EU Authorities Flashcards

Question 1

Q

Article 267 Procedure > Question Structure

Answer

A

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

Question 2

Q

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

Dorsch Consult

Answer

A

Established by Law
Permanent
Applies Rules of Law
Jurisdiction is compulsory
Independent
Whether it’s procedure is inter-parties

Question 3

Q

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

Answer

A

Dorsch Consult

Established by Law
Permanent
Applies Rules of Law
Jurisdiction is compulsory
Independent
Whether it’s procedure is inter-parties

Question 4

Q

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

Broekmeulen v Huisarts Registratie Committee

Answer

A

Not all Dorsch factors must be satisfied

Question 5

Q

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

Not all Dorsch factors must be satisfied

Answer

A

Broekmeulen v Huisarts Registratie Committee

Question 6

Q

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

Nordsee v Reederei Mond

Answer

A

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

Question 7

Q

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

Answer

A

Nordsee v Reederei Mond

Question 8

Q

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

Answer

A

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

Question 9

Q

Article 267 Procedure >

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

Answer

A

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

Question 10

Q

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

Answer

A

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

Question 11

Q

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

Answer

A

Da Costa en Schaake

Question 12

Q

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

Answer

A

Doctrine of Acte Clair

Question 13

Q

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

Answer

A

Da Costa en Schaake

Question 14

Q

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

Answer

A

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

Question 15

Q

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

Answer

A

CILFIT para 21

Question 16

Q

Article 267 Procedure >

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

Answer

A

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

Question 17

Q

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

Answer

A

TFEU Art.267(3)

Question 18

Q

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

Answer

A

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

Question 19

Q

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

Answer

A

Costa v Enel

Question 20

Q

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

Answer

A

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

Question 21

Q

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

Answer

A

Köbler v Austria

Question 22

Q

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

Answer

A

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

Question 23

Q

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

Answer

A

TFEU Art.267(2)

Question 24

Q

Article 267 Procedure >

3. Jurisdiction > ECJ Information Note Guidelines

Answer

A

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

Question 25

Q

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

Answer

A

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

Question 26

Q

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

Answer

A

Rheinmülen-Düsseldorf

Question 27

Q

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

Answer

A

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

Question 28

Q

Article 267 Procedure >

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

Answer

A

Foto-frost

Question 29

Q

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

Answer

A

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

Question 30

Q

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

Answer

A

R v International Stock Exchange ex p Else

Question 31

Q

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

Answer

A

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

Question 32

Q

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

Answer

A

Trinity Mirror plc

Question 33

Q

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

Answer

A

Where there is no genuine dispute

Question 34

Q

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

Answer

A

Foglia v Novello

Question 35

Q

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

Answer

A

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

Question 36

Q

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

Answer

A

Costa v ENEL

Question 37

Q

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

Answer

A

Where the national court provides insufficient factual background

Question 38

Q

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

Answer

A

Telemarsicabruzzo v Circostel

Question 39

Q

Article 267 Procedure > 5. Conclude >

TEU Art.4(3)

Answer

A

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

Question 40

Q

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

Answer

A

TEU Art.4(3)

