Week 1
How to answer a question?
I: Issue
R: Rule
A: Apply
C: Conclusion
Free Movement of Services and Establishment
Establishment = Participation on a stable and continuous basis in the economic life of a Member State
(Gebhard, §25)
Service = Providing service on a temporary basis for remuneration (art. 57 TFEU)
1. Is EU law applicable?
a. Is it a Member State?
b. Is there a cross-border element?
c. Is there an economic activity?
*Unlawful activities are excluded from the scope of application (Joseman, §42)
2. What legislation is applicable? Explain the terms.
a. Article 49 TFEU = Establishment = Participation on a stable and continuous basis in the economic
life of a Member State (Gebhard, §25)
i. Free market access
ii. Prohibition on discrimination
b. Article 56 TFEU = Service = Providing service on a temporary basis for remuneration (art. 57 TFEU)
i. Free market access
ii. Prohibition on discrimination
c. Directive 2006/123 DOESN’T APPLY TO CASES SET IN 2(2)
i. Art. 14 SD/16(2) SD: Black list. These are prohibited and cannot be justified
ii. Art. 15 SD/16(1) SD: Grey list. These are prohibited, but could be justified (under 15(3))
3. What type of restriction is it?
a. Direct discrimination: One person is treated less favorably than another on grounds of nationality
b. Indirect discrimination: An apparently neutral provision, criterion or practice would put persons
of a certain nationality at a particular disadvantage compared with other persons
4. Are there justifications?
a. Treaty justification (can justify any type of discrimination)
i. Art. 52 TFEU: public policy, public security, public health
ii. Directive 2006/123 art. 15(3)/16(1): non-discriminatory, appropriate, proportionate
PAY ATTENTION: CHECK APPROPRIATENESS AND PROPORTIONALITY
b. Rule of reason (can only justify indirect discrimination) (Gebhard, §37)
i. Non-discriminatory, general interest, appropriate, proportionate
, Week 2
Competition law
1. Is EU law applicable?
a. Is it a Member State?
b. Is there a cross-border element?
c. Is there an economic activity?
*Unlawful activities are excluded from the scope of application (Joseman, §42)
2. Are there undertakings involved?
- Undertaking: Every entity engaged in an economic activity (Hofner)
- Economic activity: Offering goods and services on the market (Ambulanz Glockner)
3. Is there collusion between those undertakings?
a. Agreement: There must be a concurrence of wills between the parties (Bayer); a written
agreement is not required (T-Mobile)
b. Concerted practice: Coordination between undertakings which, without having reached the
stages where an agreement, has been determined that they intentionally trade off the risk of
competition for practical collaboration. (Dyestuffs)
c. Decision of an association of undertakings: Common conduct adopted by members of an
association
4. Does this collusion have an appreciable effect on competition?
a. Restriction by object: By its very nature is harmful to the proper functioning of normal
competition (art. 101(1) TFEU; price fixing, market sharing agreements)
i. They are presumed anti-competitive
b. Restriction by effect: Look at the conditions in which the agreement was made and the
market (market positions, entry barriers, level of trade etc.)
i. De minimis notice The notice will be applied when:
1. Horizontal agreement: market shares together doesn’t exceed 10%
2. Vertical agreement: market shares together doesn’t exceed 15%
5. Does this collusion have an appreciable effect on trade between Member States?
- Pattern of trade test (Consten):
i. Sufficient degree of probability on the basis of a set of objective factors of law or fact
ii. An influence on the pattern of trade between Member States
iii. A direct or indirect, actual or potential influence on the pattern of trade
6. Can the collusion be exempted?
a. Block exemption: Is the agreement covered by one of the block exemption regulations?
i. Check if the exclusion criteria apply and if the market share or turnover thresholds
are exceeded.
b. Individual exemption: If a block exemption is not applicable, a collusion may still be justified
under art. 101(3). For an agreement to be exempted four cumulative criteria need to be
fulfilled:
i. The agreement must lead to an improvement in the production or distribution of
goods or the promotion of technical or economic progress
ii. It must allow consumers a fair share of the resulting benefit
iii. The restrictions contained in the agreement must not be indispensable
iv. The agreement does not afford the parties the possibility to eliminate competition
Week 3
How to answer a question?
