EU Structures

Question 1

Article 267

Answer 1

1. Is the body making a reference a Court or Tribunal?
2. Is a decision on EU Law point ‘necessary’ for judgement?
3. What is the jurisdiction of the Court in question?
4. Could the ECJ refuse the reference?
5. Conclude

Question 2

Enforceability of EU Law before a National Court

Answer 2

1. Consider Direct Effect
2. Consider Indirect Effect
3. Consider State Liability

Question 3

Enforceability of EU Law before a National Court > Direct Effect

Answer 3

1. Define Direct Effect
2. EU Law and Direct Effect
3. State: ‘In order for EU Law to be directly effective, it must satisfy the Van Gend Criteria’
4. State: ‘In the case of directives, direct effect can only be vertical (Van Duyn)
   - Van Gend and Ratti
   - Foster and Farrell
5. Conclude

Question 4

Enforceability of EU Law before a National Court > Indirect Effect

Answer 4

1. Define Indirect Effect
2. Impact of Marleasing
3. Conflict with National Law
4. Conclude

Question 5

Enforceability of EU Law before a National Court > State Liability

Answer 5

1. Define State Liability
   - Francovich
2. Position after Factortame
   - State Factortame
   - Sufficiently serious: Incorrect Implementation; non-implementation and failure to make an Article 267 reference.
3. Conclude

Question 6

Social Policy - Sex Discrimination

Answer 6

1. General Aim of Anti-discriminatory legislation
2. Does the issue concern pay or treatment?
3. Is it direct or indirect discrimination?
4. Can the discrimination be justified?
5. Enforcement
6. Conclude

Question 7

Free Movement of Goods

Answer 7

1. Introduce the relevant legislation (Art 26, 28 and 34)
   - Harmonisation directives?
2. Is the Measure a Quantitative Restriction, a Measure with the Equivalent effect of a Quantitative Restriction (MEQR) or a Selling Arrangement?
3. Is the measure indistinctly or distinctly applicable
   - mutual recognition
4. Can the measure be justified?
5. Is the measure proportionate?

Question 8

Free Movement of Persons - Workers

Answer 8

1. Introduce relevant Primary Legislation (Article 45(1) TFEU and Article 45(2) TFEU)
2. Is with individual a ‘worker’ within the scope of Article 45 TFEU?
3. Rights of Entry and Residence - Directive 2004/38 (And Art. 45 TFEU)
4. Right to Equal Treatment - Regulation 492/2011 (And Article 45(2) TFEU)
5. Can measures that infringe EU Law on Free Movement of workers be Justified?
6. Measure must be proportionate

Question 9

Freedom of Establishment and Provision of Services

Answer 9

1. Does the Service Directive 2006/123 apply?
   - If yes, go to step 2, if no, go to step 4.
2. Are Free Movement Rights engaged? If so, establishment or services?
3. Is the measure a Restriction under the services directive?
4. If not covered in the services directive, do the facts of the question relate to establishment or service?
5. Introduce relevant primary legislation (Art 49 and 56)
6. Is the measure a restriction for the purposes of the relevant legislation?
7. Can the restriction be justified?
   - distinctly or indistinctly applicable?
8. The measure must be proportionate.

Question 10

Competition Law - Article 102 TFEU

Answer 10

1. Relevance of Art 102 TFEU: ‘the claimant can consider a claim under Art.102 TFEU, which prohibits the ABUSE of a DOMINANT POSITION that may AFFECT TRADE BETWEEN MEMBER STATES.
2. Does the Undertaking have a DOMINANT POSITION in the market?
3. Has there been ABUSE of this position?
4. Might this abuse AFFECT TRADE between member states?
5. Conclude
6. Consequences for undertaking

Question 11

Competition Law - Article 102 TFEU > Dominance

Answer 11

1. Define Dominance
2. Consider test for dominance
3. Ascertain Market Share (RPM and RGM)
4. Before concluding whether the underetaking is dominant, consider and apply factors other than market share
5. Cite the RPM and RGM and conclude: is there dominance? If dominance can be established, move on to ABUSE.

