Advanced Materals Flashcards
1
Q
Article 26 TFEU
A
Establishes free movement within the internal market, and the four fundamental freedoms
2
Q
Establishes free movement within the internal market, and the four fundamental freedoms
A
Article 26 TFEU
3
Q
What is direct effect?
A
An EU law has direct effect if it can be asserted by a legal person in a national court.
4
Q
What is supremacy?
A
EU law takes effect over any conflicting national law. Also called primacy.
5
Q
What happens when a national law conflicts with an EU law?
A
The EU law takes precedence if the rule is clear, precise, and unconditional. The conflicting national law is disapplied.
6
Q
Which case establishes the principle of direct effect?
A
Van Gend en Loos v Netherlands
7
Q
Van Gend en Loos v Netherlands
A
Facts: Dutch chemical importer challenging an increase of customs duty in domestic legislation in Dutch court, arguing that it breaks EU Treaties. Dutch court makes a reference for preliminary ruling, asking what happens where EU Treaties conflict with national law. CJEU responded to say national courts must apply EU law and disapply the conflicting national law.
Significance: Authority for direct effect/supremacy of EU law.
8
Q
Facts: Dutch chemical importer challenging an increase of customs duty in domestic legislation in Dutch court, arguing that it breaks EU Treaties. Dutch court makes a reference for preliminary ruling, asking what happens where EU Treaties conflict with national law. CJEU responded to say national courts must apply EU law and disapply the conflicting national law.
Significance: Authority for direct effect/supremacy of EU law.
A
Van Gend en Loos v Netherlands
9
Q
Does supremacy apply to national laws passed recently (i.e. more recent law rules)?
A
Yes - supremacy applies regardless of dates of relevant legislation.
Authority: Simmenthal
10
Q
Simmenthal
A
Facts: Company imports French beef into Italy. Italian national law imposes a border check, and was passed after Italy joined the EEC. Issue was whether the lower court judge could disapply national law. Make a reference to CJEU for preliminary ruling, CJEU said that EU law applies instantly throughout all national courts.
Significance: Supremacy applies throughout all national courts, regardless of date legislation passed.
11
Q
Facts: Company imports French beef into Italy. Italian national law imposes a border check, and was passed after Italy joined the EEC. Issue was whether the lower court judge could disapply national law. Make a reference to CJEU for preliminary ruling, CJEU said that EU law applies instantly throughout all national courts.
Significance: Supremacy applies throughout all national courts, regardless of date legislation passed.
A
Simmenthal
12
Q
What is vertical direct effect?
A
A legal person challenges a Member State based on EU law
13
Q
What is horizontal direct effect?
A
A legal person challenges another legal person (not a state) based on EU law
14
Q
Do treaty articles have direct effect?
A
Yes. Examples: Simmenthal, Van Gend en Loos
15
Q
Do treaty articles have both vertical and horizontal direct effect?
A
Yes.
Vertical: e.g. Van Gend en Loos
Horizontal: Defrenne v Sabena No 2
16
Q
Antonio Munoz
A
Facts: Antonio Munoz sold grapes. Competitor was selling grapes with non-compliant labels. The relevant regulation didn’t specifically confer rights onto individuals to challenge other individuals. Did it have horizontal direct effect? CJEU said yes.
Significance: Example of EU regulation having horizontal direct effect.
17
Q
Facts: Antonio Munoz sold grapes. Competitor was selling grapes with non-compliant labels. The relevant regulation didn’t specifically confer rights onto individuals to challenge other individuals. Did it have horizontal direct effect? CJEU said yes.
Significance: Example of EU regulation having horizontal direct effect.
A
Antonio Munoz
18
Q
Does the EU Charter of Human Rights have direct effect?
A
Yes, both horizontal and vertical.
19
Q
Do EU Directives have direct effect?
A
Not usually - because they require implementing measures by the Member State, then the challenge should be based on the implementing legislation, not the EU Directive.
20
Q
When can EU Directives have direct effect?
A
When the MS didn’t properly implement them - e.g. Van Duyn and Becker. But vertical only!
21
Q
Do Directives have horizontal direct effect?
A
No, only vertical. But a public body can be held to a Directive even when they are acting in a private capacity, e.g. as an employer. Authority: Marshall v Southampton Health Authority
22
Q
Marshall v Southampton Health Authority
A
Facts: Marshall bringing the health authority to court over their retirement policy breaching an EU Directive. The UK law did not address retirement. CJEU ruled that the EU Directive was breached, and could be relied upon by Marshall since the health authority is a public body. It was still vertical direct effect even though the health authority was acting as an employer. However, CJEU re-iterated that Directives do not have horizontal direct effect.
Significance: Directives have direct vertical effect. It is still vertical direct effect when a public body is acting in a private capacity.
23
Q
Facts: Marshall bringing the health authority to court over their retirement policy breaching an EU Directive. The UK law did not address retirement. CJEU ruled that the EU Directive was breached, and could be relied upon by Marshall since the health authority is a public body. It was still vertical direct effect even though the health authority was acting as an employer. However, CJEU re-iterated that Directives do not have horizontal direct effect.
Significance: Directives have direct vertical effect. It is still vertical direct effect when a public body is acting in a private capacity.
A
Marshall v Southampton Health Authority
24
Q
What is indirect effect?
A
National courts must interpret their national law in a way which is compliant with the wording, purpose, and objective of the EU Directive. Also called the duty of consistent interpretation.
