Notesale: Turn your study into money

Document Preview

Extracts from the notes are below, to see the PDF you'll receive please use the links above

---

TUTORIAL NOTES
EU Law- Direct Effect

BPP LAW SCHOOL

Q1: Define direct effect
...


Which case originally established direct effect? Outline the facts of the

Case:
• Van Gend En Loos

Facts:
• Dutch reclassification of import duty on certain chemicals
• Duty rose from 3% to 8% as a result
• Contrary to Article 12 EEC Treaty
...
lay claim to individual rights which the
courts must protect
...
See also Franz Grad)
• Requirements:
1) Sufficiently clear and precise
2) Unconditional
3) Against whom may it be relied upon?
•

the State (‘vertical direct effect’)
and

•

a private party

(‘horizontal direct effect’)

∴ Same as Treaty articles

6

DIRECT EFFECT Sept 2014

}

Azienda Agricola

}

Antonio Muñoz

Q5: Distinguish Directives from Regulations
...
capable of producing direct effects”
...


DIRECT EFFECT Sept 2014

Q6: How has this been resolved?
• Under what circumstances will it have direct effect?
1) It meets the Van Gend En Loos criteria (Van Duyn)
2) The implementation date has passed (Ratti) and
• Not implemented at all (Ratti); or
• Partially or incorrectly implemented (VNO); or
• Correctly implemented but not applied in a way that achieves the result sought
(Marks & Spencer plc)

3) Marshall v Southampton and South-West Hampshire A
...
A
...

• Foster v British Gas plc (1990)
• Concerned a nationalised corporation (before it was privatised)
• ECJ:
• Para 18 (the bipartite test):
• subject to the authority or control of the State; OR
• special powers
• Para 20 (the tripartite test):
• providing a public service
• under the control of the State AND
• special powers
• Official answer in para 22 solely referred to tripartite test

DIRECT EFFECT Sept 2014

Q7:

What is the relevance of the concept of an ‘emanation of the State’ for direct effect? What
legal criteria have been adopted for identifying an emanation of the State?

Response of the British courts
• Tripartite test applied in cases concerning commercial undertakings:
• Foster v British Gas plc (No 2) (HL)
• Doughty v Rolls Royce Plc (CA)
• Griffin v South West Water Services Ltd (High Ct)
• However:
• Doughty v Rolls Royce Plc per Musthill LJ
• N
...
T
...
”’
• Unconditional?
• Yes
Does it matter that the Directive imposes a positive obligation?
• No (Lütticke)

DIRECT EFFECT Sept 2014

Scenario
• The implementation date must have passed (Ratti)
• Deadline for implementation:
31 March 2012
• Respiratory problems developed:

July 2014

And
• Partially or incorrectly implemented (VNO) or not implemented at all (Ratti)
• The Directive has not been implemented at all
• Must be relying upon the directive against the state and not a private individual (Marshall)
• Re Suleyman:
• Holborn Site Services Ltd is a private company
• Apply Foster tests
• Nothing to suggest that any of the requirements are satisfied
...

• Analogous case?:
• Foster v British Gas plc?
Nationalised at the time (privatised after the event)
∴ not directly analogous
• Griffin v South West Water Services Ltd
Privatised water company satisfied all three elements of the tripartite test

DIRECT EFFECT Sept 2014

Direct Effect,
Indirect Effect and
State Liability
and State

Liability

EU Law
BPP LAW SCHOOL

Direct Effect of Directives (Revision)
• A Directive can be directly effective (Van Duyn) if
• It meets the Van Gend criteria:
• Sufficiently clear and precise
• Unconditional
• The implementation deadline has passed (Ratti)
and
• Not implemented at all (Ratti); or
• Partially or incorrectly implemented (VNO); or
• Correctly implemented but incorrectly applied (Marks & Spencer plc)
• Marshall:
• Against State (‘vertical direct effect’)
• Not private party (‘horizontal direct effect’)

2

DIRECT EFFECT, INDIRECT EFFECT AND STATE LIABILITY Sept 2014

Indirect Effect
• Obligation to interpret national law in the light of the wording and the
purpose of the Directive to achieve its result (Von Colson)
• Applies:
• vertically (Von Colson) and horizontally (Harz)
• after deadline passed (Adeneler)
• “whether … adopted before or after the directive” (Marleasing)

3

DIRECT EFFECT, INDIRECT EFFECT AND STATE LIABILITY Sept 2014

Indirect Effect
• “as far as possible” (Marleasing)
But
• NOT possible if cannot be interpreted compatibly
(See Wagner-Miret- Moderated Marleasing
...
and Pupino- IE only possible after implementation deadline; however
a) MS must refrain from taking measures likely to inhibit full implementation; b)
also, courts must refrain from giving interpretations contrary to the
unimplemented Directive)
• Note Kolpinghuis Nijmegen BV- Interpretation must be consistent with
the general principles of Community law (legal certainty)
...

