EU LAW II

Case Law

Lina Zheng

Week 1: Free Movement of Persons: Entry & Residence Case C-135/08 Rottmann: The Court of Justice ruled that there was no breach of Union law (Art.20 TFEU) arising when MS authorities withdrew nationality from an individual who had obtained that nationality by deception, so long as the principle of proportionality was respected. That is so, even if as a consequence of that withdrawal the person concerned loses his citizenship of the Union because he no longer possesses the nationality of a Member State. The withdrawal decision must observe the principle of proportionality (proportionate in relation to the gravity of the offence committed). Case C-34/09 Ruiz Zambrano: Mr. Zambrano challenged these decisions arguing that he enjoys a right to residence and access to employment directly by virtue of the EC Treaty or, at the very least, that he enjoys the derived right of residence, recognised in by the ECJ in Chen for the ascendants of a minor child who is a national of a Member State and that, therefore, he is exempt from the obligation to hold a work permit. The Court held that Article 20 TFEU precludes a Member State from denying residence to the third country national parent of an EU citizen child, notwithstanding that that EU citizen had yet to exercise his right of free movement within the Union, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen Case C-208/09 Sayn-Wittgenstein: The case concerned an Austrian citizen who was adopted by a German national whose surname had ties to nobility. Under Austrian law a title of nobility, as part of a surname, is prohibited, and therefore, when the applicants new name was registered in Austria it was subsequently corrected to remove the part indicating nobility. The Court stated that the law in question did restrict the right to free movement under Art. 21 TFEU. However, the restriction was permissible as it was proportionate. Case C-345/09 Tsakouridis: When making an expulsion order, the national authorities should look to all relevant factors, in particular, the length and frequency of individual absences from the host MS and the reasons for the absences. In order for the expulsion to be proportionate, for the individual who has spent most of his life in the host sate, the reason for expulsion must be very good. Art.28(3) of Directive 2004/38 EC, states that a threat to public security that is of a particularly high degree of seriousness, is sufficient for expulsion. Case C-348/09 P.I. v. Oberbrgermeisterin der Stadt Remscheid: The case has proven that it is possible to deprive EU citizens from the right to reside in the host Member State even if they have already lived there for more than a decade.

Case C-434/09 McCarthy: Mrs McCarthy, a dual Irish/UK national who had lived her entire life in the UK and neither worked nor was self-sufficient, could not rely on the family reunification provisions found in Directive 2004/38 which sets out the free movement rights of EU citizens. Neither could she rely on her EU citizenship. The enhanced family reunification rights attach only to those who exercise free movement rights and Mrs McCarthy did not qualify. There is no indication that Mrs McCarthy has ever exercised her right of free movement within the territory of the Member States Likewise, Mrs McCarthy is applying for a right of residence under European Union law even though she does not argue that she is or has been a worker, selfemployed person or self-sufficient person. Art.3(1) of directive 2004/38 is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a MS of which he is a national and who is also a national of another MS (Cross-border element). The judgment of this case explicitly states that having a dual nationality does not mean that the right of freedom of movement has been used. Additionally, the case concludes that Art.21 TFEU cannot be applied to the Union citizen described above. The case has shown that the so-called cross border element, the actual movement from one Member State to another, is required in order to enjoy the rights provided in the Directive and Art. 21 TFEU (the right of every EU citizen to move and reside freely within the territory of the MS). Moreover, McCarthy may conclude that it is an internal situation which falls under national law and should be dealt with within the MS. ECJ Mettock: All TCNs can join their EU beneficiaries from outside the EU without first having complied with the migration rules of an EU state before.

Case C-364/10 Hungary v. Slowak Republic: The "specific character" of the EU citizen acting as the Head of State was "capable of distinguishing the person who enjoys that status from all other Union citizens, with the result that that persons access to the territory of another Member State is not governed by the same conditions as those applicable to other citizens" (para 50). Therefore, Mr Slyom could rely neither on Article 21 TFEU nor on Directive 2004/38 to gain entry to Slovakia. In other words, the Slovak republic was not obliged to guarantee access to its territory to the President of Hungary and not in breach of EU law by refusing President of Hungary entry into its territory.

Case C-430/10 Gaydorov: Prohibition on leaving national territory because of a crime relating to drug trafficking committed in a third State. Art. 21 TFEU and Art. 27 of Directive 2004/38/EC do not preclude national legislation that permits the restriction of the right of a national of a Member State to travel to another Member State in particular on the ground that he has been convicted of a criminal offence of narcotic drug trafficking in another State, provided that:

 the personal conduct of that national constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the restrictive measure envisaged is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it and that measure is subject to effective judicial review permitting a determination of its legality as regards matters of fact and law in the light of the requirements of European Union law.

