The process of creating the single market gained momentum in the 1980s, with the European Commission issuing a
White Paper in 1985 outlining a strategic vision. This vision aimed at eliminating barriers to the free movement of
goods, services, capital, and people. The Single European Act (SEA) of 1986 played a crucial role in implementing
these goals by introducing reforms to decision-making processes within the EEC. Notable changes included
expanding majority voting in the Council of Ministers and involving the European Parliament in the legislative
process.

The single market continued to evolve through subsequent treaties, such as the Treaty of Maastricht, which led to
the formation of the European Union and introduced the framework for economic and monetary union, including the
eventual introduction of the euro currency. Additional treaties, including Amsterdam (1997), Nice (2001), and Lisbon
(2007), further enhanced the role of the European Parliament and instituted institutional reforms to prepare for
enlargement, focusing on the efficiency and democratic functioning of EU institutions.

The single market extends beyond the EU, incorporating countries in the European Economic Area (EEA), such as
Iceland, Liechtenstein, and Norway, as well as Switzerland through bilateral agreements. This expansive economic
integration is a pivotal aspect of the European project, aiming to create a unified and competitive economic space,
marked by the elimination of barriers to trade and the harmonization of regulations across participating nations.

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 QUESTIONS UNIT 2 – TYPES OF EU LAW

What is primary law?

Primary law in the context of the European Union (EU) refers to the foundational and fundamental legal sources that
establish the framework for the EU's existence, competencies, and operations. The main component of primary law
is derived from treaties, particularly the founding treaties such as the Treaty on European Union (TEU) from 1992 and
the Treaty on the Functioning of the European Union (TFEU) from 1957. These treaties define the distribution of
powers between the EU and its member states, providing the legal context for the formulation and implementation
of EU policies.

Key characteristics of primary law, specifically treaties, include:

1. Direct Applicability: Treaties are directly applicable in the legal systems of EU member states. This means
that they automatically become part of national law without the need for additional domestic legislation,
unless the treaty explicitly requires such implementation.

2. Constitutional Basis: Treaties hold a top position in the hierarchy of legal norms within the EU. They serve as
the constitutional basis for all actions taken by the EU. All other legal acts within the EU framework are
measured against the provisions of these treaties.

In addition to treaties, other sources contribute to primary law:

 Charter on Fundamental Rights (CFR): This is a fundamental and legally binding document within the EU. Its
legal status is reinforced by Article 6 of the Treaty on European Union (TEU). The CFR outlines fundamental
human rights protected within the EU.

 General Principles of Law: These principles are not codified in a single document but are derived from the
jurisprudence of the Court of Justice of the European Union (CJEU). The CJEU interprets and applies these
principles in its judgments. They encompass various legal concepts, including human rights, and examples
include legal certainty, non-retroactivity, and legitimate expectations.

What is the difference between a regulation and a directive?

While regulations are directly applicable and binding on all member states without the need for national
implementation, directives provide a framework and specific objectives that member states must achieve, allowing
for flexibility in their implementation methods. Member states have a certain degree of autonomy in deciding how to
achieve the goals set by directives, as long as the overall objectives are met within the specified deadline.

What does maximum harmonization mean?

Maximum harmonization refers to a regulatory approach in the European Union where a directive requires member
states to adopt specified provisions without deviation, ensuring uniformity in the legal framework across all EU
member states. In the context of directives, maximum harmonization implies that Member States are obligated to
implement the directive's provisions in their national laws exactly as stipulated in the directive. The directive sets out
specific rules and standards that Member States must adhere to, and they are not allowed to introduce provisions
that diverge from those outlined in the directive, whether they are more or less stringent.

The concept of maximum harmonization is aimed at achieving a high degree of consistency and coherence in the
legal rules and regulations applicable across the EU. By minimizing variations in national laws, maximum
harmonization contributes to creating a unified legal environment and facilitating the functioning of the internal
market.

In essence, the principle of maximum harmonization ensures that EU law sets a common standard, and Member
States are required to fully align their national laws with the directive's provisions, leaving little room for divergence
or discretion in implementation. This approach contrasts with minimum harmonization, which allows more flexibility
for Member States to choose how to achieve the objectives outlined in a directive, potentially leading to greater
variation in national implementations.

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What does minimum harmonization mean?

Minimum harmonization is an approach within the European Union regulatory framework that allows for flexibility in
the implementation of directives by member states. In the context of directives, minimum harmonization means that
while the directive establishes specific objectives that all EU member states must achieve, it provides some latitude
regarding the form and methods of implementation. Unlike maximum harmonization, which requires member states
to adopt the specified provisions without deviation, minimum harmonization allows for variation in how member
states choose to transpose the directive into their national legal systems.

The key feature of minimum harmonization is that it sets a baseline standard or minimum requirements that all
member states must meet. However, member states have the freedom to implement more stringent provisions if
they wish. This flexibility recognizes the diversity of legal systems and traditions across EU member states while still
ensuring a common set of core principles or standards.

In the context of implementing directives with minimum harmonization, member states have the opportunity to
tailor the directive to their specific national circumstances, potentially allowing for innovation or addressing unique
challenges. This approach acknowledges that some issues may be better addressed at the national level, and
member states can go beyond the minimum requirements set by the directive.

In summary, minimum harmonization strikes a balance between achieving common objectives at the EU level while
allowing member states some discretion in how they meet those objectives in their national legal frameworks.

What if a member state does not implement a directive properly?

When a member state fails to properly implement an EU directive, it raises significant legal implications, potentially
undermining the effectiveness of EU law and depriving individuals of their rights. The directive, a form of secondary
law, sets specific objectives for member states but allows flexibility in implementation. If certain conditions are met,
individuals can directly rely on the directive in national courts, invoking what is known as the direct effect.

In the landmark Van Duyn case, a Dutch citizen's free movement of workers was impeded by the UK's incorrect
implementation of a directive, leading to a refusal of entry based on public security concerns. The Court of Justice of
the European Union (CJEU) ruled that the conditions for direct application were met, allowing Ms. Van Duyn to
invoke the directive directly in national courts (vertical effect).

However, the direct horizontal effect, enabling individuals to sue each other based on a directive, is generally not
recognized. Instead, individuals are directed to pursue damages claims against the member state for failure to
implement the directive correctly. For such claims to succeed, specific conditions must be met, including a breach of
EU law, a sufficiently serious breach, and a causal link between the breach and the damages suffered.

The notion of a broad interpretation of "state" for direct effect allows even private entities with public functions or
those funded by the state to be held liable. Additionally, the CJEU, in the Francovich case, established that member
states can be held liable for damages resulting from their failure to properly implement a directive, without requiring
proof of intentional wrongdoing or fault.

This contrasts with the damages claim route, which does not necessitate establishing fault. Individuals seeking
remedies for breaches of EU law can choose between damages claims, providing compensation for losses, and the
direct effect, allowing them to directly rely on EU law in national courts. Both mechanisms play a crucial role in
ensuring the harmonization of laws and the uniform application of rules across EU member states.

QUESTIONS UNIT 2 – EU LAW PRINCIPLES

How do the principle of conferral and state sovereignty relate?

The principle of conferral, deeply ingrained in the European Union's (EU) legal framework, plays a pivotal role in
defining the relationship between the EU and the sovereignty of its member states. At the heart of this principle, as
stipulated in Articles 5(1) and 5(2) of the Treaty on European Union (TEU), lies the fundamental concept that the EU
can only exercise powers expressly granted to it by its member states. This principle serves as a crucial mechanism,
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intricately woven into the fabric of EU governance, ensuring that the union's actions are confined within the explicit
limits set by its sovereign member states.

In essence, the principle of conferral is a safeguard that necessitates the EU to operate within well-defined
boundaries. It reflects a deliberate and measured approach where member states retain the authority to decide
which powers they are willing to confer upon the EU. This principle finds expression in the distribution of
competencies outlined in the TEU and the Treaty on the Functioning of the European Union (TFEU), delineating
between exclusive, shared, and supporting competencies.

Exclusive competencies, as detailed in Article 3 of the TFEU, represent areas where the EU holds sole legislative
authority. Examples include the establishment of a customs union and the adoption of the Euro. Here, member
states have explicitly transferred their sovereign powers to the EU. Shared competencies, on the other hand,
constitute the majority of EU competencies (Art 4 TFEU). In these areas—such as the internal market, social policy,
consumer protection, and environmental matters—both the EU and member states can legislate and adopt binding
acts. The principle of conferral underscores that the EU can only act if specific powers have been conferred upon it by
member states.

Furthermore, the competence to support member states, as outlined in Articles 5 and 6 of the TFEU, underscores the
idea that the EU can take actions to support and coordinate member states' policies, but once again, this is
contingent upon member states granting the necessary powers.

The intricate interplay between the principle of conferral and broader EU objectives becomes evident in certain
cases, such as consumer protection. While the principle emphasizes explicit authorization, there exists a nuanced
approach where the EU may still act within the broader objectives, as long as it does not exceed the defined limits of
its competencies.

In conclusion, the principle of conferral acts as a linchpin in the EU's governance structure, serving as a mechanism
that respects and upholds the sovereignty of its member states. It underscores a delicate balance where the EU's
authority is contingent upon the explicit consent of member states, marking a distinctive feature of the European
integration process.

What does the principle of subsidiarity mean and how is it applied?

The principle of subsidiarity, embedded in the European Union's (EU) legal framework, is encapsulated in Article 5(3)
of the Treaty on European Union (TEU) and further detailed in a protocol. This principle fundamentally advocates for
decision-making at the most local level feasible, ensuring that the EU intervenes only when it can offer added value
compared to actions taken at national, regional, or local levels.

At its core, the principle of subsidiarity emphasizes the localization of decision-making, recognizing the diverse nature
of EU member states. It asserts that decisions should be made as close to the citizens as possible, aligning with the
specific circumstances and needs of each region. This principle is not merely a theoretical concept but a practical
guideline ingrained in Article 5(3) of the TEU and expounded upon in a protocol annexed to the treaties.

Crucially, subsidiarity introduces the condition that the EU should only engage when it can contribute additional
value that surpasses actions taken at lower levels of governance. In essence, the EU's involvement is warranted when
its intervention can achieve the proposed objectives more effectively than actions taken exclusively at the national,
regional, or local levels.

In practice, the Court of Justice of the European Union (CJEU) demonstrates limited interference with decisions made
by member states, adhering to the principle of subsidiarity. The CJEU typically refrains from intervening unless there
is a clear violation of EU law. This approach aligns with the principle's spirit, allowing member states flexibility to
implement policies and make decisions according to their preferred levels of governance, provided they remain in
compliance with EU law.

The combination of the principles of conferral and subsidiarity establishes a comprehensive framework for EU
governance. Subsidiarity acts as a crucial check on centralization, fostering a decentralized and adaptable approach
to decision-making. By adhering to the principle of subsidiarity, the EU ensures that its interventions are
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proportionate and justified, respecting the autonomy of member states and promoting effective governance tailored
to the specific needs of its diverse citizenry.

What does the principle of proportionality mean?

The principle of proportionality ensures that legislative and individual acts at both the EU and member state levels,
within the context of EU law, do not exceed what is necessary to achieve the objectives set out in the Treaties.

This principle mandates that measures taken, whether by EU institutions or member states, should be proportionate
to the goals they aim to achieve. The Court of Justice of the EU (CJEU) frequently applies this principle in its
judgments, assessing the validity and legality of EU actions. Notably, the principle extends to measures implemented
by member states within the framework of EU law, emphasizing a consistent application across all levels of
governance.

The application of proportionality by the CJEU involves a requirement for measures to be the least restrictive or
intrusive means to achieve desired objectives. If there are alternative, less burdensome measures that can achieve
the same goal, they should be chosen over more restrictive ones. In essence, the principle of proportionality acts as a
safeguard against excessive or unnecessary interference by public authorities, promoting a balanced and measured
approach to the exercise of powers.

In summary, the principle of proportionality in the EU context necessitates a careful evaluation of the necessity and
appropriateness of measures. It serves as a critical element in the legal assessment of both EU and member state
actions within the framework of EU law, ensuring that the means employed are reasonable, justifiable, and do not
unduly infringe on individual rights.

Is EU law supreme to the constitution of a MS?

Yes, according to the principle of supremacy, EU law is considered supreme to the constitution of a Member State
(MS). This principle establishes a hierarchy of laws within the European Union (EU) legal system, giving precedence to
EU law, including directly applicable provisions, over conflicting domestic laws, including constitutional provisions.

The text mentions that the principle of supremacy applies not only to ordinary national laws but also to
constitutional provisions. If there is a conflict between the constitution of a member state and EU law, EU law
prevails. This means that even the constitutional laws of member states must yield to EU law in case of a
contradiction.

The example provided in the text highlights a case where the German Constitutional Court (GCC) took issue with an
action by the European Central Bank (ECB), claiming it required approval from the German parliament according to
the German constitution. Despite the GCC's ruling, the Court of Justice of the European Union (CJEU) validated the
same ECB action, emphasizing the supremacy of EU law. The resolution occurred when the German government
recognized the supremacy of EU law, implicitly acknowledging that decisions from the CJEU take precedence over
national rulings, including those related to the constitution. This recognition led to the closure of infringement
proceedings initiated by the European Commission against Germany, further affirming the primacy of EU law.

QUESTIONS UNIT 2

What is the role of the European Parliament in the ordinary legislative procedure?

In the ordinary legislative procedure of the European Union, the European Parliament (EP) assumes a pivotal
role, reflecting a shift towards co-decision-making alongside the Council of the European Union. Unlike previous
procedures, the EP now stands as an equal partner with the Council, sharing decision-making powers in the
legislative process.

The legislative journey commences with a proposal from the European Commission, the exclusive initiator of
legislation within the EU. As the proposal navigates the legislative process, the EP engages in a thorough review
during its reading, where it holds the authority to adopt, amend, or reject the proposed legislation. Simultaneously,
the Council undergoes its reading, offering the possibility of adopting the proposal or suggesting amendments.

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 Should either the Parliament or the Council reject the proposal during their respective readings, the process
enters a second reading, allowing for potential amendments. Any disagreements between the EP and the Council
trigger the formation of a Conciliation Committee. This committee, comprising an equal representation of Members
of the European Parliament (MEPs) and Council representatives, endeavours to reconcile differences and produce a
joint text that satisfies both institutions.

In the subsequent third reading, the EP and the Council, recognizing the joint text, hold a unique position—
they cannot amend it. If either institution rejects the joint text or fails to act, the legislative act fails to gain adoption,
concluding the procedure.

The EP's involvement extends beyond readings and committee work. Trialogue meetings, informal gatherings
that expedite legislative procedures, witness the participation of EP representatives, along with counterparts from
the Council and the European Commission. In these trialogues, the Commission serves as a mediator, facilitating
dialogue and agreement.

The Lisbon Treaty stands as a pivotal juncture in this process, amplifying the powers of the European
Parliament. An expanded scope of policy areas brought under the ordinary legislative procedure further reinforces
the EP's influence in shaping EU legislation.

What is primary law? What is secondary law?

Primary Law:

Primary law in the context of the European Union (EU) primarily emanates from treaties, with a focus on the
foundational ones such as the Treaty on European Union (TEU) established in 1992 and the Treaty on the Functioning
of the European Union (TFEU) from 1957. These treaties delineate the distribution of competencies between the EU
and its member states, providing the legal framework within which EU institutions formulate and implement policies.

Key characteristics of treaties include their direct applicability in the legal systems of EU member states. This
implies that treaties automatically become part of national legal systems without requiring additional domestic
legislation, unless expressly stipulated otherwise. Treaties occupy a top position in the hierarchy of norms, serving as
the constitutional basis for all EU actions. All other legal acts within the EU legal framework are measured against the
provisions of these treaties.

Beyond treaties, primary law sources include the Charter on Fundamental Rights (CFR), a fundamental and
legally binding document reinforcing human rights protection within the EU. Additionally, general principles of law,
not codified in a single document, derive from the jurisprudence of the Court of Justice of the European Union
(CJEU). These principles, including human rights concepts, are applied by the court in its judgments.

Secondary Law:

Secondary law within the EU legal framework comprises legal instruments adopted by EU institutions to
implement and supplement the principles and objectives set out in the treaties. Outlined in Article 288 of the TFEU,
these instruments include regulations, directives, decisions, recommendations, and opinions.

Regulations: These are directly applicable and entirely binding for all EU member states. For example, the
General Data Protection Regulation (GDPR) becomes effective on a specified date set down in the Official Journal of
the European Union, typically 20 days after its publication.

Directives: Directives establish specific objectives that EU member states must achieve, allowing flexibility
regarding the form and methods of implementation. Member states have a period to implement EU laws following
adoption, with minimum and maximum harmonization options. Directives can have direct vertical effect, allowing
individuals to invoke them in national courts.

