Seminar 1 European Law (2016/2017), Utrecht University. 

Geanonimiseerd. 

European Law Seminar Week 1 (2016/2017)

Freedom of establishment & freedom to provide services

Question 1

Jay Booth is a famous doctor who holds a medical biology PhD from Trinity College Dublin. Although he has several years of experience and has extensively published in the area of postmenopausal birth, he cannot find a job in the currently declining Irish job-market. Therefore, he starts to provide technical and medical advice to a Bosnian private clinic where it is possible for postmenopausal women to give birth. Jay goes to Bosnia quite often. There, he analyses specific cases and organises meetings with the staff on these cases. The clinic pays him a small fortune for every case he works on. The clinic also provides him with the necessary facilities and equipment. Jay is further completely independent to organise his activities.

Can you explain which Treaty freedom Jay exercises?

Answer to question 1:

You have to choose one of the freedoms:

• Freedom of workers (art. 45 TFEU)
• Freedom of establishment (art. 49 TFEU)
• Freedom of providing services (art. 56 TFEU).

Jay has no freedom of workers (art. 45 TFEU), because he is not in service of a company, there is no subordination and he is independent.

Jay has no freedom of establishment. You must pursue ‘’an economic activity, through a fixed establishment in another Member State for an indefinite period’’, according to the Viking-case, par. 70.

The concept of establishment is a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom (Gebhard-case, par. 25). This is not the case here, because Jay is not working for an indefinite period.

Providing of services is temporary (par. 26): you look at the duration of the service, its regularity, periodicity or continuity.

Providing services (Art. 56 TFEU)

Jay is providing services to the Italian private clinic (Article 56 TFEU). Jay is providing a medical service advice, which could be seen as activities of the professions (sub d). Jay gets remuneration, he gets paid for his services. Medical services fall within the scope of Article 56 TFEU. It is temporary, because he’s not continuously working on cases. He goes to Bosnia quite often, so he travels a lot, but he returns to Ireland. It’s not on a regular basis, there is no contract between Jay and Bosnia. The case doesn’t say anything about regularity. It doesn’t matter that Bosnia does offer facilities and equipment. This does not mean that Jay may not equip himself (par. 27).

Question 2

Suppose an English bookmaker, Doris Reader UK, established in the United Kingdom, carries on business as a bookmaker under a licence granted pursuant to the Betting, Gaming and Lotteries Act, which authorises Doris to carry on its activities in the United Kingdom and abroad. Doris offers the European public an extensive range of fixed sports bets on national, European and world sporting events.

On behalf of Doris, Petroni offers on the Italian market users the possibility to register their intentions to bet, which are then forwarded to Doris.

Italian legislation stipulates that no licence is to be granted for the taking of bets, with the exception of bets on races, regatta, ball games or similar contests and then only under certain conditions. Authorisation to organise betting is granted exclusively to licence holders entitled to do so by the State. Any person who unlawfully participates in the organisation of lotteries reserved by law to the State shall be liable to a term of imprisonment of up to 3 years.

Criminal proceedings were brought against Petroni, who is being accused of having unlawfully organised clandestine bets.

Before the court Petroni argues that the Italian legislation violates Article 56 TFEU.

1. Argue why the Italian legislation possibly violates Article 56 TFEU?

Page 422. The public interest justification

Page 424: Gambling. 

Answer to question 2a:

Does it fall under the scope of art. 56 TFEU?  Petroni offers services across borders, it’s economic because he got money, and it’s temporary because it’s not on a regular basis that he offers bets. Look at Alpine investments, par. 22; ‘’Article 59 EEC Treaty covers services which the provider offers by telephone to potential recipients established in other Member States and provides without moving from the member State in which he is established’’.

Article 56 TFEU describes that: ‘’Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended’’.

