EU Law Flashcards
(208 cards)
1
Q
Name the 4 steps it took to form the EU today.
A
1951 = European Coal and Steel Community
1957 = Treaties of Rome
1993 = Treaty of Maastricht
2009 = Treaty of Lisbon
2
Q
Name the treaties that are still in force.
A
TEU
TFEU
Treaty establishing european atomic energy community
Charter of fundamental rights of the european union
3
Q
What is the difference between EU and a federal state
A
- Legislation: EU national ministers (mostly using qualified majority vote) in
Council must approve it. In federal states the central government approves. - Currency: Federal states have a single currency for the federation (e.g. US$). The EU has a Euro zone but the UK had an opt out and many states cannot yet join.
- Tax: Federal states can raise taxes. The EU does not have general tax raising powers (tax is a prerogative of the MS).
- Army: Federal states usually have a national army. The EU does not.
- Executive power: Some federal countries have directly elected presidents with executive powers. The heads of the European Commission (the EU civil service) are appointed by EU national governments.
4
Q
when did the uk leave the eu
A
in 2016.
- 31st December was the end of the transition period so primary and secondary EU law ceased to have effect in the UK.
Most secondary EU law is retained by the UK
5
Q
Name the EU’s power structure from Exec Gov to ECBank
A
- Executive Government.
Made up of the Council of Ministers of the Member States. - Civil Servants (and authorities).
Made up of the European Commission. - Parliament.
The European Parliament. - Judiciary.
This is made up of the General Court and the CJEU. - European Central Bank.
This is applicable for eurozone (countries using the euro).
6
Q
Difference between council of europe and council of the european union?
A
european council/ council of europe involved in = Taking decisions about the EU’s political direction, the European Council brings together the heads of state or government of every EU member state and make things such as Human Rights.
Council of the European Union = Members of the European Union Council are government ministers from all member states. The Council plays an important role in the law-making process in the European Union and usually meets around specific policy areas.
7
Q
What is the european commission?
A
An administrative body with powers of enforcement in some areas such as competition law.
It is:
- A collegiate body (power is equal to all members.)
- One commissioner per member state.
- Based in Brussels.
- Divided into directorate-generals
Only institution representing the interests of the European Union.
8
Q
How many members does the European Parliament have?
A
- 705 elected members plus the President of Commission.
9
Q
How often does the european parliament have elections?
A
every 5 years.
10
Q
What are the three functions of the european parliament?
A
- Legislative.
Role has increased – acts jointly with Council (co-legislator for ordinary legislative procedure). - Scrutiny.
Appointments can censure or dismiss the whole Commission. - Consent.
There must be consent for new EU Member States and associate agreements and withdrawal agreements.
11
Q
What two court systems make up the EU Court?
A
The Court of Justice and the General Court.
12
Q
Roles of the CJEU and the General Court
A
General Court and CJEU introduced to act as a first court to review legality of acts of EU institutions, e.g., competition cases appealed to the GC and then further to the CJ.
The CJEU (without involvement of General Court) ensures that member states comply with their obligations under the Treaties (e.g. in the case of non-implementation of Directives); and interprets EU law at the request of national courts and Tribunals – “preliminary rulings”.
13
Q
What is the hierarchy of the 6 legislative acts of the EU?
A
- Treaties. 2. Regulations. 3. Directives. 4. Decisions. 5. Recommendations. 6. Guidelines by European Commission.
14
Q
What is the difference between Regulations and Directives?
A
- Regulations.
Directly applicable in all member states e.g., GDPR. - Directives.
Binding as to the results – require implementation in every country e.g., liberalization packages (energy, communications).
15
Q
What is the difference between EU ‘decisions’ and ‘recommendations’.
A
- Decisions.
Binding on the addresses (countries brought against). E.g., decisions by EU Commission to fine. - Recommendations.
Persuasive value, sometimes referred to in directives.
16
Q
What is contained in TFEU Art 288
A
‘To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.’
Supremacy of EU Law
17
Q
What is the basic 3 step order of ordinary legislative procedure
A
- Commission proposes.
- Parliament and Council must both approve.
- If not, conciliation process with negotiating committee to try for agreement.
18
Q
Name the 7 legal institutions of the EU
A
- The European Parliament.
- The European Council.
- The Council.
- The European Commission.
- The Court of Justice of the European Union.
- The European Central Bank.
- The Court of Auditors.
19
Q
Legislative role of the European Commission?
A
- Because they have the right to introduce proposals for EU Directives and Regulations. Only body that can do that.
- Also, only body to represent the interests of the European Union itself.
- Commission brings proceedings against member states if they breach treaties or the EU law.
20
Q
What majority does the Council of the European Union require to pass secondary legislation (only laws they can participate in)
A
must have a qualified majority: ‘at least 55 % of the Council members [in practise: 15 out of 27],
comprising at least fifteen of them and representing Member States comprising at
least 65 % of the population of the Union [449.2 million].’
21
Q
What does TEU art 16(4) say about blocking minorities?
A
A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.’
22
Q
How often does Presidency of the Council of European Union rotate?
A
Every 6 months. Not a vote, everyone gets their turn at presidency.
23
Q
Legislative functions of European Parliament?
A
- Role has increased – acts jointly with Council (co-legislator for ordinary legislative procedure)
- Also operate as consultation (competition law) or consent (new EU Member State) for special legislative procedures.
24
Q
Legislative functions of European Council/Council of Europe?
A
The European Council is the political steering committee of the European Union: TEU, art 15(1):
- ‘The European Council shall define the general political directions and priorities.’
- ‘Council meetings’ in different EU Member States, setting policy goals.
25
Legislative functions of Court of Justice (CJEU)
Ensuring EU law is interpreted and applied the same in every EU Member State.