25
What is the duty of consistent interpretation?
National courts must interpret their national law in a way which is compliant with the wording, purpose, and objective of the EU Directive. Also called indirect effect.
26
What is generally the result of indirect effect?
Generally results in amendment of the national law to more clearly comply with EU Directive. Is not an avenue to damages for a claimant.
27
What is state liability in EU law?
Allows individuals to seek remedies for losses suffered as a result of Member State's failure to implement or apply EU law. The legal person is able to sue the Member State in national court.
28
What are the requirements for state liability?
1) The EU law is intended to confer rights upon individuals
2) Breach of EU law must be sufficiently serious
3) Must be a direct causal link between State's failure and the damages suffered
Authority: Brasserie de Pecheur case (modifying Francovich).
29
Brasserie de Pecheur
Facts: A German brewery (Brasserie du Pêcheur) faced financial losses due to conflicting national and EU beer quality regulations. CJEU established that Germany could be held liable for the losses caused by their breach of EU law, thereby establishing State liability.
Significance: Established State liability and criteria (sufficiently serious breach, causal link, and EU law must confer right to individuals).
30
Facts: A German brewery (Brasserie du Pêcheur) faced financial losses due to conflicting national and EU beer quality regulations. CJEU established that Germany could be held liable for the losses caused by their breach of EU law, thereby establishing State liability.
Significance: Established State liability and criteria (sufficiently serious breach, causal link, and EU law must confer right to individuals).
Brasserie de Pecheur
31
What is the definition of a good?
Officially: products which can be valued in money and which are capable of forming the subject of commercial transactions" - Commission v Italy
Unofficially: Must be detectable with the senses
32
Art 34 TFEU
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States
33
What is a quantitative restriction?
A numerical limit (including an outright ban) which affects the import of a product.
34
What is a measure having equivalent effect?
Any measure enacted by a MS capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.
Authority: Dassonville
35
Dassonville
Facts: French company imports whisky from the UK, re-labels it, and exports it to Belgium. Belgian law requires a certificate of origin, the whisky didn't have one, so were prosecuted under Belgian law. CJEU ruled it was a measure with equivalent effect.
Significance: Defines measures with equivalent effect.
36
Facts: French company imports whisky from the UK, re-labels it, and exports it to Belgium. Belgian law requires a certificate of origin, the whisky didn't have one, so were prosecuted under Belgian law. CJEU ruled it was a measure with equivalent effect.
Significance: Defines measures with equivalent effect.
Dassonville
37
What are the criteria for an Art 34 breach?
1) The measure must be attributable to a MS
2) Must be capable of hindering trade, i.e. anything impacting the volume of trade
3) There must be an intra-EU element
38
Keck
Facts: Keck was reselling goods at a loss, contrary to French law. Invoked Art 34 as a defence, to say that the French law was an impediment to free movement. Ruled as falling outside the scope of Art 34.
Significance: Established the "Keck Test/Keck Exemption" for selling arrangements. If the national rule is 1) a selling arrangement, 2) affecting all traders regardless of MS, and 3) is applied equally in law and in fact, then the national rule falls outside the scope of Art 34.
39
Facts: Keck was reselling goods at a loss, contrary to French law. Invoked Art 34 as a defence, to say that the French law was an impediment to free movement. Ruled as falling outside the scope of Art 34.
Significance: Established the "Keck Test/Keck Exemption" for selling arrangements. If the national rule is 1) a selling arrangement, 2) affecting all traders regardless of MS, and 3) is applied equally in law and in fact, then the national rule falls outside the scope of Art 34.
Keck
40
What is a selling arrangement?
Something which affects the arrangements under which products may be sold, including marketing
41
De Agostini
Facts: Italian company launches a new kids magazine and advertises EU-wide on TV. Breaks Swedish law as can't advertise anything targeted at children. Italian company argues the ban breaches Art 34. Swedish government argues that it applies equally in law and in fact. CJEU concluded that banning TV advertising made it more difficult for non-Swedish products to break into the market, so was discriminatory in fact. As such, could not rely on Keck exemption.
Significance: Illustration of an MEE/selling arrangement applying equally in law but not in fact.
42
Facts: Italian company launches a new kids magazine and advertises EU-wide on TV. Breaks Swedish law as can't advertise anything targeted at children. Italian company argues the ban breaches Art 34. Swedish government argues that it applies equally in law and in fact. CJEU concluded that banning TV advertising made it more difficult for non-Swedish products to break into the market, so was discriminatory in fact. As such, could not rely on Keck exemption.
Significance: Illustration of an MEE/selling arrangement applying equally in law but not in fact.
De Agostini
43
Commission v Italy (Mopeds)
Facts: Italian ban on using tailers with mopeds/motorbikes. Commission said it was a MEE, but Italy argued it wasn't a ban on selling, just on use. CJEU ruled that use restrictions affect consumer purchasing behaviour (why would you buy something you couldn't use?) so it was an MEE and required justification.
Significance: Example of use restrictions and establishment of the market access test
44
Facts: Italian ban on using tailers with mopeds/motorbikes. Commission said it was a MEE, but Italy argued it wasn't a ban on selling, just on use. CJEU ruled that use restrictions affect consumer purchasing behaviour (why would you buy something you couldn't use?) so it was an MEE and required justification.
Significance: Example of use restrictions and establishment of the market access test
Commission v Italy (Mopeds)
45
What is the market access test?