Question 41

Q

Article 267 Procedure > 5. Conclude >

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

Answer

A

All Courts must follow rulings of the ECJ

Question 42

Q

Article 267 Procedure > 5. Conclude >

All Courts must follow rulings of the ECJ

Answer

A

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

Question 43

Q

Direct Effect > Define

Answer

A

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

Question 44

Q

Direct Effect >

Van Gen den Loos

Answer

A

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

Question 45

Q

Direct Effect >

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

Answer

A

Van Gen den Loos

Question 46

Q

Direct Effect >

Defrenne v SABENA

Answer

A

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

Question 47

Q

Direct Effect >

Leoniso v Italian Minister of Agriculture

Answer

A

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

Question 48

Q

Direct Effect >

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

Answer

A

Leoniso v Italian Minister of Agriculture

Question 49

Q

Direct Effect >

Antonio Munoz Cia SA v Frumar Ltd

Answer

A

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

Question 50

Q

Direct Effect >

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

Answer

A

Antonio Munoz Cia SA v Frumar Ltd

Question 51

Q

Direct Effect >

Van Duyn v Home Office

Answer

A

Directives = VERTICAL ONLY

Question 52

Q

Direct Effect >

Directives = VERTICAL ONLY

Answer

A

Van Duyn v Home Office

Question 53

Q

Direct Effect >

Marshall v Southampton & SW Hampshire Area Health Authority

Answer

A

Affirmed that directives do not have horizontal effect

Question 54

Q

Direct Effect >

Affirmed that directives do not have horizontal effect

Answer

A

Marshall v Southampton & SW Hampshire Area Health Authority

Question 55

Q

Direct Effect >

Paola Faccini Dori v Recreb Srl and Vaneetveld v Le Foyer

Answer

A

Confirmed directives have vertical effect only

Question 56

Q

Direct Effect >

Confirmed directives have vertical effect only

Answer

A

Paola Faccini Dori v Recreb Srl and Vaneetveld v Le Foyer

Question 57

Q

Direct Effect > State…

Answer

A

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

Question 58

Q

Direct Effect >

Van Gend Criteria

Answer

A

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

Question 59

Q

Direct Effect >

Van Duyn

Answer

A

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

Question 60

Q

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

Question 61

Q

Direct Effect >

Pubblico Ministero v Ratti

Answer

A

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

Question 62

Q

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

Answer

A

Pubblico Ministero v Ratti

Question 63

Q

Direct Effect >

Foster v British Gas

Answer

A

The employer must be an emanation of the state

Question 64

Q

Direct Effect >

The employer must be an emanation of the state

Answer

A

Foster v British Gas

Answer 64

A

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

Answer 65

A

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

Answer 66

A

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

Answer 67

A

Farrel v Whitty

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

Answer 68

A

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

Answer 69

A

Von Colson and Kamman v Land Nordrhein Westfalen and Marleasing SA

Answer 70

A

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

Answer 71

A

Pickstone v Freemans

Answer 72

A

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

Answer 73

A

Litster v Forth Dry Dock and Engineering

Answer 74

A

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

Answer 75

A

Marleasing

Answer 76

A

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

Answer 77

A

Duke v GEC Reliance

Answer 78

A

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

Answer 79

A

Webb v EMO Air Cargo (UK) Ltd

Answer 80

A

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

Answer 81

A

Wagner Miret

Answer 82

A

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

Answer 83

A

Francovich

Answer 84

A

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

Answer 85

A

Factortame

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

Answer 86

A

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

Answer 87

A

Incorrect Implementation: a breach that ‘manifestly and gravely disregarded the limits on the exercise of it’s power.’ Three Factors:

Clarity and precision of the rule breached
Whether the Error of Law is Excusable, e.g. if another member state has made the same mistake
Whether the position taken by an EU institution has contributed (e.g. guidelines from commission)

Answer 88

A

Brasserie du Pêcheur v Germany

Answer 89

A

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

Answer 90

A

Ex p British Telecom

Answer 91

A

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

Answer 92

A

Dillenkofer and others v Germany

Answer 93

A

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

Answer 94

A

Köbler v Austria

Answer 95

A

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

Answer 96

A

Defrenne v SABENA

Answer 97

A

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

Answer 98

A

Article 157 TFEU

Answer 99

A

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

Answer 100

A

Defrenne v SABENA

Answer 101

A

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

Answer 102

A

Art.157(2)

Answer 103

A

Travel concessions for family of retired

Answer 104

A

Garland v British Rail Engineering

Answer 105

A

Statutory redundancy pay

Answer 106

A

Barber v Guardian Royal Exchange Assurance Group

Answer 107

A

Pension payments (unless statutory social security pensions – Defrenne)

