EU Authorities

Question 1

Article 267 Procedure > Question Structure

Answer 1

1. A court or tribunal?
2. Is a decision on EU Law point ‘necessary’ for decision?
3. Mandatory or Permissive Jurisdiction?
4. Could the ECJ refuse the reference?
5. Conclude

Question 2

Article 267 Procedure > 1. A court or tribunal? >

Dorsch Consult

Answer 2

1. Established by Law
2. Permanent
3. Applies Rules of Law
4. Jurisdiction is compulsory
5. Independent
6. Whether it’s procedure is inter-parties

Question 3

Article 267 Procedure > 1. A court or tribunal? > Authority for test

Answer 3

Dorsch Consult

1. Established by Law
2. Permanent
3. Applies Rules of Law
4. Jurisdiction is compulsory
5. Independent
6. Whether it’s procedure is inter-parties

Question 4

Article 267 Procedure > 1. A court or tribunal? >

Broekmeulen v Huisarts Registratie Committee

Answer 4

Not all Dorsch factors must be satisfied

Question 5

Article 267 Procedure > 1. A court or tribunal? >

Not all Dorsch factors must be satisfied

Answer 5

Broekmeulen v Huisarts Registratie Committee

Question 6

Article 267 Procedure > 1. A court or tribunal? >

Nordsee v Reederei Mond

Answer 6

Private arbitration to resolve construction dispute was not a court or tribunal due to the voluntary nature of proceedings

Question 7

Article 267 Procedure > 1. A court or tribunal? >
Private arbitration to resolve construction dispute was not a court or tribunal due to the voluntary nature of proceedings

Answer 7

Nordsee v Reederei Mond

Question 8

Article 267 Procedure >
2. Is a decision on EU Law point ‘necessary’ for decision? >
CILFIT Criteria

Answer 8

Referral is NOT necessary:
• Where the question of interpretation if EU law is NOT RELEVANT to the outcome of the case
• Where the decisions of the ECJ have ALREADY DEALT with the point of EU law in Question
• Where the correct application of EU Law is SO OBVIOUS as to leave no scope for any reasonable doubt (Doctrine of Acte Clair)

Question 9

Article 267 Procedure >

2. Is a decision on EU Law point ‘necessary’ for decision? > Authority?

Answer 9

CILFIT Criteria
Referral is NOT necessary:
• Where the question of interpretation if EU law is NOT RELEVANT to the outcome of the case
• Where the decisions of the ECJ have ALREADY DEALT with the point of EU law in Question
• Where the correct application of EU Law is SO OBVIOUS as to leave no scope for any reasonable doubt (Doctrine of Acte Clair)

Question 10

Article 267 Procedure >
2. Is a decision on EU Law point ‘necessary’ for decision? >
Da Costa en Schaake

Answer 10

Where a decision has already been made, this does not always preclude a reference

Question 11

Article 267 Procedure >
2. Is a decision on EU Law point ‘necessary’ for decision? >
Where a decision has already been made, this does not always preclude a reference

Answer 11

Da Costa en Schaake

Question 12

Article 267 Procedure >
2. Is a decision on EU Law point ‘necessary’ for decision? >
Da Costa en Schaake

Answer 12

Doctrine of Acte Clair

Question 13

Article 267 Procedure >
2. Is a decision on EU Law point ‘necessary’ for decision? >
Doctrine of Acte Clair

Answer 13

Da Costa en Schaake

Question 14

Article 267 Procedure >
2. Is a decision on EU Law point ‘necessary’ for decision? >
CILFIT para 21

Answer 14

Referrals are ‘assessed on the basis’ of these criteria; the courts must bear in mind that EU law is a specialist area – and correct interpretation is not always immediately clear

Question 15

Article 267 Procedure >
2. Is a decision on EU Law point ‘necessary’ for decision? >
Referrals are ‘assessed on the basis’ of these criteria; the courts must bear in mind that EU law is a specialist area – and correct interpretation is not always immediately clear

Answer 15

CILFIT para 21

Question 16

Article 267 Procedure >

3. Mandatory Jurisdiction? > TFEU Art.267(3)

Answer 16

One ‘against who’s decision there is no judicial remedy under national law.’
The Court must refer the matter to the ECJ if it considers a ruling necessary

Question 17

Article 267 Procedure >
3. Mandatory Jurisdiction? >
One ‘against who’s decision there is no judicial remedy under national law.’

Answer 17

TFEU Art.267(3)

Question 18

Article 267 Procedure >
3. Mandatory Jurisdiction? >
Costa v Enel

Answer 18

He highest court in the national system for that particular type of case, from which there is no appeal

Question 19

Article 267 Procedure >
3. Mandatory Jurisdiction? >
He highest court in the national system for that particular type of case, from which there is no appeal

Answer 19

Costa v Enel

Question 20

Article 267 Procedure >
3. Mandatory Jurisdiction? >
Köbler v Austria

Answer 20

If the Courts fail to do so, the ECJ will not intervene; but an individual may bring an action against the national court under state liability and will have a claim if the breach is “sufficiently serious”

Question 21

Article 267 Procedure >
3. Mandatory Jurisdiction? >
If the Courts fail to do so, the ECJ will not intervene; but an individual may bring an action against the national court under state liability and will have a claim if the breach is “sufficiently serious”

Answer 21

Köbler v Austria

Question 22

Article 267 Procedure >
3. Permissive Jurisdiction? >
TFEU Art.267(2)

Answer 22

Permissive Courts may refer to the ECJ, or decide the question of EU law themselves (individual can then appeal if done incorrectly)

Question 23

Article 267 Procedure >
3. Permissive Jurisdiction? >
Permissive Courts may refer to the ECJ, or decide the question of EU law themselves (individual can then appeal if done incorrectly)

Answer 23

TFEU Art.267(2)

Question 24

Article 267 Procedure >

3. Jurisdiction > ECJ Information Note Guidelines

Answer 24

(i) References are ‘particularly useful’ where there (1) is a new question of general interest for uniform application of law; or (2) existing case law is not applicable to a new set of facts.
(ii) A higher Court cannot prevent a lower court from making a reference
(iii) A national court cannot declare EU law invalid. Therefore, if a court is doubtful about the validity of EU Law, it must make a reference.
(iv) A national court may decide to make a reference to the ECJ as soon as it realises one will be necessary. However, in practice, they usually wait to be presented with the factual and legal context so that the ECJ has all the facts..

Question 25

Article 267 Procedure > 3. Jurisdiction > ECJ Information Note Guidelines > Rheinmülen-Düsseldorf

Answer 25

(ii) A higher Court cannot prevent a lower court from making a reference

Question 26

Article 267 Procedure > 3. Jurisdiction > ECJ Information Note Guidelines > (ii) A higher Court cannot prevent a lower court from making a reference

Answer 26

Rheinmülen-Düsseldorf

Question 27

Article 267 Procedure > 3. Jurisdiction > ECJ Information Note Guidelines > Foto-frost

Answer 27

(iii) A national court cannot declare EU law invalid. Therefore, if a court is doubtful about the validity of EU Law, it must make a reference.

Question 28

Article 267 Procedure > | 3. Jurisdiction > ECJ Information Note Guidelines > (iii) A national court cannot declare EU law invalid

Answer 28

Foto-frost

Question 29

Article 267 Procedure > 3. Jurisdiction > UK Guidelines > R v International Stock Exchange ex p Else

Answer 29

Lord Bingham urged national courts to make a reference if unable to answer in complete confidence – ECJ has greater expertise

Question 30

Article 267 Procedure > 3. Jurisdiction > UK Guidelines > Lord Bingham urged national courts to make a reference if unable to answer in complete confidence – ECJ has greater expertise

Answer 30

R v International Stock Exchange ex p Else

Question 31

Article 267 Procedure > 3. Jurisdiction > UK Guidelines > Trinity Mirror plc

Answer 31

National Courts should show a ‘greater measure of self-restraint’ Reference most appropriate where (1) question of general importance (2) ruling likely to promote uniform application throughout MS

Question 32

Article 267 Procedure > 3. Jurisdiction > UK Guidelines > National Courts should show a ‘greater measure of self-restraint’

Answer 32

Trinity Mirror plc

Question 33

Article 267 Procedure > 4. Could the ECJ refuse the reference? > Foglia v Novello

Answer 33

Where there is no genuine dispute

Question 34

Article 267 Procedure > 4. Could the ECJ refuse the reference? > Where there is no genuine dispute

Answer 34

Foglia v Novello

Question 35

Article 267 Procedure > 4. Could the ECJ refuse the reference? > Costa v ENEL

Answer 35

Where the question involves interpreting national law and questions are ‘imperfectly formulated.’

Question 36

Article 267 Procedure > 4. Could the ECJ refuse the reference? > Where the question involves interpreting national law and questions are ‘imperfectly formulated.’

Answer 36

Costa v ENEL

Question 37

Article 267 Procedure > 4. Could the ECJ refuse the reference? > Telemarsicabruzzo v Circostel

Answer 37

Where the national court provides insufficient factual background

Question 38

Article 267 Procedure > 4. Could the ECJ refuse the reference? > Where the national court provides insufficient factual background

Answer 38

Telemarsicabruzzo v Circostel

Question 39

Article 267 Procedure > 5. Conclude > | TEU Art.4(3)

Answer 39

A ruling is binding, and national courts in all member states must apply interpretation in all subsequent cases, regardless of whether it was a mandatory or permissive jurisdiction court or tribunal making the reference.

Question 40

Article 267 Procedure > 5. Conclude > A ruling is binding, and national courts in all member states must apply interpretation in all subsequent cases, regardless of whether it was a mandatory or permissive jurisdiction court or tribunal making the reference.

Answer 40

TEU Art.4(3)

Question 41

Article 267 Procedure > 5. Conclude > | ECA 1972 ss.3(1)&(2)

Answer 41

All Courts must follow rulings of the ECJ

Question 42

Article 267 Procedure > 5. Conclude > | All Courts must follow rulings of the ECJ

Answer 42

ECA 1972 ss.3(1)&(2)

Question 43

Direct Effect > Define

Answer 43

“Directly effective provisions of EU Law give rise to rights and obligations that an individual may enforce before their national courts”

Question 44

Direct Effect > | Van Gen den Loos

Answer 44

Treaty Articles = vertical effect (and horizontal, Defrenne v SABENA)

Question 45

Direct Effect > | Treaty Articles = vertical effect (and horizontal, Defrenne v SABENA)

Answer 45

Van Gen den Loos

Question 46

Direct Effect > | Defrenne v SABENA

Answer 46

Treaty Articles = horizontal effect (and vertical, Van Gen den Loos)

Question 47

Direct Effect > | Leoniso v Italian Minister of Agriculture

Answer 47

Regulations = vertical (and horizontal, Antonio Munoz Cia SA v Frumar Ltd)

Question 48

Direct Effect > | Regulations = vertical (and horizontal, Antonio Munoz Cia SA v Frumar Ltd)

Answer 48

Leoniso v Italian Minister of Agriculture

Question 49

Direct Effect > | Antonio Munoz Cia SA v Frumar Ltd

Answer 49

Regulations = horizontal (and vertical, Leoniso v Italian Minister of Agriculture)

Question 50

Direct Effect > | Regulations = horizontal (and vertical, Leoniso v Italian Minister of Agriculture)

Answer 50

Antonio Munoz Cia SA v Frumar Ltd

Question 51

Direct Effect > | Van Duyn v Home Office

Answer 51

Directives = VERTICAL ONLY

Question 52

Direct Effect > | Directives = VERTICAL ONLY

Answer 52

Van Duyn v Home Office

Question 53

Direct Effect > | Marshall v Southampton & SW Hampshire Area Health Authority

Answer 53

Affirmed that directives do not have horizontal effect

Question 54

Direct Effect > | Affirmed that directives do not have horizontal effect

Answer 54

Marshall v Southampton & SW Hampshire Area Health Authority

Question 55

Direct Effect > | Paola Faccini Dori v Recreb Srl and Vaneetveld v Le Foyer

Answer 55

Confirmed directives have vertical effect only

Question 56

Direct Effect > | Confirmed directives have vertical effect only

Answer 56

Paola Faccini Dori v Recreb Srl and Vaneetveld v Le Foyer

Question 57

Direct Effect > State...

Answer 57

In order to be directly effective it must satisfy the Van Gend Criteria.

Question 58

Direct Effect > | Van Gend Criteria

Answer 58

Sufficiently clear, precise and unconditional (leaves no discretion for implementation)

Question 59

Direct Effect > | Van Duyn

Answer 59

State’ In the case of directives, direct effect can only be vertical

Question 60

Direct Effect > State’ In the case of directives, direct effect can only be vertical

Answer 60

Van Duyn

Question 61

Direct Effect > | Pubblico Ministero v Ratti

Answer 61

The national government must have exceeded the time limit for the implementation of the directive. Has the implementation date passed?

Question 62

Direct Effect > The national government must have exceeded the time limit for the implementation of the directive. Has the implementation date passed?

Answer 62

Pubblico Ministero v Ratti

Question 63

Direct Effect > | Foster v British Gas

Answer 63

The employer must be an emanation of the state

Question 64

Direct Effect > | The employer must be an emanation of the state

Answer 64

Foster v British Gas

Question 65

Direct Effect > | Foster guidelines

Answer 65

(SD, SC and SP) • Carries out a public service pursuant to a Statutory Duty (SD) • Service is under State Control (SC) and • The body has Special Powers (SP) for carrying out it’s functions, e.g. to grant licenses.

Question 66

Direct Effect > SD, SC and SP

Answer 66

Foster guidelines • Carries out a public service pursuant to a Statutory Duty (SD) • Service is under State Control (SC) and • The body has Special Powers (SP) for carrying out it’s functions, e.g. to grant licenses.

