European Union law, Amtenbrink & Vedder
Table of Contents
European Union law, Amtenbrink & Vedder.....................................................1
Week 1: Introduction to the EU Internal Market, Prohibition on Collusion
(Cartels)........................................................................................................2
Webcast basic notions 1:.........................................................................15
Webcast basic notions 2:.........................................................................16
Week 2: Abuse of Dominant Position..........................................................17
Blogpost Game Changer: Defining the Relevant Market of Esports
Ecosystems..............................................................................................22
Week 3: State Aid, Positive Integration, and Harmonisation.......................24
Week 4: Introduction to Free Movement Law, Free Movement of Goods, Part
1: Tariff Restrictions....................................................................................38
E-lesson: Pre-test.....................................................................................44
E-lesson: General principles applicable to the free movements..............45
Webcast: Basic notions 3.........................................................................47
Week 5: Free movement of goods Part 2: Non-tariff restrictions................48
Week 6: Free movement of services & Free movement of capital..............58
Week 7: Free movement of persons Part 1: Citizenship and workers.........66
Week 8: Free movement of persons Part 2: Freedom of establishment......77
1
,Week 1: Introduction to the EU Internal Market,
Prohibition on Collusion (Cartels)
The basic principles of competition law in general
The internal market is premised on the existence of undistorted
competition. EU competition law serves a two-fold purpose: to promote
market integration and ensure effective competition.
As regards the objective of market integration, it is worth referring to the
Court of Justice’s judgment in Consten and Grundig, concerning the
prohibition of collusive behavior in what is now Article 101 TFEU:
The Treaty, whose preamble and content aim at abolishing the barriers
between States, and which in several provisions gives evidence of a stern
attitude with regard to their reappearance, could not allow undertakings to
reconstruct such barriers.
A situation in which production is optimally attuned to consumer desires is
referred to as a state of maximum consumer welfare. Consumer welfare is
a yardstick for measuring the effect or outcome of a more or less competitive
process.
Competition can be understood as a process whereby undertakings
constantly seek to produce and sell cheaper and better products than their
immediate rivals. The way in which a market is organized is referred to as
the structure of the market. In order to determine whether a market is
competitive, three groups of variables need to examined:
2
,In order to determine whether competition is being restricted, both the
structure of the market and the conduct of the relevant economic operators
as well as the outcomes of the conduct have to be investigated. Given the
large number of economic and non-economic factors that need to be
weighed up competition law can be a highly complex field.
The EU competition rules apply to undertakings, which are prohibited from
concluding anti-competitive agreements ( Article 101 TFEU), or abusing a
dominant position (Article 102 TFEU).
Article 101 TFEU prohibits anti-competitive collusions between
undertakings. There are four conditions for the application of the prohibition
mentioned in Article 101(1) TFEU:
(1) the actors involved must be qualified as ‘undertakings’,
(2) their conduct must be captured by one of the three forms
mentioned in this paragraph,
(3) their conduct must be collusive in a sense that it is anti-competitive
by object or effect,
(4) the collusive conduct must affect the trade between Member
States.
The starting point is the concept of an undertaking, which the Court of
Justice defined as follows in Höfner and Elser:
It must be observed, in the context of competition law, first that the concept
of an undertaking encompasses every entity engaged in an economic
activity, regardless of the legal status of the entity and the way in which it is
financed and, secondly, that employment procurement is an economic
activity.
The Court of Justice employs a functional definition of the concept of an
undertaking in which the term “economic activity” stands for:
(1)the offering of goods or services on the market and
(2)the activity could at least in principle be carried on by a private
undertaking in order to make profits.
There are two exceptions to the concept of economic activity. Based on the
Court’s own terminology, they can be referred to as:
1) The public powers exception in SAT Fluggesellschaft v. Eurocontrol.
The Court of Justice had to examine whether Eurocontrol’s activities
regarding control and supervision of Europe’s air space constituted an
economic activity. It decided that this was not the case on the grounds
that the control and supervision of air space was “connected with the
exercise of powers which are typically those of a public authority”.
