Cases

Question 1

Van Gend en Loos

Answer 1

Established direct effect of EU law - for EU law to have direct effect, it must be sufficiently clear, precise, and unconditional.
While all EU law that is sufficiently clear, precise and unconditional has direct effect, it cannot be invoked against every party.
The EU law itself must create an obligation for that party for it to be invoked against it.

Question 2

Costa/ENEL

Answer 2

EU law takes precedence/supremacy over all conflicting national law.

Question 3

Simmenthal

Answer 3

National courts are obliged to set aside conflicting national law with EU law. Further establishes supremacy and direct effect of EU law.

Question 4

Reyners

Answer 4

EU law must be sufficiently clear, precise, and unconditional to be invoked before and applied by a national court against an MS.

Question 5

Marshall; Faccini Dori

Answer 5

Directives are addressed to and binding upon MS (Art 288 TFEU). Directives cannot pose a direct obligation on citizens. NO horizontal direct effect of directives, only vertical direct effect. Thus, if the state does not implement the directive properly or in a timely manner it can be used by an individual (only) against the state.

Question 6

Marleasing, Pfeiffer

Answer 6

National courts must interpret national law as much as possible in conformity with the directive to avoid conflicts. Use when a directive is not correctly implemented by the end of the implementation deadline by the MS. Applies to all situations and disputes eg consumer protection directive

Question 7

Brasserie du Pecheur

Answer 7

Analyzing state liability for damages for when a MS does not correctly implement the directive/don’t implement the directive before the deadline. Three cumulative criteria -
1. Sufficiently serious breach by MS
2. Breached provision of EU law that aims to grant rights to individuals
3. Causal link between breach and damage
(Remember - Frankovich added on to Brasserie)

Question 8

Tobacco Advertising I

Answer 8

Background: Asks whether EU legislation is competent to adopt a directive that prohibits all advertising of tobacco products, and how competent is the EU to do that on basis of Art 114 TFEU?
Court: A mere fining of disparities between national rules and the abstract risk of obstacles to the exercise of fundamental freedoms is not sufficient to use Art 114 TFEU. Hence, measures adopted on the basis art 114 TFEU must have as their object the improvement of the conditions for the establishment and functioning of the internal market.

Question 9

Cassis de Dijon

Answer 9

Background: CD took Germany to Court under Art 34 TFEU – MS may not restrict free movement of goods.
Court: if we have no harmonization, it’s for the MS to regulate their economies. Therefore, if there are differences between the laws of the MS which cause obstacles to free movement (can’t sell CD in Germany), those obstacles must be accepted insofar as these laws (Germany minimum alcohol percentage) is necessary to satisfy mandatory requirements related to public health […] Germany’s reasoning, for public health, was not good enough and so the Court said just add alcohol percentage labels to protect consumers and public health.
As noted, product requirements could be ‘necessary to satisfy mandatory requirements’ (= objective justification) which are additional justifications in case law, next to Article 36 TFEU. These case law rules are only for indistinctly applicable measures – measures that do not directly discriminate against foreign products…
‘Insofar as they are necessary’ - proportionality.

Question 10

Commission v UK (beer/wine)

Answer 10

Art 110(2) TFEU catches tax provisions that apply unequal tax rating to goods that may not be strictly similar but are in competition with each other (eg beer and wine).
The objective is to prevent these differential tax ratings from affording indirect protection to domestic goods. So, if the tax is different because the product is different - that’s okay, but if the product serves a similar purpose and taxing it differently would favour domestically produced products, there is a prohibition per this case.

Question 11

Dassonville

Answer 11

Measure having equivalent effect (MEE): ‘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 equivalent effect.’
However… as long as the EU hasn’t harmonized rules relating to this specific case (here, certificates that confirms that the product has been produced in a certain country) … Member States may take reasonable measures to prevent unfair practices as long as they are not a hindrance to trade, accessible to all Community nationals, and do not constitute arbitrarily discrimination or a disguised restriction on trade.