Case C-434/10 Aladzhov: EU law does not prohibit a legislative provision of a MS which allows an administrative authority to prohibit a national of that State from leaving it on the ground that a tax liability of a company of which he is one of the managers has not been settled, subject, however, to the twofold condition that the measure at issue is intended to respond, in certain exceptional circumstances which might arise from the nature or amount of the debt, to a genuine present and sufficiently serious threat affecting on of the fundamental interests of society and that the objective thus pursued does not solely serve economic ends. The national Court determined whether the twofold condition is fulfilled (Art.27(1) Directive 2004/38) Even if a measure imposing a prohibition on leaving the territory such as that applying to Mr Aladzhov in the main proceedings has been adopted under the conditions laid down in Art. 71 (1) of Directive 2004/38, the conditions laid down in Art. 27(1) of that Directive preclude such a measure: if it founded solely on the existence of the tax liability of the company of which he is one of the joint managers, and on the basis of that status alone, without any specific assessment of the personal conduct of the person concerned and with no reference to any threat of any kind which he represents to public policy, and if the prohibition on leaving the territory is not appropriate to ensure the achievement of the objective it pursues and goes beyond what is necessary to attain it. The referring national court eventually takes a position towards the fulfillment of the conditions.

Case C-40/11 Iida v. Stadt Ulm: (Art 20 TFEU and 21 TFEU & Art.51 Directive 2003/109/EC Third-country nationals right of residence in a Member State) Does European Union law give a parent who has parental responsibility and is a thirdcountry national, for the purpose of maintaining regular personal relations and direct parental contact, a right to remain in the Member State of origin of his child who is a Union citizen, to be documented by a residence card of a family member of a Union citizen, if the child moves from there to another Member State in exercise of the right of freedom of movement? Thee Court rules that Mr Iida cannot be granted a right of residence on the basis of Directive 2004/38 because he cannot be classified as a beneficiary within the meaning of Article 3(1) of the Directive 2004/38, because he does not satisfy the condition of having accompanied or joined his spouse in a Member State other than that of which she is a national.

Finally, Mr Iida has a right of residence under national law on the basis of his employment and can in principle be granted the status of longterm resident. Mr Iida may be granted the status of long-term resident within the meaning of Directive 2003/109 on third-country nationals, since he has resided legally in Germany for more than five years and appears to have sufficient resources to support himself and to have sickness insurance (par. 45). In order to acquire this status, Mr Iida must lodge an application with the competent German authorities. Case C-83/11 Rahman: Directive 2004/38 does not oblige Member States to grant every application for entry or residence submitted by persons who show that they are family member who are dependants of a Union citizen, within the meaning of Article 3(2)(a) of that directive. The Court points out to the distinction drawn in the citizenship directive between a Union citizens family members defined in Article 2(2) who enjoy a right of entry and residence in the host Member State, and the other family members defined in Article 3(2), whose entry and residence has only to be facilitated by that Member State. Member States need to make it easier for family members defined under Article 3(2) in comparison to other third country nationals who want to enter and reside in the host Member State. The Court also ruled that the situation of dependence had to exist, in the country from which the family member concerned came, at the time when he applied to join the Union citizen on whom he was dependent. Case C-249/11 Byankov: Deals with Bulgarian law restricting free movement of own nationals to other MS of the EU. By means of Article 32(1) of Directive 2004/38, the European Union legislature has placed an obligation on the Member States to ensure that it is possible for measures which prohibit a person from entering or leaving their territories to be reviewed, even where those measures have been validly adopted under European Union law and even where they have become final. There is all the more reason why that should be the case in relation to prohibitions on leaving the territory, such as that at issue before the referring court, which breaches the freedom laid down in Article 21(1) TFEU. The Court concluded that EU law must be interpreted as precluding the application of a national provision which provides for the imposition of a restriction on the freedom of movement, within the European Union, of a national of a Member State, solely on the ground that he owes a legal person governed by private law a debt which exceeds a statutory threshold and is unsecured.