Article 56 describes that all people of Member States should be able to provide services in other states within the Union. Petroni wanted to provide services, such as organising clandestine bets. He is charged because he wanted to provide a service. Therefore, there is a violation of Article 56 TFEU, because Petroni should be able to provide any service within the Union. This is a discriminatory treatment, because Petroni is not able to provide services, while other people in the Union still can (Josemans-case). There is a block on the market, so the legislation affects the access to the market (Alpine investment-case, par. 38).

Will it be justified? That is the last question, but it’s not relevant in this question yet. We will come to that later.

2. Argue why Article 49 TFEU has possibly been violated?

Answer to question 2b:

The freedom of establishment is violated, because Petroni is not able to organise clandestine bets in Italy. This affects the freedom of establishment from the English Doris. Petroni is working on behalf of Doris, but he is established in Italy. If Petroni is not able to provide the service in Italy, there is a barrier. Doris is setting up an agency via Mr. Petroni and article 49 TFEU also applies on setting up agencies. There is a restriction of the freedom of establishment. See Gebhard case, par. 37: ‘’National measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner, they must be justified by imperative requirements in the general interest, they must be suitable for securing the attainment of the objective which they pursue, they must not go beyond what is necessary in order to attain it’’.

English workmen will not be able to provide the services in Italy and this is a violation of the freedom of establishment. There is no longer access to the market, Alpine case par. 38.  So, there is a violation.

3. The Italian government submits that the legislation is compatible with Union law for the following two reasons:

- Petroni is an Italian national and the activities which he has been accused of have all taken placed in Italy;

- Suppose Article 56 TFEU is violated, the legislation will still be justifiable for reasons of general interest, namely limiting and strictly controlling the supply of gaming and betting.

Give your opinion on these two arguments.

Anwswer to question 2c:

Italy states that it’s an internal matter, p. 365 EU Union Law. It’s about the interstate element. If there is no interstate element, only the national law applies. This is not the case, because Doris wants to enter the Italian market, so that would be a cross-border element. It’s not entirely an interstate-element at all. If there would be no cross-border element, than the Italian law would not violate the Treaty.

Justification is possible on the exception grounds of the Treaty. If there is a discriminatory ground, only the grounds of the Treaty can justify the legislation. If there is an non-discriminatory rule, justification will have to be examined as followed (rule of reason):

Gebhard, par 37.:

• They must be applied in a non-discriminatory manner;
• They must be justified by imperative requirements in the general interest (p. 422 Book);
• They must be suitable for securing the attainment of the objective which they pursue;
• And they must not go beyond what is necessary in order to attain it (proportionality).

In this case, the rule of reason should be used, because there is no discriminatory infringement. You must check whether the measure is proportionate.

Preventing gambling to protect the people from their own desire to gamble, could be justified whether it’s a necessary and proportionate measure (Alpine investments, par. 40 in combination with par. 37 of the Gebhard case).

Applied in this case the measure applies without distinction. Italy tries to prevent gambling, relating to the general interest. Is the measure suitable? > The link between the measure and the pursued aim. This is okay.

Is it proportionate? No, it’s not proportionate: Look into the Gambelli case.

Question 3

The lighthouse guard of the lighthouse ‘Vuurlicht’ on the Dutch island Terschelling will soon retire. The Ministry of Transport and Public Works, which is responsible for lighthouses, has recently placed an advertisement for the appointment of a new light-house guard. The Sardinian Lampi is the only applicant and hired as the new lighthouse guard. As a civil servant he concludes an agreement with the health insurance company AZ. He generally likes his job, but due to the regular walking up and down the stairs, his weak right hip causes him increasing pain and discomfort. After a visit to the general practitioner on the island of Texel he is referred to the Academic Hospital in Groningen. Here he learns that his hip is seriously damaged. He is nevertheless put on a waiting list, since his situation is considered urgent but not ‘very urgent’.

