EU business law

Exam: closed book exam. Case and refer to case law and legislation. 1h

Before the EU was called EEC. The goal was to create a common market.
European union: international organization to create and maintain the common market 
single market.

European commission is involved in the single market  regulates with other institution. Can
also go after countries.
The European court of justice is also involved.

2 important principles:
Van Gend eu loos: direct effect
Costa case: supremacy of EU law

Ricardo: comparative advantages  produce what you are good at and then trade  free
trade.
Disadvantage of free trade: if there is not a customs union, the good will have a different tax
regarding each country  wherever the goods enter in Europe, the custom is the same
everywhere.

You cannot protect your own product in the EU:

 Not allowed to restrict the free movement of goods and services
 Competition law: prohibits private economic actors to restrict competition

4 free freedoms:
 Of goods
 Of persons
 Of services
 Of capital

Discriminatory of preventing access: based on nationality  not applied to domestic only for
other European countries
Justification: prove the good reason for this restriction
Proportionality principle: the good reason has to be proportional because there can be always
a reason, but it has to be proportional. Necessary suitable and no less restrictive means to
achieve the same goal.

Customs duties and charges having equivalent effect

Free movements of goods:

Article 28 (1) TFEU: all charges b/n MS are prohibited or equivalent effect.

Van Good in loos: chemicals imported from Germany and Netherlands changed the tariff of
these chemical. No MS can allowed to increase the tariff until the customs union. They can
maintain but not increase. Netherland said that there was no increase because the good has
been characterized in another category.
Equivalent effect.

Article 30 TFEU: what is a custom but it’s not a custom that would have the same effect as
customs.
Italian statistical levy: you had to pay 7 liras for both import and export. This income was
used by Italian to do statistics about trade.

 Pecuniary charge + imposed because it crosses the boarder

Goal: monetary value and can be subject to trade  Italian arts case: Italy imposed on
exported arts from Italy

MS are they allowed imposing charges? No unless there is a good justification.

Justifications:

Consideration for a service: you can rely on this only f you received an indirect service for
your money.

Article 110 TFEU:

 Interchangeable or similar: first one is discriminatory  taxation where there is a

difference b/n similar product. Distinction b/n indirect and direct discrimination.
Direct  when there is an express discrimination, when you look at the rules and it
says clearly that foreign product will have to pay more than local product. Indirect 
it looks like there is nothing wrong with the rule but it practice there is discrimination.

Humblot case: In France, you had to pay a tax whenever you pay a new car. For a type
of car you have to pay X and for another kind of cars 5 times X. No direct
discrimination but it was indirect. Because in France, there was no big cars that would
need to pay 5 times X. Therefore it was discrimination.

Commission Vs Greece: foreign cars produced 1400 cm3 and Greece 1200 cm3.
Applying different taxation. Reason: larger cars will have a negative effect on roads +
pollution  they wanted small cars.  Treaties allow no justification for taxation.
ECJ  they allowed objective justification so wherever the reason it has to be
objective  it doesn’t have to be there to protect your own product. The court said it
was acceptable. In the Humblot case it was too much but here the difference wasn’t
that high.

 Not interchangeable product but in competition: UK imposes much higher tax on wine
than beer. No discrimination but in practice, UK wasn’t a big producer of wine so
wine was very expansive. They are interchangeable, but are they in competition?

When you have to pay when goods cross boarder  equivalent effect, if there was no
payment  article 110 TFEU.
Quantitative Restriction and MEQRs:

Article 34-35 TFEU:

The measure has to have an impact on the imported goods.

Dassonville

Buy Irish: set up a public entity, give them money with one objective  market irish product:
bill – tv – radio  but it’s a MEQR  but there was any trading rules enacted by the MS,
only marketing, anybody can export how many they want, there is no restriction on that and
said that the irish product failed 3%. For the commission, it wasn’t enough to prove that there
was no MEQR  any measure, in any form can be considered as a QR or MEQR.

