Free Movement of Goods:

Initially, we need to identify whether the given commodity mentioned above, falls under the definition
of Goods or not. In Case of Art Treasure, it has been widely defined as “any product which forms basis of
commercial transaction and can be valued in money.” In our case..

Since, it has been evaluated as goods and it is a commercial transaction. The next issue is to identify
whether the barrier placed is Monetary or Non-Monetary. Where, Monetary barriers are regulated
under Article 28,30,110 TFEU and considered as any kind of discriminatory taxation or any financial
charge imposed on Goods. On the other hand, non-Monetary Barriers are regulated under Article 34-36
TFEU and consider all kind of ban and quota on Free Movement of Goods. In our case…..

As it is Non-Monetary Barrier, Article 34 TFEU will be imposed in domestic courts. Where, any measure
taken by government/state which results in Meausre Equivalent to a Quantitive Relation (the “MEQR”)
or Quantitive Relation (the”QR”) will infringe Article 34 TFEU. After the conclusion of Spanish
Strawberries, Apple & Pear and Commision vs Ireland, any direct or indirect measure taken by state will
be considered as state measure. In our case…

The next issue is to determine whether state measure resulted in MEQR or QR. Where in case of
Procureur du Roi v Dassonville, MEQR was defined as hinderance caused indirectly or directly to the
potential or actual intra community trade. Whereas, QR was widely defined in case of Geddo as partial
or total restriction (i.e., ban or quota) on inter community trade. In Our Case….. (IF QR -> Direct
infringement, move to derogation)

As from the facts it has been evaluated as MEQR, the next issue is to identify whether they are Distinctly
applicable (the “DA”) or Indistinctly Applicable (the “IDA”). Where DA applies only on imported goods
and not on domestic Goods (Evans Medical Case)(Irish Campaign Case)(Rewe Case). Whereas IDA
applies on both local and imported goods (Walter Case)(Redbull Case). The difference between DA and
IDA comes from Directive 70/50. (if DA -> Direct infrigment, move to derogation. Else IDA)

As it is an IDA measure, next issue is to identify whether it is Selling Arrangement (the” SA”) or Packaging
requirement (the “PR”). Where SA is controlling the mechanism of product to be sold whereas PR is
requirement of the product packaging (Walter Rau Case)(Familia Press Case).

(if PR-> Direct infringement, Derogation will be raise Else Keck case and Market Access Test)

As it is SA, from the facts of Keck Case it will not infringe Article 34 TFEU because of the fact that in SA
the implications are low as compared to a PR and hence there was an exception granted from Keck case
that SA does not fall within the ambit of Article 34 TFEU. However, due to exception being wide, the
Market Access Test is applied which clearly states that if dual burden is applied on imported goods, it
will directly infringe Article 34 TFEU by the operation of law (Gourmet case and Commission v Italy). In
our case.

As infringement is proved, to protect the measure imposed by state, the state will rely on derogation
mentioned under Article 36 TFEU where for IDA measure there is special provision of non-exhaustive list
within Mandatory Requirement. The special provision for IDA measure is because they are non-
discriminatory in nature (Cassis de Dijon). To prove derogation, there are 3 points that needs to be met:
(i) derogation should be recognized under treaty or should be under non-exhaustive list for IDA MEQR,
(ii) there should be public benefit and (iii) there should be more benefit to Free movement of Goods
rather than determined, proportionality. In our case

Free Movement of Services:

We understand that … We need to determine…… will infringe EU Law
specifically under the provisions of FMS.

For the protection under EU Law, the initial issue is to identify that the service provided in the given
facts would fall under the definition of ‘services’ defined under Article 57 TFEU. Services are defined as
‘temporary in nature’ and ‘provided for remuneration’ (Belgium v Humbel) (Gebhard Case). In our
case….. It was clearly stated in Gebhard then temporary activities are services whereas permanent
activities would fall under the purview of establishments.

Furthermore, under Article 56 TFEU every citizen of EU state has unconditional right to give and receive
services (Luiso and Carbone Case)(Ciola Case). Further 3 broad categories of services and cross border
activities are covered under Article 56 TFEU: (i) where provider of the service moves from one state to
another, (ii) where receiver of the service moves from one state to another and (iii) where service is
moving itself from one state to another (Alpine Investment). Any measure that will create hinderance to
Free movement of Services, it will infringe Article 56 TFEU whether the measure is Distinctly applicable
(the “DA”) or Indistinctly Applicable (the “IDA”).

