Examiners’ reports 2017

Examiners’ reports 2017

LA2024 EU law – Zone B

Introduction
The exam paper
The exanimation paper for Zone A and Zone B adopted the standard format
consisting of a mix of essays questions and problems questions. The content
reflected the syllabus based on the module guide, the study pack and on the
recommended readings. This is the second exam based on the fully revised EU law
guide. It is important to note that the clear majority of papers – even the weakest ones
– at least showed some understanding of the topics. Answers completely unrelated
to the questions nearly disappeared. It is to be repeated how crucial is to spend few
minutes reading the questions very carefully before ‘jumping’ into answering them.
2017 confirmed also last year’s trend with some excellent answers on those
questions that required command of some of the most some topical issues and recent
developments. As in the previous year, questions such as the one on the importance
of EU rights have been brilliantly answered, with students displaying the ability of
linking different topics. Some bad fails with the candidate scoring 0 are to be reported.
We would also like to reiterate an observation we made in previous years: time
management. Many candidates have struggled to answer the four questions
evenly. Quite clearly, some students spent too much time answering two or
three questions and had to resort to either excessively short answers or in
some cases just a skeleton answer. It should be reiterated that the assessment
of the exam is on four answers and students should always be encouraged to
learn how to manage time effectively, devoting equal time and attention to each
of the questions.
Note that errors in the extracts below were present in the original extracts.

Comments on specific questions

Question 1
‘The case law on supremacy and direct effect not only put the individual at
the core of European integration, but also the European Court of Justice.’
Discuss.
General remarks
This question should be easy for students as it is a deliberate choice of the EU
examiners always to include a debate on the most important constitutional doctrines
of EU law and the role of the Court.
Law cases, reports and other references the examiners would expect you to
use

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Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963]
ECR 1.
Case 6/64 Costa v Enel [1964] ECR 585.
Joined Cases C-6 and C-9/90, Francovich and others [1991] ECR I-5357.
Case C-106/77 Simmenthal II [1978] ECR 629.
R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603.
Case C-131/12 Google Spain SL 13 May 2014.
Safe Harbour Decision 2015.
Opinion 1/1/3 on ECHR accession.
Common errors
Common errors were providing just the definition of directives and regulations and
not addressing the role of the Court of Justice.
A good answer to this question would…
recognise that this is a question asking students to review the major cases on direct
effect and supremacy. Students will have to discuss as a minimum Van Gend en
Loos, Defrenne, Van Duyn, Van Colson, Marleasing, Faccini Dori as well as Costa
and Simmenthal. Students should analyse the role of the Court in promoting
European integration while noting that the principles of supremacy and direct effect
were not initially mentioned in the Treaty. They will reflect on the way in which
individuals were put at the core of the integration process by the Court in Van Gend
and Costa, becoming enforcers of EU law in front of the national courts. Better
papers will look into the dual character of the supremacy doctrine and the
resistance reactions from upper national courts – such as the German
Constitutional Court. Better students will discuss recent national case law such as
Miller.
Poor answers to this question…
just listed the requirements for direct effect of Treaty articles, regulations and
directives with no discussion on the implications of supremacy or discussion on the
Court.
Question 2
Ellen trained as a physiotherapist and is now running a successful business
in Brussels (Physio Bel). She wants to expand her business to other Member
States, but encounters several difficulties:
a) She is invited by a colleague to do physiotherapy once a week in a
private practice in Luxembourg. However, she finds out that the
fees for this service are capped in Luxembourg, and she cannot
charge more than a certain sum no matter the procedure offered.
b) She wants to set up a branch of Physio Bel in Strasbourg, but finds
out that firms active in the healthcare sector can open only
subsidiaries and not branches in France.
c) She wants to provide advice over the Internet for various clients
established in Belgium and other Member States of the European
Union, but finds out that she needs an authorisation for this from
the Ministry of Health. However, small businesses such as Physio
Bel are ineligible to apply for such authorisation, in the interest of
public health.