Case C-256/11 Dereci and others : The immediate significance of Dereci lies in its re-assertion of the genuine enjoyment test established in Ruiz Zambrano, and specifically the limitations that the Court places upon the scope of that test. The Court emphasises in para. 66 that for the test to be satisfied, the Union citizen must be in a situation where he has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole. This statement seems to suggest that a European Union citizen who has the option to reside with

his family member within a second Member State will not satisfy the condition of deprivation of genuine enjoyment. Whereas the decision in McCarthy may have suggested that the spousal relationship by its nature will fail where the dependency relationship of a parent and child (Ruiz Zambrano) will succeed, such distinction gains little substantiation in the joint cases of Dereci and others. ECJ Ibrahim (Case 310/08): Danish national Mr Ibrahim spent around six months working in the UK and this was sufficient to give his child, born after his arrival and not yet in education when he ceased to be a worker, the right to remain in the UK until completion of his education and the childs third country national mother, now separated from Mr Ibrahim, the right to remain as his primary carer without fulfilling any conditions as to self-sufficiency. Relying on Regulation 1612/68.

ECJ Bonsignore : The personal conduct needs to be a genuine, present and sufficiently serious threat that has a major impact on society affecting the fundamental interests before any action or measure should be taken.

Week 2: Free Movement of Persons: Equal Treatment Case C-73/08 Bressol: The Court rejects the justification of the excessive burden on public finances and the quality of education to be at risk caused by the influx of foreign students. Moreover, the Court states that the residence requirement constituted indirect discrimination on the grounds of nationality (Art.18 TFEU). Consequently, the students in question in the main proceedings may rely on the right, enshrined in Articles 18 and 21 TFEU, to move and reside freely within the territory of a Member State without being subject to direct or indirect discrimination on ground of their nationality. However, such a restriction could be justified if the basis for the residence requirement was to secure a high level of health protection. The national court must assess whether the national measure went beyond what was necessary to meet the objective and whether it could be met by less restrictive means. ECJ Lair: The case further elaborates and determined that registration and tuition fees should be equal to national students and EU students since these influence the access to any form of education. ECJ Gravier: Requires Member States to treat EU students the same as they treat national students concerning the access to vocational training or any form of education, including university education. ECJ Commission v Austria (Case C-147/03): The prohibition of discrimination (Art.18 TFEU) also covers situations concerning the

conditions of access to vocational training, and that both higher education and university education constitute vocational training (ECJ Gravier). Although applicable without distinction to all students, a provision of national law providing that students who have obtained their secondary education diploma in a MS other than the MS concerned and who wish to pursue their higher or university studies in a given area of education in that State must not only produce that diploma, but also prove that they fulfill the conditions of access to higher or university studies in the State where they obtained their diploma, is liable to have a greater effect on nationals of other MS than on nationals of the MS concerned, and therefore the difference in treatment introduced by that provision results in indirect discrimination contrary to the principle of non-discrimination on the ground of nationality contained in Art.18 TFEU. It is for the national authorities which invoke a derogation from the fundamental principle of freedom of movement for persons to show in each individual case that their rules are necessary and proportionate to attain the aim pursued. Case C-74/11 Commission v. Austria (travel benefits): Both national and EU students should have the right to lowered transport costs and that by granting this to only national students Art. 18 TFEU and Art. 24(1) of the Directive are being infringed. Moreover, the case concludes in paragraph 70 that transport cost reductions are not part of the concept of student grant. ECJ Morgan and Bucher: The case states that it lies within the Member States competence to determine the content of teaching and organization of their respective education system (Art. 165(1) TFEU) and vocational training (Art.166(1) TFEU) but must comply with EU law, the freedom to move and reside within the territory of the Member State (Art.21(1) TFEU). Moreover, paragraph 47 of the same case 1 points out that there are no coordinating provisions between the Member States so far as concerns education or training grants. Consequently, it is up to the Member States to define the concept of a student grant. ECJ Frster: Has shown that if you have a job and employment contract as a student you are rendered the status of a worker and granted the equal treatment as nationals of the host Member State (in this case the Netherlands) concerning maintenance aid including student grants (Art.24(2) of Directive 2004/38/EC2). By having a job you minimize the possibility to become a burden on the Dutch social security system and this is in compliance with Art.7 of the Directive3. It ruled that Art.18 TFEU did not preclude the five years prior residence as a necessary degree of integration for students from other MS. Thus a student from another MS can rely on Art.18 TFEU to obtain a maintenance grant provided that she has resided in the host MS for at least five years.

