During the course of your studies and as you approach exam time you will no doubt be receiving advice, not all of which is the same, from many sources. Given that, who is to say that mine is any better than other people's advice? Mine is based on my experience taking examinations at degree, post-graduate and a number of other levels and from twenty-four years of experience of the problems, difficulties and successes of students. This does not mean to say that this will coincide with the experience of others, or what may work for one person will necessarily work for another. I am loath, therefore, to give full and detailed advice of 'the best way' to learn and pass exams, merely to give some pointers on the way.
The Purpose of Courses
The main aim of a course of study is the teaching of the source, the making of rules of a particular subject area, the development of these rules, how they are applied in practice and how you should regard and apply those rules in set questions and problems. In respect of Community law there are more specific aims which are considered in section 2 below.
Almost certainly, however, your principal aim will be to pass the assessment, which for the majority of students studying European/Community law – whether for a degree, a professional qualification or on any other type of course – is usually in the form of an unseen or 'closed book' examination at the end of the course, varying in length from one to three hours, in rare instances, perhaps, even three-and-a-half or four hours. Modularization in some universities may bring an increase in other forms of assessment, notably dissertations or similar extended pieces of work. The object of your study, nevertheless, should be the compilation of a comprehensive set of notes from which you are able to revise in preparation for the examination, or as the basis or starting point for another assessment.
There are of course other objectives for you, such as learning the information for itself and for use in your chosen career; however, you can succeed in acquiring that knowledge and still fail the course.
Whilst the closed-book/unseen examination clearly has faults as a system of assessment, unless there is a radical change in thinking of the core subjects, it is likely to remain the most prominent form of assessment. There is a kinder form of assessment for those who do not cope well with the exam format but who have nevertheless worked hard and have understood the information. This involves assessing a student's work during the year, usually through extended pieces of written work, such as 5,000-word essays. Unfortunately, the present trend with the emphasis in universities being concentrated on research and not teaching means that this alternative has often been abandoned in favour of the economically cheaper and administratively easier form of assessment, which is the closed-book examination paper. In most cases, therefore, the material to be learned must be reduced to fit this format.
For most of you, Community law will be taken as a second- or third-year subject and the exam result will count towards the class of honours of your degree. No doubt you want the best result in this and all other subjects for the best result overall. Even if, in a few, rare cases, it is a first-year subject and does not count towards the final result, you will nevertheless wish to increase your chances of a comfortable pass. While the courses you are taking provide the necessary legal material, very few assist you in the technique of applying that material effectively when it is most needed, in the examination. This guide is intended to help you in this.
One definition of a lecture is the process or art of transferring the notes of one person to the notes of many others, without it passing through the minds of either. This should obviously be avoided from both points of view. The objective from the lecturer's standpoint should be the conveying of basic knowledge and understanding of particular areas of law in a digestible form. Lectures should provide guidance to introduce and reinforce the understanding of a topic by a selective approach to the legal material.
Most lecturers provide lecture handouts or copies of the PowerPoint presentations containing a summary or list of the essential points of a lecture, case references and often the text of legislative provisions. These handouts vary in scope, but clearly the more comprehensive they are the less you will have to write. This does not mean to say that you can switch off; you should concentrate on the lecture instead.
Lecture preparation Lectures can save you a great deal of effort, more so if they are not your first contact with the subject. Advance reading for lectures will make the subject-matter more intelligible and permit you to listen to the context and arguments put forward rather than being the first time you encounter the information.
Making notes It would be usual for a lecturer to begin by introducing the material to be covered and the main points or themes that will be developed during the course of the lecture. If not contained in the handout, this will enable you to make a note of the headings under which you can make your notes and references to cases and legislative provisions.
It should be clear that a good set of notes is essential for revision later in the year, but notes taken in lectures should not be a copy of every word spoken. They are not supposed to provide the sole source of revision work; they should form the foundation for further reading, which may also be necessary for tutorial work.
You should try to listen to the explanation given in the lecture of what is being said and to record brief notes to summarize in as few words as possible the key points of the lecture rather a complete transcript. The idea is to cover the topic with a minimum of notes. Concentrate, therefore, on the structure of the lecture as a guide to and development of the law in a particular subject. This is better than making a longer set of notes but without ever fully concentrating on the words spoken. Too many students try to write down every single word and end up with reams of indiscriminate notes whilst, at the end of the lecture, having little idea of what was said. I have tried to explain this in lectures but even as I am saying 'You have no need to write every word' pens are furiously writing out `You have no need to write every word'. I say 'No, stop writing a moment please and listen!': the words appear on the pages `No, stop writing a moment please and listen'. Well, perhaps not quite as bad as that, but somewhere near.
Summaries in your own words are important because they provide good practice at being able to formulate the material for yourself, as is necessary to answer questions competently. In order to reformulate material, you have to understand it; in doing so you will be learning it.
Whilst lecturers' styles vary, you will learn when a particular lecturer expects items to be noted by a direct statement, or a change in pace and emphasis of delivery or if actual quotes from provisions or cases are read out.
Much of what has been said in lectures will usually be reinforced in tutorials. It may therefore be useful to leave space in your notes for later amendments and additions to be made without having to rewrite the notes, perhaps using only one side of the paper, although I admit this may be environmentally objectionable. About six years ago I wrote 'we are not quite at the stage whereby we can type lectures directly into laptops that we take into the lecture theatre. I guess it will happen at some stage, though!' Having observed this now, I can state that only a minority of students do this.
Use of legislation collections in lectures You may find it helpful to take a legislation collection into the lectures with you. This will enable you to refer directly to the provisions being discussed. It should not be necessary to try to record provisions referred to word for word, but just to cite the provision accurately. This in turn allows you to listen and understand the explanation or interpretation, rather than worrying about trying to write down every single word of the provision. Leave an appropriate space in your notes for insertion of the precise wording later.
Cases in lectures You may come across various approaches to case treatment by lecturers, from those providing a detailed and technical treatment of cases as case studies of particular legal points or the use of cases to highlight developments or to assist in gaining general overviews. Lectures may come in the form of a commentary upon development in the law in general terms, with no specific mention of the details of particular Decisions. Some lecturers will expect prior reading of the textbooks or cases to be undertaken, and some require back-up reading after the lecture. Both may be unrealistic expectations of what the majority of students will do in reality, but I can only advise that if an overview technique is employed you may not understand or gain as much from the lectures if you do not back it up with your own reading of the cases.