Question 67

Direct Effect > Farrel v Whitty

Answer 67

A body does not need to meet all three Foster criteria to be an emanation of the state; instead it is probably reasonable to conclude that a body will be an emanation of the state if: • The State has delegated to it a public interest task (a variant of the public service condition) and • It satisfies EITHER the second (State-Control SC) or third (Special Powers SP) Foster conditions

Question 68

Direct Effect > A body does not need to meet all three Foster criteria to be an emanation of the state

Answer 68

Farrel v Whitty A body does not need to meet all three Foster criteria to be an emanation of the state; instead it is probably reasonable to conclude that a body will be an emanation of the state if: • The State has delegated to it a public interest task (a variant of the public service condition) and • It satisfies EITHER the second (State-Control SC) or third (Special Powers SP) Foster conditions

Question 69

Indirect effect > | Von Colson and Kamman v Land Nordrhein Westfalen and Marleasing SA

Answer 69

The doctrine of indirect effect, developed in Von Colson and Marleasing SA, is the principle that national courts are under a duty to interpret national law in line with the aims of any relevant EU Law, whenever passed.

Question 70

Indirect effect > the principle that national courts are under a duty to interpret national law in line with the aims of any relevant EU Law, whenever passed

Answer 70

Von Colson and Kamman v Land Nordrhein Westfalen and Marleasing SA

Question 71

Indirect effect > | Pickstone v Freemans

Answer 71

In the UK, the courts have ruled that when Parliament passes a national legislation intended to comply with obligations under a EU directive, it will be interpreted to give effect to that directive

Question 72

Indirect effect > In the UK, the courts have ruled that when Parliament passes a national legislation intended to comply with obligations under a EU directive, it will be interpreted to give effect to that directive

Answer 72

Pickstone v Freemans

Question 73

Indirect effect > | Litster v Forth Dry Dock and Engineering

Answer 73

The courts may imply into the UK Legislation, the extra wording required to give effect to the directive

Question 74

Indirect effect > | The courts may imply into the UK Legislation, the extra wording required to give effect to the directive

Answer 74

Litster v Forth Dry Dock and Engineering

Question 75

Indirect effect > | Marleasing

Answer 75

Was significant because it removed the distinction between implementing and non-implementing legislation.

Question 76

Indirect effect > | Was significant because it removed the distinction between implementing and non-implementing legislation.

Answer 76

Marleasing

Question 77

Indirect effect > | Duke v GEC Reliance

Answer 77

Prior to Marleasing, non-implementing legislation did not have indirect effect and could not be read accordingly

Question 78

Indirect effect > | Prior to Marleasing, non-implementing legislation did not have indirect effect and could not be read accordingly

Answer 78

Duke v GEC Reliance

Question 79

Indirect effect > | Webb v EMO Air Cargo (UK) Ltd

Answer 79

Now, any UK legislation, passed before or after the directive, must be interpreted in line with EU Law, insofar as is possible

Question 80

Indirect effect > Now, any UK legislation, passed before or after the directive, must be interpreted in line with EU Law, insofar as is possible

Answer 80

Webb v EMO Air Cargo (UK) Ltd

Question 81

Indirect Effect > Conflict with National Law > Wagner Miret

Answer 81

If there is a clear conflict between UK legislation and the directive, the Courts will be reluctant to, ‘interpret national legislation in-line with EU directive’

Question 82

Indirect Effect > Conflict with National Law > | ‘interpret national legislation in-line with EU directive’

Answer 82

Wagner Miret

Question 83

State Liability > Francovich

Answer 83

The decision in Francovich v Italian State developed the principle of State Liability for a breach of EU Law. Where: a) The Directive gives rights to individuals b) That right is identifiable in the provision of the Directive c) A breach in the implementation of the Directive has caused claimant to suffer loss The Claimant may bring a claim against the state

Question 84

State Liability > Where: a) The Directive gives rights to individuals b) That right is identifiable in the provision of the Directive c) A breach in the implementation of the Directive has caused claimant to suffer loss

Answer 84

Francovich

Question 85

State Liability > | Factortame

Answer 85

The ECJ extended the principle and reformulated the test for State Liability. The State will be Liable where: • The breach infringes a rule of law intended to confer rights of individuals • The breach is “sufficiently serious” and • There is a direct causal link between the breach of the State’s obligation and the claimant’s loss

Question 86

State Liability > | What authority extends the principle in Francovich?

Answer 86

Factortame The ECJ extended the principle and reformulated the test for State Liability. The State will be Liable where: • The breach infringes a rule of law intended to confer rights of individuals • The breach is “sufficiently serious” and • There is a direct causal link between the breach of the State’s obligation and the claimant’s loss

Question 87

State Liability > Factortame > Sufficiently Serious includes? (3)

Answer 87

* Incorrect Implementation * Non-Implementation * Failed to make a Art.267 reference

Question 88

State Liability > Incorrect Implementation > | Brasserie du Pêcheur v Germany

Answer 88

Incorrect Implementation: a breach that ‘manifestly and gravely disregarded the limits on the exercise of it’s power.’ Three Factors: 1. Clarity and precision of the rule breached 2. Whether the Error of Law is Excusable, e.g. if another member state has made the same mistake 3. Whether the position taken by an EU institution has contributed (e.g. guidelines from commission)

Question 89

State Liability > Factortame > Sufficiently Serious > | Incorrect Implementation: a breach that ‘manifestly and gravely disregarded the limits on the exercise of it’s power.’

Answer 89

Brasserie du Pêcheur v Germany

Question 90

State Liability > Incorrect Implementation > Ex p British Telecom

Answer 90

2. Whether the Error of Law is Excusable, e.g. if another member state has made the same mistake

Question 91

State Liability > Incorrect Implementation > | 2. Whether the Error of Law is Excusable, e.g. if another member state has made the same mistake

Answer 91

Ex p British Telecom

Question 92

State Liability > Non-Implementation > | Dillenkofer and others v Germany

Answer 92

NON-IMPLEMENTATION: failure to implement a directive is always “sufficiently serious”

Question 93

State Liability > Non-Implementation > | NON-IMPLEMENTATION: failure to implement a directive is always “sufficiently serious”

Answer 93

Dillenkofer and others v Germany

Question 94

State Liability > Failed to make an Art.267 reference > | Köbler v Austria

Answer 94

Where a court of mandatory jurisdiction has incorrectly FAILED TO MAKE Art.267 REFERENCE, the breach will only be “sufficiently serious” if the failure to refer ‘was made in manifest breach of ECJ Case Law.’

Question 95

State Liability > Failed to make an Art.267 reference > Where a court of mandatory jurisdiction has incorrectly FAILED TO MAKE Art.267 REFERENCE, the breach will only be “sufficiently serious” if the failure to refer ‘was made in manifest breach of ECJ Case Law.’

Answer 95

Köbler v Austria

Question 96

Social Policy – Sexual Discrimination > 1. General Aim of anti-discriminatory legislation > Defrenne v SABENA

Answer 96

To promote fairness and equality, and economic growth within the community

Question 97

Social Policy – Sexual Discrimination > 1. General Aim of anti-discriminatory legislation > To promote fairness and equality, and economic growth within the community

Answer 97

Defrenne v SABENA

Question 98

Social Policy – Sexual Discrimination > Pay > | Article 157 TFEU

Answer 98

Men and Women should receive equal pay for doing equal work, or work of equal value

Question 99

Social Policy – Sexual Discrimination > Pay > | Men and Women should receive equal pay for doing equal work, or work of equal value

Answer 99

Article 157 TFEU

Question 100

Social Policy – Sexual Discrimination > Pay > Defrenne v SABENA

Answer 100

Men and Women should receive equal pay for doing equal work, or work of equal value - Because the TFEU articles have effect horizontally and vertically

Question 101

Social Policy – Sexual Discrimination > Pay > | the TFEU articles have effect horizontally and vertically

Answer 101

Defrenne v SABENA

Question 102

Social Policy – Sexual Discrimination > Pay includes > | Art.157(2)

Answer 102

Salary or other consideration whether in cash or kind, indirect or direct, in respect of employment from employer.

Question 103

Social Policy – Sexual Discrimination > Pay includes > | Salary or other consideration whether in cash or kind, indirect or direct, in respect of employment from employer.

Answer 103

Art.157(2)

Question 104

Social Policy – Sexual Discrimination > Pay includes > | Garland v British Rail Engineering

Answer 104

Travel concessions for family of retired

Question 105

Social Policy – Sexual Discrimination > Pay includes > | Travel concessions for family of retired

Answer 105

Garland v British Rail Engineering

Question 106

Social Policy – Sexual Discrimination > Pay includes> | Barber v Guardian Royal Exchange Assurance Group

Answer 106

Statutory redundancy pay

Question 107

Social Policy – Sexual Discrimination > Pay includes> | Statutory redundancy pay

Answer 107

Barber v Guardian Royal Exchange Assurance Group

Question 108

Social Policy – Sexual Discrimination > Pay includes> | Bilka-Kaufhaus GmbH v Von Hartz

Answer 108

Pension payments (unless statutory social security pensions – Defrenne)