Does the national rule have the effect of hindering access to that MS' market? Applies to use restrictions.
Authority: Commission v Italy (Mopeds)
46
How can a MS justify a breach of Art 34?
By using either Article 36 justifications (exhaustive list) or the Cassis de Dijon "mandatory requirements"/case law
47
What are the justifications allowed by Art 36?
Public morality, public policy, public security.
Protection of health/life of humans, animals, plants.
Protection of national treasures.
Protection of industrial/commercial property.
48
What is the proportionality test?
National measures must be 1) suitable to achieve their objective and 2) not go beyond what is necessary to achieve the objective.
49
Article 56 TFEU
Freedom to provide services
50
Which article establishes the freedom to provide services?
Art 56 TFEU
51
What is a service?
Art 57: Anything provided for renumeration that isn't a good, capital, or person, including industrial, commercial, craft, or professional work.
In practice: A service is temporary by nature
52
Where are the statutory justifications for Art 56 exceptions found?
Art 62 TFEU
53
Art 62 TFEU
Justifications for exceptions for freedom to provide services
54
What are the Art 62 justifications for restrictions on services?
Public policy
Public security
Public health
Exercise of official authority
55
Information Society Directive 2000/31 and 2015/1535
Governs e-commerce service providers ("Information Society Services") the right not to be restricted from providing e-commerce services from another MS
56
What is an ISS/e-commerce?
Information Society Service:
Service provided for renumeration
At a distance
By electronic means
57
Governs e-commerce service providers the right not to be restricted
Information Society Directive 2000/31 and 2015/1535
58
Any restrictions on the freedom to provide services must be __________
Notified to the European Commission (authority: Art 15.7)
59
Luisi & Carbone
Facts: Two Italian nationals residing in Italy bought more foreign currency than allowed by Italian law and were issued fines. They challenged the fines as they had purchased the currency for tourism in other MS and one had also travelled to Germany for a medical procedure in that time, so the Italian law impeded free movement of capital and free movement of services. Italian court made a preliminary ruling reference. Italian law was deemed non-compliant - they could impose controls to verify that cash was used for authorized movements of capital, but could not set a limit on amount for authorized movements.
Significance: Free movement of services implies the right to carry necessary funds to pay for such services. Example of freedom of capital and freedom of services overlapping.
60
Facts: Two Italian nationals residing in Italy bought more foreign currency than allowed by Italian law and were issued fines. They challenged the fines as they had purchased the currency for tourism in other MS and one had also travelled to Germany for a medical procedure in that time, so the Italian law impeded free movement of capital and free movement of services. Italian court made a preliminary ruling reference. Italian law was deemed non-compliant - they could impose controls to verify that cash was used for authorized movements of capital, but could not set a limit on amount for authorized movements.
Significance: Free movement of services implies the right to carry necessary funds to pay for such services. Example of freedom of capital and freedom of services overlapping.
Luisi & Carbone
61
Visser
Facts: Request from NL Supreme Court for preliminary ruling. Challenge to a zoning plan designating certain zones as being exclusively reserved for retail trade in bulky goods, as an owner of one of the premises wanted to lease to shoe/clothing shops. Note that there was not a strong inter-MS element here - customers may come from other MS, and the court focussed on harmonization as an objective. Court ruled that EU law was engaged, and retail of goods is a service, but the reasoning for the zoning plan (maintain viability of city centre) could be a justification for ORPI if all justification criteria are satisfied.
Significance: Retail sale of goods is a service, so restricting opening hours affects both freedom to provide goods and freedom to provide services.
62
Facts: Request from NL Supreme Court for preliminary ruling. Challenge to a zoning plan designating certain zones as being exclusively reserved for retail trade in bulky goods, as an owner of one of the premises wanted to lease to shoe/clothing shops. Note that there was not a strong inter-MS element here - customers may come from other MS, and the court focussed on harmonization as an objective. Court ruled that EU law was engaged, and retail of goods is a service, but the reasoning for the zoning plan (maintain viability of city centre) could be a justification for ORPI if all justification criteria are satisfied.
Significance: Retail sale of goods is a service, so restricting opening hours affects both freedom to provide goods and freedom to provide services.
Visser
63
How is a cross-border element engaged re: freedom to provide services?
Even if no person moves, if the service crosses a border, then there is a cross-border element.
Additionally, if either the service provider or recipient crosses a border, then there is a cross-border element.
64
Which Art 56 restrictions can only be justified with statutory justifications?
Restrictions which restrict freedom to provide services on grounds of nationality, or other distinctly applicable measures
65
Which Art 56 restrictions can use case law justifications?
Restrictions which are indistinctly applicable or introduce no formal distinctions/do not protect nationals but nevertheless restrict commercial freedom.
66
Viacom Outdoor v Giotto
Facts: Real estate company established in France had a contract with Italian company for advertising. French company refused to re-imburse Italian company for municipal advertising tax in Italy (amount = 227 euro). French company argued the tax infringed freedom to provide services. The tax was indistinctly applied regardless of provider's place of establishment, and the tax was so low compared to the value of the service that it does not prohibit or impede the advertising services.
Significance: Example of a de minimis exception
67
Facts: Real estate company established in France had a contract with Italian company for advertising. French company refused to re-imburse Italian company for municipal advertising tax in Italy (amount = 227 euro). French company argued the tax infringed freedom to provide services. The tax was indistinctly applied regardless of provider's place of establishment, and the tax was so low compared to the value of the service that it does not prohibit or impede the advertising services.