3
, Since Eurocontrol’s activities thus did not constitute an economic
activity, competition law did not apply to them.
2) The exception for solidarity-based activities. In the case Poucet
and Pistre case, the Court of Justice examines the special requirements
that the government imposes on the performance of a particular
activity in order to determine whether it could also be performed under
ordinary market conditions. The case law in this area relates mostly to
social insurance and pension funds. This sector is often subject to
government intervention in order to ensure a certain level of solidarity.
In this context, the Court of Justice employs three criteria:
1. Does the body in question pursue a profit-making or social
objective?
2. What is its level of solidarity?
3. What is the level of government supervision?
Building on the exception for solidarity activities, an entity that procures
goods and services commercially but subsequently offers them to its
customers on a noncommercial basis is also classified as a non-undertaking.
Please note that an entity is not wholly classified as an “undertaking” or
“non-undertaking”; instead, the classification depends on the specific
activity.
Finally, an action or a practice may be caught by Article 101 TFEU only when
it is bilateral or multilateral, not when it is unilateral (within a single
undertaking). For this reason, Article 101(1) TFEU does not apply in the
relationship between an undertaking that is a parent company and an
undertaking that is a subsidiary company where the two are seen to form ‘a
single economic unit’; this is applicable when:
(1)the subsidiary has no real freedom to determine its course of action on
the market and if;
(2)the agreement concerned merely the internal allocation of tasks as
between the undertakings.
Forms of collusion that are prohibited by Article 101(1) TFEU
For the application of Article 101 TFEU there must be some form of collusion.
The collusion between the undertakings can consist of one of the following
forms:
(i) agreements, or
(ii) concerted practices, or
(iii) decisions of associations of undertakings.
(i) An agreement is a faithful expression of the joint intention of the parties
to the agreement with regard to their conduct in the common market. If
there is a concurrence of wills among the parties, there might be an
4
Table of Contents
European Union law, Amtenbrink & Vedder.....................................................1
Week 1: Introduction to the EU Internal Market, Prohibition on Collusion
(Cartels)........................................................................................................2
Webcast basic notions 1:.........................................................................15
Webcast basic notions 2:.........................................................................16
Week 2: Abuse of Dominant Position..........................................................17
Blogpost Game Changer: Defining the Relevant Market of Esports
Ecosystems..............................................................................................22
Week 3: State Aid, Positive Integration, and Harmonisation.......................24
Week 4: Introduction to Free Movement Law, Free Movement of Goods, Part
1: Tariff Restrictions....................................................................................38
E-lesson: Pre-test.....................................................................................44
E-lesson: General principles applicable to the free movements..............45
Webcast: Basic notions 3.........................................................................47
Week 5: Free movement of goods Part 2: Non-tariff restrictions................48
Week 6: Free movement of services & Free movement of capital..............58
Week 7: Free movement of persons Part 1: Citizenship and workers.........66
Week 8: Free movement of persons Part 2: Freedom of establishment......77
1
,Week 1: Introduction to the EU Internal Market,
Prohibition on Collusion (Cartels)
The basic principles of competition law in general
The internal market is premised on the existence of undistorted
competition. EU competition law serves a two-fold purpose: to promote
market integration and ensure effective competition.
As regards the objective of market integration, it is worth referring to the
Court of Justice’s judgment in Consten and Grundig, concerning the
prohibition of collusive behavior in what is now Article 101 TFEU:
The Treaty, whose preamble and content aim at abolishing the barriers
between States, and which in several provisions gives evidence of a stern
attitude with regard to their reappearance, could not allow undertakings to
reconstruct such barriers.
A situation in which production is optimally attuned to consumer desires is
referred to as a state of maximum consumer welfare. Consumer welfare is
a yardstick for measuring the effect or outcome of a more or less competitive
process.