Spanish strawberries: in France, people on the market on Sunday, they sell foreign goods.
Whenever they went out on Sunday to sell, they got insulted and the police didn’t do
anything. No measure from the state. It was a MEQR bcs it was violate act and the state
should have punished them. No effective measure to prevent those acts.

Art 36 TFEU: you can justify some restrictions. Direct and indirect discrimination.

Henn and Darby: UK rule  you cannot import pornographic materials in the UK 
penalties. Relied to article 34 free movements of goods. Reason: public moral. But it wasn’t
accepted because they were producing pornographic material in the UK.

Cassis de Dijon: in Germany, they say that you cannot sell liquor if there is less than 25% of
alcohol. Germany said that the price of the taxes is based on the percentage of alcohol.
Therefore if France do less than 25% of alcohol, it will pay less taxes and its not competitive
+ it will fool the German consumers bcs they are used to buy a liquor of 25% at least, and
they will be mislead.
Can the court accept this justification? Because its not listed in the article 36 TFEU.
That’s when the court created the objective justification  mandatory requirement  no
discrimination; states can rely on mandatory requirements to justify the measure. Mandatory
requirement is based on objective factors.
It was a good justification but it wasn’t proportionate because you can label the product with a
big label. The court created the principle of mutual recognition  whenever a good is
placed on the market, legally, in any MS, other MS are not allowed to restrict the
trading of this good without a proportional justification.
MS must be able to prove that consumer will act differently than another MS and its very
difficult to prove.

Mars case: MEQR even measure taken by authority must comply.

Clinique: sounds like a medicine but its not, its cosmetic product. Germany said that it should
be called “Linique”. Authority decision, obliging to rename a product that can have an impact
on trade of goods and on number of sells. Justification? Consumer protection. Necessary to
rebrand? No, its suitable but there is other less restrictive means.

German case: law that says that beer should contain only 4 ingredients; otherwise it will not
be considered as a beer. Justification: tradition. But the court said no, its restricting the free
movements and its not proportional. Consumer protection: suitable yes but not necessary 
you can use a label.

Sunday trading cases: rules that say that shops must close on Sundays. Retail shops selling
goods for gardening  this rule is a MEQR. How that can restrain the internal market?
This measure applies to everyone. The company argued that the people do gardening on
Sundays so when you do the work, its on Sundays and then you realize you need something
and then you go the store, meaning they sell less goods therefore I buy less goods  it’s a
MEQR bcs indirect effect on trade.

Keck case: small retails shop and there was a French rule saying that they are not allowed to
sell below the purchasing prices  no sale at lost. And they were selling below the
purchasing price  criminal procedure against them. They argued that it was a QR restricting
bcs they wanted to sell more and buy more and if they raise the price, they will buy less
foreign products. The court overruled previous case  certain selling arrangements are not
QR. The previous case will apply for MEQR but not for selling arrangements.

General idea: if a national measure concerned the ingredients, the packaging of a product,
then it’s a MEQR. If a national measure concerns on how, when and under what
circumstances you can sell a product that will be a certain selling arrangements.

Familien press: in Austria there was a rule that says that publisher are not allowed to have
crossword lottery  if you send the correct answer you can win something. QR? MEQR?
Selling arrangement? No
If you have to change the ingredients of the product to comply with the measure, therefore it
will be a MEQR. Justification: in Austria there are a lot of small press and if they allow that,
the media plurality will be affected. Proportional: no, you can set a value.

Italian trailers: rules on traffic had a provision saying that you cannot attach a trailers to your
moto. Someone went to court saying that it was a restrictive measure  the court they said
that it was a MEQR because in many MS there are producers of tailor for moto, so you cannot
sell them in Italy bcs nobody can use them. Rule that prohibit importation of the good.
Justification: safety of driving bcs of the Italian roads. No other less restrictive measure.