For all foreign services, DA is applicable whereas for all domestic and foreign services, IDA measure is
applicable. Since IDA Measure are non-discriminatory in nature and create a heavier burden on foreign
one as they have to fulfil home and host state laws, they will infringe Article 56 TFEU..(Web Case)(Sagar
Case)(Vans Bin Bergan).

As infringement is proved, to protect the measure imposed by state, the state will rely on derogation
mentioned under Article 52 TFEU as (i) public security, (ii) public policy and (iii) public health. Whereas
for IDA measures, since they are non-discriminatory, there are further special provision of non-
exhaustive list are available under title of Public interest Ground. To prove derogation, there are 3
points that needs to be met: (i) derogation should be recognized under treaty or should be under non-
exhaustive(applicable for IDA Measures), (ii) For protection of public there should be public benefit (iii)
there should be more benefit to Free movement of services rather than determined, proportionality
test. In our case..
Competition Policy (101):
Initial issue is to identify whether there is infringement of Article 101 TFEU or not. For which 3 points
needs to be proven:

The first aspect is to identify whether there is an association of undertaking or there is agreement
between undertaking. Whereas, in case of Hofner, undertaking is defined as entity engaged in economic
activity. It was clarified in case of P Fenin Case, public services provided by public bodies will not be
considered undertaking. Agreement was widely defined in case of Constan, includes all kind oral,
horizontal & vertical, written agreements and Gentleman’s Promise (Chemiefarma Case). or a concerted
practice (i.e. defined in ICI case as proof of coordination and corporation between competitors where
there is no evidence of an agreement) between the undertaking. We see no evidence of any agreement
between the parties, however, the market conditions clearly show that there is coordination and
cooperation since it is not a coincidence that prices for arcades are uniformly high in three different
countries and after discussions K should have strategized on how to break the market and enter into and
compete against others but rather he has also cooperated and set the price “at the right level”. This can
clearly be categorized as a concerted practice. K and the other undertakings can raise a defence to the
concerted practice which is that of oligopoly (Ahlstrom case) i.e. that the coordination is not due to a
concerted practice but because the market is oligopolistic. However, there is no evidence that the
market is oligopolistic therefore this defense will fail. Hence, the first aspect will be proven.

The second aspect is to prove that agreement discussed in the given facts should be enough capable to
distort competition in more than one EU State. Since, it is a jurisdictional point, EU commission can only
penalize if there is effect of trade within EU member state due to agreement made. It is an objective test
based on facts and law, whether agreement directly or indirectly influence trade between EU member
state (Consten v Grundeg). In case of Woodpulp it was concluded that EU commission also had
jurisdiction for the companies which are outside the EU which are distorting trade within EU.

The final and third aspect to prove infringement of Article 101 TFEU is to identify that the object or
effect of the agreement is to distort, restrict or prevent competition within one EU state or more than
one, to an substantial extent (STM Case)(T-Mobile Case). In our case …

The infringement of Article 101 TFEU has been proven. For the sake of argument, to prove infringement
in UK, Two stage test is applied (Metropole Television Case): (i) infringement of Article 101 TFEU is
determined by Commission, (ii) whether exemption will be given under Article 101(3) or it will be voided
under Article 101(3). In US Courts, ‘Rule of Reason’ method is adopted.

However, under Article 101(3) whether party can claim exemption from the infringement. For which
four points needs to be proven: (i) the efficiency of distribution or production of goods is improved or
there is economical or technical progress, (ii) there is fair share of consumer receiving benefits, (iii) the
restriction is major cause of this benefit and (iv) the period of agreement should be for substantial
period and would not as whole eliminate competition from market. In our case…

Since, the party was not able to claim exemption and exclude their liability from infringement of Article
101 TFEU, there is an enactment of leniency notice concept by EU Commission where if the party blows
whistle in front of EU Commission and they are granted immunity from their liability under infringement
of Article 101 TFEU.
Competition Policy (102)-Dominant Position:
The initial issue is to define either the entity is an undertaking or not. It was defined in case of Hofner,
where undertaking is an entity engaged in economic activity. It was clarified in case of P Fenin Case,
public services provided by public bodies will not be considered undertaking. In our case..

