LAW6101- Law of the European Union

Assignment Task

Scenario

A. Commission v Germany

The European Commission is bringing an action against Germany which has now reached the Court of Justice of the EU. The Commission alleges that Germany has committed breaches of EU Law that allows them to bring an Article 258 TFEU action against them.

The German Bundestag has introduced two new laws in order to address concerns they have in the areas of environmental and cultural protection, owing to the introduction of a new technology called the ‘stickstoff pumpen’ [‘nitrogenating pump], which creates a smooth and creamy textured drink in bottles and cans. The two rules that the Commission is taking action over are:

a) The German government has imposed a €0.05 levy on all products containing nitrogenating technologies which are imported into Germany. The levy covers the higher recycling cost created by the residual nitrogen gas contained in the pump mechanism and which requires an extra process to convert the nitrogen to ammonia. The measure has consequently been justified on environmental protection grounds. France, and Italy are the only EU Member States who currently manufacture stickstoff pumpen.

b) Germany amended the Kneipe (Schutz) Gesetz [Public House (Protection) Law] 1925 to include restrictions on nitrogenating technologies, like stickstoff pumpen. The amendment states that nitrogen-infused drinks, such as draught beer and cola, and any related equipment, cannot be sold or used except in licensed public houses. Furthermore, the words ‘Only sold in Kneipe’ need to be included on the labels. The Federal Government Commissioner for Culture and Media has stated that the amendment serves to protect pub culture by ensuring that visiting the kneipe remains a unique experience. Germany argues that these rules are necessary for the protection of cultural heritage.

This matter has already been raised before the Commission under Article 258 TFEU, and Germany put forward the above-mentioned reasons for the introduction of the laws. The matter now passes to the CJEU, where the Commission has argued that Germany is in breach of EU Law.

The Commission argues that the following fines should be imposed for Germany’s breaches:

• A lump sum penalty of €135 million

• A daily penalty of €80,000

You are the Advocate General in this case. Deliver a reasoned opinion on the following points:

a) Whether the measures taken by the German government appear to be a prima facie breach of treaty rules on the free movement of goods;

b) Whether the Commission’s recommendations for the application of fines are appropriate in this case, including discussion of the relevant factors used in calculating the fines.

B. Aleksander Mikkeller v Denmark

Aleksander is a British football player who plays for Dunfermline United in the Scottish Championship League. With his contract set to expire, Aleksander seeks a transfer to AFG Aarhus, a Danish team in Denmark’s Superliga, in order to live closer to his eldest son from his first marriage. Aleksander holds dual British-German citizenship, however, his current wife Caroline and their two children (aged 16 and 18) only have British citizenship. Aleksander has brought a case in the Vestre Landsret (High Court of Western Denmark), from which cases can be appealed to the Supreme Court of Denmark.

The facts are as follows: Aleksander has been living in Aarhus, Denmark, for the last 3 months with Caroline and their two children, where he has been playing football for AFG Aarhus. It was discovered upon transfer that Aleksander’s economic rights were owned by a third-party offshore company, who had sponsored him as an up-and-coming youth player. At the end of 3 months, the Danish authorities informed Aleksander and his family that they have no right to reside in Denmark and must leave the country immediately.

When Aleksander brought his case in court, the Danish authorities argued that they had a right to deport Aleksander on the grounds that it was necessary in the interests of public security, as third-party sponsorship is known to be tied to money laundering. They produced evidence that the ban on third-party sponsorship was not being properly enforced in the Superliga and that the sizeable commissions agents were receiving correlated to an increase of money laundering incidents in Denmark.

The matter has been referred to the Court of Justice of the EU under Article 267 TFEU, as Aleksander has convinced the High Court that it cannot rule on this case without the CJEU providing interpretation on the meaning of ‘public security’. As Advocate General of the CJEU, you are required to deliver an Opinion on the following grounds:

a) Advise on the rights of free movement of persons that Aleksander and the family members living with him in Denmark have, including whether the Danish authorities have the right to deport Aleksander for the reasons stated.

b) Advise the Court whether the reference made by the High Court under Article 267 TFEU is valid, and whether the CJEU have an obligation to provide the interpretation that is requested.

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