Work after lectures Try to re-read your notes soon after the lecture and when the lectures on a particular topic are finished, because you might need to tidy up your notes. Not every point made in the lecture may be fully understood at the time; therefore, you should highlight any such points in your notes so that you can fill any gaps and clarify any difficulties whilst they are still fresh in your mind, either by questions to your lecturer or tutor, or by your own research. To leave them might result in the fact that you cannot even remember that there was a problem.
The optimum time to read the textbooks and articles which have been referred to, is probably when the lectures on a particular topic are finished. You will need a coherent set of notes to prepare for tutorials, if these are intended to cover the topic. If not, then the textbooks should be consulted to consolidate your notes and understanding for revision purposes.
Textbooks are intended to provide all the basic information to understand the law on a particular topic and should include a consideration of issues which are difficult or controversial. They should be read to clarify any ambiguities and difficulties you have, to expand on points referred to in lectures and to prepare for tutorials. Notes need only be taken either to fill in any gaps in your own previous notes or your understanding or, to assist you in answering the questions and problems set for tutorial discussion. You will find no lack of cases in most textbooks – far more than are absolutely essential for either an understanding or demonstration of a particular topic. This is because textbook writers tend to include every possible case or reference, even where the case does not take the principle of law any further, but is merely an additional or later example of its application, in order to give a complete coverage of the topic or confirm a trend taken by the court of courts.
Normally it would not be enough for you to read only the headnote of a case, because it is too brief and may give the wrong impression. Therefore, unless your tutor says that reading the headnote is enough, you should read the whole case or, if a case involves numerous issues, but is only being used to demonstrate one of them, then just concentrate on the part of the case directly relevant.
In order to assist an understanding of cases, particularly long and complex ones, case notes or annotations can be consulted. If not referred to in lecture or tutorial handouts, these can be looked for in the leading legal periodicals on the particular subject or in general indices to legal periodicals. Case notes are short notes, between two and ten pages long, giving concise details of the facts, legal issues and Decision and providing a clear insight to the case. They may also point out the implications that the decision may have for the future. It may be helpful to read the case note before you tackle the Decision in the law report.
Articles in legal journals
There is little point in making detailed notes on an article initially. Read the article to understand what the writer is saying and whether it is useful to your understanding of the topic or for preparation for tutorials. It may be necessary to read it a second time, to make notes of the principal points raised.
Use of highlighting pens
Do not use these too much. I have seen some articles and cases which look as if the highlighting pen was about the size of a wallpaper brush – either that, or the student has a paint dip in which the whole of the article has been immersed. The end result is that the article glows as if it was toilet paper from a nuclear plant. I have even seen some examples where, following the paint job, further highlighting using different colours or underlining has then been employed to emphasize the really important sentences. Be discriminatory, because otherwise there is little point in going to the expense of purchasing highlighting pens. If you only photocopy rather than making your own notes, and I have seen many examples of this, then making your own marginal notes is far more constructive.
Photocopying of material
Speaking of photocopies, consider carefully both the amount of time and money you spend on this. The time would be better spent in the library, reading, understanding and making your own notes from the recommended material. You may find that you do not need to photocopy particular articles as they are of only incidental relevance for the tutorial, so do yourself a favour and read the material first. You may find that by reading it and making notes, you might no longer need to photocopy it. This has a number of advantages: it could save a great deal of time, it provides necessary practice in researching and reading relevant material from academic articles. Furthermore, the money saved from not photocopying various materials could buy you a decent textbook on the subject.
Photocopying is not a substitute for learning. Bringing photocopies of all the recommended reading into a tutorial is not preparation. Even if you have gone through it and highlighted relevant parts, it does not order the material in your mind, sufficient to address the tutorial questions and discussion or for revision purposes.
Seminars and Tutorials
The terms 'tutorials' and 'seminars' are used here synonymously to mean small group teaching of between four to twelve students, and unfortunately these days in the vast majority of law schools, often more.
Seminars and tutorials are extremely important in a degree course and should be used constructively. This requires diligent preparation beforehand. They provide occasions on which you should be prepared to contribute during class and you may be called on to make a contribution to a discussion or to suggest an answer.
Tutorials enable you to consolidate your understanding of a relatively small part of the syllabus. They should provide all those involved with a chance to discuss points of difficulty and an opportunity to test one's understanding of the subject under discussion.
Resource pressures will continue to hit most institutions of higher education and tutorials have already become larger and less frequent than in the past. You should therefore make the most of the opportunity provided by tutorials; the alternative is that you will have to work more without guidance.
Unfortunately, many students, if allowed, are prepared either to let the discussion be conducted by the tutor and one or two others, or for it to turn into a different sort of lecture. It is unfair to go to a tutorial meeting not properly prepared and in effect, work off the backs of others, and even if you can make copious notes from other students' contributions, if you have not prepared, you will probably not understand them.
Tutorial preparation and tutorial work
Tutorials can probably be divided into two broad categories: those which seek to expand on the material covered in lectures and act to test the understanding of that information, and those which raise new topics not previously covered in the lecture series.
Tutorial preparation varies considerably, from those who try to rely entirely on lecture notes and/or masses of photocopied material, and hope to find the answer by leafing through them whilst in class. Others do masses of reading but fail to spend any time answering the questions. If asked a question by the tutor they have to resort to turning over page after page of copious notes to find the case, article or point in question or anything! Then, there are those who attempt to answer questions on insufficient information or work, and those who do neither but hope to get by.
Certainly, read through your lecture notes before preparing the tutorial on the topic. If you have previously re-read and supplemented them, you will benefit when it comes to preparing tutorial questions because you will have already acquired a knowledge relevant to most tutorial questions, as they often arise directly from the teaching programme. You should therefore have more time for thinking about the tutorial problem instead of having to treat it as a completely new and isolated piece of work for which you have to prepare the questions from scratch.
Issues or questions on a tutorial sheet often reflect the approach adopted in the examinations on a particular topic and it is common practice for past examination questions to be used as a basis for tutorial questions. Your aim should be to cover enough material in order to understand and discuss the issue raised but to avoid becoming tied down by points of unnecessary detail or general background information.