To prove dominance, the next step is to identify product market and geographic market.

Whereas to determine product market, courts will determine either the products are interchangeable or
not. For which Three economic test has been introduced by courts: (i) The first test is cross elasticity of
demand, which was widely defined in case of United Brand’s Case which states that if there is increase
in product price, it will be interchangeable with all other products whose demand increase in
comparison with first product, (ii) The second test is cross elasticity of supply, which was defined in case
of Michelin Tyre, where it was concluded that if there is no difficulty of shifting of manufacturing of one
product to another product then it will be interchangeable else it will be not interchangeable & (iii) The
third and the last test is “Small but Significant Non Transitory Increase in Price” where it is defined that
goods are interchangeable if many consumers switches (i.e., increase in other product’s demand) . In
our case

Geographic market is a market where there is equal objective competitions for all trader or competitors
(United Brands). In simple words, it will be a market where products of undertaking is being supplied. In
Our case…

Since product & geographic market is identified, we need to prove dominance. Where dominance is
defined as economical strength based position of entity who can cut its customers and competitors
independently. However, there are general rules to identify Dominance: (i) if shares are more than 50%,
then it will be a presumed dominance (Akzo Case), (ii) If market share is less than 50%, then nearest
competitor share will be seen (British Airline Case) & (iii) Courts will analyze barriers to entry, where if
barriers to entry is high it will prove dominance directly (read from notes). In our Case…..

Since dominancy is proved, we would identify either it is abusing the market or not. Abusing is
considered to be exploitation of economic powers, whereas to prove abuse non-exhaustive list
considered and will be determined by the judges (United Brands). In our case…
Free Movement of Worker:
We understand that Jamie has applied for the position of an English high school teacher in Budapest and
was rejected in the interview since the Hungarian law requires all teachers to have an excellent level of
knowledge in Hungarian therefore, we need to see whether Jamie can challenge this law under the
provisions of FMW.

To claim benefits and seek protection, “person name” can rely on doctrine of Free Movement Workers
under European Union (the “EU”). The first issue is to prove either the abovementioned person falls
under definition of workers or not.

Initially workers was defined in case of Hoekstra (i.e., any person currently employed or was in
employment), further it was defined in case of Levin (i.e., one who is contributing in economy and
promoting his standard of living). Present definition of workers is concluded in Kempf Case where
workers can be any person who is provided remuneration and the work he is doing is effective and
genuine instead ancillary and marginal. We note that Jamie applied for the position of an English high
school teacher and would be getting remuneration and the work is genuine and effective even though
the hours are not specified therefore he will be considered as a worker as the only restriction was the
Hungarian Law.

As “Person Name” has been proven as worker. In accordance with EU Law, a worker in member state
has right to receive benefits (under Article 45(2) Treaty on the Functioning of the European Union (the
“TFEU”)) such as (i) Tax and Financial Benefits (Schumacker), (ii) Social Benefits (Even Case), (iii)
education for children (Baumbast Case) and (iv) Right of Residence (Tashagen Case). The benefits are
briefly described in A7(1) & A7(2) of Regulation 492/11. If any of the above-mentioned benefits is not
provided to the worker, then Article 45(2) TFEU will be infringed. As the infringement of Article 45(2)
applies for both Distinctly Applicable (the”DA”) and Indistinctly Applicable (the”IDA”) measures
(Bosman). Where, for only foreign workers DA measure is applied and for both local and foreign worker
IDA measure applies. In our case since the law is applicable on all local as well as foreign workers it will
be an IDA measure but places a heavier burden on the foreign one as they have to comply with the
language barrier and hence an infringement will be proven.

Furthermore, we can also argue that since Jamie did not get the job due to the interview rejection, he
can still claim the benefits under the law of job seekers. For the protection of benefits of job seekers
under EU law provision, court stated in Article 45(3) TFEU that any national of member state seeks job in
another member state, by operation of law he could stay up to 3 to 6 months (i.e., law inititiated from
the case of (Antonissen and collins) and later incorporated in Article 14(4)(b) of Directive 2004/38). It is
to note that, if age person is more than retirement age, he cannot claim the benefit.