1 2

Ibid.; Directive 2004/34/EC, [2004] O.J. 158/112; 3 Ibid. O.J. 158/93;

ECJ Groener: The ECJ states that language requirements have to be proportionate and in accordance with public interest. (Art.22 of the Directive gives Member States permission to impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals)

Week 3: Free Movement of Persons: (Lawyers) Establishment & Services Case C-345/08 Pesla: Concerning freedom of movement for persons/workers Art.45 TFEU access to a legal traineeship for the regulated legal professions. The ECJ has ruled that although Community law requires that the qualifications and the experience of a candidate who obtained his or her diploma in law in another MS be fully taken into account, it does not require that the level of knowledge of national law required be lowered for such a candidate. Access to a legal traineeship in a MS may therefore be made conditional on a broad and in-depth knowledge of national law. The MS are not however deprived from the possibility of relaxing the relevant qualification requirements. Case C-118/09 Koller: The ECJ ruled that Kollers qualifications as a whole fall within the scope of Directive 89/48/EEC (now Directive 2005/36/EC) on the mutual recognition of diplomas and that due to the fact that he had in fact acquired an additional qualification over and above that obtained in Austria, no abuse or circumvention of Austrian rules had taken place. The ECJ also ruled that any practical experience required in Austria to become a lawyer is irrelevant for the definition of the term diploma as used in the Directive and that Koller must therefore be admitted to the foreign lawyers aptitude test in Austria. Art.4 of Directive 2005/36/EC must be interpreted as precluding he competent authorities of the host MS from denying to a person in such a situation to take the aptitude test for the profession of lawyer without proof of completion of the period of practical experience required by the legislation of that MS. Case C-225/09 Jakubowska: Article 8 of Directive 98/5/EC must be interpreted as meaning that it is open to a host Member State to impose on lawyers registered with a Bar in that Member State who are also, whether full or part-time, in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise, restrictions on the exercise of the profession of lawyer concurrent with that employment, provided that those restrictions do not go beyond what is necessary in order to attain the objective of preventing conflicts of interest and apply to all the lawyers registered in that Member State. In other words, the law requiring part-time officials to be deregistered from the bar list was in accordance with the law.

Case C-137/09 Josemans: Questions whether nat. rules restricting access to Dutch coffee-shops to residents fell within the scope of the Treaty. Cannot rely on the principles of free movement and nondiscrimination (Art. 18, 21 TFEU) regarding the marketing of cannabis. Instead can rely on Art.56 TFEU and the freedom to provide services in relation to the food and non-alcoholic beverages that are also sold indirect discrimination, as non-residents were more likely to be foreigners. However, the Court ruled that the measure was justifiable in light of the legitimate aim of combating drug tourism. Moreover, the rule is suitable and proportionate, as they do not prevent non-residents from entering establishments that do not sell cannabis and particularly in light of the fact that other measures to prevent drugs tourism had proven ineffective. Case C-359/09 Ebert: Mr. Ebert, who had also taken a Doctorate of Law in Hungary, and set up his own firm there, applied to the court to grant him the right to use the Hungarian title gyvd(lawyer) without becoming a member of the bar. The Court decided that Directive 2005/36/EC and Directive 98/5 EC did not preclude bar membership being a requirement in such cases, meaning that Mr. Ebert could not just accord himself, or be accorded, the professional title without being a member of the bar.

Case C-101/10 Pavlov & Famira: Prohibition of any discrimination based on nationality as regards working conditions under (Art.38(1) EC-Bulgaria Association Agreement), this provision has direct effect and Bulgarian nationals should not be precluded. Before the accession of Bulgaria to the European Union, Bulgarian nationals were unable to obtain inclusion on the list of trainee lawyers and, consequently, to obtain a certificate of entitlement to appear in court because of a nationality condition laid down by that legislation. ECJ Thieffry: indicates that EU citizens can depend on Art.49 TFEU (freedom of establishment) when seeking to practice a profession in another state and that their professional qualifications and working experience should be taken into account.

ECJ Vlassopoulou: States that a MS restricts the free movement of persons if it does not take into account the knowledge and experience gained in another MS. Equivalence of professional qualifications from another MS should be assessed in considering access in the host MS Bar.

ECJ Hocsman: The comparable diplomas and previous relevant working experiences of the EU worker outside the host MS should be taken into account when deciding on access to unregulated employment in the public sector. The ECJ explicitly ruled that MS have to take into account comparable diplomas and previous relevant working experiences of the EU worker outside

the host MS where the mutual recognition of diplomas (Art.51 of Dir. 2005/36/EC) cannot be applied, e.g. when deciding on access to unregulated employment in the public sector.