Question 12

Keck & Mithouard

Answer 12

National rules ‘restricting or prohibiting’ certain selling arrangements are not MEEs in the sense of Dassonville IF they apply to all traders and do not discriminate against foreign products in law or in fact (as the national rules do not prevent foreign products to access the market any more than access of domestic products). Rules relating to certain selling arrangements are rules about the way products are sold (e.g., advertising, opening hours).
This is the ‘Keck exception’ - allows Member States to apply national regulatory measures to imported goods as long as they apply equally in law and in fact to domestic and foreign goods and they would not impose direct or substantial hindrance to market access.

Question 13

Familiapress

Answer 13

Distinction between product requirements and certain selling arrangements.
Distinction between the ‘rules about’ the goods themselves and the sale thereof.

Question 14

Mickelsson and Roos; Italian Trailers

Answer 14

M&R background: Concerned severely restrictive national law which only allows you to use jet skis on navigable waterways and banned jet skis on inland waterways
Court: Concluded that that the rule in Micklesson and Roos was an MEE because of the effect on consumer behavior as the ban effectively reduced the possibility for foreign traders to gain access to the Swedish market
- Thus, don’t have to prove discrimination, but rather just prove that access to the market has been hindered by the national measure

Question 15

Conegate

Answer 15

Member states can determine the public morality applicable within their territory, but they cannot place stricter burdens on imported goods than those applied to equivalent domestic goods.

Question 16

Commission v Denmark

Answer 16

Emphasized proportionality in the strict sense (balancing). Must always ask - does this measure lead to disproportionate effects on traders?

Question 17

Luisi and Carbone

Answer 17

If a service recipient is moving cross-border, this is covered under EU law.
If you are restricted in your ability to receive services abroad, that measure must be justified as it is covered under the treaty

Question 18

Sager

Answer 18

If a service provider moves cross border to provide services in another MS, this is covered under EU law.
Background: German legislation restricting all activities regarding maintenance of IP rights to only patent agents allowed to carry out such services. Under UK law, however, there was no need to be a patent agent. So, if a UK company wanted to provide these services to German customers, they were prevented by this German law. Applies to all, so no direct or indirect discrimination
Court: It should first be pointed out that Article [56 TFEU] requires […] the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services.” The freedom to provide services may be limited only by rules which are justified by imperative reasons relating to the public interest and which apply to all persons or undertakings pursuing an activity in the State of destination, insofar as that interest is not protected by the rules to which the person providing the services is subject in the Member State in which he is established (no dual burden)
Result: If you lawfully provide services in your HS (where you are established as a company), then you want to provide services to recipients in another MS, rules of that MS which inhibit or impede this service are restrictions to the free movement of services

Question 19

Alpine investments

Answer 19

If the service itself moves cross-border (neither the provider nor recipient moves), it is covered under EU law
What is a ‘restriction’ of the free movement of services? All forms of direct and indirect discrimination e.g. Van Binsbergen.
Non-discriminatory measures which ‘directly affect market access

Question 20

Laval

Answer 20

Construction company Laval could invoke Art 56 TFEU against Swedish Labour Union as certain private entitles are capable of effecting free movement of services by reason of their specific legal position or by reason of the way in which they regulate services in a collective manner
Article 56 TFEU can also be invoked against private entities who are exercising legal autonomy and who are regulating in a collective manner the provision of services

Question 21

Walrave and koch

Answer 21

Article 56 TFEU can also be invoked against private entities who are exercising legal autonomy and who are regulating in a collective manner the provision of services

Question 22

Viking Line

Answer 22

Background: ferry that wanted to reflag its vessel from Finland to Estonia so the workers would be paid the much lower Estonian wages, thus cutting costs. In response, Finnish union boycotted Viking line to force it to comply with collectively agreed wages in Finland (similar to Lavar case: fundamental freedom vs free movement right)
Issue: was the strike a restriction to the freedom of establishment?
Court: Art 49 TFEU applies to trade unions, and the collective action to the trade union was a restriction to freedom of establishment. While there was a restriction, in the sense of the union strike, the fundamental right to strike must still be proportional (suitable and necessary)