After the infringement is proven under Article 45 TFEU, the next issue it to move onto derogation where
the member state can defend the measure imposed. Where, Article 45(3) TFEU has defined list of all the
derogation for FMW as (i) public health, (ii) public security and (iii) public policy. However, for IDA
Measure derogation any of the both public service and linguistic knowledge can be raised.

The relevant derogation which Hungary can claim is linguistics knowledge and it is recognized by the
CJEU as one. The second aspect that we need to prove is that the measure has a public benefit and it is
necessary for the protection of the public.
As the public benefit aspect is met, meeting the requirement of proportionality is also important
meaning that there has to be more benefit than the detriment to FMW.

Based on the arguments and the laws set out above we can state that the law will be disproportionate
and Hungary will have to face certain consequences for rejecting Jamie for the position of an English
High school teacher.

Job Seeker:

Since G is looking for a better job, she can rely on the law of job seekers since Article 45(2) of the TFEU
also provides protection to job seekers which was affirmed in the cases of Antoinnesen and Collins but
the law was later narrowed under Directive 2004/38 where the present law is that job seekers should only
be given a right of residence for up to 3 months and more if there is a genuine chance of finding work and
during the residence period, there is no obligation on the state to provide benefits.
Free Movement of Worker & Citizenship
Box 1: Summarization

We understand that laura is a student in France and also occasionally works in a restaurant in order to
support herself. Upon applying for social benefits and the insurance contribution, the French
government refused to offer her the treatment and ordered her deportation. We need to determine
whether this measure can be challenged under EU law.

Box 2: Worker

In order to claim benefits, and rights of residence laura can rely on the EU law provisions for worker.
However, the first issue is to prove that whether laura falls within the definition of a worker or not
which is set out in the case of (Hookstra, levin) and the present definition comes from the case of
(kempf) where it needs to proven that laura was getting rumeneration and the work was genuine and
effective, rather than marginal and ancillary. We note that laura is working occasionally in a restaurant
where she is getting rumeneration but the working hours are not specified. Assuming she works for a
substantial number of hours within the framework, she will be considered as a worker. On the other
hand if she is not, she will not be considered as a worker.

If she is considered as a worker, we note that pursuant to Eu law a worker has to be given all financial,
social, tax and other benefits such as right of education for the children and right of residence in the
country. If ant of these benefits are not given article 45 subsection 2 can be raised and an infringement
can be proven which applies to DA as well as IDA measures. Since in our case, it is clearly discriminating
on the basis of laura being an Italian national, it will be a DA measure and infringe article 45. We can
state that derogations are available under article 45 subsection 3 as public health, public policy and
public security. However, non of these derogations are applicable and therefore France cannot deport
laura back to Italy. Assuming she is not a worker she cannot rely on the above mentioned benefits.

Box 3: Job Seeker

Since laura is an occasional worker, we can argue that if she is seeking employment she can rely on the
law of job seekers under ARTICLE 45 subsection 3 which provides that if a person is seeking for a job
they can stay upto 3 to 6 months in a member state as affirmed in the cases of antonessen and collins.

Box 4: Citizen Ship

Since “person Name” is not qualified as worker, we can still claim benefits on the basis of the law of
citizenship. Where in accordance to Article 9 of TEU, all the nationals of EU Member states are EU
citizens and will be additional to national citizenship and cannot be replaced. Assignment of nationality
is entirely competence of EU Member State. Also stated in Article 18 & 21 TFEU, there is no
discrimination between or against the EU citizens and right to reside in the entire EU. As the law was
very wide, unfair advantages were taken by the citizens to claim benefits in the richer states (Dano
Case). The law was further narrowed by the CJEU where they secured all the rights under directive
2004/38. The directive's primary concept is that EU citizenship is the fundamental status of persons
exercising their right to free movement, but not their specific status as a worker, self-sufficient
individual, student, or other.
However, to claim equal benefits as citizen one must fulfil two conditions (i) EU citizen should reside or
move in another EU member state for the activation of their rights (Article 3(1) of Directive 2004/38)
and (ii) National of Member State Should be qualified as a worker, self-employed, pursuing education or
self-sufficient (Article 7 of the Directive 2004/38). In our case, laura has moved from Italy to France and
is pursuing further education therefore both the conditions will be met, hence her citizenship rights will
be activated, and she can claim all the benefits under the law of citizenship.

