EUROPEAN UNION LAW

FINAL EXAMINATION


GOLDEN GATE UNIVERSITY SCHOOL OF LAW

PROFESSOR HELEN E. HARTNELL

MAY 3, 2002


INSTRUCTIONS


1. This is an open-book examination. You are permitted to refer to the casebook, treaties, class handouts, class notes, and an outline prepared by you or your study group. LL.M. and S.J.D. students whose native
 language is not English may also use an English-foreign language dictionary. USE DURING THE EXAMINATION OF ANY OTHER MATERIALS IS PROHIBITED.

 2. WRITE YOUR EXAMINATION NUMBER AT THE TOP OF THIS PAGE AND ON EACH BLUE BOOK USED.

 3. Your answers should be written in INK in a blue book, or typed. DO NOT USE PENCIL. In a blue book, please write on one side of the page only and do NOT skip lines. If you type, please double-space your exam.

 4. You have TWO hours to complete this examination, which consists of two (2) questions. The suggested times correspond to the importance (and point value) of each question. Thus, a question where I suggest 60
 minutes would be twice as important as one where I suggest 30 minutes.

 5. AT THE END OF THE EXAM, TURN IN THIS EXAMINATION AND ALL SCRATCH PAPER USED.

 6. The fact patterns are fictional, although each has some factual basis.

 

 

QUESTION 1

Recommended Time: 75 Minutes

Regulation 2002/X (REG X) adopted in January 2002 forbids all advertising of legal services in the European Community. The Council adopted REG X on the basis of Articles 47, 55 and 95 of the EC Treaty. The preamble to REG X states inter alia that "harmonizing the laws governing the advertising of legal services is necessary for the establishment and functioning of the internal market." Lawyers throughout the EU tried unsuccessfully to prevent adoption of REG X at the legislative stage. Now that REG X has entered into effect, legal professionals in Europe continue to search for a way to overturn or otherwise challenge it. The CCBE (Council of Bars and Law Societies) - a professional association based in Belgium that represents the interests of legal professionals throughout the EU - is leading the charge. The CCBE has hired you as a special consultant in connection with this project, and has asked you to prepare a memorandum in which you outline a strategy for challenging REG X. Your memorandum should address both procedural and substantive aspects of the case. Begin by laying out how REG X could be challenged in the procedural sense. Outline each of the options available, assessing its strengths and weaknesses, then write an "action plan" in which you recommend the best courses) of action. Next, lay out all the substantive arguments you would make to overturn or otherwise challenge REG X. Finally, conclude your memorandum by assessing the likelihood that your substantive arguments will succeed.

 

 

QUESTION TWO

Recommended Time: 45 Minutes

German law requires that vitamins and natural or herbal remedies collectively referred to as "health aids" - be sold only in pharmacies. No doctor's prescription is required for the purchase of health aids. All vitamins are covered by the German law. However, in regard to natural or herbal remedies, the law applies solely to processed substances (e.g. liquid or powdered extracts made from garlic, chamomile, rose hips, or pumpkin seeds). Thus, the German law does not affect the sale of food or herbs in their unprocessed forms (e.g. fresh or dried). German consumers - particularly the elderly - rely heavily on vitamins and natural or herbal substances to promote health, despite the lack of scientific proof that these health aids do in fact have the desired effect. The German government claims that consumers need the advice of pharmacists prior to purchasing and using such substances, particularly since vitamins and natural or herbal remedies may have harmful side effects when taken in combination with other such health aids or with prescribed medication. The production of vitamins is regulated in Germany, but the production of natural or herbal remedies is not regulated. Approximately 85% of the vitamins and 50% of the natural or herbal remedies sold in German pharmacies are manufactured in Germany.

The Commission has challenged the German law before the European Court of Justice (ECJ). Assume that you are a lawyer in the Commission's Legal Service, and argue the case against Germany. Be sure to address arguments that you expect the German government to raise in its defense.