Significance: Example of a de minimis exception
Viacom Outdoor v Giotto
68
Article 63 TFEU
Free Movement of Capital
69
Authority for free movement of capital?
Art 63 TFEU
70
What does article 63 TFEU prohibit?
1) Restrictions on movement of capital between MS
2) Restrictions on payments between MS
3) Restrictions on payments between MS and 3rd countries
71
What is capital?
Resources used for, or capable of, investment to generate revenue.
72
Where are the treaty exceptions to Art 63 found?
Art 65 TFEU
73
What are the treaty exceptions to free movement of capital?
1) MS may continue to apply provisions of national tax law which differentiates on location
2) MS may take measures to enforce their tax law and financial regulatory standards
3) MS may require declaration of capital movements for purposes of administration/statistics
4) Public policy and public security
74
C-503/99 Commission v Belgium (Golden Shares)
Facts: Belgian government held golden shares in a Belgian energy company, which gave the government some managerial power (veto, representation on the board, etc). The justification was public security - state had an interest in maintaining a certain amount of control to ensure suitable energy supplies. Golden shares are considered restricting free movement of capital as they reduce the amount of possible investment. Was found to be permissable - adequate justification, suitable, and proportionate, given the terms of the golden shares.
Significance: Golden shares case.
75
Facts: Belgian government held golden shares in a Belgian energy company, which gave the government some managerial power (veto, representation on the board, etc). The justification was public security - state had an interest in maintaining a certain amount of control to ensure suitable energy supplies. Golden shares are considered restricting free movement of capital as they reduce the amount of possible investment. Was found to be permissable - adequate justification, suitable, and proportionate, given the terms of the golden shares.
Significance: Golden shares case.
C-503/99 Commission v Belgium (Golden Shares)
76
Persche
Facts: German national donated gifts to a Portuguese retirement/children's home and claimed as tax-deductable on German tax form. Germany rejected the request since the recipient was not in Germany. CJEU deemed that inheritances, legacies, and gifts of money, moveable property, and immoveable property fall under Art 63, and that Germany failing to allow deductions for non-German recipients likely discourages Germans to make those gifts, thereby it is a restriction. Was held that MS can define charitable purposes which can be tax-exempted, but they must apply regardless of nationality among MS. MS can impose restrictions against third country charitable causes, since there is no reporting harmonization requirement.
Significance: Capital can include gifts. Another example where MS and non-MS states are treated differently under free movement of capital.
77
Facts: German national donated gifts to a Portuguese retirement/children's home and claimed as tax-deductable on German tax form. Germany rejected the request since the recipient was not in Germany. CJEU deemed that inheritances, legacies, and gifts of money, moveable property, and immoveable property fall under Art 63, and that Germany failing to allow deductions for non-German recipients likely discourages Germans to make those gifts, thereby it is a restriction. Was held that MS can define charitable purposes which can be tax-exempted, but they must apply regardless of nationality among MS. MS can impose restrictions against third country charitable causes, since there is no reporting harmonization requirement.
Significance: Capital can include gifts. Another example where MS and non-MS states are treated differently under free movement of capital.
Persche
78
UK Golden Shares
Facts: UK government had golden shares in British Airports Authority limiting other parties from acquiring voting shares in BAA. Argued that it did not restrict free movement of capital as it was not discriminatory. Court found that it had the effect of deterring investors, so was a restriction. UK government did not attempt to justify the restriction.
Significance: To contrast with Belgian Golden Shares case - always submit justifications!
79
Facts: UK government had golden shares in British Airports Authority limiting other parties from acquiring voting shares in BAA. Argued that it did not restrict free movement of capital as it was not discriminatory. Court found that it had the effect of deterring investors, so was a restriction. UK government did not attempt to justify the restriction.
Significance: To contrast with Belgian Golden Shares case - always submit justifications!
UK Golden Shares
80
What is the main legal basis for prohibition on discrimination?
Art 21(1) of Charter of Fundamental Rights.
Includes sex, age, disability, sexual orientation.
81
Art 21(1) Charter of Fundamental Human Rights
Prohibits discrimination on basis of sex, age (mostly), disability, and sexual orientation
82
Art 23 Charter of Fundamental Rights
Equality for men and women
83
What is the legal basis for equal pay?
Article 157 TFEU
84
Article 157 TFEU
Equal pay across genders for equal work
85
What is the legal basis for equal treatment in the workplace?
Directive 2006/54
86
Directive 2006/54
Equal treatment in the workplace
Defines direct discrimination
Prevents automatic positive discrimination
87
Directive 2006/54 vs Article 157 TFEU
If it's a pay dispute, use Art 157 (which has direct effect). If it's a treatment dispute, use Directive 2006 (indirect effect)
88
Directive 92/85
Rights of pregnant workers and working mothers
89
Directive 2019/1158
Work-life balance for parents and carers
90
Directive 2000/43
Race and ethnic origin
Prohibition of discrimination on grounds of race or ethnic origin (wide scope)
Direct and indirect discrimination, harassment
Exceptions
91
Directive 2000/78 Framework Directive
Disability, age, religion, sexual orientation
92
C-157/15 Achbita
Facts: Belgian case banning wearing of religious symbols in the workplace, adopted after an employee began wearing a Muslim headscarf.Court ruled the text of the policy was not direct discrimination, but if only applied to some religions in practice, then it is indirect discrimination. Court ruled that direct discrimination cannot be justified; indirect discrimination can be justified if proportionate and in pursuit of a legitimate aim.
