LEU 2025-26 - Article structures

Article 34 TFEU

1. Is art 34 TFEU applicable in this case?

a) Is the case about goods?

b) Is their applicable harmonisation at EU level? If yes, then apply harmonisation, if not:

c) Is there a cross border element?

d) Can the claimant invoke art 34 TFEU against the defendant?

2. Material scope of art 34

a) Does the measure constitute a “quantitative restriction” or a “measure having equivalent effect”?

3. Justification

a) Can the MS invoke a ground of justification in art 36 TFEU or a “Mandatory requirement”?

b) For “mandatory requirement” only, is the measure indistinctly applicable? For art 36 TFEU justifications only, does the measure constitute arbitrary discrimination?

c) Is the measure proportionate?

Article 45 TFEU

1. Is art 45 TFEU applicable in this case?

a) Is the case about workers?

b) Is their applicable harmonisation at EU level? If yes, then apply harmonisation, if not:

c) Is there a cross border element?

d) Can the claimant invoke art 45 TFEU against the defendant?

2. Material scope of art 45

e) Does the measure restrict the free movement of workers?

3. Justification

f) Can the MS invoke a ground of justification in art 45 TFEU or a “Mandatory/imperative requirement”?

g) For “imperative requirement” only, is the measure indistinctly applicable? h) Is the measure proportionate?

Article 49 TFEU

1. Is art 49 TFEU applicable in this case?

a) Is the case about establishment?

b) Is their applicable harmonisation at EU level? If yes, then apply harmonisation, if not:

c) Is there a cross border element?

d) Can the claimant invoke art 49 TFEU against the defendant?

2. Material scope of art 49

a) Does the measure restrict the freedom of establishment?

3. Justification

a) Can the MS invoke a ground of justification in art 52 TFEU or an “imperative requirement”?

b) For “imperative requirement” only, is the measure indistinctly applicable?

c) Is the measure proportionate?

Article 56 TFEU

1. Is art 56 TFEU applicable in this case?

a) Is the case about services?

b) Is their applicable harmonisation at EU level? If yes, then apply harmonisation, if not:

c) Is there a cross border element?

d) Can the claimant invoke art 56 TFEU against the defendant?

2. Material scope of art 56

a) Does the measure restrict the free movement of services?

3. Justification

a) Can the MS invoke a ground of justification in art 52 TFEU or an “imperative requirement”?

b) For “imperative requirement” only, is the measure indistinctly applicable?

c) Is the measure proportionate?

Article 20 or 21 TFEU or Directive 2004/38/EC

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

a) Is the case about an EU citizen?

b) Does the case fall within the scope of dir 2004/38/EC? If yes, apply directive, if not: apply art 20 and 21 TFEU

c) Is there a cross border element? If yes → art 21 TFEU applicable. If not, art 20 may exceptionally be applied

d) Can the claimant invoke the applicable provision against the defendant?

2. Material scope of art 20 & 21

a) art 21 TFEU: does the measure constitute a restriction to the free movement of EU citizens?

b) art 20 TFEU: Does the measure debris the EU citizens de jure or de facto from the enjoyment of the substance of the rights of EU citizenship?

3. Justification

a) Is there an imperative requirement in the public interest?

b) For “imperative requirement” only, is the measure indistinctly applicable?

c) Is the measure proportionate?

European Arrest Warrant Framework Decision

Council framework decision 2002/584/JHA (not in Blackstones)

1) Member state A issues a European arrest warrant for conducting a criminal prosecution or executing a sentence

2) Member State B obligated to execute the arrest warrant and surrender the requested person

3) Principle of mutual trust

a) Based on mutual recognition, obligation to respect fundamental rights

b) Mutual trust as the basis for police and judicial cooperation

c) Mutual recognition of national court judgements and their compliance with fundamental rights

4) Two-step test (summarised in LM)

Article 101 TFEU

1. Applicability?

a) Are the parties involved undertakings?

b) Is there coordination in the form of an agreement or a concerted practice

c) Does the coordination affect trade between MS?

2. Material scope

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

3. Justification

a) Can the restriction of competition be justified by art 101(3) TFEU?

Restriction of competition by effect

1) Analysis of the “relevant market” on which competition takes place:

a) Product market: which products compete?

b) Geographical market: In which areas do products compete?

2) Analysis of detrimental effects on competition:

a) Usually specific tests for specific types of conduct eg.

i) Ancillary restraints doctrine

ii) Specific criteria for selective distribution systems

3) Are the anti-competitive effects “appreciable”?

a) De minimis notice

Article 102 TFEU

1. Applicability?

a) Is there an undertaking?

b) Does the conduct of the undertaking (potentially) affect trade between MS?