Decisions: These are specific measures addressed to particular individuals, companies, or EU countries.
Decisions are binding in their entirety and directly applicable to those to whom they are addressed.

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 Recommendations: Recommendations are non-binding instruments suggesting a course of action without
creating legal obligations. They serve as a means for the EU to provide guidance or encourage cooperation among
member states.

Opinions: Opinions are non-binding expressions of views or advice provided by EU institutions, committees,
or other bodies on specific matters.

In summary, primary law encompasses foundational treaties, including the TEU and TFEU, while secondary
law comprises legal instruments adopted by EU institutions to implement and complement these treaties.

When can a directive be directly applicable?

A directive can be directly applicable when it is unconditional, sufficiently clear and precise, and the
implementation deadline has expired, allowing individuals to invoke it in national courts with direct vertical effect.

Unconditional: The provisions of the directive must be clear and not subject to any conditions or
qualifications. In other words, the language and requirements of the directive must be straightforward and not open
to interpretation or additional conditions.

Sufficiently Clear and Precise: The directive must provide clear and precise guidance. The language and
requirements should be specific enough to be easily understood and implemented by the member states without
ambiguity.

Implementation Deadline Expired: The directive may become directly applicable if the member state fails to
meet the implementation deadline specified in the directive. Once the deadline has passed without proper
implementation at the national level, individuals can invoke the directive in national courts.

When these conditions are fulfilled, the directive attains direct vertical effect, enabling individuals to
challenge the member state's failure to comply with the directive in national courts.

An example illustrating this is the Van Duyn Case, where a Dutch citizen, Ms Van Duyn, could invoke a
directive directly in national courts because the UK had incorrectly implemented the directive, restricting her free
movement of workers.

However, it's important to note that direct horizontal effect, where individuals can invoke a directive against
other private individuals, is generally not recognized. In such cases, individuals are directed to pursue damages claims
against the member state for failing to implement the directive correctly. This requires meeting specific conditions,
including demonstrating a breach of EU law, a sufficiently serious breach, and a causal link between the breach and
the damages suffered. Moreover, the broad interpretation of "State" for direct effect allows entities such as private
entities with public functions or private companies funded by the state to be held liable.

What is the principle of supremacy?

The principle of supremacy establishes a hierarchical order within the EU legal system, ensuring that EU law,
including its fundamental rights provisions, prevails over conflicting national laws and constitutional provisions,
highlighting the intricate interplay between national legal systems and the overarching framework of EU law.

Directly applicable provisions of EU law, found in treaties, regulations, and certain directives, have immediate legal
effect in member states without requiring national implementing measures. In case of a conflict between EU law and
domestic law, EU law takes precedence.

The principle of supremacy is not limited to ordinary national laws but extends to constitutional provisions of
member states. If a conflict arises between a member state's constitution and EU law, the latter prevails.

The application of the principle of supremacy has proven effective in resolving conflicts related to human rights
within member states. The Charter of Fundamental Rights (CFR) is particularly relevant in this context.

An illustrative example of the principle of supremacy in action is the case involving the German Constitutional Court
(GCC) and the European Central Bank (ECB). The GCC contested a specific ECB action, claiming it exceeded its powers,
citing the legal concept of "ultra vires." The GCC insisted on approval from the German parliament, aligning with
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constitutional principles. However, this position directly contradicted the principle of supremacy, wherein EU law
takes precedence over national laws. The same ECB action had received prior validation from the Court of Justice of
the European Union (CJEU), the highest EU judicial authority. The conflict escalated with the European Commission
initiating infringement proceedings against Germany, a legal mechanism addressing member states' non-compliance
with EU obligations. The resolution came when the German government acknowledged the supremacy of EU law,
implicitly affirming the authority of the CJEU. Consequently, the infringement proceedings were closed, emphasizing
the primacy of EU decisions over national rulings, including those from the GCC.

QUESTIONS UNIT 3

Who is the “state” against whom the freedoms can be invoked?

In the context of the single market of the EU, the term "state" against whom the freedoms can be invoked
encompasses various levels of government within the Member States. The freedoms within the single market, such
as the free movement of goods, services, persons, and capital, are structured as rights of individuals against Member
States. This includes both the host state and the state of origin. The definition of the "state" is comprehensive,
encompassing central, regional, and local authorities within a Member State.

The freedoms are designed to prevent Member States from selectively benefiting from the single market by imposing
restrictions on imports while enjoying the advantages of exports. The term "state" in this context is broad, covering
different tiers of government, and it aims to create a level playing field, foster economic integration, and promote the
well-being of citizens across the European Union.

Additionally, the definition of the "state" is crucial in determining the applicability of the treaties. Cases, such as
266/87 and 267/87 (Pharmaceutical Society of GB), illustrate that the CJEU's stance on the application of the treaties
depends on the extent to which an association exercises regulatory competences conferred by public authorities. The
cross-border element is fundamental, applying specifically to trade between Member States and not covering purely
internal situations.

In summary, the term "state" in the context of the single market refers to various levels of government within the
Member States, and the freedoms can be invoked against these different tiers, including central, regional, and local
authorities.

What is indirect discrimination? Give an example.

Indirect discrimination, within the context of the EU's single market, refers to situations where rules or measures are
indistinctly applicable to all individuals or entities but disproportionately disadvantage certain groups, goods,
services, or persons from other Member States. Unlike direct discrimination, indirect discrimination does not
explicitly mention nationality as a criterion but still has the effect of placing foreign entities at a disadvantage.

An example of indirect discrimination can be found in the Groener case (C-379/87). In this case, Ms. Groener, a Dutch
national, was working part-time in Ireland and applied for a full-time permanent art teacher position. The Irish
requirement for the job was that permanent teachers must speak Gaelic. While this requirement was seemingly
neutral, it disproportionately affected Ms. Groener, a non-native Gaelic speaker, and indirectly discriminated against
her.

In the context of the single market, indirect discrimination is scrutinized by the Court of Justice of the European
Union (CJEU) to ensure that rules and measures, even if not explicitly discriminatory, do not create unjustified
obstacles to the free movement of goods, services, persons, or capital. The CJEU assesses whether these rules are
appropriate, necessary, and proportionate, considering the specific circumstances of each case. Indirect
discrimination is a concept designed to prevent Member States from imposing seemingly neutral measures that have
a discriminatory impact on entities from other Member States.

How can discrimination be justified? Give an example.

Discrimination, in the context of the EU's single market, can be justified under certain circumstances if it meets
specific criteria outlined in the treaties. Justification involves demonstrating that the discriminatory measure is

10
necessary and proportionate to achieve legitimate objectives. The grounds for justification are explicitly mentioned in
the treaty provisions for each freedom, and they vary depending on the nature of the freedom being considered.

As an example, let's consider the justification for restrictions on the free movement of goods, as outlined in Article 36
of the Treaty on the Functioning of the European Union (TFEU). Article 36 allows prohibitions or restrictions on
imports, exports, or goods in transit based on the following grounds:

1. Public Morality

2. Public Policy

3. Public Security

4. Protection of Health and Life of Humans, Animals, or Plants

5. Protection of National Treasures Possessing Artistic, Historic, or Archaeological Value

6. Protection of Industrial and Commercial Property

For instance, if a Member State imposes a restriction on the import of a specific product, claiming that it is necessary
to protect public health, it would need to demonstrate that the restriction is proportionate and necessary to achieve
the legitimate goal of safeguarding public health. The justification would involve providing scientific evidence and
rationale for why the restriction is essential and does not go beyond what is necessary to protect health.

This principle of justification applies to each freedom within the single market. The Cassis de Dijon case (120/78)
serves as an illustrative example. In this case, a German law prohibited the import of a blackcurrant liqueur called
Cassis de Dijon because it did not meet the minimum alcohol content required for a beverage to be classified as
"liqueur" under German law. The German authorities justified this measure based on consumer protection and the
desire to maintain the quality and reputation of German liqueurs.

The CJEU ruled that, in principle, these grounds could be invoked for justification. However, it also emphasized that
the measures must be appropriate and necessary, meaning that they should genuinely contribute to the stated
objectives and should not go beyond what is required. In the Cassis de Dijon case, the CJEU concluded that the
minimum alcohol requirement did not serve a relevant goal and was not necessary, leading to a violation of the free
movement of goods.

In summary, discrimination in the single market can be justified based on specified grounds, but the justification must
meet the criteria of being appropriate, necessary, and proportionate to achieve legitimate objectives. The CJEU plays
a crucial role in assessing and ensuring the validity of justifications presented by Member States.

What does the principle of proportionality entail?

The principle of proportionality is a cornerstone of the legal framework governing the European Union's
single market. This principle serves as a crucial guideline, ensuring a delicate balance between the objectives pursued
by Member States and the potential restrictions imposed on the fundamental freedoms granted by the EU treaties.

At its core, the principle of proportionality encompasses several key aspects. Firstly, a measure taken by a
Member State must be appropriate, meaning that it should have a logical and direct connection to the intended
legitimate objective. This ensures that there is a rational link between the chosen means and the sought-after goal.

Secondly, the necessity of a measure is paramount. It dictates that the measure should not exceed what is
essential to achieve its stated objective. Member States must refrain from adopting more restrictive alternatives
when less intrusive measures are available to accomplish the same goal.

Proportionality, in the strict sense, requires a careful consideration of the benefits derived from a measure
against its potential negative impact on the protected freedom. This involves striking a fair and reasonable balance
between achieving the intended objective and preserving the fundamental freedom at stake.

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 The principle further insists on avoiding excessive restrictions. Member States are prohibited from imposing
measures that go beyond what is necessary. This ensures that the impact on the exercise of fundamental freedoms is
limited to what is deemed essential.

Scientific or empirical evidence forms another critical component of the principle of proportionality.
Justifications for restrictions should be based on solid reasoning supported by scientific data. Member States are
obligated to provide a robust rationale for why a specific measure is both necessary and proportionate.

Crucially, the application of the principle of proportionality is a case-by-case endeavor. Each measure is
subject to an individual assessment to determine whether it meets the criteria of appropriateness and necessity. The
nuanced and context-specific nature of this assessment allows for a thorough examination of the circumstances
surrounding each case.

An illustrative example of the application of the principle of proportionality is found in the Cassis de Dijon
case (120/78). Here, a German law prohibiting the import of Cassis de Dijon aimed to safeguard consumer protection
and maintain the quality and reputation of German liqueurs. The CJEU scrutinized whether the minimum alcohol
requirement imposed by the law was proportionate to these objectives. Ultimately, the court ruled that the measure
was not necessary and exceeded what was required, resulting in a violation of the free movement of goods.

In summary, the principle of proportionality ensures that any restrictions imposed by Member States on the
fundamental freedoms within the single market are not only legitimate but are also reasonable, necessary, and
proportionate to the objectives pursued. The CJEU, through its judgments, plays a pivotal role in upholding and
applying this principle within the EU legal framework.

How can states prove that their measure is appropriate?

In the European Union's single market, when states aim to prove the appropriateness of their measures, a
comprehensive approach is essential. This process is guided by the principle of proportionality, emphasizing that
restrictions on fundamental freedoms should be proportionate to the legitimate objectives pursued. States must
navigate several key considerations to successfully demonstrate the appropriateness of their measures.

First and foremost, it is crucial to clearly articulate the legitimate objective or public interest that the
measure seeks to achieve. This objective must align with the specified grounds in the Treaty on the Functioning of
the European Union (TFEU), such as public morality, public policy, public security, health, environmental protection,
or the safeguarding of cultural treasures.

Once the legitimate objective is defined, the state must establish a rational link between the chosen measure
and the identified goal. This involves demonstrating that the measure is well-designed to directly contribute to the
realization of the stated objective. A logical and coherent connection between the means employed and the desired
end is paramount.

Scientific or empirical evidence plays a crucial role in supporting the appropriateness of the measure. States
should provide solid reasoning and concrete data, showcasing a thorough understanding of the issue at hand. This
evidence serves to justify the necessity and proportionality of the measure.

Consistency with EU law is a fundamental requirement. The measure must align with EU legal principles and
respect the fundamental freedoms enshrined in the treaties. Any restriction imposed should be in compliance with
specific provisions and requirements of EU law.

Non-discrimination is another critical aspect. States must confirm that the measure applies indistinctly to all
relevant actors, ensuring that it does not favor domestic entities over those from other Member States.
Discrimination based on nationality is explicitly prohibited.

States should also consider and, if applicable, demonstrate that less restrictive alternatives were evaluated
and rejected. This showcases that the chosen measure is not excessive, and the state has carefully weighed various
options before implementing the restriction.

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 The proportional impact of the measure on fundamental freedoms must be assessed and communicated.
States should be transparent about how the chosen measure minimally interferes with the exercise of these
freedoms while still achieving the intended objectives.

It is essential to recognize the case-by-case nature of the assessment. Each measure will be evaluated
individually, considering the unique circumstances and characteristics of the case. This nuanced approach ensures a
fair and context-specific determination of the appropriateness of the state's measures within the EU single market.

What does it mean that a measure has to be necessary?

The requirement that a measure must be "necessary" embodies a pivotal concept in evaluating the appropriateness
and proportionality of any restrictions on fundamental freedoms. The term "necessary" imposes a rigorous criterion
that member states must adhere to when seeking to justify measures that may impede the free movement of goods,
services, persons, or capital.

To assert that a measure is necessary, a nuanced examination of several key considerations becomes imperative.
Foremost, the measure must be aligned with a legitimate objective acknowledged by the Treaty on the Functioning
of the European Union (TFEU). Legitimate objectives encompass realms such as public morality, public policy, public
security, health, environmental protection, and the safeguarding of cultural treasures.

Crucially, a clear and rational link must exist between the chosen measure and the identified legitimate
objective. The measure should be meticulously crafted to effectively contribute to the attainment of the stated goal.
Proportionality assumes significance, necessitating that the restrictions imposed do not surpass what is essential to
achieve the legitimate objective. This entails a delicate balancing act, where the impact on fundamental freedoms is
minimized while ensuring the efficacy of the measure.

Scientific or empirical justification is a linchpin in establishing the necessity of a measure. Member states are
obliged to furnish robust scientific or empirical evidence supporting the necessity of the chosen measure, thereby
demonstrating a profound understanding of the issue and why the proposed measure is the most suitable option.

Moreover, the measure must align with EU law, refraining from contravening the fundamental freedoms
enshrined in the treaties. It must also respect the overarching legal framework of the European Union. Non-
discrimination is integral, signifying that the measure applies indistinctly to all relevant actors without favouring
domestic entities over those from other member states. Discrimination based on nationality is explicitly prohibited.

States should also consider and demonstrate, if applicable, that less restrictive alternatives were evaluated
and rejected. This underscores the idea that the chosen measure represents the most reasonable and proportionate
course of action. The necessity of a measure is evaluated on a case-by-case basis, acknowledging the uniqueness of
each situation, and considering the specific circumstances and characteristics of the case at hand.

In essence, the principle of necessity within the EU single market reflects a stringent standard. Any restriction
on fundamental freedoms must be justified by a legitimate objective, demonstrating a clear, rational connection to
that objective. This principle ensures that chosen measures are not only essential but also reasonable and
proportionate to the challenges or goals they aim to address.

What is the Customs Union?

The Customs Union stands as a pivotal element within the European Union's framework, designed to
streamline and facilitate the unimpeded movement of goods across its Member States. Enshrined in Articles 28 to 37
of the Treaty on the Functioning of the European Union (TFEU), the Customs Union is a manifestation of the EU's
commitment to fostering economic integration and dismantling trade barriers among its members.

At its core, the Customs Union fundamentally prohibits the imposition of import and export duties between
Member States. This means that goods traversing national borders encounter no tariffs or customs duties, fostering a
seamless environment for trade. Beyond mere fiscal measures, the Customs Union also bars other charges that could
effectively function as customs duties, ensuring that Member States cannot resort to alternative financial
mechanisms to indirectly hinder the flow of goods.

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 A critical aspect of the Customs Union is the outright prohibition of quantitative restrictions on imports and
exports, as stipulated in Articles 34 and 35 of the TFEU. This prohibition encompasses not only direct limitations on
the quantity of foreign goods but also measures that could have an equivalent effect, providing a broad and
comprehensive scope to prevent any hindrance to intra-community trade.

The jurisprudential foundation for this expansive interpretation of restrictions can be traced back to the
Dassonville case (Case 8/74). Here, the European Court of Justice (CJEU) established that any trading rules enacted by
Member States, with the potential to directly or indirectly impede intra-community trade, are to be considered as
measures having an effect equivalent to quantitative restrictions.