Question 109

``` Social Policy – Sexual Discrimination > Pay includes> Pension payments (unless statutory social security pensions – Defrenne) ```

Answer 109

Bilka-Kaufhaus GmbH v Von Hartz

Question 110

Social Policy – Sexual Discrimination > Pay includes> | Ex p Seymour-Smith v Perez

Answer 110

Damages for unfair dismissal

Question 111

Social Policy – Sexual Discrimination > Pay includes> | Damages for unfair dismissal

Answer 111

Ex p Seymour-Smith v Perez

Question 112

Social Policy – Sexual Discrimination > Treatment > | Individual must rely on recast directive 2006/54

Answer 112

Treatment

Question 113

Social Policy – Sexual Discrimination > Treatment

Answer 113

Individual must rely on recast directive 2006/54

Question 114

Social Policy – Sexual Discrimination > Direct > | Art.2(1) Recast Directive 2006/54

Answer 114

Where one person is treated unfavourably on the grounds of sex than the other is/was/would have been, in the same situation

Question 115

Social Policy – Sexual Discrimination > Direct > Where one person is treated unfavourably on the grounds of sex than the other is/was/would have been, in the same situation

Answer 115

Art.2(1) Recast Directive 2006/54

Question 116

Social Policy – Sexual Discrimination > Direct > | Webb v EMO Air Cargo

Answer 116

Woman fired because she was pregnant

Question 117

Social Policy – Sexual Discrimination > Direct > | Woman fired because she was pregnant

Answer 117

Webb v EMO Air Cargo

Question 118

Social Policy – Sexual Discrimination > Direct > | Dekker

Answer 118

Woman not hired because she was pregnant

Question 119

Social Policy – Sexual Discrimination > Direct > | Woman not hired because she was pregnant

Answer 119

Dekker

Question 120

Social Policy – Sexual Discrimination > Direct > | Defrene v SABENA

Answer 120

Male cabin crew paid more than female cabin crew

Question 121

Social Policy – Sexual Discrimination > Direct > | Male cabin crew paid more than female cabin crew

Answer 121

Defrene v SABENA

Question 122

Social Policy – Sexual Discrimination > Direct > | Pregnancy Directive 92/85

Answer 122

Can only be used re: dismissal, although the courts have upheld it for job applications (but use Art.2(2)(c) recast directive)

Question 123

Social Policy – Sexual Discrimination > Direct > Can only be used re: dismissal, although the courts have upheld it for job applications (but use Art.2(2)(c) recast directive)

Answer 123

Pregnancy Directive 92/85

Question 124

Social Policy – Sexual Discrimination > Indirect > Art.2(1)(b) Recast Directive 2006/54

Answer 124

‘A neutral provision, criterion, or practice that could put the persons of one sex at a particular disadvantage compared with persons of the opposite sex.’

Question 125

Social Policy – Sexual Discrimination > Indirect > ‘A neutral provision, criterion, or practice that could put the persons of one sex at a particular disadvantage compared with persons of the opposite sex.’

Answer 125

Art.2(1)(b) Recast Directive 2006/54

Question 126

Social Policy – Sexual Discrimination > Indirect > Jenkins v Kingsgate

Answer 126

The Art.2(1)(b) definition of indirect discrimination is also appropriate for use in Art.157 TFEU

Question 127

Social Policy – Sexual Discrimination > Indirect > | The Art.2(1)(b) definition of indirect discrimination is also appropriate for use in Art.157 TFEU

Answer 127

Jenkins v Kingsgate

Question 128

Social Policy – Sexual Discrimination > Justifying Direct Discrimination

Answer 128

No justification per se, but 2 defences available; occupational requirement and positive discrimination

Question 129

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > defence (a) Occupational Requirement > Article 14(2) Recast Directive 2006/54

Answer 129

Employer must show that: • Gender was a genuine and determining OCCUPATIONAL REQUIREMENT; and, • The measure was proportionate, i.e. o Appropriate for objective o Necessary for objective and o Does not go beyond what is required (Skimmed-Milk Powder Case; Bela-Mühle Josef Bergman KG v Grows Farm GmbH

Question 130

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > Skimmed-Milk Powder Case; Bela-Mühle Josef Bergman KG v Grows Farm GmbH

Answer 130

The measure was proportionate: Does not go beyond what is required

Question 131

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (a) Occupational Requirement > Commission v UK

Answer 131

Occupational Requirement example: Midwifery could be restricted to women

Question 132

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (a) Occupational Requirement > Occupational Requirement example: Midwifery could be restricted to women

Answer 132

Commission v UK

Question 133

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (a) Occupational Requirement > Johnston v Chief Constable of the RUC

Answer 133

Derogations from equality must be interpreted strictly; it is up to the national court to evaluate whether reasoning is well-founded

Question 134

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (a) Occupational Requirement > Derogations from equality must be interpreted strictly; it is up to the national court to evaluate whether reasoning is well-founded

Answer 134

Johnston v Chief Constable of the RUC

Question 135

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Art.157(4) TFEU and Art.3 Recast Directive

Answer 135

Principle of equal treatment does not prohibit member state from adopting measures to make it easier for under-represented sex to pursue vocation.

Question 136

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Principle of equal treatment does not prohibit member state from adopting measures to make it easier for under-represented sex to pursue vocation.

Answer 136

Art.157(4) TFEU and Art.3 Recast Directive

Question 137

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Art.157 TFEU

Answer 137

Is a means of derogation, not a means of achieving equality; not a positive right to discriminate

Question 138

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Is a means of derogation, not a means of achieving equality; not a positive right to discriminate

Answer 138

Art.157 TFEU

Question 139

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Abrahamsson and Anderson v Fogelqvist

Answer 139

Cannot favour less qualified women

Question 140

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Cannot favour less qualified women

Answer 140

Abrahamsson and Anderson v Fogelqvist

Question 141

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Kalanke v Freie Hansestadt Bremen

Answer 141

Cannot automatically favour equally qualified women

Question 142

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Cannot automatically favour equally qualified women

Answer 142

Kalanke v Freie Hansestadt Bremen

Question 143

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Hellmut Marschall v Nordrhein-Westfalen

Answer 143

ECJ upheld the following German positive action policy: 1. Where a man and woman are equally qualified for a job  presumption that the under-represented sex must be favoured; however, 2. Can be rebutted if man proves he has overriding characteristics

Question 144

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > German Positive Action Policy

Answer 144

Hellmut Marschall v Nordrhein-Westfalen: ECJ upheld the following German positive action policy: 1. Where a man and woman are equally qualified for a job  presumption that the under-represented sex must be favoured; however, 2. Can be rebutted if man proves he has overriding characteristics

Question 145

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Art.3 Recast Directive

Answer 145

Maintain and adopt measures within meaning of Art.157(4) TFEU with a view to ensuring full equality in practice between men and women

Question 146

Social Policy – Sexual Discrimination > Justifying Direct Discrimination > (b) Positive Discrimination > Maintain and adopt measures within meaning of Art.157(4) TFEU with a view to ensuring full equality in practice between men and women

Answer 146

Art.3 Recast Directive

Question 147

Social Policy – Sexual Discrimination > Justifying Indirect Discrimination > Art.19

Answer 147

Burden of Proof: the claimant must establish that more persons of his/her sex are adversely affected. If this is established then the burden of proof shifts to the defendant to justify the measure.

Question 148

Social Policy – Sexual Discrimination > Justifying Indirect Discrimination > Burden of Proof: the claimant must establish that more persons of his/her sex are adversely affected. If this is established then the burden of proof shifts to the defendant to justify the measure.

Answer 148

Art.19

Question 149

Social Policy – Sexual Discrimination > Justifying Indirect Discrimination > Bilka

Answer 149

If a measure is taken by employer against an employee, apply the Bilka Test (NAN) – employer must show that the measure: • Reflects legitimate aim (Real NEED – on part of employer) • Is an APPROPRIATE means of achieving the objective • Is NECESSARY

Question 150

Social Policy – Sexual Discrimination > Justifying Indirect Discrimination > (NAN) • Reflects legitimate aim (Real NEED – on part of employer) • Is an APPROPRIATE means of achieving the objective • Is NECESSARY

Answer 150

Bilka

Question 151

Social Policy – Sexual Discrimination > Justifying Indirect Discrimination > Rinner-Kühn applied in Ex p Seymour-Smith

Answer 151

If the measure is a state measure, such as domestic legislation, the state must show that the measure • Reflects a legitimate aim • Aim unrelated to sex discrimination, and • Measure is suitable for achieving aim

Question 152

Social Policy – Sexual Discrimination > Justifying Indirect Discrimination > If the measure is a state measure, such as domestic legislation, the state must show that the measure • Reflects a legitimate aim • Aim unrelated to sex discrimination, and • Measure is suitable for achieving aim

Answer 152

Rinner-Kühn applied in Ex p Seymour-Smith

Question 153

Free Movement of Goods > 1. Introduce Relevant Legislation > | TFEU Art.26

Answer 153

‘The internal marker shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.’

Question 154

Free Movement of Goods > 1. Introduce Relevant Legislation > ‘The internal marker shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.’

Answer 154

TFEU Art.26

Question 155

Free Movement of Goods > 1. Introduce Relevant Legislation > | TFEU Art.28

Answer 155

Establishes a customs union; prohibits internal fiscal customs tariffs and imposes uniform customs tariff with third countries.

Question 156

Free Movement of Goods > 1. Introduce Relevant Legislation > Establishes a customs union; prohibits internal fiscal customs tariffs and imposes uniform customs tariff with third countries.

Answer 156

TFEU Art.28

Question 157

Free Movement of Goods > 1. Introduce Relevant Legislation > | TFEU Art.34

Answer 157

Covers goods and prohibits ‘quantitative restrictions on imports and all measures having equivalent effect,’ (i.e. national laws between member states

Question 158

Free Movement of Goods > 1. Introduce Relevant Legislation > Covers goods and prohibits ‘quantitative restrictions on imports and all measures having equivalent effect,’ (i.e. national laws between member states

Answer 158

TFEU Art.34

Question 159

Free Movement of Goods > 1. Introduce Relevant Legislation > TFEU Art.34 > Goods

Answer 159

= anything that has monetary value and is capable of forming the basis of a commercial transaction (Commission v Italy)

Question 160

Free Movement of Goods > 1. Introduce Relevant Legislation > Infringing Art.34 TFEU (x2)

Answer 160

The laws in question will infringe Art.34 if they are: 1. Quantitative Restrictions (e.g. quotas); or 2. Measures having equivalent effect on quantitative restrictions

Question 161

Free Movement of Goods > 1. Introduce Relevant Legislation > Harmonisation Directive

Answer 161

Sets out essential standards for certain industries. Where a product or industry falls under a harmonisation directive: • MS are no longer allowed to maintain the national provision which conflicts with harmonised rules • MS can no longer rely on TFEU Art.36 exceptions and Cassis to justify restrictions on products complying with harmonised rules; they can restrict free movement only on grounds permitted by the Harmonisation Directive itself or Art.114(4) and (5)

Question 162

Free Movement of Goods > 1. Introduce Relevant Legislation > | Art.114(4)

Answer 162

Permits a MS to maintain pre-existing conflicting national law where it can demonstrate the law is necessary to satisfy a major need of TFEU Art.36 or the working environment.

Question 163

Free Movement of Goods > 1. Introduce Relevant Legislation > Permits a MS to maintain pre-existing conflicting national law where it can demonstrate the law is necessary to satisfy a major need of TFEU Art.36 or the working environment.

Answer 163

Art.114(4)

Question 164

Free Movement of Goods > 1. Introduce Relevant Legislation > | Art.114(5)

Answer 164

Permits a MS to introduce new conflicting national law based on scientific research relating to the protection of the environment or working environment

Question 165

Free Movement of Goods > 1. Introduce Relevant Legislation > Permits a MS to introduce new conflicting national law based on scientific research relating to the protection of the environment or working environment

Answer 165

Art.114(5)

Question 166

Free Movement of Goods > Quantitative Restriction > Examples

Answer 166

Examples: outright bans on imports from another MS and quota systems, i.e. limits on imports from another State

Question 167

Free Movement of Goods > Quantitative Restriction > | Riseria Luigi Geddo v Ente Nazionale Risi

Answer 167

Measures ‘which amount to total or partial restraint or, according to circumstances, imports, exports, or goods in transit.

Question 168

Free Movement of Goods > Quantitative Restriction > Measures ‘which amount to total or partial restraint or, according to circumstances, imports, exports, or goods in transit.

Answer 168

Riseria Luigi Geddo v Ente Nazionale Risi

Question 169

Free Movement of Goods > MEQRS > | Procureur do Roi v Dassonville

Answer 169

All ‘trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.’

Question 170

Free Movement of Goods > MEQRS > All ‘trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.’

Answer 170

Procureur do Roi v Dassonville

Question 171

Free Movement of Goods > MEQRS > | Commission v Ireland

Answer 171

Applying the Dassonville definition: • Actual hindrance to trade not required, only the potential to effect trade • Trading rules do not have to be binding, and • Even Private companies can breach, as long as there is sufficient state involvement

Question 172

Free Movement of Goods > MEQRS > Applying the Dassonville definition: • Actual hindrance to trade not required, only the potential to effect trade • Trading rules do not have to be binding, and • Even Private companies can breach, as long as there is sufficient state involvement

Answer 172

Commission v Ireland

Question 173

Free Movement of Goods > Examples of MEQRS > UHT Milk (x2)

Answer 173

Licensing requirement for imports Requirement to re-package in UK

Question 174

Free Movement of Goods > Examples of MEQRS > | Origin Marketing

Answer 174

Requirement to mark origin of product

Question 175

Free Movement of Goods > MEQRS > | Requirement to mark origin of product

Answer 175

Origin Marketing

Question 176

Free Movement of Goods > MEQRS > | Commission v France (Angry Farmers)

Answer 176

Government failure to act against anti-importer protests

Question 177

Free Movement of Goods > MEQRS > | Government failure to act against anti-importer protests

Answer 177

Commission v France (Angry Farmers)

Question 178

Free Movement of Goods > Selling Arrangements > Article 34 (Keck and Mithouard)

Answer 178

Does not apply to laws on selling arrangements as long as (i) law applies to all traders and (ii) the law affects domestic and imported goods in the same way

Question 179

Free Movement of Goods > Selling Arrangements > What article does not apply to laws on selling arrangements as long as (i) law applies to all traders and (ii) the law affects domestic and imported goods in the same way

Answer 179

Article 34 | Keck and Mithouard

Question 180

Free Movement of Goods > Selling Arrangements > Punto Casa v Capena

Answer 180

They relate to shop opening hours

Question 181

Free Movement of Goods > Selling Arrangements > | They relate to shop opening hours

Answer 181

Punto Casa v Capena

Question 182

Free Movement of Goods > Selling Arrangements > | Commission v Greece

Answer 182

They stipulate WHERE the goods in question can be SOLD

Question 183

Free Movement of Goods > Selling Arrangements > | They stipulate WHERE the goods in question can be SOLD

Answer 183

Commission v Greece

Question 184

Free Movement of Goods > Selling Arrangements > | Hünermund ; Societe d’Importation Edouard Leclerc-Siplec

Answer 184

The place restrictions on ADVERTISING

Question 185

Free Movement of Goods > Selling Arrangements > | The place restrictions on ADVERTISING

Answer 185

Hünermund ; Societe d’Importation Edouard Leclerc-Siplec

Question 186

Free Movement of Goods > Selling Arrangements > | Mars GmbH ; Clinique Laboratories

Answer 186

Laws are NOT selling arrangements where they relate to PACKAGING AND PRESENTATION.

Question 187

Free Movement of Goods > Selling Arrangements > | Laws are NOT selling arrangements where they relate to PACKAGING AND PRESENTATION.

Answer 187

Mars GmbH ; Clinique Laboratories

Question 188

Free Movement of Goods > Selling Arrangements > | KO v GIP (AB)

Answer 188

However, if it is proven that selling arrangement does in fact, adversely affect importers, despite its blanket application they can be deemed MEQRs

Question 189

Free Movement of Goods > Selling Arrangements > However, if it is proven that selling arrangement does in fact, adversely affect importers, despite its blanket application they can be deemed MEQRs

Answer 189

KO v GIP (AB)

Question 190

Free Movement of Goods > Distinctly Applicable > | Irish Souvenirs

Answer 190

Measure applies only to imported goods

Question 191

Free Movement of Goods > Distinctly Applicable > | Measure applies only to imported goods

Answer 191

Irish Souvenirs

Question 192

Free Movement of Goods > Indistinctly Applicable > | UHT Milk

Answer 192

Measure applies to all products, irrespective of national origin

Question 193

Free Movement of Goods > Indistinctly Applicable > | Measure applies to all products, irrespective of national origin

Answer 193

UHT Milk

Question 194

Free Movement of Goods > Justified > Distinctly Applicable - what exceptions apply?

Answer 194

Can only be justified using Article 36TFEU exceptions: • Public Morality • Public Policy • Public Health • Public Security • Protection of Industrial and commercial property • Protection of National Treasures

Question 195

Free Movement of Goods > Justified > Distinctly Applicable • Public Morality • Public Policy • Public Health • Public Security • Protection of Industrial and commercial property • Protection of National Treasures

Answer 195

Article 36TFEU exceptions:

Question 196

Free Movement of Goods > Justified > Distinctly Applicable > Article 36TFEU exceptions:

Answer 196

* Public Morality * Public Policy * Public Health * Public Security * Protection of Industrial and commercial property * Protection of National Treasures

Question 197

Free Movement of Goods > Justified > Art.36 Exceptions > Public Morality

Answer 197

Member States are free to set their own standards of public morality

Question 198

Free Movement of Goods > Justified > Art.36 Exceptions > Public Morality > R v Henn and Darby

Answer 198

Restrictions are justified when there is no sale of such items in country

Question 199

Free Movement of Goods > Justified > Art.36 Exceptions > Public Morality > Restrictions are justified when there is no sale of such items in country

Answer 199

R v Henn and Darby

Question 200

Free Movement of Goods > Justified > Art.36 Exceptions > Public Morality > Conegate Ltd v Comissioners of Customs and Excise

Answer 200

Restrictions are not justified if items can be produced/sold in country

Question 201

Free Movement of Goods > Justified > Art.36 Exceptions > Public Morality > Restrictions are not justified if items can be produced/sold in country

Answer 201

Conegate Ltd v Comissioners of Customs and Excise

Question 202

Free Movement of Goods > Justified > Art.36 Exceptions > Public Policy > R v Thompson

Answer 202

Other interest can be protected at the expense of free movement of goods: interpreted very strictly

Question 203

Free Movement of Goods > Justified > Art.36 Exceptions > Public Policy > Other interest can be protected at the expense of free movement of goods: interpreted very strictly

Answer 203

R v Thompson

Question 204

Free Movement of Goods > Justified > Art.36 Exceptions > Public Policy > Eugen Schmidberger ITP v Austria ; Omega-Spielhallen

Answer 204

Member states must do so in a way least restrictive to free movement of goods

Question 205

Free Movement of Goods > Justified > Art.36 Exceptions > Public Policy > Member states must do so in a way least restrictive to free movement of goods

Answer 205

Eugen Schmidberger ITP v Austria ; Omega-Spielhallen

Question 206

Free Movement of Goods > Justified > Art.36 Exceptions > Public Policy > Commission v France (angry farmers)

Answer 206

Has the situation gone unchecked for many years?

Question 207

Free Movement of Goods > Justified > Art.36 Exceptions > Public Policy > Has the situation gone unchecked for many years?

Answer 207

Commission v France (angry farmers)

Question 208

Free Movement of Goods > Justified > Art.36 Exceptions > Public Health > UHT Milk

Answer 208

Only where there is a medical evidence of a real risk

Question 209

Free Movement of Goods > Justified > Art.36 Exceptions > Public Health > Only where there is a medical evidence of a real risk

Answer 209

UHT Milk

Question 210

Free Movement of Goods > Justified > Art.36 Exceptions > Public Health > Newcastle Disease

Answer 210

Cannot be guise to protect industry

Question 211

Free Movement of Goods > Justified > Art.36 Exceptions > Public Health > Cannot be guise to protect industry

Answer 211

Newcastle Disease

Question 212

Free Movement of Goods > Justified > Art.36 Exceptions > Public Security > Campus Oil Ltd v Minister for Industry and Energy

Answer 212

Aim of measure must transcend purely economic considerations

Question 213

Free Movement of Goods > Justified > Art.36 Exceptions > Public Security > Aim of measure must transcend purely economic considerations

Answer 213

Campus Oil Ltd v Minister for Industry and Energy

Question 214

Free Movement of Goods > Justified > Art.36 Exceptions > Protection of Industrial and commercial property > Deutsche Grammophon GmbH

Answer 214

National law on intellectual property rights but only with regards to how IPR is used or exercised

Question 215

Free Movement of Goods > Justified > Art.36 Exceptions > Protection of Industrial and commercial property > National law on intellectual property rights but only with regards to how IPR is used or exercised

Answer 215

Deutsche Grammophon GmbH

Question 216

Free Movement of Goods > Justified > Art.36 Exceptions > | PreussenElektra

Answer 216

Art.36 list is generally accepted as exhaustive; however, in this case the ECJ allowed an exception on environmental grounds, without changing the rules.

Question 217

Free Movement of Goods > Justified > Art.36 Exceptions > Art.36 list is generally accepted as exhaustive; however, in this case the ECJ allowed an exception on environmental grounds, without changing the rules.

Answer 217

PreussenElektra

Question 218

Free Movement of Goods > Justified > Indistinctly Applicable Measures > Cassis de Dijon

Answer 218

• Presumption that goods lawfully manufactured in one MS should be marketable in another (mutual recognition) • If law prevents this, responsibility of MS to rebut presumption; a restriction is necessary ONLY IF NECESSARY TO FULFIL A MANDATORY REQUIREMENT of the State (rule of reason) o Effectiveness of fiscal supervision o Protection of public health o Fairness of commercial transactions, or o Defence of consumer

Question 219

Free Movement of Goods > Justified > Indistinctly Applicable Measures > Cassis de Dijon (expansions) > Cinétheque SA

Answer 219

Protection of culture

Question 220

Free Movement of Goods > Justified > Indistinctly Applicable Measures > Cassis de Dijon (expansions) > Protection of culture

Answer 220

Cinétheque SA

Question 221

Free Movement of Goods > Justified > Indistinctly Applicable Measures > Cassis de Dijon (expansions) > Commission v Denmark (Disposable beer cans)

Answer 221

Protection of the environment

Question 222

Free Movement of Goods > Justified > Indistinctly Applicable Measures > Cassis de Dijon (expansions) > Protection of the environment

Answer 222

Commission v Denmark (Disposable beer cans)

Question 223

Free Movement of Goods > Justified > Indistinctly Applicable Measures > Cassis de Dijon (expansions) > Commission v Germany (Beer Purity Laws)

Answer 223

The measure must be REALLY NECESSARY

Question 224

Free Movement of Goods > Justified > Indistinctly Applicable Measures > Cassis de Dijon (expansions) > The measure must be REALLY NECESSARY

Answer 224

Commission v Germany (Beer Purity Laws)

Question 225

Free Movement of Goods > Proportionate

Answer 225

(a) it is NECESSARY for the objective, and | (b) It does not extend beyond what is necessary

Question 226

Free Movement of Goods > Proportionate > | Walter Rau

Answer 226

(b) It does not extend beyond what is necessary

Question 227

Free Movement of Goods > Proportionate > | (b) It does not extend beyond what is necessary

Answer 227

Walter Rau

Question 228

Free Movement of Goods > Proportionate > | Ex p Gallaher Ltd

Answer 228

(a) reverse discrimination: Member States allowed to place more stringent requirements on domestic product, as opposed to imported ones

Question 229

Free Movement of Goods > Proportionate > (a) reverse discrimination: Member States allowed to place more stringent requirements on domestic product, as opposed to imported ones

Answer 229

Ex p Gallaher Ltd

Question 230

Free Movement of Goods > Proportionate > | Article 346-348

Answer 230

(b) allows MS to derogate from TFEU Articles 34 and 35 where taking measures in relation to national security

Question 231

Free Movement of Goods > Proportionate > | (b) allows MS to derogate from TFEU Articles 34 and 35 where taking measures in relation to national security

Answer 231

Article 346-348

Question 232