Most of you will have read a substantial amount of material in preparation. However, the major shortcoming in preparation is the failure to apply the information acquired to the issues set for discussion or how to tackle the problem under discussion.
Where the tutorial explores more fully points discussed in lectures, your tutor is likely to be looking for an understanding of the law and a willingness to discuss some of its more difficult aspects. If you work from the lecture sheets and the provisions of law and cases which have been indicated previously on the lecture sheets, all the essential information for the basis of the tutorial work has been provided. Where the tutor covers a topic not dealt with in the lectures, you will need to prepare a basic set of notes from a textbook. This will allow you to identify the leading cases and difficulties which form part of the topic and give you a basis from which to prepare the tutorial. The tutorial sheet should direct you to the important aspects of the area and further reading.
Lastly, a few hours' work at the end of a topic will allow you to tidy up your notes whilst the materials are fresh in your mind. This will save you a great deal more work later on, especially during the crucial revision period.
Most courses include written work consisting of two to four pieces per year, some of which may count towards an overall assessment, but most course work is not included as a part of the final result. This essay-writing should be used as an opportunity to prepare for the examination as essays provide for closer study of particular issues. Course work, whether assessed or not, is worth doing well. Effort put into essays and a review of the comments on them are a useful aid for revision, particularly where the topic of the essay reappears in some form in the examination.
The comments made in respect of the sample questions and answers which are included in this guide apply equally to course work. Course work will clearly give you more scope to spell out your views unless a word limit has been applied as a form of forcing you to produce concise answers more suitable as revision for exams.
As an alternative to course work, class tests may be set which may comprise a series of questions or the equivalent of a mini exam in which one answer must be written from two to four questions set within the time of a lecture or tutorial slot. If this is the case in your course, then the advice here about examinations will also be useful for these.
Revision for Examination
There is a distinct limit to the amount of material which can be written in an examination. This may favour the student who has done the minimum and is only capable of writing a limited but sufficient amount. Other students work hard throughout the year but underachieve in the examinations. If you have studied consistently during the year your task will be much easier than that of those with incomplete notes because they have not attended classes regularly or those revising from a mass of unedited material.
Whichever category applies to you, the most important requirement for revision is a coherent set of notes from which to work. You must read through all your lecture and seminar notes to ensure that you have a complete and reasonably comprehensive set. If you have not, the first task will be to produce a set of concise notes prior to the revision period. You may find it necessary to rewrite parts of your notes in order to reduce them to a manageable size for revision purposes. Revision rewriting can be useful, and even if you are short of time you ought to compile your own set of notes from which to revise. It is not time wasted, as one of the best ways of remembering anything is to write it down. Actively writing it down is a far more effective aid to remembering than just passively reading it. We have all done it, reached the end of the page or turned it over only to realize that we have not understood or even remembered a single word written on the page supposedly just read.
This section will concentrate on two issues: what to revise and how to revise. Having decided what to revise, you can concentrate on how to revise most effectively. There is first some preparation that must be undertaken before either of these can be achieved and which will also help you decide what to revise.
What to revise
Exam content An internally set and marked examination, which is the case in nearly all degree examinations, would usually reflect fairly accurately what has been taught during the year. Examinations are usually set within the confines of a published syllabus issued at the beginning of the course. Hence the basic exam content will inevitably arise from the syllabus content but the exam need not cover all of the syllabus. Whilst there is no guaranteed way of knowing when a topic will appear in an examination, there are a number of indicators which can help you decide what might appear and what you choose to revise.
First of all, list the topics in your course. Assuming that you have worked steadily during the year, you should have a series of separate and identifiable topics within the subject area and can probably identify about eight to twelve topics which might justify an examination question. There may be some topics which are so important, there will always be a question on them, so you should consult past papers for evidence of how often the syllabus topics have appeared previously.
Other indicators are: the number of lectures spent on topics during the teaching of your course; the topics covered in the tutorials and essays during the course of the year; whether certain matters were topical in the particular year, e.g. in Community law the changes which have been introduced by Treaty amendment, and finally, but only possibly, the research interests or recent publications of the lecturers involved.
One point which may go some way in consoling you, is that examiners do not normally try to catch you out and are unlikely to examine on something that has not been given covered during the year. They would usually try to ensure that all the issues on the paper have been covered on the course.
Revision content If you opt to revise selectively there is the crucial choice of revision subjects to decide. Having compiled a list of the probables, you need to decide how many and which ones you are going to revise. Revision of between 50 per cent to 80 per cent of a syllabus would cover most students' plans, some will revise 100 per cent. I did about 75 per cent, but I have known some to go below 50 per cent. This really is a gamble and also depends on the way the exam paper is set, i.e. whether you are forced to answer particular questions from separate sections. In such a case you are advised to revise a higher percentage of the syllabus.
Most degree examinations will involve a straight choice of two to five questions from between seven or eight to fifteen set. Decide which topics you know well and are confident in, and those areas in which you are weak. If there are not enough of the former, then more work is required on one or more topics falling into the latter group. If in doubt, ask the lecturer whether mixed topic questions are a possibility or probability.
Although law subjects are usually split into a number of topics, this is done to ease the presentation of the material into manageable bites. In reality there is a lot of overlap which may be repeated in the examination, so be prepared for the mixed question in making your decision as to how many topics to cover. Past papers will be the best evidence of this unless the course lecturer and examiner has changed for this year, or advises a change.
How to revise
Revision should not be too passive and there are two things to avoid:
- mechanically underlining or highlighting passages, which, although making the words prominent on a page, will be of little help if most of a page is emphasized.
- the photocopying of masses of material and trying to read it for revision rather than your own edited or distilled notes.
Revision can be carried out by either subject or topic, the preference is yours and also depends on the amount of time between examinations. If all are close together, variation may help, if spread out, revision by subject may be better to ensure even coverage of your subjects.
Methods to assist you include: reciting the material out loud and, if it helps, pacing the room at the same time, because material continually recited tends to stick in the mind, it encourages activity and aids concentration, or at least stops you falling asleep. You might also get fit at the same time. However, don't let it be too mechanical or you won't really be learning anything.