2) Possible to IDENTIFY THE CONTENT OF THOSE RIGHTS in the directive
...


DIRECT EFFECT, INDIRECT EFFECT AND STATE LIABILITY Sept 2014

State Liability
Dillenkofer v Germany
• Germany failed to take any steps to implement a Directive
• Held:
• The conditions in Francovich and Brasserie du Pêcheur are the same in
substance
...
Hedley Lomas)

• Contrast ex p
...
B
...
Plc

8

DIRECT EFFECT, INDIRECT EFFECT AND STATE LIABILITY Sept 2014

The Scenario

Scenario: Sean
Preliminary Matter
• Does “to all buses” include mini-buses?
• How will it be interpreted?
• Directive will be interpreted purposively
• Preliminary reference to Court of Justice to determine scope of “all buses”?
• Outcome:
• If does not:
• Directive not applicable
∴ No remedy under EU Law
• If does:
• Consider
• Direct Effect
• Indirect Effect
• State Liability

10

DIRECT EFFECT, INDIRECT EFFECT AND STATE LIABILITY Sept 2014

Scenario: Sean
Direct Effect
• Applies to Directives (Van Duyn)
• Sufficiently clear and precise and unconditional? (Van Gend en Loos)
• Not prevented from being clear and precise where questions of interpretation can be
resolved by a court (Van Duyn)
• Contrast:
• Defrenne
(sufficiently clear)
• Von Colson and Francovich (not sufficiently clear)

11

DIRECT EFFECT, INDIRECT EFFECT AND STATE LIABILITY Sept 2014

Scenario: Sean
Direct Effect
• Implementation Deadline
• Has deadline passed? (Ratti)
• Deadline: April 2014
...


• Deadline requirement:
• Deadline passed? (Ratti)
• Deadline: April 2014
...

∴ Indirect effect not available

• State Liability
• Deadline for implementing Directive not reached
∴ Member state not in breach of EU law at the time of the accident
∴ No state liability

18

DIRECT EFFECT, INDIRECT EFFECT AND STATE LIABILITY Sept 2014

Free Movement of Goods I —
Fiscal Barriers

EU Law

B P P L AW SCHOOL

Part A: Questions
1
...

2
...
How are internal taxes under Article 110 TFEU distinguished from charges having
equivalent effect to a customs duty?
4
...
How does the Court of Justice determine whether or not products are similar for
the purpose of Article 110 TFEU?
6
...
When will differences in taxation between non-similar products be prohibited?

36
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

Q1:
Explain the difference between customs duties and charges having
equivalent effect to a customs duty under Article 30 TFEU
...


• Commission v Netherlands
• Fee for inspections imposed on all member states by an international treaty
and
• Treaty encourages FMG

38
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

Q3:
How are internal taxes under Article 110 TFEU distinguished from
charges having equivalent effect to a customs duty?
• Internal Tax =
Commission v France (‘Levy on Reprographic Machinery’)
“…it relates to a general system of internal dues applied systematically to
categories of products in accordance with objective criteria irrespective of
the origin of the products
...

If so
...


41
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

Q5:
How does the Court of Justice determine whether or not products are
similar for the purpose of Article 110 TFEU?
• Test for similar products:
• Rewe-Zentrale
• SIMILAR CHARACTERISTICS
• MEET THE SAME NEEDS
• Commission v France (‘Spirits’)
• Assess similar and comparable use
•
∴

NOT

whether products are strictly identical

broad economic analysis of characteristics and comparative use
...
”

Will not be permitted:
Commission v Italy (‘Regenerated Oil’)

44
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

Q6: When will a discriminatory tax be permitted?
2) Indirect discrimination
• Barnard, The Substantive Law of the EU
• on its face (in law), makes no reference to origin
• but in reality (in fact), burdens imported goods
• Nádasdi and Németh: “as a result of its effects”

45
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

Q6: When will a discriminatory tax be permitted?
When will indirect discrimination be permitted?
• Chemial Farmaceutici
i)

Tax must differentiate between products on the basis of OBJECTIVE CRITERIA

ii)

Must pursue ECONOMIC POLICY OBJECTIVES compatible with EU law

iii) DETAILED RULES must avoid discrimination
• Contrast:
• Humblot- C had paid a large tax on a car with an engine size of 36cv
...
As France didn't produce any cars with engine sizes bigger than 16CV, this = indirect tax discrimination
...