``` Free Movement of Persons > Primary Legislation > Article 45(1) TFEU ```

Answer 232

Free movement of workers shall be secured within the community

Question 233

Free Movement of Persons > Primary Legislation > | Free movement of workers shall be secured within the community

Answer 233

Article 45(1) TFEU

Question 234

``` Free Movement of Persons > Primary Legislation > Article 45(2) TFEU ```

Answer 234

Migrant workers must not suffer discrimination based on nationality as regards to their employment, renumeration and other conditions of work.

Question 235

Free Movement of Persons > Primary Legislation > Migrant workers must not suffer discrimination based on nationality as regards to their employment, remuneration and other conditions of work.

Answer 235

Article 45(2) TFEU

Question 236

Free Movement of Persons > 'worker' > | Lawrie-Blum v Land Baden-Württemburg

Answer 236

A worker is a person who: a) Performs services for another person b) Under the control of that other person, and c) Receives renumeration

Question 237

``` Free Movement of Persons > 'worker' > A worker is a person who: a) Performs services for another person b) Under the control of that other person, and c) Receives renumeration ```

Answer 237

Lawrie-Blum v Land Baden-Württemburg

Question 238

Free Movement of Persons > 'worker' > | Ex p Antonissen

Answer 238

A ‘workseeker’ is also a worker

Question 239

Free Movement of Persons > 'worker' > | A ‘workseeker’ is also a worker

Answer 239

Ex p Antonissen

Question 240

Free Movement of Persons > 'worker' > Directive 2004/38 Art.6(1)

Answer 240

All EU citizens have the right of residence for up to three months; (and)

Question 241

Free Movement of Persons > 'worker' > | All EU citizens have the right of residence for up to three months; (and)

Answer 241

Directive 2004/38 | Art.6(1)

Question 242

Free Movement of Persons > 'worker' > Directive 2004/38 Art.14(4)(b)

Answer 242

As long as EU citizen can provide evidence he’s looking for work and has a genuine chance of getting work, he/she may not be expelled

Question 243

Free Movement of Persons > 'worker' > As long as EU citizen can provide evidence he’s looking for work and has a genuine chance of getting work, he/she may not be expelled

Answer 243

Directive 2004/38 | Art.14(4)(b)

Question 244

Free Movement of Persons > 'worker' > | Levin v Staatssecretaries van Justitie

Answer 244

Part-time workers are also workers providing: a) Work = effective and genuine b) Not too marginal/small scale

Question 245

Free Movement of Persons > 'worker' > Part-time workers are also workers providing: a) Work = effective and genuine b) Not too marginal/small scale

Answer 245

Levin v Staatssecretaries van Justitie

Question 246

Free Movement of Persons > 'worker' > | Kempf v Staatssecretaries van Justitie

Answer 246

A part-time worker is still a worker, even if he supplements income with public benefits

Question 247

Free Movement of Persons > 'worker' > | A part-time worker is still a worker, even if he supplements income with public benefits

Answer 247

Kempf v Staatssecretaries van Justitie

Question 248

Free Movement of Persons > 'worker' > | Steymann v Staatssecretaries van Justitie

Answer 248

Unpaid workers for the religious community if (i) contributes towards community’s economic activities, AND (ii) receives benefits for this contribution, as a from of indirect wage

Question 249

Free Movement of Persons > 'worker' > Unpaid workers for the religious community if (i) contributes towards community’s economic activities, AND (ii) receives benefits for this contribution, as a from of indirect wage

Answer 249

Steymann v Staatssecretaries van Justitie

Question 250

Free Movement of Persons > 'worker' > | Bettray v Staatssecretaries van Justitie

Answer 250

A drug addict in rehab is NOT a worker – because work undertaken to benefit him, he is not carrying out economic activity

Question 251

Free Movement of Persons > 'worker' > A drug addict in rehab is NOT a worker – because work undertaken to benefit him, he is not carrying out economic activity

Answer 251

Bettray v Staatssecretaries van Justitie

Question 252

Free Movement of Persons > 'worker' > | Micheletti

Answer 252

Nationality is decided by the MS of which nationality is claimed.

Question 253

Free Movement of Persons > 'worker' > | Nationality is decided by the MS of which nationality is claimed.

Answer 253

Micheletti

Question 254

Free Movement of Persons > 'rights of entry and residence'

Answer 254

Art.45 is the main source of rights but Directive 2004/38 elaborates on these rights

Question 255

Free Movement of Persons >'rights of entry and residence' > | Directive 2004/38 Art.3(1)

Answer 255

Covers EU Citizens

Question 256

Free Movement of Persons >'rights of entry and residence' > | Covers EU Citizens

Answer 256

Directive 2004/38 Art.3(1)

Question 257

Free Movement of Persons >'rights of entry and residence' > | Directive 2004/38 Art.3(2)

Answer 257

Covers EU Citizens’ family members

Question 258

Free Movement of Persons > 'rights of entry and residence' > | Covers EU Citizens’ family members

Answer 258

Directive 2004/38 Art.3(2)

Question 259

Free Movement of Persons > 'family members' > | Art.2(2)

Answer 259

i. Spouse ii. Registered partner (IF host member state treats this as equivalent to marriage) iii. Direct descendants who are under 21 or dependants, plus those of spouse/partner; or iv. Dependant direct relatives in the ascending line, plus those of spouse/partner

Question 260

Free Movement of Persons > 'family members' > i. Spouse ii. Registered partner (IF host member state treats this as equivalent to marriage) iii. Direct descendants who are under 21 or dependants, plus those of spouse/partner; or iv. Dependant direct relatives in the ascending line, plus those of spouse/partner

Answer 260

Art.2(2)

Question 261

Free Movement of Persons > 'family members' > | Art.3(3)

Answer 261

Other individuals that have entry/residence rights i. Other family members (dependant etc.) and ii. Partner if EU citizen has “durable relationship” or other family members as per Art.3(2)

Question 262

Free Movement of Persons > 'family members' > Other individuals that have entry/residence rights i. Other family members (dependant etc.) and ii. Partner if EU citizen has “durable relationship” or other family members as per Art.3(2)

Answer 262

Art.3(3)

Question 263

Free Movement of Persons > Rights of Entry/Exit > | Art.4

Answer 263

Right of Exit

Question 264

Free Movement of Persons > Rights of Entry/Exit > | Right of Exit

Answer 264

Art.4

Question 265

Free Movement of Persons > Rights of Entry/Exit > | Art.5

Answer 265

Right of Entry (check for visa/passport requirements)

Question 266

Free Movement of Persons > Rights of Entry/Exit > | Right of Entry (check for visa/passport requirements)

Answer 266

Art.5

Question 267

Free Movement of Persons > Rights of Entry/Exit > | Surinder Singh

Answer 267

Returning migrant workers can bring non-EU spouses home with them

Question 268

Free Movement of Persons > Rights of Entry/Exit > | Returning migrant workers can bring non-EU spouses home with them

Answer 268

Surinder Singh

Question 269

Free Movement of Persons > Rights of Entry/Exit > Banger

Answer 269

Surinder Singh case (Returning migrant workers can bring non-EU spouses home with them) also applies to a partner whom the citizen has a “durable relationship” or other family members as per Art.3(2)

Question 270

Free Movement of Persons > Rights of Residence > | Art.6

Answer 270

(a) Right of residence for up to three months

Question 271

Free Movement of Persons > Rights of Residence > (a) Right of residence for up to three months

Answer 271

Art.6 Art.6(1) - Don’t have to be pursuing economic activity Art.6(2) - Includes non-EU family members

Question 272

Free Movement of Persons > Rights of Residence > | Art.7

Answer 272

(b) Right of residence for longer than three months if i. Workers/self-employed ii. Sufficient resources to support themselves and sickness insurance iii. Students who satisfy the above; and iv. Non-Union family members accompanying/joining a Union Citizen who satisfies one of the above (Art 7(2))

Question 273

Free Movement of Persons > Rights of Residence > | Art.16

Answer 273

(c) Permanent Residence after 5 years continuous legal residence

Question 274

Free Movement of Persons > Rights of Residence > | (c) Permanent Residence after 5 years continuous legal residence

Answer 274

Art.16

Question 275

Free Movement of Persons > Rights of Residence > | Art.17-18

Answer 275

(d) Prior to 5 years id incapacitated to work

Question 276

Free Movement of Persons > Rights of Residence > | (d) Prior to 5 years id incapacitated to work

Answer 276

Art.17-18

Question 277

Free Movement of Persons > Rights on death/departure > | Art.7 (Art.12)

Answer 277

(a) Citizen’s death/departure shall not affect the right of residence of their family members if they satisfy conditions under Art.7 (Art.12) (b) If family members are non-union citizens, must live in MS one year prior to death and they must satisfy conditions under Art.7 (Art.12)

Question 278

Free Movement of Persons > Rights on death/departure > where are these rights found?