As part of the broader Customs Union framework, efforts are made to harmonize customs procedures across
the EU. This harmonization, exemplified by regulatory measures like the Modernized Customs Code (Regulation
450/2008), seeks to standardize regulations, documentation requirements, and procedural aspects of customs. The
goal is to create an efficient, uniform, and contemporary system that aligns with the principles of the Customs Union.

In essence, the Customs Union is not merely a legal construct but a dynamic mechanism that upholds the
principles of free movement of goods, eliminates trade barriers, and encourages economic integration among EU
Member States. It represents a commitment to creating a unified market where goods can traverse borders
unencumbered, contributing to the overarching objective of a harmonious and cooperative European economic
landscape.

What are quantitative restrictions?

Quantitative restrictions refer to limitations or constraints imposed on the quantity of goods that can be
imported or exported between Member States. These restrictions are explicitly addressed in Articles 34 and 35 of the
Treaty on the Functioning of the European Union (TFEU). The fundamental principle enshrined in these articles is the
prohibition of quantitative restrictions on imports and exports, aiming to facilitate the free movement of goods
within the EU's internal market.

Quantitative restrictions were historically more prevalent and could take various forms, including explicit
limits on the volume or quantity of foreign goods that could enter a Member State. Such restrictions might also
encompass outright import bans on specific products or goods from certain countries.

However, with the development of the EU's legal framework and the jurisprudence of the European Court of
Justice (CJEU), the concept of quantitative restrictions has evolved. The Dassonville case (Case 8/74) played a pivotal
role in shaping this evolution. The CJEU, in this case, established a broad and inclusive definition of measures having
an effect equivalent to quantitative restrictions. According to the CJEU, any trading rules enacted by Member States
that are capable of hindering, directly or indirectly, intra-community trade fall under this category. This expansive
definition includes not only direct quantity-based limitations but also any measures that may impede the free flow of
goods.

The term "measures having equivalent effect" is crucial in this context. It implies that even if a Member State
does not explicitly impose a numerical restriction on the quantity of goods, any rule or regulation that has a similar
hindering effect on intra-community trade can be considered a quantitative restriction.

In essence, the prohibition of quantitative restrictions serves as a cornerstone of the EU's internal market,
ensuring that goods can move freely across borders without encountering artificial barriers imposed by Member
States. This commitment to eliminating such restrictions reflects the EU's broader objective of creating a unified and
integrated economic space where the principles of the free movement of goods are upheld.

What are measures having equivalent effect?

Measures having equivalent effect, within the framework of the European Union (EU) and its internal market,
refer to any trading rules enacted by Member States that have the potential to hinder, directly or indirectly, actual or
potential intra-community trade. This concept has been elucidated and established by the European Court of Justice
(CJEU) in various landmark cases, with the Dassonville case (Case 8/74) being particularly influential in shaping this
definition.

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 The prohibition against measures having equivalent effect is a fundamental aspect of the EU's legal
framework, and it is explicitly outlined in Articles 34 and 35 of the Treaty on the Functioning of the European Union
(TFEU). The primary objective is to ensure the free movement of goods between Member States by eliminating not
only direct quantitative restrictions on imports and exports but also any measures that could impede the smooth
flow of goods.

The CJEU has provided a broad and inclusive definition of measures having equivalent effect. It includes any
rules or regulations, regardless of their form, that may hinder intra-community trade. This encompasses both direct
and indirect obstacles to the free movement of goods. The key criterion is whether the measure is capable of
creating a hindrance to trade between Member States.

The Dassonville case itself involved a French trader who purchased Scotch Whisky in France and intended to
import it into Belgium. However, Belgian authorities required a certificate of origin from Scotland, which the trader
did not possess. The CJEU ruled that such a requirement, making it difficult to import goods from other Member
States, constituted a measure having an effect equivalent to a quantitative restriction.

The CJEU's definition is expansive, covering various scenarios. For instance, measures that create obstacles
based on licensing, labeling, packaging, or any other regulatory requirements can fall under this category. The critical
aspect is whether the measure, regardless of its specific nature, impedes the free movement of goods between EU
Member States.

Importantly, the CJEU has recognized that Member States are allowed to implement measures to achieve
legitimate objectives, such as public health, consumer protection, or the prevention of unfair practices. However,
these measures must adhere to the principles of non-discrimination and proportionality.

In summary, measures having equivalent effect encompass a wide range of trading rules that may hinder
intra-community trade. The prohibition against such measures is central to fostering the EU's internal market,
ensuring the unimpeded movement of goods and upholding the principles of a unified and integrated economic
space.

How can measures having equivalent effect be justified?

Measures having equivalent effect can be justified under the framework of the European Union (EU) law
based on certain criteria and principles. While the primary objective is to eliminate barriers to the free movement of
goods, the Treaty on the Functioning of the European Union (TFEU) recognizes that some measures may be justified
if they serve legitimate and essential public interests. The justification criteria are essential to strike a balance
between the principles of free movement and the right of Member States to adopt measures for the protection of
certain public goods and values.

Distinctly Applicable Rule:

For measures having an effect equivalent to quantitative restrictions, which are distinctly applicable,
the treaty-based justifications specified in the TFEU can be invoked. These grounds include public morality, public
policy, public security, protection of health and life of humans, animals, or plants, protection of national treasures,
and protection of industrial and commercial property (Article 36 TFEU).

Indistinctly Applicable Rule:

For measures that are indistinctly applicable and fall under the broader definition of measures having
equivalent effect, the justification is not limited to the specific grounds mentioned in Article 36. The Court of Justice
of the European Union (CJEU) has recognized that other legitimate reasons can be invoked, provided they are
sufficiently grave.

Proportionality:

Regardless of whether the rule is distinctly or indistinctly applicable, the principle of proportionality
plays a crucial role in determining the validity of the justification. The measure must be proportionate to the
legitimate objective pursued, meaning it should not go beyond what is necessary to achieve the intended goal.

15
 Non-Discrimination:

Justifications must adhere to the principle of non-discrimination. They should not result in arbitrary
discrimination between domestic and imported goods or create unnecessary obstacles to intra-community trade.

Sufficiently Grave Reasons:

The CJEU, in interpreting the justification criteria, has emphasized that the reasons put forth by
Member States must be sufficiently grave. This implies that the measure should genuinely address important public
interests and not serve as a disguised restriction on trade.

Legitimate Objectives:

Member States can justify measures having equivalent effect if they pursue legitimate objectives
such as public health, consumer protection, environmental protection, or the prevention of unfair practices. The
legitimacy of these objectives is assessed by the CJEU based on the specific circumstances of each case.

In summary, while the EU aims to create a barrier-free internal market, Member States retain the ability to
enact measures for the protection of essential public interests. However, these measures must meet stringent
criteria, including distinct or indistinct applicability, proportionality, non-discrimination, and pursuit of legitimate
objectives. The CJEU plays a crucial role in interpreting and applying these principles to ensure the coherence and
effectiveness of the EU's internal market.

When may selling arrangements come within the scope of the treaty again? Name an example.

Selling arrangements, typically considered beyond the scope of the free movement of goods, may find themselves
subject to the provisions of the Treaty on the Functioning of the European Union (TFEU) when their impact on
domestic and foreign goods varies. This means that if a selling arrangement disproportionately affects imported
products, it could be subject to scrutiny under the EU's principles of free movement of goods.

A pertinent example that sheds light on the potential inclusion of selling arrangements within the treaty's scope is
the "Gourmet International" case (Case 405/98). In this instance, Sweden (SE) had imposed restrictions on
advertising most alcoholic products in periodicals. Gourmet International, a company engaged in periodical
publications targeting bar owners, sought to advertise whisky and wine. Sweden aimed to enforce its national rules
prohibiting such advertising.

The Court of Justice of the European Union (CJEU) intervened, considering the impact of the selling arrangement on
intra-community trade. The CJEU's reasoning centered on the notion that foreign products, in this case, whisky and
wine, would face a significant disadvantage compared to domestic products. This disadvantage arose from the fact
that consumers were more acquainted with the latter.

In its deliberation, the CJEU concluded that the selling arrangement, which included advertising restrictions, could
potentially hinder intra-community trade. This example underscores the nuanced approach taken by the CJEU,
suggesting that selling arrangements, while commonly presumed to be exempt, may still face scrutiny if they
differentially affect the marketing of products from other Member States in comparison to domestic products. The
CJEU's perspective emphasizes the overarching principle of eliminating obstacles to trade within the European
Union's internal market.

What is the goal of secondary law?

Secondary law serves the overarching goal of facilitating and enhancing the functioning of the internal
market, particularly concerning the free movement of goods. Harmonized standards across the EU are a key
component of secondary law, contributing to the seamless movement of goods and reducing barriers to trade.

The goal of secondary law is exemplified through various harmonization measures that address customs,
technical standards, and consumer protection. For instance, the Modernized Customs Code (Regulation 450/2008)
illustrates efforts to harmonize customs procedures, simplifying and streamlining processes related to the movement
of goods across Member States.

16
 Additionally, the harmonization of technical standards plays a crucial role, exemplified by regulations such as
the Chemical Substances Regulation (Regulation 1907/2006), the General Product Safety Directive (Directive
2001/95/EC), and the Medical Devices Directive (Directive 93/42/EEC). These regulations aim to create a common
framework for technical specifications, ensuring that products can circulate freely within the internal market without
facing divergent national standards.

Consumer protection is another domain where secondary law, such as the Consumer Rights Directive
(Directive 2011/83/EU), the Unfair Terms in Consumer Contracts Directive (Directive 1993/13/EC), and the Sale of
Consumer Goods and Associated Guarantees Directive (Directive 1999/44/EC), contributes to a harmonized legal
framework. These directives establish common rules and standards for consumer rights, fostering consumer
confidence and facilitating cross-border trade.

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 QUESTIONS UNIT 4

What is a recital?

In the context of the General Data Protection Regulation (GDPR), a recital is a preamble or explanatory
statement that provides additional context, considerations, and explanations regarding the provisions laid out in the
regulation. Recitals are not legally binding themselves, but they offer guidance on the interpretation and purpose of
specific articles within the GDPR. These recitals serve as a tool for understanding the rationale behind the regulatory
framework and aid in its coherent application. They complement the actual articles and assist in the uniform
interpretation of the GDPR across different situations and contexts.

Which data is subject to GDPR?

The General Data Protection Regulation (GDPR) applies to personal data, as defined in Article 4(1) of the
regulation. According to GDPR, personal data refers to any information relating to an identified or identifiable natural
person (referred to as the 'data subject'). An identifiable natural person is someone who can be identified, directly or
indirectly, by reference to an identifier such as a name, an identification number, location data, an online identifier, or
one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of
that natural person.

Examples of personal data include, but are not limited to, a person's name, sex, income, age, address,
hobbies, and any other information that can be linked to an identifiable individual.

Additionally, special categories of personal data, as outlined in Article 9 of the GDPR, include data revealing
racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic and
biometric data for uniquely identifying a person, and data concerning health or a person's sex life or sexual
orientation. Processing such special categories of data is subject to specific conditions and safeguards under the
GDPR.

It's important to note that the GDPR does not cover anonymized data, which is data that cannot be linked to
an identifiable individual. However, pseudonymized data, where identifying information is replaced with
pseudonyms, is still within the scope of the GDPR.

What does identifiable mean?

"Identifiable" refers to an individual who can be distinguished or singled out, either directly or indirectly,
from the information provided. According to Article 4(1) of the GDPR, personal data includes any information relating
to an identified or identifiable natural person (data subject).

Direct identification occurs when the information, such as a name or unique identifier, is sufficient on its own
to recognize the individual. Indirect identification involves using one or more factors specific to the physical,
physiological, genetic, mental, economic, cultural, or social identity of the person to single them out.

For example, a name, identification number, or specific location data can directly identify a person. On the
other hand, factors like genetic information, which might not be directly revealing, can still contribute to indirect
identification when combined with other data.

The concept of identifiability is central to determining whether information falls under the scope of personal
data and, consequently, the application of GDPR protections and regulations.

Does keeping a personal address-book require GDPR compliance?

The requirement for GDPR compliance depends on various factors related to the context and the nature of
the personal address-book. In the context of the General Data Protection Regulation (GDPR), the key consideration is
whether the information in the address-book qualifies as personal data and, if so, how it is processed.

If the address-book contains personal data, such as names and contact information of individuals, and if it is
processed in a way that falls under the scope of the GDPR, compliance is necessary. Processing activities covered by

18
the GDPR include collecting, storing, organizing, structuring, retrieving, consulting, using, disclosing, and erasing
personal data.

Several factors determine whether GDPR compliance is required:

Nature of Data: If the address-book includes information that directly or indirectly identifies natural persons,
it is considered personal data.

Processing Activities: If the address-book is used for professional or commercial purposes, or if it is part of
an organized filing system, GDPR compliance is likely necessary.

Territorial Scope: If the processing occurs within the European Union (EU) or involves offering goods or
services to individuals in the EU, GDPR applies.

Legal Bases: Compliance also depends on the legal bases for processing, such as consent or the necessity for
the performance of a contract.

In summary, if the personal address-book involves the processing of personal data and falls within the scope
of the GDPR, organizations or individuals responsible for the address-book need to comply with the regulation's
requirements to ensure lawful and transparent data processing.

Does GDPR apply to pseudonymised data? Why(not)?

Yes, GDPR applies to pseudonymized data. Pseudonymized data involves replacing personally identifiable
information with pseudonyms or unique identifiers to protect the individual's identity. While pseudonymization
enhances data security and reduces the risks associated with processing personal data, it doesn't exempt the data
from the scope of the General Data Protection Regulation (GDPR).

Key points regarding pseudonymized data and GDPR:

Definition of Personal Data: GDPR defines personal data broadly, encompassing any information related to
an identified or identifiable natural person. Pseudonymized data still retains the potential for identification, directly
or indirectly, and therefore falls within the scope of personal data.

Security Measures: GDPR acknowledges pseudonymization as a privacy-enhancing technique and

encourages its use as part of broader data protection measures. However, pseudonymization alone does not remove
the legal obligations and responsibilities associated with processing personal data.

Legal Framework: Pseudonymized data is subject to the same legal requirements and principles outlined in
the GDPR, such as lawful processing, transparency, purpose limitation, data minimization, and the rights of data
subjects.

Data Controller and Processor Responsibilities: The entities responsible for processing pseudonymized data
(data controllers and processors) are obligated to comply with GDPR requirements. This includes ensuring the lawful
basis for processing, implementing security measures, and addressing data subject rights.

Risk Assessment: While pseudonymization reduces certain risks, it does not eliminate them entirely. GDPR
requires a risk-based approach to data protection, and the level of protection should be commensurate with the risks
associated with the processing activities.

In summary, pseudonymized data remains within the scope of GDPR, and organizations must implement
appropriate safeguards and adhere to the regulatory framework when processing such data. Pseudonymization is
recognized as a valuable security measure, but it does not alter the fundamental principles and obligations set forth
by the GDPR.

Is processing of personal data allowed in principle?

The processing of personal data is not allowed in principle. However, there are specific lawful bases outlined
in the regulation (Art 6 and 9) that serve as exceptions to this prohibition. The controller, the entity responsible for

19
processing personal data, must choose an appropriate lawful basis depending on the processing setup and purposes.
These lawful bases include:

1. Consent: Processing is allowed if the data subject has provided freely given, informed, and unambiguous
consent. However, it must be specific to the purpose, and consent can be withdrawn at any time.

2. Contract: Processing is permitted when it is necessary for the performance of a contract, such as collecting
address information for shipping ordered goods.

3. Legal Obligation: Processing is allowed when necessary for compliance with a legal obligation, which may
stem from national or Union law, such as documentation obligations.

4. Data Subject’s or Another Natural Person’s Vital Interests: Processing is permitted when it is necessary to
protect the vital interests of the data subject or another person.

5. Public Interest: Processing is allowed when necessary for a task carried out in the public interest or in the
exercise of official authority vested in the controller. Examples include customer administration in public
libraries, schools, or public pools.

6. Controller’s or Third Party’s Legitimate Interest: Processing is permitted when it is necessary for the
legitimate interests pursued by the controller or a third party, provided that these interests are not
overridden by the interests or fundamental rights and freedoms of the data subject.

Name three legal bases and examples when to use them.

1. Consent: Processing is allowed if the data subject has provided freely given, informed, and unambiguous
consent. However, it must be specific to the purpose, and consent can be withdrawn at any time.

Example: Collecting and processing personal data for marketing purposes, where individuals
explicitly opt-in to receive promotional materials.

2. Contract: Processing is permitted when it is necessary for the performance of a contract, such as collecting
address information for shipping ordered goods.

Example: Collecting and using personal data, such as shipping address and payment information, to
fulfil orders placed by customers.

3. Legal Obligation: Processing is allowed when necessary for compliance with a legal obligation, which may
stem from national or Union law, such as documentation obligations.