France attempted to fix the problem by making the tax on engines about 16CV graduated
...
However, the the increase in the rate of tax was gradual, and not hugely above the rate
charged on similar cars
...

CJ held that they could not prove indirect discrimination, and the Greek tax was therefore
lawful

46
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

Q7:
When will differences in taxation between non-similar products be
prohibited?
• Article 110(2)
Prohibits tax on imported products which indirectly protects other products

• When does it apply?
• Commission v France (‘Spirits’)
• To non-similar products
IN COMPETITION with domestic goods
EVEN PARTIAL, INDIRECT OR POTENTIAL

• Unlawful where:
• Commission v Belgium
• Reduces EVEN POTENTIAL consumption of imported products
to the advantage of competing domestic products

47
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

Q7:

When will differences in taxation between non-similar products be
prohibited?

Examples:
• Commission v France (‘Spirits’)
• Re Wine and Beer
• Commission v UK
Contrast
• Commission v Belgium

48
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

Q8: The Scenario
Plastique Dreams SA is a French company that manufactures a wide range of children’s dolls
...
Examination of UK law reveals the
following:
a
...
The data is made available to
importers for their own use
...
There is a fee levied by HMRC to cover the administrative costs of inspections on
consignments of talking dolls and other electrical dolls entering the United Kingdom to
ensure that they are compliant with UK safety standards
...

c
...
UK
producers do not produce dolls with a rating greater than 40w
...


d
...
On the UK market, 85% of
such products are produced by UK companies and 90% of dolls, which do face charges, are
imports
...


49
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

(a):

There is a charge levied by HM Revenue & Customs (HMRC) on all imported dolls which is used to fund the
collection of data on doll importation
...


• Article 30 or Article 110?
• Article 30
• Cannot be both (Lütticke)
• Customs Duty?
• No
• CEE?
• Will be if
• Charge for crossing the frontier (‘Statistical Levy’ case)
But not if
• Falls under Commission v Germany situations
• Application to the facts:
• Is it payment for a service?
• Analogous to ‘Statistical Levy’ case

50
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

(b): is a fee levied by HMRC to cover the administrative costs of inspections on consignments of talking
There

dolls and other electrical dolls entering the United Kingdom to ensure that they are compliant with UK
safety standards
...


• Article 30 or Article 110?
• Article 30
• Customs Duty?
• No
• CEE?
• Is it:
• Charge for crossing the frontier ( ‘Statistical Levy’ case)?
Or
• Payment for a service?
• Inspection fee here analogous to:
• Bresciani

51
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

(c):
Dolls with a battery power rating of 50w or more must be sold with a 10% charge added
...
Most battery powered dolls manufactured by
Plastique Dreams SA are rated at 50w
...
UK producers do
Dolls
not produce dolls with a rating greater than 40w
...


• Indirect Discrimination?
• In practice, only applies to imported dolls
• Apply Chemial Farmaceutici criteria
• Economic policy objective compatible with EU law?
• Compare Humblot with Commission v Greece

53
FREE MOVEMENT OF GOODS I - FISCAL BARRIERS Sept 2014

(d):
Crayons and felt-tip pens are not subject to any taxes or charges
...
The UK
argues that it wishes to promote writing and artistic skills
...

Explain the difference between quantitative restrictions and measures
having equivalent effect to a quantitative restriction (MEQRs) under Article 34
TFEU
...


When will either be lawful under Article 36 TFEU?

3
...


How can Cinetheque and Walter Rau be distinguished?

5
...

How does the Court of Justice distinguish between a selling arrangement
and an MEQR?
56
FREE MOVEMENT OF GOODS II —NON-FISCAL BARRIERS Sept 2014

Q1:
Explain the difference between quantitative restrictions and measures having
equivalent effect to a quantitative restriction (MEQRs) under Article 34 TFEU
...
”
Prohibits:
1)
Quantitative Restrictions (QRs)
• Definition:
• “
...
e
...
g
...
g
...

