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Essay task
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Case 1:——DHHL v the Federal Republic of Germany
——————————The airport of Salzburg (Austria) is only a few kilometres away from the German border, and close to the small town of Freilassing (Germany). Due to the surrounding mountains, all of the departing and landing planes have to pass over Freilassing, using German airspace. The noise emission of planes in approach and departure to and from the airport in Salzburg has led to numerous complaints by citizens of Freilassing, resulting in a dispute regarding the operating hours of the airport between Germany and Austria. After decades of failed attempts to resolve the issue through negotiations, the German transport minister has decided to issue a ministerial decree which effectively closes the airspace over the Freilassing area between 20:00 and 6:00 hours every day, between 20:00 hours on a Friday and 6:00 hours on the subsequent Monday, as well as between 20:00 hours on a weekday preceding a public holiday and 6:00 hours on the following working day. The mountains which surround the airport do not allow for a different flight corridor. Consequently, the airport is effectively shut down during this time. The measure is justified by the need to protect the health of the citizens of Freilassing and the surrounding villages from the noise emission by planes during the night and the weekend.
DHHL, a company providing parcel services, is caught by surprise by this measure, and on a Thursday evening preceding a public holiday has 5 of its freight planes at the airport which are full of parcels, partly containing perishable food items. The parcels cannot be delivered on time due to the closure of German airspace. DHHL notes that this situation will always be an issue over Easter (Good Friday is a public holiday in Germany, as well as Easter Monday), as well as over Witsun (which is a public holiday on a Monday), and on numerous other holidays spread throughout the week.
DHHL has brought a case before a German court which has referred two questions to the Court of Justice under Article 267 TFEU:
1**** Does a regulation issued by a German federal ministry closing down the airspace for a townland in Germany, which is surrounded by Austrian mountains and constitutes the only route for approaching an airport situated in Austria constitute a restriction of one of the TFEU economic freedoms?
2**** If this is the case, can this restriction be justified by reference to the protection of health?
The case is now pending before the Court of Justice.
Case 2:———— Horst et al v the Republic of Austria———————————-
As a means to retaliate, Austria has decided to deport German nationals who have been in the country for more than three months and who neither qualify as worker or self-employed person or service provider. The Austrian minister for the interior has expressed clearly that this policy will continue until such time as the ‘no-fly zone’ over Freilassing is revoked. Two German nationals, who have been issued with deportation orders, have challenged these orders. Horst is a post-doc researcher employed by the University of Innsbruck where he also teaches. Verena works for a couple of hours per week as a music teacher for a community organisation. She is paid per hour, and her monthly earnings are below the level of social assistance. Also, she has no fixed hours, and if a class must be cancelled due to lack of attendance, she is not paid. Horst and Verena have challenged the deportation order, and the case is now pending before the relevant administrative court. The national court has referred two questions to the Court of Justice:
3*******Does a person who is paid per hour, but has no minimum hours and earns below the level of social assistance provision, qualify as a worker under Article 45 TFEU?
4*******Does a policy according to which EU citizens are expelled systematically for reasons related to a conflict between two Member States, but unrelated to their personal status, constitute an infringement of Article 45 TFEU or other provisions of EU law?
The Court of Justice has decided to join both cases for common decision.
There are 4 questions to be addressed within the essay in the opinion of the Attorney General. Reference to statutes, TFEU articles, and secondary law to be included. Case law to be used. Must demonstrate knowledge of restrictions between member states and measures equivelent to restrictions on free movement of goods and workers/people. Human rights within the member states to be mentioned The word count is 2000 words.