LEU 2026-27

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

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

3. Justification

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

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

c) Is the measure proportionate?

Article 49 TFEU

1. Is art 49 TFEU applicable in this case?

a) Is the case about establishment?

b) Is there 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 there 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

c) 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.

Van Gend en Loos

To determine whether a provision of EU law has direct effect, 3 criteria must be met.

a. The provision must be clear.

No vague terminology, the object of the provision is clear without further clarification by either EU or national bodies.

b. The provision must be unconditional.

No further implementation under EU/national law

No discretion of the member state (ex. In accordance with the principles of the national law of the member states)

c. The provision must be able to procure a direct effect on the legal relationship between the state and individual.

Titanium Dioxide I

A choice of measure cannot be dependant solely on an institution's convictions but on objective factors amenable to judicial review and those factors include in particular the aim and content of the measure

Tobacco Advertising I

In order to render article 114 TFEU applicable, the measure:

Must be genuinely concerned with the improvement of conditions and the functioning of the internal market

Costa v ENEL

The relationship between national and Community law is governed by the principle of supremacy.

· National law may never prevail over community law.

Simmenthal

When Community law conflicts with national law

The conflicting provision of national law is automatically inapplicable if the provision of EU law has direct effect and is directly applicable

Van Duyn

Article 45 TFEU is directly applicable and thus has direct effect

Azienda

Provisions of a regulation while directly applicable and not requiring implementation by member states, may sometimes require such implementation. In such an event, individuals may not derive rights until implementation has occurred

Munoz

For the purpose of applying common quality standards across the union, compliance with provisions in the regulation must be capable of enforcement by means of civil proceedings between individuals.

Grad

Individuals affected by the decision may invoke the obligations imposed by a decision before national courts.

Must be ascertained whether the nature, background and wording of the provision in question are capable of producing direct effects in the legal relationships between the addressee of the act and third parties

Marshall

Where provisions of a directive appear to be unconditional and sufficiently precise they have direct effect only if:

- The MS has failed to implement in time.

- The MS has improperly implemented the directive.

A directive is only binding upon each member state to which it is addressed and therefore may not itself impose obligations on an individual and thus cannot be relied on against an individual

Kolpinghuis

Prohibition of inverse direct effect when: a directive cannot independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons in violation of the directive.

Member states can therefore not benefit from their own failure to implement a directive.

Faccini Dori

Limit to indirect Effect - indirect effect cannot be contra legem

State Liability where damage is caused by failure to transpose a directive

i. the purpose of the directive must be to grant rights to individuals.

ii. it must be possible to identify the content of those rights on the basis of the provisions of the directive.

iii. Finally, there must be a causal link between the breach of the State's obligation and the damage suffered.

Adeneler

Duty to consistent interpretation arises only after the implementation deadline

Dansk Industri

Direct (vertical and horizontal) Effect of General Principles and the Charter

While directives cannot be invoked against individuals, general principles can

How to remedy conflict between national law and EU law?

i. First check if the conflict can be remedied through indirect effect

ii. IF not, then direct effect of general principle and duty to disapply national law

Brasserie du Pecheur

State liability may be invoked for any damage caused to individuals as a result of breaches of EU law

In order for this to be the case: 3 conditions must be fulfilled

a. Sufficiently serious breach of EU law by Member State

b. Breached provision of EU law aims to grant rights to individuals.

c. Causal link between breach and damages

Cassis de Dijon

Principle of Mutual Recognition

A member state must allow a product lawfully produced and marketed in another member state into its own market, unless a prohibition of this product is justified by mandatory requirements, such as health and safety protection.

Statistical Levy

Mere presence of a restricting Effect

Customs duties are prohibited because any pecuniary charge, however small, imposed on goods by reason of the fact that they cross a frontier constitutes an obstacle to the movement of such goods.

Dassonville

MEQR (Measure equivalent to a quantitive restriction) defined:

Any trading rule capable of hindering, directly or indirectly, actually or potentially, intracommunity trade

Humblot

Indirect Discrimination by way of taxation

Tax upon cars which could not have been produced in the home member state which is unreasonably higher constituting a barrier of trade to cars imported from other member states

Outokumpu

Prohibition of direct discrimination

Green energy cannot be taxed more favourably than coal energy

Commission v UK (Beer and Wine)

Obstacles to free movement of competing goods

While not entirely similar, also not entirely dissimilar so a less favourable tax upon wine constitutes an obstacle to the free movement of goods in breach of article 110 TFEU

Krantz

Limitations to definition of MEE's in Dassonville

A measure which is too uncertain and indirect cannot be considered a measure having equivalent effect

Keck and Mithouard

Measures restricting or prohibiting certain selling arrangements are not MEE's within the meaning of Dassonville

So long as they apply to all traders and do not discriminate against foreign products (indistinctly applicable)

Familiapress

Distinction between selling arrangements and product requirements

Measures which bear on the actual content of the good cannot be considered selling arrangements in the meaning of Keck

Gourmet International

Discriminatory selling arrangements

Swedish ban on promoting alcoholic beverages in magazines not sold at point of sale of beverage, was a selling arrangement that constituted an MEE as it favoured domestic products.