2. Material scope

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

b) Does the undertaking abuse this dominant position?

3. Justification

a) Is the (prima facie) abusive conduct objectively justified?

Article 263 TFEU

1. Procedure

a. Competent institution

b. Reviewable acts

c. Legal standing

d. Time limit

2. Substance

a. Grounds of review

Abuse of dominance - Art. 102 TFEU

1. Applicability of Article 102 TFEU

a. Is the party undertaking?

• undertakings: Defined in Höfner and Elser as “any entity engaged in an economic activity regardless of legal status”. Economic activity includes offering goods/services on a market

  • not an undertaking: public authorities exercising public power

b) Does the conduct effect trade b/w MS’s?

• effect on trade: The coordination must pose a threat, direct or indirect, to EU trade (Consten & Grunding). This can happen even w/o a decrease in trade volume.

2. Material scope of Article 102 TFEU

a) Does the undertaking have a dominant position in the Market (or part of it)?

• Defined in United Brands: A position of economic strength enabling an undertaking to prevent effective competition. Allows the firm to act independently of competitors, customers and consumers. Requires definition of the relevant market to determine if the undertaking is dominant (Michelin I)

• factors for determining dominant position

  • 1) Market share

  • 2) relative competitor position

  • 3) technological, economic and legal advantages

  • 4) economies of scale

  • 5) vertical integration

  • 6) Barriers to market entry

  • 7) Challenges in digital markets

*Being dominant is not illegal, but a dominant firm has a special responsibility to not distort competition (Michelin I)

b) Is the dominant position being abused?

1) exploitive abuse: using dominance to exploit customers (e-g, unfairly high prices, as in United Brands). Hard to prove, as determining a “fair” price is subjective

2) Exclusionary abuse: conduct aimed at excluding competitors or preventing market entry. Types:

1. Predatory pricing: unfairly low prices to drive competitors out of(Akzo Chemie)

2. Loyalty Rebates: Discounts conditional on exclusivity (Hoffman - La Roche) ← Memorise! → Michelin I

3. Refusal to supply: denying essential goods/services to competitors (Magill) can be abusive if:

• The product is indispensable

• The refusal prevents a new product from emerging

• There’s no objective justification

• All competition is excluded

4. Tying: Linkinga dominant product with another to boost market power in secondary markets (Microsoft). Criteria for abuse:

   1. Dominance in the market for tying product

   2. Tying and tied products are separate

   3. Customers can’t get the tying product w/o the tied product

   4. Competition is foreclosed

   5. no objective justification

3) Justification

a) Is there an objective justification for the prima facie abusive conduct?

• Article 102 has no explicit provision for exemptions, but the courts have allowed objective justifications for abuse.

  • efficiency defence: conduct may be justified if it benefits consumers (e.g., higher quality/lower prices)

  • special context: meeting competition defence - dominant firms may defend themselves if threatened by competitors

*State regulations and Article 106(1) TFEU:

• prohibits MS’s from enacting laws that allow public/semi-public undertakings to abuse their dominant positions

• Höfner and Elser: abuse of monopoly in employment procurement

• Porto di Genova: Abuse is the exclusive right to organise dock work, involving excessive charges and lack of innovation

Article 34 TFEU

1. Is art 34 TFEU applicable in this case?

a) Is the case about goods?

• ‘Products which can be valued in money and which are capable of forming the subject of commercial transactions’ (Italian Art)

• ‘Tangible physical characteristics’ (Jägerskiöld)

b) Is their applicable harmonisation at EU level? If yes, then apply harmonisation, if not:

c) Is there a cross-border element?

• Between MS

• All reverse discrimination and other disputes which are ‘confined in

  all respect within a single Member State’ fall outside the scope of EU

  law

d) Can the claimant invoke art 34 TFEU against the defendant?

• Sufficiently clear and unconditional (Commission v France (truck driver))

• Article 34 TFEU has vertical direct effect but it generally does not have horizontal direct effect

• Dassonville (para 5): All trading rules enacted by a Member

  State which are capable of hindering, directly or indiscreetly,

  actually or potentially, intra-Community trade

  • Krantz: Not all national measures that affect the flow

    of goods can be qualified as an MEE, as sometimes the

    effect on trade is ‘too uncertain and indirect

• MEE’s have four possibilities

1. Selling arragements (Keck and Mithouard, exception)

2. Product requiremetns (Cassis de Dijon, prinicple of mutual recognition)

   1. justifications: familiapress change of content of a product

   2. Conegate: no reliance on grounds of ‘public morality’ without law

3. Accessibility (Gourmet international): indirect discrimination, imported products have a same right to be advertised as domestic products

4. Use of products (italian trailers): direct discrimination, bans/restrictions that can affect ‘market access’ are also not allowed as consumers will be less interested in buying the product

2. Material scope of art 34

a) Does the measure constitute a “quantitative restriction” or a “measure having equivalent effect”?

