EU Structures 2 Flashcards
1
Q
Article 267
A
- Is the body making a reference a Court or Tribunal?
- Is a decision on EU Law point ‘necessary’ for judgement?
- What is the jurisdiction of the Court in question?
- Could the ECJ refuse the reference?
- Conclude
2
Q
Enforceability of EU Law before a National Court > Direct Effect
A
- Define Direct Effect
- EU Law and Direct Effect
- State: ‘In order for EU Law to be directly effective, it must satisfy the Van Gend Criteria’
- State: ‘In the case of directives, direct effect can only be vertical (Van Duyn)
- Van Gend and Ratti
- Foster and Farrell - Conclude
3
Q
Enforceability of EU Law before a National Court > Indirect Effect
A
- Define Indirect Effect
- Impact of Marleasing
- Conflict with National Law
- Conclude
4
Q
Enforceability of EU Law before a National Court > State Liability
A
- Define State Liability
- Francovich - Position after Factortame
- State Factortame
- Sufficiently serious: Incorrect Implementation; non-implementation and failure to make an Article 267 reference. - Conclude
5
Q
Social Policy - Sex Discrimination
A
- General Aim of Anti-discriminatory legislation
- Does the issue concern pay or treatment?
- Is it direct or indirect discrimination?
- Can the discrimination be justified?
- Enforcement
- Conclude
6
Q
Free Movement of Goods
A
- Introduce the relevant legislation (Art 26, 28 and 34)
- Harmonisation directives? - Is the Measure a Quantitative Restriction, a Measure with the Equivalent effect of a Quantitative Restriction (MEQR) or a Selling Arrangement?
- Is the measure indistinctly or distinctly applicable
- mutual recognition - Can the measure be justified?
- Is the measure proportionate?
7
Q
Free Movement of Persons - Workers
A
- Introduce relevant Primary Legislation (Article 45(1) TFEU and Article 45(2) TFEU)
- Is with individual a ‘worker’ within the scope of Article 45 TFEU?
- Rights of Entry and Residence - Directive 2004/38 (And Art. 45 TFEU)
- Right to Equal Treatment - Regulation 492/2011 (And Article 45(2) TFEU)
- Can measures that infringe EU Law on Free Movement of workers be Justified?
- Measure must be proportionate
8
Q
Freedom of Establishment and Provision of Services
A
- Does the Service Directive 2006/123 apply?
- If yes, go to step 2, if no, go to step 4. - Are Free Movement Rights engaged? If so, establishment or services?
- Is the measure a Restriction under the services directive?
- If not covered in the services directive, do the facts of the question relate to establishment or service?
- Introduce relevant primary legislation (Art 49 and 56)
- Is the measure a restriction for the purposes of the relevant legislation?
- Can the restriction be justified?
- distinctly or indistinctly applicable? - The measure must be proportionate.
9
Q
Competition Law - Article 102 TFEU
A
- Relevance of Art 102 TFEU: ‘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.
- Does the Undertaking have a DOMINANT POSITION in the market?
- Has there been ABUSE of this position?
- Might this abuse AFFECT TRADE between member states?
- Conclude
- Consequences for undertaking
10
Q
Competition Law - Article 102 TFEU > Dominance
A
- Define Dominance
- Consider test for dominance
- Ascertain Market Share (RPM and RGM)
- Before concluding whether the underetaking is dominant, consider and apply factors other than market share
- Cite the RPM and RGM and conclude: is there dominance? If dominance can be established, move on to ABUSE.
11
Q
Competition Law - Article 102 TFEU > Abuse
A
- Define Abuse
- Identify Relevant Abusive Practices
- Exploitative
- Anti-Competitive - Types of Abusive Practive (select relevant)
- Unfair Pricing
- Refusal to Supply
- Unjustifiable Price Discrimination
- Tying (AKA bundling)
- Abusive Discount Policies
12
Q
Competition Law - Article 101 TFEU
A
- Relevance: ‘Art 101 TFEU Prohibits business arrangements that may effect trade between Member States and have, as their object or effect, the prevention, restriction or distortion of competition in the common market.
- has there been an ‘Agreement’
- is the agreement between two or more undertakings?
- Does the agreement have as its OBJECT or EFFECT, the PREVENTION, RESTRICTION or DISTORTION OF COMPETITION in the common market?
- Does the agreement affect trade between member states?
- What are the consequences of infringement of article 101 TFEU?
- Is the Undertaking able to avoid a breach of Art 101?
- NAOMI, NAAT, Block Exemption Reg. 330/2010, Art 101(3) exemptions - Conclude whether there has been an infringement of Article 101 TFEU based on the facts
- What sanctions might the firm face?
13
Q
Competition Law - Article 102 TFEU > Opening statement
A
- Relevance of Art 102 TFEU: ‘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.
14
Q
Competition Law - Article 101 TFEU > Opening statement
A
- Relevance: ‘Art 101 TFEU Prohibits business arrangements that may effect trade between Member States and have, as their object or effect, the prevention, restriction or distortion of competition in the common market.
15
Q
Competition Law - Article 101 TFEU > Sanctions
A
- Investigation
- turn over any information (Art 18) - fines for misleading information (18(2))
- interview any willing persons whether employed or not (Art.19)
- Dawn Raid proceedings (Arts 20-21) - Penalties
- 10% of the last year’s global turnover
- the claimant may also sue for damages in the national courts (direct effect - BRT v SABAM) - Leniency notice
- 100% reduction in fine for Whistleblower
- Maximum 50% reduction for other party if they have additional information with significant additional value (Hoffman La Roche) - Challenging any penalty - Undertaking may reaise a claim in the General Court using Article 263 to question the Commission’s findings.