Answer 278

Art.7 (Art.12) (a) Citizen’s death/departure shall not affect the right of residence of their family members if they satisfy conditions under Art.7 (Art.12) (b) If family members are non-union citizens, must live in MS one year prior to death and they must satisfy conditions under Art.7 (Art.12)

Question 279

Free Movement of Persons > Rights on death/departure > | Art.12(3)

Answer 279

Departure will NOT affect right of residence of children/parent who has custody, if children are at school long term there

Question 280

Free Movement of Persons > Rights on death/departure > Departure will NOT affect right of residence of children/parent who has custody, if children are at school long term there

Answer 280

Art.12(3)

Question 281

Free Movement of Persons > Rights on death/departure > | Ex p Sandhu

Answer 281

Where no children, departure back home to member state will mean non-EU spouse will loose right of residence in Host MS (but merely persuasive in other MS jurisdictions)

Question 282

Free Movement of Persons > Rights on death/departure > Where no children, departure back home to member state will mean non-EU spouse will loose right of residence in Host MS (but merely persuasive in other MS jurisdictions)

Answer 282

Ex p Sandhu

Question 283

Free Movement of Persons > Rights on Divorce/Annulment > | Art.13

Answer 283

Divorce shall not affect the right of residence for EU family members

Question 284

Free Movement of Persons > Rights on Divorce/Annulment > | Divorce shall not affect the right of residence for EU family members

Answer 284

Art.13

Question 285

Free Movement of Persons > Rights on Divorce/Annulment > | Art.13(2)

Answer 285

If non-EU family members, not affected provided: i. Marriage lasted three years, including one year in member state ii. Spouse/partner has custody of EU citizen’s children iii. Suffered difficult circumstances (e.g. abuse) or, iv. Partner still has right of access to a minor child (Still subject to Art.12)

Question 286

Free Movement of Persons > Rights on Divorce/Annulment > | Diatta v Land-Berlin

Answer 286

ECJ Held: You do not have to leave the Host MS if you are just separated, and there is no need for the spouse to live in the same accommodation as the worker

Question 287

Free Movement of Persons > Rights on Divorce/Annulment > ECJ Held: You do not have to leave the Host MS if you are just separated, and there is no need for the spouse to live in the same accommodation as the worker

Answer 287

Diatta v Land-Berlin

Question 288

Free Movement of Persons > Equal Treatment > Reg. 492/2011

Answer 288

Extends rights guaranteed by Art.45(2) (right not to be discriminated against on grounds of nationality in relation to employment)

Question 289

Free Movement of Persons > Equal Treatment > Art.1 Reg. 492/2011 >

Answer 289

The right to take up employment in a foreign Member State with the SAME PRIORITY as nationals of the MS

Question 290

Free Movement of Persons > Equal Treatment > Reg. 492/2011 > | The right to take up employment in a foreign Member State with the SAME PRIORITY as nationals of the MS

Answer 290

Art.1 Reg. 492/2011

Question 291

Free Movement of Persons > Equal Treatment > Art.23 Directive 2004/38

Answer 291

The right to take up employment in a foreign Member State with the SAME PRIORITY as nationals of the MS ^ extends to family members of an EU citizen with the right of residence

Question 292

Free Movement of Persons > Equal Treatment > Reg. 492/2011 < extends to family members of an EU citizen with the right of residence

Answer 292

Art.23 Directive 2004/38

Question 293

Free Movement of Persons > Equal Treatment > Reg. 492/2011 > Groener v Minister for Education (and Art.3)

Answer 293

Only conditions of linguistic knowledge may bar the regulatory provisions from applying – and these must be necessary and appropriate

Question 294

Free Movement of Persons > Equal Treatment > Reg. 492/2011 > Only conditions of linguistic knowledge may bar the regulatory provisions from applying – and these must be necessary and appropriate

Answer 294

Groener v Minister for Education (and Art.3)

Question 295

Free Movement of Persons > Equal Treatment > Art.5 Reg. 492/2011

Answer 295

Must receive the same benefits as nationals of the member state

Question 296

Free Movement of Persons > Equal Treatment > Must receive the same benefits as nationals of the member state

Answer 296

Art.5 Reg. 492/2011

Question 297

Free Movement of Persons > Equal Treatment > Art.6 Reg. 492/2011

Answer 297

Recruitment must not be subject to any discriminatory tests unless they are undertaken by all staff

Question 298

Free Movement of Persons > Equal Treatment > Recruitment must not be subject to any discriminatory tests unless they are undertaken by all staff

Answer 298

Art.6 Reg. 492/2011

Question 299

Free Movement of Persons > Equal Treatment > Art.7 Reg. 492/2011

Answer 299

Not to be discriminated against on the grounds of nationality in relation to any conditions of employment/renumeration/hours of work

Question 300

Free Movement of Persons > Equal Treatment > Reg. 492/2011 > Not to be discriminated against on the grounds of nationality in relation to any conditions of employment/renumeration/hours of work

Answer 300

Art.7 Reg. 492/2011

Question 301

Free Movement of Persons > Equal Treatment > Reg. 492/2011 > Art.24(1) Directive 2004/38

Answer 301

Not to be discriminated against on the grounds of nationality in relation to any conditions of employment/renumeration/hours of work ^ Extends to family members of an EU citizen with the right of residence

Question 302

Free Movement of Persons > Equal Treatment > Reg. 492/2011 < Extends this to family members of an EU citizen with the right of residence

Answer 302

Art.24(1) Directive 2004/38

Question 303

Free Movement of Persons > Equal Treatment > Reg. 492/2011 > To enforce

Answer 303

Go to MS equivalent of a employment tribunal; can use both Art.45(2) TFEU and Regulation 492/2011 because they are both directly applicable and have vertical and horizontal direct and indirect effect.

Question 304

Free Movement of Persons > Justifying infringing measures > | DA > Commission v France

Answer 304

Distinctly applicable or directly discriminatory measures i.e. laws that apply only to migrant workers, can only be justified by Treaty exceptions

Question 305

Free Movement of Persons > Justifying infringing measures > Distinctly applicable or directly discriminatory measures i.e. laws that apply only to migrant workers, can only be justified by Treaty exceptions

Answer 305

Commission v France

Question 306

Free Movement of Persons > Justifying infringing measures > DA > Art.45(3)

Answer 306

(Very narrowly interpreted) i. Public policy (most common) ii. Public security (difficult) or iii. Public health (under very specific conditions)

Question 307

Free Movement of Persons > Justifying infringing measures > DA > (Very narrowly interpreted) i. Public policy (most common) ii. Public security (difficult) or iii. Public health (under very specific conditions)

Answer 307

Art.45(3)

Question 308

Free Movement of Persons > Justifying infringing measures > DA > Art.27 Directive 2004/38

Answer 308

Confirms grounds for exclusion or deportation in Art.45(3)

Question 309

Free Movement of Persons > Justifying infringing measures > DA > Confirms grounds for exclusion or deportation in Art.45(3)

Answer 309

Art.27 Directive 2004/38

Question 310

Free Movement of Persons > Justifying infringing measures > | grounds for exclusion or deportation in Art.45(3)

Answer 310

Deportation/exclusion cannot be used for economic ends Art.27(1) Must be proportionate; and Must be based on the PERSONAL CONDUCT of the individual concerned

Question 311

Free Movement of Persons > Justifying infringing measures > DA > Personal Conduct

Answer 311

1. Must be a genuine, present and sufficiently serious threat 2. May be based on current association with groups, provided group activities are ‘socially harmful’

Question 312

Free Movement of Persons > Justifying infringing measures > Personal Conduct > May be based on current association with groups, provided group activities are ‘socially harmful’

Answer 312

Van Duyn v Home Office

Question 313

Free Movement of Persons > Justifying infringing measures > Personal Conduct > Van Duyn v Home Office

Answer 313

2. May be based on current association with groups, provided group activities are ‘socially harmful’

Question 314

Free Movement of Persons > Justifying infringing measures > | R v Bouchereau

Answer 314

Previous criminal convictions per se, are not sufficient; past convictions only relevant insofar as constitutes present threat (e.g. it shows propensity to reoffend

Question 315

Free Movement of Persons > Justifying infringing measures > | Previous criminal convictions per se, are not sufficient

Answer 315

R v Bouchereau

Question 316

Free Movement of Persons > Justifying infringing measures > | Adoui an Cornuaille v Belgian State

Answer 316

Cannot treat foreign nationals differently from own citizens – ECJ held that member states cannot refuse residence to non-national, where they have not adopted measures against their own nationals acting in the same way.

Question 317

Free Movement of Persons > Justifying infringing measures > | Cannot treat foreign nationals differently from own citizens

Answer 317

Adoui an Cornuaille v Belgian State

Question 318

Free Movement of Persons > Justifying infringing measures > DA > Art.45(2) TFEU

Answer 318

Rights DO NOT APPLY to employment in public service

Question 319

Free Movement of Persons > Justifying infringing measures > | Rights DO NOT APPLY to employment in public service

Answer 319

Art.45(2) TFEU

Question 320

Free Movement of Persons > Justifying infringing measures > | Commission v Belgium

Answer 320

BUT public service has been very narrowly defined as: 1. The exercise of powers conferred by Public; and 2. Safeguarding the general interests of the state

Question 321

Free Movement of Persons > Justifying infringing measures > BUT public service has been very narrowly defined as: 1. The exercise of powers conferred by Public; and 2. Safeguarding the general interests of the state

Answer 321

Commission v Belgium

Question 322

Free Movement of Persons > Justifying infringing measures > DA > URBSFA (ASBL) v Bosman

Answer 322

Art.45(3) TFEU justifications = unique – can be used by (accused) individuals as well as MS

Question 323

Free Movement of Persons > Justifying infringing measures > DA > Art.45(3) TFEU justifications = unique – can be used by (accused) individuals as well as MS

Answer 323

URBSFA (ASBL) v Bosman

Question 324

Free Movement of Persons > Justifying infringing measures > | Expulsion

Answer 324

For expulsion of EU citizens or their family members (whatever nationality) with permanent residence, must be SERIOUS grounds of public policy/security ONLY. For expulsion of EU citizens after residence of 10 years/minors, there must be IMPERATIVE grounds of public security.

Question 325

Free Movement of Persons > Justifying Indistinctly Applicable measures includes?

Answer 325

Including both: (i) indirect discrimination, i.e. laws that apply to all nationals but affect migrant workers differently or are harder for them to satisfy. (Allué) (ii) Non-discriminatory measures, i.e. laws that apply to all nationals, are equally hard to satisfy, but nevertheless inhibit free movement (Bosman)

Question 326

Free Movement of Persons > Justifying Indistinctly Applicable measures > Allué

Answer 326

(i) indirect discrimination, i.e. laws that apply to all nationals but affect migrant workers differently or are harder for them to satisfy.

Question 327

Free Movement of Persons > Justifying Indistinctly Applicable measures > (i) indirect discrimination, i.e. laws that apply to all nationals but affect migrant workers differently or are harder for them to satisfy.

Answer 327

Allué

Question 328

Free Movement of Persons > Justifying Indistinctly Applicable measures > Bosman

Answer 328

(ii) Non-discriminatory measures, i.e. laws that apply to all nationals, are equally hard to satisfy, but nevertheless inhibit free movement

Question 329

Free Movement of Persons > Justifying Indistinctly Applicable measures > (ii) Non-discriminatory measures, i.e. laws that apply to all nationals, are equally hard to satisfy, but nevertheless inhibit free movement

Answer 329

Bosman

Question 330

Free Movement of Persons > Justifying Indistinctly Applicable measures using?