ECJ Morgenbesser: Ms. Morgenbesser had a French law degree and tried to register as a trainee (practicanti) in Italy. However, trainees do not fall within the Services, Diplomas and Establishment Directives since it only applies to fully qualified professionals (produits fini). Additionally, the Diplomas directive (Dir. 2005/36/EC) cannot be applied because it is not a regulated profession. ECJ referred to Vlassopoulou which ruled that it is contrary to free movement if the host MS does not take into account knowledge and experience gained in another MS. The ECJ decided that a person in process of qualifying in one MS can move to another MS and continue the process of qualification. This case extends Vlassopoulou to people not yet qualified (non-produits fini) to exercise a profession in a MS (neither home MS as host MS). ECJ Reyners: Stresses the direct effect of Art.49 TFEU: the freedom of establishment of nationals of a MS in the territory of another MS may not be restricted. Discriminatory national measures are not permitted. Public service exception is not applicable to lawyers, thus Art.49 is applicable.

ECJ Van Binsbergen: Stresses the direct effect of Art.56 TFEU: the freedom to provide service within the Union shall be prohibited in respect of nationals of MS who are established in a MS other than that of the person for whom the services are intended. Discriminatory national measures are not permitted. Public service exception is not applicable to lawyers, thus Art.56 is applicable.

ECJ Klopp [Case 107/83]: Establishment in more than one MS is permitted. National rules against establishment of more than one office within a MS is also permitted.

ECJ Gebhard: Provides the objective justification for any restriction on the fundamental freedoms (freedom of movement of goods Art. 34 TFEU; freedom of movement of persons Art. 45 TFEU; the right of establishment Art. 49 TFEU; and freedom to provide services Art. 56 TFEU). National rules which are liable to hinder or to make less attractive the exercise of the 4 fundamental freedoms must fulfil 4 criteria in order to be objectively justified: applied in a non-discriminatory manner justified by imperative requirements in the general interest suitable for securing the attainment of the objective must not go beyond what is necessary

ECJ Commission v Italy [Case C-145/99]: The aptitude test may not be more demanding than qualification for national lawyers (Art.14 dir. 2005/36/EC).

Week 4: Capital & Free Movement of Goods: Financial Restrictions Case 77/72 Capolongo v. Azienda Agricole Maya: Charges which fully offset the burden for domestic products are discriminatory, this is a breach of Art.30 TFEU (prohibition of customs duties on imports and exports and CEEs shall be prohibited between MS). Case C-234/99 Niels Nygrd v. Svineafgiftsfonden: Charges which partially offset the burden for domestic products are discriminatory since they give domestic producers an advantage since it lowers their production costs and this results in a disadvantage for foreign producers, this is a breach of Art.110 TFEU (MS shall not impose any form of internal taxation of any kind in excess of that imposed on similar domestic products). ECJ Commission v Italy (Art Treasures): Definition of a good as: products which can be valued in money, and which are capable, as such, of forming the subject of commercial transactions. ECJ Commission v Italy (Statistical Levy): Any pecuniary charge which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier and which is not a customs duty in the strict sense constitutes a charge having equivalent effect (CEE). ECJ Sociaal Fonds voor de Diamantarbeiders: The purpose of the pecuniary charge is irrelevant and the charge is still regarded as a CEE, what is relevant is that it is charged only because the goods cross the frontier. Art.36 TFEU is not applicable to Art.30 TFEU situations since it only precludes prohibitions on certain grounds concerning quantitative restrictions (Art.34-35 TFEU). ECJ Van Gend & Loos: Vertical direct effect of Art.30 TFEU (Customs duties on imports and exports and CEEs shall be prohibited between MS). Individual can rely on this Art. in front of a national court against the MS. ECJ Dubois: Horizontal direct effect of Art.30 TFEU (Customs duties on imports and exports and CEEs shall be prohibited between MS). Individuals and undertakings can rely on this Art. against another individual or undertaking.