Another active alternative is to rewrite the notes continually. As they become more and more familiar, rewriting becomes unnecessary, it becomes possible to slim down the notes to major headings or key words and case law or just the titles will prompt your memory.
Practice for the examination Some time ought to be spent during revision in the analysis of past questions and drafting possible answers. Practice at question answering is extremely important. The questions can be selected from a range of questions on topics in tutorial sheets, essay titles and past examination papers.
There is no need to write all the answers fully but you may wish to practise writing complete answers to some of the questions within the amount of time permitted. In general, it is sufficient to draw up a plan of what you would include if the question was set in an examination. Do this without reference to notes, but check later to see that you covered most if not all of the points. However, do not be too discouraged if there are questions in past examination papers which cause you difficulty or you are unable to answer comprehensively.
A planned introduction to each of the topics which you have learnt could prove useful, but do not attempt to prepare model answers to be written regardless of the actual question or form of it. Prepare topics, within a flexible framework so that you can cope with different sorts of question on the same topic. Even though the actual questions on a particular topic could vary enormously, often a concise introduction could form a common opening to a range of questions on a particular topic. The advantages are, they save time and prepare you and the examiner for what follows. Additionally, definitions can be prepared, such as those for direct effects and direct applicability.
Whilst, for the most part, the accurate citation and acknowledgment of authors is not necessary or expected in examinations, it is nevertheless always welcome and helps to demonstrate your mastery of the material.
Length of revision period Depending on the particular form of modularization and/ or semesterization which has been adopted at your institution, the teaching period may vary, exams may take place at times other than in the summer term during the course of the academic year or the period set aside for revision may differ. However, I would advise you not to skip the last tutorials or lectures. You might learn something to your advantage even if you have already decided not to revise the subject matter of the last topic.
To help plan your revision time, a revision timetable can prove very useful, but preferably not a complicated system which ends up taking more time to construct and redraft than for the revision itself. (If any of you have ever come across a programme called Red Dwarf there is an episode in which Rimmer constructs a revision timetable).
The timetable should cover the whole of the revision period and the time you have between the examinations. This enables you to divide your time between various subjects and concentrate more on weaker areas, if necessary. Carefully prepared, it ensures that you will have done the optimum amount necessary for the exams.
When you revise, i.e. early in the morning or late at night, is according to your personal clock and I can give little advice here. Whether you are an early starter or a late reviser, try not to overdo it and get plenty of exercise between periods of revision. The examination period is physically as well as mentally demanding and you need to be fit to get through it without too much detriment to your health. That can follow later when the exams are over and you celebrate your success!
Examinations and Assessments
The frequency of examinations and number per subject will vary now more than ever between institutions as various forms of modularization and semesterization are introduced. This will not, however, remove the need for you to give an examination your best shot first time round. Whilst some courses may go over to other forms of assessment, exams are still likely to be a very much used form of assessment and the better mark in each exam, the better your overall degree classification will be. As EU/EC law is one of the core subjects, it is more likely that the unseen examination will continue to be the most usual form of assessment in this subject. Hence the need to be prepared both in subject knowledge and exam technique.
Most examiners, unless they are particularly nasty specimens, want you to pass the examination. They will give you marks for making a particular point but are not likely to take marks away because you haven't made it. Your course director or lecturer will usually be the person who sets your examination paper and will be much more interested in finding out whether you have understood the principles of law, can apply them to a given factual situation and make some critical analysis, if required.
At the start, allow time to read over the paper as a whole and to select the questions you intend to attempt and to understand what the questions are actually requiring in an answer. However, some papers are quite lengthy and a thorough reading of the questions could take ten to fifteen minutes. A compromise is to find a question about which you are confident and can carry on with, but don't spend too long on it. Finish it, if you can, before the allotted time. When you have finished the first question you will be in a better frame of mind to read the rest of the paper and choose the remaining questions.
General examination technique You should be able to establish the rubric in advance of the examination; if not, ask before you enter the exam hall. In that way, the particular requirements of the exam will not be a shock. Alternatively, and in any case, if you can see the rubric on the examination paper whilst waiting to start, read it before the start.
The rubric informs you about the length of time allowed for the examination, the structure of the examination, how many questions to answer, whether there are compulsory questions and, in the case of a sectioned examination paper, how many questions should be answered from each section. Unless the contrary is stated, you may assume that all the questions on a paper carry equal marks.
The Most Important Rule in Respect of the Exam
You must attempt all the questions required of you! To help you do this you must work out the amount of time you can spend on each answer and stick to it.
Omitting to follow this golden rule of examination technique leads to more failures or drastically lower marks than any other failing. It is particularly frustrating and annoying to see it happen because it is avoidable! You are throwing away valuable marks that could make a crucial difference in the standard of your pass, or the difference between a pass and a fail and may ultimately lead to a lower degree classification. Unless your other answers are exceptional, you are far more likely to pick up more marks by starting a new question than by spending additional time on the others.
If you find that you are reaching your time-limit for an answer, leave plenty of space and move on to the next question. You can always come back later to finish the question if you have sufficient time. As a last resort, when time has virtually run out, you can include brief notes of what you would have written had time permitted or refer to your plan as the continuation of the answer or the answer itself. This is, however, a last resort and a poor second to the proper planning of your time!
The second most important rule Make sure you answer the question set and not one that you would have liked the examiner to set. Questions in examinations and other pieces of work rarely, if ever, take the form, 'Write all you know about', but this is often the form of the answer produced. Unfortunately regurgitation of all you know on a topic is common, but should be avoided. Instead you must adapt the material you have revised to suit the demands and requirements of the question being asked. Practice questions at revision time will help prepare you to do this.
Read every question at least twice before starting to answer it and make sure you have not misread a vital word, or the instruction, or even missed out a complete line in your eagerness or anxiety to continue with the answer.
Types of question
Essay questions are intended to get you to discuss the points of law arising, especially the controversial points, new developments and to give overviews of the whole topic. Problem questions try to get you to apply provisions and principles of law to factual circumstances. The better answers will also be expected to highlight legal developments and discuss particular difficulties or ambiguities in the application of the law.
Essay questions often involve the citation of an extract from a judgment, academic article, official report or, less frequently, a legislative provision; sometimes a statement is not attributed to any of these sources which usually means that the examiner has devised this statement. Whilst essay questions often appear to be easier than problem questions, you should read them carefully and avoid misreading the question only to discover your mistake when your answer has been completed.
