EUROPEAN UNION LAW
FINAL EXAMINATION,

GOLDEN GATE UNIVERSITY SCHOOL OF LAW
PROFESSOR HELEN E. HARTNELL
DECEMBER 9, 2002

INSTRUCTIONS

1. This is a take home examination. You are permitted to refer to any materials that you wish in preparing your answers. However, there is no expectation that you will consult any materials beyond those contained in the casebook, the documentary supplement, or in this examination itself.

2. Please include appropriate references to source material in the text of your answer, particularly to cases (by name), treaties (EC Treaty or TEU), and legislation (popular name and number of Directive or Regulation). Formal (blue book) citations are not required.

3. This examination will be distributed on Monday, December 9 at 12:00 and is due on Monday, December 16 at 10:30 a.m. Exams must be turned in and time-stamped in the Faculty Center in room 2333 of the 536 Mission Street building. Be sure to give your exam to one of the administrative assistants in the Faculty Center, since they will know the proper place to put your exam for safekeeping. Exams will be marked down 1/2 grade (e. g. from A to A-) for each day (or portion thereof that they are late. Please leave yourself ample travel and printing time on Monday morning.

4. You may write your answers in one or more blue books, but please type your exam answers if possible. Typed exams should be in 12-point font, double-spaced, with one-inch margins. Students who opt to hand write their exams should write in blue or black ink, on one side of the page only, and should not skip lines.

5. Please label each typed page or blue book with your EXAM NUMBER only. Your name should not appear anywhere on your exam.

6. This examination consists of three questions, one of which (Question I) has three parts (A-B-C). Please answer every question and observe the page limits.


QUESTION I (MAXIMUM 10 PAGES)

I.A. In early 2000, the Council adopted a directive imposing upon Member States an obligation to require all employers to distribute AIDS information and condoms at work, and to offer all employees an annual "safe sex" seminar. The AIDS Directive was adopted by the Council on the basis of Article 137 of the EC Treaty. A number of Member States fought against, and even voted against the AIDS Directive, among them Ireland (a Catholic country). The opponents argued inter alia that Article 137 was an improper basis for the AIDS Directive. Excerpts from the AIDS Directive are annexed to this examination.

As legal advisor to Ireland, detail the strategy you would follow (or would have followed) for challenging the AIDS Directive. Be sure to address both procedural and substantive issues and arguments.


I.B. Assume that your strategy under I.A. above was unsuccessful (despite its brilliance), and that as of the present date, all Member States have implemented the AIDS Directive. Ireland's implementing legislation, which entered into effect in early 2002, creates a number of exceptions and contains a number of provisions that are not contemplated by the AIDS Directive itself. For example, the Irish law provides that the AIDS seminar and information need only be provided to full-time employees over the age of 25, that condoms need only be provided to male employees, and that religious institutions are excluded from the obligations created by the AIDS Directive. In addition, the Irish implementing legislation specifies that the penalty for non-compliance shall be 5 Euros per day per employer, payable to the Irish Ministry of Health and earmarked for AIDS research and education. Moreover, leading Irish newspapers are currently reporting government sources as saying that the Irish. Government does not intend to enforce compliance with the obligations imposed by the AIDS Directive. The Commission is very upset with Ireland and has sued it for failing to fulfill its obligations under EU law. Assume that you work for the Commission Legal Service. Make the case that Ireland is in violation of its treaty obligations. (Assume that the Commission has properly filed suit against Ireland under the second paragraph of Article 226 of the EC Treaty.)


I.C. At the same time as the Commission is busy preparing its suit against Ireland, the Dedicated Union of Irish Teachers (DUIT) has filed suit in a Dublin court against the Dublin School Board, alleging that the Dublin schools have failed to provide the requisite AIDS seminars, information and condoms. DUIT is seeking an injunction and damages. The Dublin court has made a preliminary reference to the European Court of Justice (ECJ) under Article 234 of the EC Treaty.

In your capacity as an Advocate General per; Article 222 of the EC Treaty, write your "reasoned submissions" to the ECJ on the following two issues: (1) whether DUIT can bring such a suit (assume that DUIT has standing to sue), and (2) what remedy DUIT could seek for such a violation of EU law (regardless of whether you answered I.C.1. above as affirmative or negative).