2)

Measures having Equivalent Effect to Quantitative Restrictions (MEQRs)
• Definition:

“All trading rules… capable of hindering, directly or indirectly,
actually or potentially, intra-community trade” (Dassonville)
• Examples:
• Inspections (Denkavit)
• Preference to domestic goods (the ‘Buy Irish’ and ‘Irish Souvenirs’
cases)
• Restricting importation channels (Dassonville — certificate of origin)

58
FREE MOVEMENT OF GOODS II —NON-FISCAL BARRIERS Sept 2014

Q2: When will either be lawful under Article 36 TFEU?
Article 36:
• If justified on grounds of:
• public morality, policy or security; or
• protection of
• health and life of humans, animals or plants;
• national treasures; or
• industrial and commercial property
...
g
...
g
...
e
...


63
FREE MOVEMENT OF GOODS II —NON-FISCAL BARRIERS Sept 2014

Q6:
How does the Court of Justice distinguish between a selling
arrangement and an MEQR?
Examples of selling arrangements:
• Keck
• Tankstation
• Punto Casa
• Herbert Karner

64
FREE MOVEMENT OF GOODS II —NON-FISCAL BARRIERS Sept 2014

Q6:

How does the Court of Justice distinguish between a selling arrangement
and an MEQR?

Examples that failed the Keck test:
• Familiapress
• Failed test but held justifiable by mandatory requirement

• Fachverband v LIBRO
• Outright bans on advertising
• De Agostini
• Gourmet International
Contrast
• Partial ban (Herbert Karner)

65
FREE MOVEMENT OF GOODS II —NON-FISCAL BARRIERS Sept 2014

Q7: The Scenario
Polska-Razorlight is a Polish company which manufactures high quality disposable razors and blades
...
This is a ten blade disposable razor which also vibrates and glows
green in dark conditions
...
Polska-Razorlight wishes to market this
product throughout Europe and has settled on the UK as one of the first markets into which it will try to
import the Decimator
...

Polska-Razorlight has encountered the following problems:
a)
In order to further encourage consumers to use non-disposable blades, the UK Government has
launched a major advertising campaign in the press, on television and radio, with the theme of ‘British
goods are good for the planet’
...

c)
Polska-Razorlight has recently been informed by the UK Government that its product will be
banned due to the number of blades in each razor
...


66
FREE MOVEMENT OF GOODS II —NON-FISCAL BARRIERS Sept 2014

Issues
a) The UK Government’s advertising campaign: ‘British
goods are good for the planet’
...

c)

The ban on the Decimator
...


• MEQR?
• Yes:
• Capable of hindering, directly or indirectly, actually or potentially, intracommunity trade (Dassonville)
• The ‘Buy Irish’ case

• Justifiable?
...
g
...

• (Note recommendation of AG Jacobs in PreussenElektra)

• Under Article 36?
• Ground?
• Public Policy?
• Interpreted very strictly
...


71
FREE MOVEMENT OF GOODS II —NON-FISCAL BARRIERS Sept 2014

b) The ban on any shaving products being given away as free gifts
IF it is an MEQR
...
141
Criminal Justice Act 1988)

72
FREE MOVEMENT OF GOODS II —NON-FISCAL BARRIERS Sept 2014

c) The ban on the Decimator
• Fiscal or non-fiscal?
• Non-Fiscal

• QR?
• Yes:
• A ban on imports (Henn and Conegate)

• Justified under Article 36?
• Ground?
• Number of blades not a ground in itself
• Protection of health and life of humans? — possible if for safety reasons
∴ Article 36 may be applicable

• Proportionate?
• UK must prove number of blades made it so dangerous that ban was needed

73
FREE MOVEMENT OF GOODS II —NON-FISCAL BARRIERS Sept 2014

LLB EU Law
Free Movement of
Persons
B P P L AW SCHOOL

How to Deal with Free Movement of Persons
Issues
• Define the issues relevant to each individual
• Establish relevant rights for each issue
...
g
...
)
• Do derogations from FMP apply?

75
FREE MOVEMENT OF PERSONS Oct 2013

Issues
Maria:
1)Asked to demonstrate sufficient funds and proof of job offer
2)Only given leave to enter for three months
...