Explain, comment, evaluate and discuss are all similar terms which require more than a descriptive answer. They require you to give reasons, to put the comment or quote into context and to show the influence on the development of the law or require you to show the strengths and weaknesses of alternative points of view.
Although you will be anxious simply to get on and start writing, take time to plan an answer. Plans are not only helpful in terms of the content of your answers but may also assist you enormously in achieving a sensible structure and balance. It will allow you to relax a little and will ensure that your answer, when it is written, will be far more comprehensible to the person marking your script, i.e. the examiner.
A plan should enable you to answer coherently and according to a considered structure, to ensure that all the main points are covered, and to avoid an excessive time spent on one point or repetition.
Essays The plan should begin by breaking down the question into its different requirements unless the statement is short and straightforward. Next, try to define any words or phrases which need further explanation. The part of your plan which identifies the legal issues involved in the question may be useful as the basis for the introduction to your answer.
Essay-type questions, by their nature, can be much wider in the scope of material to be covered than problems, therefore the answer can also be much wider and it is often difficult to determine clearly the line between what is relevant to the answer and what is not. The only rule of thumb that can be given here is to advise you to pose the question when considering including additional information; does it assist in answering the question? If the answer is, not really, then don't bother!
Legal problems As you re-read the question, the factual issues, legislation and relevant case law which spring to mind should be briefly noted. The plan is often formed as you jot down the facts which give rise to the legal issues to be resolved.
After identifying the area of law, the material facts and specific provisions which appear relevant to the problem, apply the provisions of law to the facts. It may be that you can obtain at least a provisional answer at this stage. It is likely, however, that you will then be required to cite relevant cases to assist you in reaching a conclusion on the matter or to confirm you conclusion and to demonstrate how the courts have previously resolved the matter. Apply the principles adopted in those cases to the facts or statements in the question. If there is inconsistency between cases, you should distinguish these cases from each other, commenting on whether or not the distinction could affect the application of law in the problem at hand. For years now, I have suggested a simple perhaps even simplistic mnemonic/acronym to help remember this technique: FLAC. Facts, Law (which can include provisions of primary or secondary legislation, case law or principles of law), Application of the law to facts and the Conclusions or Consequences. Write it down at the top of the answer sheet and it will help you get at least a basic order for your answer. In citing cases, do not concern yourself if you can't remember the full name of it or any part of the name, but make sure by a brief description, of the case you mean. In most instances this will be acceptable, as it is the principle of law which is important and not the names of cases. They are merely convenient labels by which we identify them. Thus other forms of identification must be acceptable.
Difficulties may well be caused in problems by two or more potential parties. Make notes for each, which, if they prove to coincide, will allow you to answer for two parties at the same time.
This plan should then be used as the basis for your answer. No doubt as you write your answer, further relevant material will be remembered which can be incorporated. Always start your answer on a clean page and leave plenty of space, even a clear page, between your answers or write on every other line. Whilst this may not be the most environmentally friendly advice, it is examiner and examinee friendly. This allows you to add any comments if remembered later rather than having to search for a space to leave a message for the examiner that the rest of your answer is at the back of the answer book or trying to cram notes into the margin. These are often nigh-on impossible to read.
The use of statutory materials in the examination room
Some institutions allow statutory materials to be referred to during the examination. One real advantage is that there is no need to concentrate too heavily on memorizing statutory provisions whilst revising. It leaves you more time to consider the application and interpretation, rather than having to waste time on the regurgitation of particular provisions. It also makes it pointless to reproduce the whole of a legislative provision in an answer if the examiner knows that you have it in front of you during the examination. Indeed, there is no need for the reproduction even if statutory materials are not allowed to be used in the examination.
However, to ignore completely the legislative provisions prior to the examination means you will be unfamiliar with them and will probably waste time finding the relevant provisions, e.g. some candidates, when provided with material, seem to spend an inordinate amount of time browsing or flicking through them during the examination. If you can, try to treat these materials as a last resort or a mental crutch to which you can refer should your memory fail you. There is no compulsion to look at them at all, but you may still need to cite specific parts of the provisions when using a particular provision to support your answer.
Open-book examinations, where you are able to take in other materials as well, are less common and vary considerably as to the materials that the candidate is allowed to use during the examination and the time allowed to complete the examination. You still have to revise and prepare thoroughly for the examination and not try to rely on finding the information whilst in the exam hall. They are a hybrid between the closed-book examination and assessment, but still require a structured answer at the end of the day. If they take the form of exam papers which can be taken away and the answers handed in at some specific later date, they can be regarded as assessed work, considered next.
Assessed course work
Many courses allow for some form of assessed work whereby a set number of pieces of work completed throughout the year will be credited towards a final mark or completely replace the examination. The approach to assessed work builds on much of what has previously been said, with the addition of a few special points. For example, the question must be read correctly, the essay still needs to be planned and submission dates and length limits observed (as you should time limits in exams).
Many assessment questions are also taken from old examination papers but you are, of course, now concentrating on specific aspects of the law and will be expected to deal with them in depth. The preparation thus requires a wide range of reading of texts and articles from which you need to make careful notes.
A particular consideration is the need to be accurate with your citation of work you have consulted and from which you have reproduced paragraphs. Make notes and citations of all items read. Detail the name of the book or article, the author, publisher, date of publication and place of publication and, most important, the page number. These are required if you use any of the material directly or if you find you need to go back to the original for more information or clarification. It is good practice, even if not required, to provide a bibliography of the materials that you have used in answering the question, but don't refer vaguely to lecture notes.
You may also have to submit more than one copy and increasingly, this must be typed or printed. Most institutions should, however, issue their own notes of guidance for the specific form required. If not, you must ascertain this information from the person setting the assessed work.
2 Studying Community Law
Most law school courses of Community law are nowadays called EU law rather than EC law although most courses will still either only consider the law coming from the EC treaty or mainly concentrate on this with just a brief consideration of the EU Treaty and its law. Many comments now made specifically about Community law in this section will repeat some of what was said generally in section 1. This does no harm as they are worth repeating.
