International Business Law BUS 607 – Guidance Notes
Assignment 1 Resit 2013
Part 1
Question One
Topic – Direct Effect. In particular your answer should concentrate on the how directive can be implemented via direct effect, indirect effect, Francovitch liability and Factortame III liability. You should include the following information: –
– Direct effect – what is it (How does it differ from direct applicability?). Why was it introduced in Van Gend en Loos?
– To have direct effect provision must be clear, unconditional and not dependent on action being taken by member states.
– Regulations and decisions have direct applicability and direct effect (Politi SAS 1973).
– Directives do not have direct applicability – but they may have direct effect – Van Duyn v Home Office 1974.
So can directives have direct effect – yes – but directives only have vertical not horizontal direct effect – explain.
However to get around the problem of horizontal direct effect the ECJ has created the concept of Indirect Effect, Francovitch Liability and Factortame III Liability.
Question Two
Topic – Art 267 references. Your answer should concentrate on what is a 267 reference to the ECJ and what innovations it has created.
Issues to be raised include: –
– What is the 2267 reference system? Why have it? Van Gend en Loos.
– What is the scope of the referrals – Art 267(1)
– Who may make a reference? – any court or tribunal which has a ‘judicial function’ – explain what this means.
– When to refer – discuss Art 267(2) and (3).
When can the obligation to refer be avoided? – discuss the CILFIT formula; the approaches by English courts – e.g. the Stock Market Case 1993.
So what new development have been created by the ECJ – examples may include direct effect; the sovereignty of EU law.
Part 2
Free Movement of Workers
The following information should be included: –
Introduction – why have the free movement of workers in the EU?
Free movement of workers is covered by Art 45, by secondary Community legislation and by the case law of the ECJ.
Now deal with each person in turn: –
Debbie – Art 45 grants workers the right to accept offers of employment in other members states, stay there during that employment and remain in that member state after being employed there.
Art 45 is fleshed out by secondary legislation: –
Directive 2004/38, Art 4, 5, & 7 – rights of entry and residence;
Regulation 1612/68 – equal treatment in employment – What about the language requirement? – See Groener v Minister for Education 1989 and Angonese v Cassa di Risparmio di Bolzano SpA 2000;
Directive 2004/38, Art 16 & 17– right to remain after employment.
But is she a worker? No definition in Art 45 so look at case law: –
Levin v Staatssecretaris van Justitie Case 1982;
Lawri-Blum v Land Baden-Wurttemberg 1985.
See also A45 (4) – the right to restrict entry to workers in the public sector – does this apply to Debbie (teachers)?
Rhys – A45 applies to workers and ‘families’, Reg 1612/68, Art 10 – spouse and dependents under 21 or ascendants of a worker or spouse.
But Rhys is not a spouse – but see Netherlands State v Reed 1985.
Glyndwr League? A45 (3) and Directive 2004/38 Art 27 – entry can be limited on grounds of public policy and public security: –
See: –
Van Duyn v Home Office 1974;
Rutili v Ministre de L’Interieur 1975;
R v Bouchereau 1977.
Laura – an ascendent of a worker? See Art 2 of Directive 2004/38.
Can she claim a pension – see Art 7(2) of 1612/68.
Can she be excluded?
Debbie’s Two Children – Jenny has no problem – Art 2, Directive 2004/38.
But David falls foul of Art 2 – why?
But see: –
Procureur du Roi v Royer 1976;
R v Immigration Appeal Tribunal, ex parte Antonissen 1991.