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Advise Ellen.
General remarks
This is a question on services and the application of Article 56 TFEU.
Law cases, reports and other references the examiners would expect you to use
C-565/08 Commission v Italy.
C- 475/11 Konstantinides.
Common errors
A common error was not focusing on the right free movement provisions.
A good answer to this question would…
realise that this is a freedom of establishment/free provision of services problem
question. Students should first identify correctly the Treaty Article applicable in each
of the three parts. Part (a) is about free movement of services, students will have to
assess whether capping the fees constitutes a restriction within the meaning of
Article 56. Students will have to note that national rules do not constitute a
restriction within the meaning of the TFEU solely by virtue of the fact that other
Member States apply less strict, or economically more favourable, rules to providers
of similar services established in their territory. A restriction might be identified if the
capping system affects the ability of providers to compete on the host state market
or if the capping system lacks any flexibility. Part (b) is a freedom of establishment
question, with the French rule constituting a restriction within the meaning of Article
49 TFEU, as per Case 270/83 Commission v France. Students will need to assess
proportionality – the test would probably not be met here. Part (c) is an Article 56
question, presenting a clear restriction to free movement of services. Students need
to discuss the proportionality test.
Poor answers to this question…
did not discuss the possible distinction between establishment and services and
there was no discussion on proportionality.
Student extract
Here the restriction that Ellen finds out that the services are capped in
Luxembourg and she cannot charge more than a certain sum no matter and
that the procedure offered may impeded indistinctly in Luxembourg and
outside Luxembourg, The public policy may not justify here if the Member
State does not tell the need of such restriction. But other MS need not
impose such restriction and this may make it disproportionate. Such as
Alpine Investment where the restriction on cold calling imposed by Dutch law
was justified on the basis of the protection of the reputation of Dutch law. So
here such restriction may be justified if it is proportionate and the interest is
not adequately protected in Brussels.
Commentary on extract
This is a particularly problematic passage. The candidate understood the basic
structure of any free movement problem question: first an obstacle to free
movement (in this case of services) needs to be identified and then possible
justifications and their proportionality need to be analysed. However here the two
steps are conflated in one and in a very confused manner. There is no clear
explanation of why the measure could be in breach of Article 56 and no authority is
provided. The possible justifications are not spelt out. Correctly, the candidate uses
Alpine Investment but wrongly as the Court found Dutch law justified on the need to
protect the reputation of financial markets (and not on the reputation of Dutch law
itself) Finally, it is very unclear what the position of the candidate is: is the measure
justified and proportionate? Is it not? In a problem questions, students are asked to

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provide an opinion in support of a client. Here it is not clear what the opinion is. On
the whole the question was marked with a low third.
Accuracy of information: not entirely wrong but very confusing.
Clarity of expression: not flowing easily.
Legibility: just satisfactory.
Question 3
John Kerry is an Irish rugby player. At the end of the 2015/16 season he was
engaged by the Paris Rugby Club to take part in the final stage of the French
Rugby championship. Kerry played two matches only for Paris and the team
managed to win the league. After some complaints from another club, the
French Rugby Association decided to deduct five points from the score of the
Paris Rugby Club and award to another team the championship on the
grounds that the Paris Rugby Club should not have fielded Kerry. The
Association argued that Mr Kerry’s move to the Paris Rugby Club breached
the rules concerning transfers of players. These rules prohibit clubs from
fielding in the national championship players coming from other leagues if
they have been transferred after the second half of the season.
Mr Kerry asks your advice on whether rules of a sports federation which
prohibit a club from fielding a player in a competition if he has been engaged
after a specified date are compatible with the principle of freedom of
movement for workers.
Advise Mr Kerry.
General remarks
This is a question on free movement of workers – with a bit of emphasis on sport.
Law cases, reports and other references the examiners would expect you to use
C-415/93 Bosman [1995] ECR I-4921.
C-53/81 Levin [1982] ECR 1035.
Common errors
Wrong classification as a question on services – despite the rubric clearly pointing
to workers.
A good answer to this question would…
discuss if the Treaty applies against a sport federation (Bosman and Deliège) and
whether the transfer rules can be classified as an obstacle to Article 45 of the
Treaty. The question is modelled on Bosman and the acqui on sport and EU law, if
students conclude that there is a restriction, possible justifications should be
analysed. It should be noted that the restriction is indistinctly applicable thus
specific ground such a ‘fairness of sport’ can be acceptable. Students should
assess the proportionality of the measure. Bosman is of course the case to rely
upon but students can successfully use any cases on Article 39 of TFEU as well.
Poor answers to this question…
made no attempt to come up with possible justifications.
Question 4
Parkinson Support Hungary (PSH) is a Hungarian organisation helping
patients suffering from Parkinson’s disease and their families. In 2015, PSH
agreed a bonus system with Pharma Online, an Italian mail-order pharmacy.
In accordance with the bonus system, various bonuses would be provided to
members of PSH when purchasing from Pharma Online prescription-only