ECJ San Giorgio (Case C-199/82): Importer can ask for reimbursement of the levied charges if it does not make its good more expensive for the customer. On the other hand, it is the customer who pays the customer may claim it back from the importer or state. In theory this works but in practice this is difficult to establish. ECJ Co-Frutta: Art. 110 TFEU guarantees that MS are allowed to impose neutral indirect taxes. A charge is an internal taxif it relates to a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products. The taxes must be neutral, applied to both domestic and imported products. ECJ Humblot: The MS are free to subject products to a system of tax such a system of domestic taxation is only compatible with Art. 110 TFEU only in so far as it is free from any discriminatory or protective effect. ECJ Carbonati (Case C-72/03): A tax on marble exported from an Italian town (within the Italian territory) was held to be an infringement of the Union provisions on free movement of goods, contrary to Art.30 TFEU. ECJ Bouhelier, EMI, Polydor: Raise the question if the free movement of goods should also be extended to third countries. Conclusion: You dont have to extend it outside the customs union (no external effect). ECJ Commission v Belgium (C-478/98): Measures taken by a Member State which are liable to hinder its residents from ... making investments in other Member States constitute restrictions on movements of capital within the meaning of Art.63(1) TFEU.

Week 5: Free Movement of Goods: Quantitative Restrictions ECJ Geddo: Definition quantitative restriction: Measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit.

ECJ Henn & Darby: A ban is the most extreme form of a Quantitative Restriction.

ECJ Dassonville:

Definition of a MEE: all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, Intra-Community trade. Elements: Must be enacted by the State (ECJ Fra.bo: MS has an extended meaning and stretches the principle of the MS. But excludes private measures enforced by companies) Actually or Potentially affect Intra-Union trade (ECJ Bluhme: even if the impact is very small, if it has a potential to effect intra-community trade is already enough. ECJ Commission v France (foie gras): wholly internal situation, but there is always the potential that a MS would start producing foie gras.) Directly or Indirectly affect Intra-Union trade (ECJ Dassonville and article 2+3 of Directive 70/50) ECJ Cassis de Dijon: Principle of mutual recognition: no valid reason why, provided that products have been lawfully produced in one of the Member States are not allowed to be introduced in another Member State . Why do extra criteria/restrictions have to be imposed? The rule of reason: disparities must be accepted if it is in public interest, if it forms a mandatory requirement: e.g. protection of fiscal supervision, protection of public health, the fairness of commercial transactions and the defense of the consumer. May be used to justify an indistinctly applicable MEE falling within Art.34 or 35 TFEU. ECJ De Peijper: In order to justify a MEE, it has to fulfill the proportionality requirement, it is has to be suitable to attain the goal you seek to achieve and it may not go beyond what is necessary.

ECJ Karner: Definition selling agreements: Rules on who; where; when; how, fe: place and time of sale; advertising; certain marketing methods. ECJ Keck: Para. 16 of the case implied an exception that certain selling agreements would not be covered by Art.34 TFEU, in other words would not be MEEs, if these selling rules would have the same effect, in law and in fact, for domestically produced products and imported products, in other words, if the selling rules were non-discriminatory.

ECJ De Agostini: If the selling agreement not non-discriminatory in character, applied to imported (or exported) goods only or different in effect, then it would constitute a MEE, falling within the scope of Art.34 TFEU. ECJ Bouhelier: Used for quantitative restrictions for on exports and MEE (ECJ Dassonville).

Can be justified by Art.36 TFEU or rule of the reason by Cassis de Dijon. Keck and De Agostine not applicable in case of exports.

Case C-205/07 Lodewijk Gysbrechts: The Court dealt with Belgian legislation prohibiting the seller from requesting any advance payment or payment during the 7 days withdrawal period during which a consumer can withdraw from a distance contract. Although the prohibition on receiving advance payments is applicable to all traders active in the national territory, the Court considers that its actual effect is nonetheless greater on goods leaving the market of the exporting MS than on the marketing of goods in the domestic market of the MS. The general approach followed by the Court seems to be that Art.35 TFEU catches trade barriers that have an actual and specific effect on exports and that create a difference in treatment between trade within a MS and exports. Case C-110/05 Commission v. Italy (trailers): The prohibition regulating the use of bikes and trailers was a restriction on the free movement of goods contrary to Art.34 TFEU. ECJ ruled that regulations on the use of products constituted MEEs and were within the scope of the Article. The breach of the article was found because consumers unable to lawfully use a motorcycle with a trailer would be unlikely to purchase one, thereby hindering trade within the internal market. The restriction on trade was however justified on grounds of road safety. Case C-142/05 Mickelsson and Roos: Rules restricting the use of jetskis to certain waterways, these were unappealing for jet-ski users. As a consequence consumers logically had limited interest in buying jet-skis in Sweden. This product rule formed a MEE under Art.34 TFEU but is justified on the ground of the protection of health and life of humans, animals and plants (Art.36 TFEU) and to protect the environment (mandatory requirement: Cassis de Dijon) Rules on the use of a product are regarded as MEEs. Case C-433/05 Sandstrm: Art.28 and 30 TFEU do not preclude national regulations which, for reasons relating to the protection of the environment, prohibit the use of personal watercraft on waters other than designated waterways provided that it does not infringe the provisions of the Treaty (Mickelsson & Roos). Art.8(1) of Directive 98/34 is to be interpreted as meaning that an amendment made to a draft technical regulation already notified to the European Commission and which contains in relation to the notified draft, merely a relaxation of the conditions of use of the product in question and which, therefore, reduces the possible impact of the technical regulation on trade, is not a significant alteration need to be notified beforehand to the Commission. In the absence of such an obligation of prior notification, the failure to inform the Commission of a non-significant amendment to a technical regulation, prior to its adoption, does not affect the applicability of that regulation.