Example: Maintaining employee records in accordance with national labour laws that require
companies to keep certain information about their employees for a specific period.

These examples illustrate how different legal bases apply in specific contexts, ensuring that the processing of
personal data is carried out in a lawful and compliant manner under the GDPR. It's important for organizations to
carefully assess the nature of their data processing activities and select the appropriate legal basis for each scenario.

How can a controller determine whether its legitimate interests are overriding those of the data subject,
give an example.

Determining whether a controller's legitimate interests override those of the data subject involves a careful
and balanced assessment, considering various factors outlined in the General Data Protection Regulation (GDPR). The
GDPR emphasizes that the legitimate interests pursued by the controller, or a third party should not unduly infringe
upon the fundamental rights and freedoms of the data subject. Here's a step-by-step guide and an example:

Steps for Determining Legitimate Interests:

1. Identify the Legitimate Interest: The controller must clearly identify and articulate the specific legitimate
interest or interests they are pursuing.

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 2. Assess the Necessity: Determine whether the processing of personal data is necessary to achieve the
legitimate interest. Consider if there are less intrusive means to achieve the same purpose.

3. Balancing Test: Conduct a balancing test, weighing the legitimate interests of the controller against the
fundamental rights and freedoms of the data subject.

4. Consider Data Subject's Reasonable Expectations: Assess whether the data subject would reasonably expect
their data to be processed for the identified legitimate interest.

Example: A retail company wants to implement a video surveillance system in its stores to prevent theft and enhance
security.

The legitimate interest is the protection of company assets and ensuring a safe shopping environment for customers.
Video surveillance is considered necessary to achieve the legitimate interest of preventing theft and ensuring
security. The company must balance its legitimate interest in preventing theft with the potential impact on the
privacy of customers and employees. Customers entering the store may reasonably expect some level of security
measures, including video surveillance.

Would you consider consent as a practice legal basis ? If so, why (not)?

Consent is recognized as a legal basis for processing personal data under the General Data Protection
Regulation (GDPR). This is grounded in the principle that individuals should have the autonomy to decide how their
personal information is used. When a data subject provides consent, it signifies their voluntary agreement for a
specific purpose of data processing. Consent aligns with key principles of the GDPR, emphasizing transparency and
giving individuals control over their personal data. By informing individuals about the intended use of their data and
allowing them to make choices, consent serves as a mechanism to uphold privacy standards.

Moreover, consent offers flexibility in situations where other legal bases may not be as applicable. It enables
individuals to tailor their preferences and allows for a more nuanced approach to data processing. A crucial aspect of
consent is the right of the data subject to withdraw it at any time. This ensures that individuals retain control over
their data, and if they change their mind, they can revoke their consent without facing adverse consequences.

However, there are considerations and limitations to relying solely on consent. For consent to be valid, it
must meet specific criteria, including being freely given, specific, informed, and unambiguous. Challenges may arise
in situations where there is a clear imbalance of power between the data subject and the controller. In such cases,
obtaining genuine, freely given consent may be difficult, and alternative legal bases might be more appropriate.

It's essential to recognize that consent might not always be the best option, particularly in scenarios where
other legal bases, such as the necessity for the performance of a contract, compliance with legal obligations, or
protection of vital interests, are more suitable. The appropriateness of consent as a legal basis depends on the
specific context and the ability to obtain it in a manner that meets the GDPR's stringent requirements for validity.
Organizations should, therefore, carefully evaluate the circumstances and, if necessary, explore alternative legal
bases for lawful data processing.

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 QUESTIONS UNIT 6

Can a monopolist in gambling advertise in accordance with the freedom to provide services? Elaborate.

Within the EU legal framework, the CJEU recognizes the authority of Member States to maintain monopolies
or concession systems in the gambling sector, provided these restrictions align with legitimate objectives such as
consumer protection, crime prevention, and the maintenance of public morality. This acknowledgment comes within
the broader framework of the freedom to provide services, a fundamental principle allowing businesses to operate
and offer services across borders.

Crucial legal cases, such as Centros (C-212/97) and Inspire Art (C-167/01), contribute essential principles to
this discourse. The Centros case established the right of businesses to incorporate in a Member State with more
favorable company laws, while Inspire Art emphasized the recognition of a company's legal status when moving
operations between Member States.

Applying these principles to the context of advertising, the key consideration is proportionality. Advertising
practices by a monopolist in gambling must be reasonable and justifiable in the pursuit of objectives such as
preventing irresponsible gambling and criminal activities. Moreover, these advertising strategies should align with
overarching EU legal principles, including the freedom to provide services.

In navigating this terrain, challenges arise from the persistence of differences among Member States despite
harmonization efforts. Advertising strategies must navigate through varied gambling regulations, impacting the ability
of a monopolist to operate seamlessly across borders. Ongoing legislative changes within the EU, particularly those
aimed at easing cross-border operations, could also influence the landscape, including advertising practices.

The ability of a monopolist in gambling to advertise in accordance with the freedom to provide services is
thus contingent on a delicate balance. It requires adherence to proportionality, consistency with EU law, and
consideration of the broader legal principles established in relevant cases. The specific regulatory environment,
ongoing legislative developments, and the intricate interplay between monopolies and fundamental freedoms all
contribute to shaping the permissibility and nature of advertising by monopolists within the EU.

Can an MS prevent foreign companies to be in their territory?

The freedom of establishment within the EU guarantees that businesses, including foreign entities, have the
right to set up and operate in any Member State. This principle is reinforced by key legal cases like Centros (C-212/97)
and Inspire Art (C-167/01), which underscore the recognition of legal status and the entitlement of companies to
choose a Member State with more favourable company laws for incorporation.

However, certain sectors, such as gambling, may operate under monopolies or concession systems within
Member States. While foreign companies have the right to establish themselves in any EU country, these specific
sectors may be subject to restrictions or specialized regulatory frameworks. The Court of Justice of the European
Union (CJEU) acknowledges the authority of Member States to maintain such systems, provided they are
proportionate and aligned with legitimate objectives, like consumer protection and crime prevention.

How are creditors protected?

Protecting creditors within the EU involves a complex interplay of legal principles, regulations, and EU
freedoms. Central to this is the recognition of limited liability, exemplified in cases like Centros (C-212/97) and Inspire
Art (C-167/01), ensuring companies are liable only up to their investments. The principle of proportionality is crucial,
ensuring that regulatory measures in member states align with legitimate objectives without disproportionately
affecting creditor protection.

The freedom of establishment allows companies to choose member states based on favorable laws,
influencing liability and creditor protection. Harmonization efforts within the EU contribute to a consistent legal
framework. Recognizing companies' legal status across borders, as emphasized in cases like Inspire Art, ensures
uniform creditor protection. Ongoing legislative changes aim to enhance the legal framework for creditor protection,
striking a delicate balance between fundamental EU freedoms and safeguarding creditors' rights in the dynamic
landscape of cross-border business operations.

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 Can an MS prevent its own companies from moving seat abroad?

Although a Member State has the right to set conditions for its companies, including restrictions on seat
relocation, it must also recognize the legal framework of the host state. Furthermore, the evolving legal landscape
within the EU acknowledges the importance of facilitating cross-border mergers, conversions, and divisions.
Therefore, an outright prohibition on relocating the seat abroad may not be absolute. Indeed, subsequent cases such
as VALE and Polbud emphasize a more flexible approach, allowing for adaptations in the regulatory framework to
accommodate the changing dynamics of cross-border business operations within the EU. In other words, changes
into the law of the host state must be allowed by the state of origin. Importantly, Polbud emphasized the possibility
of allowing the relocation of the statutory seat alone, depending on the regulations of the host state.

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 FINAL REVISION

THE EUROPEAN UNION

1. How does the European Union differ from international organizations?

The European Union (EU) stands apart from traditional international organizations due to its unique and
unprecedented nature.

 Which features do international organizations and the EU share?

While both the EU and international organizations are rooted in treaties and involve member states collaborating on
shared goals, the EU possesses distinctive features that set it apart.

 Which features does the EU have that international organizations do not have?

One crucial distinction lies in the supranational nature of the EU. Unlike traditional international organizations, the
EU has supranational characteristics, meaning its institutions, such as the European Commission and the European
Parliament, wield authority that directly influences member states. This supranationality reflects a deeper delegation
of sovereignty by EU member states compared to the relatively more intergovernmental nature of traditional
international organizations.

 The EU’s legal order is a legal order “sui generis”. What does that mean?

The term "sui generis" is often used to describe the EU's legal order. Essentially, this means that the EU's legal
framework is of its own kind, defying easy categorization into existing models of legal systems. It is a hybrid,
combining elements of international law and constitutional law. This uniqueness is evidenced by the supremacy of
EU law over national laws and the establishment of institutions that operate independently on behalf of the
collective EU interest.

In contrast to traditional international organizations, the EU has developed exclusive competences in certain policy
areas, such as competition policy and the customs union. In these domains, EU law prevails, and member states
relinquish their ability to legislate independently. This level of integration surpasses the typical scope of international
cooperation.

Moreover, the EU's legal order introduces the concept of direct effect, allowing individuals and businesses to rely on
EU law in national courts. The principle of the primacy of EU law ensures that conflicting national laws take a
backseat to EU legal provisions. Additionally, the EU has established citizenship, providing individuals with EU
citizenship in addition to their national citizenship, affording them specific rights, such as freedom of movement
within the EU.

2. How has the EU evolved from a purely economic union to a political one?

The European Union (EU) has undergone a profound transformation from its early days as a primarily economic
union to its current status as a multifaceted political entity. This evolution is a testament to the dynamic nature of the
EU project and the collective aspirations of its member states.

Initially conceived as an economic cooperation initiative, the EU's foundations were laid with the establishment of
the European Coal and Steel Community (ECSC) in 1951 and the European Economic Community (EEC) in 1957. These
early steps were driven by the vision of fostering economic collaboration, dismantling trade barriers, and promoting
shared prosperity among participating nations.

The transition from a purely economic focus to a more politically oriented entity gained momentum with the Single
European Act of 1986. This pivotal legislation aimed to create a single market by removing remaining impediments to
the free movement of goods, services, capital, and people. The economic integration achieved during this phase not
only facilitated cross-border trade but also set the stage for a more interconnected European community.

The Maastricht Treaty of 1992 marked a watershed moment in the EU's trajectory. While formally establishing the
European Union, this treaty broadened its objectives beyond economic considerations. The creation of the three-
pillar structure—comprising European Communities, Common Foreign and Security Policy (CFSP), and Police and
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Judicial Cooperation in Criminal Matters—reflected a strategic move towards encompassing foreign policy, security,
and justice.

The introduction of the euro in 1999 and the subsequent adoption of physical euro banknotes and coins in 2002
represented a significant stride toward political integration. The Economic and Monetary Union (EMU) aimed to
coordinate economic policies, and the euro symbolized a shared currency, reinforcing the political will for a more
tightly-knit union.

Enlargement in the early 2000s, incorporating several Eastern European countries, not only expanded the EU
geographically but also contributed to its political dimension. The inclusion of nations transitioning from former
communist systems facilitated the spread of democratic values and political stability.

The Lisbon Treaty, in force since 2009, further solidified the political aspects of the EU. It enhanced the role of the
European Parliament, established a permanent president of the European Council, and created the High
Representative for Foreign Affairs and Security Policy. These institutional reforms aimed to streamline decision-
making processes and enhance the EU's influence on the global stage.

The EU's engagement in common foreign and security policy, including the development of a European Security and
Defense Policy (ESDP), demonstrated a growing commitment to political cooperation. Efforts to coordinate
diplomatic initiatives, crisis management, and defense capabilities reflected an ambition for a unified stance on
international issues.

Challenges such as the migration crisis and geopolitical shifts have compelled the EU to strengthen its political
cohesion. Responses to these challenges, including the development of a common approach to migration and
initiatives for a more strategic autonomy in security and defense matters, underscore the EU's ongoing political
evolution.

3. Which main EU institutions are there? Which roles do they play?

The European Union (EU) is characterized by a complex institutional framework that involves several key institutions,
each playing distinct roles in the decision-making and governance processes. The main EU institutions include the
European Parliament, the European Council, and the European Commission.

 What does the EU Parliament do? Who are the members?

Role: The European Parliament is the directly elected legislative body of the EU. It plays a crucial role in shaping EU
legislation, overseeing the implementation of policies, and scrutinizing the work of other EU institutions. The
Parliament represents the interests of EU citizens and ensures that their voices are considered in the decision-making
process.

Members: Members of the European Parliament (MEPs) are elected by EU citizens in their respective member states.
The number of MEPs from each country is proportionate to its population.

 What does the European Council do? Who are the members?

Role: The European Council provides the EU with strategic direction and guidance. It sets the overall political
priorities and addresses key issues facing the EU. The European Council is instrumental in shaping the general policy
approach, and it often convenes to discuss major challenges and provide impetus for common action.

Members: The European Council is composed of the heads of state or government of the EU member states, along
with the President of the European Council and the President of the European Commission.

 What does the European Commission do? Who are the members?

Role: The European Commission is the executive branch of the EU responsible for proposing legislation,
implementing decisions, and managing the day-to-day affairs of the EU. It acts independently and in the general
interest of the EU. The Commission also represents the EU in international negotiations and ensures the proper
functioning of EU policies.

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Members: The European Commission consists of commissioners, including the President of the European
Commission and one commissioner from each member state. The President is elected by the European Parliament,
and the other commissioners are appointed in agreement with the member states.

4. Do the terms “European Council,” “Council of the EU,” and “Council of Europe” describe the same
institution?

The terms "European Council," "Council of the EU," and "Council of Europe" refer to distinct institutions, and they do
not describe the same entity. Each institution serves different purposes and has different memberships. Here's an
explanation of the differences:

 What is the main difference between the Council of Europe and the other two institutions?

The main difference lies in their functions, memberships, and areas of focus. The European Council and the Council
of the EU are EU institutions, with the former focused on providing strategic direction, while the latter involves
ministers dealing with specific policy areas. On the other hand, the Council of Europe is an international organization
promoting broader cooperation in the European region, emphasizing human rights and democratic principles.

 Who is represented in these institutions?

The European Council represents the heads of state or government of EU member states. In the Council of the
European Union, each member state is represented by the minister responsible for the relevant policy area. While
the Council of Europe includes a broader membership, encompassing European countries that may not be part of the
EU. It is a forum for cooperation on legal standards and intergovernmental dialogue.

5. How does the ordinary legislative procedure within the EU work?

The ordinary legislative procedure within the European Union is a process through which EU legislation is adopted.
Several EU institutions are involved in this procedure, each playing a distinct role.

 Which EU institutions are involved in the procedure?

At its core, this procedure involves three key institutions: the European Commission, the European Parliament, and
the Council of the EU.

 What role does the Commission have?

The European Commission serves as the driving force behind the legislative process. As the initiator, it proposes new
laws or amendments to existing ones. The Commission, composed of representatives appointed by each member
state, operates independently in the interest of the EU as a whole. Prior to proposing legislation, the Commission
conducts comprehensive impact assessments and engages in consultations with stakeholders to ensure a well-
informed approach.

Once a legislative proposal is set forth, the European Parliament and the Council of the EU come into play. The
European Parliament, representing the EU citizens through directly elected Members of the European Parliament
(MEPs), actively participates in the legislative process. MEPs contribute their insights and, crucially, cast votes on
proposed legislation.

On the other hand, the Council of the EU, also known as the Council of Ministers, represents the governments of
member states. Different configurations of the Council are involved depending on the policy area under
consideration. This ensures that diverse perspectives from member states are considered during the legislative
process.

An integral aspect of the legislative procedure is the trialogue.

 What does the term "trialogue" refer to in this context?

This term denotes informal negotiations among representatives from the three main institutions: the European
Commission, the European Parliament, and the Council of the EU. Trialogues provide a forum for in-depth
discussions, compromise-building, and the resolution of potential disagreements.

26
The overall procedure follows a structured path. It commences with the Commission's proposal, undergoes scrutiny
and potential amendments during the first reading by the Parliament and the Council, and then enters a critical
phase of trialogue negotiations. These negotiations aim to achieve a consensus on the final text of the proposed
legislation.

Subsequently, the legislative proposal goes through a second reading in the Parliament. If the agreed-upon text is
accepted, it proceeds to the Council for approval. Upon receiving approval from the Council, the legislation is
formally adopted and becomes law.

TYPES OF EU LAW

1. What is primary EU law?

Primary EU law refers to the foundational legal framework that establishes and governs the European Union. It
constitutes the supreme source of law within the EU legal system, laying down the fundamental principles,
objectives, and institutions of the Union. Primary EU law is characterized by its superior authority, providing the legal
basis for the entire European integration project.