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Parkinson’s disease medication. The Association of Hungarian Chemists

challenged the bonus system in front of the national court. They argued that
the bonus system infringed Hungarian Law which provides that prescription-
only medication can only be sold at prices fixed by the Ministry of Health. The
Association of Hungarian Chemists points out that Hungarian Law is an
important legal instrument seeking to ensure that mail-order pharmacies do
not engage in aggressive price competition which would push traditional
pharmacies out of the market, especially in rural areas. The Hungarian Court
is unsure whether, in this situation, Hungarian Law breaches the free
movement of goods provisions of the Treaty on the Functioning of the
European Union (TFEU). They refer the case in preliminary reference to the
Court of Justice of the European Union (CJEU).
You are the judge rapporteur (reporting judge). Write your judgment.
General remarks
This is a free movement of goods problem question based on the recent case C‐
148/15 Deutsche Parkinson Vereinigung. Reading this case will provide a very
detailed model answer to this question (of course, you would not have been
expected to go to that level of detail in the exam!).
Law cases, reports and other references the examiners would expect you to use
As a minimum:
C-8/74 Dassonville (Whisky in Belgium) [1974] ECR 837.
C-120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (Cassis
de Dijon) [1979] ECR 649.
C-110/05 Commission v Italy (Trailers) 10 Feb 2009.
Common errors
A common error was not properly discussing the proportionality test.
A good answer to this question would…
first determine that the measure at stake is a measure having an equivalent effect
to a quantitative restriction within the meaning of Article 34 TFEU as it impedes
market access and has a greater impact on pharmacies established abroad (to cite
Dassonville, Cassis, Trailers, Scotch Whisky). Some students might discuss Keck
but they will need to correctly identify that there is a restriction to free movement of
goods. Better papers will also note that according to the case law of the Court (in
particular, Deutscher Apothekerverband) prohibitions of mail order sales of
medicinal products will fall under Article 34 TFEU. Students should note the ground
for justification – public health and should mention that it is for the Member States to
determine the level of protection which they wish to afford to public health and the
way in which that level is to be achieved (as per Visnapuu, Ker Optika or Leppik).
The discussion will have to focus then on the proportionality test. Better students
will note that, as per Scotch Whisky, the national court will have to examine the
justification objectively, potentially through statistical or ad hoc data or by other
means. Students will have to apply the two prongs of the proportionality test:
suitability (to determine whether it may reasonably be concluded from the evidence
submitted by the Member State concerned that the means chosen are appropriate
for the protection of public health); and necessity (whether it is possible to attain the
objective by measures that are less restrictive of the free movement of goods).
Students might note that the measure is not suitable for the protection of public
health, as price competition between pharmacies might encourage ultimately more
advantageous prices for the consumers and/or the establishment of pharmacies in
remote regions (and hence a more uniform distribution of pharmaceutical products).