Significance: Direct vs indirect discrimination
93
Facts: Belgian case banning wearing of religious symbols in the workplace, adopted after an employee began wearing a Muslim headscarf.Court ruled the text of the policy was not direct discrimination, but if only applied to some religions in practice, then it is indirect discrimination. Court ruled that direct discrimination cannot be justified; indirect discrimination can be justified if proportionate and in pursuit of a legitimate aim.
Significance: Direct vs indirect discrimination
C-157/15 Achbita
94
Steinicke
Facts: National law said older public servants could only work part-time if they had worked full-time for at least 3/5 of the preceding years. Was ruled indirectly discriminatory since more women than men were part-time workers, but could be justified. On age, it was ruled unsuitable at unblocking the employment market, as it discouraged people taking part-time roles since they would not benefit from the scheme. Also ruled that while budgetary considerations may be factors in these provisions, they are not in themselves a valid justification.
Significance: Cost in itself is not a valid justification for indirect discrimination.
95
Facts: National law said older public servants could only work part-time if they had worked full-time for at least 3/5 of the preceding years. Was ruled indirectly discriminatory since more women than men were part-time workers, but could be justified. On age, it was ruled unsuitable at unblocking the employment market, as it discouraged people taking part-time roles since they would not benefit from the scheme. Also ruled that while budgetary considerations may be factors in these provisions, they are not in themselves a valid justification.
Significance: Cost in itself is not a valid justification for indirect discrimination.
Steinicke
96
How to justify direct and indirect discrimination?
Direct: Cannot be justified
Indirect: Real need of the business, appropriate and necessary. Must be demonstrably proportionate.
Cost in itself not a valid justification
97
Hofmann
Facts: Argued that extended maternity leave (beyond what's necessary to recuperate from pregnancy/childbirth) discriminatorily favoured women unless the same leave was given as paternity. ECJ rejected this, as extended leave was to protect women in connection with effects of pregnancy, not "alter the division of responsibility between parents". Craig and de Burca note that this could support the traditional divisions of responsibility, in that women are primary caregivers.
Significance: Mothers vs fathers
98
Facts: Argued that extended maternity leave (beyond what's necessary to recuperate from pregnancy/childbirth) discriminatorily favoured women unless the same leave was given as paternity. ECJ rejected this, as extended leave was to protect women in connection with effects of pregnancy, not "alter the division of responsibility between parents". Craig and de Burca note that this could support the traditional divisions of responsibility, in that women are primary caregivers.
Significance: Mothers vs fathers
Hofmann
99
Article 23 Charter of Fundamental Human Rights
Positive discrimination - specific advantages in favour of an under-represented sex
100
Article 157(4) TFEU
Positive discrimination - MS can adopt measures providing specific advantages for underrepresented sexes
101
Directive 2006/54, Article 3
Positive discrimination - MS may adopt measures that ensure full equality in practice btw men and women
102
Kalanke
Facts: German law said if man and woman who are equally qualified go for a promotion, then the woman should get the job if women underrepresented. Court struck down since affecting the actual result rather than just creating a level playing field.
Significance: Positive discrimination should look to level the playing field rather than create automatic results
103
Facts: German law said if man and woman who are equally qualified go for a promotion, then the woman should get the job if women underrepresented. Court struck down since affecting the actual result rather than just creating a level playing field.
Significance: Positive discrimination should look to level the playing field rather than create automatic results
Kalanke
104
Marschall
Facts: National law saying if two equally qualified candidates, woman would get the job but with additional provision that the man would get the job if he has particular qualities of interest (i.e. other disadvantages in life).
Significance: Rebuttal of positive discrimination. Requires demonstration of discrimination suffered by the actual candidates personally, not generalizations.
105
Facts: National law saying if two equally qualified candidates, woman would get the job but with additional provision that the man would get the job if he has particular qualities of interest (i.e. other disadvantages in life).
Significance: Rebuttal of positive discrimination. Requires demonstration of discrimination suffered by the actual candidates personally, not generalizations.
Marschall
106
Abrahamsson
Facts: Sweden trying to promote women in Higher Education. A suitably qualified female candidate will be preferred even if better qualified man. Court struck down, similar to Kalanke
Significance: Positive discrimination can't automatically affect the outcome. Any policy favouring an under-represented candidate must be dsigned to reduce de facto inequalities/career disadvantages and be based on transparent and objective job criteria.
107
Facts: Sweden trying to promote women in Higher Education. A suitably qualified female candidate will be preferred even if better qualified man. Court struck down, similar to Kalanke
Significance: Positive discrimination can't automatically affect the outcome. Any policy favouring an under-represented candidate must be dsigned to reduce de facto inequalities/career disadvantages and be based on transparent and objective job criteria.
Abrahamsson
108
Lommers
Facts: Allowed women to use subsidised nursery places within ministry, men could not. Court upheld it because woman may have specific disadvantages, but in exceptional cases (such as single fathers) men must be permitted access to nursery.
Significance: Not officially overturned but now a doubtful authority because of Griesmar
109
Facts: Allowed women to use subsidised nursery places within ministry, men could not. Court upheld it because woman may have specific disadvantages, but in exceptional cases (such as single fathers) men must be permitted access to nursery.
