LEU Master Quizlet | Quizlet (copy)

principle of conferral

what are the different types of competences?

EU institutions and member states must only act within the competencies conferred within the treaties (Art 5(2) TEU)

-- exclusive (Art 3 TFEU)

-- shared (Art 4 TFEU)

-- supporting (Art 6 TFEU)

-- minimum harmonization competences (shared competences that confine the union to the adoption of minimum standards, Art 193)

-- coordinating competence (adoption of guidelines and initiatives to ensure coordination by MS)

Is the internal market a shared or exclusive competence?

Art 4(2)(a) - shared competence!

positive v negative integration

positive integration: harmonization, adopting positive eu-wide legislation to create common rules (and remove obstacle that arise from diverse national legislation)

--- Art 26, Art 114 TFEU (power to harmonize national legislation)

negative integration: prohibitions in the treaty directed at MS and private parties

--- directly applicable - does not require legislative action by eu institutions and national legislation remains in place

what are the three models of negative integration?

what model does the EU follow?

1. "international" model → each state maintains its own rules subject to non-discrimination (host state rule)

--- business must comply with host (importing) state law as long as the state does not discriminate and favor their own domestic industry

--- test: direct or indirect 'discrimination' of imports or exports

2. "federal" model → only rules of the "home state" apply (home state rule)

--- goods can move freely within common market once they comply with the law of their home state

--- test: restrictions to trade arising from national disparities

3. "national" model → no member state rule may restrict trade (union rule)

--- all trade restrictions removed if above a uniform union standard

--- test: restrictions to freedom of trade generally

EU mostly follows in between a federal model and international

--- strong federal elements as it outlaws restrictions arising from regulatory disparities between member states

monism v dualism

monism: national statute and treaty provisions fall under same national legal order

--- individuals can invoke treaty provisions before a national court

dualism: national law and treaties fall under two separate realms

--- individuals can invoke treaty provisions after transposed into national law

direct effect v direct applicability

direct effect: EU law can be enforced by individuals in court without needing national legislation

direct applicability: EU laws automatically become part of national law without requiring any further action from member states

Foster Case

rule: vertical direct effect not only applies to private parties exercising public functions but also public authorities engaged in private activities

context: court ruled British gas corporation was part of the British state as it provided a public service under the control of the state and has special powers

Why do directives not have horizontal direct effect?

- directive is binding in relation to each MS to which is addressed

- direct effect for directives exists to prevent a state from taking advantage of its own failure to comply with European law

- individuals not responsible for for non-implementation of a directive, so legal consequences should not extend to them

indirect effect

indirect effect: national courts have general duty to interpret national law as far as possible in the light of european law (doctrine of consistent interpretation)

--- interpretation limited by contra legem and general principles of law such as legal certainty and non-retroactivity

When is direct, indirect effect or state liability used?

- for vertical disputes regarding directives, indirect effect comes first (then direct effect)

- otherwise indirect effect and state liability can be applied concurrently depending on what the plaintiff wants

--- for example, if they want compensation, then state liability is best

--- change of law or conjunction?

principle of subsidiarity

principle of subsidiarity: EU may only act when objectives cannot be sufficiently achieved by individual member states, but can be better accomplished at the EU level

subsidiarity tests:

--- national insufficiency test - union can only act where objectives of proposed action could not be sufficiently achieved the MS (centrally or regionally)

--- comparative efficiency test - union should not act unless it can better achieve the objective of the proposed action

Van Gend en Loos

rule: EU law is an autonomous legal order with direct effect

--- criteria for direct effect of a provision = sufficiently clear and unconditional - in order to be invoked before and applied by a national court

context: Dutch company claimed before a national tribunal against the application of a custom duty for goods imported from Germany

Titanium Dioxide

rule: look at "objective factors amenable to judicial review" and "aim and content of the measure" to decide on legal basis

context: legal dispute over the correct legal basis for adopting a directive aimed at reducing pollution caused by the titanium dioxide industry in the EU (130 v 100a)

--- CJEU ruled that the directive could be based on both articles, but since the primary aim was environmental protection, Article 130 was the appropriate legal basis

Tobacco Advertising I

rule: A measure adopted on the legal basis of Article 114 TFEU must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market

context: CJEU annulled a directive that sought to ban tobacco advertising and sponsorship across the EU, ruling that the directive exceeded the legislative competence

--- directive not genuinely aimed at improving the internal market but instead was primarily a public health measure

Costa v ENEL

rule: principle of supremacy/primacy -- community/eu law takes absolute precedence over national law

--- judicial courts must disapply any conflicting legislation

context: a company was issued a tariff when entering the Netherlands which violated Article 12 of the Treaty of Rome which discourages new custom duties on trade

--- Court ruled that the EU law overrides the national tariff law and the company could receive their money back

Simmenthal II

rule: indirect effect + horizontal direct effect

--- regulation provisions can create duties for individuals = horizontal direct effect (*must first assess if provision meets requirements for direct effect)

---- if a provision of eu law has direct effect, a national court must disapply the conflicting national provision without having to wait for any actions of the national legislator or constitutional court

Van Duyn

rule: directives can have direct effect if they are clear, precise, and unconditional, allowing individuals to invoke them in national courts, even if the member state has not implemented the directive

context: Dutch national denied entry to the UK on public policy grounds due to her association with the Church of Scientology

--- can invoke directive against British authorities bc of distinction between direct applicability and direct effect

Walrave

rule: extended EU anti-discrimination law to activities of private entities

-- horizontal direct effect of Article 56 TFEU

context: Dutch cyclists challenged rules set by a cycling federation that restricted their participation based on nationality

--- CJEU ruled that the prohibition of discrimination based on nationality under EU law applies not only to public authorities but also to rules set by private organizations (such as sports federations)