Ensuring that EU Member States and EU institutions abide by EU law.
1 judge from each EU country. Deals with requests for preliminary rulings.
26
Legislative functions of General Court?
- General Court similar to CJEU to deal with lesser issues.
- Actions for annulment (e.g.: competition law; state aid).
27
What does the CJEU have jurisdiction to give preliminary rulings about?
jurisdiction to give preliminary rulings concerning:
a. the interpretation of the Treaties.
b. the validity and interpretation of acts of the institutions.
28
What is a preliminary ruling and how does it work
Rules on interpretation of EU law and then lets the national courts decide on actual case. Need to avoid different interpretations of EU law by the national courts of different
Member States.
Any court or tribunal of an MS can refer but parties cannot insist on reference.
29
briefly describe how compliance is ensured in eu?
CJEU and general courts. ensure following legislation and interpreting it correctly and can issue fines if violation.
30
purpose of judicial review?
ensures eu MS stay within their legal powers and if an act is declared incompatible it can be voided.
31
what can be judicially reviewed?
Regulations, Directives, Decisions
32
What are the grounds of challenge for judicial review?
Lack of competence, infringement of an essential procedural requirement, misuse of powers.
33
What is the judicial review misuse of powers case?
Giuffrida v Council.
When hiring for new position, made requirements to already be employed by EU. Giuffrida applied and was rejected. Found they made the rule to hire one specific person. Misuse of power and unfair recruitment procedures.
34
When must you submit a judicial review claim?
Within 2 months of the publication of the measure, notification to the plaintiff, or in absence of notice the day in which the plaintiff became aware of the decision.
35
Who can seek judicial review?
Privileged applicants = MS, European Parliament, Council, Commission.
Semi-privileged = court of auditors, ECB
Non-privileged = natural and legal persons. Must be direct addressee of Act or directly concerned.
36
Which case established the conditions of raising a judicial review claim regarding 'another person'
Plaumann & Co v Commission (Case 25/62): Plaumann sought annulment of Commission decision denying the request from Germany to reduce tariffs on clementines. Commission held inadmissible because decision was addressed to Germany and ‘another person; cannot be a member state. Article 263 TFEU) ‘any natural or legal person may …institute proceedings against a decision …which, although in the form of…a decision addressed to another person, is of direct and individual concern to the former’.
37
Describe the Plaumann formula
Individuals, other than the one directly addressed, can only claim to be personally affected by a decision if it impacts them due to specific attributes or circumstances that make them distinct from everyone else. These factors must individually identify them in a similar way to the person directly addressed by the decision.
Applicant must have been singled out by decision.
38
Which sections of the TFEU is judicial review regulated by
JUDICIAL REVIEW COVERED BY TFEU ARTS 263-266
39
What are the two elements of preliminary procedure?
- Challenging domestic rule by arguing it is based on invalid EU rule (in case of national law implementing EU Directives).
- Challenging the legality of a provision of an EU Regulation (remember: National court cannot determine validity of EU Law).
- Claiming MS not abiding its Treaty obligations.
- Claim breach if MS not implemented a directive.
40
Who can initiate infringement proceedings?
Commission and EU MS
41
Name 4 stages of infringement procedure
a. Administrative stage.
i. Written notice
ii. Opportunity for MS to respond
b. Commission issues reasoned opinion.
i. Defines issue and sets date for MS to be assessed.
ii. Opportunity for MS to redress the breach. If not:
c. Proceedings before court.
i. Very high success rate for commission
ii. May be brief judgement if state accepts it hasn't acted properly.
d. If still not complying, second reference to court.
i. Potential for financial penalties.
42
Which case held that the commission has discretion at all stages of infringement procedure to not go further?
Star Fruit Company SA v Commission
43
Does the commission have power to refer back to court and seek penalties regarding infringement proceedings?
Yes.
44
Describe Commission v Romania
€3,000,000 fine for failing to transpose Directive by due date regarding money laundering and terrorist financing.
45
Describe Commission v Ireland
- €2,000,000 penalty for not transposing Directive.
46
What is the criteria for determining size of penalty regarding infringement proceedings?
- Duration of the infringement.
- Its seriousness.
- The ability of the Member State to pay.
47
Describe Commission v Greece
- Did not take necessary measures to comply with a Court judgement establishing breach of obligations.
- Commission brought infringement proceedings. Ruled penalty payment of €20,000 per day.
48
Describe Commission v Spain
- Failure to comply with 1998 decision that they were in breach of Bathing Waters Directive.
- Annual penalty of €624,150, for each 1% of waters that are not in compliance.
49
Describe Commission v France
-Failure to comply with 1991 judgment that they significantly breached EU fisheries conservation measures.
i. lump sum penalty of €20m - long duration of breach and importance of issue.
ii. penalty payment of €57,761,250 every 6 months still in breach.
50
Name unsuccessful defences raised by states against sanctions with corresponding case law
- Compliance achieved in practice - administrative measures, not laws: Commission v Netherlands
- Result of Directive achieved by direct effect = Commission v Germany (recognition of qualifications).
- Other States also in breach (fishing limits) = Commission v UK
- MS has remedied breach – after date of reasoned opinion = Commission v Italy
51
Name potentially successful defences raised by states against sanctions with corresponding case law
- EU decision being enforced is unlawful = Commission v Greece
- Commission has given MS too short a time to comply with reasoned opinion = Commission v Belgium
52
Union liability - can individuals sue the EU?
Yes, can claim damages against EU institutions for damage arising
from illegal (legislative) acts / omissions.
- TFEU Arts 268 & 340: contractual liability (jurisdiction: domestic courts, TFEU art 274)) and non-contractual liability (jurisdiction: CJEU, TFEU, art 268)
* ➔ act (or omission) must be official act of Union.