The pains Mr. Lampi suffers from are becoming more and more unbearable. Therefore, he decides to go to Italy to ask for a second opinion from a doctor who works in a private hospital in Verona and is specialised in hip operations. The Italian doctor regards his situation as very urgent and is of the opinion that an immediate operation is necessary. After a successful operation Mr. Lampi returns to the Netherlands and asks the health insurance company AZ for the reimbursement of the costs of the treatment incurred in Italy. The insurance company AZ refuses to pay Mr. Lampi, since, according to AZ, it is not legally possible to have the costs of a treatment in a private hospital in another Member State reimbursed, unless it concerns the treatment of children under 12 years of age.

Mr. Lampi disagrees with this explanation and starts a procedure before the national court stating that Article 56 TFEU has been violated. The court decides to stay the proceedings and ask for a preliminary ruling from the European Court of Justice. The following question is put forward to the ECJ:

Suppose that Article 56 TFEU can be relied upon against a private insurance company, is a national law prohibiting the reimbursement of the costs of a medical treatment in  a private hospital in another Member State, unless it concerns the treatment of children under 12 years of age, compatible with Union law, in particular Article 56 TFEU?

What would be the answer of the Court?

Answer to question 3:

According to the Watts-case, medical services provided for consideration fall within the scope of the provisions on the freedom to provide services (par. 86). It also concludes the freedom for the recipients of services (par. 87), including persons in need of medical treatment, to go to another Member State in order to receive those services there. Article 56 TFEU is applicable, because the Sardinian is working/providing services in the Netherlands (another Member State), he earns money with it. He gets a medical operation, which is temporary and the operation is in another State (cross-border element). In this case, Mr. Lampi falls within the scope of Article 56. There is no justification for the fact that he has to pay for the treatment himself. The Netherlands should pay for the treatment, because this is the Host Member State, and Mr. Lampi is entitled to receive the money of the treatment back from that Host Member State. Therefore, there is a breach of the Treaty. It’s not proportionate, because there’s only a reimbursement for children under 12. Why that distinction? This is not proportionate.

Look into par. 98, 101, 103 and 106 of the Watts- case. 

Seminar 3 of the Course European Law (2016/2017), Utrecht University

Week 3

The Area of Freedom, Security and Justice

Question 1

1. Which policy areas does the Area of Freedom, Security and Justice encompass?

Answer to question 1a:

The Area of Freedom, Security and Justice is regulated by Article 3(2) TEU: ‘The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.’ 

According to this Article, the policy areas are border controls, immigration, asylum and the prevention and combating of crime.  

2. The Tampere European Council (1999) endorsed the principle of the mutual recognition of judicial decisions as the foundation of judicial cooperation in both civil and criminal matters. What does this principle entail?

Answer to question 1b:

The principle of the mutual recognition means that Member States have trust in one another and they recognize the judicial decisions of the other Member States, without checking the procedure that was followed. Member States should have the mutual trust that the procedure in the other Member State was right and the rights were guaranteed. This principle entails that the Member States work together and they trust each other. That’s why they recognize each other’s decisions.

There’s a distinction between criminal matters and civil matters.

Question 2

Mr. Ludy, a French citizen, has been living in Denmark since 2007. In 2011 he attends a seminar in Stockholm on “War and Social Media”. Mr. Ludy is one of the keynote speakers of the seminar. Mr. Ludy had arranged in advance that he could stay in the apartment of one of the organizers of the seminar, Miss Anna. That night Mr. Ludy and Miss Anna, reportedly had sex. The day after Mr. Ludy returns to Denmark. A few months later a Swedish Court sentenced Mr. Ludy in absentia to 10 years’ imprisonment for rape. No summon was served because the Swedish authorities were not aware of Mr. Ludy’s whereabouts. The Prosecutor’s Office of Stockholm issued an European Arrest Warrant is against Mr. Ludy for the execution of the sentence. Mr. Ludy gives himself up to the Copenhagen Police and is taken into a surrender hearing at the Court of Copenhagen. Before the Court of Copenhagen Mr. Ludy argues that he was not aware of the proceedings in Sweden. He believes his right of defense has been infringed. The decision of sentence has not yet been served to him in anyway. Look at the Council Framework Decision on the European Arrest Warrant.