Answer 108

A

Bilka-Kaufhaus GmbH v Von Hartz

Answer 109

A

Damages for unfair dismissal

Answer 110

A

Ex p Seymour-Smith v Perez

Answer 111

A

Treatment

Answer 112

A

Individual must rely on recast directive 2006/54

Answer 113

A

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

Answer 114

A

Art.2(1) Recast Directive 2006/54

Answer 115

A

Woman fired because she was pregnant

Answer 116

A

Webb v EMO Air Cargo

Answer 117

A

Woman not hired because she was pregnant

Answer 118

A

Male cabin crew paid more than female cabin crew

Answer 119

A

Defrene v SABENA

Answer 120

A

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

Answer 121

A

Pregnancy Directive 92/85

Answer 122

A

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

Answer 123

A

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

Answer 124

A

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

Answer 125

A

Jenkins v Kingsgate

Answer 126

A

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

Answer 127

A

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

Answer 128

A

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

Answer 129

A

Occupational Requirement example: Midwifery could be restricted to women

Answer 130

A

Commission v UK

Answer 131

A

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

Answer 132

A

Johnston v Chief Constable of the RUC

Answer 133

A

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

Answer 134

A

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

Answer 135

A

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

Answer 136

A

Art.157 TFEU

Answer 137

A

Cannot favour less qualified women

Answer 138

A

Abrahamsson and Anderson v Fogelqvist

Answer 139

A

Cannot automatically favour equally qualified women

Answer 140

A

Kalanke v Freie Hansestadt Bremen

Answer 141

A

ECJ upheld the following German positive action policy:

Where a man and woman are equally qualified for a job  presumption that the under-represented sex must be favoured; however,
Can be rebutted if man proves he has overriding characteristics

Answer 142

A

Hellmut Marschall v Nordrhein-Westfalen:

ECJ upheld the following German positive action policy:

Where a man and woman are equally qualified for a job  presumption that the under-represented sex must be favoured; however,
Can be rebutted if man proves he has overriding characteristics

Answer 143

A

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

Answer 144

A

Art.3 Recast Directive

Answer 145

A

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

Answer 146

A

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

Answer 147

A

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

Answer 148

A

Rinner-Kühn applied in Ex p Seymour-Smith

Answer 149

A

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

Answer 150

A

TFEU Art.26

Answer 151

A

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

Answer 152

A

TFEU Art.28

Answer 153

A

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

Answer 154

A

TFEU Art.34

Answer 155

A

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

Answer 156

A

The laws in question will infringe Art.34 if they are:

Quantitative Restrictions (e.g. quotas); or
Measures having equivalent effect on quantitative restrictions

Answer 157

A

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

Answer 158

A

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

Answer 159

A

Art.114(4)

Answer 160

A

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

Answer 161

A

Art.114(5)

Answer 162

A

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

Answer 163

A

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

Answer 164

A

Riseria Luigi Geddo v Ente Nazionale Risi

Answer 165

A

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

Answer 166

A

Procureur do Roi v Dassonville

Answer 167

A

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

Answer 168

A

Commission v Ireland

Answer 169

A

Licensing requirement for imports

Requirement to re-package in UK

Answer 170

A

Requirement to mark origin of product

Answer 171

A

Origin Marketing

Answer 172

A

Government failure to act against anti-importer protests

Answer 173

A

Commission v France (Angry Farmers)

Answer 174

A

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

Answer 175

A

Article 34

Keck and Mithouard

Answer 176

A

They relate to shop opening hours

Answer 177

A

Punto Casa v Capena

Answer 178

A

They stipulate WHERE the goods in question can be SOLD

Answer 179

A

Commission v Greece

Answer 180

A

The place restrictions on ADVERTISING

Answer 181

A

Hünermund ; Societe d’Importation Edouard Leclerc-Siplec

Answer 182

A

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

Answer 183

A

Mars GmbH ; Clinique Laboratories

Answer 184

A

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

Answer 185

A

KO v GIP (AB)