Question 23

Vlassopoulou

Answer 23

Background: Greek lawyer who wanted access to German bar, but couldn’t as she didn’t fill the specific German requirements
Court: The German rules were non-discriminatory (indistinctly applicable) as German-based lawyers would have followed the required path, but non-German lawyers would not have. So, this was a free movement restriction on Vlassopoulou’s right.
Thus, the MS must take into account the equivalence of professional qualifications an aspiring lawyer has acquired in their own MS. So, insofar as Vlassopoulou has acquired a substantial degree of relevant legal knowledge in Greece and/or her work and PhD in Germany… the German legal bar must take into account these qualifications, expertise, etc., in requiring of her what additional courses she must follow.
Conclusion: A requirement that you need to have done the full German legal studies path is a restriction to the freedom of establishment

Question 24

Gebhard

Answer 24

Background: concerned a Dutch lawyer who had a law office in Italy but wasn’t registered at the Italian bar and hadn’t studied law in Italy
Key: “National measures liable to hinder or make less attractive the exercise of fundamental freedoms” – are restrictions and prohibited!
Gebhard requirements:
- Legitimate objective of public interest -Indistinctly applicable. - Proportionality (of which… Suitability 
and necessity (Implied: public interest justification not harmonised at EU level)
Similar to Vlassopoulou: Likewise, in applying their national provisions, Member States may not ignore the knowledge and qualifications already acquired by the person concerned in another Member State […]. Consequently, they must take account of the equivalence of diplomas […] and, if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned […]”

Question 25

Centros

Answer 25

Background: concerned an incorporation that was incorporated in the UK but had a secondary establishment in Denmark which they worked entirely out of All countries have minimum requirements for incorporating a company, and the UK had looser requirements than Denmark regarding minimum capital requirements (the UK used incorporation theory for creating a company, so Centros was legally and formally a company under UK law), but Centros was made by Danish people and wanted to do their business in Denmark but didn’t want to be subject to Danish strict requirements. The Danish Board of Trade and Companies knew about this and accused Centros of circumvention of Danish law, and thus refused to recognize the secondary establishment in Denmark
Court: the refusal to register secondary establishment restricts freedom of establishment. As stated in Art 54 TFEU - if you are a company formed in accordance with the law of a certain MS, you shall enjoy the freedom of establishment across the EU. So, Denmark, based on the text of Art 54 TFEU, had no choice but to recognize the fact that Centros was formed in accordance with UK law and could carry out establishment activities in Denmark.
There was no discrimination, thus an indistinctly applicable measure, so Denmark tried to use objective justifications, arguing their measures were to combat fraud and abuse. Denmark argued that this minimum capital requirement (which Centros does not meet as it only had to meet the looser UK requirement) was necessary to combat fraud, abuse, and protect businesses.
The Court recognized these considerations as legitimate reasons, but the mere fact that you are using your free movement rights cannot be qualified as abuse of free movement of establishment. In this case, Centros just made use of their freedom of establishment rights and that fact is not enough to say that we are talking about abuse. Thus, the measures were not suitable nor necessary for the restrictions of Denmark
KEY: Thus, once a company is incorporated in another MS, every MS in the Union must recognize that company as legally established and allow it to carry out activities in their MS (mutual recognition)