Italian Trailers

Restrictions on use of products are equivalent to MEE's

Restrictions on the use of goods, do not constitute product requirements nor selling arrangements but constitute MEE's as prohibitions on the use of products in the territory of an MS will influence the behaviour of consumers

Conegate

Justification on the basis of Article 36 TFEU: Public morality

Lawrie - Blum

Definition of a worker

1. Settled in a member state

2. Working under direction of someone else

3. Receiving remuneration

Levin

What is work: An occupation which is effective and genuine and not merely marginal and ancillary

Antonissen

Rights to job seekers moving to another MS - As long as they have a reasonable chance to find employment and remain in the host state for a reasonable time

Saunders

Article 45(2) TFEU cannot be applied to situations which are wholly internal to a member state

Bosman

Transfer Sum Rule - non-discriminatory measures

transfer fee, although applied indistinctly impeded free movement of workers and breached Art 45 TFEU.

Could be justified by pressing public interest but only if not going beyond what is necessary to achieve the objective.

3+2 Rule - Indirectly discriminatory

Rule treated EU nationals differently based on nationality and did not allow for equal opportunities to all EU workers. Did not restrict directly a member state but indistinctly applied while indirectly benefitting nationals of host MS

Angonese

Regulation in a collective manner

Private bodies regulation in a collective manner rules which restrict the free movement of workers fall under the scope of article 45 TFEU

Adoui and Cornuaille

Under the justification of proportionality

No arbitrary discrimination against foreigners

Not allowed to expel foreigners for practices which would not lead to consequences for nationals

Gebhard

Establishment - Stable and continuous basis

Justifications

National rules that hinder exercise of fundamental freedoms must:

1-Be applied in non-discriminatory way

2-Be justified in general interest

3-Be suitable for attainment of their objective

4-Be proportionate to attaining objective

Alpine Investments (Services)

NO Keck exception in freedom of services

Prohibition on cold calling is a non discriminatory measure restricting free movement of services

Vlassopoulou (Establishment)

National measures even when applied indistinctly requiring qualifications may have the effect of limiting the exercise of freedom of establishment

Viking Line (Establishment)

Balancing the right to strike against freedom of establishment

- This right cannot be enacted as such to have an effect of limiting the exercise of freedom of establishment

Article 49 TFEU applies also to private bodies regulating in a collective manner

Daily Mail (Establishment)

Real seat theory vs Incorporation theory

The treaty recognises the differences between national legislation considering the two theories and this is not a matter to be dealt with but at the national level

Centros (Establishment)

Refusal to register a company which has its registrative office in another MS constitutes an obstacle to the exercise of the freedom of establishment.

The determining law is left to the home state and real seat theory is not that important

Visser Vastgoed (Establishment)

Chapter III of the directive is also applicable in wholly internal situations

Luisi and Carbone (Services)

Article 56 TFEU also includes the rights of recipients of services to travel to other member states without being obstructed

Säger (Services)

Non discriminatory rules which are liable to prohibit or impede activities of a service provider constitute a restriction to freedom of services

Morbistar (Services)

Exception to broad restrictions: National measures whose only effect is to create indistinctly applicable additional costs do not fall within scope of Article 56

Laval (Services)

Right to strike, while fundametnal is subject to limitations unless justified and thus falls in scope of restrictions under article 56

Why?

Actions by union are: Liable to make it less attractive, or more difficult to provide services in Sweden

Micheletti

Nationality is decided by MS of which nationality is claimed

Rottmann

Not contrary to EU law for a Member State to withdraw nationality obtained by deception, even if it results in losing EU citizenship, so long as the decision observes the principle of proportionality

Zhu and Chen

- Extended residence rights to a family member not covered by Directive 2004/38

- ECJ ruled that daughter (non-Union citizen) born in EU was a citizen of MS and therefore EU citizen - had right to reside indefinitely.

- Confirmed that Article 21 TFEU confers important rights on citizens of EU and can extend benefit to non-EU citizens

Coman

Existence of impedement to free movement

If impediment to free movement, MS must objectively justify this restriction based on an overriding reason in the public interest

Mutual Recognition

No requirement to recognize same sex marriage by Romania but must accept that it is lawful in another member state

Dano

Lawful residence is an absolute precondition to equal treatment

Grzelczyck

Member states should have a certain degree of financial solidarity with foreign national students but may require a certain level of integration before providing assistance

O and B

Derivative right based on article 21 TFEU

When an EU national has a family member who is not an EU national and when the EU national wishes to return to his home state, the family member has a derived right of residence.