53
State liability - can individuals sue MS?
Yes, those harmed by a states failure to comply with EU law can recover damages.
54
What does art 4(3) of TEU state?
General obligation to ensure fulfilment of the obligations arising
out of the Treaties – TEU art 4(3)
55
Describe the Francovich case (state liability)
Italy found liable by the CJEU for non-implementation of a Directive. Two months later, F & B sued Italy in the national court for damages. They suffered loss because, at the time their employer went into liquidation, Italy had not set up a compensation fund for the employees of insolvent companies as required by the Directive. HELD - although the compensation provisions were insufficiently precise to be directly effective, F & B were entitled to a remedy under Union law.
56
What are the three conditions for state liability that were reformed by Brasserie du Pecheur
1. the rule of law infringed must have intended to confer rights on individuals
2. the breach must be 'sufficiently serious'
3. there must be a direct causal link between the breach and the damage
57
What major case later applied the Brasserie conditions for state liability?
R v Secretary for Transport
58
Name the written and unwritten sources of EU Law
Written = primary law and secondary law.
Unwritten = general principles.
59
What are primary and secondary sources of law?
Prim = foundation treaties
Sec = regs and directives
60
What are general principles used by the CJEU to assess the legality and appropriateness of?
i. Union actions.
ii. Member States implementation, transposition of EU law, and what they
do when derogating from it.
61
General principles don't have constitutional status. T or F
False, they do.
62
Name the three main functions of EU law
1. Guide for interpretation of Treaty provisions and legislative enactments;
2. Benchmark against which EU law is judged; and
3. Measure against which national implementation of EU law can be assessed.
63
Name the 7 general principles.
Supremacy of EU law
Direct effect
Subsidiarity
Proportionality
Legal certainty
Equality
State liability
64
Define supremacy of EU law
When there is conflict between European law and the law of Member States, European law prevails. Takes precedent over all laws and even constitutions
65
Describe Costa v Enel and state what general principle it represents
Held EU law always precedent over incompatible national law. By transferring from their domestic system to the EU one, MS were submitting to “permanent limitation of sovereign rights”. They relinquish part of their sovereignty.
EU law always take precedence over incompatible national systems.
66
Describe Van Gend en Loos and state what general principle it represents
Supremacy of EU law. Enforced customs taxes which breached EU Law. Held that the EU created a new legal order and by joining, you’re submitting to that order. Limits sovereignty and must submit to it.
67
Describe Simmenthal and state what general principle it represents
Supremacy of eu law. Confirmed that EU law would prevail in national courts against all incompatible MS law, regardless of timing.
68
Describe three sources of law that have direct effect
Regulations: have general application; binding in [their] entirety and directly
applicable in all Member States.
Directives: binding as to the result to be achieved, upon each Member State to which it
is addressed, but shall leave to the national authorities the choice of form and
methods. Binding after due date.
Decisions: binding in their entirety.
69
Do recommendations and opinions have direct effect?
No, soft law.
70
Name the three criteria for legislation to have direct effect
1. Provision must be sufficiently clear and precise.
2. Provision must be unconditional.
3. Provision must not entail member states exercising their discretion in implementing it (includes inherent discretion in the law).
71
Define horizontal and vertical effect.
Can vertically (individual suing Government) and horizontally (individual seeking to enforce EU law against another individual) apply the law. Horizontal application is possible but very rare.
72
Define subsidiarity (competence)
Subsidiarity is the principle of where competence is shared.
73
What does art2(2) TFEU state
MS shall exercise their competence to the extent that the Union has not exercised its competence. MS shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
74
Which article TFEU contains the following: Sets out areas of shared competence in detail (e.g. the internal market, agriculture, environment, transport etc) so problematic areas should be minimised.
TFEU art4(2)
75
What does art5(3) TEU say about subsidiarity
Under the principles of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if the
objectives of the proposed action cannot be sufficiently achieved by the MS, either at central level or at regional and local level, but can be better
achieved at Union level.”
76
What must EU demonstrate to legislate in areas of shared competence? (subsidiarity)
national insufficiency (i.e. re. sufficiently achieved above); and:
comparative efficiency – better at EU scale in terms of achieving objective than at MS level.
77
Define the general principle of proportionality
Follows on from subsidiarity: TEU art5(4): the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties
78
What general principle does the Fedesa case regard?
Three part test for proportionality:
Action must be suitable to achieve objective.
Action must be least invasive intervention.
Must not be disproportionate to aims pursued
79
Define the three main elements of the general principle of legal certainty
a. Legitimate expectation.
Principle requires encouragement of reasonable expectation, a reliance on that expectation, and some loss resulting from that breach.
b. Non-retroactivity.
Applied to secondary legislation – measure can’t take effect before it is published. Retroactivity may be allowed in very exceptional circumstances – e.g. if they put person in a better position (see. Road Air BV case).
a. Res judicata.
The binding force of final judgments is respected.
80
What does res judicata mean?
Binding force of final eu judgements to be respected.
81
What general principle does Von Colson represent
national courts have obligation to interpret domestic legislation to comply with EU law when it is not directly effective.
82
Describe Kolpinghuis Nijmegen (legal certainty)
obligation to interpret this way limited by general principles – especially legal certainty and non-retroactivity. Kolpinghuis extends this even if EU law is directly effective (and when criminal proceedings are at issue).
83
Define general principle of equality
Persons in similar situations should be treated the same, unless there is an objectively justifiable reason. Discrimination is broadly prohibited in existing:
- Primary law (e.g. arts.18 and 19 TFEU on nationality, race, religion, sexual orientation and disability).
- Secondary law (e.g., Directive 2000/78 on employment law).
Non-discrimination also determined to be a general principle.