Azienda Agricola Monte Arcosa

rule: regulations have direct effect if sufficiently precise and unconditional

context: Azienda Agricola Monte Arcosa (farming company) had applied for aid under certain EU regulations, but the Italian authorities had imposed additional conditions that were not explicitly required by the EU rules

--- CJEU ruled that Member States must comply strictly with EU regulations when granting aid and cannot impose additional conditions not provided for by EU law

Muñoz

rule: national regulations must respect EU rules on non-discrimination and freedom of establishment

--- regulations have direct effect in horizontal disputes (if sufficiently precise and unconditional)

context: validity of national legislation that restricted the use of public funds for private educational institutions

--- CJEU ruled that such restrictions, if they disproportionately limit the ability of private institutions to operate and do not provide equivalent funding opportunities, could breach EU law principles

Grad

rule: decisions also have direct effect if respective provision is sufficiently clear and unconditional

context: CJEU ruled that a MS must not impose taxes on goods and services from other Member States in a way that discriminates against them compared to domestic goods and services

--- reinforced the principle of non-discrimination and the free movement of goods

Marshall

rule: directives can only be invoked vertically (against state or public authority) not horizontally (against individuals)

-- criteria for if a member state has not implemented or incorrectly a directive, vertical direct effect

---- (1) after implementation deadline and (2) provision is sufficiently clear and unconditional

context: Marshall sought to rely on the Equal Treatment Directive to challenge her employer's compulsory retirement policy as discriminatory

--- court found UK's legal provisions allowing discrimination on the basis of age in employment incompatible with the principle of equal treatment under EU law

Kolpinghuis

rule: no inverse vertical direct effect → state may not benefit from its own failure to implement the directive and directive should not impose obligations on individuals

--- indirect effect may not create or aggravate criminal liability → interpreting the law in a way where one may not be liable but the interpretation leads them to be

Faccini Dori

rule: when applying national law, the national court that has to interpret that law must do so in the light of the wording and the purpose of the directive so as to achieve the result in view

context: Ms Dori wanted to cancel an english language course relying on directive to protect consumers regarding contracts negotiated away from business premises but forced to pay bc it had not been transposed into national law

Adeneler

rule: Duty to consistent interpretation arises only after the implementation deadline

--- consistent interpretation: national courts must interpret national law as much as possible in conformity with directive to remedy conflicts (indirect effect)

Dansk Industri

context: CJEU ruled that a Danish law restricting the ability of employers to set up collective agreements and bargain over terms and conditions directly with employees, bypassing trade unions, was incompatible with EU law

--- CJEU held that such restrictions unduly limited the freedom to conduct business under EU law and violated the principle of free movement of workers

--- emphasis on charter rights, must be clear and unconditional and can be invoked against another individual

in order to resolve conflict between national and eu law - try indirect effect, then individual can rely on general principle and court has duty to disapply national law

Brasserie du Pêcheur

rule: state liability for breaches of EU law

-- Criteria:

--- (1) Is it a sufficiently serious breach of EU law by the Member State?

--- (2) Does the breached provision of eu law aims to grant rights to individuals?

--- (3) Is there a causal link between breach and damages?

context: French company could not export beer to Germany, because beer did not comply with requirements under German law + UK legislation made fishing boats subject to certain conditions leading to deprivation of right to fish

What does it mean that the EU is a customs union?

- Art 28 TFEU

- this means that within the EU, all taxes which are imposed on goods simply because they cross a border are prohibited (internal dimension)

--- a MS cannot tax a good on the sole reason it is being imported

Art 30 TFEU → prohibition of all customs duties and charges having equivalent effect

indirect v direct taxation

indirect taxation: taxes that can be passed on to another person, tax imposed on goods not people (VAT)

direct taxation: taxes that cannot be passed on to another person (income/corporate tax)

What is the EU relationship with taxation?

- MS allowed to impose taxes as long as they do not discriminate foreign products or protect domestic industry

- Art 110(1) TFEU → prohibition of discriminatory taxation (on similar products)

--- Outokumpu case → prohibition of direct discrimination

--- Humblot case → prohibition of indirect discrimination

- Art 110(2) TFEU → prohibition of protective taxation

products which are not similar but do compete

Criteria for Article 34 TFEU (Free Movement of Goods)

1. Is Article 34 TFEU applicable in this case?

--- a. Is the case about goods?

--- b. Is there applicable harmonization at EU level? If yes, then apply harmonization legislation but if not:

--- c. Is there a cross-border element in the case?

--- d. Can the claimant invoke Art 34 TFEU against the defendant? (does the defendant fall under the "personal scope" of Article 34 TFEU?)

2. Material scope of Article 34

--- a. Does the measure constitute a "quantitative restriction" or a "measure having equivalent effect?

3. Justifications

--- a. Can the Member State invoke a ground of justification in Article 36 TFEU or a "mandatory requirement"?

--- b. Is the measure proportionate?

----- i. suitability → Is the measure suitable or appropriate to attain its purpose?

----- ii. necessity → Is the measure necessary to attain its purpose? Are there any alternatives that achieve the purpose equally well and are less restrictive of trade?

Criteria for Article 45 TFEU (Free Movement of Workers)

1. Is Article 45 TFEU applicable in this case?

--- a. Is the case about workers?

----- i. criteria: work for a certain period of time (no minimum but must work more than ad hoc basis), working for and under the direction of another person (hierarchical relationship), in exchange for remuneration (Lawrie-Blum)

--- b. Is there applicable harmonization at EU level? If yes, then apply harmonization legislation but if not:

--- c. Is there a cross-border element in the case?

--- d. Can the claimant invoke Art 45 TFEU against the defendant? (does the defendant fall under the "personal scope" of Article 45 TFEU?)