Case in class:

1. MEQR or QR? Or certain selling arrangement?

QR: not allowed to sell? No bcs its about how many you can import or export
MEQR: do you have to change the product to comply with Irish regulation? No
because there is no requirement for changing
Certain selling arrangement: same burden on national and foreign goods. Here its not
bcs Irish product goes through this procedure while foreign product don’t  2
evaluations.
Justification: public morality
Proportionality: is the injunction prohibiting the selling of videos tape proportionate
 necessary to protect public morality? Less restrictive mean?
Less restrictive mean:
Mutual recognition? Because it has already been examined in Germany. Are Irish
people different from German?
2.

8.10.19

Discriminatory taxation or protection taxation: possibility to justify using objective

justification
QR/MEQR:
C/Consumer Duty: proportionate enumeration of service 3 treaties based on justification

Case class:
1. MEQR or ceiling arrangement? Because there is no payment involved but there is a
measure that takes time and slow down the importation. Its MEQR Article 34.
Justification:
Direct discrimination: we don’t know bcs we don’t know if the state would do the same if the
state will do the same to local wood if they would have found parasite.
Proportionate: takes time  look for every import and furniture. Necessary: not every wood,
just random ones.

Francovich and boufaci: Italy has no implemented a directive on time about setting up wage
guarantee founds. Employers pay that and when they get unemployed, states gave them
money. Italy hasn’t implemented on time. Francovich and boufaci got employed but they
didn’t get any money  state liability of infringement of EU law

2. It’s a certain ceiling arrangement  if its not applied in a discriminatory manner, then
article 34 and 35 do not apply therefore no need to look for a justification.
3. If packaging is involved, its 99,99% chance to be a MEQR, when you have to change
the product in order to comply. Raw case: Belgium had a different forms of packaging
for margarine  MEQR. Direct? No so we cannot rely on treaties or indirect
discriminatory? Yes therefore we can rely to mandatory requirements. Objective
Justification? This rule is not against the treaties bcs consumer protection.

Right of establishment

Formation and recognition of companies:

 Real seat theory
 Where the decision are taken

Article 49 TFEU:
Restriction on establishment is prohibited  primary establishment
Any national of a MS can set up a company in another MS
Also applies to secondary establishment  you already have a company in a MS and you
want to set up a branch or subsidiary in another MS.

Article 54-55 TFEU:

The ECJ who told us what is a good, what is a MEQR etc so usually they set the definition but
for freedom establishment  nationals of a MS and the company law will say who can rely
on freedom of establishment.
Main characteristic:
Rush portugesa: portugese went to France and took French employees to build the freeways
and it took 3 years  long lasting business activity or temporary business activity?
Long lasting: establishment
Temporary: services cases

Legal persons:

Daily mail  to avoid UK taxes  transfer central management to the Netherlands

Since companies are legal persons

Marks and spencer case: the UK there is a tax regime profitable for branches and agencies in
UK
Why can’t deduct my losses from other MS through UK profits? Its infringing free
movements of establishment bcs the taxation is more profitable in UK
UK provided justification and the court created the objective justification

Article 51-52: its not justification but exemption from the rule
If a particular activity is closely connected of the exercise of public power, the rules do not
apply.

Centros Ltd: they had to provide 200 000 DKK for minimum capital  they said why not
settle a company in the UK because no minimum capital and afterwards, without any activity
in the UK, they went to Denmark to register a branch. The board refused bcs there was no
minimum capital and also bcs in the UK there was no activity. Abuse of the free movement of
establishment in order to avoid the Denmark legislation. The court held that it wasn’t an abuse
of your right.
Denmark: we have this regulation to protect creditors. This branch does not comply with
creditors protection  objective justification
Why this case is important?
 Using your right is not an abuse
 Objective justification are allowed

Factortame case: spanish company settled in the UK and started to fish in UK. In EU there is
quotas for fishing. UK government was mad because it Spanish was fishing UK fish 
measure that charterer manager must be british  Direct discrimination but it was in line with
EU law

Uberseering case: if a good is put lawfully in a MS, all the others have to accept and cannot
deny it. Same for legal persons.  mutual recognition

Vale: but its discretion is limited by the requirements of the principles of equivalence and
effectiveness.

