Jurisprudence
Week 1
Gebhard
Topic: establishment, services, art. 49 TFEU, mutual recognition
legal services are a form of establishment. Companies, self-employed persons (providing services,
like touristic services, banking services, legal services are establishments.
- Par. 25: participation on a stable and continuous basis in economic life of MS
- Par 25-27: Establishment vs services: continuity and stability vs provision of a service on a
temporary basis
- Par. 37: restrictions on market access are prohibited, art. 49 TFEU
- Par. 35: exceptions on the freedom of services rule of reason
- Services are of temporary character
- Par. 35: However, the taking-up and pursuit of certain self-employed activities may be
conditional on complying with certain provisions laid down by law, regulation or
administrative action justified by the general good, such as rales relating to organization,
qualifications, professional ethics, supervision and liability. Such provisions may stipulate in
particular that pursuit of a particular activity is restricted to holders of a diploma, certificate or
other evidence of formal qualifications, to persons belonging to a professional body or to
persons subject to particular rules or supervision, as the case may be. They may also lay down
the conditions for the use of professional titles, such as avvocato
- Par. 38: Likewise, in applying their national provisions, Member States may not ignore the
knowledge and qualifications already acquired by the person concerned in another Member
State. Consequently, they must take account of the equivalence of diplomas and, if necessary,
proceed to a comparison of the knowledge and qualifications required by their national rules
and those of the person concerned.
Josemans
Topic: services, Treaty exceptions
- par. 42: unlawful activities are excluded from the scope of application, including the sale of
soft drugs
- par. 41: medical reasons? Drugs cross-border
- Par. 50: is the sale of alcoholic/nonalcoholic beverages in the coffee shop, can we see it as
an activity that falls as a activity that falls under the free movement of goods or a free
movement of services? In this one free movement of services.
- Par. 62: only the treaty exceptions are available and should be narrowly interpreted in case of
direct discrimination (freedom of services) art. 51/52 TFEU
Schindler
Topic: free movement of services
- Par. 31/32: even though the morality of lotteries is questionable, it is not for the Court to
substitute its assessment (beoordeling) for that of the legislatures (wetgevers) in the MS where
that activity is practised legally. Lotteries cannot be regarded as activities whose harmful
nature causes them to be prohibited in all the MS and whose position under law may be
likened to that of activities involving illegal products
, Week 2
Eturas UAB
Topic: concerted practice
How an online platform can facilitate unlawful cooperation amongst platform users, even without
direct contact.
Platform operators and administrators should therefore take particular care not to include anti-
competitive restrictions in their terms and conditions to reduce the risk of liability for facilitating
collusion between users – the defence of lack of knowledge would certainly not be available to the
party which initiated the terms.
Competition Authority vs Beef industry Development Society Ltd and Barry Brothers (Carrigimore)
Meats Ltd
Aka: the Irish beef case
Topic: restriction, collusion, appreciable effect, object restriction
Example of unpacking ‘restriction of competition’ in the Irish Beef case
- Horizontal agreement (danger sign) in the Irish beef processing sector
- Overcapacity in the sector
- Agreement is about limiting production for reasons of overcapacity (a ‘restructuring cartel’),
with ‘goers’ compensated by ‘stayers’
- Generally: less supply = higher prices = danger
- Court: object restriction, because ‘limiting production’, even in situation of lowering demand
- (also) therefore: appreciability is a ‘given’
- Thus: an appreciable restriction of competition
Hofner
Topic: economic activity, entity
Art. 101 TFEU: legal entity is engaged in economic activity, regardless of its status and the way its
financed, para 21.
Economic activity is offering goods and services on the market.
It doesn’t matter what the form is. As long as the organisation is engaged in economic activity,
competition law starts to apply.