80
FREE MOVEMENT OF PERSONS Oct 2013

Residence: Leave to Enter for 3 Months
Rights of Residence under Directive 2004/38 (continued):
2) For longer than three months
• Article 7(1): UNION CITIZEN
• If:
a)
WORKER OR SELF- EMPLOYED; or
b)
have SUFFICIENT RESOURCES and comprehensive sickness insurance cover;
or
c)
following a COURSE OF STUDY at an establishment
d) FAMILY MEMBER accompanying or joining a Union citizen satisfying (a), (b) or (c)
• Article 7(2): NON-EU FAMILY MEMBER
• Same basis as (d) above
• Article 14(2):
• Right of Member States to verify
...
6)
2) Over three months
• Maria:
• Right of residence if:
• a worker (Art
...

7(1)(b))
• Carlos:
• Dependent on Maria satisfying Art
...
7(1)(a) or (b)
unless
he is a Union citizen fulfilling Art
...

Levin
• only effective and genuine activities
• NOT marginal and ancillary activities
• Maria = a worker (a teacher — Lawrie-Blum and Kempf)
...
45(3) TFEU
• public policy,
• public security or
• public health

• Extended to UNION

CITIZENS

and FAMILY

MEMBERS

• Art
...
27(1)

• Which ground?
• Public Policy

85
FREE MOVEMENT OF PERSONS Oct 2013

Sebastian: Threat of Deportation
Will the deportation be justifiable?
• In favour of deportation:
• Public order offence
• Previous criminal conviction
• Previous criminal convictions do not IN THEMSELVES constitute grounds for taking such
measures (Art
...

• Relevant where evidence of a propensity to act (R v Bouchereau)

• Length of residence (Art
...
27(2))
• Only arrested
...

• Was offence serious enough in any event?

• Will separate him from his family
• Must take into account family situation (Art
...
8 ECHR unless justified (Orfanopoulos and Oliveri v Land Baden-Württemberg)

87
FREE MOVEMENT OF PERSONS Oct 2013

If already lived in UK for 6 years previously…
• Right to permanent residence:
• Art
...
16(2): NON-EU FAMILY MEMBERS
• Where legally resided with the Union citizen continuously for 5 years
• Art
...


• Application:
• Lived in UK for 6 years
• Then in Spain for 2 years
• Back in UK
∴Maria, Carlos and Sebastian have a right to permanent residence

88
FREE MOVEMENT OF PERSONS Oct 2013

If already lived in UK for 6 years previously…
• Sebastian’s Deportation
• Permanent residence = Deportation requires SERIOUS GROUNDS (Art
...
45(3) TFEU only
2) Indirect discrimination
• Can be justified by:
• derogation under Art
...
45(3) TFEU
• or other overriding public interest reason

99
FREE MOVEMENT OF PERSONS II Nov 2013

Maria: Eligibility for Promotion
Governed by:
1) Art
...
7 of Regulation 492/2011
Prohibits DIFFERENT TREATMENT of WORKERS
employment conditions

100

FREE MOVEMENT OF PERSONS II Nov 2013

FROM OTHER

MEMBER STATES as regards

Maria: Eligibility for Promotion
Application to Maria:
– Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg
=

indirect discrimination

– Objective justification?
• Compare Art
...
45(2) TFEU
• Angonese
• Both vertical and horizontal direct effect
• Applied to recruitment conditions
2) Art
...
45(2) and Art
...
3(1) of Regulation 492/2011:
“This provision shall not apply to

CONDITIONS RELATING TO LINGUISTIC KNOWLEDGE
REQUIRED BY REASON OF THE NATURE OF THE POST TO BE FILLED
...
45(2) TFEU
• Angonese

103

FREE MOVEMENT OF PERSONS II Nov 2013

Sebastian: Eligibility for Hospital Position
What if Sebastian is not a Member State national?
• Article 23 of Directive 2004/38:
Family members with right of residence entitled to take up employment
IRRESPECTIVE OF NATIONALITY

• Gül v Regierungspräsident Düsseldorf
• Includes right to employment on same rules as host State nationals
• Art
...
492/2011 applies

104

FREE MOVEMENT OF PERSONS II Nov 2013

Carlos
Application for Disability Allowance

Carlos: Application for Disability Allowance
• Art
...
”
• Cristini
• Includes:
• ALL social and tax advantages
• WHETHER

OR NOT ATTACHED TO THE CONTRACT OF EMPLOYMENT

Also Ministère Public v Even
• Does it include disability allowances?
• Yes (Inzirillo v Caisse d'Allocations Familiales)

106

FREE MOVEMENT OF PERSONS II Nov 2013

Carlos: Application for Disability Allowance
• Carlos:
• Not a worker who is a national of a Member State (Art
...