I: Issue
R: Rule
A: Apply
C: Conclusion
Free Movement of Services and Establishment
Establishment = Participation on a stable and continuous basis in the economic life of a Member State
(Gebhard, §25)
Service = Providing service on a temporary basis for remuneration (art. 57 TFEU)
1. Is EU law applicable?
a. Is it a Member State?
b. Is there a cross-border element?
c. Is there an economic activity?
*Unlawful activities are excluded from the scope of application (Joseman, §42)
2. What legislation is applicable? Explain the terms.
a. Article 49 TFEU = Establishment = Participation on a stable and continuous basis in the economic
life of a Member State (Gebhard, §25)
i. Free market access
ii. Prohibition on discrimination
b. Article 56 TFEU = Service = Providing service on a temporary basis for remuneration (art. 57 TFEU)
i. Free market access
ii. Prohibition on discrimination
c. Directive 2006/123 DOESN’T APPLY TO CASES SET IN 2(2)
i. Art. 14 SD/16(2) SD: Black list. These are prohibited and cannot be justified
ii. Art. 15 SD/16(1) SD: Grey list. These are prohibited, but could be justified (under 15(3))
3. What type of restriction is it?
a. Direct discrimination: One person is treated less favorably than another on grounds of nationality
b. Indirect discrimination: An apparently neutral provision, criterion or practice would put persons
of a certain nationality at a particular disadvantage compared with other persons
4. Are there justifications?
a. Treaty justification (can justify any type of discrimination)
i. Art. 52 TFEU: public policy, public security, public health
ii. Directive 2006/123 art. 15(3)/16(1): non-discriminatory, appropriate, proportionate
PAY ATTENTION: CHECK APPROPRIATENESS AND PROPORTIONALITY
b. Rule of reason (can only justify indirect discrimination) (Gebhard, §37)
i. Non-discriminatory, general interest, appropriate, proportionate
, Week 2
Competition law
1. Is EU law applicable?
a. Is it a Member State?
b. Is there a cross-border element?
c. Is there an economic activity?
*Unlawful activities are excluded from the scope of application (Joseman, §42)
2. Are there undertakings involved?
- Undertaking: Every entity engaged in an economic activity (Hofner)
- Economic activity: Offering goods and services on the market (Ambulanz Glockner)
3. Is there collusion between those undertakings?
a. Agreement: There must be a concurrence of wills between the parties (Bayer); a written
agreement is not required (T-Mobile)
b. Concerted practice: Coordination between undertakings which, without having reached the
stages where an agreement, has been determined that they intentionally trade off the risk of
competition for practical collaboration. (Dyestuffs)
c. Decision of an association of undertakings: Common conduct adopted by members of an
association
4. Does this collusion have an appreciable effect on competition?
a. Restriction by object: By its very nature is harmful to the proper functioning of normal
competition (art. 101(1) TFEU; price fixing, market sharing agreements)
i. They are presumed anti-competitive
b. Restriction by effect: Look at the conditions in which the agreement was made and the
market (market positions, entry barriers, level of trade etc.)
i. De minimis notice The notice will be applied when:
1. Horizontal agreement: market shares together doesn’t exceed 10%
2. Vertical agreement: market shares together doesn’t exceed 15%
5. Does this collusion have an appreciable effect on trade between Member States?
- Pattern of trade test (Consten):
i. Sufficient degree of probability on the basis of a set of objective factors of law or fact
ii. An influence on the pattern of trade between Member States
iii. A direct or indirect, actual or potential influence on the pattern of trade
6. Can the collusion be exempted?
a. Block exemption: Is the agreement covered by one of the block exemption regulations?
i. Check if the exclusion criteria apply and if the market share or turnover thresholds
are exceeded.
b. Individual exemption: If a block exemption is not applicable, a collusion may still be justified
under art. 101(3). For an agreement to be exempted four cumulative criteria need to be
fulfilled:
i. The agreement must lead to an improvement in the production or distribution of
goods or the promotion of technical or economic progress
ii. It must allow consumers a fair share of the resulting benefit
iii. The restrictions contained in the agreement must not be indispensable
iv. The agreement does not afford the parties the possibility to eliminate competition
Week 3