84
Define general principle of state liability
individuals can seek remedy from Member State for losses suffered as a result of an MS’ failure to implement or correctly apply EU law.
It does NOT have to be the individuals own member state
85
What general principle did R. v Ministry of Agriculture,
Fisheries and Food represent
State liability. Sued UK government but lived in Ireland. Established that don't have to be individual of MS you're suing.
86
Describe Francovich case.
Ex-employees claiming unpaid wages said provisions of Directive were directly effective, and that Italy failed to implement the directive (as required
under art.288 TFEU and art.4 TEU) – latter point had already been decided by Court in a different case. Even though provisions were found not to be directly effective, claimants succeeded on base of second argument, but only because certain criteria had been fulfilled which was:
1. Directive involved rights conferred on individuals;
2. Content of such rights could be identified on basis of the directive’s provisions
87
What did Brasserie du Pecheur extend state liability to include?
not just limited to failure to implement directives, includes “all domestic acts and omissions, legislative,
executive and judicial, in breach of Union law
88
Where in the TEU is it stated that the Union shall establish an internal market?
TEU art.3(3)
89
What are the four freedoms of the internal market
Free movement of goods, TFEU arts 34, 35
Free movement of workers, TFEU art 45
Free movement of services, TFEU art 56
Free movement of capital, TFEU art 63
Right of establishment, TFEU art 49
90
Why is the internal market important
- Supranational organisations want to ease trade amongst MS so combine into a free/common market.
- Drives growth and stimulates greater business efficiency /higher productivity.
- Sharing knowledge and innovation across the globe.
- Boosts jobs. Helps to raise living standards
- It ensures more people can access a wider choice of goods at lower cost
91
Benefits of national and international markets?
- Since outsiders can enter the market and sell goods, this forces local producers to improve product and seek efficiency.
- Local producers can expand market by selling overseas.
- Customer gets widest choice at cheapest price.
- Inefficient producers have to change or go out of business.
92
What are the two controls used to ensure fair competition in internal market?
a. EU Competition Law (TFEU art 101-106).
b. Prohibition of State Aid (TFEU, art 107-108)
93
What are the four steps of economic integration?
step 1 - free trade area. no internal tariffs/quotas between members but each country can set own tariffs with other countries.
step 2 - customs union. requirement for single market and agree to abolish customs between themselves and establish a common tariff with other countries.
step 3 - harmonised rules of the four freedoms. need to have shared to enable free flow of single market.
step 4 - monetary union. unified monetary policies e.g., eurozone. 20 MS
94
FREE MOVEMENT OF GOODS Article 28 TFEU
Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
95
TFEU art.30 prohibits what?
Custom duties/tariffs, Financial charge made on import (or export) of a product. All countries must publish and report to World Trade Organisation.
* “and of all charges having equivalent effect [to a customs duty] “
* = Equivalent charge imposed when good crosses border (e.g., charge levelled for a ‘safety check’ of the goods before they are allowed to cross the border).
96
Describe Commission v Italy
Small charge on certain agricultural exports, supposedly to cover cost of gathering statistical info. Held any charge, however small and whatever its purpose which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect … even if it is not imposed for the benefit of the state.
97
What is equivalent effect?
any charge that has the same effect upon the free movement of products as a customs duty. size or name of charge don't matter and the use of money raised from it also doesn't matter. still a customs charge regardless.
98
In order for a charge to have equivalent effect it must cross a frontier and does not include transport. T or F
True. Even if transport includes crossing a frontier, it will not count.
99
Name the permissible charges imposed in the cases of Commission v Italy 1969 and Commission v Germany
Italy = in certain circumstances a specific service actually rendered may form the consideration for a possible proportional payment for the service in question
Germany = Service charges are permissible if they don't exceed the actual costs of the inspections they're charged for. the inspections in question are obligatory and uniform for all the products concerned in the Community. they are prescribed by Community law in the general interest of the Community. they promote free movement of goods, in particular by neutralizing obstacles which could arise from unilateral measures of inspection adopted in accordance with … the Treaty.
100
Name the permissible charges imposed in the cases of Commission v Italy 1989 and - Conceria Daniele Bresciani v Amministrazione Italiana delle Finanze
Italy = charge for opening customs posts during business hours.
Conceria Daniele = charge for inspecting raw cowhide – pro rata, but domestic hides under different scheme.
101
Define a 'good'
products
* [1] which can be valued in money and
* [2] which are capable, as such, of forming the subject of commercial transactions
102
What is the case law description of a good
capable of being valued in money and thus subject of commercial
transactions. Must have some physical condition, thus more than granting rights
103
Describe Commission v Belgium (Wallonian waste)
is waste a good? Wallonia banned disposing of foreign waste. Held absolute ban is unlawful because free movement of goods protected by art 30. Waste is a good because recyclable waste has commercial value and is protected by treaty, so other waste is too as it can be hard to tell the difference. Therefore comes under and is protected by art 30.
104
Describe Commission v Italy (art treasures)
= Italy had imposed high duties on artistic pieces it considered part of its heritage, arguing that Union rules should not apply. They claimed a good with artistic or historical value was a different type of good so could keep their law. However, the court held that these were goods and Union rules did apply. Court defined the concept of goods as products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions.
105
Describe Jägerskiöld v Gustafsson
Finnish law: no right to fish with a spinning rod unless paid fee for licence. Are such licences ‘goods’ for purpose of TFEU? District court in Finland sought preliminary ruling: Are fishing rights or spinning licences "goods" in accordance with the judgment in Commission v Italy [1968]. Held NOT goods but comes under freedom to provide service.
106
What are the four freedoms regarding free movement of goods and mention corresponding articles
Art.30 = Customs duties on imports and exports and charges having equivalent effect are prohibited between MS. Also applies to fiscal customs duties.