• Application to family members:
• Cristini
• Inzirillo
• Adult son of a worker who was a national of a Member State
• Resided with his father and dependent on him
• Held:
• Right to disability allowance
∴ Carlos entitled to disability allowance on the same basis as British nationals

107

FREE MOVEMENT OF PERSONS II Nov 2013

Sebastian
The Enrolment Fee

Sebastian: Vocational school?
• Article 7(3) of Regulation 492/2011
• Equal access for non-national workers to training in vocational schools and
retraining centres
• Brown v Secretary of State for Scotland
• Defined ‘vocational schools’
• Does not include universities
• Will not include further education college
∴ Not available to Sebastian

109

FREE MOVEMENT OF PERSONS II Nov 2013

Sebastian: Vocational Training?
• Article 166 TFEU: EU vocational training policy
• Gravier
• Defined vocational training
• Applied in conjunction with Article 18 TFEU
• Blaizot
• Generally includes university education
• Likely to include Welsh language course
• But only available if Sebastian is Member State national (Portuguese)

110

FREE MOVEMENT OF PERSONS II Nov 2013

Sebastian: Worker’s children
• Sebastian is Maria’s child
• Article 10 of Regulation 492/2011
• Equal access of non-national worker’s children to State’s general
educational, apprenticeship and vocational training courses
• Casagrande
• Encompasses both
• admission rules
• and measures to facilitate education
• Will include enrolment fee
• Applies even if child not Member State national (e
...
Baumbast)
∴ Sebastian can rely on this even if Brazilian national
...
45)

UNION CITIZENSHIP (ARTS 20 & 21)

TAGES

• Grzelczyk (re: benefits)

• Lebon

• D’Hoop (re: benefits)

• Collins (re: Art
...
20(2)(b) TFEU)
• To receive diplomatic and consular protection (Art
...
g
...
49 bans restrictions on NATIONALS of a Member State
...
54 if:
• Formed in accordance with law of Member State
• Registered office etc within EU
• Profit making
∴ Applicable to Gerrard Enterprises Plc

119

FREEDOM OF ESTABLISHMENT March 2015

Issue 1: Spanish branch
• Does FoE include establishing an branch?
• Yes:
Includes agencies, branches or subsidiaries (Art
...
g:
Centros Ltd

120

FREEDOM OF ESTABLISHMENT March 2015

Issue 1: Spanish branch
Matters falling outside Article 49
1) Internal situations
• Art
...
49 clearly applicable here

121

FREEDOM OF ESTABLISHMENT March 2015

MEMBER

Issue 1: Spanish branch
Matters falling outside Article 49
2) Official authority exemption
• Article 51
Where connected, even occasionally, with the exercise of official authority

• Reyners
• A
...
Mayras: implies
• power of enjoying the prerogatives outside the general law
• privileges of official power
• powers of coercion over citizens
• Court of Justice
• Must have direct and specific connection to official authority

• Exemption applicable to Gerrard Enterprises Plc?
• No

122

FREEDOM OF ESTABLISHMENT March 2015

Issue 1: Spanish branch
Two issues:
a) Requirement to lodge a foreign bank guarantee
b) Requirement to hold a licence

123

FREEDOM OF ESTABLISHMENT March 2015

Issue 1(a): Requirement to lodge a foreign bank guarantee
Is the requirement a restriction?
• What is a restriction?
• Initially
• Direct discrimination (Reyners)
• Extended
• Indirect discrimination (Thieffry)
• Non-discriminatory indistinctly applicable restrictions
• Gebhard
• CaixaBank France
All measures which prohibit, impede or render less
attractive the exercise of that freedom

124

FREEDOM OF ESTABLISHMENT March 2015

Issue 1(a): Requirement to lodge a foreign bank guarantee
Is the requirement a restriction?
• Application
• Fulfils CaixaBank test
• Compare Inspire Art

125

FREEDOM OF ESTABLISHMENT March 2015

Issue (a): Requirement to lodge a foreign bank guarantee
Justifying the restriction
1) By imperative requirements (rule of reason)
• Gebhard
• Non-discriminatory application
• Imperative requirement
• Suitable for the objective and

}

i
...
proportionate
• Not go beyond what is necessary
• Can bank guarantee requirement be justified?
• No:
• Only applies to foreign companies
∴ discriminatory

126

FREEDOM OF ESTABLISHMENT March 2015

Issue (a): Requirement to lodge a foreign bank guarantee
Justifying the restriction (continued)
2) By derogation
• Art
...
1)
• Applies to all nationals wishing to pursue a REGULATED profession in
another Member State (Art
...