----- i. has vertical direct effect is sufficiently clear and unconditional (Van Duyn)

----- ii. can also be invoked on against private entities who are exercising their "legal autonomy" and who are regulating in a collective manner paid labor (Walrave/Viking Line)

----- iii. can have "full" horizontal direct effect for prohibition of nationality discrimination (Angonese)

2. Material scope of Article 45

--- a. Does the measure restrict the free movement of workers?

3. Justifications

--- a. Is there a ground of justification in Article 45 TFEU or a "mandatory/ imperative requirement"?

----- i. treaty derogations in Art 45(3) TFEU

--- b. Is the measure proportionate?

----- i. suitability → Is the measure suitable or appropriate to attain its purpose?

----- ii. necessity → Is the measure necessary to attain its purpose? Are there any alternatives that achieve the purpose equally well and are less restrictive?

Criteria for Regulation 492/2011 (Free Movement of Workers)

1. Is the regulation applicable in this case?

--- a. Is the case about workers?

---- i. Criteria (Lawrie-Blum)

------ (a) works for a certain period of time (no minimum but must work more than an ad hoc basis)

------ (b) working for and under the direction of another person (hierarchical relationship)

------ (c) remuneration (salary of some sort)

--- b. Is there a cross-border element in the case?

--- c. Can the claimant invoke the regulation against the defendant? ("personal scope" and direct effect)

---- i. regulations can have vertical and horizontal direct effect if sufficiently clear and unconditional provisions (Simmenthal II, Arcoza)

2. Material scope of the Regulation

--- a. Does the measure restrict the free movement of workers?

---- non-discrimination for both direct and indirect discrimination

3. Justifications

--- a. Can the Member State invoke a ground of justification?

----- i. virtually no justifications for infringements of non-discrimination rights in the regulation

Criteria for Directive 2004/38 (Free Movement of Workers)

1. Is the directive applicable in this case?

--- a. Is the case about workers?

--- b. Is there a cross-border element in the case?

---- not applicable to EU citizens returning to their own MS

--- c. Personal Scope/direct effect - can the claimant invoke the regulation against the defendant?

---- i. directives have vertical direct effect if sufficiently clear and unconditional provisions (Van Duyn)

2. Material scope of the Directive

--- a. Does the measure restrict the free movement of workers?

---- non-discrimination for both direct and indirect discrimination

3. Justifications

--- a. Can the Member State invoke a ground of justification?

----- i. limited justifications for infringements of rights in the directive Art 27-29

Statistical Levy

- No de minimis principle to the concept of a charge having an equivalent effect to a customs duty (no minimum threshold)

- any charge imposed on goods crossing a border, even if small and for statistical purposes, constitutes a customs duty and is prohibited under EU law

Humblot

rule: prohibition of indirect discrimination

context: ECtHR ruled that France's car taxation system (imposed a higher tax on cars with larger engine capacities) violated EU law by discriminating against imported cars

--- held that such a tax system created an indirect restriction on the free movement of goods within the EU by disproportionately affecting foreign-manufactured vehicles

Outokumpu

rule: direct discrimination when domestic goods are taxed more favorably than imported goods

context: ECHR ruled that Finland's electricity tax (taxed imported electricity at a higher rate than domestically produced electricity) was discriminatory and violated EU law by hindering the free movement of goods within the internal market

Commission v UK

rule: underscored member states' obligation to comply with EU customs rules to ensure uniformity across the internal market

context: beer taxed more favorably than wine in UK (more beer production and consumption domestically than wine so clear domestic favoritism) - however, people may not consider these products in competition or similar at all

**unsure

Dassonville

rule: provides definition of MEEs

→ "All [trading] rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having equivalent effect"

Cassis de Dijon

rule: established the principle of mutual recognition (goods lawfully produced and marketed in one EU member state must generally be allowed to be sold in other member states)

--- introduces "mandatory requirements" as product requirements imposed on products lawfully produced and marketed in another member state which would constitute obstacles to trade

---- added justification grounds to the written ones in Art 36 TFEU to make it easier for states to justify obstacles over broad MEEs

context: concerned product requirements imposed on products lawfully produced and marketed in another member state (obstacle to trade) - cassis liquor

Krantz

rule: not all national measures that affect the flow of goods as MEEs because the effect on trade can be "too uncertain and indirect"

context: ECtHR ruled that a German law allowing authorities to seize goods from a company's warehouse to satisfy unpaid taxes did not violate EU rules on the free movement of goods

--- such measures only indirectly affected trade and were justified for the enforcement of national tax laws

Keck and Mithouard

rule: national laws restricting certain selling arrangements do not fall under the prohibition of measures equivalent to quantitative restrictions under EU law, as long as they apply equally to all traders

--- national measure 'restricting or prohibiting' "certain selling arrangements" are not MEEs [...] if they apply to all traders and do not discriminate against foreign products in law or in fact (because they do not prevent foreign products' access to the market any more than access of domestic products)

Familiapress

rule: made distinction between product requirements and certain selling arrangements

context: ECJ ruled that an Austrian law prohibiting the sale of magazines containing prize competitions restricted the free movement of goods but could be justified on grounds of protecting consumer rights and maintaining media diversity

--- emphasized that such restrictions must be proportionate to the objectives pursued

Gourmet International

rule: discriminatory rules regarding selling arrangements are still MEEs

context: ECJ ruled that Sweden's ban on advertising alcoholic beverages in magazines could restrict the free movement of goods under EU law, as it disproportionately affected imported products

--- but Court acknowledged that such restrictions could be justified on public health grounds if proportionate and non-discriminatory

Italian Trailers

rule: market access rule (bans/restriction on use can affect "market access" bc consumers will not be interested in buying the product)

context: ECtHR ruled that Italy's prohibition on motorcycles towing trailers (which primarily affected imported trailers) restricted the free movement of goods under EU law