Case C-265/06 Commission v Portugal (tinted windows): In a case concerning a Portuguese ban on the affixing of tinted window film on cars, the Court found that the fight against crime may constitute an overriding reason in the public interest (mandatory requirement Cassis de Dijon) capable of justifying a hindrance to the free movement of goods (Art.34 TFEU).

Case C-531/07 Fachverband der Buch- und Medienwirtschaft: Austria law provided in effect that an importer of books could not fix a price below the retail price fixed or recommended by the publisher for the state of publication. It restricts the ability of Austrian importers to compete, as the latter cannot act freely on their market unlike the Austrian publishers who are their direct competitors. The measure can be regarded as a MEE to an import restriction contrary to Art.34 TFEU, in so far as it creates, for imported books, a distinct regulation which has the effect of treating products from other MS less favorable (indistinctly applicable to imported books only). Case C-108/09 Ker-Optika: Hungarian law required contact lenses to be sold in certain specialized shops or by home delivery for final consumption only. The Court noted that the limitation on online operating companies deprives traders from other MS of a particularly effective means of selling those products and thus significantly impedes market access (Art.34 TFEU) and therefore does not fulfill the Keck criteria. However, the Court ruled that the measure could be justified under the ground of public health defense, and accepted that the restriction was associated with an acceptable need, as recognized in Hungary,, of qualified staff for eye examinations, advice on wearing of contact lenses and advice of relevant types.

Case C-142/09 Lahousse: In question is the Belgian regulation prohibiting the manufacture, import, marketing and distribution free of charge, as well as instalment of equipment designed to increase the engine power and/or speed of motorbikes. Infringement of Art. 34 TFEU does not raise any difficulty here, since it is known that general prohibitions of sale or use are systematically considered as constituting measures with an equivalent effect. The justification can be envisaged, however, under the mandatory requirement for protection of road safety. Case C-161/09 Kakavetsos-Frangopoulos: Protection of a products, which is defined geographically by the national law of a MS and which has not been granted the possibility of bearing a particular distinguishing name which would mark its generally acknowledged superior quality and uniqueness due to its origination in a certain geographical area, does not constitute a justification for the purpose of Art.36 TFEU on grounds of the protection of industrial and commercial property or a mandatory requirement of public interest capable of justifying a measure normally prohibited under Art.35 TFEU (quantitative restrictions on exports).

Week 6: Competition Law: Agreements: Market Participants ECJ Hfner: Art.101,102 TFEU applicable to undertakings.

Definition of undertakings: encompasses every entity engaged in an economic activity regardless of the legal status of the entity and the way it is financed. Widely interpreted: ECJ Wouters: Individual lawyers are undertakings (accountants are not because they have an objective task). ECJ Meca-Medina: Individual professional sporters are undertakings ECJ Poucet: if one performs purely social objectives (thus not economic), not regarded as undertaking.

ECJ Quinine Cartel: No formal rules for agreement to actually be an agreement, only meeting of the minds (e.g. Gentlemens agreements). No obligation for written agreements. ECJ Dyestuffs: Definition of a concerted practice: Contact but no Contract :a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition. The Court indicated that parallel behavior provides strong evidence that companies are involved in a concerted practice if competition is not in line with normal conditions of the market. However, parallel behavior of oligopolistic producers resulting from rational reactions to each others behavior is legal.

