2015 ZA Q5 ‘The essence of the proportionality principle is that it makes it possible to
combine a liberal pro free trade case law with a strong commitment to a
welfare state and the preservation of certain state functions.’
Discuss.
2015 oct ‘The recent rulings of CJEU in the area of Article 34 TFEU clarify what,
in many respects, was already evident from previous case law: the Keck
distinction based on the type of rules is no longer relevant; what matters
is the effect of the rules on market access.’
Discuss.
2017 ZA Q6 ‘It seems that the Keck era has come to an end. In its most recent case
law on free movement of goods such as the Italian Trailers, the Court of
Justice of the European Union (CJEU) returned to an overbroad
definition of measures having equivalent effect to quantitative
restrictions. The Court used the notion of ‘market access’, and put the
emphasis on the application of the proportionality test.’ Discuss.
2017 ZB Q6 -same-
2018 ZA Q7 Discuss, by reference to the CJEU case law on free movement of goods
and services, the difference, if any, between a strict proportionality test
and a margin of appreciation test.
2018 ZB Q7 When discussing the application of the proportionality principle in the C-
333/14 Scotch Whisky Association judgment, the Court held that the
burden of proof cannot extend to creating the requirement that, where
‘the competent national authorities adopt national legislation imposing [a
restrictive measure], they must prove, positively, that no other
conceivable measure could enable the legitimate objective pursued to
be attained under the same conditions’ (paragraph 55). It added that the
national court must also ‘assess the nature and scale of the restriction
on the free movement of goods resulting from a restrictive measure, by
comparison with other possible measures which are less disruptive of
trade within the European Union’ (paragraph 58). To what extent is this
finding in conformity with the standard application of proportionality in
other free movement of goods and services cases?
2019 ZA Q1 ‘The function of the proportionality principle is to secure legitimization for
judicial decisions. The fact that the Court of Justice of the European
Union is interpreting the proportionality principle in so many ways
undermines this function.’ Discuss in relation to at least TWO economic
freedoms.
2019 ZB Q1 ‘The case-law on the internal market - be it free movement of goods, of
workers, freedom to provide services, or right of establishment - is
based on a set of common principles. The Court of Justice easily
considers a measure to be restrictive of trade or free movement, thereby
putting the emphasis on analysing whether the measure in issue is
justified and is proportionate.’ Discuss in relation to at least TWO
economic freedoms.
2020 ZA Q4 ‘Virtually any piece of national legislation can now be scrutinized by the
CJEU for a breach of Article 34 TFEU. Such practice is a serious
violation of national sovereignty and needs to be stopped.’ Discuss
2020 ZB Q4 ‘The scope of application of Article 34 TFEU as elaborated by the CJEU
in the Italian Trailers case or the Scotch Whiskey case is too wide.’
Discuss
, FMOG
Key –
Proportionate
-strong commitment to a welfare state and the preservation of certain state functions
-violation of national sovereignty and need to be stopped
-Italian Trailer case or Scotch Whiskey to wide
-interpretation of test
Keck product requirement
-distinction not required
combine a liberal pro free trade case law with a strong commitment to a
welfare state and the preservation of certain state functions.’
Discuss.
2015 oct ‘The recent rulings of CJEU in the area of Article 34 TFEU clarify what,
in many respects, was already evident from previous case law: the Keck
distinction based on the type of rules is no longer relevant; what matters
is the effect of the rules on market access.’
Discuss.
2017 ZA Q6 ‘It seems that the Keck era has come to an end. In its most recent case
law on free movement of goods such as the Italian Trailers, the Court of
Justice of the European Union (CJEU) returned to an overbroad
definition of measures having equivalent effect to quantitative
restrictions. The Court used the notion of ‘market access’, and put the
emphasis on the application of the proportionality test.’ Discuss.
2017 ZB Q6 -same-
2018 ZA Q7 Discuss, by reference to the CJEU case law on free movement of goods
and services, the difference, if any, between a strict proportionality test
and a margin of appreciation test.
2018 ZB Q7 When discussing the application of the proportionality principle in the C-
333/14 Scotch Whisky Association judgment, the Court held that the
burden of proof cannot extend to creating the requirement that, where
‘the competent national authorities adopt national legislation imposing [a
restrictive measure], they must prove, positively, that no other
conceivable measure could enable the legitimate objective pursued to
be attained under the same conditions’ (paragraph 55). It added that the
national court must also ‘assess the nature and scale of the restriction
on the free movement of goods resulting from a restrictive measure, by
comparison with other possible measures which are less disruptive of
trade within the European Union’ (paragraph 58). To what extent is this
finding in conformity with the standard application of proportionality in
other free movement of goods and services cases?
2019 ZA Q1 ‘The function of the proportionality principle is to secure legitimization for
judicial decisions. The fact that the Court of Justice of the European
Union is interpreting the proportionality principle in so many ways
undermines this function.’ Discuss in relation to at least TWO economic
freedoms.
2019 ZB Q1 ‘The case-law on the internal market - be it free movement of goods, of
workers, freedom to provide services, or right of establishment - is
based on a set of common principles. The Court of Justice easily
considers a measure to be restrictive of trade or free movement, thereby
putting the emphasis on analysing whether the measure in issue is
justified and is proportionate.’ Discuss in relation to at least TWO
economic freedoms.
2020 ZA Q4 ‘Virtually any piece of national legislation can now be scrutinized by the
CJEU for a breach of Article 34 TFEU. Such practice is a serious
violation of national sovereignty and needs to be stopped.’ Discuss
2020 ZB Q4 ‘The scope of application of Article 34 TFEU as elaborated by the CJEU
in the Italian Trailers case or the Scotch Whiskey case is too wide.’
Discuss
, FMOG
Key –
Proportionate
-strong commitment to a welfare state and the preservation of certain state functions
-violation of national sovereignty and need to be stopped
-Italian Trailer case or Scotch Whiskey to wide
-interpretation of test
Keck product requirement
-distinction not required