--- held that while road safety could justify the restriction, the measure must be proportionate and not excessively impede trade

Conegate

rule: import restrictions must be justified on grounds of public morality and apply equally to domestic and imported products

context: ECJ ruled that the UK's ban on the import of certain sexually explicit goods violated EU law, as the UK could not justify the restriction on public morality grounds while allowing similar goods to be produced and sold domestically

Lawrie-Blum

rule: established criteria for what a worker is criteria

-- (1) work for a certain period of time (no minimum but must work more than ad hoc basis)

-- (2) working for and under the direction of another person (hierarchical relationship)

-- (3) in exchange for remuneration (some form of salary)

context: ECJ ruled that a trainee teacher qualifies as a "worker" under EU law, as long as they perform services under the direction of another in return for remuneration

Saunders

rule: EU rules on the free movement of persons do not apply to wholly internal situations

context: lady convicted of theft and originally from N Ireland but was living in UK/Wales - had to move back to Ireland for at least 3 years, returned back to UK and was caught - violated terms of her sentence, claimed it was restriction to free movement rights bc there is more opportunity, ECJ ruled that it is unfortunate but not concerned within EU law as it only concerns one member state, the UK

Cristini

rule: worker benefits and rights must also be extended to family members of migrant workers under EU law

--- reinforced the principle of equal treatment for migrant workers and their families

Bosman

rule: football transfer and 3+2 rules violated EU law on the free movement of workers and non-discrimination

context: a player who wasn't very good was trying to move clubs but the new club wouldn't pay the transfer sum but the old club wouldn't let his registration go so he was stuck in limbo

--- transfer-sum rules (player registration rules) - player moving from club a to club b could only play for club b after a released his player registration, conditional on club b paying a transfer sum

----- no discrimination bc applied to all transfers, no distinction within or between member states directly affects players access to employment market in other MS so there is a cross-border problem

- 3+2 rule - a football club could only use 3 foreign players on team and could have two more if they had played for the team for a long time (direct discrimination based on nationality)

Adoui and Cornuaille

rule: "Genuine, present and sufficiently serious threat"

context: ECJ ruled that Belgium could not expel two French nationals working in the sex industry on public policy grounds while allowing Belgian nationals to engage in similar activities

--- emphasized that EU member states cannot apply discriminatory measures to EU nationals if similar conduct is tolerated domestically

Angonese

rule: prohibition of nationality discrimination in Art 45(2) can be invoked against all private party actions → "full" horizontal direct effect

context: man applied to a bank job that required both german and italian fluency to work and was rejected bc he didn't have a certificate for the language proficiency from a specific lang institute - indirectly discriminates bc much more burdensome for ppl who don't live in italy to obtain such a certificate

--- ECJ ruled that a private bank's requirement for a specific language certificate issued in a particular region violated the principle of free movement of workers within the EU

Criteria for Article 49 TFEU (Freedom of Establishment)

1. Is Article 49 TFEU applicable in this case?

--- a. What is establishment?

---- i. criteria: (1) duration ("stable and continuous basis), (2) regularity (by which they go to MS), and (3) whether that person has set up infrastructure (Gebhard)

--- b. Is there applicable harmonization at EU level? If yes, then apply harmonization legislation but if not:

--- c. Is there a cross-border element in the case?

--- d. Can the claimant invoke Art 49 TFEU against the defendant? (personal scope and direct effect of Article 49 TFEU)

--- Art 49 TFEU is sufficiently clear and unconditional so it has vertical direct effect

--- can also be invoked against private entities who are exercising their "legal autonomy" and who are regulating in a collective manner (Viking Line, Bosman, Walrave)

2. Material scope of Article 49

--- a. Does the measure constitute a restriction of the free movement of establishment?

--- b. natural (self-employed) v legal person (companies)

3. Justifications

--- a. Treaty derogations in Art 52

----- i. Is the measure proportionate?

-------- suitability → Is the measure suitable or appropriate to attain its purpose?

-------- necessity → Is the measure necessary to attain its purpose? Are there any alternatives that achieve the purpose equally well and are less restrictive of trade?

--- b. "Imperative requirements in the general interest"

----- i. Legitimate objective of public interest ("imperative requirement")

----- ii. indistinctly applicable (no direct discrimination)

----- iii. proportionality → suitability + necessity

Criteria for Article 56 TFEU (Free Movement of Services)

1. Does Art 56 TFEU apply?

-- a. What are services?

--- i. (1) service/performance (2) normally provided for remuneration (3) temporary nature (Gebhard)

-- b. Is there applicable harmonization at EU level? Is there a cross-border element?

--- check whether Service Directive applies, Art 2

-- c. Can the claimant invoke Art 56 against the defendant? (personal scope and direct effect)

-- Art 56 is sufficiently clear and unconditional so it has vertical direct effect (Van Binsbergen)

-- can also be invoked against private entities who are exercising their "legal autonomy" and who are regulating in a collective manner (Walrave, Laval)

2. Material scope of Art 56

-- a. Does the measure constitute a restriction of the free movement of services?