How does the system of Community law affect the study and more importantly the examination of Community law? The awareness of the type of system should underpin the whole approach to the study and exposition of Community law. The assumptions of common law subjects or approach are not always valid here. The study of Community law must be put in the context of the background of the Community, i.e. its history and development. Community law study is not like most subject courses of national law where plenty of background has already been covered in general or first-year subjects dealing with the legal system or constitutional law or other basic or core courses. EC law is a complete system to learn and much background reading must be undertaken. In many EC courses, the whole system is studied in one course, in others it may be split into its various components. Whichever form, at the start this may be daunting and confusing because there are many new terms or buzzwords, or 'Eurojargon', to learn, especially in the areas of the sources of law, general principles, the free movement of goods and economic terms of the Common Market.
A selection would include: acquis communautaire, comfort letters, comitology, contemporaneity, convergence criteria, COREPER, democratic deficit, direct applicability, dominant positions, ECOSOC, European Architecture, horizontal direct effects, indistinctly applicable, intergovernmentalism, Maastricht, market access, multispeed Europe, principle of equivalence, proportionality, qualified majority voting, reverse discrimination, rule of reason, subsidiarity, supranationalism, teleological and variable geometry.
If you understand all of these and can place them in context you have already come a long way in understanding the Community and Community law. Perhaps you could test yourself now, when you first read this and then shortly before your examination. If you are unsure, especially close to the examination, the answers can be found by looking them up in the index of the EU law Directions Book.
Community law courses
The basic aims of Community law courses are likely to include a consideration of: its historical origins and the development of the Community and Community law in the wider contexts of political, economic and social factors, the rules governing the institutions, especially within the above framework, and the understanding of the relationship of Community law and courts with national law and national courts, judicial remedies and a number of areas of the substantive law of the Communities.
Whilst the objectives of Community law courses may differ in various institutions, I would generally expect that Community law courses would have broadly similar objectives or expectations of what the students should have learnt or be capable of at the end of the course. They would probably be designed to provide the information concerning the present composition, powers and functions of the institutions and how these aspects have developed over time, so that you are able to criticize these aspects and suggest improvements, especially in relation to the other institutions and recent changes. In respect of the Community legal system, you should be able to explain how the law applies to, and may be invoked by individuals, to discuss the conflict and resolution of the conflict between Community law and national laws, especially in the national courts, to discuss the range of judicial remedies in the Community legal order and the procedures involved. You should therefore be able to resolve factual problems involving these remedies, highlighting any particular difficulties which have arisen in the jurisprudence of the Court of Justice and/or national courts.
Lastly, in terms of substantive law, you should be able to discuss the basic aims of the Community in the areas considered and the basic framework of the Treaty provisions and subsequent legislation adopted by the Community, the relevant case law of the Court of Justice and its impact on the legal developments in the areas, and to apply this information to resolve factual problems and to suggest solutions.
The Approach of the EU Law Directions Book
The study of Community law in the EU Law Directions Book follows much the same pattern as discussed above. First, the Treaty aims and main provisions are outlined; then, specific articles in particular parts of the Treaty which outline the Community policy are considered. Where, as is the case in most areas, there is secondary legislation, this is summarized and the relevant provisions discussed.
Thus the general approach in Community law means starting with the EC Treaty. For a complete answer, one would even need to start with the general provisions of the Treaty. This means the Preamble and Articles 2, 3, 10 and 12. These act as guidelines to the objectives of the Treaty and Community, they demonstrate the aims that subsequent legislation is designed to achieve and, more to the point, they are referred to by the Court of Justice and can serve as powerful justifications or grounds for the Court to decide in a particular way.
The study of Community legislation
That there is a great deal of legislation to consider should come as no surprise if you already have viewed the topics that will be covered on your course. The extensive coverage of EC law courses must necessarily involve a considerable amount of legislation. Therefore it is necessary to be selective. This will already have been done for you for the most part by your lecturers. Clearly the provisions of the EC Treaty are of most importance, but not all of them. There is also a great deal of secondary legislation especially, but not exclusively, in the substantive law areas.
What you actually learn and what you may just need to be aware of or have reference to, depends of the attitude of your particular course of study, or college or university to legislation collections and cases and materials books. Many of you will be able to take into written unseen examinations a copy of one of the collections of EC legislation currently available. There are a number of collections available at the moment (the fact that one also carries the names of Foster, Blackstone and published by OUP would not influence me in the slightest, honest!). However, given that you are probably allowed a choice between these volumes, if necessary, you could take advantage of cheaper old editions, as it is not so much what you choose, but how you use it. The disadvantage of old editions speak for themselves, because they are by their very nature, not up to date. You will have to be aware of any changes and learn the changes if you have bought a second-hand legislation collection. Only you can decide whether the saving of a few pounds is worthwhile. If in doubt, save yourself the anguish and buy the latest edition. What is important, is that you should obtain a copy of EC legislation early in the academic year and use it throughout for reference in the lectures and in tutorials/seminars. You will find that by examination time you will know what legislation is important and, more to the point, will already be familiar with it. This avoids the frantic searches through the legislation in the examination hall, usually accompanied by an expression of panic, in the desperate pursuit of anything vaguely relevant to your answer. This is not only a waste of time, it is hardly conducive to establishing a relaxed but concentrated frame of mind for tackling the questions, so be prepared!
For those of you who cannot take legislation or legislative collections into the examination, then it is even more important to discern what are the really necessary legislative provisions to be known and the earlier the better. In this case you will be forced to be selective, because even if it is not necessary to learn by rote every single word, you must remember a pretty close paraphrase so as not to distort the meaning or intent of the particular provision.
The study of case law
Since there are many cases which involve the subject matter, the textbooks do not always choose the same cases as examples. Authors tend, however, to cite favourite cases to liven up what can be regarded as a fairly dull area of Community law. Hence examples include Blow-up-dolls, sex shops, unlawful killings and prostitutes, amongst others. Only occasionally does a new case provide anything novel, although there are many new cases. Most of them are simply variations on themes of the previous cases. The examples cited in this book may or may not therefore reflect those covered by the textbooks or your course in EU/EC law. My advice here is, when in doubt or, to try to cut down the number of cases that have to be learned or revised, use the examples given by your course lecturers. This does not invalidate the specific cases used here or in other texts. What is important are the interpretations and application of law reached and these remain valid regardless of the actual case used. Some cases are clearly important and cannot be disregarded, for example, Van Gend en Loos and Costa v ENEL. If you do not know why these two cases are so significant, then get reading!