Significance: Not officially overturned but now a doubtful authority because of Griesmar
Lommers
110
Griesmar
Facts: Male civil servant was a father, was granted a pension. Female civil servants were entitled to service credits per child in their pension, men were not. CJEU found it to infringe equal pay if excluding male civil servants who could prove they were the primary carer for their children.
Significance: Need to distinguish mothers from parents. Should protections given to women on the basis of presumed childcare responsibilities really be awarded to parents (regardless of sex) and not to childless women?
111
Facts: Male civil servant was a father, was granted a pension. Female civil servants were entitled to service credits per child in their pension, men were not. CJEU found it to infringe equal pay if excluding male civil servants who could prove they were the primary carer for their children.
Significance: Need to distinguish mothers from parents. Should protections given to women on the basis of presumed childcare responsibilities really be awarded to parents (regardless of sex) and not to childless women?
Griesmar
112
Roca Alvarez
Facts: Spanish law permitted women leave during first nine months following childbirth. Men can also (provided their partner is also employed) take these breaks. Man with self-employed partner didn’t get these breaks, but were the sexes reversed he would have. Court looked at the purpose of the Spanish law - it was not related to breastfeeding or pregnancy-related conditions, but rather about parenting. Ruled discriminatory. Court noted that men without working wives being exempt perpetuates traditional gender roles.
Significance: When comparing types of parental leave, need to look at whether it's related to the biological facts of childbirth or about child-rearing responsibilities.
113
Facts: Spanish law permitted women leave during first nine months following childbirth. Men can also (provided their partner is also employed) take these breaks. Man with self-employed partner didn’t get these breaks, but were the sexes reversed he would have. Court looked at the purpose of the Spanish law - it was not related to breastfeeding or pregnancy-related conditions, but rather about parenting. Ruled discriminatory. Court noted that men without working wives being exempt perpetuates traditional gender roles.
Significance: When comparing types of parental leave, need to look at whether it's related to the biological facts of childbirth or about child-rearing responsibilities.
Roca Alvarez
114
What is the authority for the age discrimination exception?
Art 6 of the Framework Employment Directive 2000/78
115
Describe the age discrimination exception
Differences of treatment based on age will not be discrimination if:
1) objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and
2) if the means of achieving that aim are appropriate and necessary.
116
Palacios de la Villa
Facts: Employee challenged the automatic termination of his contract upon reaching compulsory retirement age. Was direct discrimination, and national law did not refer to an objective. CJEU ruled it could be permitted if objectively and reasonably justified by a legitimate aim, and the measures in place are appropriate/necessary for that aim.
Significance: Automatic retirement ages can compy with the Framework Employment Directive if justified and proportionate.
117
Facts: Employee challenged the automatic termination of his contract upon reaching compulsory retirement age. Was direct discrimination, and national law did not refer to an objective. CJEU ruled it could be permitted if objectively and reasonably justified by a legitimate aim, and the measures in place are appropriate/necessary for that aim.
Significance: Automatic retirement ages can compy with the Framework Employment Directive if justified and proportionate.
Palacios de la Villa
118
Age Concern England
Facts: British charity challenged provision of UK law permitting an employer to dismiss workers when they reached retirement age. ECJ ruled that the justification could be inferred even if not explicit in the national law, but that such justification must be of a public nature (social policy, employment policy, etc) not up to an individual employers trying to maintain competitiveness/keep costs down. "Mere generalizations" would undermine the Directive's effectiveness.
Significance: The burden of proof for justification for direct discrimination is higher than indirect discrimination. Justification must be in social policy, not left to individual employers.
119
Facts: British charity challenged provision of UK law permitting an employer to dismiss workers when they reached retirement age. ECJ ruled that the justification could be inferred even if not explicit in the national law, but that such justification must be of a public nature (social policy, employment policy, etc) not up to an individual employers trying to maintain competitiveness/keep costs down. "Mere generalizations" would undermine the Directive's effectiveness.
Significance: The burden of proof for justification for direct discrimination is higher than indirect discrimination. Justification must be in social policy, not left to individual employers.
Age Concern England
120
Rosenbladt
Facts: Claimant was a cleaner in Germany who was dismissed when she reached retirement age. Court ruled that it was discriminatory, but could be justified if proportionate. While the court acknowledged that while the objectives could be achieved through other means, since the national law did not automatically exclude pensioners from the labour market, so the claimant could go find another job, it succeeded on proportionality.
Significance: Assessment of the justification and proportionality need to consider a holistic assessment of the protections available to pensioners, labour market conditions, and features of the job in question.
121
Facts: Claimant was a cleaner in Germany who was dismissed when she reached retirement age. Court ruled that it was discriminatory, but could be justified if proportionate. While the court acknowledged that while the objectives could be achieved through other means, since the national law did not automatically exclude pensioners from the labour market, so the claimant could go find another job, it succeeded on proportionality.
Significance: Assessment of the justification and proportionality need to consider a holistic assessment of the protections available to pensioners, labour market conditions, and features of the job in question.
Rosenbladt
122
How is competition law enforced?
By the Commission or National Competition Authorities
123
Art 101 TFEU
Anti-competitive behaviour
s1: Prohibits agreements to engage in anti-competitive behaviour
s2: Voids any such agreement
s3: Justifications
124
Art 102 TFEU
Abuse of market dominance.
Provides a non-exhaustive list of abuses prohibited by any dominant undertaking which may affect trade between Member States
125
What is an undertaking?
An entity engaged in economic activity regardless of the legal status of the entity and the way in which is financed (can be not for profit).