1. Is it possible for Sweden to issue a European Arrest Warrant for Mr. Ludy?

Answer to question 2a:

Yes, it is possible to issue a European Arrest Warrant. According to Article 2 Council Framework Decision (CFD), there are to requirements which must be fulfilled (1, 2):

1. ‘’A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.’’ > Rape is punishable under Swedish law. Mr. Ludy is sentenced with imprisonment of 10 years, so this requirement is fulfilled.
2. The offence must fall within the scope of an offence in the list of (2) > Rape is one of the offences on the list, so this requirement is fulfilled.

2. Is Denmark obliged to surrender Mr. Lassange on the ground of the issued European Arrest Warrant?

Answer to question 2b:

According to the principle of mutual recognition, Denmark would be obliged to surrender Mr. Ludy (Article 1 (2) Framework Decision), unless there are grounds on which Denmark is allowed to refuse (Article 3 Framework Decision). Article 3 has imperative grounds, and article 4 has optional grounds and article 4a is about the trial where the person did not appear in person. If Sweden informs Mr. Ludy about this right to retrial, then he should be surrendered (Article 4(d) Framework Decision).    

Question 3:

Please analyse Article 86 TFEU which provides for the possibility of the establishment of a European Public Prosecutor’s Office (EPPO).

1. If the European Public Prosecutor’s Office (EPPO) is established, what will be its main task?

Answer to question 3a:

Article 86 TFEU describes: ‘’In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor’s Office form Eurojust.

The EPPO shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences’’. The main task of the EPPO will be the investigation, prosecution and brining to judgment of offences against the Union’s financial interest.

2. The European Commission has proposed to establish the European Public Prosecutor’s Office. However, in order to come in force the Commission’s proposal needs to be adopted. Looking at the procedure of Article 86 TFEU, argue why:
   
   1. It is not very likely that the EPPO will be established;
   2. It is very likely that the EPPO will be established.

Answer to question 3b:

1. It is not very likely that the EPPO will be established, because the Member States are afraid they will have to hand in more of their sovereignty. The Union will have  more and more possibilities and tasks. The Member States are losing their sovereignty because of these actions. The Member States do not want that. EPPO has not been established yet. There’s an unanimity needed, which is not likely to happen. In addition, there’s a consent required by the European Parliament and the Council. 
2. It is likely that the EPPO will be established, because the Member States handed in a piece of their sovereignty to the Union, therefore the Union can establish the EPPO. The EPPO would help securing the Union-zone against offences.

Question 4

Explain the importance of the Wolzenburg case in the light of the non-discrimination and proportionality principle.

Answer to question 4:

According to the Wolzenburg case, it is not discrimination of a Member State if it requires a person to live in that state for longer than 5 years, to be able to refuse the surrender of that person. If the person has been already in that Member State for 5 years, the Member State can refuse the surrender. If the person resides in the Member State for a shorter period, the Member State must surrender the person to the other authorities. This happened in the Wolzenburg case, this was no discrimination based on nationality. Look into paragraph 68 and 69, 70.  

Question 5

Suppose the European Commission proposes a directive for combating illicit arms trafficking by criminal law.

1. What could be the legal basis of this proposal?

Answer to question 5a:

Article 83(1) TFEU: ‘’The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis’’. It’s about the combating of criminal offences. When it concerns particularly serious crimes, then the European Parliament and Council may adopt minimum legislation.

2. The Commission’s proposal also includes minimum sanctions and maximum sanctions which the Member States must implement in their criminal justice system. Germany and Belgium both oppose this proposal. What can Germany and Belgium do?

Answer to question 5b:

In the case Germany and Belgium are afraid that the draft will infringe on the fundamental rights and aspects of the criminal justice system, they can use Article 83 (3) TFEU: ‘Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.’ The legislative will then be suspended. This is the emergency brake.