Question 26

Angonese

Answer 26

Background: concerned a private entity in Italy which recruited new employees and one of the perspective candidates was Angonese that was bilingual in Italian and German and the job he wanted to apply to involved translating between those two languages. The bank required applicants to have a specific language certificate proving their proficiency in German and Italian, but the bank only recognized such a certificate issued by Italian language institutes. Angonese didn’t have such a language certificate, didn’t feel he needed it anyways.
Issue: Was the bank allowed to require this certificate specifically?
Court: this requirement is indirect discrimination on the basis of nationality since so non-Italian persons are put at a disadvantage in effect by this specific requirement. Since discrimination on the basis of nationality against persons is a prohibition and a fundamental right, the Court allowed Angonese to invoke Art 45(2) against the bank (hence, horizontal direct effect)
Key: Art 45 (2) also has full horizontal direct effect when concerning the prohibition against nationality discrimination

Question 27

Levin

Answer 27

Court emphasizes that the definition of a worker is under the autonomous concept of EU law that is independent of national legislation (Levin)
Although part-time work, low-wage work, etc. may not be defined ‘worker’ under national legislation, it is under the definition of being a worker in EU law, and thus under Art 45 TFEU
Workers, however, cannot be defined under activities that are “purely marginal and ancillary” (Levin)

Question 28

Trojani

Answer 28

Workers have a hierarchical relationship, the existence of an employment relationship in which they provide services in a hierarchical relationship, have a payment of remuneration, and the paid activity must be real and genuine
Distinguish from self-employment.

Question 29

Bosman

Answer 29

Nationality requirements regarding territory is discriminatory
Rule that you must have certain players of certain nationalities on the field is discrimination – hence, invoke Art 45 against UEFA under discrimination
Transfer sum rule is a non-discriminatory (indistinctly applicable) measure
Regardless of whether or not you had an employment contract, your old club could determine whether or not you could go to another club, even if your contract was over with the previous club, because they had possession of the player registration and the new club had to pay a transfer sum to acquire this player registration effectively
These rules, even though they are non-discriminatory (indistinctly applicable), directly affected players’ access to the employment market in other Member States”
Court: struck down the player registration rights rule, and in effect, banned the transfer sum rule

Question 30

Singh

Answer 30

Background: A British woman moved to Germany with her Indian husband, then they moved back to the UK when the woman wanted to start a business in UK. As soon as she moved back to the UK, does Mr. Singh have to go back to India since the Directive (as it only concerned moving to and residing in another MS, and did not concern returning to one’s own MS) no longer applies and his residence rights no longer exist?
Court: It would be unfair and odd to take away his residence rights. Therefore, continue to keep/retain the derivative residence rights once you return to your own MS. So, the basis of that derivative residence right is the fundamental freedom in the treaty. If you move back to your home-state and you are going to work for that home-state/in that home-state, then Mr. Singh can go back with her to that MS, and he gets derivative rights based on Art 45 TFEU
If Ms. Singh goes back as a self-employed person, then Mr. Singh’s rights need to be based on Art 49 TFEU
Thus, derivative residence rights retained based on Art 45 TFEU (Singh)… Or Art 49 TFEU depending on the facts

Question 31

Antonissen

Answer 31

While Art 45 TFEU does not literally give rights to jobseekers, the Court interpreted it as: the host-state of a jobseeker cannot suddenly decide to expel this jobseeker for the sole reason that they are not yet a job worker. If Art 45 was to grant rights only to people who already have work in the MS, this would make the Article less effective as most people are in the jobseeker position when they travel to another MS. Thus, Article 45(3) TFEU gives rights to jobseekers moving to another MS. So, the Court said that Mr. Antonissen was allowed to live in the UK at least as long as they have a reasonable chance of finding work.
Dir 2004/38 codifies the Antonissen judgement

Question 32

Rottmann

Answer 32

EU law has jurisdiction over MS revoking citizenship as, if one’s citizenship is revoked, then that will also revoke that individual of their EU citizenship (as it is derived from MS citizenship) and their EU rights that come from it. Thus, MS must engage in a proportionality test if they want to revoke citizenship