--- All forms of direct and indirect discrimination considered a restriction

--- market access test - non-discriminatory measures which "directly affect market access" considered restrictions (Apline Investments, Italian Trailers)

--- discrimination is not required but evidence of an impediment (from providing services is necessary (Säger)

3. Justifications

-- a. Treaty derogations in Art 52

--- i. proportionality

---- suitability - cannot make freedom of services "economically impossible" (Laval)

---- necessity test → national measures can be justified by imperative reasons in public interest "in so far as that interest is not protected by the rules [of the home Member State]" and they do not "exceed what is necessary to attain [the imperative reasons in the public interest]" (Säger)

-- b. "Imperative requirements in the general interest" (aka "overriding reasons of public interest" in Laval)

--- i. Legitimate objective of public interest ("imperative requirement")

--- ii. indistinctly applicable (no direct discrimination)

--- iii. proportionality → suitability + necessity

Gebhard

rule: establishment in Article 49 TFEU

--- criteria for establishment: (1) duration, (2) regularity (by which they go to MS), and (3) whether that person has set up infrastructure (like an office)

--- "stable and continuous basis"

--- MS must take into account what individual already knows and adapt requirements to this situation and provide exemptions

context: qualified lawyer in germany who also took up activity and opened a firm in Italy so competitors complained to bar so he was barred from calling himself a lawyer

---- claimed in court these requirements restricted his freedom of establishment

---- falls under scope of Art 49 bc he is established in italy not just providing services

Vlassopoulou

rule: MS must take into account what individual already knows and adapt requirements to this situation and provide exemptions

context: Greek woman with PhD in German law and experience as a paralegal in Germany was denied registration for the bar bc she hadn't completed the required state examinations

--- argued that the rejection violated Article 49 TFEU by preventing her from establishing her own legal practice, and court ruled that measures hindering freedom of establishment, even if non-discriminatory, constitute a restriction under Article 49

Daily Mail

- UK tax legislation prevents transfer of company to another MS while retaining its status as a UK company (unless you have permission)

-- court ruled that companies are "creatures of the law" and it is up to UK company to determine the criteria for being a UK company

Centros

rule: system of registration restricts freedom of establishment and the use of free movement rights is not abuse

context: Centros Ltd, incorporated in the UK but operating only in Denmark, was denied registration of a secondary establishment by Danish authorities, who argued the company was circumventing Danish minimum capital requirements

--- company claimed this restriction violated EU law, as the UK has transparency rules allowing potential clients to assess a company's financial health, and Denmark's refusal to register was seen as a restriction on the freedom of establishment under Article 49 TFEU

Viking Line

rule: Article 49 TFEU can also be invoked against private entities who are exercising their "legal autonomy" and who are regulating in a collective manner the free movement of establishment (has limited degree of horizontal direct effect)

context: Viking line wants to reflag its vessel from Finland to Estonia, originally registered in Finland (finnish labor law applicable) but want to switch to Estonia so they can hire Estonian laborers and pay significantly lower wages

--- collection of Finnish seamen union tried to block this

Visser Vastgoed Beleggingen

rule: rules on permits and authorization schemes also applies within wholly internal situations (service directive does not require a cross-border requirement)

Luisi and Carbone

rule: concerns cases where recipient moves across borders to receive services in another member state

context: recipient moves across borders to receive services in another member state

-- fined for taking large amounts of currency out of Italy without authorization

-- ECJ ruled that the freedom to provide services included the right to make cross-border payments, and individuals could take currency abroad for personal reasons, such as tourism or medical treatment, without restrictions from national authorities

Van Binsbergen

rule: Art 56 is sufficiently clear and unconditional so it has vertical direct effect

context: Dutch lawyer challenged Dutch regulations that required service providers to be established in the Netherlands

--- ECJ ruled that such restrictions violated the free movement of services, allowing EU citizens to provide services in other member states without being physically established there

Säger

rule: discrimination is not required but evidence of an impediment (from providing services) is necessary

--- necessity test → national measures can be justified by imperative reasons in public interest "in so far as that interest is not protected by the rules [of the home Member State]" and they do not "exceed what is necessary to attain [the imperative reasons in the public interest]"

-- concerns cases where service provider moves across borders to provide services in another member state

context: German law restricted IP rights maintenance work to patent agents, requiring them to handle tasks like renewals and fees, while UK law had no such requirement

--- Sager, a German agent, complained about competition from a British provider, and the CJEU ruled that while there was no discrimination, the law created an impediment to providing services, which was contrary to EU law

Alpine Investments

rule: national rule is not a restriction solely by virtue in the fact that member states provide less strict rules in similar domains

--- market access test - non-discriminatory national rules restrict free movement of services if they "directly affect access to the market in services in other member states"

-- concerns cases where service itself moves, neither provider or recipient moves

context: NL enacted generally applicable prohibition on cold calling (applies to all, so no direct or indirect discrimination)

Mobistar

rule: national measures with "the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one MS" are not restrictions

--- limited to non-discriminatory tax measures

context: Belgian generally applicable tax on mobile telephone infrastructure

--- applies to all (whether belgian or not), so no direct or indirect discrimination

--- tax made it commercially less attractive to be in the market

Laval un Partneri

rule: even though union exercises its fundamental right to strike, actions are subject to Article 56 as they make it less attractive to provide services in sweden, so a restriction to free movement

-- suitability and necessity - very strict approach in Laval toward labor union actions, court says labor unions may not do whatever it takes to force companies to comply with their terms

---- union so powerful and make Laval life economically impossible, they are going too far

-- concerns cases where service provider moves across borders to provide services in another member state

context: Latvian company provides construction work services in sweden using latvian workforce and paid latvian wages

--- Swedish labor unions demand collective agreement with wages but Laval refuses so they striked and blockaded their building site

MEEs (Measures having Equivalent Effect)

Quantitative Restricions

Selling Arrangements

Selling Requirements

MEEs → national measures that, while not explicitly discriminatory, have the same restrictive effect as quantitative restrictions on imports

--- prohibited under Article 34 TFEU --- Dassonville - broadly defined MEEs as any measure that hinders intra-EU trade

Quantitative Restrictions → measures that directly limit the quantity of goods that can be imported or exported (like outright bans or quotas)

--- prohibited under Article 34 TFEU

Selling Arrangements → rules related to how, when, or where products are sold (like advertising or opening hours)

--- Keck - selling arrangements do not violate Article 34 TFEU as long as they apply equally in law and fact to both domestic and imported products to all traders

--- ex: sunday trading ban

Selling Requirements → rules concerning the product itself, such as its composition, packaging, or labeling (Cassis de Dijon)

--- generally considered MEEs because they directly affect the product and can hinder market access

Criteria for Free Movement of Citizens

(Article 20, 21 TFEU + Directive 2004/38/EC)

1. Is Article 20 or 21 TFEU or Directive 2004/38/EC applicable in this case?

-- a. Is the case about an EU citizen?