Seminar 5 of the Course European Law (2016/2017), Utrecht University

This is a seminar about Week 6!

Week 6 European Law (Seminar 5)

Equal treatment in employment

Question 1

Which similarities and/or differences are to be discerned between the discrimination prohibition on the grounds of age, handicap, belief and sexual orientation of Directive 2000/78, and the discrimination prohibition on the ground of nationality of Article 45 TFEU?

Take regard of their personal and material scope and their interpretation by the ECJ.

Answer to question 1:

Differences: The discrimination prohibition on grounds of age, handicap, belief and sexual orientation fall within the scope of the Directive. This Directive concerns equal treatment in employment, without cross-border element. It’s about internal labour situations. Therefore, the Directive has to be implemented in national law. The Directive applies to the public sector. The Directive is based on article 19 TFEU. 

The discrimination prohibition on the ground of nationality does concern a cross-border element. It can be invoked in other Member States. Article 45 TFEU has a community meaning and is applicable in all of the Member States. Article 45 TFEU does not apply to the public service (par. 4). Article 45 TFEU could be regarded as a lex specialis to article 18 TFEU.

Similarity: Both discrimination prohibitions have the objective to protect workers in the European Union, but the Directive also applies to self-employed persons. The Directive has a broader scope. This is a difference, but they both concern workers.

Question 2

A private school employs 100 female teachers, of which 40 work part time, and 50 male teachers, of which 10 work part time. Ms. Peters, who works 4 hours a day, is a member of the school’s works council (WsC). According to national law, members of the WsC can perform their WsC’s tasks in working time and are being paid their salary according to their employment contract. One day, the members of the WC take a full day-training course in labour law. The full time members receive payment according to 8 hours, however Ms Peters is only paid according to 4 hours because this is her contractual working time per day.

1. Is Ms Peters discriminated against on the basis of EU law? If so, does it constitute direct or indirect discrimination, and on what discrimination ground?

Answer to question 2a:

Mention the primary legislation first, so that is article 157 TFEU. Also, mention the Directive 2006/54 EC! Also use the Bilka case, par. 27.

This question concerns the discrimination on ground of sex: There is no direct discrimination, because Ms. Peters is not treated less favourably because she works part-time and her colleagues are working full-time. However, the training is a full day, and this will cost Ms. Peters 8 working hours. However, she only receives remuneration for 4 hours.

There is indirect discrimination, because the neutral provision in national law, brings Ms. Peters in disadvantage, because she works part-time. Mostly women are part-timers, that’s why this question concerns the discrimination on ground of sex (Bilka judgment).

The indirect discrimination could be justified, if the provision is proportionate and serves a legitimate aim.

b.         Could Ms Peters directly rely on Community law in order to receive the same payment as her colleagues, working full time? If so, which provision?

Answer to Question 2b:

Article 157 TFEU: Economic objective. Article 157 has horizontal direct effect (Defrenne II). Ms. Peters cannot rely on the Directive.

The prohibition of discrimination on the ground of sex is regulated by the Directive 2006/54 on the equal treatment of employees. The Directive must be implemented in national law, before a person is able to invoke the article. Article 14 is about the prohibition of direct and indirect discrimination. Ms. Peters cannot rely on Community law directly, the Directive has to be implemented first.

Question 3

The Dutch Minister of Social Affairs developed a legislative measure in order to combat the rising unemployment among young people in this time of financial crisis. According to this temporary measure, young workers under 27 years of age can enter more than three consecutive, fixed term employment contracts without the contract being automatically converted into a contract of indefinite duration. This is an exception to national labour law, protecting workers on fixed term contracts, which states that every fourth, consecutive fixed term contract is automatically converted in one of indefinite duration.

Bartho, 24 years, feels he is being deprived of social protection solely on the basis of age. He is not unemployed and actually expects to be offered a contract of indefinite duration in a short time by his employer because the employer needs his services and already offered him three, consecutive fixed term contracts until now.