The key components of primary EU law include:

1. Treaties: The primary treaties serve as the cornerstone of the EU legal order. The Treaty on European Union
(TEU) and the Treaty on the Functioning of the European Union (TFEU) are the principal treaties. These
treaties outline the Union's objectives, competences, and functioning. Treaties are adopted through
intergovernmental negotiations among member states and require ratification by each member state to
come into force.

2. Charter of Fundamental Rights of the European Union: The Charter encapsulates the fundamental rights
and freedoms guaranteed to individuals within the EU. It has constitutional significance and sets out the
Union's commitment to upholding human rights, dignity, and equality.

3. General Principles of EU Law: These principles, though not explicitly enumerated in the treaties, have been
recognized by the European Court of Justice (ECJ) and play a crucial role in the development of EU law.
Examples include the principles of proportionality, legal certainty, and protection of legitimate expectations.

4. International Agreements: Agreements concluded by the EU with third countries or international

organizations contribute to primary EU law when they are part of the legal order and have been integrated
into the EU legal framework.

Primary EU law has supremacy over the national laws of member states. The doctrine of supremacy, established by
the ECJ, dictates that when there is a conflict between EU law and national law, EU law prevails. This principle
ensures the uniform interpretation and application of EU law across all member states, fostering the coherence and
effectiveness of the Union.

2. What distinguishes a Regulation from a Directive?

Regulations, as a form of legislative act, possess a broad reach with general applicability and full legal force across the
EU. They are binding in their entirety and do not necessitate transposition into national law. Instead, Regulations
offer a uniform legal framework that takes effect simultaneously across member states.

In contrast, Directives outline specific objectives that all member states are obligated to attain. Unlike Regulations,
Directives lack direct applicability and require national implementation. Member states retain the flexibility to
determine the form and method of implementation, adapting the directive to suit their individual legal and
administrative structures.

 Which conditions need to be fulfilled for a Directive to be directly applicable?

The condition for the direct applicability of a Directive hinges on the clarity, precision, and unconditionality of its
provisions. When these criteria are met, member states are not obligated to pass additional legislation to enforce the
Directive, as it can be directly invoked before national courts.

27
  What does maximum harmonization mean?

The concepts of maximum and minimum harmonization are integral to understanding the dynamics of EU directives.
Maximum harmonization, notably associated with directives related to the internal market, dictates that member
states are barred from maintaining or introducing national regulations that surpass the standards set by the directive.
This approach ensures a consistent regulatory environment and prevents regulatory disparities that could hinder the
functioning of the internal market.

 What does minimum harmonization mean?

Conversely, minimum harmonization provides member states with more leeway. Directives adopting this approach
establish a baseline standard that must be met, yet member states are granted the freedom to implement
supplementary measures or higher standards if they choose. This acknowledges and respects the diversity of legal
systems and regulatory traditions across the EU.

3. What can be done if a Member State does not implement a Directive properly?

When a Member State falls short in properly implementing a Directive, the European Union has established a set of
procedures to address and rectify such instances of non-compliance. This process is crucial for maintaining
consistency and coherence in the application of EU law across all member states.

At the heart of this enforcement mechanism is the European Commission, entrusted with the role of the guardian of
the treaties. If the Commission identifies that a Member State has not fulfilled its obligations under a Directive, it
takes on the responsibility of initiating infringement proceedings. This legal course of action serves as a means of
holding Member States accountable for their failure to adhere to EU law.

The progression of an infringement procedure involves several stages. It commences with the issuance of a Letter of
Formal Notice, where the Commission informs the Member State of the alleged breach and seeks clarification. If the
response proves unsatisfactory, the Commission proceeds to issue a Reasoned Opinion. This comprehensive
document outlines the legal basis for the infringement claim and urges the Member State to rectify the situation
within a specified timeframe.

Should the Member State persist in its non-compliance, the Commission has the authority to escalate the matter by
referring it to the Court of Justice of the European Union (CJEU). The CJEU then assumes the role of evaluating the
legality of the Member State's actions and has the power to impose financial penalties if deemed necessary.

PRINCIPLES OF EU LAW

1. How does the principle of conferral align with state sovereignty?

The principle of conferral aligns with state sovereignty by defining the precise extent of EU competences and
reinforcing that the Union's authority is contingent upon the express grant of powers by its sovereign member states.
This principle is fundamental to maintaining the balance between a united Europe and the preservation of national
sovereignty.

2. What does the principle of subsidiarity prescribe?

The principle of subsidiarity in the European Union dictates that decisions should be made at the most local level
possible, with higher authorities intervening only when necessary. This ensures that the EU acts when member states
cannot achieve objectives adequately on their own or when EU-level action is more effective due to scale or impact.
The principle aims to avoid unnecessary centralization, respecting the autonomy of member states and promoting
effective decision-making.

3. What does the principle of proportionality mean?

The principle of proportionality in EU law requires that any action taken by the EU institutions should not exceed
what is necessary to achieve the objectives of the Treaties. It ensures that the measures adopted do not go beyond
what is needed to address the identified issues and that the impact on individual rights or national interests is
28
proportionate to the intended goal. This principle acts as a safeguard, preventing arbitrary or excessive use of EU
powers and promoting a balanced approach in EU decision-making.

What does “supremacy” refer to in the context of EU law?

In the context of EU law, the principle of supremacy refers to the precedence of EU law over conflicting national laws.
The European Court of Justice (ECJ) established the doctrine of supremacy through its rulings in landmark cases, such
as Costa v ENEL (1964) and Van Gend en Loos (1963). According to this principle, EU law is superior to the laws of its
member states, and national courts are obliged to set aside any provisions of national law that contradict EU law.

The supremacy of EU law ensures the uniform application and interpretation of EU legal rules across all member
states. It also allows individuals to rely on EU law in national courts, and national authorities are required to ensure
the effective application of EU law within their jurisdictions. The principle of supremacy is fundamental to the
functioning of the EU's legal order, emphasizing the primacy of EU law in the legal hierarchy of member states.

THE SINGLE MARKET

1. Which four basic freedoms does the Single Market guarantee?

Free Movement of Goods: This ensures the unrestricted movement of goods across national borders within the EU.
It eliminates customs duties and quantitative restrictions, allowing goods to be traded freely among member states.

Free Movement of Services: This freedom allows service providers to offer their services across EU borders without
facing discrimination. It promotes competition and facilitates the cross-border provision of services.

Free Movement of Capital: This freedom allows capital to flow freely between EU member states. It eliminates
restrictions on capital movements, such as controls on foreign exchange.

Free Movement of Persons: This ensures that EU citizens have the right to move and reside freely within the
territory of the member states. It includes the right to work in another EU country and is a cornerstone of EU
citizenship.

These four freedoms collectively aim to create a unified and integrated economic space, fostering economic growth,
competition, and cooperation among EU member states. They are enshrined in the EU treaties and are essential
components of the Single Market framework.

2. The four fundamental freedoms are rights of the individual. Who are they directed against?

The four fundamental freedoms in the Single Market of the European Union are directed towards eliminating trade
barriers and promoting economic growth within the EU. The freedoms are also intended to protect the rights of
individuals by ensuring that they can live, work, and do business in any EU country without facing discrimination.

 How may a state be defined?

A state, in the context of international law, is a sovereign entity with defined borders, a permanent population, a
government, and the capacity to enter into relations with other states. In the EU context, member states are
sovereign entities that have voluntarily agreed to pool their sovereignty to some extent for common purposes.

 Do the four freedoms apply to private entities?

While the four freedoms primarily concern the rights of individuals, they also impact private entities, such as
businesses and corporations. Private entities benefit from the freedoms, as they can operate more freely across
borders, contributing to the overall economic integration and functioning of the Single Market. The freedoms are
instrumental in creating a level playing field for both individuals and private entities within the EU.

29
 3. An Austrian worker wants to return to Austria after spending some time abroad. The Austrian state
hinders him from entering the country. Could the Austrian worker invoke the treaty freedoms against
Austria?

Yes, the Austrian worker could potentially invoke the treaty freedoms against Austria. The treaty freedoms,
particularly the Free Movement of Persons, grant EU citizens the right to live and work in any member state. If the
Austrian worker is facing hindrance from re-entering Austria, and there is no justifiable reason for this restriction, the
worker may have grounds to invoke the treaty freedoms.

 What is a cross-border element?

A cross-border element refers to a situation involving movement, activities, or relationships that extend beyond the
borders of a single member state within the European Union. The EU treaty freedoms, including the Free Movement
of Persons, are designed to facilitate cross-border activities and ensure that individuals can move freely within the EU
without facing unjustified obstacles.

In the case of the Austrian worker, the cross-border element would involve the worker's movement across national
borders within the EU. The worker, having spent time abroad, is seeking to return to Austria, and any hindrance
imposed by the Austrian state on this movement could be subject to scrutiny under the principles of the Free
Movement of Persons. If the worker's right to re-enter Austria is unjustifiably restricted, it may be considered a
violation of the treaty freedoms, and the worker could potentially challenge such restrictions.

4. What is direct discrimination?

Direct discrimination refers to the unjust and explicit differential treatment of individuals or groups based on
nationality or other discriminatory grounds. In the context of the EU's single market, direct discrimination involves
treating individuals from one member state less favourably than those from another member state in a similar
situation.

 May direct discrimination be justified? Give an example.

Direct discrimination is generally not permitted under EU law and the principles of the single market. However, there
are limited circumstances where certain restrictions or differentiations may be justified if they serve a legitimate
purpose and are proportionate to that purpose.

For example, direct discrimination might be justified on the grounds of public policy, public security, or public health.
If a member state can demonstrate that a particular restriction is necessary to protect an essential interest and is
proportionate to the objective pursued, it may be considered justified.

Suppose a member state imposes a temporary restriction on the entry of individuals from another member state due
to a public health emergency, such as a contagious disease outbreak. In this case, the direct discrimination based on
nationality (treating individuals from that state differently) may be justified to protect public health, as long as it is
necessary and proportionate to the specific health objective.

5. What is indirect discrimination?

Indirect discrimination occurs when a rule, criterion, or practice that is neutral on its face disproportionately affects
individuals from a particular nationality or group, and there is no objective justification for this disparate impact. In
the context of the EU's single market, indirect discrimination is contrary to the principle of equal treatment.

 May indirect discrimination be justified? Give an example.

Similar to direct discrimination, indirect discrimination is generally not allowed under EU law. However, there are
situations where indirect discrimination may be justified if the measure serves a legitimate objective and is
proportionate to achieving that objective.

Consider a requirement that all workers in a certain sector must have a specific professional qualification, and this
qualification is easily obtainable in the country where the majority of the workers are based. If this indirectly puts
workers from other member states at a disadvantage due to the differing availability or accessibility of the

30
qualification, it might be considered indirectly discriminatory. Nevertheless, if the qualification is necessary for
ensuring high professional standards and the requirement is proportionate to that objective, it could be justified. The
key is that the measure should pursue a legitimate aim and not go beyond what is necessary to achieve that aim.

6. What is a proportionality test? What does it entail?

The proportionality test is a fundamental principle in EU law, including within the context of the single market. It
involves assessing whether a measure or action taken by a Member State is proportionate to the objective it seeks to
achieve. The proportionality test has three components:

First and foremost is the aspect of suitability, demanding that a measure should be apt in achieving its intended
legitimate objective. This underscores the importance of a measure aligning with the pursued goal.

Moving along, the principle of necessity requires that the chosen measure does not overstep what is truly essential
for reaching its objective. If there are alternative measures that are less intrusive yet equally effective, the chosen
measure might be deemed disproportionate.

A crucial dimension of the proportionality test involves a delicate balancing act. This entails weighing the benefits
derived from the measure against the potential adverse impacts on the rights or interests at stake. It necessitates a
meticulous assessment to ensure that the positive outcomes outweigh any negative repercussions.

 Apart from proportionality, which other aspects need to be taken into account?

Apart from proportionality, other aspects that need to be taken into account include the legitimacy of the objective
pursued by a Member State, which must align with recognized objectives under EU law, such as public health or
environmental protection.

Non-discrimination stands as another fundamental consideration. The measure should not, under any circumstances,
lead to unjustified discrimination, whether it be direct or indirect, based on nationality or other prohibited grounds.

Consistency further reinforces the scrutiny; measures should be consistently applied, with Member States avoiding
practices that could undermine the harmonious functioning of the single market.

In essence, the proportionality test acts as a safeguard, ensuring that Member States navigate the delicate balance
between pursuing their legitimate objectives and upholding the principles that underpin the European Union,
particularly within the dynamic landscape of the single market.

DISCRIMINATION – EXAMPLE

1. The VAT charged for goods produced in France is half that for products not produced in France.

 Direct discrimination.

 Justification?

Justification could be grounded in legitimate objectives pursued by the Member State and a proportionate means of
achieving those objectives. For instance, if the reduced VAT for French-produced goods aims to promote domestic
industries, stimulate economic growth, or safeguard employment, such objectives might be considered legitimate.

Nevertheless, for the justification to hold, it must meet the criteria of necessity and proportionality. It should be
demonstrated that the disparate VAT treatment is genuinely necessary to achieve the intended objectives, and there
should not be less restrictive measures available that could achieve the same goals without discriminating based on
the origin of the goods.

2. A Dutch national worked as a temporary part-time art teacher in Ireland. She applied to become a full-time
permanent art teacher. She fulfilled all the requirements but only got the job under one condition: All
permanent teachers had to be able to speak Gaelic (C-379/87).

 Indirect discrimination.
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  Justification?

To justify such a condition, the Member State (Ireland, in this case) would need to demonstrate that the language
requirement is necessary for the effective performance of the job. The justification should be based on the genuine
need for teachers to communicate effectively in Gaelic with students, colleagues, or other stakeholders, and there
should be no less discriminatory alternatives available.

The Court of Justice of the European Union (CJEU) has consistently held that language requirements can be justified if
they are genuinely necessary for the job. However, the justification must be assessed on a case-by-case basis,
considering the specific circumstances of the position and the actual language requirements.

FREE MOVEMENT OF GOODS

1. Art 34 TFEU: "Quantitative restrictions on imports and all measures having equivalent effect shall be
prohibited between Member States."

 What does the expression “measures having equivalent effect” refer to?

The expression "measures having equivalent effect" in Article 34 of the Treaty on the Functioning of the European
Union (TFEU) refers to any non-tariff barriers or obstacles to the free movement of goods between Member States
that, while not explicitly taking the form of customs duties, have a similar effect. These measures could include any
regulations, requirements, or practices imposed by a Member State that hinder the free movement of goods.

 Which conditions must measures having equivalent effect fulfil to be justified?

To be justified, measures having equivalent effect must fulfil certain conditions, which are established through the
case law of the Court of Justice of the European Union (CJEU). The key conditions include:

Necessity: The measure must be necessary to achieve a legitimate aim such as public health, consumer protection,
or the prevention of deceptive practices. It should be proportionate to the objective pursued, meaning that it should
not go beyond what is necessary to attain the legitimate aim.

Non-discrimination: The measure should not be discriminatory. It must apply equally to domestic and imported
goods, treating them alike in both law and fact.

Mutual Recognition: If a product is lawfully marketed in one Member State, it should be accepted in other Member
States unless there is a valid justification to restrict it.

2. Why do selling arrangements fall outside the scope of the treaty?

Selling arrangements fall outside the scope of the treaty, because they are considered to be part of the purely
internal aspects of trade. The Treaty on the Functioning of the European Union (TFEU) primarily addresses measures
adopted by Member States that directly affect or restrict the cross-border movement of goods. Selling arrangements,
on the other hand, pertain to the way in which goods are presented and sold within a Member State.

While the EU aims to ensure the free movement of goods, it respects the autonomy of Member States in organizing
their internal markets, including how products are presented and sold to consumers. Selling arrangements are
considered to be part of the internal organization of a market and do not, in themselves, constitute barriers to the
free movement of goods between Member States. This approach allows Member States to maintain certain
regulatory powers over their internal markets without impeding the overall objective of a single, integrated European
market.

DATA PROTECTION: BASICS AND GDPR’S TERMINOLOGY

1. What is a recital?

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Recitals in the General Data Protection Regulation (GDPR) provide essential context and rationale for the legal
articles, aiding in interpretation. Unlike binding articles, recitals are not legally enforceable but offer crucial insights
into the motivations and considerations behind GDPR provisions. Covering topics such as fundamental rights, data
processing principles, and legal bases, recitals contribute to a comprehensive understanding of the regulation. While
non-binding, they play a vital role in guiding legal interpretation, promoting harmonized data protection practices
across the EU.

2. Which data is subject to GDPR?

The General Data Protection Regulation (GDPR) applies to the processing of personal data. Personal data refers to
any information relating to an identified or identifiable natural person. This includes a broad range of data, such as
names, identification numbers, location data, online identifiers, and factors specific to the person's physical,
physiological, genetic, mental, economic, cultural, or social identity. The GDPR establishes principles and rules for the
lawful and fair processing of personal data, ensuring individuals' rights and freedoms are protected in the digital age.