--- i. Art 20 TFEU → any citizen of a MS is an EU citizen, adds on to national status

--- ii. MS decides who are nationals (Micheletti)

-- b. Does the case fall within the scope of Directive 2004/38/EC? If yes, then apply the Directive. If not, apply Article 20 and 21 TFEU?

--- i. Art 3(1) Directive - scope of directive limited to EU citizens "moving to or residing in another MS"

-- c. Is there a cross-border element in the case? If yes, Article 21 TFEU is applicable. If not, Article 20 TFEU may exceptionally be applicable

---- wholly internal situations sometimes covered by Art 20 in exceptional situations

-- d. Can the claimant invoke the applicable provision against the defendant? (personal scope and direct effect)

---- i. Art 21 TFEU is sufficiently clear and unconditional so it has vertical direct effect

---- ii. Relevant provisions of Directive 2004/38/EC are sufficiently clear and unconditional, so vertical direct effect (Marshall)

2. Material scope of Articles 20 and 21 TFEU

-- a. Article 21 TFEU → does the measure constitute a restriction to the free movement of citizens?

-- b. Article 20 TFEU → does the measure deprive the EU citizen de jure or de facto of the enjoyment of the substance of the rights of EU citizenship?

3. Justifications

-- a. Is there an imperative requirement in the public interest?

--- i. Directive justifications → only found in Art 27-29 + 24(2), no additional "objective justifications"

--- ii. Treaty - if impediment to free movement, MS must objectively justify this restriction based on an overriding reason in public interest (Coman)

-- b. Is the measure proportionate?

principle of mutual trust

MS must assume that all other MS (and their subsequent courts and authority) respect and comply with EU law and fundamental rights protection

Micheletti Case

rule: member states decides who are nationals and must recognize the nationality of other member states, without imposing additional conditions

--- CJEU ruled that Member States cannot restrict the rights of EU citizens by imposing their own national laws on the recognition of another Member State's nationality

Rottmann Case

rule: withdrawal of nationality by an EU MS (which could render them stateless) must respect EU law principles, particularly proportionality, when it affects the rights of Union citizenship

context: man had to give up austrian nationality to acquire german nationality but in his application process, germany rejected him bc of cases of fraud

--- threatened of statelessness so court ordered both states to carry out proportionality test to find a way that he can keep one of his nationalities as statelessness is untenable

Grzelczyk Case

rule: established that EU citizens residing in another member state have the right to access certain social benefits under the principle of non-discrimination

-- EU citizenship is "destined to be the fundamental status of the nationals of the Member States"

context: A hardworking French student in belgium who worked besides his studies had to stop working when completing his thesis so tried to apply for financial help from gov but was rejected as he's not a worker and is not a belgium student, only students with belgian nationality can receive maintenance aid

--- CJEU noticed that directive does not include or prohibit non-discrimination, but states there should provide some form of financial solidarity for foreign students

Förster Case

rule: EU member states can impose a residency requirement of five years for students to be eligible for maintenance grants without violating EU law

--- MS may ensure that study assistance "does not become an unreasonable burden" and that foreign students demonstrate "a certain degree of integration into the society"

context: German national going to NL for bachelors who has to stop working so the court asked whether it was possible to exclude a student from the equal treatment regarding the maintenance grant? (this grant normally applies to residence of 5 years or longer)

--- court found that requirement of 5 years of uninterrupted residence is not disproportionate

Dano Case

rule: Member States can deny social assistance to economically inactive EU citizens who move to another Member State solely to seek benefits

--- individuals do not have the right to equal treatment under Article 24 of Directive 2004/38 unless they meet the conditions for legal residence

--- job seekers can be excluded from social security benefits if don't satisfy the conditions in 14(4)(b) = must have a genuine chance of being employed//engaged

context: Romanian national stayed at her sister's in Germany but did not look for work or study but stayed longer than three months

--- when she tried to apply for social benefits/security, she was rejected as she wasn't a worker or student or had sufficient sources to sustain herself

---- thus, as she had no residence right under Art 7, she would not receive equal treatment right under Art 24(1)

O. and B. Case

rule: non-EU family members of EU citizens may acquire a derived right of residence if they've formed a sufficiently strong bond and have lived in the non-resident state sufficiently long (more than 3 months)

--- it should not be more difficult for an eu citizen to bring a spouse to their resident state than to another eu state (Singh)

independent v dependent EU citizen

independent EU citizen: individual who exercises their rights of free movement and residence within the EU without relying on the status of being a family member or dependent, but typically through their own economic activity

dependent EU citizen: individual who relies on the support of another person for their financial or material needs and may invoke their right to free movement within the EU when residing in another Member State with their sponsor

Coman Case

rule: if there is an impediment to free movement, MS must objectively justify this restriction based on an overriding reason in public interest

--- EU MS must recognize the right of residence for same-sex spouses of EU citizens, regardless of whether the state recognizes same-sex marriage

context: a romanian residing in belgium tried to return to romania with his husband to find work but romania does not recognize same-sex marriage

--- since the prohibition prevented and discouraged him from returning home, then it constitutes a restriction and could bring his spouse back on the basis of Article 21 TFEU