3. Justification

a) Can the MS invoke a ground of justification in art 36 TFEU or a “Mandatory requirement”?

i) grounds of justification 

• derogations in art. 36 TFEU

ii) Direct discrimination

• but no arbitrary discrimination or a disguised restriction on trade

iii) Proportionality (suitability + Necessity)

b) Mandatory (imperative) requirements

i) Grounds of justification

• unwritten justifications developed in the Court’s case law (non-exhaustive list)

• Consists of any reasonable policy objective that is not ‘purely

  economic, and which may justify a hindrance to trade

ii) Indistinctly applicable (not directly discriminatory)

ii) Proportionality (suitability + necessity)

• Suitability: Is the measure suitable or appropriate to the objective?

• Necessity: Is the measure necessary to attain its purpose, or are there any alternatives that achieve the purpose equally well and are less restrictive of trade?

Article 45 Answer structure

1. Is art 45 TFEU applicable in this case?

a) Is the case about workers?

• (Lawrie-Blum) ‘certain period of time’ works in hierarchical relationship in exchange for remuneration

• (Levin) Part-time work and remuneration below the minimum wage also

  count, except for activities that are ‘purely marginal and ancillary’

b) Is their applicable harmonisation at EU level? If yes, then apply harmonisation, if not:

• Regulation 492/2011

  • Applicability: Same definition of ‘worker’, but not applicable to workers returning to their own Member State (specific cross-border element)

  • Personal scope: Sufficiently clear and unconditional provisions have vertical and horizontal direct effect

  • Material scope: Covers both direct and indirect discrimination

• Virtually no justifications

• (Cristini) Art. 7(2): ‘Workers in another Member State

  shall enjoy the same social and tax advantages as national

  workers’

• court determined whether the fare reduction fell within ‘social

  advantages’ and they concluded that they do, meaning that

  Art. 7(2) has a generally wide interpretation

• Directive 2004/38

  • Applicability: same as the Regulation, it just has only vertical direct effect for sufficiently clear and unconditional provisions

  • Material scope: Free movement and residence, and non-discrimination

  • Limited justifications in Articles 27-29 of the Directive

    • Art.27(2): restrictions to entry and residence based on public ppolicy, public security and public health

    • Art.27(2): restrictions must be based on the proportionality principle: ‘genuine, present, and sufficiently serious threat’ decided in (Adoui and Cornuiaille)

c) Is there a cross-border element?

• Wholly internal or domestic situations are not covered by Article 45 TFEU (Saunders)

d) Can the claimant invoke art 45 TFEU against the defendant?

• does the defendant fall under the ‘personal scope’ of Article 45 TFEU)

• Article 45 TFEU has vertical direct effect because it is sufficiently clear and unconditional (Van Duyn)

• Case law: Angonese

  • Prohibition of nationality discrimination in Article 45(2) TFEU can be invoked against all private party actions

  • Article 45 TFEU has full horizontal direct effect

It can also be invoked against private entities who are exercising their legal

autonomy and who are regulating in a collective manner, paid labor

• Case law: Walrave

  • ‘pacemaker’

  • Court: Even though the organisation is not state

    sponsored, it has the same effect because it exercises

    legal autonomy and regulates labour in a collective

    manner

2. Material scope of art 45

e) Does the measure restrict the free movement of workers?

i)  Direct and indirect discrimination (Article 45(2) TFEU)

• access to work (Angonese)

• Equal treatment within employment (Bosman)

ii) Non-discriminator obstacles to free movement of workers

• (Bosman) transfer sum rule (para 103)

• No Keck exception to free movement of workers

3. Justification

a) Treaty derogations in Article 45(3) TFEU

i) Ground of justification

• Found in derogations within Art. 45(3) TFEU

ii) Direct discrimination

iii) But no arbitrary discrimination (Adoui and Cornuiaille)

iv) Proportionality (Suitability + Necessity)

b) ‘Pressing/overriding reasons of public interest’ (a.k.a mandatory requirements)

i) Ground of justification

• Examples: consumer protection, differential tax rules on objective factors, etc.

• (Bosman): ‘financial and competitive balance between football clubs’ and ‘support the search for talent and training of young players’ (para. 106)

ii) Indistinctly applicable (not directly discriminatory)

iii) Proportionality (Suitability + Necessity)

• Suitability: Is the measure suitable or appropriate to the objective?