Aget Iraklis: restrictions, which are not discriminatory, can be prohibited if it restrict private
access.
Greek labor law  collective redundancies are subject ….
The company went to court and: diapo
Article 51-52 TFEU: If the person doing the activity which is closely connected to public
power
So working for public power is not enough to require national …

Free movements of service

Article 56:
Article 57:

Louisi and carbone: one was going to Germany for a treatment and the other one was going to
France for tourism. Both of them had a lot of money. They forgot to mention the money and
they were stopped at the boarder and seized the money  against criminal law.
Defense: we are going abroad to receive services and we need money and the fact that you
stopped is preventing me to receive the services  contrary to article 56. Freedom to provide
services is also freedom to receive services.

Mary carpenter: national of the Philippines, got a tourist visa and went to UK for 6 months
and didn’t came back home and married peter carpenter. He has kids, she was at home with
kids and peter was travelling and had a job that every time he goes to Luxembourg to sell
scientific journals. UK authorities told to Mary that she has to go home bcs visa expired.
Restrictive bcs if his wife goes home, he couldn’t go abroad because of the kids.

Akrich case: Moroccan guy illegally entering UK and they sent him back to morocco and
again illegally enters UK and they sent him back. He married a British girl. Can we send him
home? They went to Ireland, and came back to UK but they were stopped at the boarder. But
since his wife moved from one country to another, she became a worker and they can have
their family with them even if it’s a third country member. ECJ said it wasn’t an abuse of law,
unless proving it was a fake marriage.

Alpine investment case: service provider

German company asked tourist operator to organize a group training in Greece for the
employees of the company so they asked to organize a service in Greece. 2 nationals in the
same country. Article 56: 2 different MS is needed. Here both are German the service is
intended for Germany. ECJ said it’s enough to just have the service provided in Greece  the
service is received in another MS.

Service V freedom of establishment:

Only use the directive when national law is not compliant with the provision in the directive

Free movements of workers:

Article 45: there must be activities

Questions:
1. Yes
2. Employment law is national competence but if you go abroad, you can invoke EU law
against your MS. If you haven’t moved, the legal assessment will be different.
3. Can employers rely on art 45?
Who is a worker?
 Is a worker a worker? You work in a country

Lawrie blum: ECJ defined what is a worker. British national. Trainee teacher but has to pass
an exam but only German can be admitted in Baden – Wurttemberg.
Trainees are they workers?
 Natural person
 Performing services
 Under the direction of another person
 In return for a remuneration

Steyman case: entered the religious community and he was gardening, housing works around
the religious community, they were living together and in return he got food, accommodation,
small amount of money sometimes.
Worker? Salary can be other form than money. There was a authority bcs the leader of the
religious community was giving order;

9.10.19:

Anna class case: establishment case bcs she wants to settle there. The aim is important.
Do they have to be fluent in English to practice in UK 

James class case: no direct discrimination bcs there is no express measure saying that
foreigners have to do that and nationals have to do this. Indirect discrimination: is it more
burdensome to foreign lawyers than French lawyer? In practice it is for foreigners. It
restraining the entry to foreign lawyers. Justification: public policy. Objective justification:
close to your clients and reachable. In practice, it was proportionate. You can have a
restriction on the number of offices.

Workers was defined from the ECJ. It doesn’t matter what your law says. Its completely
independent from national worker law.

Antonissen: lady went to UK and caught twice for drug possession  went to jail  released
and UK wanted to send her back to Belgium  she said that she was a job seeker and she was
sent to jail so she couldn’t look for a job. Public security issue? Tabula rasa  when you
spend and paid your time in jail, you cannot be treated as a criminal anymore. You cannot be
discriminate for this. There are some professions you cannot work in bcs you were in jail but
still.

Ugliola case: Italian wanted to serve in … he was already serving in Italy and wanted to work
in German army. The more you work in the army the more ranking you are. He was denied
seniority bcs he hadn’t spend enough time in the “… sphere”  discriminatory based on
nationality. Direct discrimination? Sphere said when they promote someone they only take
into account the time spend in the German army and not in other army. Yes it’s a direct
discrimination bcs there is an explicit rule saying that there was a difference with German
national and other nationalities.

