EU Law: Katisa and Elijah - Coursework Example

?EU Law: Katisa and Elijah The main issues for Katisa and Elijah are the free movement of goods, services and people within the single market of the EU and EU law relating to the direct effect of the Directive. Katisa’s issues falls more broadly within the EU’s general prohibition against quantitative restrictions in support of a single market.1 As Kennedy argues, the free movement of goods is “one of the principle features of the EU.”2 The law relating to quantitative restrictions is contained in Articles 34-36 of the Treaty on the Functioning of the European Union (TEFU), formerly 28-30. Article 34(formerly Article 28) prohibits quantitative restrictions on imports and Article 35(formerly Article 29) prohibits quantitative restrictions on exports.3 Article 36 however, provides for exceptions to quantitative restrictions and includes restriction exceptions on the grounds of public health, morality, public police, public security, protection of animals or plants, national arts, history, archaeology, industry and commercial property but may not enable discriminatory treatment.4 The restrictions on Katisa’s export of balsamic vinegar to Member State Y must therefore be examined by reference to Article 36. The advertising and bottling restrictions appear to fall within the Article 36 exception to the ban on quantitative restrictions relative to the protection of commercial property and consumer protection. In this regard, the quantitative restriction can only be justified if it is necessary and proportionate for the ends that it seeks to achieve.5 In considering whether or not measures for the protection of consumers and commercial property were necessary and proportionate, the European Court of Justice had a packaging issue to consider in Walter Rau v De medf. 6 In this case, Belgium required that margarine be packaged in cube shaped packages to avoid consumers confusing it with butter. The ECJ ruled that this restriction could not be justified since other labelling measures could achieve the same end.7 Therefore, Katisa should be permitted to export balsamic vinegar to Member State Y with appropriate labelling distinguishing it from other similar goods. Similarly, Katisa should be able to advertise her goods by applying the same reasoning. Measures can be taken to ensure that the advertising is not aggressive and it would appear that a restriction against advertising altogether is tantamount to an unjustified quantitative restriction. Elijah’s case involved two distinct issues: freedom of movement of people within the EU and the direct effect of Directives. Freedom of movement of people within the EU is contained in Articles 20-23 of TFEU which includes the right of EU citizens to live and move freely within the EU.8 Freedom of movement is supplemented by Directive 2004/38/EC. Article 24 of Directive 2004/38/EC provides that EU nationals are entitled to be treated equally to citizens of the host state.9 However, the host state has no obligation to confer upon the EU citizen of another member state social assistance prior to the expiration of 3 months residence in the host state. Moreover, grants or other forms of vocational and student assistance are not mandatory unless the EU citizen of another member state has achieved the status of residence.10 In this regard, residency is achieved if the individual has lived and worked or studied with an accredited institution within the host state for more than three months.11 Therefore, if Elijah has been resident and enrolled at the accredited institution for more than three months and has not been collecting social assistance from Member State Y,12 he is entitled to the grant. Even so, the host state may require a longer period of integration to be satisfied that the student has sufficiently proven to be self-sufficient and has sufficiently integrated into society. The host state may establish a period of time for substantiating the student’s claim that they are settled in the host state prior to allowing the student to qualify for social assistance of any sort.13 In other words, Member State Y is at liberty to require that Elijah has resided in its territory for a reasonable period of time, without social assistance for a specific time period necessary for establishing that he is integrated into society prior to allowing him to collect the student grant. Whether or not 6 years is excessive is another issue and this might be overruled by the courts since a right of residence is acquired within 3 months of working and living or studying and living in the host state.14 Elijah’s claim for textbooks under the Directive has far more legal certainty than his claim for a student loan. The doctrine of direct effect is necessitated by the principle of effete utile which seeks to harmonise EU law.15 In general the doctrine of direct effect holds that EU citizens are entitled to enforce EU law throughout the EU via national courts.16 Whether or not a Directive had been implement or not, or was improperly implemented, it would be enforceable against the Member state, provided it was clear and unconditional and its expiration date has not expired.17 The main problem however is that the institution is not an emanation of the state and therefore the Directive cannot be enforced against the institution.18 However, while Elijah may not enforce the directive against the private institution, he may seek damages against the state for any losses he may have incurred as a result of the state’s failure to implement or improperly implement the Directive in question.19 Elijah must demonstrate that the Directive gives him a right, the right is identifiable and that his loss and damages are linked to the failure of the state to implement the Directive.20 Therefore, Elijah may not enforce the Directive against the private institution, but he is free to claim damages for the institution’s failure to distribute free text books. Elijah also has a reasonably good chance of success in a claim against the government agency for a student grant on the basis of his residency, if he has been studying at the institution for at least three months and has no previous claim for social assistance from the government. Bibliography Textbooks Kennedy, T.P. European Law. (Oxford, UK: Oxford University Press, 2011, 5th Edn.). Journal Articles Inanilir, O. ‘Derogation from the Fee Movement of Goods in the EU: Article 30 and “Casis” Mandatory Requirements Doctrine,’ (2008)2 Ankara Bar Review, 106-113. Mayr, S. ‘Putting a Leash on the Court of Justice? Preconceptions in National Methodology v Effet Utile as a Meta-Rule.’ (Autumn/Winter 2012) 5(2) European Journal of Legal Studies, 8-21. Cases Cases 46/93 & C-48/93 Brasserie du Pecheur and Fatortame III [1996] ECR 11029. Case 91/92 Faccini Dori v Recreb srl [1994] ECR 1-3325. Cases 6 and 9/90 Francovich v Italian Republic [1991] ECR 1-5357. Case 157/86 Mary Murphy and Others v An Bord Telecom Eireann [1988] ECR 673. Case 148/78 Pubblico Ministero v Ratti [1979] ECR 1629. Case 120/78 Reve-Zentrale AG v Bundesmonopolvervaltung Fir Brantvein [1979] ECR 649. Case 209/03 The Queen (on the application of Dany Bidar) v London Borough of Ealing, Secretary of State for Education and Skills (15 March 2005] http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003J0209:EN:HTML (Retrieved 4 January 2014). Case 41/74 Van Duyn v Home Office [1974] ECR 1337. Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. Case 261/81 Walter Rau v De Smedt [1983] 2 CMLR 469. Statutes Directive 2004/38/EC. Treaty on the Functioning of the European Union (Consolidated Version 2012). Read More