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Answers A Basic Guide to International Business Law
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Answers to the exercises in Chapter 1 - Introduction to International Private Law and EuropeanLaw
Exercise 1.1
Question 1
Not directly applicable as a Directive has to be transferred to national law first before it can take
effect. Member States therefore have to take further action to implement the content of the
Directive, meaning that immediate implementation of this Directive is out of the question.
Question 2
The European Court of Justice has to first establish whether the Directive can take effect directly. If a
direct effect is not established by this court, Hellenberg cannot rely on the Directive before a national
court of law: that is, Hellenberg has no case to answer to. The conditions under which a Treaty article
is deemed to have direct effect are contained in the Van Gend & Loos case.
Question 3 (4 points)
Art. 234
Conditions:
• Court and tribunal = Dutch court of law is a normal court of law.
• Genuine issue of EC law = real conflict between Hellenberg and his employer involving aspects of
EC law; this condition derives from the Foglia-Novello case.
• Necessity of the ruling = none of the exceptions mentioned by the case CILFIT apply and
consequently, for the national court of law to give judgement in the case pending before it, a
preliminary ruling must have been handed down first.
• No remedy under national law = court of law asks for a voluntarily preliminary ruling and so the
matter of how to force the national court to address the European Court of Justice would no
longer seem relevant.
The effect of the preliminary ruling is to suspend national proceedings: the national court has to
comply with the preliminary ruling by the ECJ.
Question 4
State liability is possible; look into the Francovich case:
• Directive gives rights to individuals = Mr Hellenberg
• Content of the Directive is clear = protection of workers against termination of their employment
contract
• Causal link between the damage suffered by Hellenberg and the fact that the German
government did not implement the Directive in time = if the Directive had been implemented in
time, no damage would have been suffered by Hellenberg.
Exercise 1.2
Question 1
It has to be established whether the articles of the EC Treaty concerning the free movement of
workers have direct effect or not, otherwise Lehtonen has no case before the Belgian court of law.
The ECJ has to decide on this. Three conditions are necessary for a Treaty article to have direct effect
(the Van Gend and Loos case):
1. The provision must be clear and unambiguous.
2. The provision must be unconditional.
3. The provision must take effect without further acts of the EC or Member States.
Question 2
In order to ask for a preliminary ruling under Article 234 EC Treaty four conditions have to be
fulfilled:
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