Answer 186

A

Measure applies only to imported goods

Answer 187

A

Irish Souvenirs

Answer 188

A

Measure applies to all products, irrespective of national origin

Answer 189

A

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

Answer 190

A

Article 36TFEU exceptions:

Answer 191

A

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

Answer 192

A

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

Answer 193

A

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

Answer 194

A

R v Henn and Darby

Answer 195

A

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

Answer 196

A

Conegate Ltd v Comissioners of Customs and Excise

Answer 197

A

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

Answer 198

A

R v Thompson

Answer 199

A

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

Answer 200

A

Eugen Schmidberger ITP v Austria ; Omega-Spielhallen

Answer 201

A

Has the situation gone unchecked for many years?

Answer 202

A

Commission v France (angry farmers)

Answer 203

A

Only where there is a medical evidence of a real risk

Answer 204

A

Cannot be guise to protect industry

Answer 205

A

Newcastle Disease

Answer 206

A

Aim of measure must transcend purely economic considerations

Answer 207

A

Campus Oil Ltd v Minister for Industry and Energy

Answer 208

A

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

Answer 209

A

Deutsche Grammophon GmbH

Answer 210

A

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

Answer 211

A

PreussenElektra

Answer 212

A

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

Answer 213

A

Protection of culture

Answer 214

A

Cinétheque SA

Answer 215

A

Protection of the environment

Answer 216

A

Commission v Denmark (Disposable beer cans)

Answer 217

A

The measure must be REALLY NECESSARY

Answer 218

A

Commission v Germany (Beer Purity Laws)

Answer 219

A

(a) it is NECESSARY for the objective, and

(b) It does not extend beyond what is necessary

Answer 220

A

(b) It does not extend beyond what is necessary

Answer 221

A

Walter Rau

Answer 222

A

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

Answer 223

A

Ex p Gallaher Ltd

Answer 224

A

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

Answer 225

A

Article 346-348

Answer 226

A

Free movement of workers shall be secured within the community

Answer 227

A

Article 45(1) TFEU

Answer 228

A

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

Answer 229

A

Article 45(2) TFEU

Answer 230

A

A worker is a person who:

a) Performs services for another person
b) Under the control of that other person, and
c) Receives renumeration

Answer 231

A

Lawrie-Blum v Land Baden-Württemburg

Answer 232

A

A ‘workseeker’ is also a worker

Answer 233

A

Ex p Antonissen

Answer 234

A

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

Answer 235

A

Directive 2004/38

Art.6(1)

Answer 236

A

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

Answer 237

A

Directive 2004/38

Art.14(4)(b)

Answer 238

A

Part-time workers are also workers providing:

a) Work = effective and genuine
b) Not too marginal/small scale

Answer 239

A

Levin v Staatssecretaries van Justitie

Answer 240

A

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

Answer 241

A

Kempf v Staatssecretaries van Justitie

Answer 242

A

Unpaid workers for the religious community if

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

Answer 243

A

Steymann v Staatssecretaries van Justitie

Answer 244

A

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

Answer 245

A

Bettray v Staatssecretaries van Justitie

Answer 246

A

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

Answer 247

A

Micheletti

Answer 248

A

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

Answer 249

A

Covers EU Citizens

Answer 250

A

Directive 2004/38 Art.3(1)

Answer 251

A

Covers EU Citizens’ family members

Answer 252

A

Directive 2004/38 Art.3(2)

Answer 253

A

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

Answer 254

A

Other individuals that have entry/residence rights

i. Other family members (dependant etc.) and
ii. Partner if EU citizen has “durable relationship” or other family members as per Art.3(2)

Answer 255

A

Right of Exit

Answer 256

A

Right of Entry (check for visa/passport requirements)

Answer 257

A

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

Answer 258

A

Surinder Singh

Answer 259

A

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

Answer 260

A

(a) Right of residence for up to three months

Answer 261

A

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

Answer 262

A

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

Answer 263

A

(c) Permanent Residence after 5 years continuous legal residence

Answer 264

A

(d) Prior to 5 years id incapacitated to work

Answer 265

A

Art.17-18

Answer 266

A

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

Answer 267

A

Art.7 (Art.12)