ECJ Woodpulp: Territorial scope of Art.101 TFEU: the entire EU but also TCN companies where policies are implemented in the EU. Thus, also firms which are not located in the EU and colluded their agreement or concerted practice outside the EU but these are implemented within the EU are covered by Art.101(1) TFEU. Moreover, the Court ruled that parallel behavior in pricing may be satisfactorily explained by the oligopolistic tendencies of the market. Case C-453/99 Courage: Art.101 allows a party to an illegal contract to get damages recovered from the other party. The party seeking damages, however, must not have significant responsibility for the breach of Art.101 (it should be the weaker party). Case C-309/99 Wouters: The Court considered a restriction imposed by the Dutch Bar Association preventing lawyers from entering partnerships with accountants. Professional conduct for members of the Bar required them to act for clients in complete independence, to avoid all risk of conflict of interest and to observe strict professional secrecy. Accountants were not covered by similar professional rules, in particular the requirement for professional secrecy. The rule did not infringe Art.101(1) TFEU despite the effects restrictive of competition that are inherent in it as it was necessary for the proper practice of the legal profession, as organized in the MS concerned. Case C-8/08 T-Mobile: The presumption must be that the undertakings taking part in the concerted practice and

remaining active on the market take account of the information exchanged with their competitors for purposed of determining their conduct on that market. Therefore, once the Commission has established concertation the burden shifts to the economic operators to prove that there had been no resulting conduct on the market. This presumption applies even if the concerted action is the result of a meeting held by the participating undertakings on a single occasion. The Court stated that a concerted practice pursues an anti-competitive object for the purposes of Art.101(1) TFEU where it is capable in an individual case of resulting in the prevention, restriction or distortion of competition within the common market. An agreement may be regarded as having a restrictive object even if it does not have the restriction of competition as its sole aim but also pursues other legitimate objectives.

ECJ Consten and Grundig: When the object(aim) of the agreement is to prevent, restrict or distort competition, then this is illegal per se under Art.101(1) TFEU and therefore no need to judge the effect of the agreement.

De minimis doctrine:
The agreement has to have an appreciable effect: it must be large enough to be noticed on a

Union level. Commission calls it the de minimis doctrine 2001: Commission does not pay attention to small agreements which will not be noticed on EU level.

Joined Cases Koehler: The claims were mainly based on the findings of the European Commission, who had fined several papermakers for a price fixing cartel in the carbonless paper industry in the years 1992 until 1995 (Commission Decision 2004/337/EC of 20 December 2001). Defendant Papierfabrik August Koehler AG had been fined with an amount of EUR 33.07 million and was unsuccessful in the appeal before the European Court of Justice. Moreover, the Commission points out that it has a broad discretion in relation to the method of calculating fines.

ECJ United Brands: Definition of a dominant position (Art.102 TFEU): a position of economic strength enjoyed by an undertaking which enables it to hinder the maintenance of effective competition on the relevant market to by allowing it to behave to an appreciable extent independently of its competitors and customers and ultimately of consumers.

ECJ Hoffmann-La Roche: Tying in and bundling, which refers to making the conclusions of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts. Additionally, giving discount rebates or incentives to encourage loyalty is in breach of Art.102 TFEU.

ECJ Akzo: A stable market share of 50 per cent or more raised a presumption of dominance. Predatory pricing whereby a accompany seeks to eliminate a competitor by setting its prices at particularly low level with the intention of raising prices once the competitor is eliminated (anti-competitive abuse in breach of Art.102 TFEU).

ECJ Irish Sugar: Confirmed a finding of vertical collective dominance between Irish Sugar and a distributor of sugar, Sugar Distributors Ltd. The company was found to have abused its dominant position by discriminating in the price charged for industrial sugar (selective pricing). It was also criticized because it offered fidelity rebates to one of its customers which had the effect of tying it to Irish Sugar, thereby strengthening Irish Sugars dominant position and preventing the customer from taking supplies from a competitor of Irish Sugar.

ECJ Tetra Pak: Predatory pricing whereby a accompany seeks to eliminate a competitor by setting its prices at particularly low level with the intention of raising prices once the competitor is eliminated (anti-competitive abuse in breach of Art.102 TFEU).

ECJ IMS: In order for the refusal by an undertaking which own a copyright to give access to a product or service indispensable for carrying on a particular business to be treated as abusive, it is sufficient that three cumulative conditions be satisfied: Refusal is preventing the emergence of a new product for which there is a potential consumer demand that is unjustified such as to exclude any competition on a secondary market

Week 7: Competition Law: State Aid ECJ Lorenz: Commission must come with preliminary view in 2 months (informal procedure, Art. 108(3) TFEU)