• Necessity: Is the measure necessary to attain its purpose, or are there any alternatives that achieve the purpose equally well and are less restrictive of trade?

• Mentioned in Bosman (para. 104), but the proportionality was not met

* Public service exception in Articel 45(4) TFEU

Article 49 TFEU Answer structure

1. Is article 49 TFEU applicable in this case?

a) is the case about ‘establishment’?

• Gebhard: Court had to make a distinction between what is a ‘worker’ and what is an ‘establishment’

  • The Court: The concept of an establishment is a very broad one, but it needs to be on a ‘stable and continuous’ basis with profit, and while contributing economically and socially within the sphere of self-employed persons (para. 25)

• Delineation from services as it is not of a temporary nature but ‘stable and continuous’

  • Delineation from workers

    • No hierarchical relationship

    • Carry the financial risk of business

    • Direct payment for services

• Also applicable to companies and firms (under Art. 54 TFEU)

b) Is there applicable harmonisation at EU level? If yes, then apply the

harmonisation legislation.

• Check the Services Directive (2006/123) particularly if it falls under any excluded activities in Article 2

• wholly internal situations where Chapter III of Directive 2006/123 is applicable in regards to authorization schemes (no cross-border element needed, Visser Vastgoed)

• Directive 2004/38/EC may also be applicable:

  • Article 7(1)a: Right of residence for up to 3 months for self-employed EU citizens

  • Article 24(1): Right of equal treatment

c) If not, is there a cross-border element in the case?

• Moving to another MS to take up a self-employed activity (Vlassopoulou)

• Return to your own MS after having exercised free movement of rights (Knoors)

• Transfer a company to another Member State (Daily Mail)

• Set up a secondary establishment in another Member State (Centros)

d) Can the claimant invoke Article 49 TFEU against the defendant?

• sufficiently clear and unconditional so it has vertical direct effect

• can also be invoked on against private entities who are exercising their ‘legal autonomy’ and who are regulating in a collective manner the free movement of establishment (e.g trade unions in Viking Line, similar to Walrave)

• Unlikely that it has horizontal direct effect

2) Material scope of Article 49 TFEU

a) Does the measure constitute a restriction to the freedom of establishment?

• Prohibition of direct and indirect discrimination

• Case law: Reyners, direct discrimination

• Case law: Vlassopoulou, indirect discrimination

• Prohibition of non-discriminatory obstacles to freedom of establishment

  • Gebhard ‘national measures liable to hinder or to make less attractive the exercise of fundamental freedoms’ (p.37) can be qualified as non-discriminatory obstacles

• List of possible situations of non-discriminatory obstacles in the case of companies:

  • Factortame II, mentioned in Schütze

  • Viking Line: Prohibition of restrictions to the exercise of company activities

  • Daily Mail: Internal situation

  • Centros: Prohibtion of restriction of setting up a secondary establishment

• Is the case dealing with natural persons? - Vlassopoulou and Gebhard

• Is the case dealing with legal persons/companies? - Factortame II, Centros, Viking Line depending on the circumstances of the case

3) Justification

a) Treaty derogations in Article 52 TFEU

i) Ground of justification

• Found in derogations within Art. 52 TFEU

ii) Direct discrimination

• Generally only meant for national measures with ‘special treatment of foreigners’

• If the case has direct discrimination only use treaty derogations, if it has both direct and indirect then you can use both (derogations + imperative requirements)

iii) Proportionality (Suitability + Necessity)

b) Mandatory (imperative) requirements (according to para. 37 of Gebhard)

i) Ground of justification

• Legitimate objective of public interest

• Gebhard, the legitimate objective was to ensure that certain activities are restricted to persons holding formal qualifications

  • However the Court held that there is a duty of mutual recognition of previous qualifications (para. 38)

ii) Indistinctly applicable (not directly discriminatory)

iii) Proportionality (Suitability + Necessity)

• Suitability: Is the measure suitable or appropriate to the objective?

• Necessity: Is the measure necessary to attain its purpose, or are there any alternatives that achieve the purpose equally well and are less restrictive of trade?

• For example in the case Centros, two legitimate objectives were raised

1) Reinforcement of financial soundness of companies

2) Protection of creditors

• However the Court was unconvinced by suitability and necessity, mentioning that there could have been alternatives

Article 101 TFEU Answer Structure

1. Applicability
a) Undertakings = economic activity (Höfner & Elser).
b) Agreement or concerted practice (Bayer; ICI – Dyestuffs).
c) Effect on trade (Consten & Grundig).