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

Answer 268

A

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

Answer 269

A

Art.12(3)

Answer 270

A

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

Answer 271

A

Ex p Sandhu

Answer 272

A

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

Answer 273

A

If non-EU family members, not affected provided:

i. Marriage lasted three years, including one year in member state
ii. Spouse/partner has custody of EU citizen’s children
iii. Suffered difficult circumstances (e.g. abuse) or,
iv. Partner still has right of access to a minor child (Still subject to Art.12)

Answer 274

A

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

Answer 275

A

Diatta v Land-Berlin

Answer 276

A

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

Answer 277

A

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

Answer 278

A

Art.1 Reg. 492/2011

Answer 279

A

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

Answer 280

A

Art.23 Directive 2004/38

Answer 281

A

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

Answer 282

A

Groener v Minister for Education (and Art.3)

Answer 283

A

Must receive the same benefits as nationals of the member state

Answer 284

A

Art.5 Reg. 492/2011

Answer 285

A

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

Answer 286

A

Art.6 Reg. 492/2011

Answer 287

A

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

Answer 288

A

Art.7 Reg. 492/2011

Answer 289

A

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

Answer 290

A

Art.24(1) Directive 2004/38

Answer 291

A

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

Answer 292

A

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

Answer 293

A

Commission v France

Answer 294

A

(Very narrowly interpreted)

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

Answer 295

A

Art.45(3)

Answer 296

A

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

Answer 297

A

Art.27 Directive 2004/38

Answer 298

A

Deportation/exclusion cannot be used for economic ends Art.27(1)

Must be proportionate; and

Must be based on the PERSONAL CONDUCT of the individual concerned

Answer 299

A

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

Answer 300

A

Van Duyn v Home Office

Answer 301

A

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

Answer 302

A

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

Answer 303

A

R v Bouchereau

Answer 304

A

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

Answer 305

A

Adoui an Cornuaille v Belgian State

Answer 306

A

Rights DO NOT APPLY to employment in public service

Answer 307

A

Art.45(2) TFEU

Answer 308

A

BUT public service has been very narrowly defined as:

The exercise of powers conferred by Public; and
Safeguarding the general interests of the state

Answer 309

A

Commission v Belgium

Answer 310

A

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

Answer 311

A

URBSFA (ASBL) v Bosman

Answer 312

A

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

For expulsion of EU citizens after residence of 10 years/minors, there must be IMPERATIVE grounds of public security.

Answer 313

A

Including both:

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

Answer 314

A

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

Answer 315

A

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

Answer 316

A

Art.45(3) or (4) Treaty Exceptions

Cassis de Dijon

Answer 317

A

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

Answer 318

A

Cassis de Dijon

Answer 319

A

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

Answer 320

A

Application of rules must:

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

Answer 321

A

Art.2(1) Services Directive 2006/123

Answer 322

A

Definition of business services for the purpose of directive

Answer 323

A

Art.4(1) Services Directive 2006/123

Answer 324

A

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

Answer 325

A

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

Answer 326

A

Commission Handbook

Answer 327

A

Business ‘established’/

establishing’ in another MS

Answer 328

A

Art.49 TFEU

Answer 329

A

Business providing ‘Service’ in another MS

Answer 330

A

Art.56 TFEU

Answer 331

A

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

Answer 332

A

Prohibited Requirements can never be justified

Answer 333

A

Authorisation Schemes

Answer 334

A

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

Answer 335

A

Prohibited requirements can never be justified

Answer 336

A

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

Answer 337

A

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

Answer 338

A

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

Answer 339

A

c) Can be relied upon in home MS

Answer 340

A

Marks and Spencer Plc v Halsey

Answer 341

A

e) Has direct effect

Answer 342

A

Reyners v Belgium

Answer 343

A

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

Answer 344

A

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

Answer 345

A

c) Can be relied upon when based in home MS

Answer 346

A

Alpine Investments BV

Answer 347

A

Van Binsbergen

Answer 348

A

d) Has Direct Effect

Answer 349

A

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

Answer 350

A

VanderElst

Answer 351

A

f) Receiving Services

i. Individuals have the right to receive medical and tourism services in another member state