• Debauve
Cannot apply to activities confined within a single member state
• However:
• Degree of externality may suffice
...
g:
• Deliège
• De Coster
• Hubbard

137

FREEDOM TO PROVIDE SERVICES Nov 2013

Q2: Are there any categories of activity which are exempt from Article 56?
• Article 57
Must not be governed by provisions for goods, capital and persons
• Article 51 (applied to services by Article 62)
Where connected, even occasionally, with the exercise of official authority

138

FREEDOM TO PROVIDE SERVICES Nov 2013

Q3: Significance of the decision of the Court of Justice in Säger
• Restriction previously based on discrimination
• Van Binsbergen
• Extended to indistinctly applicable restrictions
• Säger
Restriction = liable to prohibit or impede a provider in another Member
State

139

FREEDOM TO PROVIDE SERVICES Nov 2013

Q4: Rights which are a necessary corollary of the freedom
Beyond providing services
• Right to enter and reside
• Directive 2004/38: self-employed Union citizens
• Rush Portuguesa
• Are these a necessary corollary?
• Right to receive services
• Luisi

= ‘Necessary corollary’

• Social rights
• Cowan = ‘Necessary corollary’
• Italian Housing case

140

FREEDOM TO PROVIDE SERVICES Nov 2013

Q5: Circumstances under which a restriction can be justified
1) By imperative reasons (rule of reason)
• Säger
Must:
• Be justified by imperative reasons
• Be indistinctly applicable
• Be objectively necessary to protect recipient
• Not exceed what is necessary to attain those objectives
2) By derogation
• Article 52(1) applied to services by Article 62:
• public policy
• public security or
• public health
• Must be proportionate
141

FREEDOM TO PROVIDE SERVICES Nov 2013

Q6: Kohll v Union des Caisses de Maladie
• Facts:
- Recognition of Healthcare as a service
- the requirement that Luxembourg nationals who wanted to obtain medical
treatment in another Member State had to receive prior authorisation from the
appropriate social security institution for the cost to be reimbursed was a breach of
Article 56 as a hindrance to the freedom to provide services
...

- The Court of Justice recognised that, in principle, EU law allows Member States to
organise their own social security systems, but that they must abide by EU law when
exercising those powers
...

Neither did the Court of Justice feel that the judgment would have significant financial
consequences for the social security system in Luxembourg, given that the cost of
treatment was the same as it would have been in Luxembourg
...


142

FREEDOM TO PROVIDE SERVICES Nov 2013

Q6: Kohll v Union des Caisses de Maladie
• Court of Justice:
• Falls within Article 56
• Acts as a barrier to freedom to provide services
• Can it be objectively justified?
1)
Argument =
• Only effective and least restrictive means of controlling expenditure and
balancing budget
Rejected:
• No significant effect on financing of social security system
2)
Argument =
• Necessary to guarantee quality of medical services
Rejected:
• Maintenance of service on national territory must be essential for public
health and even survival of the population
• But no evidence submitted that restriction necessary here

143

FREEDOM TO PROVIDE SERVICES Nov 2013

Q6: Kohll v Union des Caisses de Maladie
• Subsequent cases
• Geraets-Smits- medical treatment in another MS must be paid
• Watts- Could be reimbursed- but need to balance

144

FREEDOM TO PROVIDE SERVICES Nov 2013

EU Law
Competition Law I —
Collusion
B P P L AW SCHOOL

Questions: Part A
Begin by assessing the agreement as a whole:
1
...

2
...


What is the obvious disadvantage?

4
...

• Art
...

• In this context…

153

COMPETITON LAW I —COLLUSION Nov 2014

The Rule of Reason
• Creation of the EU courts
• No infringement if pro-competition outweighs anti-competition
e
...
Société Technique Minière
• Consider pro- and anti-competitive elements of agreement
• But contrast:
Métropole Télévisionrule of reason not recognised
...
Not clear whether rule of reason will continue to be used in
the future
...