Read, where you can, the cases themselves, but certainly make use of the help of case notes, before and after reading the case itself, if necessary. Although, where the subject matter is difficult, in the areas of competition law and free movement of goods in particular when the cases can be quite lengthy, Community law cases are normally reasonably short. The judgments are usually very concise, so much so that the reasoning behind them is not always obvious. If this is the case then it will be necessary to read the opinion of the Advocate General. However, the court is not obliged to follow either the Advocate General's opinion or reasoning in reaching its decision, as in Van Gend en Loos; therefore, in order fully to understand the Decision, a case note may be the only answer.
While not recommended, it may be possible to learn Community law from a really small core of cases, perhaps about thirty or forty, because many cases which have arisen as a result of a substantive law problem have given rise to the leading principles and developments in Community institutional and procedural law. A suggested list – and one which like the eurojargon above may be used as a sort of check list – would probably include the following cases: Van Gend en Loos, Leonesio v Italy, Ratti, Verbond v Netherlands, Costa v ENEL, Simmenthal, InternationaleHandelsgesellschaft, Foglia v Novello, CILFIT, Von Colson, Frankovich, Factortame (more than one), Plaumann, Töpfer, Isoglucose cases, Lütticke, International Fruit v Commission, Cordorniu, Commission v Italy (Art Treasures cases), Schöppenstedt, Denkavit, Dassonville, Cassis de Dijon, Prantl, Keck, Defrenne v Sabena, Marshall, van Duyn, Barber, van Binsbergen, Reyners, Säger, Gebhard, Sala, Grzelczyk, Collins, Baumbast and Chen. This list is by no means exhaustive and I am not advocating that you only concentrate on these cases, but as a minimum these are cases of which you should be aware as they are the leading cases. If you remember the meaning of these cases it is likely, that they will remind you of further cases which develop the principles, such as Marleasing and Kolpinghuis in respect of Von Colson or the cases which go on to clarify or expand previous judgments such as those which followed the Barber or Factortame cases. Do you know all of the listed cases, what they are about, the area of Community law and the Decision and principle of law of which they are examples? If not, look them up in the case list.
Cases and materials books
Cases and materials books, of which there are two or three good examples can be useful in providing handy source materials on the leading provisions of law and cases, especially where library facilities are scarce.
For general comments about lectures and tutorials, refer to section 1 above.
Reading to prepare for lectures and tutorials on Community law courses will often be recommended from the specialized European law journals. The leading Community law Journals are: The European Law Review, the Common Market Law Review, Legal Issues of European Integration, European Journal of International Law. In addition leading UK law journals also include developments in Community law, sometimes in separate up-dating sections, see amongst others, ICLQ, LQR, Public Law and the Modern LawReview.
The EU itself also publishes a great deal of general information and specialist documents. Check to see whether your library is one which has a European Documentation Centre; if so become familiar with its layout and holdings, it may prove useful especially in respect of assessed work. And there is, of course, the World Wide Web, which is a massive source of material. Try starting at ec.europa.eu/index_en.htm .
The General Approach to Community Law Questions
- Identify the area of law which is being dealt with in the question to hand, if not explicit; this is usually obvious.
- Determine what the question is asking you. This may sound trite, but if you do not interpret it correctly your answer may be close to worthless. Therefore you must try to dissect the question or de-construct it, i.e. break it into parts to determine what is necessary to provide the answer to the question. A couple of examples will help.
Example 1 Is it the case that 'the doctrine of the Supremacy of Community Law is a logical if not necessary inference from Community Treaties'?
This clearly concerns supremacy and most questions would require you to define the subject matter of the question unless this is done as a part of the question and you are required to discuss the given definition. So, with the above question you need to state clearly and concisely what you understand by the phrase 'the doctrine of the Supremacy of Community Law'.
You are then asked whether 'it is the case that it is logical if not a necessary inference' and you have to determine exactly what this cryptic part of the question is demanding as an answer. It suggests the supremacy of Community law is: logical, but that it is not: a necessary inference from the Treaties. You must address both these contentions.
Although the word logical appears first I would address the part about the inference first, because this more directly requires you to consider the Treaty provisions and follows the deductive approach outlined above. It also appears to me to make sense to consider whether the Treaties do provide for the supremacy before having to consider the logic of whether Community law is supreme. Therefore, you must consider whether the Treaties provide for supremacy. The question has already hinted that this is not expressly to be found in the Treaty, i.e. there is no Article which clearly states that Community law is supreme. On a direct reading of the Treaty you might not necessarily infer that Community law is supreme.
You are thus taken to considering whether Community law supremacy is logical from the Treaty. Without going into the details here, you are clearly required to consider any provisions which logically demand supremacy. Whilst you could attempt this yourself by an analysis of provisions, it would be far easier and is what the question is driving at, if you looked to the institution which has already done this for you by its case rulings, i.e. the Court of Justice in the cases of Van Gend en Loos, Costa v ENEL and Simmenthal, amongst others.
Example 2 'Though the Community Treaties indicate either indirectly or by implication an intention that Community law should be paramount over the law in each Member State, they contain no express provision to that effect. For the present, therefore, this question is in practice largely dependent on the constitutional law of each Member State.' Discuss.
This is a similar question in that it is also concerned with supremacy, but is also concerned with the member states' law and not just Community law.
The parts to be addressed are, the indirect or implied intention of the Treaties for supremacy of Community law and that there is no express provision. This requires a discussion of any Treaty Articles which would lead to this conclusion and the rulings of the Court of Justice which confirm this. This is really just another formulation of the first example given.
The question then suggests that because supremacy is not express, the member states' constitutional law determines supremacy. You are then required either to confirm this with examples or refute this by reference to Court of Justice rulings, i.e. the issue to be addressed is whether Community law supremacy is determined according to national constitutional laws?
- Once you have identified the principle issues, these will form the sections in your answer. In your plan set out the issues which arise from the above, i.e. what information must now be supplied, just as I have shown.
A certain amount of general discussion might be welcome depending on the approach adopted in your particular course and the subject matter of the question. This should be clear from the content of the lectures and whether any background discussion was given. This might include discussion of the motives for the inclusion of particular areas or provisions in the Treaty or, the general economic background or theory in competition law, for example.