Graf: working for an Austrian employers and he was German for 4 years  Austrian rule: if
you get fired, you get a month salary if it was for at least 3 years for the same employers. Graf
wanted to quit and considered this rule was a restriction for the free movement workers  it
discourages me to take a job in another country because I will not have any compensation and
also I have to wait 3 years to take another job if I found a job opportunity in another MS.

French merchant:

Mrs hartmann: she was the wife of a German national who moved to her wife is Austria and
he was working in Germany. He wanted to get child raising allowance from Germany but
they said he wasn’t living in Germany therefore he couldn’t get it.

Workers Regulation:

Directive: you have to implement them so its easier to revoke it bcs it needs to be
implemented.

Linguistic requirements:

Angonese case: Italian citizen who moved to Austria to work. After graduating he went back
to Bolzano where there a job for a bank: they were looking for employee who speak Italian
and German and they need to prove their German knowledge (language certificate in Bolzano
was the only possibility to prove it)  Angonese suits the bank based on free movement of
workers  Is angonese a worker? Yes because he is looking for a job. Discrimination? No
direct discrimination. 2 private parties, not against the state. Everyone has to prove their
skills. Same rule for everyone. Indirect discrimination  is it burdensome from other MS
than nationals? Yes bcs you have to go to Bolzano and the nationals are already there.
Justification: they need people who speak German in my bank. Proportionate: no

Anita case: she was teaching part time painting in English  new job opening for a full time
professorship. The college denied the application bcs she doesn’t speak the ancient Irish
language  she is a worker bcs she is from Netherlands  direct discrimination: no rules
apply to everybody. Indirect: people living their will be more inclined to speak ancient Irish
 justification: promotion of cultural language  proportionate: ECJ said there was no other
less restrictive means

Bosman: football player in Belgium and wanted to move to France to another club. Its club
has to allow the transfer. He got no certificate for the transfer so the French club didn’t hire
him. He lost all opportunities to play football  when to court bcs nobody wanted to hire him
in French club because he was Belgian; the players have to be French. Direct discrimination.
Justification: public health? Public policy? Public security  no
Bosman was right. The commission and UEFA conspired because foreigner cannot play for
the French team  they agreed that they could have foreigners if they were locally trained

EU citizenship:

Grzelczyk: it looks like a worker case but it was also a citizenship case. No reference to
workers economic active etc only if you are a national you should be treated as a national of
the host MS.

Baumbast: the court said that you can rely to your citizenship to move around but under
certain conditions.
Chen case: Chinese nationals went to Ireland because the rules on nationality where lose bcs
you were born there you have the nationality. The woman went there and gave bird  EU
citizenship. After the bird, she applied for a long time residence permit  get refused bcs it
was an abuse of the benefits of Irish private law. The ECJ said  one citizen of Ireland born
there so they can exercise his free movement right but he is 8 months therefore he need his
parents

Residency rights:

Alopka case: alopka went to Luxembourg, they didn’t let her stay  she gave birth and the
father was French  French citizen kids  they had no money so they depended on the state.
Kids needed medicine  still got refused the residence permit in Luxembourg  article 7:
doesn’t fit. 

Dano case: look criteria article 24

Metock: national cameroun went to Ireland applied for the right to stay there because he met
another cameroun worker from 2006 and get married and have 2 children in Ireland  no
matter how you came, if you get married you stay.

Free movement of capital:

Here there is an express reference to third countries  all restriction b/n MS and third
countries will be prohibited. If we allow the free flow of K, the third party should also allow
the free movement of K.
The usual justification: public policy, security and health. Here health is missing.

What is K: no definition in treaties nor by the ECJ.

ECJ refers to Directive 88/361  diapo

Can MS prohibit the money out?

EU competition law:

Lets not let private sector restrict competition  consumer welfare will decrease bcs they will
pay more if there was competition.