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Also, less restrictive measures might have been taken by Hungary – for instance
excluding non-pharmacists from the right to own and operate pharmacies.
Poor answers to this question…
stopped after identifying a restriction to Article 34 and failed to go on to analyse
potential justifications and the proportionality of the measure.
Student extract
In this case the measure is likely to fall under non-pecuniary breach of the
Treaty triggering Art 34 TFEU. Art 34 prohibits quantitative restrictions (QR)
and measures having equivalent effect to quantitative restrictions (MEQR).
QR are measures which amount to a total or partial restraint to import export
or goods in transit (Geddo). The measure in question is not likely to be a QR
as it is not totally or partially restricting the sale of products. The measure in
question is likely to be a MEQR. The Court in Dassonville defined MEQR as
all trading rules enacted by MS which are capable of hindering directly or
indirectly actually or potentially intra-Community trade. The definition focuses
on hindrance rather than discrimination. In this case, when the Hungarian
authority states that PSH will not be able to sell their products if bonuses are
attached to them, then the measure is likely to act as a barrier and very likely
to restrict trade.
Now it needs to be determined whether the measure in question is a distinctly
applicable MEQR or an indistinctly applicable MEQR. The measure in
question is applicable for all domestic and foreign products and very likely to
be an indistinctly applicable MEQR. Indistinctly applicable MEQR were
defined in Art 3 of Dir 70/50 which states that measures which are applicable
for both domestic and foreign products are indistinctly applicable measures.
Therefore as the national authority is not allowing PSH to sell their products
with bonuses attached to them, the measure is likely to breach Art 34. The
national authority stated that the product can only be sold at a fixed price
which is likely to affect the sale of the products as PSH might want to sell the
product below or even above the fixed selling price.
However, the Hungarian Authority may rely on Art 36 to derogate from this
breach. Art 36 provides six grounds for which MS will be able to justify their
breach and will be able to derogate from Art 34. In fact, the Hungarian
Authority might rely on the ground of public policy. The authority might argue
that the measure was taken in order to protect other competition in the
business […]
As the measure in question is an indistinctly applicable measure, the
Hungarian authority may rely on mandatory requirements and the Cassis de
Dijon principle. […] Unlike Article 36, the list of mandatory requirements is
non-exhaustive. The Hungarian authority is likely to rely on the grounds of
consumer protection (Walter Rau). The Hungarian authority may say that if
PSH will sell their products with bonuses, this offer will attract very many
customers. This offer will deceive the customers and may instigate them to
buy a product which might not be of good quality. […] Lastly it needs to be
determined whether the measure is necessary and proportionate
(Commission v Austria). The measure will be disproportionate as the
pharmacies are entitled to sell their products below the average price or total
price. There might be other less restrictive ways to achieve the objective. The
product of PSH might be one of better quality than those of other pharmacies.
[…]

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Comments on extract
This is the right answer to the question whether the Hungarian authorities are
restricting free movement of goods. However, the answer lacks some grounding in
more recent case law. The first two paragraphs correctly discuss the difference
between QR and MEQR, and distinctly and indistinctly applicable measures. While
this information is useful to solve the case, this answer does not go much into
details as to what a barrier to trade is. More specifically, the answer is not backed
up by more recent case law, such as Commission v Italy (Trailers). The answer
would have benefitted also from acknowledging that the measure can amount to a
selling arrangement which, provided the Keck conditions were fulfilled, would not
fall in the ambit of Article 34. The student might have also discussed the fact that
the Keck conditions are rarely fulfilled in practice and that current case law is
sometimes reluctant to apply the Keck principles (such as Scotch Whisky).
The answer goes on to analyse potential justifications for the measure. While the
answer details quite competently the distinction between Art 36 and mandatory
requirements, it fails to find a good ground for justification –the protection human
health (Article 36) might have been more appropriate. The student compares the
scenario of the problem question with Rau but these cases are not really
comparable as Rau dealt with food products and not pharmaceuticals (hence the
stronger connection to public health in our problem question). While the answer
shows awareness of the need to apply the proportionality test, it does not clearly
analyse both limbs – suitability and necessity.
Question 5
‘The Zambrano judgment of the Court of Justice of the European Union
(CJEU) is of fundamental importance in that it represents a permanent move
beyond the confines of market citizenship. In its place, ‘federal’ European
Union citizenship cultivates the human dimension of EU integration.’
Discuss.
General remarks
This is a question about EU citizenship. Students need to rely both on secondary
legislation and on case law.
Law cases, reports and other references the examiners would expect you to use
Case C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-
la-Neuve [2001] ECR I- 6193
C-413/99 Baumbast, R v Secretary of State for the Home Department [2002] ECR I-
7091.
Case C-34/09 Zambrano, judgment of 8 March 2011.
Case C-256/11 Dereci, judgment of 15 November 2011.
Case C-333/13 Dano, ECLI:EU:C:2014:2358.
Directive 2004/38.
Common errors
Common errors were mixing citizenship with the protection of fundamental rights
and not taking into account case law.
A good answer to this question would…
analyse the copious case law of the Court from the first tentative steps (Martinez
Sala) to the turning point cases such as Grezclscyk and Baumbast and Zambrano
where the Court declared EU citizenship as the fundamental status of individuals.
The Court also held that citizenships rights are enforceable regardless of economic
activity. Alert students might want to examine case law McCarthy, Dereci and Dano