Bayer
Topic: agreement
Para. 66-69: what an agreement is (concurrence of wills)
STM
When does an agreement have effect on trade between member states? (249)
Direct vs indirect
Actual vs potential
Week 1
Gebhard
Topic: establishment, services, art. 49 TFEU, mutual recognition
legal services are a form of establishment. Companies, self-employed persons (providing services,
like touristic services, banking services, legal services are establishments.
- Par. 25: participation on a stable and continuous basis in economic life of MS
- Par 25-27: Establishment vs services: continuity and stability vs provision of a service on a
temporary basis
- Par. 37: restrictions on market access are prohibited, art. 49 TFEU
- Par. 35: exceptions on the freedom of services rule of reason
- Services are of temporary character
- Par. 35: However, the taking-up and pursuit of certain self-employed activities may be
conditional on complying with certain provisions laid down by law, regulation or
administrative action justified by the general good, such as rales relating to organization,
qualifications, professional ethics, supervision and liability. Such provisions may stipulate in
particular that pursuit of a particular activity is restricted to holders of a diploma, certificate or
other evidence of formal qualifications, to persons belonging to a professional body or to
persons subject to particular rules or supervision, as the case may be. They may also lay down
the conditions for the use of professional titles, such as avvocato
- Par. 38: Likewise, in applying their national provisions, Member States may not ignore the
knowledge and qualifications already acquired by the person concerned in another Member
State. Consequently, they must take account of the equivalence of diplomas and, if necessary,
proceed to a comparison of the knowledge and qualifications required by their national rules
and those of the person concerned.
Josemans
Topic: services, Treaty exceptions
- par. 42: unlawful activities are excluded from the scope of application, including the sale of
soft drugs
- par. 41: medical reasons? Drugs cross-border
- Par. 50: is the sale of alcoholic/nonalcoholic beverages in the coffee shop, can we see it as
an activity that falls as a activity that falls under the free movement of goods or a free
movement of services? In this one free movement of services.
- Par. 62: only the treaty exceptions are available and should be narrowly interpreted in case of
direct discrimination (freedom of services) art. 51/52 TFEU
Schindler
Topic: free movement of services
- Par. 31/32: even though the morality of lotteries is questionable, it is not for the Court to
substitute its assessment (beoordeling) for that of the legislatures (wetgevers) in the MS where
that activity is practised legally. Lotteries cannot be regarded as activities whose harmful
nature causes them to be prohibited in all the MS and whose position under law may be
likened to that of activities involving illegal products
, Week 2
Eturas UAB
Topic: concerted practice
How an online platform can facilitate unlawful cooperation amongst platform users, even without
direct contact.
Platform operators and administrators should therefore take particular care not to include anti-
competitive restrictions in their terms and conditions to reduce the risk of liability for facilitating
collusion between users – the defence of lack of knowledge would certainly not be available to the
party which initiated the terms.
Competition Authority vs Beef industry Development Society Ltd and Barry Brothers (Carrigimore)
Meats Ltd
Aka: the Irish beef case
Topic: restriction, collusion, appreciable effect, object restriction
Example of unpacking ‘restriction of competition’ in the Irish Beef case
- Horizontal agreement (danger sign) in the Irish beef processing sector
- Overcapacity in the sector
- Agreement is about limiting production for reasons of overcapacity (a ‘restructuring cartel’),
with ‘goers’ compensated by ‘stayers’
- Generally: less supply = higher prices = danger
- Court: object restriction, because ‘limiting production’, even in situation of lowering demand
- (also) therefore: appreciability is a ‘given’
- Thus: an appreciable restriction of competition
Hofner
Topic: economic activity, entity
Art. 101 TFEU: legal entity is engaged in economic activity, regardless of its status and the way its
financed, para 21.
Economic activity is offering goods and services on the market.
It doesn’t matter what the form is. As long as the organisation is engaged in economic activity,
competition law starts to apply.
Bayer
Topic: agreement
Para. 66-69: what an agreement is (concurrence of wills)
STM
When does an agreement have effect on trade between member states? (249)
Direct vs indirect
Actual vs potential