Competition can be understood as a process whereby undertakings
constantly seek to produce and sell cheaper and better products than their
immediate rivals. The way in which a market is organized is referred to as
the structure of the market. In order to determine whether a market is
competitive, three groups of variables need to examined:
2
,In order to determine whether competition is being restricted, both the
structure of the market and the conduct of the relevant economic operators
as well as the outcomes of the conduct have to be investigated. Given the
large number of economic and non-economic factors that need to be
weighed up competition law can be a highly complex field.
The EU competition rules apply to undertakings, which are prohibited from
concluding anti-competitive agreements ( Article 101 TFEU), or abusing a
dominant position (Article 102 TFEU).
Article 101 TFEU prohibits anti-competitive collusions between
undertakings. There are four conditions for the application of the prohibition
mentioned in Article 101(1) TFEU:
(1) the actors involved must be qualified as ‘undertakings’,
(2) their conduct must be captured by one of the three forms
mentioned in this paragraph,
(3) their conduct must be collusive in a sense that it is anti-competitive
by object or effect,
(4) the collusive conduct must affect the trade between Member
States.
The starting point is the concept of an undertaking, which the Court of
Justice defined as follows in Höfner and Elser:
It must be observed, in the context of competition law, first that the concept
of an undertaking encompasses every entity engaged in an economic
activity, regardless of the legal status of the entity and the way in which it is
financed and, secondly, that employment procurement is an economic
activity.
The Court of Justice employs a functional definition of the concept of an
undertaking in which the term “economic activity” stands for:
(1)the offering of goods or services on the market and
(2)the activity could at least in principle be carried on by a private
undertaking in order to make profits.
There are two exceptions to the concept of economic activity. Based on the
Court’s own terminology, they can be referred to as:
1) The public powers exception in SAT Fluggesellschaft v. Eurocontrol.
The Court of Justice had to examine whether Eurocontrol’s activities
regarding control and supervision of Europe’s air space constituted an
economic activity. It decided that this was not the case on the grounds
that the control and supervision of air space was “connected with the
exercise of powers which are typically those of a public authority”.
3
, Since Eurocontrol’s activities thus did not constitute an economic
activity, competition law did not apply to them.
2) The exception for solidarity-based activities. In the case Poucet
and Pistre case, the Court of Justice examines the special requirements
that the government imposes on the performance of a particular
activity in order to determine whether it could also be performed under
ordinary market conditions. The case law in this area relates mostly to
social insurance and pension funds. This sector is often subject to
government intervention in order to ensure a certain level of solidarity.
In this context, the Court of Justice employs three criteria:
1. Does the body in question pursue a profit-making or social
objective?
2. What is its level of solidarity?
3. What is the level of government supervision?
Building on the exception for solidarity activities, an entity that procures
goods and services commercially but subsequently offers them to its
customers on a noncommercial basis is also classified as a non-undertaking.
Please note that an entity is not wholly classified as an “undertaking” or
“non-undertaking”; instead, the classification depends on the specific
activity.
Finally, an action or a practice may be caught by Article 101 TFEU only when
it is bilateral or multilateral, not when it is unilateral (within a single
undertaking). For this reason, Article 101(1) TFEU does not apply in the
relationship between an undertaking that is a parent company and an
undertaking that is a subsidiary company where the two are seen to form ‘a
single economic unit’; this is applicable when:
(1)the subsidiary has no real freedom to determine its course of action on
the market and if;
(2)the agreement concerned merely the internal allocation of tasks as
between the undertakings.
Forms of collusion that are prohibited by Article 101(1) TFEU
For the application of Article 101 TFEU there must be some form of collusion.
The collusion between the undertakings can consist of one of the following
forms:
(i) agreements, or
(ii) concerted practices, or
(iii) decisions of associations of undertakings.
(i) An agreement is a faithful expression of the joint intention of the parties
to the agreement with regard to their conduct in the common market. If
there is a concurrence of wills among the parties, there might be an
4