Question 33

Zhu and Chen

Answer 33

Background: Derivative residence rights – must be a dependent on the EU citizen, which means that the parent or the child is actually dependent on the EU citizen. However, the parent (Chen) was not dependent on Zhu (the child). Thus, there was no derivative residence right under previous Dir or even current Dir.
Court: But if the mother doesn’t have a derivative residence right, then Zhu does not have a derivative residence right since she cannot stay in the UK by herself. So, the Court concluded that there is also a derivative residence right on the basis of Art 21 TFEU for Chen (Zhu’s Mother) because without the derivative residence right of Chen, the primary residence rights of Zhu (the daughter) would be useless. Thus, while the Dir did not give a grammatical derivative residence right to Chen, it did not say that Chen would not have a residence right. That is why the Court goes back to the treaty and uses Art 21 TFEU to derive a derivative residence right for Mrs. Chen to ensure full residence right for Zhu.
Based on Article 21 TFEU instead of (what is now) Article 7(2) Directive 2004/38

Question 34

Ruiz Zambrano

Answer 34

Background: two kids born in Belgium whose parents had moved to Belgium as asylum seekers but stayed in Belgium and no longer had a right of lawful residence in Belgium. However, the family got two children while they were in Belgium and the two kids became Belgian citizens, and thus had a right to reside in Belgium of course. But the parents had to leave the country and, just like in Chen, the Court says that the children have a right to enjoy the substance of the rights of EU citizenship since they are EU citizens, but if their parents are expelled to their home country, then practically the children have to go with them since they cannot stay by themselves in Belgium. So, expelling the parents effectively means the kids are expelled too (de facto loss of EU citizenship rights). This is a purely internal situation since they never crossed a frontier, and so Art 21, Directive 2004/38, and other fundamental freedoms of movement are not applicable.
But because expelling the parents effectively meant the kids would have to leave the EU as well, the scope of the case fell within Art 20.
Court: Therefore, Belgium was required to give a derivative residence right to the parents based on the rights of the kids given to the parents under Art 20 as such.
Conclusion: there is a derivative residence rights for some family members to ensure “genuine enjoyment of the substance of the rights” of EU citizenship for the EU citizens

Question 35

Dano

Answer 35

Conclusion: established that without a residence right, there is no right to equal treatment
Question: Under which circumstances EU citizens have a right to equal treatment on the context of social assistance
Court: Germany had given Dano the right to reside on the basis of German law (she had a registration card) but under EU law she did not have a right to reside in Germany because she was not under any of the categories under Art 7 of the directive as she was not a jobseeker and neither had a reasonable chance of getting a job (Art 14). In practice she did not have sufficient means not to become a burden on the social assistance system.
In this case, the Court concluded that Dano was a burden on the social assistance system b/c she had applied for benefits.
Conclusion: Dano did not have a right of residence on the basis of Art 7, and thus means that Dano did not have a right to equal treatment. You have a right to equal treatment if you have a right to reside on the basis of the Directive. Since Dano doesn’t have a right to reside in Germany, thus having no right to equal treatment in Germany – she does not have a right under Art 18 or 21 TFEU.
Remember: If the conclusion is that person does not have a right to equal treatment nor residence, then that is the end of it. You don’t go back to art 18 or 21 and ask if any rights can be derived from those provisions – you just stop with this conclusion.

Question 36

Kucudeveci

Answer 36

Enforcement of non-discrimination principle in situations within the scope of Directive 2000/78
Transposition deadline of the Directive has now passed, so any case in discrimination on any grounds in the Directive fell automatically in EU law
Article 21 Charter of Fundamental Rights has horizontal direct effect Implied by Mangold and Kücükdeveci, confirmed in e.g. Egenberger Duty for national courts to set aside conflicting national law, even in 
horizontal disputes

Question 37

Egenberger

Answer 37

Article 21 of the charter of fundamental rights has horizontal direct effect Implied by Mangold and Kücükdeveci, confirmed in e.g. Egenberger Duty for national courts to set aside conflicting national law, even in 
horizontal disputes