3. What does “identifiable” mean?

In the context of data protection and GDPR, "identifiable" refers to the ability to single out an individual within a
group. An identifiable person is someone who can be distinguished and recognized based on the data, either directly
or indirectly. Direct identification may occur when the information alone, such as a name or unique identifier, allows
for the identification of an individual. Indirect identification involves using additional information or a combination of
data to identify a person.

The GDPR applies to the processing of personal data of identifiable individuals, and its provisions aim to safeguard
the rights and privacy of these individuals in the handling of their data.

4. Does keeping a personal address book require GDPR compliance?

Yes, keeping a personal address book may trigger GDPR compliance requirements, depending on the context and the
nature of the data processing. If the address book contains personal data, such as names and contact information, of
individuals who are identifiable, the processing of this data falls under the scope of the General Data Protection
Regulation (GDPR).

Under the GDPR, individuals have certain rights regarding their personal data, and organizations or individuals
processing such data must adhere to specific principles and obligations. This includes obtaining valid consent for
processing, ensuring the security of the data, and providing individuals with the right to access, rectify, or erase their
personal information.

5. Does GDPR apply to pseudonymized data? Why (not)?

Even though pseudonymization reduces the risk to data subjects, it does not exempt the data from GDPR obligations.
Pseudonymized data is still considered personal data under the GDPR because it can be linked back to individuals
with the help of additional information held separately (known as the "key"). Therefore, organizations handling
pseudonymized data must still comply with GDPR principles, including ensuring the lawfulness, fairness, and
transparency of processing, as well as respecting individuals' rights and implementing appropriate security measures.

PROCESSING OF PERSONAL DATA

1. Is processing of personal data allowed in principle?

Yes, processing of personal data is allowed in principle under the General Data Protection Regulation (GDPR).
However, the processing must comply with the principles and conditions set out in the GDPR to ensure the
protection of individuals' rights and freedoms.

The GDPR advocates for the lawful, fair, and transparent handling of personal data. It requires organizations to
process only the amount of personal data necessary for the intended purpose, and to keep the data accurate and up-
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to-date. The regulation also emphasizes purpose limitation, ensuring that personal data is collected only for specific,
explicit, and legitimate purposes. Moreover, the GDPR requires organizations to retain personal data only for as long
as necessary, implement measures to protect personal data from unauthorized or unlawful processing, and
demonstrate compliance with the regulation’s principles. This involves adopting practices that align with the legal
bases outlined in the regulation, such as obtaining explicit consent, fulfilling contractual obligations, or pursuing
legitimate interests while respecting individuals’ rights.

2. Which data protection roles do you know?

There are distinct roles:

Data Controller: This entity determines the purposes and means of personal data processing. They are responsible
for ensuring compliance with data protection regulations and safeguarding individuals' rights.

Data Processor: Acting on behalf of the controller, the processor handles personal data. They must follow the
controller's instructions and implement appropriate security measures to protect the data.

Data Protection Officer (DPO): This role is optional for some organizations but mandatory for others, especially
public authorities or those conducting extensive monitoring or processing of sensitive data. The DPO oversees data
protection strategy and ensures compliance with regulations like the GDPR.

Data Subject: This refers to the individual whose personal data is being processed. They have specific rights regarding
the handling of their data.

3. Name three legal bases and examples when to use them.

Consent: Processing is lawful if the data subject has given clear and unambiguous consent. For example, a marketing
campaign may rely on consent for sending promotional emails.

Contractual Necessity: Processing is necessary for the performance of a contract with the data subject or to take pre-
contractual steps at their request. An example is processing payment information for goods or services.

Legal Obligation: Processing is necessary for compliance with a legal obligation to which the data controller is
subject. For instance, an organization may process employee data to fulfil tax reporting requirements.

Another one, to be sure:

Legitimate Interests: Processing is lawful if it is necessary for the legitimate interests pursued by the data controller
or a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of
the data subject. An example could be using customer data for internal analytics to improve services, provided it
doesn't infringe on the rights of the individuals involved.

4. How can a controller determine whether his/her legitimate interests are overriding those of the data
subject? Give an example.

In determining whether legitimate interests of the data controller override those of the data subject, the controller
must conduct a balancing test. This involves considering the nature of the legitimate interests pursued, the impact on
the data subject, and any safeguards in place.

For example, a marketing company may argue that sending promotional emails to existing customers is in its
legitimate interest. However, if the frequency of emails becomes excessive or if sensitive information is processed
without consent, the balance may shift in favour of the data subject's interests, requiring the controller to reconsider
its approach or implement additional safeguards.

5. Would you consider consent a practical legal basis? If so, why (not)?

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 Consent is recognized as a legal basis for processing personal data under the General Data Protection
Regulation (GDPR). This is grounded in the principle that individuals should have the autonomy to decide how their
personal information is used. When a data subject provides consent, it signifies their voluntary agreement for a
specific purpose of data processing. Consent aligns with key principles of the GDPR, emphasizing transparency and
giving individuals control over their personal data. By informing individuals about the intended use of their data and
allowing them to make choices, consent serves as a mechanism to uphold privacy standards.

Moreover, consent offers flexibility in situations where other legal bases may not be as applicable. It enables
individuals to tailor their preferences and allows for a more nuanced approach to data processing. A crucial aspect of
consent is the right of the data subject to withdraw it at any time. This ensures that individuals retain control over
their data, and if they change their mind, they can revoke their consent without facing adverse consequences.

However, there are considerations and limitations to relying solely on consent. For consent to be valid, it
must meet specific criteria, including being freely given, specific, informed, and unambiguous. Challenges may arise
in situations where there is a clear imbalance of power between the data subject and the controller. In such cases,
obtaining genuine, freely given consent may be difficult, and alternative legal bases might be more appropriate.

It's essential to recognize that consent might not always be the best option, particularly in scenarios where other
legal bases, such as the necessity for the performance of a contract, compliance with legal obligations, or protection
of vital interests, are more suitable. The appropriateness of consent as a legal basis depends on the specific context
and the ability to obtain it in a manner that meets the GDPR's stringent requirements for validity. Organizations
should, therefore, carefully evaluate the circumstances and, if necessary, explore alternative legal bases for lawful
data processing.

6. Do you need a legal basis for transferring data between entities of the same group? Does it make a
difference if a processor or controller is involved?

Yes, a legal basis is required for transferring personal data between entities of the same group, even if they belong to
the same corporate group. The General Data Protection Regulation (GDPR) mandates that any transfer of personal
data must comply with its principles and requirements.

Whether a processor or controller is involved does make a difference. In the case of intra-group transfers, if both
entities are part of the same legal entity (e.g., a single company), and the transfer is for internal administrative
purposes, a legal basis may not be explicitly required. However, if the entities are separate legal entities within the
group, such transfers are subject to GDPR rules.

For transfers between different legal entities, the data controller must establish a legal basis, such as obtaining
consent, fulfilling a contract, complying with legal obligations, protecting vital interests, performing a task carried out
in the public interest or in the exercise of official authority, or relying on legitimate interests. Additionally, appropriate
safeguards, such as binding corporate rules (BCRs) or standard contractual clauses (SCCs), may be necessary,
especially when transferring data outside the European Economic Area (EEA).

7. Under which circumstances may personal data of data subjects located in the EU be transferred to a third
country?

Transferring personal data from the European Union to a third country involves adherence to the General Data
Protection Regulation (GDPR). The GDPR outlines specific mechanisms to ensure data privacy. An "adequacy
decision" by the European Commission assesses whether the third country meets GDPR standards. Standard
Contractual Clauses (SCCs) provide a framework for data transfers, and Binding Corporate Rules (BCRs) can be
established for multinational corporations, subject to approval. Explicit and informed consent from data subjects is a
valid basis, but it must meet strict GDPR criteria.

When these options are impractical, Article 49 of the GDPR allows derogations for specific circumstances, such as
contractual performance, protecting vital interests, or legal claims. Organizations must assess the applicable
mechanism based on the transfer context to comply with GDPR standards.

8. What is a transfer impact assessment?

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A Transfer Impact Assessment refers to an evaluation conducted by a data controller to assess the potential risks and
implications associated with transferring personal data from one location to another, especially when the data is
moved across borders. This assessment is crucial for ensuring compliance with data protection regulations, such as
the General Data Protection Regulation (GDPR).

The assessment involves analysing various factors, including the nature of the data, the purpose of the transfer, the
legal and regulatory framework in the destination country, and the security measures in place during and after the
transfer. The goal is to identify and mitigate potential risks to the privacy and rights of data subjects.

By conducting a Transfer Impact Assessment, organizations can demonstrate their commitment to safeguarding
personal data and make informed decisions regarding data transfers, aligning with the principles of transparency and
accountability outlined in data protection laws.

DATA SUBJECTS’ RIGHTS ET ALIA

1. How much time does a controller have to comply with data subjects’ rights requests?

In accordance with data protection regulations, such as the General Data Protection Regulation (GDPR), a data
controller is generally required to respond to data subjects' rights requests without undue delay and, in any case,
within one month of receiving the request. However, this period can be extended by an additional two months if the
requests are complex or numerous.

The right of access, right to rectification, right to erasure (right to be forgotten), and other data subjects' rights fall
under this timeframe. It is essential for controllers to handle these requests promptly and provide clear and
transparent information to data subjects about the actions taken in response to their requests. Additionally,
controllers must inform data subjects of any extensions to the initial one-month period and the reasons for the delay.

2. Does a controller have to comply with an access request even though it does not process the requesting
data subject’s personal data?

Yes, under data protection regulations, a data controller is generally obligated to respond to a data subject's access
request, even if the controller does not process the requesting data subject's personal data. The right of access, also
known as the right to know what personal data is being processed and how, is a fundamental data subject right
under laws such as the General Data Protection Regulation (GDPR).

In such cases, the controller should inform the data subject about the absence of their personal data in the
processing activities and provide any relevant details regarding the non-processing. Clear and transparent
communication is crucial in addressing data subjects' rights, even when the response involves informing them that
their data is not being processed by the controller.

3. What is the record of processing activities? Who is obligated to maintain such records?

The record of processing activities is a document or set of documents that details the data processing activities
carried out by a data controller. It includes information about the types of personal data processed, the purposes of
the processing, the categories of data subjects involved, the recipients of the data, data retention periods, and other
relevant details. Essentially, it provides an overview of how an organization processes personal data.

Under the General Data Protection Regulation (GDPR), Article 30 mandates that both data controllers and data
processors maintain records of processing activities. The records are essential for demonstrating compliance with the
GDPR's principles and ensuring transparency and accountability in data processing practices. Controllers and
processors must make these records available to supervisory authorities upon request.

In summary, the record of processing activities serves as a tool to document and manage an organization's data
processing practices, helping to facilitate compliance with data protection regulations.

4. What is a data protection officer? Name three of his/her tasks.

A Data Protection Officer (DPO) holds a pivotal role within an organization, particularly in the context of
contemporary data protection regulations like the General Data Protection Regulation (GDPR). Acting as a watchdog

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for compliance, the DPO diligently monitors the organization's adherence to data protection laws, leaving no room
for oversight or potential breaches.

One of the core responsibilities of the DPO is to provide continuous guidance and education to the organization's
workforce. This involves not only informing employees about their individual responsibilities but also cultivating a
culture of privacy awareness. Through training sessions and regular communication, the DPO ensures that every
member of the organization understands the significance of safeguarding personal data.

In addition to an internal-facing role, the DPO serves as a crucial point of contact for external entities, particularly
supervisory authorities. Establishing a channel of communication with these authorities, the DPO acts as a liaison,
promptly addressing any queries or concerns that may arise. This cooperative approach extends to collaborating with
supervisory authorities in the event of investigations or audits, showcasing the organization's commitment to
transparency and accountability.

5. What is the deadline for notifying a data breach?

The deadline for notifying a data breach is a critical aspect of data protection regulations, notably emphasized in the
General Data Protection Regulation (GDPR). In the event of a data breach, the responsible controller is obligated to
report it to the relevant supervisory authority without undue delay and, where feasible, within 72 hours of becoming
aware of the breach.

This tight timeframe underscores the urgency and seriousness attached to data breaches. The prompt notification
requirement aims to enable swift action by supervisory authorities to assess the situation, potentially mitigate the
impact, and ensure that data subjects are informed in a timely manner. However, if the breach is unlikely to result in
a risk to the rights and freedoms of individuals, the notification to the supervisory authority is not mandatory.

Beyond notifying the supervisory authority, controllers may also be required to communicate the breach directly to
the affected data subjects if the breach is likely to result in a high risk to their rights and freedoms. This additional
layer of transparency reinforces the commitment to protecting individuals' privacy and empowers them to take
necessary precautions in the wake of a data breach.

6. What is the purpose of a data protection impact assessment?

The purpose of a Data Protection Impact Assessment (DPIA) is to systematically analyze and assess the potential risks
and impacts of a data processing operation on the protection of personal data. A DPIA is a proactive and preventive
tool mandated by the General Data Protection Regulation (GDPR) for certain types of high-risk processing activities.

A DPIA involves a comprehensive evaluation of the nature, scope, context, and purposes of the data processing, with
the primary objective of identifying and minimizing potential data protection risks. The assessment considers factors
such as the necessity and proportionality of the processing, the risks to individuals' rights and freedoms, and the
measures in place to address those risks effectively.

By conducting a DPIA, organizations can ensure that data protection considerations are integrated into the planning
and implementation of processing activities. It helps organizations demonstrate compliance with data protection
principles, fosters transparency, and enables them to implement measures to mitigate risks and protect the rights
and freedoms of data subjects.

The GDPR specifies that a DPIA is required when processing is likely to result in a high risk to the rights and freedoms
of individuals, especially when using new technologies or processing sensitive data on a large scale. The DPIA process
involves consultation with the relevant supervisory authority, and the results guide organizations in making informed
decisions about their data processing activities.

FREE MOVEMENT OF CAPITAL

1. What is the difference between FMOC and other fundamental freedoms with regard to its material scope?

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The Free Movement of Capital (FMOC) is one of the fundamental freedoms within the European Union (EU) that
facilitates the movement of capital and investments across Member States. Unlike other fundamental freedoms, such
as the free movement of goods, services, persons, and workers, the FMOC is unique in its material scope.

While the other fundamental freedoms generally focus on facilitating the movement of specific entities or factors
(e.g., goods, services, persons, and workers), the FMOC is centered on the movement of capital itself. The FMOC
allows for the free flow of capital, including investments, financial assets, and related activities, without restrictions
within the internal market of the EU.

In essence, the FMOC pertains specifically to the cross-border movement and investment of capital, contributing to
the creation of a unified and integrated European financial market. It emphasizes the removal of barriers and
restrictions that could hinder the movement of capital between Member States, fostering economic integration and
cooperation in the EU.

2. Would cryptocurrencies be subject to FMOC or a different fundamental freedom? If so, which?

Cryptocurrencies, being a form of digital or virtual assets, would fall under the scope of the Free Movement of
Capital (FMOC) within the European Union (EU), as it specifically deals with the free movement of capital and
investments across Member States.

FREE MOVEMENT OF SERVICES AND OF ESTABLISHMENT

1. Is a monopolist in gambling allowed to advertise in accordance with the freedom to provide services?

In the context of the freedom to provide services within the European Union (EU), a monopolist in gambling may face
restrictions on advertising.

 What is the main issue in this context?

The main issue revolves around the balance between the freedom to provide services and the need to regulate and
control certain activities, such as gambling, to protect public interest and order.

Under EU law, restrictions on the freedom to provide services, including advertising, must meet certain criteria to be
justified. In the case of gambling, Member States may justify restrictions based on public policy, public security, and
public health. The protection of consumers and the prevention of fraud and crime are also considered valid reasons
for limitations.

 Under which circumstances may such advertising be justified?

Therefore, such advertising could only be justified as long as it did not harm public safety and/or public health, and if
it had no negative consequences for public policy.

2. Can a company established under the laws of one Member State freely move its seat to another Member
State?

Yes, a company established under the laws of one Member State can, under certain conditions, freely move its seat
to another Member State. The ability to transfer a company's seat is part of the freedom of establishment within the
European Union (EU).

However, while foreign companies have the right to establish themselves in any EU country, certain sectors, such as
gambling may be subject to restrictions or specialized regulatory frameworks. The Court of Justice of the European
Union (CJEU) acknowledges the authority of Member States to maintain such systems, provided they are
proportionate and aligned with legitimate objectives, like consumer protection and crime prevention.

 What is the difference between restrictions of the state of incorporation and the host state?

The state of incorporation is the country where the company is initially established and incorporated, while the host
state is the country where the company intends to move its seat.