Zhu and Chen Case

rule: non-EU national parent can reside in an EU Member State if their minor child, who is an EU citizen, exercises their right to free movement and residence (Art 21 TFEU and Directive 2004/38 Art 7(1)(b))

context: Chinese mother gave birth to her second child in Northern Ireland (part of UK) because of the one-child rule in China at the time so child acquired Ireland nationality so becomes EU citizen

---- situation not covered by directive but Art 21 TFEU applies so she can stay in UK bc child is dependent on her

Ruiz Zambrano Case

rule: non-EU nationals who are primary caregivers of EU citizen children must be granted residency and work rights in the EU, as denying these rights would deprive the children of the genuine enjoyment of their EU citizenship

--- derivative residence rights for essential family members to ensure "genuine enjoyment of the substance of the rights" of EU citizenship

context: Colombian couple residing in Belgium had two children who were Belgian citizens and after their asylum claim was denied, he sought employment and residence rights in Belgium but refused again

--- CJEU ruled that, as the children were EU citizens, denying Mr. Zambrano the right to reside and work in Belgium would deprive the children of the genuine enjoyment of their EU citizenship rights, thus granting him those rights

Internationale Handelsgesellschaft Case

rule: court used unwritten general principles to invent fundamental rights in EU law since protection of fundamental rights is a general principle

--- scope of general principles: always applicable to all acts of EU institutions and applicable to some acts of Member States

Defrenne II Case

rule: Article 157 TFEU has direct effect so individuals can rely on it in national courts but is only applicable against direct discrimination, not indirect

context: airline had a rule that once a female flight attendant turned 40, their contract would be automatically terminated so lawyer invoked Art 157 TFEU for her case

--- Court ruled that this provision has direct effect so Defrenne can directly challenge this discrimination in her workplace

Kücükdeveci Case

rule: implied that Art 21 CFR has horizontal direct effect but confirmed in Dansk Industri

context: enforced the general principle of non-discrimination based on age in the context of Directive 2000/78, which aims to ensure equal treatment in employment

Akerberg Fransson Case

rule: CFR applies to member states "when they act within the scope of Union law"

--- this applies even in cases of tax penalties and criminal proceedings which are considered outside scope of EU law

context: concerned a man being tried for fraud and tried to avoid trial by claiming the general principle against being tried twice for the same crime but tax law was considered outside the scope of EU law

Melloni Case

rule: Member States cannot refuse to execute an EAW based on their national constitutional standards if it complies with the fundamental rights protected under EU law

--- Art 53 Charter can be interpreted to allow higher protection of rights as long as it does not compromise principle of primacy and uniformity of EU law

--- MS can provide higher standards of protection for fundamental rights than the Charter only if EU law grants them discretion and if not, then they must comply with EU law and surrender the individual in question

context: issue arose because Spanish law provided higher protection against convictions in absentia (without the defendant being present) than Italian law and the Spanish court was debating whether to surrender the individual to Italy (where the EAW originated) or breach EU law

L.M. Case

rule: Two-step test to determine real risk of fundamental right violation

--- 1. Is there a real risk of inhuman or degrading treatment because of deficiencies in protecting art 3 ECHR/Art 4 CFR? (systemic deficiencies alone are not enough for non-execution)

--- 2. Are there substantial grounds to believe that the individual will be exposed to that risk?

--- this test originated from Aranyosi and Caldararu

context: addressed whether EU MS can refuse to execute a EAW if there is a risk that the individual might not receive a fair trial due to concerns over judicial independence in the issuing country (Poland)

ERT Case

rule: member states also bound by EU fundamental rights when they "derogate" from a fundamental freedom

context: concerned the compatibility of a Greek law granting a public broadcaster exclusive rights with EU law, specifically the free movement of services under Article 56 TFEU

--- CJEU ruled that national measures limiting fundamental freedoms must comply with EU law and fundamental rights, even if justified on public policy grounds

In legal disputes, does lex specialis or lex generalis prevails?

Lex specialis prevails!

Market Access Test

Cases: Italian Trailers, Sager + Alpine Investment

rule: bans/restriction on use can affect "market access" bc consumers will not be interested in buying the product

-- does it make the service less attractive?

- non-discriminatory measures can still constitute restrictions if it hinders market access

Criteria for Right of Residence

(Directive 2004/38/EC)

1. Art 3(1) Directive → directive applies to EU citizens moving or residing in MS other than which they are a national of

2. Art 7(1) Directive → right of residence conditions:

----- (a) they are workers or self-employed

----- (b) they have sufficient resources so as not to become a burden on the host member state

----- (c) enrolled in a course of study

Other important articles:

-- Art 7(2) + 7(1)(d) - residence extends to family members accompanying or joining a Union citizen

-- Art 12 - family members retaining residence after death or departure of union citizen

-- Art 14(4)(b) - residence right for work-seekers

-- Art 16 - permanent residence after continuous period of five years in host member state

relevant market

relevant market: the area in which competition takes place which always consists of:

(1) product market - which goods or services are substitutable from the perspective of (i) consumers and (ii) producers?

--- look at price difference or qualitative differences

(2) geographical market - in which areas are goods and services substitutable from the perspective of (i) consumers and (ii) producers?

--- look at transportation costs

inter v intra-brand competition

inter-brand competition: competition between different brands

intra-band competition: competition between sellers of the same brand

horizontal v vertical agreements

horizontal agreements: agreements between undertakings on the same relevant market

vertical agreements: agreements between undertaking active on different levels of the supply chain

--- such as manufacturers and distributors + distributors and retailers

Structure of Article 101 TFEU

(prohibition of anti-competitive coordination)

1. Applicability

-- a. Are the parties involved undertakings?

---- i. Undertakings definition (Höfner and Elser)

---- ii. entity is not considered an undertaking if activities of public authority (Eurocontrol)

-- b. Is there coordination in the form of an agreement or a concerted practice?