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that mark a decisive change in the case law direction (to a more restrictive
approach).
Poor answers to this question…
provided little on recent case law.
Question 6
‘It seems that the Keck era has come to an end. In its most recent case law on
free movement of goods such as the Italian Trailers, the Court of Justice of
the European Union (CJEU) returned to an overbroad definition of measures
having equivalent effect to quantitative restrictions. The Court used the
notion of ‘market access’, and put the emphasis on the application of the
proportionality test.’
Discuss. 
General remarks
A general discussion on the evolution of Article 34 TFEU case law was required
here.
Law cases, reports and other references the examiners would expect you to use
C-120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein [1979]
ECR 649.
C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097.
C-34, 35 & 36/95 KO v De Agostini [1997] ECR I-3843.
C-405/98 KO v Gourmet International Products [2001] ECR I-1795.
C-322/01 Doc Morris [2003] ECR I-14887.
C-110/05 Commission v Italy (mopeds) [2009] ECR I-519.
Common errors
A common error was not understanding the rationale of Keck.
A good answer to this question would…
review the free movement of goods case law, while analysing the two underlying
principles: a non-discrimination approach to Article 34 as advocated in Keck or a
market-access logic, as formulated in Dassonville, Cassis and recently in the
Trailers case. Students should identify correctly the relevant case law, as a
minimum, Dassonville, Cassis, Keck, Trailers and recently Scotch Whisky, with
better papers also giving other examples substantiating the Dassonville definition. It
is important that students discuss the emphasis on the proportionality test in recent
case law (for instance Schmidberger), with better papers analysing the distinction
between soft proportionality (as for example in Omega) and hard proportionality
(such as Rau), as well as the implications of applying such tests in preserving
national sovereignty and promoting national interest. Better students will discuss
Scotch Whisky to note the importance of evidence in substantiating arguments of
proportionality.
Poor answers to this question…
mixed up Articles 34 and 110 TFEU and gave no analysis of recent cases.
Question 7
India Chemical is an Indian company active in the production of industrial
chemicals. India Chemical is a leading producer of industrial chemicals used
in the production of domestic (household) cleaning agents worldwide. India
Chemical has extensive business operations in the EU, and it supplies its

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products to all major manufacturers of cleaning agents in the different EU

Member States. The industrial chemicals market is considered a stable one
and no other company has attempted to enter into this market in recent years.
India Chemical’s share in the supply of industrial chemicals used in the
production of domestic cleaning agents in the EU is about 80%; its market
share in relation to the production of all types of industrial chemicals in the
EU, however, is considerably lower than this. Two years ago, this market
share was about 50%. India Chemical has a number of competitors in the EU
but none of them holds a market share higher than 2%.
Advise India Chemical on the application of EU competition law to each of the
following proposals:
a) They would like to offer their customers favourable discounts on
future purchases of all types of industrial chemicals purchased
from them;
b) They are proposing to refuse to supply new customers who do not
commit to purchasing exclusively from them; and
c) They are proposing to raise their prices by 40%. Their customers are
not happy with this possible price increase but they believe that
there is little they can do.
General remarks
This is an Article 102 problem question, fairly popular among students.
Law cases, reports and other references the examiners would expect you to
use
Case C-62/86 AKZO [1991] ECR I-03359.
Case C-95/04 P British Airways [2007] ECR I-02331.
Case C-23/14 Post Danmark, Judgment of the Court (Second Chamber) of 6
October 2015.
Case 85/76 Hoffmann-La Roche [1979] ECR-461.
Joined cases 6 and 7-73 Commercial Solvents [1974] ECR-00223.
Case C-375/97 General Motors Corporation [1999] ECR I-05421.
Case 27/76 United Brands [1978] ECR-207.
Common errors
Many students spent an incredible amount of time establishing dominance but the
subsequent discussion on abuse under (a), (b) and (c) was rather thin. Many
students did not back up their arguments with case law. Some students mixed up
Articles 101 and 102 and wrongly discussed some of the competition matters
presented in the problem question under Article 101.
A good answer to this question would…
identify that, in order to establish dominance for the purpose of Article 102, it is
important to define the market and establish the market share – cite the United
Brands test (the ability to prevent competition and to behave independently of its
customers, competitors, consumers.) Students should also discuss that market
shares are not always conclusive, although per AKZO/Irish Sugar a 50 per cent
market share can be considered very large. In our case, we might have two markets
– the market of the industrial chemicals used in the production of household
cleaning agents and the market of all types of industrial chemicals. The company is
clearly in a dominant position on the first market (80 per cent) and probably also on
the second market (50 per cent two years ago). However, for the second market we