Court applies directive by analogy in that if the union citizen in the host MS has formed a relationship which is sufficiently genuine, a derived right of residence exists

International Handelsgesellschaft

Fundamental rights form an integral part of general principles of EU law protected by the CJEU and which is derived from the constitutional traditions common to the Member States

Kukudeveci

Horizontal direct effect of directive provisions on the basis that they comply with general principles of EU law.

Conflicting national provisions must therefore be disapplied

Åkerberg Fransson

Charter always applies to EU institutions

Charter only applies upon Member States when they are applying EU law

Melloni

Requirement of Member states to have mutual trust in the judicial and police systems in other MS's

Execution of EAW's without requiring stronger protection in the other member state

Otherwise undermines principle of primacy of EU law

L.M. (and Aranyosi and Caldararu)

Systematic Deficiencies not sufficient to rebut principle of mutual trust

Two step test for "exceptional circumstances to rebut mutual trust"

1. Is there a real risk of inhumane treatment due to deficiencies in Art 3 ECHR/ Art 4 CFR?

2. Are there substantial grounds to suggest the individual will be exposed to such risk?

ERT

Any derogation from fundamental freedoms of the Union must be in conformity with fundamental rights

Hofner & Elser

Definition of an "undertaking" = entity engaged in an economic activity, regardless of legal status of the entity & the way in which it is financed.

Eurocontrol

The exercise of public authority cannot be considered to fall under the concept of undertaking and does not fall under the scope of EU law.

Bayer

Agreement - Any concurrence of wills between at least two parties irrelevant of the form and only of the common intention of the parties

Consten and Grundig

a. Vertical agreements

Competition rules apply not only to horizontal agreements but also to vertical agreements.

b. Exclusive distribution

Absolute territorial protection shall be in violation of article 101 TFEU and automatically void

Anic

Concerted Practice - Coordination without agreement

3 elements

1. Undertakings "concerting together"

2. Subsequent parallel conduct on the market

3. Causal link between 1 and 2

Imperial Chemical Industries

Parallel Behaviour itself does not constitute concerted practice, but it does represent strong evidence thereof.

Societe Technique Minieres

Actions must have an effect on trade

Restriction by Effect

If an agreement does mot restrict competition that would otherwise have existed anyway, does not fall under scope of article 101

An agreement does not restrict competition if it is necessary for the penetration of a new market

Cartes Bancaires

Distinction between restriction to competition by effect or by object

By Effect: Necessary to prove that some types of collusive behaviour do have negative effects

By Object: Inherently negative effects on competition, no chance for justification

Remia and Nutricia

Non-compete clause de jure restricts competition.

De facto, is necessary for the agreement of transfer of undertaking to be given effect

Ancillary Restraints Doctrine: : Agreement is collateral in the sense that it serves to make the main transaction more effective

Commission v Luxembourg and Belgium

Article 258 TFEU: Breach of EU law by one institution/member state cannot justify a breach by the other

Commission v Belgium

Article 260: Internal political issues are not relevant in a failure to correct breach/conflict of EU law

Dorsch Consult

Relevant factors for admissibility of court referring under Article 265 TFEU:

- established by law

- permanent nature

- compulsory jurisdiction

- independence

Da Costa

Already answered questions are admissible but CJEU will refer to judgement

CILFIT

Limitations to obligation to refer of last instance court

- Act eclair doctrine: CJEU has already ruled on materially similar question

- Acte clair doctrine: Answer to question is so clear that court can decide itself

Manfredi

National Procedural Laws subject to limitations

Principle of Equivalence

Principle of Effectiveness

Factortame

National rule preventing interim relief impairs full effectiveness of EU law and breaches principle of effectiveness

Portuguese Judges

Limits to national Procedural Autonomy may be assessed by CJEU falling within competence of art 19 by way of its inclusion in art 47 CFR

Brasserie du Pecheur (again)

For state liability:

1. the breach must be sufficiently serious

2. there must be a direct causal link between breach and damage

3. the law must confer rights.

Dillenkofer

Failure to take any measures to implement a Directive is sufficiently serious.

British Telecommunications

Incorrect implementation of a Directive but not "sufficiently serious" → excusable misinterpretati (Directive not precise, good faith, same mistake in other Member States, not contrary to the wording of the Directive, no guidance from Commission)

Köbler

State liability may apply to any institution within member states regardless of judiciary, executive, or legislature

Plaumann

Legal standing conditions for non-privelaged person under art 263(4) regarding direct and individual concern)

Individual Concern: The act affects the person by reason of certain peculiar attributes or by reason of circumstances in which the person is differentiated from all other persons

Inuit Tapiriit Kanatami

Regulatory act = act which is not a legislative act (e.g. delegated or implanting act)