Auth: Hofner und Elser
126
Hofner and Elser
Facts: Action brought by recruitment consultants after a client reneged on a fee. Under German law, a public service was the only legal recruitment service. Question was whether that was market abuse, whether recruitment was a service, and whether the public service was an undertaking.
Significance: Authority for definition of undertaking. Public service was found to be an undertaking, as recruitment is an economic activity, and the legislation granting the public service exclusive authority was infringing competition law.
127
Facts: Action brought by recruitment consultants after a client reneged on a fee. Under German law, a public service was the only legal recruitment service. Question was whether that was market abuse, whether recruitment was a service, and whether the public service was an undertaking.
Significance: Authority for definition of undertaking. Public service was found to be an undertaking, as recruitment is an economic activity, and the legislation granting the public service exclusive authority was infringing competition law.
Hofner and Elser
128
C-475/99 Glockner
Facts: Dispute about ambulance sub-contracts.
Significance: An undertaking is engaging in economic activity regardless of its legal status, how it is financed, or whether the economic activity is the majority of its operation.
129
Facts: Dispute about ambulance sub-contracts.
Significance: An undertaking is engaging in economic activity regardless of its legal status, how it is financed, or whether the economic activity is the majority of its operation.
C-475/99 Glockner
130
What is the single economic unit doctrine?
One undertaking is one single economic unit, which is not equivalent to one natural or legal person.
E.g. Employees are part of the economic unit of their employer, agents form a single economic unit with their principal, and can extend to company groups.
131
What is market power?
The ability of a firm or firms to maintain prices above competitive levels, or maintain output of quantities, quality, variety, or innovation below competitive levels, for a significant period of time.
132
How much of the market does an undertaking need to be considered dominant?
50+% creates a presumption of dominance
Under 50% plus other factors can be dominance - e.g. Akzo
Other factors include buyer power, viability of launching a competitive product, etc
133
C-97/08 Akzo v Commission
Facts: A competitor in one product market started to encroach on another product market. Akzo threatened them, then offered products at a loss (below ATC) to their competitor's biggest customers. Akzo had the financial resources to withstand the loss.
Significance: 50+% market share is a presumption of dominance. Where a parent holds close to 100% of shares, it creates a rebuttable presumption that the parent exercises decisive influence over policy and conduct of the subsidiary.
134
Facts: A competitor in one product market started to encroach on another product market. Akzo threatened them, then offered products at a loss (below ATC) to their competitor's biggest customers. Akzo had the financial resources to withstand the loss.
Significance: 50+% market share is a presumption of dominance. Where a parent holds close to 100% of shares, it creates a rebuttable presumption that the parent exercises decisive influence over policy and conduct of the subsidiary.
C-97/08 Akzo v Commission
135
T-41/96 Bayer
Facts: Company pursued a policy designed to prevent French and Spanish wholesalers from selling products in the UK, but Commission failed to show acquiescence from wholesalers to the agreement.
Significance: Commission enforcement can fail due to lack of evidence. Collusion requires a concurrence of wills.
136
Facts: Company pursued a policy designed to prevent French and Spanish wholesalers from selling products in the UK, but Commission failed to show acquiescence from wholesalers to the agreement.
Significance: Commission enforcement can fail due to lack of evidence. Collusion requires a concurrence of wills.
T-41/96 Bayer
137
What constitutes an "agreement" under Art 101 TFEU?
Can be formal or informal agreements, only need a "concurrence of wills"
Auth: Bayer
138
What is prohibited under Art 101 TFEU?
Agreements, decisions, and concerted practices which prevent, restrict, or distort competition
139
Case 48/69 Imperial Chemical Industries v Commission – Dyestuffs
Facts: Several companies simultaneously raised their prices by the same amount on the same products at the same time. One of the involved companies was HQ'd outside the EU, and argued the fine should be imposed on its subsidiaries rather than its parent.
Significance: Parallel behaviour is not alone evidence of a concerted practice, it can be taken together with its affect on the market to become evidence. Unity of conduct on the market between a parent and subsidiary overrides separate legal personality/single economic unit.
140
Facts: Several companies simultaneously raised their prices by the same amount on the same products at the same time. One of the involved companies was HQ'd outside the EU, and argued the fine should be imposed on its subsidiaries rather than its parent.
Significance: Parallel behaviour is not alone evidence of a concerted practice, it can be taken together with its affect on the market to become evidence. Unity of conduct on the market between a parent and subsidiary overrides separate legal personality/single economic unit.
Case 48/69 Imperial Chemical Industries v Commission – Dyestuffs
141
C-439/09 Pierre Fabre
Facts: Cosmetics/pharmaceutical company operated a selective distribution system (where distributors need to be authorised by specific criteria) in France, and required products be sold in a physical space with a pharmacist present. Was found to restrict Art 101 since it infringed the distributor's ability to sell online/outside contractual territory.
Significance: Measures which restrict cross-border trade/online trade are liable to restrict competition and are restrictive by object.
142
Facts: Cosmetics/pharmaceutical company operated a selective distribution system (where distributors need to be authorised by specific criteria) in France, and required products be sold in a physical space with a pharmacist present. Was found to restrict Art 101 since it infringed the distributor's ability to sell online/outside contractual territory.
Significance: Measures which restrict cross-border trade/online trade are liable to restrict competition and are restrictive by object.
C-439/09 Pierre Fabre
143
What are the Art 101 justifications?