Answer 352

A

Luisi and Carbonne

Answer 353

A

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

Answer 354

A

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

Answer 355

A

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

Answer 356

A

Gebhard definition of RESTRICTION

Answer 357

A

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

Answer 358

A

Establishment: Distinctly applicable measures (Reyners v Belgium)

Services: Distinctly applicable measures (Reyners v Belgium)

Answer 359

A

Indistinctly Applicable measures (Commission v Italy)

Answer 360

A

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

Answer 361

A

Indistinctly Applicable measures (Van Binsbergen)

Answer 362

A

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

Answer 363

A

APPLIES TO BOTH FREEDOM OF ESTABLISHMENT AND PROVISION OF SERVICES

All EU Citizens residing in a host Member State shall enjoy equal treatment with the nationals of that MS

Answer 364

A

Can only be justified by Treaty Exceptions

Answer 365

A

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

Answer 366

A

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

Answer 367

A

Omega-Spielhallen

Answer 368

A

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

Answer 369

A

What constitutes the exercise of official authority is construed narrowly.

Answer 370

A

Reyners v Belgium

Answer 371

A

Including indirect discrimination and non-discriminatory restrictions

Answer 372

A

(a) TFEU restrictions Art.52 and 51

(b) the Cassis de Dijon approach

Answer 373

A

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

Answer 374

A

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

Answer 375

A

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

Answer 376

A

Art.102 TFEU

Answer 377

A

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

Answer 378

A

United Brands Commission

Answer 379

A

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

Answer 380

A

Relevant Product Market

Answer 381

A

Relevant Geographic Market

Answer 382

A

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

Answer 383

A

European Commission Notice Definition

Answer 384

A

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

Answer 385

A

United Brands Test One

Answer 386

A

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

Answer 387

A

Continental Can v Commission Test Two

Answer 388

A

RPM can be narrow

Answer 389

A

TEST ONE: DEMAND SUBSTITUTABILITY

TEST TWO: SUPPLY SUBSTITUTABILITY

Answer 390

A

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

Answer 391

A

European Commission Notice Definition

Answer 392

A

Start by assuming the RGM is the whole of the EU

Answer 393

A

Hilti AG v Commission

Answer 394

A

Then, work inwards if any of the following factors apply:

Transportation costs
Product Characteristics
Shipment Patterns
Location of plants (identical products made at a wide range of plants implies small geographic markets)

Answer 395

A

United Brands:

Transportation costs
Product Characteristics
Shipment Patterns
Location of plants (identical products made at a wide range of plants implies small geographic markets)

Answer 396

A

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

Answer 397

A

Sea Containers/Stena Sealink

Answer 398

A

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

Answer 399

A

Hoffman La Roche

Answer 400

A

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

Answer 401

A

AKZO Chemie v Commission

Answer 402

A

Shares below 35% are rarely dominant

Answer 403

A

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

Answer 404

A

United Brands

Answer 405

A

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

Answer 406

A

Italian Flat Glass

Answer 407

A

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

Answer 408

A

Hoffman La Roche

Answer 409

A

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

Answer 410

A

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

Answer 411

A

Michelin v Commission

Answer 412

A

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

Answer 413

A

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

Answer 414

A

United Brands

Answer 415

A

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

Answer 416

A

AKZO Chemie v Commission

Answer 417

A

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

Answer 418

A

United brands

Answer 419

A

Refusal to supply distributor in order eliminate them from the market

Answer 420

A

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

Answer 421

A

United Brands

Answer 422

A

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

Answer 423

A

Hoffman-La Roche

Answer 424

A

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

Answer 425

A

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

Answer 426

A

Intel v Commission

Answer 427

A

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

Answer 428

A

Commercial Solvents v Commission

Answer 429

A

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

Answer 430

A

No possibility of exemption

Answer 431

A

Effect of abuse of dominant position

Answer 432

A

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

Answer 433

A

BRT v SABAM

Answer 434

A

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

Answer 435

A

Art.101 TFEU

Answer 436

A

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

Answer 437

A

Both Horizontal and Vertical Agreements

Answer 438

A

Consten and Grundig

Answer 439

A

ACF Chemiefarma v Commission (Quinine Cartel)