Question 38

Melloni

Answer 38

Main takeaway: EU law has primacy and effectiveness and cannot be effected by higher levels of protection in an MS constitution
Interpretation of Article 1(3) EAW in light of Article 53 CFR
The Charter shall not be affected by higher levels of human rights protection by MS constitutions.
Can you deviate from the EAW on the basis that your constitution requires a higher level of protection?
Court: No – through a very narrow reading of Art 53 – MS can give you more protection when you’re in the scope of MS law, but once you are in EU law, the higher protection cannot affect the primacy and effectiveness of EU law.
In EAW system, the primacy and effectiveness of EAW framework system, cannot be affected by higher protection in MS constitution.
Practically speaking, the Spanish judge must ignore the constitution and simply apply the EAW framework decision.

Question 39

Aranyosi and Caldararu

Answer 39

Question: do I have to execute this EAW if I have reason to believe these people will have their fundamental rights affected when they go to prisons (degrading, inhumane conditions)
There is possibility for the rebuttal of the presumption of mutual trust “in exceptional circumstances”
Court: Two-step test in order to rebut the presumption of mutual trust in exceptional circumstances:
1) national court of the executing MS must identify if there is a general risk of inhuman or degrading treatment
If this is the case, the Court of the executing MS must also show that…
2) There is a substantial reason to believe that this individual is being exposed to that risk identified
Systemic, general, or specific deficiencies are not enough for non-execution

Question 40

LM

Answer 40

Confirmation of the two-step test from Aranyosi and Căldăraru
Polish suspect arrested in Ireland issued by EAW but here the question was: whether the execution of the AW could be ended for the reason that the right to a fair trial as guaranteed by Art 47 was insufficiently guaranteed in Poland
1) Irish judge must ascertain whether there are systemic or generalized deficiencies in regard to judicial independence which would adversely affect the right to a fair trial
* If this is the case, the Irish judge must also ascertain there is reason to believe…
2) … that there is a risk of breach of right to fair trial in individual case (to this particular person)

Question 41

Micheletti

Answer 41

MS decide who is a national (however, looking at Bosman it is not entirely up to MS to strip someone of their nationality)

Question 42

Morgan and Butcher

Answer 42

Background: Concerned two German students who wanted to study in the UK and NL, respectively, and wanted to take a maintenance grant for students provided by the German government abroad. German law said you can do this, but only if you first study for 1-year in Germany then go to another MS and continue studies there in the same field.
Analysis: Couldn’t use Directive here as it doesn’t cover restrictions imposed by the same MS of that national (home-state), even if there was a cross-border effect.
Thus, there is a restriction concerning the fact you have to study in Germany for 1-year before you can get grant as this restriction is liable to hinder and make less attractive free movement (Gebhardt)
If there’s an impediment to free movement, the MS must objectively justify this restriction based on a Treaty derogation or overriding reason in the public interest
The court accepts the argument that the MS must require a certain degree of integration in the MS before you give them a right to equal treatment. However, purely financial justifications (Germany’s argument was based on people leaving then not coming back, and then not getting taxes, etc.) are not accepted by the Court
Hence, in Morgan and Bucher, the measure by Germany not justified

Question 43

Defrenne II

Answer 43

Landmark case where Court ruled that Art 157 TFEU had an economic and social objective
Initially, equal pay was mainly for economic objective so the state that paid women less did not have a competitive advantage over the state that paid women more
In Defrenne II, Court said Art 157 TFEU has direct effect
Since Article 119 (Art 157 TFEU) is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labor collectively, as well as to contracts between individuals.”
Thus, it has both vertical and horizontal direct effect
In respect of combatting all forms of discrimination, this article was not sufficiently clear and unconditional
Its effect was to be conditional upon those additional measures adopted
But, in respect of direct discrimination (like in this case), we can establish that there is a clear and unconditional obligation that this is prohibited
So according to the court, in a situation of direct discrimination, the national court is “to establish all the facts which enable it to decide whether a woman worker is receiving lower pay than a male worker performing the same tasks.”