Is the legislative measure in conformity with EU law?

Answer to Question 3:

Article 6 of the Directive 2000/78 describes justifications of differences of treatment on grounds of age. According to this article: ‘’Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are proportionate and necessary.’’ In this case, the ground concerned is the labour market. Bartho is 24 years old and will not get a contract of indefinite duration, because of the regulation. This is discriminatory, because people younger than 27 years old will have disadvantage, because they will not have a contract of indefinite duration. Sub b is important: ‘’The fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment’’. In this case there is a minimum condition of age from above 27 to obtain a contract of indefinite duration.

This however can be justified by a legitimate aim if it’s proportionate and necessary. According to the Dutch government, the measure was taken to combat the rising unemployment of younger people, because of the financial crisis. This is a legitimate aim. The provision is also proportionate, because it is a temporary measure. So, the measure is in compliance with EU law.

(Age concern case, par. 43). Mangold case: combating unemployment was accepted.

Question 4

An enterprise has to restructure. It agrees on a restructuring plan with the trade unions that offers workers that have to be made redundant, and not yet reached 60 years of age, an redundancy payment (total sum that equals their monthly salary x years of service) and outplacement services. Workers of 60 or older are expected to retire early and make use of their pre-pension plan. If they do so, they receive an additionally payment, making up (including pension benefits) 70% of their monthly wages. The employer and the unions reckon this plan to be based on solidarity because workers over 60 are offered income security, instead of employment security, as they will have little chances on the labour market as it is.

Mr. Vanilio, 63 years and 25 years of service, disagrees because the redundancy payment in his case would amount to much more money, compared to the additional payment to his pensions benefits.

Is the redundancy plan in conformity with EU law?

Answer to Question 4:

This case is about discrimination on the basis of age. There is no closed system, but a proportionality test. Discrimination on the basis of age falls within the scope of Directive 2000/78 EC. According to the Directive, there should be equal treatment and there is a prohibition of discrimination on the ground of age (article 6 Directive). The redundancy plan is therefore not in conformity with the European Law, because it is discriminatory and there is no equal treatment. Older persons in the enterprise are being treated less favourably than the younger employees. This is direct discrimination.

Question 5

The police of the municipality of Utrecht has a job-vacancy for an officer, who has to work in a neighbourhood were a significant number of the inhabitants has a Moroccan-ethnic background. For this reason and also because of the fact that Dutch-Moroccans are underrepresented in the Utrecht police force, the job-advertisement requires candidates to belong to an ethnic minority, preferable Moroccan.

1. Does the job requirement constitute discrimination under EU law? Which Directive is involved?

Answer to Question 5a:

The job requirement constitutes discrimination based on race, because the police prefers someone with a Moroccan-ethnic background. Other races are not able to apply for the job. This situation falls within the scope of the Directive 2000/43 EC on race discrimination. This is direct discrimination, because all the other races cannot apply for the job.  Only ethnic-minorities can apply for the job. According to article 2(2a) Directive, discrimination occurs where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.

b.         What kind of defences (name two) could the municipal police put forward on the basis of this Directive? Will they be successful? (argue why/why not)

Answer to Question 5b:

Because of the Moroccan-ethnic neighbourhood the police wants someone with a Moroccan-ethnic background or other ethnic minorities. The police is afraid that the group is underrepresented, and if there comes a Moroccan-ethnic police-officer, this might be fortunate for the trust of the ethnic groups. Also, the ethnic person could communicate better with the Moroccan community, if they don’t speak Dutch very well. So, there is a legitimate aim.

 However, Only article 4 and 5 (closed system) can form an exception to direct discrimination, according to the Directive 2000/43 EC. Article 4 does not apply, because it is not necessary to be Moroccan to fulfil the job. It could be legitimate, but you could not say that Moroccan people are always better qualified than non-Moroccan people to apply for the job. Also article 5 cannot be fulfilled. Therefore, the defences of the police will not be successful.