Answer 440

A

Oral/Gentleman’s agreements

Answer 441

A

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

Answer 442

A

IAZ NV International Belgium v Commission

Answer 443

A

Regulatory rules promulgated by professional bodies, unless they are reasonable

Answer 444

A

Wouters v Algemene

Answer 445

A

Concerted Practices

Answer 446

A

‘Dyestuffs’

Answer 447

A

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

Answer 448

A

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

Answer 449

A

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

Answer 450

A

‘Woopulp’

Answer 451

A

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

Answer 452

A

Either object OR effect will be sufficient

Answer 453

A

Polypropylene ; Société Technique Miniére(STM)

Answer 454

A

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

Answer 455

A

Polypropylene

Answer 456

A

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

Answer 457

A

Consten and Grundig

Answer 458

A

Hardcore restriction: price-fixing between competitors

Answer 459

A

101(1)(a)

Answer 460

A

Hardcore restriction: partitioning the EU market by preventing parallel trade

Answer 461

A

101(1)(c)

Answer 462

A

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

Answer 463

A

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

Answer 464

A

Brasserie de Haecht v Wilkin

Answer 465

A

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

Answer 466

A

Agreements between parties based in the same member state

Answer 467

A

Cooperative Stremsel-en Kleurselfabrik v Commission

Answer 468

A

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

Answer 469

A

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

Answer 470

A

Consten and Grundig

Answer 471

A

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

Answer 472

A

Brasserie de Haecht v Wilkin

Answer 473

A

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

Answer 474

A

Consten and Grundig

Answer 475

A

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

Answer 476

A

Article 101(2)

Answer 477

A

Article 101 is directly effective

Answer 478

A

BRT v SABAM

Answer 479

A

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

Answer 480

A

Chemidus Wavin v TERI

Answer 481

A

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

Answer 482

A

Agreement deemed to have no appreciable effect on competition

BUT – if agreement contains Hardcore Restrictions, NAOMI will not protect it, regardless of how small parties are

Answer 483

A

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

Answer 484

A

Agreement deemed to have no appreciable effect on trade

NAAT will protect agreements, even if they contain hardcore restrictions. However, National competition authorities will still be able to take action

Answer 485

A

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

Answer 486

A

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

Answer 487

A

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

Answer 488

A

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

Answer 489

A

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

Answer 490

A

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

Answer 491

A

Investigations
Penalties (fines)
Leniency Notice
Challenging any Penalty

Answer 492

A

The commission has the following investigatory powers

Answer 493

A

To request the firm produces all information necessary to enquiry

Answer 494

A

Penalties may be imposed if information provided is incorrect or misleading

Answer 495

A

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

Answer 496

A

To arrive unannounced at firm premises and demand access to company records which may be used in proceedings against firm. DAWN RAID PROCEEDINGS.

Enlist assistance of any relevant national competent authority
If reasonable suspicion, search other premises (provided have judicial authorisations) including homes of employees

Answer 497

A

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

Answer 498

A

As Art 101 has direct effect

Answer 499

A

BRT v SABAM

Answer 500

A

As Art 101 has direct effect…

Foreign third parties affected by the breach may also so in UK National Courts for damages.

Answer 501

A

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

Answer 502

A

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

Answer 503

A

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

Answer 504

A

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

Answer 505

A

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

Brainscape's Knowledge GenomeTM

EU Authorities Flashcards

Brainscape's Knowledge Genome^TM