Open question 1 (25 points)
Within the context of EU legislation seeking to improve the air quality in Europe, France is required as from 1 February 2015 to implement standards on fine dust (PM10) and nitrogen dioxide (NO2) below the maximum threshold set at EU level. With a view to comply with these standards, the Community of Paris adopted an ‘Action Plan for Air Quality’. Next to certain specific measures to promote the use of more environmentally friendly transportation of goods, like the electric car, the Community of Paris also decided to prohibit diesel cars older than 9 years and petrol cars older than 13 years from accessing the city center as from December 2014. The Italian Bruno Maldini is the owner of a 24-hour-Oldtimer Service, established in the Italian community of Pisa. Demoulin is staggered by the plans of the Community of Utrecht, as his company regularly rents out oldtimers (cars which are more than 25 years old) for wedding ceremonies in the center of Paris. He therefore seeks advice from his lawyer to hear which arguments based on EU law and in particular the EU rules on free movement he can raise to challenge the Action Plan of the Community of Paris.
Which arguments could he raise before the District Court of Paris to challenge the decision of the Community of Paris? Please motivate your answer carefully by referring to relevant case law of the Court of Justice.
Open question 2 (25 points)
Open question 2a (10 points)
Students studying at a university in Estonia have to pay an enrollment fee of 3,000 euro per year if they follow an English language master in psychology. Students who follow a Estonian language master in this area pay 400 euro per year. Foreign students complain about this difference, they also want to pay the lower fee.
What arguments are useful to put forward by the students? (NB the assessment of the arguments is subject of b)
Open question 2b (15 points)
What criteria will the Court of Justice use to give an answer to the ques whether this difference in fees is allowed? How will they be applied in this case?
Open question 1 (25 points)
The crucial point in this case is that Mr Maldini cannot rent out his classic cars for weddings in the centre of Paris as a result of the measures adopted by the Community of Paris. The point of departure is the renting out of classic cars, which constitutes a service within the meaning of Articles 56 and 57 TFEU.
EU legislation setting certain thresholds, however, this legislation does not exclude the applicability of the Treaty provisions on free movement. Article 56 TFEU applies to services provided for remuneration (see also Art. 57 TFEU): this is the case as Mr Maldini rents out his classic cars for a certain amount of money. Article 56 TFEU will only apply if there is a cross-border provision of services. As Mr Demoulin is established in Belgium and he provides services in the Netherlands, this condition is fulfilled.
Demoulin can invoke Article 56 TFEU before the national court as this provision has (vertical) direct effect. The Community of Utrecht is the addressee, and belongs the the state.
Article 56 TFEU prohibits discriminatory and non-discriminatory restrictions, ie measures that apply without distinction but affect market access (see also Alpine Investments). The fact that it here concerns a measure that applies only to certain cars is irrelevant for the assessment of whether this measure constitutes a restriction. The Keck-judgment cannot be applied to services (see also Alpine Investments).
It is therefore crucial to examine whether a justification ground can be invoked by the Community of Paris. As it concerns a non-discriminatory restriction, the Community can take recourse to both the Treaty exceptions and the ‘rule of reason’. The Treaty exception that may be of interest here, is the protection of public health (article 62 Jo 52 TFEU). But stringent conditions apply. There must be a causal link between the measure adopted and the aim pursued, and the proportionality principle must be complied with. The rule of reason (mandatory requirements) constitutes an open group of exception grounds, inter alia the protection of the environment or consumers, which could be particularly relevant to this case. At least the proportionality principle must be complied with: the measure must be suitable to attain the aims pursued and no less restrictive means are available.
Open question 2 (25 points)
Open question 2a
The students can invoke article 20 TFEU (European citizenship) in connection with article 18 TFEU claiming that they are indirectly discriminated against. Since they are (in general) not able to study in Estonia they have to rely on the English language course. So this rule affects mainly foreign students and can thus be seen as indirectly discriminating on ground of nationality. (10 points).
Open question 2b
The Court will require that the measure is in the general interest, that it is adequate and that the measure is proportional. The Open question whether the criteria are satisfied depends on the arguments put forward by the university. (15 points) It may be that it is more expensive to recruit and pay English speaking teachers and materials (books for the library), and for that purpose it is adequate to require those who follow the course to pay for this. Whether the difference in fee is proportional depends on the calculation of the actual difference in costs of the masters.
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