QUESTION II (MAXIMUM 5 PAGES)

After a wave of unfortunate incidents involving defective microwave ovens, Spain passed a law providing that all such products sold in Spain must be accompanied by a minimum five year written warranty. The Spanish law, which entered into effect on 1 July 2002, stipulates that the warranty must provide for the replacement of any defective microwave oven, and prohibits anyone from repairing microwave ovens. Moreover, the warranty must provide full compensation for any personal injury or property damage caused by a defective microwave oven, and may not be limited or excluded ("disclaimed") by contract. The Spanish law presumes that a microwave oven is defective whenever personal injury or property damage are present, but allows the seller to present evidence that the product was safe. The Spanish law further requires that all imported microwave ovens be accompanied by a conforming written warranty in Spanish. No microwave ovens are manufactured in Spain.

Mercador SA is a Spanish department store that sells inter alia microwave ovens manufactured by Varka AB, a Swedish manufacturer of microwave ovens. In 2000, Mercador and Varka signed a 10-year contract for the supply of microwave ovens. However, Varka has notified Mercador of its intention to repudiate their contract, in view of Spain's "outrageous" new warranty law. Mercador has filed suit against Varka in Barcelona, asking the court to order Varka to continue supplying microwave ovens until 2010. (Assume that jurisdiction is proper in the Spanish court.) Varka believes that it should be excused from its obligations under the supply contract, and doubts in any case whether the Spanish law is compatible with Spain's obligations under EU law. The Barcelona court has made a preliminary reference to the European Court of ,Justice (ECJ) in Luxembourg under Article 234 of the EC Treaty.

Write the ECJ's opinion in this preliminary reference case, addressing all issues of EU law that arise in connection with this challenge to Spain's law.


QUESTION III (MAXIMUM 5 PAGES)

Occasionally the European Union and its Member States revisit the question of how best to ensure the rule of law in the EU. Assume for purposes of this answer that a proposal has been made to create a system of parallel EU courts that would sit in each Member State and decide cases involving issues of EU law. Assume further that the proposal refers only to the creation of courts of first instance (i.e. trial courts), from which appeals could be taken directly to the EU's own courts in Luxembourg. With this proposal in mind, assess the strengths and weaknesses of the current preliminary reference procedure under Article 234 of the EC Treaty, and make a reasoned recommendation to keep, abandon, or modify the existing system.


EXCERPTS FROM THE AIDS DIRECTIVE

The Council of the European Community,

Having regard to the EC Treaty, and in particular Article 137 thereof;

Whereas, the same importance must be attached 'to the social aspects as to the economic aspects and whereas, therefore, they must be developed in a balanced manner;

Whereas the social consensus contributes to the strengthening of the competitiveness of undertakings and of the economy as a whole and to the creation of employment; whereas in this respect it, is an essential condition for ensuring sustained economic development;

Whereas, the completion of the internal market must offer improvements in the social field for workers of the European Community, especially in terms of living and working conditions, and health and safety at work;

Whereas the Community Charter of the fundamental social rights of workers lays down that "Every worker must enjoy satisfactory health and safety conditions in his working environment";

Whereas such measures shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings;

Has adopted this Directive:

Article 1: Purpose and Scope. The aim of this Directive is to implement measures to encourage improvements in workers' safety and health at work. This Directive shall apply to all sectors of employment, public and private.

Article 2: AIDS-Related Measures. Member States shall adopt appropriate measures to ensure that each employer takes AIDS-related measures in accordance with this Directive. Each employer shall make available to its employees at all times approved AIDS information, and condoms. In addition, each employer shall conduct for its employees on pan annual basis a "safe sex" seminar in accordance with guidelines prepared b! y the Commission in conjunction with the Member States. Each employer shall require its employees to participate in the annual seminar.

Article 3: Enforcing Compliance. Member States shall adopt appropriate measures to ensure that employers may dismiss or penalize employees who fail to participate in the annual "safe sex" seminar.

Article 4: Defense of Rights. Member States shall introduce into their national legal systems such measures as are necessary to enable all employees who consider themselves wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process.