---- i. agreement is any concurrence of wills (Bayer)

---- ii. concerted practice is coordination without agreement with three elements: (Anic)

----- (1) undertakings "concerting together" (exchanging sensitive information)

----- (2) subsequent parallel conduct on the market

----- (3) causal link

-- c. Does the coordination affect trade between Member States?

---- i. Is the coordination "capable of constituting a threat, either direct or indirect, actual or potential, to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between States"? (Consten and Grundig)

2. Material Scope

-- a. Does the coordination have as its object or effect the prevention, restriction or distortion of competition within the internal market?

---- i. "by object" - don't always need to show that the agreement actually resulted in a restriction of competition

-- b. Restriction of Competition by Object

--- certain types of coordination "by their very nature [...] harmful to the proper functioning of normal competition" (Cartes Bancaires)

-- c. Restriction of Competition by Effect

---- i. Analyze the "relevant market" where competition takes place

---- ii. Analyze the detrimental effects on competition

---- iii. Are the anti-competitive effects "appreciable"?

----- de minimis doctrine (agreements with a negligible effect on market competition do not constitute a violation)

----- restrictions of competition by object are by definition appreciable (Expedia)

3. Justification

-- a. Can the restric

Structure of Article 102 TFEU

(prohibition of abuse of dominance)

1. Applicability

-- a. Are the parties involved undertakings?

---i. Undertakings definition (Höfner and Elser)

---ii. entity is not considered an undertaking if activities of public authority (Eurocontrol)

--b. Does the conduct of the undertaking (potentially) affect trade between Member States?

---i. "capable of constituting a threat, either direct or indirect, actual or potential, to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between States"? (Consten and Grundig)

2. Material Scope

--a. Does the undertaking have a dominant position within the internal market or in a substantial part of it?

---i. dominant position definition (United Brands)

---ii. definition of relevant market

---iii. relevant factors: >50% (rebuttable presumption of dominance), 40-50% (possibly dominant) - also look at position of competitors, advantages

---iv. Having a dominant position is not prohibited, but:

"...irrespective of the reasons for which it has such a position, the undertaking concerned has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market (Michelin I)

--b. Does the undertaking abuse the dominant position?

---i. exploitative abuse: using dominance to exploit customers

---ii. exclusionary abuse: using dominance to exclude competitors from the market + preventing new competitors from entering the market

--- predatory pricing, loyalty-rebates, refusal to deal/supply + tying

3. Justification

--a. Dominant undertaking can escape the prohibition if their conduct is "objectively justified"

---i. "special context"

---ii. efficiency defense (conduct benefits consumers for higher quality products at lower prices)

What are the different types of exclusionary abuse?

1. predatory pricing: low prices push competitors off market

-- distinction between prices below "average variable costs" and prices below "average total costs" + rule (AKZO Chemie)

2. loyalty rebates: discounts conditional upon customers containing all or most of their requirements exclusively from the dominant undertaking

-- target + quantity rebates

3. refusal to deal/supply

-- refusal to deal with an existing customer can be abusive (Commercial Solvents)

-- "essential facilities doctrine": refusal to deal with new customer (Magill) - not always abusive bc of contract freedom and IP rights

4. tying: using dominance in market A to increase market power in market B by selling two separate products together

-- Five Criteria for Abuse (Microsoft)

Höfner and Elser Case

rule: defined undertakings as every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed

context: German gov had given Bundesagentur fur Arbeit exclusive right to bring employers and employees together, so had monopoly over employment procurement

--- however, the agency had limited resources and could not meet demand, so started limiting output so started to give this right to other companies

--- violated Article 106(1) together with 102 TFEU, limiting output is an abuse of a dominant position

SAT Fluggesellschaft v Eurocontrol Case

rule: entity is not considered an undertaking under Article 101 TFEU if its activities are not of an economic nature and are instead an exercise of public authority

context: Eurocontrol charges users for navigation services and is accused of abusing its dominant position, other airlines said their prices were disproportionate

--- court ruled that their activities related to air navigation charges are part of its public authority functions and not considered economic activity so exempt from competition rules under EU law (acted as arm of the state)

Bayer Case

rule: defined that an agreement is any concurrence of wills (and one must determine whether parties have explicit or implicit agreement of terms)

context: a wholesaler in spain would buy too much medication to sell leftovers to UK stores in who sold at a higher price - tried to circumvent system

--- to combat this, original producer reduced quantity they would sell to spanish company so they couldn't export remaining stock to UK

--- court ruled that Bayer's selective distribution agreements restricting parallel imports of pharmaceutical products did not amount to an abuse of a dominant position, as the restriction was not imposed by agreement but was instead unilaterally adopted by Bayer

Anic Case

rule: concerted practice is coordination without agreement with three elements:

--- i. undertakings "concerting together" (exchanging sensitive information)

--- ii. subsequent parallel conduct on the market

---- parallel conduct on the market cannot be explained other than by concerting (Imperial Chemical Industries)

---- undertakings concerting together → presumption of subsequent parallel conduct and causal link (once court has evidence that info has been exchanged and companies concerted)

--- iii. causal link between (1) and (2)

Consten & Grundig Case

rule: Is the coordination "capable of constituting a threat, either direct or indirect, actual or potential, to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between States"?

--- "By object restriction" - once an anti-competitive object has been established, no longer need to ascertain actual anti-competitive effects

--- companies also required to contribute to market integration objective of treaty

context: Consten was the exclusive distributor of Grundig radios in France and the exclusive distribution agreement restricted them from selling radios in other EU MS

--- court ruled that this agreement went too far bc of "absolute territorial protection" as it blocked cross-border trade and any competition from other distributors

--- constituted a restriction of competition by object and that Companies also required to contribute to market integration objective of treaty