Question 12

Competition Law - Article 102 TFEU > Abuse

Answer 12

1. Define Abuse
2. Identify Relevant Abusive Practices
   - Exploitative
   - Anti-Competitive
3. Types of Abusive Practive (select relevant)
   - Unfair Pricing
   - Refusal to Supply
   - Unjustifiable Price Discrimination
   - Tying (AKA bundling)
   - Abusive Discount Policies

Question 13

Competition Law - Article 101 TFEU

Answer 13

1. Relevance: ‘Art 101 TFEU Prohibits business arrangements that may effect trade between Member States and have, as their object or effect, the prevention, restriction or distortion of competition in the common market.
2. has there been an ‘Agreement’
3. is the agreement between two or more undertakings?
4. Does the agreement have as its OBJECT or EFFECT, the PREVENTION, RESTRICTION or DISTORTION OF COMPETITION in the common market?
5. Does the agreement affect trade between member states?
6. What are the consequences of infringement of article 101 TFEU?
7. Is the Undertaking able to avoid a breach of Art 101?
   - NAOMI, NAAT, Block Exemption Reg. 330/2010, Art 101(3) exemptions
8. Conclude whether there has been an infringement of Article 101 TFEU based on the facts
9. What sanctions might the firm face?

Question 14

Competition Law - Article 102 TFEU > Opening statement

Answer 14

1. Relevance of Art 102 TFEU: ‘the claimant can consider a claim under Art.102 TFEU, which prohibits the ABUSE of a DOMINANT POSITION that may AFFECT TRADE BETWEEN MEMBER STATES.

Question 15

Competition Law - Article 101 TFEU > Opening statement

Answer 15

1. Relevance: ‘Art 101 TFEU Prohibits business arrangements that may effect trade between Member States and have, as their object or effect, the prevention, restriction or distortion of competition in the common market.

Question 16

Competition Law - Article 101 TFEU > Sanction Categories

Answer 16

1. Investigation
2. Penalties
3. Leniency notice
4. Challenging any penalty

Question 17

Free Movement of Persons - Workers > 2. Is the individual a worker?

Answer 17

1. Lawrie Blum definition
2. Workseekers (ex p Antonissen) and Directive 2004/38
3. Part-time workers
4. Other workers within the scope of Art. 45 TFEU

Question 18

Free Movement of Persons - Workers > 3. Rights of Entry and Residence

Answer 18

Article 45 TFEU is the primary source of rights. Directive 2004/38 elaborates on these rights.
Directive 2004/38 covers EU citizens (Art 3(1)) and their family members (Art 3(2))

1. Defining family members (Art 2(2) and 3(3))
2. Rights of Entry (Art. 5) and Exit (Art.4)
3. Rights of Residence (Articles 6, 7, 16 and 17-18)
4. Rights of family member on death/departure of union citizen. Art.7 (Art.12)
5. Rights on Divorce/Annulment

Question 19

Freedom of Establishment and Provision of Services > Article 49 TFEU (RERAD)

Answer 19

1. Prohibits RESTRICTIONS on freedom of establishment
2. Includes the right to ESTABLISH oneself in Host State under the same conditions as apply to Host State Nationals
3. Can be RELIED UPON in home member states (Marks and Spencer Plc v Halsey)
4. APPLIES TO: individuals, companies (Art.54) and business temporarily providing services (Art.56)
5. Has DIRECT EFFECT (Reyners v Belgium)

Question 20

Freedom of Establishment and Provision of Services > Article 56 TFEU (RTRDWR)

Answer 20

1. Prohibits RESTRICTIONS on freedom of services
2. Includes rights for businesses/individuals to provide services on a TEMPORARY BASIS in a Host Member State, under the same conditions as apply to nationals of that member state, if provided for remuneration (Art.57)
3. Can be RELIED UPON in home Member State (Alpine Investments)
4. Has DIRECT EFFECT (Van Binsbergen)
5. Includes right to use ones own WORKFORCE - from outside EU. (VanderElst)
6. Receiving Services