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Hence, restrictions of the state of incorporation refer to any impediments or limitations imposed by the country
where the company is initially established and incorporated. On the other hand, restrictions of the host state pertain
to any obstacles or hindrances imposed by the country to which the company intends to move its seat

 What legislation has the EU provided to facilitate cross-border movement for companies?

The EU has provided legislation to facilitate cross-border movement for companies through the Cross-Border
Mergers Directive (2005/56/EC). This directive allows companies from different Member States to merge, including
the transfer of the seat to another Member State. It harmonizes the rules for cross-border mergers and provides a
legal framework for companies wishing to move their registered office from one EU country to another.

This principle is reinforced by key legal cases like Centros (C-212/97) and Inspire Art (C-167/01), which underscore
the recognition of legal status and the entitlement of companies to choose a Member State with more favourable
company laws for incorporation.

COMPETITION LAW

1. What purpose does competition law serve?

Competition law plays a pivotal role in cultivating healthy market competition, protecting consumer interests,
fostering economic efficiency, and upholding the integrity of markets. Its overarching goal is to establish a regulatory
framework where businesses engage in fair competition, ultimately benefiting consumers and contributing to overall
economic well-being.

2. Which conditions must an agreement or practice fulfil to be considered a cartel?

 There are three elements a cartel must display. What are these?

For an agreement or practice to be considered a cartel, three key elements must be present:

Anti-competitive Purpose:

A cartel must be formed with the intention of restricting competition. This can involve activities such as fixing prices,
allocating markets, limiting production, or engaging in bid-rigging. The purpose is to undermine the normal
competitive forces in the market.

Cooperation Among Competitors:

A fundamental aspect of a cartel is the cooperation between businesses that would otherwise be in competition.
Members of the cartel collaborate to coordinate their actions, leading to a distortion of the competitive landscape.

Significant Impact on Competition:

The agreement or practice must have a substantial effect on competition in the relevant market. This impact can
manifest as higher prices, reduced output, or other adverse consequences for consumers and other market
participants.

3. What happens if an agreement creates an illegal cartel?

Engaging in illegal cartels entails significant repercussions for both agreements and involved parties. Firstly,
agreements fostering cartels are rendered void, stripping them of any legal enforceability. This emphasizes the
serious nature of cartel activities.

Secondly, those adversely affected by anti-competitive behavior, such as victims of cartels, possess the right to seek
damages. This legal avenue allows parties harmed by cartels to pursue compensation for losses incurred due to the
illicit conduct.

Thirdly, undertakings found guilty of participating in cartels face substantial penalties and fines imposed by
competition authorities. These financial sanctions act as a deterrent, discouraging anti-competitive practices within
the market.
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Moreover, employees implicated in cartel activities may face criminal proceedings under domestic law, potentially
leading to fines or imprisonment. Additionally, undertakings have the authority to take internal disciplinary actions,
including dismissal, against employees involved in anti-competitive practices.

4. What is a “dawn raid”?

A "dawn raid" refers to an unannounced inspection or investigation conducted by competition authorities, such as
the European Commission, at the premises of a company suspected of engaging in anti-competitive practices,
including cartel activities.

 Which authority is in charge of dawn raids?

During a dawn raid, officials from the European Commission's Directorate-General for Competition (DG COMP), often
accompanied by national competition authorities, inspect the suspected companies suspected with the purpose to
gather relevant evidence, investigate potential violations of competition law, and ensure the effective enforcement of
competition rules.

 How do dawn raids work?

Dawn raids typically involve the following process:

1. Surprise Entry: Officials arrive at the company's premises without prior notice, often at the beginning of the
working day ("at dawn"), to prevent any interference or obstruction.

2. Search and Seizure: Officials have the authority to search and seize documents, electronic data, and other
evidence related to suspected anti-competitive behavior.

3. Interviews: Relevant staff members may be interviewed to gather additional information or explanations
regarding the company's practices.

4. Legal Basis: Dawn raids are conducted based on the legal powers granted to competition authorities to
investigate potential violations of competition law.

5. Confidentiality: The confidentiality of the investigation is maintained to preserve the effectiveness of the
process.

JURISDICTION

1. Enforcement of contracts becomes more difficult if the parties are from different states. Why is that?

Enforcement of contracts becomes more challenging when parties are from different states due to the potential
jurisdictional issues and the diversity of legal systems involved. The differences in legal frameworks, court
procedures, and enforcement mechanisms across different countries can lead to complications in resolving disputes
and enforcing contractual obligations.

 Which role does the EU play in this context?

The EU plays a significant role in facilitating the enforcement of contracts through various mechanisms:

The Brussels I Regulation (Regulation (EU) No 1215/2012) establishes rules on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters within the EU. It aims to streamline the process of
determining which EU member state's court has jurisdiction in cross-border disputes and ensures the smooth
recognition and enforcement of judgments across member states.

The European Enforcement Order (EEO) is a mechanism that simplifies the enforcement of uncontested claims
across EU member states. It allows for the straightforward recognition and enforcement of judgments without the
need for a declaration of enforceability.

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The European Small Claims Procedure provides a simplified and standardized process for handling small claims cases
with a cross-border element, making it more accessible for individuals and businesses to pursue and enforce their
claims.

2. Why is it important to know which court is competent?

 Which legal questions depend on the “forum”?

The determination of the competent court is a critical aspect in legal proceedings, carrying profound implications for
the resolution of disputes. One primary significance lies in jurisdictional authority, where specific courts are
empowered to hear and decide cases based on geographic areas or case types. This determination ensures that the
court has the requisite legal authority to adjudicate the particular matter at hand.

Moreover, the choice of the competent court is intricately linked to procedural rules. Each court may have distinct
procedural regulations governing the conduct of legal proceedings. Understanding and adhering to these rules are
essential for parties and legal representatives to navigate the legal process effectively.

Additionally, the determination of the competent court has implications for the choice of law that will be applied in
the case. Legal questions, including the substantive law governing the dispute, may hinge on the forum or jurisdiction
where the case is heard.

The enforceability of judgments is another pivotal aspect tied to the competence of the court. Judgments issued by a
court lacking jurisdiction may encounter challenges in recognition and enforcement, both domestically and
internationally.

Efficiency and convenience further underscore the importance of selecting the appropriate forum. Ensuring that the
case is heard in a venue that is efficient and convenient for the involved parties is crucial, particularly in cross-border
disputes.

In essence, the "forum" determines the legal framework within which a case will be adjudicated, influencing the
applicable laws, procedures, and standards that parties must navigate during legal proceedings.

REGULATION (EU) 1215/2012

1. What does the “actor sequitur forum rei” rule stipulate?

The "actor sequitur forum rei" rule is a legal principle under the Regulation (EU) 1215/2012, commonly referred to as
the Brussels I Regulation (recast).

This rule stipulates that a claimant, i.e., the party bringing an action, must generally bring legal proceedings in the
jurisdiction where the defendant is domiciled. The defendant's domicile serves as the primary basis for determining
the appropriate forum.

 Where does a natural person have their domicile?

For a natural person, their domicile is typically where they have their habitual residence. It is the place where they
have established their permanent home with the intention of remaining there for an indefinite period. If a natural
person does not have habitual residence, the domicile may be their place of actual residence.

 What serves as a legal person’s domicile?

In the context of a legal person, such as a corporation or company, the domicile is determined based on the location
of its statutory seat, central administration, or principal place of business. The exact criteria may vary depending on
the legal form of the entity.

2. What does Art 7 Reg prescribe with regard to contractual claims?

Article 7 of the Regulation provides a framework for determining the jurisdiction for contractual claims.

 What is a contractual claim?

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A contractual claim refers to a legal action arising from a breach of a contract – an agreement between parties that
creates legally binding obligations.

 Which courts have jurisdiction?

Article 7 provides that, in contractual matters, the defendant can be sued in the courts of the Member State where
the contractual obligation that forms the basis of the claim was performed or should have been performed. This
jurisdictional rule is an exception to the general rule that the defendant should be sued in the courts of their
domicile.

 Where is the place of performance? Does the type of contract matter?

The place of performance is crucial in determining jurisdiction for contractual claims. It can be the actual place where
the obligation was performed or should have been performed as per the contract.

The type of contract may influence the determination of the place of performance, but the primary consideration is
the location where the specific contractual obligations were fulfilled.

3. If a court has exclusive jurisdiction, what does that mean?

Exclusive jurisdiction, as outlined in Regulation (EU) 1215/2012, means that only a specific court or category of courts
in a particular Member State has the authority to hear and adjudicate on a particular type of legal dispute.

When a court has exclusive jurisdiction, it implies that any legal action related to the specified claims must be
brought before that particular court, and other courts may decline jurisdiction.

This rule aims to provide legal certainty and avoid parallel proceedings in different Member States concerning the
same subject matter.

 Which types of claims typically fall within the exclusive jurisdiction of a specific court?

Certain types of claims are designated as falling within the exclusive jurisdiction of a particular court.

These may include matters where jurisdiction is determined based on the subject matter of the dispute or the parties
involved.

For example, exclusive jurisdiction might be conferred on the court of the Member State where a property is located
(for disputes related to that property) or on the court of the defendant's domicile.

4. For which types of contracts does the Reg provide specific rules?

The regulation provides specific rules for contracts in matters related to individual contracts of employment,
consumer contracts, and insurance contracts

 Why are specific rules provided?

Specific rules are designed to protect the weaker party in contractual relationships, particularly consumers. The rules
establish jurisdictional criteria that are favourable to consumers, allowing them to bring legal actions in their own
domicile or the place where the defendant is located.

In the case of individual contracts of employment, specific rules are in place to protect employees. The jurisdiction is
often determined based on the place where the employee habitually carries out their work.

For insurance contracts, the rules aim to provide a clear framework for determining jurisdiction, considering factors
such as the location of the insured risk.

By providing specific rules for these specific types of contracts, the EU seeks to harmonize the application of
jurisdictional rules across Member States. This contributes to legal predictability and ensures that similar cases are
treated consistently throughout the EU.

5. How does the Reg regulate the enforcement of EU judgments?

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The Regulation (EU) 1215/2012 operates on the principle of mutual recognition, allowing a judgment issued in one
EU country to be automatically acknowledged and enforced in others without intricate intermediate steps.

While the regulation promotes mutual recognition, it also includes specific grounds for refusing enforcement. These
grounds are limited and aim to uphold due process and prevent enforcement against public policy. This approach
seeks to harmonize the enforcement process while respecting the legal traditions and safeguards of individual
Member States.

 What is the difference compared to non-EU judgments?

The elimination of exequatur requirements and the creation of a uniform enforcement procedure distinguish EU
judgments from non-EU judgments, which are subject to the distinct legal frameworks of each Member State and
often require a separate declaration of enforceability.

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 CONFLICT OF LAWS

1. What does the term “conflict of laws” refer to?

The term "conflict of laws" pertains to the determination of which jurisdiction's laws should apply to a particular case
when legal issues involve multiple jurisdictions with potentially differing rules.

 What is the general rule?

The general rule is that a defendant should be sued in their domicile, promoting legal stability.

 Which role does the principle of party autonomy play in this context?

The principle of party autonomy allows the parties involved in a legal relationship, such as a contract, to choose the
governing law applicable to their agreement. This principle respects the parties' freedom to determine the legal
framework that will govern their contractual obligations, promoting predictability and flexibility in international
transactions.

2. May the choice of law made by the parties be disregarded? If so, under which circumstances?

The choice of law made by the parties may be disregarded under certain circumstances. While the principle of party
autonomy is generally respected in conflict of laws, there are situations where the chosen law may be set aside. This
can happen if the chosen law is considered to be in violation of public policy in the jurisdiction with a substantial
connection to the legal issue.

If the application of the chosen law would lead to results that are fundamentally contrary to the public policy of the
forum or the jurisdiction with the most significant relationship to the legal matter, the court may decide not to
uphold the parties' choice. The idea is to prevent parties from selecting a law that would lead to outcomes deemed
unacceptable or contrary to the public interest in a given jurisdiction.

3. What happens if no choice was made by the parties?

In the absence of an agreement between the parties specifying the place of performance, the criteria based on the
nature of the contractual obligation determine the place of performance, ensuring clarity in establishing the
jurisdiction for contractual claims within the European Union.

 What serves as the habitual residence for companies?

More specifically, if there is no agreement between the parties on the place of performance, the following criteria
apply:

1. In the case of the sale of goods, the place of performance is where the goods were delivered or should have
been delivered.

2. In the case of the provision of services, the place of performance is where the services were provided or
should have been provided.

EU CONTRACT LAW

1. What is contract law? What does contract law deal with?

EU contract law refers to the legal framework established by the European Union (EU) that governs contractual
relationships within its member states. It deals with the harmonization of rules and regulations related to the
formation, execution, and enforcement of contracts across the EU.

 Which areas of contract law are governed mostly by mandatory rules?

Certain areas of EU contract law are predominantly governed by mandatory rules, and these often pertain to
consumer protection, employment contracts, and standard contract terms. The imposition of mandatory rules in
these specific areas is driven by the EU's commitment to ensuring a high level of consumer protection, social
cohesion, and fair competition within the internal market.

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  Why do certain areas of contract law require mandatory rules?

The rationale behind implementing mandatory rules in EU contract law is to address imbalances in bargaining power
and information between parties. By establishing non-negotiable standards, the EU aims to protect vulnerable
parties, such as consumers and employees, and prevent abusive practices. Mandatory rules in these areas contribute
to the overarching goal of creating a fair, transparent, and efficient internal market where parties can engage in
contractual relations with confidence, knowing that certain fundamental rights and protections are guaranteed.

2. How did the EU implement rules in the field of contract law?

The EU implemented rules in the field of contract law primarily through the use of directives rather than regulations.
Directives are legal instruments that set out objectives to be achieved by member states, allowing them flexibility in
choosing the specific legislative measures to meet those goals.

 Why are the majority of these rules to be found in Directives, not Regulations?

The majority of EU rules in contract law are in the form of directives because contract law traditionally falls within the
realm of national competence. Member states have different legal traditions and systems, and a regulation that
directly imposes specific rules might not be suitable for harmonizing contract law across diverse legal landscapes.

By issuing directives, the EU provides a framework for member states to harmonize their contract law while allowing
for adaptation to their legal traditions and structures. Each member state is responsible for transposing the directive
into its national law, ensuring that the objectives are achieved in a manner consistent with its legal system.

This approach respects the principle of subsidiarity, allowing the EU to intervene where necessary to achieve its
objectives while respecting the autonomy of member states in shaping their legal frameworks. The use of directives
in contract law harmonization reflects a balanced approach that considers the diversity of legal systems within the
EU.

COMMERCIAL AGENTS LAW

1. Why are commercial agents important for cross-border trade?

Commercial agents play a crucial role in facilitating cross-border trade. One of the key factors is their ability to
connect businesses, acting as intermediaries between manufacturers or suppliers and customers in different
countries. They are also valuable due to their market expertise, which enables them to establish crucial relationships,
overcome language and cultural barriers, navigate legal and regulatory frameworks, provide logistical support, and
contribute to risk mitigation. Their local presence and knowledge make them valuable intermediaries, connecting
businesses with local markets and fostering a seamless and efficient business environment.

2. Which characteristics define a commercial agent?

Commercial agents are defined by their capacity to negotiate and conclude sales or purchase contracts on behalf of
another party, known as the principal.

 Under which conditions does a commercial agent count as self-employed?

The self-employed status of a commercial agent is contingent upon having a continuing relationship with the
principal, being autonomous in their activities, and not being subordinated to the principal.

 Why are agency contracts usually concluded for a fixed period of time?

Agency contracts are typically concluded for a fixed period to strike a balance between providing stability for the
commercial agent and allowing the principal to reassess the arrangement periodically. This fixed-term nature enables
adjustments based on market conditions, performance evaluations, and changes in the parties' business strategies.

3. How is a commercial agent remunerated?

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Commercial agents are remunerated through commissions, which are usually based on the transactions they
mediate.

 Is it possible for the commercial agent to receive remuneration beyond the end of the contract?

The remuneration can extend beyond the end of the contract, especially if this is equitable considering the agent's
efforts in establishing or expanding the principal's customer base. Post-contractual commissions may be applicable
for transactions concluded during the agency agreement that continue to generate substantial benefits for the
principal. However, the specific terms regarding post-contractual remuneration should be outlined in the agency
contract.

CONSUMER PROTECTION LAW

1. What is the purpose of consumer protection law?

Consumer protection law aims to safeguard the interests and rights of individuals who engage in transactions as
consumers.

 Who is considered a consumer?

A consumer, in this context, is an individual who acts for purposes unrelated to any commercial or business activity.
The need for consumer protection arises from the inherent power imbalance between consumers and businesses.

 Why do consumers need to be protected?