Question 44

Mangold

Answer 44

Enforcement of Directive 2000/78 before the end of its transposition deadline
Background: Concerned older German man who was discriminated on the basis of his age. Directive 2000/78 includes non-discrimination on the basis of age. However, at the time, the transposition for Directive 2000/78 had not yet expired, and so the Dir did not have direct effect. (Remember! You can only invoke a Directive against a MS once the transposition period has passed as the MS has not implemented it in time (Brasserie du Pecheur). Another issue was also that this was a private party v private party dispute. Thus, Mangold could not invoke the directive as such – but he could invoke the general principles of non-discrimination which underlies the Directive (remember, the Directive concertizes general principles of EU law)
Court: the fact that this German legislation violates Directive 2000/78 means that you can invoke this Directive together with the general principle of non-discrimination on age before the transposition deadline – this was because this Directive did not introduce the prohibition of discrimination in respect of age, but merely concertized an already existing general principle of EU law saying you cannot discriminate on age. As that general principle of EU law exists already, it is not dependent on some transposition deadline. As such, these general principles are binding for MS in all situations at any time as long as the dispute is in the scope of EU law.
Thus, non-discrimination in respect of age as a “general principle of EU law” and can be invoked even if the Directive has not been implemented and its transposition time has not been passed
Key: General principles of EU law are always binding for MS if the issue falls within the scope of EU law

Question 45

Huls

Answer 45

Agreement: any concurrence of wills Concerted practice: coordination without formal agreement - Presumption that concerted practice will be implemented (Hüls)
Thus, when there is a situation of concerted practice we don’t need an explicit confirmation form the other parties we can assume that concerted practice will be implemented

Question 46

Societe Technique Miniere

Answer 46

Background: Also, a case of exclusive distribution, but without trademark protection as in C&G. STM was the exclusive distributor for a German product. While there is a restriction on competition, the Court recognizes that this also has its benefits.
Court: it might be the case that having one distributor only is necessary to penetrate the national market in question. If that is the case, then the benefits of the exclusive distribution agreement outweigh the disadvantages.
Thus, must look at effects of exclusive distribution agreement. Need to look at if the contract is necessary for the product to enter market in the first place. If that is so, then it outweighs restriction on inter-brand competition
Different result from C&B b/c in that case, there was a trademark protection which went too far and was absolute territorial protection which has, as its object the restriction of competition.
Court: an influence, direct or indirect, actual or potential, on the pattern of trade between Member States” (Société Technique Minière)…
…Only when coordination between undertakings does not have as its object the restriction of competition, its effects should be considered…
…Assess the positive and negative effects of the agreement on competition (by “counterfactual analysis)
- look at the actual context in which competition would occur in the absence of the agreement in dispute. Basically, if you want to know if there is a detrimental effect to competition by the agreement – you look at the competitive situation with the agreement and you compare it to the competition that would have existed if the agreement was not there

Question 47

Consten & Grundig

Answer 47

Background: Consten was the exclusive distributor in Belgium that also acquired a trademark on Grundig which meant that it was not only legally impossible for any other distributor to sell Grundig products in Belgium b/c it would violate the exclusive distribution agreement but also b/c it would violate the trademark of the Grundig logo that Consten possessed. So, by adding the trademark protection, the agreement ensured that legally no distributor could sell Grundig appliances in Belgium aside from Consten
Basically, one distributor per Member State, protected by:
1. Contractual agreements
2. Trademark protection
Court: this combination contract (exclusive distribution and trademark) conferred absolute territorial protection to Consten, and this was a restriction of competition by object. This was more about integrating markets rather than consumer welfare. Thus, this showed that MS cannot restrict trade and also individual agreements cannot restrict trade either
Absolute territorial protection = restriction of competition by object