Box 5: Children

Box 6: Fundamental rights

Assuming, “person name” couldn’t qualify as worker, job seek or citizenship. Reliance can be placed in
Fundamental rights which is recognized by CJEU in the City of ULM Case. All the fundamental rights
mentioned in treaties or concluded in case laws were all merged under the Treaty of Lisbon and the EU’s
Charter of Fundamental Rights was enforced all across the board. Hence, it was concluded (i.e., pursuant
to Article 6(1)), charter will have similar impact as treaties. Also stated in Article 7 of the Charter of
Fundamental Rights, right to enjoy family and private life shall be given to each person. In our case,
every person should have a right to enjoy private and family life and therefore laura may be able to
claim the benefits under the charter. (only applicable if going outside of EU)

Box 7: Conclusion

We can annalyze from the above-mentioned arguments that France cannot deport laura as she has
certain benefits whcich can be claimed under the EU law.
Direct Effect:
Since European Union (the “EU”) is supranational organization that consists of Twenty-Seven Member
State (the “MS”) along with Seven Institutions who has taken the charge for the creating and
implementation of the Law. The primary and major aim behind them was to develop a common market
as well as all barriers between MS should be removed. Although, it was quite difficult for the 27 MS to
implement the law among all EU MS by Court of Justice European Union (the “CJEU”).

A concept of Direct Effect was introduced in case of Van Genden Loos, for the implementation of Law
which is made by EU and purpose of EU was achieved. The CJEU ordered to domestic courts that they
have to give supremacy to EU law and in case domestic and EU law conflicts, EU law will always prevail
(Van Genden Looss).

Depending upon the above and to ensure EU Law’s full implementation, four sources of EU law needs to
be understood either implemented or not: (i)Treaty Article (i.e, primary source, containing all articles
responsible for governing the laws under EU), (ii) Regulations (i.e., enacted by EU commission and
automatically applies to all MS whenever they are enacted), (iii) Decisions (i.e., precedent set by CJEU)
and (iv) Directives (i.e., enacted by the EU commission but for implementation by each member state,
further legislation required to be surpassed).

As the sources of EU law has been mentioned above, the next concept is that all of the above-
mentioned sources should have Vertical Direct Effect (the “VD”) and Horizontal Direct Effect (the “HD”).
Where, VD is meant as anyone (i.e., an individual) can sue the state using any of the above sources.
Other than this, HD means, anyone (i.e., an individual) can sue the other citizen (i.e., another individual)
using the above-mentioned sources. Thus, for the full implementation of law it is very important to have
VD and HD in each source of EU law. In case of Van Gen den Loos, VD was granted to Treaty Articles and
in case of Sabena Treaty articles were granted HD. In Article 288 TFEU, Regulations were made directly
applicable (i.e., it has both VD as well as HD). Furthermore, in case of Grad, VD and HD was granted to
Decisions.

However, the actual and main issue arose with Directives was that it needs a further domestic law to be
passed. It was made clear in the case of Van Gen Den Loos that Direct Effect is not applicable on such
laws where there is a requirement to pass local law first. In this scenario, Directive cannot be used to sue
the individual as well as state, hence, there was a loophole.

In Our Case……….

Therefore, due to the loophole, direct implementation of directives is not possible. But it can be an issue
if implementation is not done, for this CJEU stated that the directives will have a VD after time limit has
been passed. Furthermore, courts were clear on the fact that HD will not be granted to Directives as
difference between directives and regulations will be blurred.

Based on our case….

Since, there was a loophole for the implementation, three exceptions were created by the CJEU for the
implementation of directives indirectly as HD (i) Wide definition of State either direct or indirect
connection (i.e., HD will fall under VD), (ii) Indirect Horizontal effect (i.e., method of interpretation
applied if similar local law available in history) and (iii) State Liability Concept (i.e., state is liable, due to
wrong or non-implementation of the directives).