Art.34 = Quantitative restrictions on imports and all measures having equivalent effect prohibited between MS.
Art.35 = Quantitative restrictions on exports and all measures having equivalent effect prohibited between MS.
Art.36 = Articles 34 and 35 doesn't prohibit imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not discriminate or disguise restriction on trade between MS
107
Define a quantitative restriction
restriction on number of goods to be imported/exported. Quantity can be set a zero = complete ban on imports/exports.
108
What is the landmark quantitative restrictions case regarding possible exceptions
R v Minister of Agriculture, (Compassion in World Farming Ltd)[1998] = applicant wanted a ban on export of calves to Spain due to poor conditions. Held restrictions of export of live animals were unsupportable under the Treaty. Argued the action of exporting live animals was contrary to public morals, or for the protection of the animals. Held insufficient.
109
Define Measures Equivalent to Quantitative Restrictions
All trading rules enacted by Member States which are capable of hindering,
directly or indirectly, actually or potentially, intra-Community trade are to be
considered as measures having an effect equivalent to quantitative restrictions. (Dassonville). Anything with same effect as QR.
110
Describe the Dassonville case.
Belgian law required Scotch whisky to be sold only if they had a certificate of origin included. Traders were prosecuted for selling Scotch whisky without a certificate, but they had bought it from France, where no certificate was required. Does this fall within Article 34? Held that even though the intention of a measure may not be to create such a restriction, and even if its effect doesn't occur now but, in the future,/its effect is indirect not direct, it is still unlawful.
111
Describe Commission v France (Spanish strawberries)
failing to prevent violent protests blocking imports).
“the measures adopted by the French Government were manifestly inadequate to ensure freedom of
intra-Community trade in agricultural products on its territory". Held that it was an MEQR
112
What are distinctly and indistinctly applicable MEQRs
- Distinctly - rules that treat imports differently from domestic goods.
- Indistinctly - rules that are of general application but have an adverse effect
on imports.
113
Describe the irish case regarding distinctly applicable MEQRs
- Government campaign to encourage buying domestic over imported products: Commission v Ireland (“Buy Irish”). Held unlawful
114
Describe Keck
French law prohibited the resale of goods that had not been altered or repackaged at a price lower than the price at which they had been bought, in order to prevent so-called 'predatory pricing' (the process of making a short-term loss in order to force competition out of the market). The measure was challenged as being contrary to Art 34. HELD – selling arrangements do not constitute an MEQR as long as the provision applies to all affected traders in same territory and must affect traders in the same manner.
115
What are the four steps to consider a justification for a QR or MEQR
1. Is this national measure something that gets in the way of trade? If so, does it fall within the definitions in arts 34 and 35 (QR or MEQR)?
2. Is it an issue dealt with by EU rules? If so, no scope for national rules and must apply EU rule.
3. If it's a barrier and no EU rule to govern the position, is the national rule justified by one of the reasons set out in art.36?
4. Is it proportionate?
116
What are the TFEU art 36 justifications for QR and MEQRs
public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing
artistic, historic or archaeological value; or the protection of industrial and
commercial property
117
What was held in Dassonville?
- Certificates of origin for whisky, difficult to obtain where not direct importer -
unacceptable.
118
What was held in Cassis de Dijon
- Ban on selling liqueur as too low in alcohol – unacceptable
119
What was held in Keck
- Ban on selling goods at a loss – acceptable
120
What was held in Trailers
- Ban on motorcycle trailers – restrictive but justified
121
What was held in Mickelsson
- Ban on jet-skis on some waters – restrictive but justified
122
What was held in Bluhme
- Proportionality; concerns bees.
123
Describe the case of Lawrie-Blum v Land Baden
trainee teacher in Germany denied employment because wasn’t German national. Argued she was a worker and protected by art45. Held she WAS a worker so is protected. Trainee teacher is under direction of a school, given her working hours, provides economic value to school and receives renumeration. Doesn’t matter she was still in training.
124
Who does free movement of people cover?
Free movement guarantees cover for workers, right of establishment for businesses, jobseekers, family members of workers, and students.
125
What is the definition of a worker
for a certain period of time a person performs services of some economic value for and under the direction of another person in return for which he receives remuneration.
126
What is contained in TFEU art 45
TFEU art 45: Free movement for workers shall be secured within the Union to accept offers of employment, move freely for this purpose, stay in MS for purpose of employment, stay in MS after employment.
127
Does the scope of art45 cover part-time workers?
Levin case = woman moved with husband for his job and she begins to work part-time. Rejected her application for permanent residence because she didn’t move for sole purpose of employment. Held that it doesn’t matter if she’s part-time and earns less than minimum wage or works less hours, she is still a worker and is entitled to move.
128
Does the scope of art 45 cover jobseekers?
Yes, according to Antoissen. However, in the actual case he was living in Uk and hadn't found any work in 6 months so held it was reasonable to deport him at that point.
129
Describe Antonissen 1991
Art 45 only refers to the right of workers to move to another MS to "accept offers of employment actually made". On a strict reading, work seekers do not fall within this provision. HOWEVER, their intermediate status was recognised in this case. The courts said that you could recognise that Art 45 is not an exhaustive list of those who are workers, so a work seeker could be a worker, but they would be subject to certain limits and it was legitimate for an MS to impose certain restrictions on them. The applicant was appealing against a decision to deport him, claiming free movement as a worker under Art 45 as he had been looking for work in the UK. However, he had not found any for over six months. HELD - the CJEU held that it was reasonable for the MS to deport someone if they had not found work within six months.