Answer 330

Art.45(3) or (4) Treaty Exceptions | Cassis de Dijon

Question 331

Free Movement of Persons > Justifying Indistinctly Applicable measures > Cassis de Dijon

Answer 331

Approach as interpreted by Bosman – measures can be justified if they ‘pursue a legitimate aim compatible with the Treaty and justified by pressing reasons of public interest’

Question 332

Free Movement of Persons > Justifying Indistinctly Applicable measures > Approach as interpreted by Bosman – measures can be justified if they ‘pursue a legitimate aim compatible with the Treaty and justified by pressing reasons of public interest’

Answer 332

Cassis de Dijon

Question 333

Free Movement of Persons > Justifying Indistinctly Applicable measures > Allué

Answer 333

Just like Cassis, both the ends and means of measures should be necessary

Question 334

Free Movement of Persons > Justifying Indistinctly Applicable measures > Just like Cassis, both the ends and means of measures should be necessary

Answer 334

Allué

Question 335

Free Movement of Persons > Proportionate > Bosman

Answer 335

Application of rules must: (a) ensure achievement of aim in question; and (b) not go beyond what is necessary for that purpose

Question 336

Free Movement of Persons > Proportionate > Application of rules must: (a) ensure achievement of aim in question; and (b) not go beyond what is necessary for that purpose

Answer 336

Bosman

Question 337

Freedom of Establishment and Provision of Services > 1. Does the Services Directive 2006/123 apply? > Art.2(1)

Answer 337

Scope

Question 338

Freedom of Establishment and Provision of Services > 1. Does the Services Directive 2006/123 apply? > Scope

Answer 338

Art.2(1) Services Directive 2006/123

Question 339

Freedom of Establishment and Provision of Services > 1. Does the Services Directive 2006/123 apply? > Art.4(1)

Answer 339

Definition of business services for the purpose of directive

Question 340

Freedom of Establishment and Provision of Services > 1. Does the Services Directive 2006/123 apply? > Definition of business services for the purpose of directive

Answer 340

Art.4(1) Services Directive 2006/123

Question 341

Freedom of Establishment and Provision of Services > 1. Does the Services Directive 2006/123 apply? > Exclusions

Answer 341

Check for exclusions in Art.2(2)and(3)

Question 342

Freedom of Establishment and Provision of Services > 1. Does the Services Directive 2006/123 apply? > Commission Handbook

Answer 342

Notes that manufacturing is not a service activity, but ancillary services such as retail, installation and maintenance are.

Question 343

Freedom of Establishment and Provision of Services > 1. Does the Services Directive 2006/123 apply? > Notes that manufacturing is not a service activity, but ancillary services such as retail, installation and maintenance are.

Answer 343

Commission Handbook

Question 344

Freedom of Establishment and Provision of Services > 2. Are free movement rights engaged? > Art.49 TFEU

Answer 344

Business ‘established’/ | establishing’ in another MS

Question 345

Freedom of Establishment and Provision of Services > 2. Are free movement rights engaged? > Business ‘established’/ establishing’ in another MS

Answer 345

Art.49 TFEU

Question 346

Freedom of Establishment and Provision of Services > 2. Are free movement rights engaged? > Art.56 TFEU

Answer 346

Business providing ‘Service’ in another MS

Question 347

Freedom of Establishment and Provision of Services > 2. Are free movement rights engaged? > Business providing ‘Service’ in another MS

Answer 347

Art.56 TFEU

Question 348

Freedom of Establishment and Provision of Services > 2. Are free movement rights engaged? > Gebhard

Answer 348

Consider how ‘stable and continuous’ the activity is (it’s duration, regularity, continuity) The more stable, the more likely the activity is to be an issue of establishment.

Question 349

Freedom of Establishment and Provision of Services > 2. Are free movement rights engaged? > Consider how ‘stable and continuous’ the activity is.

Answer 349

Gebhard

Question 350

Freedom of Establishment and Provision of Services > 3. Is the measure a RESTRICTION under the Services Directive 2006/123 > Establishment (Art.49) > Art.14

Answer 350

Prohibited Requirements can never be justified

Question 351

Freedom of Establishment and Provision of Services > 3. Is the measure a RESTRICTION under the Services Directive 2006/123 > Establishment (Art.49) > Art.9

Answer 351

Authorisation Schemes

Question 352

Freedom of Establishment and Provision of Services > 3. Is the measure a RESTRICTION under the Services Directive 2006/123 > Establishment (Art.49) > Art.15

Answer 352

Requirements to be evaluated, may be allowed if: • Non-discriminatory • Necessary (justified reason in public interest); and • Proportionate

Question 353

Freedom of Establishment and Provision of Services > 3. Is the measure a RESTRICTION under the Services Directive 2006/123 > Services (Art.56) > Art.16(2)

Answer 353

Prohibited requirements can never be justified

Question 354

Establishment and Provision of Services > 3. Is the measure a RESTRICTION under the Services Directive 2006/123 > Services (Art.56) > Art.16(1)

Answer 354

Any other restriction may be allowed if: • Non-discriminatory • Necessary (justified reason in public interest); and • Proportionate

Question 355

Establishment and Provision of Services > Gebhard

Answer 355

The distinction between establishment and providing services is how ‘stable and continuous’ the activity is (duration/periodicity/continuity and regularity). The more stable and continuous, the more likely the activity is to be an issue of establishment.

Question 356

Establishment and Provision of Services > | Activity relates to freedom of ESTABLISHMENT – Art.49 TFEU

Answer 356

a) Prohibits restrictions on freedom of establishment b) Includes the right to establish oneself in the host state under the same conditions as apply to host state nationals c) Can be relied upon in home MS d) Applies to: i. Individuals ii. Companies (Art.54) and iii. Businesses providing temporary services (Art.56) e) Has direct effect

Question 357

Establishment and Provision of Services > Art.49 (Establishment) > Marks and Spencer Plc v Halsey

Answer 357

c) Can be relied upon in home MS

Question 358

Establishment and Provision of Services > Art.49 (Establishment) > c) Can be relied upon in home MS

Answer 358

Marks and Spencer Plc v Halsey

Question 359

Establishment and Provision of Services > Art.49 (Establishment) > Reyners v Belgium

Answer 359

e) Has direct effect

Question 360

Establishment and Provision of Services > Art.49 (Establishment) > e) Has direct effect

Answer 360

Reyners v Belgium

Question 361

Establishment and Provision of Services > 2. Activity Relates to freedom of provision of SERVICES – Art.56 TFEU

Answer 361

a) Prohibits restrictions on the freedom to provide services b) Includes rights for business/individuals to provide services on a temporary basis in a host state (under the same conditions as apply to nationals of that MS, if provided for renumeration. c) Can be relied upon when based in home MS d) Has Direct Effect e) Includes the right to use ones own workforce (from outside EU) f) Receiving Services i. Individuals have the right to receive medical and tourism services in another member state ii. If a patient could not be treated in his own MS without ‘undue delay’, he could seek treatment in another MS at the expense of the insurance scheme (or home MS)

Question 362

Establishment and Provision of Services > Art.56 TFEU (services) > Art.57

Answer 362

b) Includes rights for business/individuals to provide services on a temporary basis in a host state (under the same conditions as apply to nationals of that MS, if provided for renumeration.

Question 363

Establishment and Provision of Services > Art.56 TFEU (services) > b) Includes rights for business/individuals to provide services on a temporary basis in a host state (under the same conditions as apply to nationals of that MS, if provided for renumeration.

Answer 363

Art.57

Question 364

Establishment and Provision of Services > Art.56 TFEU (services) > Alpine Investments BV

Answer 364

c) Can be relied upon when based in home MS

Question 365

Establishment and Provision of Services > Art.56 TFEU (services) > c) Can be relied upon when based in home MS

Answer 365

Alpine Investments BV

Question 366

Establishment and Provision of Services > Art.56 TFEU (services) > d) Has Direct Effect

Answer 366

Van Binsbergen

Question 367

Establishment and Provision of Services > Art.56 TFEU (services) > Van Binsbergen

Answer 367

d) Has Direct Effect

Question 368

Establishment and Provision of Services > Art.56 TFEU (services) > VanderElst

Answer 368

e) Includes the right to use ones own workforce (from outside EU)

Question 369

Establishment and Provision of Services > Art.56 TFEU (services) > e) Includes the right to use ones own workforce (from outside EU)

Answer 369

VanderElst

Question 370

Establishment and Provision of Services > Art.56 TFEU (services) > Luisi and Carbonne

Answer 370

f) Receiving Services | i. Individuals have the right to receive medical and tourism services in another member state

Question 371

Establishment and Provision of Services > Art.56 TFEU (services) > f) Receiving Services i. Individuals have the right to receive medical and tourism services in another member state

Answer 371

Luisi and Carbonne

Question 372

Establishment and Provision of Services > Art.56 TFEU (services) > R (on the application of Watts) v Bedford Primary Care Trust

Answer 372

ii. If a patient could not be treated in his own MS without ‘undue delay’, he could seek treatment in another MS at the expense of the insurance scheme (or home MS)

Question 373

Establishment and Provision of Services > Art.56 TFEU (services) > ii. If a patient could not be treated in his own MS without ‘undue delay’, he could seek treatment in another MS at the expense of the insurance scheme (or home MS)

Answer 373

R (on the application of Watts) v Bedford Primary Care Trust

Question 374

Establishment and Provision of Services > Restriction > define (Gebhard)

Answer 374

‘national measures liable to hinder or make less attractive, the exercise of fundamental freedoms guaranteed by the Treaty.’

Question 375

Establishment and Provision of Services > Restriction > ‘national measures liable to hinder or make less attractive, the exercise of fundamental freedoms guaranteed by the Treaty.’

Answer 375

Gebhard definition of RESTRICTION

Question 376

Establishment and Provision of Services > Type of Restrictions

Answer 376

Article 49 (establishment) and 56 (services) each prohibits three types of restrictions: direct discrimination, indirect discrimination and non-discriminatory restrictions

Question 377

Establishment and Provision of Services > Type of Restrictions > Services or Establishment > Direct Discrimination

Answer 377

Establishment: Distinctly applicable measures (Reyners v Belgium) Services: Distinctly applicable measures (Reyners v Belgium)

Question 378

Establishment and Provision of Services > Type of Restrictions > ESTABLISHMENT – Art.49 TFEU > Indirect Discrimination

Answer 378

Indistinctly Applicable measures (Commission v Italy)

Question 379

Establishment and Provision of Services > Type of Restrictions > ESTABLISHMENT – Art.49 TFEU > Non-Discriminatory

Answer 379

Indistinctly Applicable measures, equally hard to satisfy, that nevertheless inhibit free movement (Sodemare SA)

Question 380

Establishment and Provision of Services > Type of Restrictions > SERVICES – Art.56 TFEU > Indirect Discrimination

Answer 380

Indistinctly Applicable measures (Van Binsbergen)

Question 381

Establishment and Provision of Services > Type of Restrictions > SERVICES – Art.56 TFEU > Non-Discriminatory

Answer 381

Indistinctly Applicable measures, equally hard to satisfy, that nevertheless inhibit free movement. (Säger v Dennemayer & Co Ltd.)

Question 382

Establishment and Provision of Services > Type of Restrictions > Article 24 of Directive 2004/38

Answer 382

APPLIES TO BOTH FREEDOM OF ESTABLISHMENT AND PROVISION OF SERVICES All EU Citizens residing in a host Member State shall enjoy equal treatment with the nationals of that MS

Question 383

Establishment and Provision of Services > Type of Restrictions >

Answer 383

Can only be justified by Treaty Exceptions

Question 384

Establishment and Provision of Services > Can the Restriction be Justified? > Distinctly Applicable Measures > Art.52

Answer 384

(a) Measures can be justified on the grounds of: i. public policy – there must be a genuine and serious threat to a fundamental interest of society ii. public security iii. Public Health

Question 385

Establishment and Provision of Services > Can the Restriction be Justified? > Distinctly Applicable Measures > i. public policy ii. public security iii. Public Health

Answer 385

Art.52

Question 386

Establishment and Provision of Services > Can the Restriction be Justified? > Distinctly Applicable Measures > Omega-Spielhallen

Answer 386

i. public policy – there must be a genuine and serious threat to a fundamental interest of society

Question 387

Establishment and Provision of Services > Can the Restriction be Justified? > Distinctly Applicable Measures > i. public policy – there must be a genuine and serious threat to a fundamental interest of society

Answer 387

Omega-Spielhallen

Question 388

Establishment and Provision of Services > Can the Restriction be Justified? > Distinctly Applicable Measures > Art.51

Answer 388

Measures may be justified as being activities connected to the EXERCISE OF OFFICIAL AUTHORITY by the State.

Question 389

Establishment and Provision of Services > Can the Restriction be Justified? > Distinctly Applicable Measures > Measures may be justified as being activities connected to the EXERCISE OF OFFICIAL AUTHORITY by the State.

Answer 389

Art.51

Question 390

Establishment and Provision of Services > Can the Restriction be Justified? > Distinctly Applicable Measures > Reyners v Belgium

Answer 390

What constitutes the exercise of official authority is construed narrowly.

Question 391

Establishment and Provision of Services > Can the Restriction be Justified? > Distinctly Applicable Measures > What constitutes the exercise of official authority is construed narrowly.

Answer 391

Reyners v Belgium

Question 392

Establishment and Provision of Services > Can the Restriction be Justified? > Indistinctly Applicable Measures includes?

Answer 392

Including indirect discrimination and non-discriminatory restrictions

Question 393

Establishment and Provision of Services > Can the Restriction be Justified? > Indistinctly Applicable Measures may be justified using?

Answer 393

(a) TFEU restrictions Art.52 and 51 | (b) the Cassis de Dijon approach

Question 394

Establishment and Provision of Services > Can the Restriction be Justified? > Cassis and freedom of Establishment

Answer 394

Cassis de Dijon as interpreted by Gebhard – the measure must be: • non-discriminatory; • justified by ‘imperative requirements in the general interest’ and • suitable for obtaining the objective

Question 395

Establishment and Provision of Services > Can the Restriction be Justified? > Cassis and Freedom of provision of Services

Answer 395

Cassis de Dijon as interpreted by Alpine Investments – the measure must be: • non-discriminatory; • justified by ‘imperative requirements in the general interest’ and • suitable for obtaining the objective

Question 396

Competition Law – Article 102 TFEU > Sate that...