The degree of detail included would depend on the emphasis given in your particular course to these general considerations and the type of question to be addressed. Clearly in term essays and assessed essays these general points should be covered in reasonable detail. In exam essay answers the available time will determine the amount of detail.
- When the issues to be addressed are clear, set out the legal regime which is relevant to the question, i.e. the relevant legislative provisions. A complete answer would make reference to the general provisions of the Treaty. This sets the problem and answer in context and it allows you to set the course of what you think the result should be even before any hard law is referred to. Start with the preamble, determine whether the subject matter is referred to in Articles 2 and 3, and whether there are specific Treaty Articles on the matter; if so, outline these!
In the case of free movement of workers questions, refer to the Treaty preamble and Articles 2 and 3, in particular, the reference to the abolition, as between member states, of obstacles to freedom of movement for persons. Then, in respect of the free movement of workers, it would be useful briefly to outline the scope of rights given by Article 39 EC and secondary legislation; Regulation 1612/68 and Directive 2004/38. There is usually no need to rewrite in full the actual provisions and a summary of their scope should be acceptable.
There are many more examples of questions and answers on EC law on this website and the EU Law Q & A book, 6th edition, 2007, OUP, ISBN 0-19-929949-2.
- Lastly, the discussion itself can take place and be completed with a paragraph summarizing the main conclusions.
The problems questions are usually designed to test whether the basic concepts of Community policy and law have been understood and how the rights given by the Treaty and secondary legislation have been interpreted and expanded by the ECJ in particular, given situations.
- The general approach to problem-solving is first to identify the area of law. Again, as with essays, this is usually but not always obvious, especially with mixed questions which may cover two of three topics in Community law. Next, the mnemonic I suggested in section 1 applies (FLAC), identify the facts or particular problems arising from the situation provided in the problem. Then discuss the laws applicable and the specific provisions to set the context of the problem as succinctly as possible, as was discussed above. Apply the legislative provisions and case law on the provisions to the issues and come to conclusions on each issue. By setting out the problems and issues of an answer, a form of plan has already been established which can be the basis of a separate plan but could easily be incorporated into a couple of opening paragraphs to provide a complete and structured answer.
One of the most common mistakes made in answering problem questions in Community law, is to adopt a common law approach, i.e. by looking at the facts of a case and saying this looks like, e.g., the Marshall case and attempting to apply the Decision, or as common lawyers would call it the ratio descidendi of the case to the facts to reach a conclusion. Well there was this other case in which it was decided X, therefore the result in this case is also X. No mention is made of the EC Treaty or secondary Community legislation, as if the Marshall case existed in a vacuum or was common law. The approach is, of course, one learnt whilst studying common law subjects such as contract and tort where there is often no statute law to which to refer. In Community law this is clumsy and wrong!, i.e. the outcome may not be a simple application of previous judgments. See the different results of cases involving the EP and Council under Article 230 and two cases arising under the Article 288 action for damages, Plaumann and Lütticke. Follow it through, first the legislation and then the case law. The result might well be the same in most cases but it cannot be guaranteed. The common law approach completely disregards the policy considerations inherent in Community law which can at times lead to results not entirely clear from a straight application of the relevant legislation or case law conclusions. See, for example, in the area of the free movement of workers the cases of Bettray, Steymann and Trojani in deciding whether those studying can obtain benefits as workers or the case of P v S and Cornwall CC in sex discrimination law.
To repeat, start with the identification of the factual issues which must be resolved by the application of provisions of law from a certain area of Community law.
- The next step is to see whether there is any secondary legislation on the matter. Your course of study should have revealed all of these to you and none of the actual provisions should come as a surprise. It would be far too late to start a search for relevant legislation in any subject area of EC law in the examination if you are allowed to take legislative materials into the exam. Frantic, last-minute searches for something (anything!) on the subject is not likely to produce a good answer or, more to the point, the right frame of mind in an exam to be able to produce a competent answer. You should therefore make yourself familiar during your course of study with the principle secondary legislative provisions, or at least at the time of your consolidation and revision of your course notes. So acquire a legislation book or materials book and use it throughout the course of the year.
- At this stage of answering a question it may be possible to reach a conclusion on the legal position in a particular problem based only on the legislation but usually you would need case law to iron out any uncertainties or ambiguities or simply to back up your conclusion and demonstrate how the Court of Justice has decided the matter in cases with similar subject matter. In most cases the question would be designed with some of the case law in mind in order to test your knowledge of areas of Community law. It is, however, only at this stage that case law should come into the discussion and not as your opening lines of an answer. I promise you, it all makes much more sense doing it this way. I could think of many analogies to demonstrate this form of approach, i.e. using case law first is not seeing the wood for the trees. Take an overview and work your way slowly into the problem, see the shape of the wood/answer first and then concentrate on individual trees/details of the answer.
In particular problems, the choice of relevant cases can be more problematic. Despite the fact that there are a certain number of leading cases in EC law, surprisingly few when counted, particular ones will have been referred to in your course. However, the textbooks may favour different cases as examples of the interpretation of the same legal provision. Often the choice of one case against another makes little difference even if was not one cited on your course. The golden rule here is to make sure any case cited concerns the same legal provision or the same legal issue in dispute, e.g. the considerations employed in determining whether a particular forum is one capable of making references to the Court of Justice for the purposes of Article 234. I have given the cases of Nordsee v Nordstern and Broekmuelen as examples whereas I note that the cases of Vaassen, Politi v Italy and Dreher v Italian Finance Administration are used elsewhere. Similarity of fact is less important than similarity of provision. These general guidelines will be demonstrated clearly in the example questions and answers in the website and the Q & A book.
Where the citation of one will do to answer the point under consideration in a problem question, use one and not any more, especially those which simply repeat the same principle. Only if you have time to spare can you indulge in the luxury of citing all the cases applicable to a certain area. In fact, later cases often do this for you by reference back to the developing law in the area. However certain leading cases are fundamental and should be used in preference to later ones, e.g. Van Gend, Costa v ENEL and Ratti. These should be recognised during the course of study.
I wish you all the very best in the exam and hope you do yourself a real favour by doing well.