130
Why is genuine and effective economic activity necessary when establishing free movement of people
Need to actually be contributing. - Steymann v Staatssecretaris van Justitie: Work in religious community in exchange for bed, food and pocket money. Held he is a worker as he was providing services to the community that would otherwise be performed by someone else who would get paid.
131
What did Bettray v Staatssecretarias state regarding freedom of movement people
Certain volunteering would not count as 'worker'. Worked as part of a drug rehabilitation programme. However, held that since the objective was rehabilitation, the work was not an ‘effective and genuine economic activity’.
132
What did Van Duyn v Home Office decide. Does art45 have direct effect and can it be relied upon by individuals?
Yes, held that art45 has vertical direct effect, which means that it can be relied upon by an individual against public authorities.
133
Is there a special recruitment process for foreign nationals? (art3(2))
No.
134
What is the primary and secondary EU law on workers rights
Prim = TFEU art45
Sec = EU Citizenship Directive
135
What is the main limit of TFEU art45
Protections don't apply to employment in public service.
136
What is the case law definition of public service (free movement of people)
Commission v Belgium (case 149/79): Belgian law reserved certain posts to Belgian nationals in public service. Defined public service posts as involving ‘the exercise of power conferred by public law’ where there is a ‘responsibility for safeguarding the general interests of the state.’ Not enough that simply a public sector job, need to exert influence.
137
What was held regarding the extent of public sector employment?
Commission v Italy (case 225/85) [1987]: In the case of research scientists generally, only the duties of management or of advising the State on scientific and technical questions could be described as employment in the public service for the purposes of Article 48(4). Held the law requiring research workers at institute to be Italian nationals is discriminatory and unlawful.
138
What happened in Commission v Luxembourg (teachers)
Commission v Luxembourg (C-473/93) [1996]: School teachers restricted to Luxembourg nationals. Accept need to protect national identity of small country, but disproportionate. NOTE: proportionality a consideration in relation to exceptions.
139
Describe the limit of art45 regarding public policy
Article 45 (3) ‘Freedom of movement for workers] shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: National law can limit movement based on public policy and protections
140
What happened in Adoui & Cornuaille v Belgium (prostitutes)
Law banning prostitutes from entering the country but no ban on prostitution in Belgium. Two French nationals working as prostitutes in Belgium. They were expelled from Belgium on the grounds of public morality. The Belgian authorities argued that their activities were contrary to public policy and public security. Held freedom of movement breached by Belgium. Must comply with EU law unless can prove sufficiently serious threat to fundamental interests of society.
141
What happened in R v Boucherou (criminal convictions free movement)
A previous criminal conviction (possession of drugs) can only be considered when deciding to expel a national of another MS if the actions that led to the conviction show a current threat to public policy. Must suggest they may act similarly in the future. Past behaviour alone could be enough to justify the threat. The concept of public policy must be interpreted strictly, meaning it cannot be defined unilaterally by each Member State. However, what justifies invoking public policy can vary between Member States and over time. Therefore, national authorities have some discretion within the limits set by the Treaty and its implementing provisions.
142
What does art7 say about treatment of foreign nationals
1. Worker who is a national of different MS in another MS can’t be discriminated against because of nationality.
2. He shall enjoy the same social and tax advantages as national workers.
3. He shall also have access to training in vocational schools and retraining centres.
143
What does art10 say about treatment of foreign families
The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.
- Purpose: Integration of the worker’s family into the host country.
144
What happened in ASBL v Bosman regarding equal treatment of foreign nationals
professional Belgium footballer charged more from his French club who refused to pay so he could not get the contract or transfer to France. Held that the transfer system demanding fee even after expiration of contract does violate EU law. Places restriction on players movement.
145
What did Clean Car Autoservice GmbH v Landeshauptmann hold regarding requirement to have instate managers?
Austrian Trade Code requires legal entities to have manager resident in Austria. Applied to be registered, application was rejected b/c manager was a resident of Berlin at the time, although he was seeking to live in Austria. Held that requirement that nationals of other states must reside in state in order to be appointed a manager constitutes discrimination based on nationality under TFEU 45.
146
What are the rules regarding language discrimination of foreign nationals?
- Article 3 (1). Under this Regulation, provisions laid down by law, regulation or
administrative action or administrative practices of a Member State shall not apply:
(a) where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment or subject these to conditions not applicable in respect of their own nationals;
or (b) where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered. The first subparagraph shall not apply to conditions relating to linguistic knowledge required by reason of the nature of the post to be filled.
147
What was held in Groener v Minister for Education and the City of Dublin Vocational Educational Committee regarding language discrimination?
- Qualification in Irish needed to teach in further education.
- Acceptable in pursuit of language policy so long as applied in proportionate and non-discriminatory way
148
Which TFEU article contains EU citizenship?
art20
149
In TFEU art20 regarding EU citizenship, why was the third line added later? "1. Citizenship of the Union is hereby established. Every person holding the
nationality of a Member State shall be a citizen of the Union. Citizenship of
the Union shall be additional to and not replace national citizenship."
Third sentence only added through the Treaty of Amsterdam 1997. This was added to prevent the EU from becoming a federal state and to avoid broad interpretation of the provision by the CJEU.
150
What rights does TFEU art20(2) prescribe to EU citizens
the right to move and reside freely within the territory of the MS.
the right to vote and to stand as candidates in elections for European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State.
151
Do EU citizens living in a different member state get to petition to european parliament or apply to european ombudsman?
Yes they do. Protected by art20(2)(d)
152
Name the four key rights of EU citizens from the citizenship directive
Residence for up to 3 months, including family members with a valid passport.
Longer-term residence. Permanent residence
Equal treatment
153
What are the conditions for union citizens to be resident for more than three months
worker/self-employed.
sufficient resources to not require social assistance.
attend private or public school.
rights extend to family members too.