Answer 396

The claimant can consider a claim under Art 102 TFEU which prohibits the ABUSE of a DOMINANT POSITION that may AFFECT TRADE BETWEEN MEMBER STATES.

Question 397

Competition Law > 101 or 102 TFEU? | prohibits the ABUSE of a DOMINANT POSITION that may AFFECT TRADE BETWEEN MEMBER STATES.

Answer 397

Art.102 TFEU

Question 398

Competition Law > 102 > Dominance > | United Brands Commission

Answer 398

‘A position of economic strength, which allows undertaking to prevent effective competition in the relevant market.’

Question 399

Competition Law > 102 > Dominance > | ‘A position of economic strength, which allows undertaking to prevent effective competition in the relevant market.’

Answer 399

United Brands Commission

Question 400

Competition Law > 102 > Dominance Test

Answer 400

‘Does the undertaking’s economic strength allow it to behave independently of both its customers and competitors?’

Question 401

Competition Law > 102 > Market Share > RPM

Answer 401

Relevant Product Market

Question 402

Competition Law > 102 > Market Share > RGM

Answer 402

Relevant Geographic Market

Question 403

Competition Law > 102 > Market Share > RPM > | European Commission Notice Definition

Answer 403

‘all those products/services regarded as interchangeable by the consumer’

Question 404

Competition Law > 102 > Market Share > RPM > | ‘all those products/services regarded as interchangeable by the consumer’

Answer 404

European Commission Notice Definition

Question 405

Competition Law > 102 > Market Share > RPM > | United Brands Test One

Answer 405

TEST ONE: DEMAND SUBSTITUTABILITY Would a small but lasting increase in the price of product A, cause product A’s customers to switch to a readily available substitute?

Question 406

Competition Law > 102 > Market Share > RPM > | TEST ONE: DEMAND SUBSTITUTABILITY

Answer 406

United Brands Test One

Question 407

Competition Law > 102 > Market Share > RPM > | Continental Can v Commission

Answer 407

TEST TWO: SUPPLY SUITABILITY Could potential competitors switch to producing the same products as the undertaking in question without incurring significant additional costs or risks? According to the ECJ, this test is normally applied with a time frame of 1 year in mind.

Question 408

Competition Law > 102 > Market Share > RPM > | TEST TWO: SUPPLY SUITABILITY

Answer 408

Continental Can v Commission Test Two

Question 409

Competition Law > 102 > Market Share > RPM > | Hugin

Answer 409

RPM can be narrow

Question 410

Competition Law > 102 > Market Share > RPM > | RPM can be narrow

Answer 410

Hugin

Question 411

Competition Law > 102 > Market Share > RPM > Two Tests

Answer 411

TEST ONE: DEMAND SUBSTITUTABILITY TEST TWO: SUPPLY SUBSTITUTABILITY

Question 412

Competition Law > 102 > Market Share > RGM > | European Commission Notice Definition

Answer 412

‘The area of the common market where the conditions of competition are homogenous’

Question 413

Competition Law > 102 > Market Share > RGM > | ‘The area of the common market where the conditions of competition are homogenous’

Answer 413

European Commission Notice Definition

Question 414

Competition Law > 102 > Market Share > RGM > | Hilti AG v Commission

Answer 414

Start by assuming the RGM is the whole of the EU

Question 415

Competition Law > 102 > Market Share > RGM > | Start by assuming the RGM is the whole of the EU

Answer 415

Hilti AG v Commission

Question 416

Competition Law > 102 > Market Share > RGM > | United Brands

Answer 416

Then, work inwards if any of the following factors apply: 1. Transportation costs 2. Product Characteristics 3. Shipment Patterns 4. Location of plants (identical products made at a wide range of plants implies small geographic markets)

Question 417

Competition Law > 102 > Market Share > RGM > | Factors for narrowing RGM

Answer 417

United Brands: 1. Transportation costs 2. Product Characteristics 3. Shipment Patterns 4. Location of plants (identical products made at a wide range of plants implies small geographic markets)

Question 418

Competition Law > 102 > Market Share > RGM > | Sea Containers/Stena Sealink

Answer 418

Remember that although RGM must constitute a SUBSTANTIAL part of the common market, it may geographically be very small, as long as it is substantial economically.

Question 419

Competition Law > 102 > Market Share > RGM > Remember that although RGM must constitute a SUBSTANTIAL part of the common market, it may geographically be very small, as long as it is substantial economically.

Answer 419

Sea Containers/Stena Sealink

Question 420

Competition Law > 102 > Market Share > Dominant Position? > | Hoffman La Roche

Answer 420

Save in exceptional circumstances, very large market shares, will be in themselves, EVIDENCE of a dominant position.

Question 421

Competition Law > 102 > Market Share > Dominant Position? > | Save in exceptional circumstances, very large market shares, will be in themselves, EVIDENCE of a dominant position.

Answer 421

Hoffman La Roche

Question 422

Competition Law > 102 > Market Share > Dominant Position? > | AKZO Chemie v Commission

Answer 422

Shares of 50% or more raise a REBUTTABLE presumption of dominance

Question 423

Competition Law > 102 > Market Share > Dominant Position? > | Shares of 50% or more raise a REBUTTABLE presumption of dominance

Answer 423

AKZO Chemie v Commission

Question 424

Competition Law > 102 > Market Share > Dominant Position? > 35%?

Answer 424

Shares below 35% are rarely dominant

Question 425

Competition Law > 102 > Market Share > Dominant Position? > | United Brands

Answer 425

There is more likely to be dominance if the undertaking has been in a strong position over a long period of time.

Question 426

Competition Law > 102 > Market Share > Dominant Position? > | There is more likely to be dominance if the undertaking has been in a strong position over a long period of time.

Answer 426

United Brands

Question 427

Competition Law > 102 > Market Share > Dominant Position? > | Italian Flat Glass

Answer 427

Court of First Instance confirmed that several companies, if united by economic links, can hold a dominant position together

Question 428

Competition Law > 102 > Market Share > Dominant Position? > Court of First Instance confirmed that several companies, if united by economic links, can hold a dominant position together

Answer 428

Italian Flat Glass

Question 429

Competition Law > 102 > Abuse of Dominance > | Hoffman La Roche

Answer 429

• The presence of a dominant firm weakens the degree of competition, hindering the maintenance or growth of that competition.

Question 430

Competition Law > 102 > Abuse of Dominance > • The presence of a dominant firm weakens the degree of competition, hindering the maintenance or growth of that competition.

Answer 430

Hoffman La Roche

Question 431

Competition Law > 102 > Abuse of Dominance > | Definition

Answer 431

‘An abuse occurs when a dominant firm in a market engages in conduct that is intended to exploit its dominant position’

Question 432

Competition Law > 102 > Abuse of Dominance > | Michelin v Commission

Answer 432

A dominant firm has a special responsibility not to allow its conduct to impair distorted competition on the common market

Question 433

Competition Law > 102 > Abuse of Dominance > A dominant firm has a special responsibility not to allow its conduct to impair distorted competition on the common market

Answer 433

Michelin v Commission

Question 434

Competition Law > 102 > Abuse of Dominance > Two Types of Abuse

Answer 434

1. Exploitative Practices – actions that exploit persons dependant on undertaking (i.e. unfair on buyers of the product 2. Anti-Competitive Practices – actions which impede competition by excluding competition (i.e. unfair on other sellers of the product.)

Question 435

Competition Law > 102 > Abuse of Dominance > Unfair Pricing > United Brands

Answer 435

Excessively High Pricing – would allow undertaking to reap excessive profits (difficult to prove)

Question 436

Competition Law > 102 > Abuse of Dominance > Unfair Pricing > Excessively High Pricing – would allow undertaking to reap excessive profits (difficult to prove)

Answer 436

United Brands

Question 437

Competition Law > 102 > Abuse of Dominance > Unfair Pricing > AKZO Chemie v Commission

Answer 437

Excessively low pricing – predatory pricing, strategy to drive out competitors

Question 438

Competition Law > 102 > Abuse of Dominance > Unfair Pricing > Excessively low pricing – predatory pricing, strategy to drive out competitors

Answer 438

AKZO Chemie v Commission

Question 439

Competition Law > 102 > Abuse of Dominance > Refusal to Supply > United brands

Answer 439

Charging different prices to distributors in different Member States for an identical product

Question 440

Competition Law > 102 > Abuse of Dominance > Refusal to Supply > Charging different prices to distributors in different Member States for an identical product

Answer 440

United brands

Question 441

Competition Law > 102 > Abuse of Dominance > Refusal to Supply > Hugin

Answer 441

Refusal to supply distributor in order eliminate them from the market

Question 442

Competition Law > 102 > Abuse of Dominance > Refusal to Supply > Refusal to supply distributor in order eliminate them from the market

Answer 442

Hugin

Question 443

Competition Law > 102 > Abuse of Dominance > Price Discrimination > United Brands

Answer 443

Charging different prices to distributors in different Member States for an identical product

Question 444

Competition Law > 102 > Abuse of Dominance > Price Discrimination > Charging different prices to distributors in different Member States for an identical product

Answer 444

United Brands

Question 445

Competition Law > 102 > Abuse of Dominance > Tying (Bundling) > Hilti AG

Answer 445

Requiring buyer to purchase a second, distinct product when purchasing a first product.

Question 446

Competition Law > 102 > Abuse of Dominance > Tying (Bundling) > Requiring buyer to purchase a second, distinct product when purchasing a first product.

Answer 446

Hilti AG

Question 447

Competition Law > 102 > Abuse of Dominance > Abusive Discount > Where discounts on purchases are based on customers purchasing all/most of their needs from the dominant undertaking (rather than merely purchasing a certain volume), without corresponding economic efficiencies

Answer 447

Hoffman-La Roche

Question 448

Competition Law > 102 > Abuse of Dominance > Abusive Discount > Hoffman-La Roche

Answer 448

Where discounts on purchases are based on customers purchasing all/most of their needs from the dominant undertaking (rather than merely purchasing a certain volume), without corresponding economic efficiencies

Question 449

Competition Law > 102 > Abuse of Dominance > Abusive Discount > Intel v Commission

Answer 449

If the dominant undertaking is able to show evidence that the discounts are not capable of affecting competition, it is necessary to carry out an investigation into the effect on competition.

Question 450

Competition Law > 102 > Abuse of Dominance > Abusive Discount > If the dominant undertaking is able to show evidence that the discounts are not capable of affecting competition, it is necessary to carry out an investigation into the effect on competition.

Answer 450

Intel v Commission

Question 451

Competition Law > 102 > Abuse of Dominance > Effecting Trade > Commercial Solvents v Commission

Answer 451

Definition: the abuse will be deemed to have affected trade wherever the conduct brings about ‘an alteration in the structure of competition in the common market’

Question 452

Competition Law > 102 > Abuse of Dominance > Effecting Trade > Definition: the abuse will be deemed to have affected trade wherever the conduct brings about ‘an alteration in the structure of competition in the common market’

Answer 452

Commercial Solvents v Commission

Question 453

Competition Law > 102 > Abuse of Dominance > Effecting Trade > Art.102

Answer 453

The Abuse need only be capable of affecting trade between MS in order for the Commission to have jurisdiction over the practice.

Question 454

Competition Law > 102 > Abuse of Dominance > Effecting Trade > The Abuse need only be capable of affecting trade between MS in order for the Commission to have jurisdiction over the practice.

Answer 454

Art.102

Question 455

Competition Law > 102 > | Effect of abuse of dominant position

Answer 455

No possibility of exemption

Question 456

Competition Law > 102 > | No possibility of exemption

Answer 456

Effect of abuse of dominant position

Question 457

Competition Law > 102 > | BRT v SABAM

Answer 457

The claimant may bring a claim in the national court of relevant member state, as Art.102 has vertical and horizontal direct effect.

Question 458

Competition Law > 102 > The claimant may bring a claim in the national court of relevant member state, as Art.102 has vertical and horizontal direct effect.

Answer 458

BRT v SABAM

Question 459

Competition Law – Article 101 TFEU > State..

Answer 459

‘Article 101 TFEU prohibits business agreements that may affect trade between member states and have as their object or effect, the prevention, restriction or distortion of competition in the common market.’

Question 460

Competition Law > 101 or 102? > prohibits business agreements that may affect trade between member states and have as their object or effect, the prevention, restriction or distortion of competition in the common market

Answer 460

Art.101 TFEU

Question 461

Competition Law > 101 > Agreement > | Included within the scope of Article 101 are?

