EU Law I: exam 2007

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Original exam text

European Institutions Exam, 26 October 2007

• Put your ID-number and the number of the question on every page.
• This exam consists of two cases and one general question which all need to be answered. Please answer them in form of full sentences and adequate reasoning, refer where necessary to Treaty articles or respective ECJ/CFI jurisdiction. Please also write down your answers in grammatically correct English sentences in readable handwriting.
• Use a new sheet of paper for every new case question from 1 to 3.
• The use of texts of EC legislation (Blackstone) is allowed, provided they contain no cross references, with the exception of Article numbers. The use of the Oxford English Dictionary is allowed.

Case Facts

The Commission is concerned by high costs for consumers involving communication via mobiles when phoning from abroad known as roaming. Roaming is referring to the use of one’s home country mobile phone operator in another country, the network will be provided by the host operator which has a deal with respective home operator. This tariff will be included in the consumers’ overall mobile phone bill and is not only untransparent for the consumer, but also differs from one provider to the other within the EU Member States and leads to drastically overpriced services, exceeding usually more than 100% per minute of the tariffs paid for calls within the country. The high level of the prices payable by users of mobile telephone networks, such as students, business travellers and tourists, when using their mobile telephones when travelling abroad within the Community is a matter of concern for national regulatory authorities, as well as for consumers and the Community institutions. The European Commission also stresses the need to address this in regard to aim of a European social, educational and cultural area which is based on the mobility of individuals in the internal market and therefore should facilitate communication between people in order to build a real "Europe for Citizens". The Commission intends to regulate the following rights:

• Prices paid for international roaming when travelling within the EU will be capped by a Eurotariff unless the customer opts for a special package offered by an operator.
• The prices of the Eurotariff cannot exceed 49 cents for making calls and 24 cents for receiving calls for the next year (excluding VAT).
• Consumers will benefit from these lower prices for making calls in the visited country, back home or to another EU Member State.
• Consumers will also make considerable savings when receiving calls.
• Prices that operators charge each other (wholesale charges) are also being capped over the next three years. This ensures that all operators will be in a position to offer lower retail tariffs.
• Transparency of roaming charges for consumers will be enhanced. Customers will be able to receive an SMS when they are roaming informing them of the price they are expected to pay for making and receiving calls. Customers can opt out from the service if they wish. Customers are able to request more detailed information by means of a voice call or SMS.

Question 1

1. On which legal basis or bases should the Commission base its proposal for legislation and why? (4 p)
2. Which legal instrument would you suggest the Commission to propose and why? (2p)
3. Zodafone which is the biggest mobile network operator in Europe is not very pleased by these envisioned measures and wants to convince the Commission of changing its legislative proposal. The private British company invites Commissioner Hugo Wallenstein to a champagner breakfast in Brussels and a trip to Spain to stay at the hacienda of Sir Clarence Bond, chairman of Zodafone, to discuss with him “certain necessary amendments”. The breakfast and trip of Hugo Wallenstein become public and the Commission President Jean-Claude Juncker-Delors is wondering whether any actions and by whom against Wallenstein’s behaviour can be taken. (4p)

Question 2

1. Several months later, the European Community adopts a directive addressing roaming charges in the EU. This “Roaming Directive” needs to be implemented by Member States until 1.1.2008. Gustav Miele, a well-known Swedish trader in dishwashers, is held up at the Maltese border with 200 of his dishwashers because they not fulfilling the requirements necessary for access to the Maltese market. To clarify his legal situation and consulting his office, Gustav makes many calls to Sweden and other European countries via his Swedish mobile network. When he comes home to Sweden, he discovers that he has a bill of € 1980, his Swedish network provider which is a private company, charged him € 3 per minute, even though the company could have cut the prices to less than € 0,49 per minute according to the Directives’ Eurotariff (which would have been a bill of about € 323). Neither Malta nor Sweden has implemented the Roaming Directive in time and the respective national laws do not foresee any protection of consumer in regard to overpriced roaming charges. What can Miele do now, will it be successful and in front of which court will he have to take actions? (5p) Would Gustav’s position change when the EC would have implemented a regulation instead of a directive? (1p)
2. Several months later, the European Community adopts a Regulation addressing roaming charges in the EU. Lokia, a private Finnish company and legal person which is the world’s largest producer of mobile phones and also participates in the mobile network market, wants to take actions against this Roaming Regulation as they are convinced that this Regulation is infringing their right to property and the Regulation is not proportionate. Advise Lokia whether they can successfully challenge this regulation in court (in which court and why or why not) (2p).
3. The Finnish government is approached by Lokia whether they can take any actions against the Regulation. Advise the government under which legal procedure they can take actions, what are its preconditions and on what claim(s) it could be based (please also specify which court would be responsible) (2p)

Question 3

The special legal order of the European Community is based on certain fundamental institutional principles. Please give five examples, describe briefly what they entail (Please give references, when possible, to decisive Treaty articles and/or case law). (2p. per correct principle/10 p. total)