154
In what circumstance would a union citizen no longer working be able to retain the status of a worker?
illness/accident.
involuntarily unemployed after working for more than a year and registered at employment office.
involuntarily unemployed upon completion of a less than a year fixed term contract.
getting vocational training.
155
What is the period required in order to achieve permanent residence?
Living legally for a continuous 5 years.
156
Regarding the period of 5 years required for permanent residence, what temporary absences wouldn't affect the continuity?
Absence less than 6 months a year, compulsory military service, pregnancy, illness.
157
Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years. T or F
TRUE
158
Is it necessary for host MS to confer social assistance entitlement within first 3 months of residence?
No
159
What does the citizenship directive define 'family members' as?
(a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, if the legislation of the host MS treats registered partnerships as equivalent to marriage. (c) the direct descendants who are under the age of 21 or are dependants (d) the dependent direct relatives in the ascending line
160
Describe Zambrano v Office National
Columbian nationals applied for asylum in Belgium. Authorities refused to grant them refugee status and ordered them to leave Belgium. Continued to reside and had babies who got nationality. Husband didn’t have a work permit but signed full time work contract so had sufficient resources to provide for family and contributed to society. Held he could be granted right to live and work since if he wasn’t, the children wouldn’t be able to exercise their rights as EU/Belgian nationals.
161
Describe Zhu and Chen v Secretary of State
- Mrs Chen, a Chinese national, went to NI to give birth. Daughter had citizenship, but because she was Irish now, she wouldn’t be accepted back in China. Held the mother could stay in NI so they wouldn’t be separated. MRS CHEN NOT AN EU NATIONAL HERSELF SO CAN’T RELY ON CITIZENSHIP DIRECTIVE. She wasn’t depending on her daughter but daughter depending on her. Daughter had citizenship.
162
Describe Rendón Marín v Administración
Colombian national in Spain caring for his two children, one Spanish, one Polish. Under Spanish law automatic refusal of residence permit if criminal
record in Spain. He did have derived right of residence based on children. Held unlawful as could be limited on grounds of public policy or public security but automatic refusal based on existence of criminal record is unlawful.
163
Describe Chavez-Vilchez v Raad van bestuur
One parent EU national, other not and now separated. Non-EU national parent caring for child wishes to stay. Any right to stay is derivative, based on not preventing child
citizen enjoying rights. Can inquire whether this would force child to leave with them or EU national parent can take over care.
164
Describe Singh v Minister for Justice
Non-EU nationals resident in Ireland with wives who were nationals of other EU states working there.
Spouses left Ireland but applicants remained.
Divorce proceedings started. Could applicants remain in Ireland? No – only entitled while family of EU national exercising rights in Ireland.
165
What rules were decided in Reinhard Gebhard v Consiglio regarding citizenship restrictions?
1)they must be applied in a non-discriminatory manner.
2)they must be justified by imperative requirements in the general interest.
3)they must be suitable for securing the attainment of the objective which they
pursue
4)and they must not go beyond what is necessary in order to attain it.
166
Describe Reinhard Gebhard v Consiglio (lawyer)
German lawyer set up chambers in Italy. Italy did not recognise his experience so tried to expel him. Argued breaches right to freedom of establishment so court held he was correct.
167
Can MS restrict freedom of movement where a disease of epidemic potential exists?
Yes
168
Name three things competition law is NOT intended to do
-to protect consumers;
-to protect competitors;
-to intervene in the economy.
169
Define a monopoly
When it is the only supplier of a product for which there is no close substitute. A monopoly sets its price without fear that it will be undercut by a rival firm.
170
Define an undertaking
any entity engaged in economic activity regardless of its legal status or the way it is financed. Includes public bodies and non-profits.
171
What is the SSNIP test?
SMALL but SIGNIFICANT NON-TRANSITORY INCREASE IN PRICE:
- Would consumers switch to buy a different product?
- Would suppliers switch to make the product?
172
What does art101 TFEU prohibit regarding competition?
Directly or indirectly fix purchase or selling prices, limit/control production or markets or technical developments or investment, share markets/sources of supply, apply dissimilar conditions to equivalent transactions, make the conclusion of contracts subject to supplementary obligations.
173
Define an agreement (competition law)
concurrence of wills. (Bayer); includes both horizontal and vertical agreements; doesn’t have to be written or legally binding.
174
Define concerted practices (competition)
a form of coordination between undertakings which hasn’t been formally agreed but knowingly substitutes for the risks of competition failing and creating abnormal market conditions. E.g., uniform increases in prices.
175
Are non-binding competition agreements between associations caught by art101?
Yes, if members are likely to follow it.
176
What are horizontal agreements (competition)
Harmful and often used by cartels. Agreements with competitors to create a universal price increase or something else.
177
What percent do cartels on average increase the price of goods/services by
10%
178
How do we establish who is a cartel?
Offer rewards. first cartel (undertaking) to confess gets total immunity from fines, others can get reduction for co-operating.
179
What is a vertical agreements.
Treated favourably. agreements made between two or more parties which are operating at different levels of the production e.g., supplier and seller make agreement.
180
Why are vertical agreements permitted?
Vertical agreements involve no direct loss of competition between contracting parties whereas horizontal agreements involve a rivalrous one.
181
What is meant by an anticompetitive 'object' or 'effect'
Object = hardcore cartels, territorial protection. Agreements presumed to be detrimental to comp. Burden of proof to prove not damaging.
Effect = possible negative consequences from normal agreement.
182
What competition law principle did Volk establish
De minimis. An agreement shall fall outside the prohibition when it has only an insignificant effect on the market.
- Restrictions ‘by object’ cannot benefit.
Between competitors = exempt if market share 10% max.
Between non-competitors = 15%.