Article 101: prohibiting any competitive agreements.

What are the conditions of an infringement?
 2 undertakings or an association
 Agreements
 Concerted prices
 b/n MS
 Object and effect that will affect trade
 Distortion of competition

Everyone who is caring an economic activity will be an undertaking  selling a product.

The final consumer is the one who buys the final product.
Public foundation can be an undertaking if they are selling something.
Compass case: company who is providing company registers services for company  service
provider. Many of the information compiled was from the court. The law has been changed
and the court decided not to provide the information to compass and the company went to
court and alleged that the court was abusing its power  they claimed that the court was then
the monopoly because it doesn’t give me the information to sell it anymore  the court is
public and there is no activity economic  no restriction of competition.

Horizontal agreements: harmful for the consumer

If there is an expression of your will  agreement

It just a question of proof.

Competition doesn’t restrict parallel behavior  if your competitor increase its price and you
do the same  not prohibited, its parallel behavior.

Concerted practices are practice which are not agreement but its still a behavior that will
restrict competition  Ex: every week I tell my competitor that I will increase my prices 
even if the competitor doesn’t reply, it’s a concerted practice  every actions that will
eliminate the risk of competition is a concerted practice, it makes competition less riskier.

Whatever your aim, if there is an agreement on the price, there is a restriction to competition.

Agreement on price is enough for infringement, no need to prove the effect on consumers.

Vertical agreements: less serious and less fees. The most dangerous thing is Resale Price
Maintenance  b/n undertakings and the ones who sell the
If reseller sells the products with different prices and it was a RPM  you just have to prove
the RPM not the effect.

Article 102: abuse of dominant position

You need a cross border situation.

When you want to look for substitutability in the relevant market  you look the behaviors
 if its substitutable for the consumer

Last lecture:

Free movement of workers:

Economically inactive citizens:

Self-employed: the worker is the person who works for someone else but not the self
employed therefore they are covered by the free movement of establishment
3rd country nationals: no bcs article 45 deals with workers of the MS
Posted workers: they do not exercise the free movements of workers. Directive on them
saying that they don’t lead to social dumping (competitive advantage through social rules) 
they will get the same advantage as if they were working in France.
Personal scope:
 Perform services for a certain period of time: differs from tourist  they don’t
perform any services. Ex: someone who provides services for a professional
qualification  genuine work therefore they are workers. Work performed as part of
rehabilitation/reintegration 
 For and under the direction of another person
 In return for remuneration
These 3 criteria is exhaustive, they are no other factors.

Job seekers in another MS: workers  you need to have the possibility to move and to stay in
order to seek for a job. Covered by article 45 but not at the same extend as a genuine worker.
Allowed to go and to stay
Workers whose work contract has expired: they are still covered by article 45 unless there was
a clause upon termination to leave the country

Workers and volunteers:

Case study  the nurse is not recruited as workers but as a member of the association red
cross. She is a worker

Article 45: direct discrimination

Doesn’t punish MS to treat better 3rd country better than a MS
Cannot treat another MS differently than national
National treated less favorable than another MS  reverse discrimination

Indirect discrimination:

Angonese case: Doesn’t matter if you privilege all nationals all a certain group of national 
indirect discrimination.

There is direct and indirect discrimination and there are also obstacles.

Obstacles:

Popperl: Workers, element relating to a MS, public service exception?

Direct: no
Indirect: criteria that will work more for nationals than other MS?
Obstacles: capable of discouraging  loses around 50% of his accumulated rights

Mobile worker: when you have a link with another MS

Erzberger case: under German law there is a right to participation for the supervisory board.
Workers, who move from Germany to a subsidiary in France, lose their right bcs the
requirement is that the worker has to work in Germany.  less attractive, its discouraging

Restrictions can be lawful If they are justified.

Justification:

 Public interest: if a MS says that it doesn’t want to discriminate but its too much costly
 not acceptable.
 For attaining an objective:
 Do not go beyond what is necessary to attain the objective

The MS has to prove the justification

The worker has to prove the restriction