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do not have enough data to assess the current market share – students might
mention here that given the market shares of the other competitors are much
smaller (less than 2 per cent) India Chemical holds probably a dominant position as
per British Airways.
For (a), students should discuss whether the company can offer rebates and at
what level. In particular, a discussion of predatory pricing should be made, discuss
AKZO (price below the average variable cost is considered predatory); discuss Post
Danmark (prices below the average total cost might be considered an abuse if
proven that they aim at eliminating a competitor).
For (b), students should discuss exclusive purchasing and advise that, as per
Hoffmann-La Roche, the Court considers such behaviour prohibited under Article
102 TFEU. A question that might be discussed is whether exclusive purchasing is
prohibited per se (as per Solvay or Imperial Chemicals) or if it is necessary to
examine the effects of such agreement in its context (as per BPB Industries). The
Court operates a stricter standard in this regard than the Commission, which in its
Guidance on Article 102 enforcement priorities suggests a range of criteria that
might be used in order to ascertain abuse in case of exclusive dealing. Exclusive
dealing might be justified in some circumstances, in the case of long-term supply
agreements where the supplier has to make a client-specific investment in order to
be able to supply (as per the guidance on Article 102 enforcement priorities). The
case law on refusal to supply might also be discussed – such behaviour would fall
within the ambit of Article 102 as per Commercial Solvents but might in principle be
justified – although in practice the Court sets a very high standard for the dominant
firms. In this case, however, we are dealing only with refusal to supply new
customers who do not commit to purchasing exclusively from them. As per BPB,
refusing to supply new customers might be allowed in times of shortage but the firm
must use an objective criterion. Favouring loyal customers over the others did not
meet the test in BPB.
For (c) students will need to discuss excessive pricing. The burden of proof in this
case will be on the Commission – or the customers – to show that the price is
excessive (discuss General Motors and United Brands). One way to determine
whether the increase of 40 per cent is abusive is to look at prices charged by other
competitors, as per Corinne Bodson.
Poor answers to this question…
failed to identify the particular competition issues under (a), (b) and (c). Arguments
were not backed up by case law.
Question 8
‘After the adoption of the Charter of Fundamental Rights of the European
Union (the Charter), the Court of Justice of the European Union (CJEU) can be
considered a human rights adjudicator.’
Discuss.
General remarks
This is a question concerning the evolution of EU human rights case law.
Law cases, reports and other references the examiners would expect you to
use
Case C-260/89 ERT [1991] ECR I 2925.
C-36/02 Omega [2004] ECR I-9609.
Case C-13/94P v S and Cornwall County Council [1996] ECR I-2143.

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C-236/09 Association belge des Consommateurs Test Achats ASBL and Others v
Conseil des ministres, Judgment of the 1 of March 2011.
C-617/10 Fransson, 26 Feb 2013.
Case C-131/12 Google Spain SL, 13 May 2014.
Case Safe Harbour 2015.
Opinion 1/1/3 on ECHR accession.
Common errors
Common errors were discussing human rights as a general principle and mixing up
the EU and ECHR.
A good answer to this question would…
focus on recent judgments such as Google Spain/Digital Rights Ireland or the
others in areas such as equality (Test Achat) where the Court used the Charter as a
legality benchmark for EU law, with better papers looking beyond into the
citizenship case law and the restraint operated by the Court in cases such as Dano.
Finally, papers should look also at Opinion 2/14, while noting that the Court has
rejected the accession to the ECHR twice, even though this has been pushed by
the Commission.
Poor answers to this question…
did not discuss the case law but just listed Charter articles.

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