All four of the following must be satisfied:
1) Improves production, distribution, technical progress
2) Consumers benefit
3) No elimination of competition
4) No indispensable benefit = the market restriction is necessary to achieve aims. Essentially proportionality
144
What are block exemptions under Art 101?
Regulations that declare Article 101 (1) inapplicable in relation to categories of agreements, because these agreements are all likely to fall under the justifications of 101 (3).
145
Cases 6/73 and 7/73 Commercial Solvents
Facts: A raw material provider was going to start manufacturing the drug as well, so stopped selling to another manufacturer. Was ruled to be an abuse of a dominant position.
Significance: Parent had a 51% shareholding but was considered single economic unit with subsidiary due to management influence.
146
Facts: A raw material provider was going to start manufacturing the drug as well, so stopped selling to another manufacturer. Was ruled to be an abuse of a dominant position.
Significance: Parent had a 51% shareholding but was considered single economic unit with subsidiary due to management influence.
Cases 6/73 and 7/73 Commercial Solvents
147
C-295-295/04 Manfredi v Lloyd Adriatico
Facts: Italian insurance companies participated in an agreement to tie selling of separate products and exchange of information. Agreement was found to be unlawful and contributed to the rising of car insurance premiums. Several claimants sued for damages for increase of cost of premium.
Significance: CoJ ruled that any individual can rely on the invalidity of a 101 agreement and, if there's a causal relationship between the void agreement and the harm suffered, claim compensation. Would follow the MS' rules for compensation claims, causality, limitation periods, etc.
148
Facts: Italian insurance companies participated in an agreement to tie selling of separate products and exchange of information. Agreement was found to be unlawful and contributed to the rising of car insurance premiums. Several claimants sued for damages for increase of cost of premium.
Significance: CoJ ruled that any individual can rely on the invalidity of a 101 agreement and, if there's a causal relationship between the void agreement and the harm suffered, claim compensation. Would follow the MS' rules for compensation claims, causality, limitation periods, etc.
C-295-295/04 Manfredi v Lloyd Adriatico
149
What is prohibited under Art 102 TFEU?
Any abuse by an undertaking with a dominant position within the internal market/substantial part of it if it may affect trade between MS
150
What are the three requirements to infringe Art 102 TFEU?
1) An undertaking with a dominant position in a substantial part of the EU
2) abuses its dominance
3) May affect trade between MS
151
What is a dominant position?
A position of economic strength allowing a company to behave independently of its competitors, customers, consumers
152
Case 85/76 Hoffmann- La Roche
Facts: Vertical exclusivity agreements for vitamins. To establish dominance, the court looked not only at market share, but also the fact they were able to manufacture a wider range of vitamins than competitors, plus technological and commercial advantages not available to competitors.
Significance: Authority for definition of dominance (allowing a company to behave independently of competitors/customers/etc)
153
Facts: Vertical exclusivity agreements for vitamins. To establish dominance, the court looked not only at market share, but also the fact they were able to manufacture a wider range of vitamins than competitors, plus technological and commercial advantages not available to competitors.
Significance: Authority for definition of dominance (allowing a company to behave independently of competitors/customers/etc)
Case 85/76 Hoffmann- La Roche
154
DocMorris
Facts: A Parkinson's support group offered its members bonuses on prescription pharmaceuticals purchased from an online pharmacy. The bonuses were incompatible with German fixed prices (indistinct legislation). Was ruled to fall under Art 34, Germany tried to argue for public health justification but could not evidence it, failed on justification/proportionality.
Significance: MS must be able to demonstrate the validity of the justification.
155
Facts: A Parkinson's support group offered its members bonuses on prescription pharmaceuticals purchased from an online pharmacy. The bonuses were incompatible with German fixed prices (indistinct legislation). Was ruled to fall under Art 34, Germany tried to argue for public health justification but could not evidence it, failed on justification/proportionality.
Significance: MS must be able to demonstrate the validity of the justification.
DocMorris
156
Where is the preliminary ruling procedure defined?
Art 267 TFEU
157
Commission v Ireland - Buy Irish case
Facts: Irish Goods Council, a private organisation, campaigned to get consumers to switch from imported goods to Irish goods with ads, "guaranteed Irish" labels, etc. Despite being a private org, the outline of the campaign was set by the government, the managing committee were largely appointed by the Minister for Industry, and funding came from the government. As such, were found to be functionally under the control of the MS.
Significance: Clarified that private orgs with significant government involvement are subject to Commission Enforcement. Also an example of an enforcement action under Article 34 - free movement of goods.
158
Facts: Irish Goods Council, a private organisation, campaigned to get consumers to switch from imported goods to Irish goods with ads, "guaranteed Irish" labels, etc. Despite being a private org, the outline of the campaign was set by the government, the managing committee were largely appointed by the Minister for Industry, and funding came from the government. As such, were found to be functionally under the control of the MS.
Significance: Clarified that private orgs with significant government involvement are subject to Commission Enforcement. Also an example of an enforcement action under Article 34 - free movement of goods.
Commission v Ireland - Buy Irish case
159
What is the process for Commission Enforcement?
1) Commission notifies MS of non-compliance via a letter of formal notice (generally following an informal negotiation period)
2) MS can respond with their observations
3) MS gives a reasoned opinion and deadline to comply
4) If MS not compliant by the deadline, then Commission can refer the case to the CJEU
5) CJEU issues a declaratory judgement
6) If MS still doesn't comply, then Commission can apply to Court for penalty actions