2. Restriction
a) By object – inherently harmful (Cartes Bancaires).
Examples: price-fixing, output limits, market sharing.
b) By effect – 3 steps:

1. Define market (United Brands).

2. Assess restriction (Remia).

3. Appreciable? (Völk/Vervaecke; Expedia).

3. Justification (Art 101(3))
i) Efficiency gains
ii) Fair share to consumers
iii) Indispensable restriction
iv) No elimination of competition

Article 30 TFEU – Customs Duties & Charges Having Equivalent Effect

1. Applicability
a) Customs duty = charge on goods crossing a frontier (Statistical Levy).
b) CEE = any pecuniary charge, even if not a customs duty (Commission v Italy – Statistical Levy).
c) Exceptions – payment for genuine service rendered (Commission v Belgium (Customs Warehouses)).

2. Effect
– Absolutely prohibited, no justification (except Art 110 internal taxes).

Article 110 TFEU – Internal Taxation

1. Applicability
a) Internal taxes, not border measures (Commission v UK – Beer/Wine).
b) Comparable products → Art 110(1) (Humblot).
c) Non-similar but competing → Art 110(2) (Outokumpu).

2. Test
– Discrimination or protectionism prohibited.

Article 34 TFEU – Quantitative Restrictions & MEQRs

1. Applicability
a) Goods = commercial value + capable of trade (Commission v Italy – Art Treasures).
b) State measure (Buy Irish).
c) Affects trade (Dassonville).

2. Material scope
a) Quantitative restriction = ban or quota (Geddo).
b) MEQR = any rule capable of hindering trade (Dassonville).
c) Selling arrangements → outside Art 34 if non-discriminatory in law & fact (Keck).
d) Market-access test → restriction if limits market entry (Italian Trailers).

3. Justifications
a) Art 36 TFEU grounds – public morality, health, etc. (Conegate).
b) Mandatory requirements – consumer protection, fairness (Cassis de Dijon).
c) Proportionality – suitable + necessary.

Article 34 TFEU – Free Movement of Goods

1. Is Article 34 TFEU applicable in this case?

a) Is the case about goods?

• Commission v Italy (Statistical Levy) – defines goods as products valued in money and capable of commercial transactions.

• Jägerskiöld – confirms tangible physical characteristics are required.

• Also includes waste, electricity, and corpses as goods (Cassis list from lecture).

b) Is there applicable harmonisation at EU level?

• If harmonisation exists → apply the directive/regulation.

• If not → directly apply Art. 34 (Cassis de Dijon).

c) Is there a cross-border element?

• Must concern trade between Member States.

• Wholly internal situations excluded (Saunders – internal situations not covered by EU law).

d) Can the claimant invoke Article 34 TFEU against the defendant?

• Article 34 has vertical direct effect (Commission v France (French Farmers) – the State can be liable for private actions when it fails to act).

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2. Material scope of Article 34 TFEU

a) Does the measure constitute a “quantitative restriction” or a “measure having equivalent effect”?

• Dassonville – MEQR = “All trading rules capable of hindering, directly or indirectly, actually or potentially, intra-Union trade.”

• Geddo – quantitative restriction = total or partial ban on imports.

Types of restrictions:
i. Product requirements – e.g. packaging, labelling (Cassis de Dijon – German liqueur rule restricted imports).
ii. Selling arrangements – Keck and Mithouard – not restrictive if:

• Applies equally in law and in fact to domestic and imported goods.
  iii. Market access – Italian Trailers – even non-discriminatory rules restricting product use can hinder market access.

Examples from notes:

• Familiapress – restriction based on press content = product requirement.

• Gourmet International – advertising restrictions can hinder market access.

• Conegate – moral justification cannot justify arbitrary discrimination.

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3. Justification

a) Can the Member State invoke Article 36 TFEU or a “mandatory requirement”?

• Article 36 grounds: public morality (Conegate), public security, health (Beer/Wine), national treasures, IP rights.

• Mandatory requirements (Cassis de Dijon): consumer protection, fairness of commercial transactions, public health, environmental protection.

  • Extended in later cases:

    • Familiapress – press pluralism.

    • Italian Trailers – road safety.

    • Gourmet International – public health (alcohol advertising).

b) For “mandatory requirement” only, is the measure indistinctly applicable?

• Cassis de Dijon – mandatory requirements justify only indistinctly applicable measures.

• Article 36 – can justify both distinctly and indistinctly applicable measures, but cannot be a disguised restriction.

c) Is the measure proportionate?

• Cassis de Dijon – measure must be suitable and necessary.

• Italian Trailers – proportionality must balance national interests and free movement.

• Outokumpu – tax and health measures must be consistent and not excessive.