Question 48

Cartes Bancaires

Answer 48

Court: case law of the court shows us that certain types of coordination’s between undertakings are a sufficient degree of harm to competition. So, no need to examine their effects. Certain types of coordination between undertakings can be regarded as by their very nature harmful to completion. Specifically, elusive behavior leading to cartels. So, things like horizontal price fixing or market sharing are so contrary to the idea of free competition that we don’t want to waste time or resources to actually prove that they have led to anti-competitive (have restricted competition) effects
Only when coordination between undertakings does not have as its object the restriction of competition, its effects should be considered

Question 49

Pronuptia

Answer 49

Regarding franchising.
Vertical restrictions connected to franchise agreement not contrary to Article 101(1) TFEU insofar as they are:
Necessary to prevent know-how from getting to competitors
Necessary to protect identity and reputation of the brand
Conclusion: franchising agreements not contrary to 101 if the contractual clauses are necessary to prevent know-how (how a company operates and the way in which products are sold) from getting to competitors and the contract clauses may be necessary to protect identity and reputation of the brand

Question 50

Metro I

Answer 50

Selective distribution is not contrary to Article 101(1) TFEU if distributors are selected on the basis of objective, qualitative criteria, and this criterion is uniformly applied without discrimination
Court: selective distribution systems are not contrary to 101(1). There’s a presumption their positive effects for Interbrand competition outweighs negative effects on intrabrand competition.
No absolute territorial protection allowed.

Question 51

United Brands

Answer 51

Court: A position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers

Question 52

Bronner

Answer 52

Background: In this case, there was a company who published a newspaper and used its own distribution network to bring the newspaper to all of its readers. Bronner was someone who published a newspaper with much lower output and wanted to make use of the distribution network of the dominant undertaking (of his competitor which is a much bigger newspaper company). The newspaper company refused this request.
Court: It’s fine that the newspaper company refused Bronner’s request as the fact that it is very difficult for Bronner to create his own distribution network is not enough to force the distribution company to give access to of their own distribution network to him. The distribution network needs to be indispensable, and here it would just make his life easier if he got them but was not indispensable (indispensable: your good or service is an essential facility for that person/company (i.e., meaning cant be active on the market without it))
Thus, only abusive if the goods or services are indispensable for the customer. There’s a high threshold for abuse because of contract freedom.

Question 53

Hoffmann-La Roche

Answer 53

Concerned fidelity rebates
Offering this discount can help you maintain/strengthen your dominant position, and this is abusive by nature (Hoffmann–La Roche)
You can’t give a discount on the condition that consumer gets their stuff only from you, and this is simply not allowed to do as a dominant company

Question 54

Akzo Chemie

Answer 54

Regarding predatory pricing
Distinction between prices below ”average variable costs” and prices below “average total costs” (Akzo Chemie)
If a dominant undertaking charges prices below AVC, it’s abusive b/c there is no economic reason why you would do that because if you price below AVC, you make a loss on every single product you sell.
If pricing below AVC, economically irrational and automatically abusive
If pricing between AVC and ATC, the potentially abusive – look at other factors

Question 55

Hofner and Elser

Answer 55

“Every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed”
Whenever you are engaged in trading you are undertaking for the purpose of 101 TFEU, sometimes even MS can be undertakings regarding specific activities

Question 56

Expedia

Answer 56

Restrictions of competition by object are by definition appreciable (Expedia)
If you have a restriction of competition by object that is so serious, it is presumed to have appreciable effects on the market
Remember De Minimis doctrine: Only appreciable restrictions fall within the scope of Art 101 TFEU as not all anti-competitive effects violate Art 101(1)

Question 57

Michelin I

Answer 57

Having a dominant position is not prohibited, but you have a special responsibility not to allow your conduct to impair genuine competition.
Court: “… irrespective of the reasons for which it has such a position, the undertaking concerned has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market” (Michelin I, para. 57)
Once you’re dominant, there are things you are no longer allowed to do, but your smaller competitors are allowed to do

Question 58

Chemial

Answer 58

Prohibition of direct and indirect discrimination unless objectively justified