What criteria does the Commission normally take into account in
deciding a market? What is the source of this?
6
...


If so which Treaty article(s) might this infringe?

8
...

Which secondary legislation also covers this? Be prepared to
outline all relevant aspects?
156

COMPETITON LAW I —COLLUSION Nov 2014

Q5:

What criteria does the Commission normally take into account in deciding a
market? What is the source of this?
• Commission, Notice on the Definition of the Relevant Market
Two dimensions:
1)Relevant Product Market
2)Relevant Geographical Market
• Third dimension may be considered:
3)Relevant Temporal Market

157

COMPETITON LAW I —COLLUSION Nov 2014

Q6:
Is there anything about the market in this particular case which may actually
cause the Commission to have concerns about this agreement after all?

• Depends on designation of relevant market:
• Alcoholic beverages?
• Beer?
• Real Ale?
• Organic real ale?

• If relevant market is narrow, the market share held by the three
companies may not be de minimus
...
g
...
102 case)

158

COMPETITON LAW I —COLLUSION Nov 2014

Q7: If so which Treaty article(s) might this infringe?
• Art
...
101(2)
• Can also be a breach of Art
...
101(3)
• Conditions under which Article 101(1) will not apply

• Block exemptions
e
...
Reg 330/2010
• Block exemptions for vertical agreements
• unless:
• market share of either seller or buyer exceeds 30%; or
• restrictions fall into:
• Art
...
5 (‘excluded restrictions’); or
• another exception in the regulation applies

160

COMPETITON LAW I —COLLUSION Nov 2014

Q9: Which secondary legislation also covers this?
• Reg 1/2003 (Modernisation Regulation)
• Abolishes need to apply to Commission for individual exemptions
• Empowers:
• National Competition Authorities
• and national courts
to enforce Art
...

Piddles Brewery Plc will not appoint any other business to sell the beer in
France and Germany
...

La Chat Noir SA and Hexenbrau GmbH will not sell to any customers
outside their own respective French and German territories
...

La Chat Noir SA and Hexenbrau GmbH will reroute to one another
customers ordering over their respective websites whose addresses reveal them
to be buying outside of the allocated national territories
...

La Chat Noir SA and Hexenbrau GmbH will sell beer at the prices to be fixed
by Piddles Brewery Plc
...

• Reg 330/2010:
• Block exemption available (Art
...


• Primarily a restriction on active sales
• Art
...


• Primarily restriction on passive sales
• Art
...

• Restricts the buyer’s ability to determine sale price
• Art
...

Even where no block exemption
May still be lawful if terms individually satisfy Art
...

• SSNIP test:
Notice on the Definition of the Relevant Market
=
Would enough customers switch to substitutes in response to a
HYPOTHETICAL SMALL (5% - 10%) BUT PERMANENT RELATIVE PRICE INCREASE to make the
increase unprofitable?

173

COMPETITION LAW II —ABUSE OF DOMINANT POSITION Nove 2013

Relevant Product Market: Supply Substitution
• Supply substitution =
How easy it is for rival manufacturers to produce competing goods?
• Notice on the Definition of the Relevant Market
= suppliers can switch production in the short term without incurring
significant additional costs or risks in response to small and permanent changes
in prices
...
102
Within the common market or a substantial part of it
• United Brands
– Objective conditions of competition must be the same for all traders
– Conditions in six Member States sufficiently homogenous
• Notice on the Definition of the Relevant Market
= Area in which:
• undertakings are involved in supply and demand of products or services,
• conditions of competition are sufficiently homogeneous
• and are appreciably different from neighbouring areas
...
g
...


178

COMPETITION LAW II —ABUSE OF DOMINANT POSITION Nove 2013

Dominant Position in the Market
United Brands
= a position of economic strength which
enables undertaking to prevent effective competition
by affording it the power to behave to an appreciable extent independently
Generally derives from a combination of several factors

179

COMPETITION LAW II —ABUSE OF DOMINANT POSITION Nove 2013

Dominant Position in the Market
• Factors include:
• MARKET

SHARE:

Tetrapak (91
...
Accusation = making loss
...
2 of Art
...
R
...
v S
...
B
...
M
...

• Accusation = making loss
...
g
...
g

---