Consumers often lack the same resources and expertise as businesses, making them more vulnerable to unfair
practices, misinformation, or exploitation. The purpose of consumer protection is to ensure fair and transparent
dealings, promote consumer confidence, and provide avenues for redress in case of any harm or injustice.

2. What does the term “transparency” refer to in consumer protection law?

In consumer protection law, the term "transparency" refers to the clear and easily understandable presentation of
information by businesses to consumers. This includes providing information in a manner that is not only legally
accurate but also accessible and comprehensible to the average consumer.

 What does “plain and intelligible language” mean?

The concept of "plain and intelligible language" further emphasizes the need for businesses to communicate terms,
conditions, and other relevant information in a straightforward and easily understandable manner. It discourages the
use of complex or ambiguous language that could potentially mislead or confuse consumers, ensuring that
consumers can make informed decisions about their purchases or transactions.

3. Transparency: Examples

A delivery company may deliver either to the consumer or to his neighbours.

In a car renting contract, it is written: all cars are insured. The consumer is liable for the insurance participation which
is laid down in the insurance company’s conditions. The consumer is also liable for other damages that are explicitly
mentioned in this contract.

Definition of total loss in an insurance contract: “A total loss is if, following an event which is covered by this
insurance, the expected costs for repair plus the current resale value exceed the replacement value.”

The price per minute in a mobile phone contract is written the following way: “Please consult our website
www.mobilephone.at.”

4. Unfair terms in consumer contracts are “not binding on the consumer.” What does that mean?

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The concept that unfair terms in consumer contracts are "not binding on the consumer" means that, under certain
circumstances, terms in a contract that are deemed unfair or abusive may be declared null and void, and consumers
are not legally bound by those terms. This is designed to safeguard consumers from unfair practices and ensure a
more balanced and equitable contractual relationship.

 Are there exceptions to this rule? If so, which?

If a term is individually negotiated and the consumer had the opportunity to influence it, it may be binding even if it
would be considered unfair under normal circumstances.

In some legal systems, certain core terms that define the main subject matter of the contract and are transparent and
prominent may be exempt from the assessment of unfairness.

 Why are there exceptions?

The exceptions recognize the principle of freedom of contract, allowing parties to negotiate and agree on terms
based on their specific needs and preferences. Individual negotiation and transparent core terms are seen as
situations where the imbalance of power between the consumer and the seller is less pronounced, justifying a
different treatment for these terms.

5. How does collective enforcement differ from individual enforcement of consumer contracts?

 What is collective enforcement?

Collective enforcement refers to mechanisms that allow a group of consumers to collectively pursue legal actions
against businesses for violations of consumer rights. Meanwhile, individual enforcement involves each consumer
pursuing a separate legal action.

Collective enforcement often involves class action lawsuits where a representative plaintiff, on behalf of a group of
consumers with similar claims, brings a legal action against a business.

In some legal systems, representative actions may be used, where a designated representative acts on behalf of a
group of consumers.

 Why is there a need for collective enforcement mechanisms?

Collective enforcement is more efficient than individual actions, especially when numerous consumers are affected
by the same or similar issues. It avoids duplicative legal proceedings. It provides consumers with greater access to
justice, as individual consumers might find it impractical or cost-prohibitive to pursue legal action on their own.
Collective enforcement serves as a deterrent against businesses engaging in unfair or deceptive practices, promoting
compliance with consumer protection laws.

TRADEMARK LAW

1. What cannot be protected by a trademark?

Generic terms, which are commonly used to refer to a class of goods or services, are ineligible for trademark
protection. Similarly, purely descriptive terms that directly convey characteristics or qualities of the goods or services
cannot be registered unless they acquire distinctiveness through use. Additionally, functional features that are
essential to the goods or services are excluded from trademark protection to avoid hindering fair competition.

 Which purposes do trademarks fulfil?

The primary purpose of trademarks is to provide consumers with a means of distinguishing between products or
services offered by different businesses. Trademarks contribute significantly to brand recognition and loyalty,
allowing consumers to associate specific qualities or attributes with a particular brand. They act as symbols of quality
and consistency, aiding consumers in making informed purchasing decisions.

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  Which characteristic must a trademark have?

A key characteristic of a trademark is its distinctiveness. For a trademark to be effective, it must stand out and set the
associated goods or services apart from others in the market. This distinctiveness enhances the trademark's ability to
fulfill its role in identification and brand building.

2. Which institutions are in charge of protecting trademarks?

Trademark protection involves a multi-faceted system encompassing national, regional, and international levels.

 How are trademarks protected on a national level?

At the national level, each country has its own institution responsible for trademark protection. For instance, the
United States has the United States Patent and Trademark Office (USPTO), and the United Kingdom has the
Intellectual Property Office (IPO).

 What is the European Union Trademark? Which EU institution is relevant in this context?

In the European Union (EU), the European Union Intellectual Property Office (EUIPO) plays a central role. It manages
the registration of the European Union Trademark (now known as the European Union Intellectual Property Right or
EUIPR), providing a unified system for trademark protection across EU member states. This means that a single
registration with the EUIPO grants protection in all EU countries.

 What about trademarks on an international level?

On an international level, the World Intellectual Property Organization (WIPO) oversees the Madrid System for the
International Registration of Marks. This system allows trademark owners to extend protection to multiple countries
by filing a single international application. The International Bureau of WIPO administers this process, simplifying the
management of trademark rights on a global scale.

3. Which rights does the owner of a trademark acquire?

The owner of a trademark acquires exclusive rights to use the trademark in connection with the goods or services for
which it is registered. These rights include the ability to prevent others from using identical or similar marks in a way
that could lead to confusion among consumers. Essentially, trademark ownership provides the owner with the legal
means to protect the distinctiveness and reputation associated with their mark.

This exclusivity extends to the territory where the trademark is registered. In the case of a national registration, it
typically covers the rights within the borders of the country where it is registered. For trademarks registered at the
European Union Intellectual Property Office (EUIPO), the rights cover all member states of the European Union.
International registrations through the Madrid System provide protection in the designated member countries.

The rights of a trademark owner also allow them to license or assign their trademark to others, enabling additional
commercial opportunities. However, the owner is responsible for actively enforcing and maintaining their trademark
rights to prevent any potential infringement or dilution. Overall, trademark ownership serves as a valuable asset,
providing legal protection and exclusive rights in connection with specific goods or services.

4. How do “well-known trademarks” differ from regular trademarks?

"Well-known trademarks" differ from regular trademarks in that they enjoy a higher level of protection and
recognition. The concept of well-known trademarks acknowledges their exceptional reputation and distinctiveness,
often extending beyond specific goods or services for which they are registered. Unlike regular trademarks that are
associated with particular products or services, well-known trademarks are recognized and protected across various
classes of goods and services.

 Which goods and services does the right of exclusion cover?

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The right of exclusion for well-known trademarks is broad and comprehensive. It goes beyond the specific categories
for which the trademark is registered. The owner of a well-known trademark has the right to prevent third parties
from using similar or identical marks, even if the use is for unrelated goods or services, if such use would take unfair
advantage of or be detrimental to the distinctive character or reputation of the well-known trademark.

5. Is the term of protection of trademarks limited in time?

Yes, the term of protection for trademarks is limited in time, but it can be renewed indefinitely as long as the mark
continues to be used and renewal fees are paid. Trademark protection is typically granted for an initial period,
commonly 10 years, and can be renewed before or after the expiration of each term.

 How to apply for trademark renewal?

To renew a trademark, the owner must file a renewal application with the relevant trademark office and pay the
required renewal fees. The renewal process typically involves submitting a formal request, providing details about the
mark, and paying the necessary fees. It's essential to adhere to the renewal deadlines and procedures specified by
the relevant trademark office to maintain the continuous protection of the trademark.

UNFAIR COMPETITION

1. Which commercial practices are defined as “greenwashing”?

"Greenwashing" refers to deceptive or misleading commercial practices where a company exaggerates or falsely
claims to be environmentally friendly or engaged in eco-friendly initiatives. It involves creating a misleading
perception about the environmental impact of a product, service, or the overall business practices of a company.

2. Why is greenwashing problematic from a legal perspective?

Greenwashing poses significant legal challenges due to its deceptive nature and the various negative consequences it
brings to the business and legal landscape. At its core, greenwashing involves making false or exaggerated
environmental claims, misleading consumers who then make purchasing decisions based on inaccurate information.
This deception not only violates consumer protection laws designed to ensure accurate information but also
undermines fair competition in the marketplace.

From a regulatory perspective, engaging in greenwashing can result in legal actions and penalties. Regulatory bodies
enforce laws that prohibit false advertising and deceptive marketing practices, aiming to maintain transparency and
protect consumers. Moreover, the legal consequences extend beyond financial penalties, as companies may face
reputational harm and a loss of consumer trust.

3. How does the EU play a role in the context of greenwashing?

While there is no specific EU legislation harmonizing environmental marketing, the EU has developed a
comprehensive legal framework that aims to combat greenwashing practices and promote transparency in marketing
and advertising.

One key legislative instrument is Directive 2005/29/EC, implemented in Austria through the "Bundesgesetz gegen
den unlauteren Wettbewerb (UWG)." This directive defines commercial practices as misleading if they contain false
information, deceive consumers, or are likely to cause them to make decisions they otherwise wouldn't. It covers
aspects such as the nature of the product, its characteristics, benefits, and origin, providing a basis for combating
greenwashing.

To specifically target greenwashing practices, the EU introduced the Green Claims Directive, which aims to prevent
companies from making unclear and unsubstantiated environmental claims. The directive introduces minimum

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requirements for environmental claims, mandates independent third-party assessments, and ensures critical
evaluation of labels to prevent self-certification.

Comparative advertising, governed by Directive 2006/114/EC, allows companies to present their goods or services
favorably by referencing competitors. However, certain conditions must be met to ensure fair competition and
transparency. This form of advertising is permitted when it is not misleading, objectively compares relevant features,
avoids discrediting competitors, and meets other specified criteria.

 Why does greenwashing lead to a less green economy?

Greenwashing leads to a less green economy by distorting market dynamics. When companies engage in deceptive
environmental claims, consumers may be misled, making choices based on inaccurate information. This undermines
the efforts of genuinely environmentally friendly businesses and can reduce the overall impact of green policies. The
EU's efforts to combat greenwashing aim to maintain the integrity of sustainability initiatives, fostering a marketplace
where consumers can make informed choices and genuine environmentally friendly practices are rewarded.

COPYRIGHT LAW

1. What is the subject of copyright protection?

Copyright protection pertains to the subject matter that involves "peculiar intellectual creations."

 What is meant by the term “peculiar”?

The term "peculiar" signifies the uniqueness or distinctiveness of the creations eligible for copyright protection. It
implies that copyright does not extend to generic or commonplace ideas but rather to original and distinctive
expressions of ideas.

 What is meant by the term “intellectual”?

The term "intellectual" refers to the mental and creative aspects involved in the creation. Copyright protects products
of the intellect, such as literary works, artistic creations, and other forms of creative expression that result from
intellectual effort.

 What is meant by the term “creation”?

"Creation" in the context of copyright law signifies the act of bringing something new into existence. It involves the
expression of original ideas in tangible or recordable forms, such as written text, artwork, music, or other creative
works.

Therefore, copyright protection encompasses works that are both original and expressed in tangible forms,
safeguarding the unique intellectual creations of individuals from unauthorized use or reproduction.

2. How do trademarks differ from copyright?

Copyright and trademarks are essential mechanisms of intellectual property protection, each serving distinct
purposes in safeguarding creative works and commercial identifiers. Copyright, inherently automatic upon the
creation of original works, shields expressions of ideas such as literary, artistic, and musical creations. In contrast,
trademarks safeguard symbols, names, and slogans that serve to distinguish goods or services in the market.

 How does the registration of a copyright work?

The process of obtaining copyright is relatively straightforward, with protection conferred automatically upon the
creation of a tangible work. While registration is optional, it provides additional legal benefits. Trademarks, on the
other hand, require active use in commerce and registration with the relevant authority, such as the U.S. Copyright
Office. Trademarks are distinctive symbols or phrases that consumers associate with specific goods or services.

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  Who may obtain a copyright? Who may obtain a trademark?

Ownership of copyright typically begins with the creator or author of the work, although it can be transferred
through agreements. Trademark ownership, on the other hand, is linked to ongoing use and registration, and it can
be held by individuals, businesses, or entities utilizing unique marks in commerce.

3. Which criteria must software fulfil to be protected by copyright?

For software to be protected by copyright, it needs to be an original creation, reflecting the author's intellectual
effort and not merely serving a functional purpose. The originality requirement means that the code must not be a
verbatim copy of existing software and should involve a degree of creativity in its design or expression.

The protection extends to the source code, object code, and the overall structure and organization of the software.
However, the protection doesn't extend to the functionality or ideas behind the software; it's focused on the specific
expression of those ideas.

 Is the data carrier protected?

Regarding data carriers, such as CDs or USB drives containing the software, the protection primarily covers the
software itself rather than the physical medium. The protection is tied to the intellectual creation (the software)
rather than the material form (the data carrier).

 Does the term “creation” cover purely mechanical works? If so, why? If not, why not?

The term "creation" in copyright law generally includes works that involve intellectual creativity. However, purely
mechanical or routine works without a creative element may not meet the threshold for copyright protection.
Copyright is intended to protect original and creative expressions, so works lacking in originality may fall outside the
scope of copyright.

ARBITRATION

1. What is an arbitration agreement?

An arbitration agreement is a contractual arrangement between parties to resolve disputes through arbitration
rather than going to court. The agreement typically stipulates that any disputes arising from the contractual
relationship will be settled through arbitration, providing an alternative to traditional litigation.

 Which disputes may be covered by the agreement?

The disputes covered by the arbitration agreement are those explicitly mentioned in the agreement. Usually, the
agreement will specify the types of disputes subject to arbitration, which may include matters related to the contract,
performance issues, or other aspects defined in the agreement.

 What is meant by “objective arbitrability”?

"Objective arbitrability" refers to the type of disputes that can be subject to arbitration based on legal principles.
Certain disputes, by their nature, may be deemed non-arbitrable, such as criminal matters or disputes involving
public policy considerations. Objective arbitrability is concerned with whether the subject matter of the dispute falls
within the permissible scope of arbitration under applicable law.

 If there is an arbitration agreement, do national courts have jurisdiction?

When there is a valid arbitration agreement in place, national courts typically do not have jurisdiction over the
disputes covered by that agreement.

2. What does the term “commercial arbitration” refer to?

The term "commercial arbitration" refers to the use of arbitration as a method for resolving disputes arising from
commercial relationships and transactions. It is a form of alternative dispute resolution (ADR) that provides parties
involved in business transactions with a private and flexible means of resolving their disputes outside of the
traditional court system.

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  What are “commercial disputes”?

"Commercial disputes" in the context of arbitration are disagreements or conflicts that arise within the realm of
commercial activities. These disputes can encompass a wide range of issues, including but not limited to:

Contractual Disputes: Disagreements related to the interpretation, performance, or breach of commercial contracts.

Sale of Goods Disputes: Issues arising from the sale or purchase of goods, including disputes over quality, delivery, or
payment.

Partnership Disputes: Conflicts between business partners, shareholders, or joint venture parties regarding the
management, operation, or dissolution of a business.

Intellectual Property Disputes: Disagreements concerning the use, ownership, or infringement of intellectual
property rights, such as patents, trademarks, or copyrights.

Financial Disputes: Conflicts related to financial transactions, investments, loans, or other financial arrangements.

Construction Disputes: Issues arising from construction contracts, including disagreements over project delays,
quality of work, or payment.

Insurance Disputes: Conflicts related to insurance contracts, coverage, or claims

3. What is institutional arbitration?

Institutional arbitration refers to the use of established arbitration institutions or organizations to administer and
oversee the arbitration process between parties. This form of arbitration involves the involvement of a specialized
institution that provides specific rules, procedures, and administrative support to facilitate the resolution of disputes.

 What does an arbitration institution do?

The key aspects of institutional arbitration include a predefined set of rules, assistance in arbitrator selection,
administrative services, a fee structure, and quality monitoring. This structured approach can enhance efficiency and
fairness in resolving disputes.

 What are the differences to ad hoc arbitration?

In contrast, ad hoc arbitration allows parties to organize and conduct arbitration independently, without relying on a
specific institution. This approach offers greater procedural flexibility, allowing parties to tailor the process according
to their preferences. However, it lacks the standardized rules, administrative support, and quality control
mechanisms provided by institutional arbitration.

The choice between institutional and ad hoc arbitration often depends on factors such as the complexity of the
dispute, the desire for procedural flexibility, and the need for administrative assistance. While institutional arbitration
provides a more structured framework, ad hoc arbitration grants parties greater autonomy in shaping the arbitration
process.

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