Answer 461

1. Both Horizontal and Vertical Agreements 2. Oral/Gentleman’s agreements 3. Decisions by associations of undertakings/trade associations 4. Regulatory rules promulgated by professional bodies, unless they are reasonable 5. Concerted Practices

Question 462

Competition Law > 101 > Agreement > | Consten and Grundig

Answer 462

1. Both Horizontal and Vertical Agreements

Question 463

Competition Law > 101 > Agreement > | 1. Both Horizontal and Vertical Agreements

Answer 463

Consten and Grundig

Question 464

Competition Law > 101 > Agreement > | 2. Oral/Gentleman’s agreements

Answer 464

ACF Chemiefarma v Commission (Quinine Cartel)

Question 465

Competition Law > 101 > Agreement > | ACF Chemiefarma v Commission (Quinine Cartel)

Answer 465

2. Oral/Gentleman’s agreements

Question 466

Competition Law > 101 > Agreement > | IAZ NV International Belgium v Commission

Answer 466

3. Decisions by associations of undertakings/trade associations (to fall within Art.81(1), these need not be legally binding)

Question 467

Competition Law > 101 > Agreement > 3. Decisions by associations of undertakings/trade associations (to fall within Art.81(1), these need not be legally binding)

Answer 467

IAZ NV International Belgium v Commission

Question 468

Competition Law > 101 > Agreement > | Wouters v Algemene

Answer 468

4. Regulatory rules promulgated by professional bodies, unless they are reasonable

Question 469

Competition Law > 101 > Agreement > | 4. Regulatory rules promulgated by professional bodies, unless they are reasonable

Answer 469

Wouters v Algemene

Question 470

Competition Law > 101 > Agreement > | ‘Dyestuffs’

Answer 470

5. Concerted Practices

Question 471

Competition Law > 101 > Agreement > | 5. Concerted Practices

Answer 471

‘Dyestuffs’

Question 472

Competition Law > 101 > Agreement > | Define Concerted Practices

Answer 472

Dyestuffs: coordination between businesses which falls short of an informal agreement but, ‘knowingly substitutes practical cooperation between them for risks of competition ‘

Question 473

Competition Law > 101 > Agreement > | Presumptions of concerted practices arise when?

Answer 473

(i) Contact between parties and subsequent similar practice (ii) parallel conduct (simultaneous practices) provided that conditions are different that those normally expected BUT (rebutted by Oligopoly)

Question 474

Competition Law > 101 > Agreement > | ‘Woopulp’

Answer 474

Concerted Practices: This presumption is rebutted if the market is an oligopoly, where coordinated pricing strategies may instead be explained by a transparent price structure

Question 475

Competition Law > 101 > Agreement > This presumption is rebutted if the market is an oligopoly, where coordinated pricing strategies may instead be explained by a transparent price structure

Answer 475

‘Woopulp’

Question 476

Competition Law > 101 > Undertaking

Answer 476

very broadly defined as, ‘any legal or natural persons carrying out economic or commercial activities.’

Question 477

Competition Law > 101 > Object/Effect > | Polypropylene ; Société Technique Miniére(STM)

Answer 477

Either object OR effect will be sufficient

Question 478

Competition Law > 101 > Object/Effect > | Either object OR effect will be sufficient

Answer 478

Polypropylene ; Société Technique Miniére(STM)

Question 479

Competition Law > 101 > Object/Effect > | Polypropylene

Answer 479

If the anti-competitive object is established there is no need to consider the effect of the agreement.

Question 480

Competition Law > 101 > Object/Effect > | If the anti-competitive object is established there is no need to consider the effect of the agreement.

Answer 480

Polypropylene

Question 481

Competition Law > 101 > Anti-Competitive Object > | Consten and Grundig

Answer 481

Objective test; i.e. it concerns the term of the agreement, not the subjective intentions of the parties. A ‘distortion’ of competition is enough to trigger Art.101(1)

Question 482

Competition Law > 101 > Anti-Competitive Object > Objective test; i.e. it concerns the term of the agreement, not the subjective intentions of the parties. A ‘distortion’ of competition is enough to trigger Art.101(1)

Answer 482

Consten and Grundig

Question 483

Competition Law > 101 > Anti-Competitive Object > | 101(1)(a)

Answer 483

Hardcore restriction: price-fixing between competitors

Question 484

Competition Law > 101 > Anti-Competitive Object > | Hardcore restriction: price-fixing between competitors

Answer 484

101(1)(a)

Question 485

Competition Law > 101 > Anti-Competitive Object > | 101(1)(c)

Answer 485

Hardcore restriction: partitioning the EU market by preventing parallel trade

Question 486

Competition Law > 101 > Anti-Competitive Object > | Hardcore restriction: partitioning the EU market by preventing parallel trade

Answer 486

101(1)(c)

Question 487

Competition Law > 101 > Anti-Competitive Effect > | Société Technique Miniére(STM) factors

Answer 487

Consider and apply the STM factors: • Nature and quantity of products concerned • Position and size of parties in the market (high market share) • How isolated was the agreement? A network of similar agreements is more likely to distort competition than an isolated one. (Brasserie de Haecht v Wilkin) • Severity of the clauses • Opportunities allowed for other competitors in the same products by way of parallel re-exportation and importation

Question 488

Competition Law > 101 > Anti-Competitive Effect > | Brasserie de Haecht v Wilkin

Answer 488

A network of similar agreements is more likely to distort competition than an isolated one.

Question 489

Competition Law > 101 > Anti-Competitive Effect > | A network of similar agreements is more likely to distort competition than an isolated one.

Answer 489

Brasserie de Haecht v Wilkin

Question 490

Competition Law > 101 > Agreement affect trade > | Apply STM test

Answer 490

Is it possible to FORESEE WITH A SUFFICIENT DEGREE OF PROBABILITY that the agreement may have influence, direct or indirect, actual or potential, on THE PATTERN OF TRADE between MS?

Question 491

Competition Law > 101 > Agreement affect trade > | Cooperative Stremsel-en Kleurselfabrik v Commission

Answer 491

Agreements between parties based in the same member state

Question 492

Competition Law > 101 > Agreement affect trade > | Agreements between parties based in the same member state

Answer 492

Cooperative Stremsel-en Kleurselfabrik v Commission

Question 493

Competition Law > 101 > Agreement affect trade > | Woodpulp

Answer 493

Agreements between parties based OUTSIDE the EU, as long as agreements are implemented inside the EU

Question 494

Competition Law > 101 > Agreement affect trade > | Agreements between parties based OUTSIDE the EU, as long as agreements are implemented inside the EU

Answer 494

Woodpulp

Question 495

Competition Law > 101 > Agreement affect trade > | Consten and Grundig

Answer 495

Consider Any POTENTIAL (as well as actual) effect on trade

Question 496

Competition Law > 101 > Agreement affect trade > | Consider Any POTENTIAL (as well as actual) effect on trade

Answer 496

Consten and Grundig

Question 497

Competition Law > 101 > Agreement affect trade > | Brasserie de Haecht v Wilkin

Answer 497

Consider How the agreement looks in light of any network agreements that it forms part of – even if individually it does not appear to have on effect on trade, a cumulative effect could mean that it does.

Question 498

Competition Law > 101 > Agreement affect trade > Consider How the agreement looks in light of any network agreements that it forms part of – even if individually it does not appear to have on effect on trade, a cumulative effect could mean that it does.

Answer 498

Brasserie de Haecht v Wilkin

Question 499

Competition Law > 101 > Agreement (positive) affect trade > | Consten and Grundig

Answer 499

Whether the agreement increases trade between member states, as this would still satisfies that it AFFECTS trade.

Question 500

Competition Law > 101 > Agreement (positive) affect trade > | Whether the agreement increases trade between member states, as this would still satisfies that it AFFECTS trade.

Answer 500

Consten and Grundig

Question 501

``` Competition Law > 101 > Consequences > Article 101(2) ```

Answer 501

Any agreement in breach of Article 101(1) is AUTOMATICALLY VOID

Question 502

Competition Law > 101 > Consequences > | Any agreement in breach of Article 101(1) is AUTOMATICALLY VOID

Answer 502

Article 101(2)

Question 503

Competition Law > 101 > Consequences > | BRT v SABAM

Answer 503

Article 101 is directly effective

Question 504

Competition Law > 101 > Consequences > | Article 101 is directly effective

Answer 504

BRT v SABAM

Question 505

Competition Law > 101 > Consequences > | Chemidus Wavin v TERI

Answer 505

Given that Article 101 is directly effective, it may be possible to ask the relevant national courts to sever the offending clause only, leaving the rest of the agreement intact. (In UK Law, this is only possible if the agreement still reflects the original)

Question 506

Competition Law > 101 > Consequences > Given that Article 101 is directly effective, it may be possible to ask the relevant national courts to sever the offending clause only, leaving the rest of the agreement intact

Answer 506

Chemidus Wavin v TERI

Question 507

Competition Law > Avoiding a Breach 101 > | NAOMI

Answer 507

* For horizontal agreements: combined market share must not exceed 10% * Fore vertical agreements: market share held by each of the parties must not exceed 15% on any market affected by agreement * For networks of arrangements: 5% threshold

Question 508

Competition Law > Avoiding a Breach 101 > | NAOMI > Effect on Agreement

Answer 508

Agreement deemed to have no appreciable effect on competition BUT – if agreement contains Hardcore Restrictions, NAOMI will not protect it, regardless of how small parties are

Question 509

Competition Law > Avoiding a Breach 101 > NAAT

Answer 509

Aggregate market share of parties must NOT exceed 5% AND • For Horizontal agreements: aggregate turnover must be less than 40m EUR; or • For Vertical agreements: supplier turnover must be les than 40m EUR

Question 510

Competition Law > Avoiding a Breach 101 > | NAAT > Effect on Agreement

Answer 510

Agreement deemed to have no appreciable effect on trade NAAT will protect agreements, even if they contain hardcore restrictions. However, National competition authorities will still be able to take action

Question 511

Competition Law > Avoiding a Breach 101 > | Regulation 330/2010: block exemption for vertical agreements

Answer 511

Requirements: • There is a breach of Article 101 TFEU • Agreement is vertical – state and apply definition at Article 1(1)(a) Regulation 330/2010 • Suppliers AND buyer’s market share does not exceed 30% (Art.3(1) Regulation 330/2010) • Agreement does not contain restrictions under Art.4(c) – e.g. price fixing

Question 512

Competition Law > Avoiding a Breach 101 > | Regulation 330/2010 > Effect on Trade

Answer 512

Presumption of legality for agreement under Article 1 Regulation 330/2010

Question 513

Competition Law > Avoiding a Breach 101 > | Art.101(3) TFEU individual exemption (risky)

Answer 513

Requirements; (all four MUST be present) Agreement MUST: • Improve production/distribution of goods OR promote technical/economic progress • Allow consumers a fair share of the resulting benefit Agreement MUST NOT: • Impose unnecessary conditions • Afford the elimination of the competition

Question 514

Competition Law > Avoiding a Breach 101 > | Art.101(3) TFEU individual exemption > Effect on Agreement

Answer 514

Agreement not void if parties can show arrangement satisfies self-assessment criteria/

Question 515

Competition Law > Avoiding a Breach 101 > If exemptions apply:

Answer 515

If NAOMI or NAAT applies, we’re essentially saying that there is no breach of EU law, as the effects of the agreement are so small (Volk v Veraecke sprl) If Art 101(3) applies, we’re saying that there is a breach, but the benefits outweigh the disadvantages.

Question 516

Competition Law > Avoiding a Breach 101 > | Volk v Veraecke sprl

Answer 516

If NAOMI or NAAT applies, we’re essentially saying that there is no breach of EU law, as the effects of the agreement are so small

Question 517

Competition Law > Breach 101 > Sanctions

Answer 517

1. Investigations 2. Penalties (fines) 3. Leniency Notice 4. Challenging any Penalty

Question 518

Competition Law > Breach 101 > Sanctions > Investigations > Regulation 1/2003

Answer 518

The commission has the following investigatory powers

Question 519

Competition Law > Breach 101 > Sanctions > Investigations > Art.18 Regulation 1/2003

Answer 519

To request the firm produces all information necessary to enquiry

Question 520

Competition Law > Breach 101 > Sanctions > Investigations > Art.18(2) Regulation 1/2003

Answer 520

Penalties may be imposed if information provided is incorrect or misleading

Question 521

Competition Law > Breach 101 > Sanctions > Investigations > Art.19 Regulation 1/2003

Answer 521

To interview a consenting person, whether or not employed by the company in question

Question 522

Competition Law > Breach 101 > Sanctions > Investigations > Arts.20 and 21 Regulation 1/2003

Answer 522

To arrive unannounced at firm premises and demand access to company records which may be used in proceedings against firm. DAWN RAID PROCEEDINGS. Enlist assistance of any relevant national competent authority If reasonable suspicion, search other premises (provided have judicial authorisations) including homes of employees

Question 523

Competition Law > Breach 101 > Penalties

Answer 523

Commission/National Competent authority, may impose fine of up to 10% of previous year’s worldwide turnover

Question 524

Competition Law > Breach 101 > Penalties > | BRT v SABAM

Answer 524

As Art 101 has direct effect

Question 525

Competition Law > Breach 101 > Penalties > | As Art 101 has direct effect

Answer 525

BRT v SABAM

Question 526

Competition Law > Breach 101 > Penalties > | Garden Cottage Foods v Milk Marketing Board and Courage Ltd v Crehan

Answer 526

As Art 101 has direct effect… | Foreign third parties affected by the breach may also so in UK National Courts for damages.

Question 527

Competition Law > Breach 101 > Penalties > | Foreign third parties affected by the breach may also so in UK National Courts for damages.

Answer 527

Garden Cottage Foods v Milk Marketing Board and Courage Ltd v Crehan

Question 528

Competition Law > Breach 101 > Leniency Notice > Whistleblower

Answer 528

100% reduction for the Whistle-blower if: • Is first to come forward • Has not coerced others; and • Cooperates fully

Question 529

Competition Law > Breach 101 > Leniency Notice > Non- Whistleblower (Hoffman-La Roche)

Answer 529

Limited immunity for non-whistle-blower (maximum 50% reduction) if firm: • Is able to provide useful information, with significant added value • Has not coerced others; and • Cooperates

Question 530

Competition Law > Breach 101 > Leniency Notice > Hoffman-La Roche

Answer 530

Limited immunity for non-whistle-blower (maximum 50% reduction) if firm: • Is able to provide useful information, with significant added value • Has not coerced others; and • Cooperates

Question 531

Competition Law > Breach 101 > Challenging any penalty

Answer 531

A firm may apply to the General Court under Art.263TFEU to review Commission’s findings.