183
What legal requirements must an agreement fulfil to be exempt from art101
- Contribute to improving production or distribution or promote technical or economic progress;
- Allow consumers a fair share of the resulting benefits.
- Do not impose restrictions that are not indispensable; and
- Do not afford the possibility to eliminate competition.
184
Name the two types of block exemptions to art101 (competition)
Horizontal = production/purchasing/standardisation agreements.
Vertical = motor vehicle sector agreements, tech transfer agreements.
185
3 elements required to establish abuse of dominance?
1. A dominant position in a market.
2. An abuse.
3. An effect on trade between Member States.
A dominant position in the market is fine, it is an abuse that is prohibited.
186
Do dominant have a special responsibility not to abuse their dominance?
Yes, subject to more restrictions. Cant in/directly impose unfair purchase price, limit production to prejudice consumers. Small business can use diff pricing stragegies to establish themselves.
187
What is a parallel import?
cross-border sales of goods by independent traders outside the manufacturer’s distribution system without the manufacturer’s consent.
188
Does art101 or 102 apply to parallel imports (competition)
The Commission runs them on an alternative basis.
189
What is the legal and market definition of dominance
United Brands Continental BV v Commission of the European Communities:
"a position of economic strength enjoyed by an undertaking allowing it to behave independently of its competitors, its customers and ultimately of its consumers".
SSNIP test and geography test.
190
What percentages determine a company as unlikely to be dominant and not dominant?
- 70% or more: almost certainly dominant position: Case 226/84 British Leyland plc v Commission [1986] ECR 3263: British Leyland had a STATUTORY MONOPOLY on certificates for road registration;
- → 50–70: presumption of dominance;
- → 40–50: may support a conclusion of dominance;
- → Below 40: dominance unlikely unless other evidence
191
In what circumstance would a dominant undertaking have less than 40% market share?
In a very fragmented market with lots of competitors: - Virgin/British Airways (2000) dominance when BA’s market share of the total airline sales in the UK in 1998 amounted to 39.7%
192
What is collective dominance?
Two undertakings combining but attempting to stay autonomous to dominate market. 3 conditions: market transparency, mechanism of retaliation, lack of competitive pressure from outsiders.
193
Define abuses of power for dominant undertakings/firms.
- Pricing abuses ‘unfair pricing’.
- Non pricing abuses.
i. Refusal to deal/supply.
ii. Essential facilities.
iii. Exclusive purchasing/tie-in sales.
iv. Abusive use of IP rights.
194
Are the following exclusionary or exploitative conduct:
Excessive pricing
predatory pricing
discriminatory pricing
exc = exploitative
pred = exclusionary
discrim = exclusionary
195
Can a businesses discounts violate art102?
Yes.
196
What was the case that determined refusal to supply in EU was a violation of 102?
Commercial Solvents: an undertaking in a dominant position as regards the production of raw material . . . cannot, just because it decides to start manufacturing, act in such a way as to eliminate their competition’.
197
Describe Oscar Bronner
small business claimed needed main publisher’s home delivery service and it refused so small business couldn’t operate. This makes it an essential facility. Access to facility must be necessary, impossible to replicate, and not based on the fact the business is small.
198
Define a tie-in
Bundling of products making customers buy specific products and isolating competitors.
199
What conditions did Microsoft case implement for unlawful bundling (tie-ins)
1) tying and tied products should be separate.
2) undertaking dominant in the market for the tying product (in this case the
Windows OS).
3) customers denied the chance to obtain the tying product without the tied product.
4) competition was foreclosed.
200
Describe the two aspects of merger control
1. Procedure.
i. Which mergers need to be notified?
ii. Where?
iii. The phenomenon of multi-jurisdictional filings.
2. Substance.
i. Does the notified merger lead to a substantial lessening of competition?
ii. What is the theory of harm?
201
Where are small / big mergers investigated?
Large = European Commission
Small = MS authorities.
202
Can a merger qualify for investigation in more than one MS?
Yes.
- In most member states the national laws try to capture mergers between companies meeting specified turnover thresholds in that country. Need to obtain information on turnover by country.
203
What is a referral up (mergers)
A merger does not meet the thresholds for investigation at the European level but is to be reviewed in at least 3 Member States. Can be “referred up” to the European Commission in two situations.
Prior to notification: notifying parties request that the Commission considers. If the Member States agrees → referral UP (if even one Member State disagrees, no referral)
Post notification: the Member States request that the Commission carry out the investigation instead of them.
204
What is a referral down (merger)
A merger technically meets the thresholds for investigation at the European level but the concentration will be likely to “affect competition” in one or more local markets.
Prior to notification: notifying parties submit to European Commission their case as to why the merger should be investigated at national level instead – if the Commission agrees and the Member States do not object.
Post notification: one or more Member States can (on their own initiative or on the Commission’s invitation, ask the Commission to refer the matter to them as the concentration affects competition at the local level.
205
Can mergers outside EU be investigated in EU?
Yes. Nationality of parties irrelevant.
206
Why are damaging mergers prevented?
→ the creation or increase of market power; and
→ an increase in the scope for collusion in a market which, following a merger, will be more oligopolistic / less competitive.
207
What are the 3 conditions stated in Airtours regarding theory of harm: horizontal mergers and coordinated effects.
Ability and incentives for competitors to align behaviour without express communication.
Deviation can be detected and punished.
Alignment is sustainable in the face of other constraints.
208
Name structural and behavioural remedies regarding damaging mergers
Structural remedies:
- One-off remedy.
- Divestment of part of business (including intellectual property).
Behavioural remedies:
- Ongoing remedy.
- Undertaking to comply with certain conditions (e.g. provision of services to third parties, reducing long-term contracts, licensing intellectual property).
- Greater monitoring burden for the regulator.
