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EC Law


undefined, object
copy deck
Buy Irish case
publicity campaign was a MEE under article 28 (30).
Preliminary References
treaties, institutions, statutes of bodies estblished by act of council. MS may ask for one at any time, if no judicial remedy under national law -> court shall bring to ECJ
Conditions for right of reparation
Factortame III: Rule infringed confers rights on individuals, breach is sufficiently serious, direct causal link between breach/damage
Marshall II
Upper limit on compensation ok, interest essential, adequate compensation when made good in accordance with national rules.
Members of the European Coal and Steel Community
France, West Germany, Belgium, Italy, Luxembourg, The Netherlands
Treaty of Paris (1951)
Founded the European Coal and Steel Community
Treaties of Rome
Formed the EEC and EURATOM
Signatories of the Treaties of Rome
France, West Germany, Italy, Belgium, Luxembourg, the Netherlands
European Communities
European Economic Community, EURATOM, European Coal and Steel Community- "The Six" = France, Belgium, Italy, West Germany, The Netherlands, Luxembourg
European Free Trade Association, 1960
"Outer Seven"- UK, Sweden, Denmark, Norway, Austria, Portugal, Switzerland
free trade area
no internal barriers, no common external tariff
customs union
no internal barriers, common external tariff
common market
no internal barriers, common external tariff, free movement of capital, services, goods, persons
economic and monetary union
n ointernal barriers, common external tariff, free movement of capital, services, goods, persons, coordinated macroeconomic policy (esp monetary policy- interest rates), single currency or equivalent
First Accession
1973 = The Nine: (France, Germany, Italy, Belgium, The Netherlands, Luxembourg) plus UK, Denmark, Ireland
Second Accession
1981= The Ten: (France, Germany, Italy, Belgium, The Netherlands, Luxembourg, UK, Denmark, Ireland) and Greece
Third Accession
1986 = The Twelve: (France, Germany, Italy, Belgium, Netherlands, Luxembourg, Uk, Denmark, Ireland, Greece) plus Spain, Portugal
Fourth Accession
1995 = The Fifteen: (France, Germany, Italy, Belgium, Netherlands, Luxembourg, UK, Denmark, Ireland, Greece, Spain, Portugal) Austria, Sweden, Finland
Fifth Accession
2004 = The 25: Poland, Czech Republic, Hungary, Slovak Republic, Estonia, Latvia, Lithuania, Slovenia, Cyprus Malta
Sixth Accession
2007 = The 27: Bulgaria, Romania
Merger Treaty
1965 = created European CommunitiES, combined institutions of European Coal and Steel Community, European Economic Community and EURATOM
Treaty on European Union
1993, the one with the pillars and the titles
Institutions of the European Communities listed in Art 7
5: Council of Ministers, Commission of the European Communities, European Parliament, European Court of Justice, Court of Auditors
Additional Institution of the EC created by Art 13 of the Lisbon Treaty
European Council
Primary responsibilities of the European Commission
initiating legislation, upholding/implementing treaties
Pillars of the European Union
European Community, Common Foreign and Security Policy, Police and Judicial Cooperation in Criminal Matters
Are Commissioners beholden to their MS?
commissioners are to be INDEPENDENT and act in the interest of the EU, despite their citizenship
How are Commissioners chosen?
appointed by member state in accord with the Pres of the Commission, approved by European Parliament by QMV
How is the Commission President chosen?
Art 214 of the TEU as amended by Treaty of Nice: Council vote by QMV to nominate, approved or vetoed by Parliament
Who determines a Commissioners portfolio?
The Pres of the Commission
Council of the EU
NOT European council- this is made up of foreign ministers and represents MS interests. Adopts or amends Commission proposals
subset of Council of EU
Qualified Majority
245/355 votes,(weighted by big vs. small MS), 91 votes as blocking majority
Qualified Majority under Treaty of Lisbon
Double majority: Number of states (at least 15), and 65% of EU population. At least 4 MS to block
Composition of the European Council
56: Heads of State/Gvt of each MS, Foreign Minsters, Pres Commission, Another Commissioner
Composition of the European Council Post-Lisbon
Heads of Gvt, Pres, Pres CEC, High Rep
Primary Responsabilities of the European Council
At least 2 annual meetings, Isssues guidelines for the policies of the EU
How are Members of the Euro Parliament chosen?
Directly elected within MS
Primary responsabilites of the European Parliament
approve new accessions, all legislation submitted under ordinary procedure
directly applicable
within the legal system of the EU, without need for incorporation by the MS
Re-enactment of directly applicable regulation is impermissible. MS have obligation not to interfere with ECJ jurisdiction, not to conceal Community nature of law.
generally application and is binding in its entirety and directly applicable in all MS
types of EC Legislation
regulations, directives, decisions, recommendations, opinions
can be adressed to less than all MS, binding as to results, MS can decide methods
penalty for failing to or improperly implementing directive
fines by the community of private actions for damagees
addressed to individuals or companies/undertakings, binding only on that individual or undertaking. Not sure about direct applicability.
no binding force, subject to judicial review
Most important legislative preocedure
Art 251 co-decision
Basic consultation procedure
Cmmn proposes, council sends to EP, EP gives opinion, Cmmn may or may not adopt amendments, to COREPER, then to full Council if not agreed at COREPER level
Codecision procedure/negative assent
Art. 189b/Art 251 EC. 3 Reading Procedure.
1st reading of Codecision Procedure
Cmmn proposes measure, Council sends to EP, EP opines, Cmmn may or may not adopt EP's opinion, COREPER/Full council if not agreed at COREPER.If Council of MInisters has OM to adopt (with EP amendments) = adopted.If Council of Ministers cannot adopt by QM, it "adopts a common position"- states the version it can pass.
2nd reading of Codecision Procedure
Common position sent to EP. EP approves or waits 3/4 months-> adopted. Ep rejects by absolute majority -> defeated. EP can suggest amends. If adopted, goes to Council, CEC opines. If CM accepts all amends by QM -> adopted. If CEC's opinion negative, unanimity required in CM. If this doesn't work out, concilation committee
3rd reading of Codecision proceudre
Concilaition committee comes up with joint text, must be approved by CM and EP within 6-8 weeks or not adopted.
giving reasons requirement
Art 253 EC (ex 190) requires regulations, directives and decisions state the reasons on which they are based and shall efer to any proposals or opinions which were required to be obtained under the treaty.
Conditions of Legality
Legal Basis, Source, within the limits of powers cnoferred by treaty
Maastricht treaty- areas outside exclusive competence of EU, EU shall take action in compliance with principles of subsidiarity. IE- actions should be handled at the smallest level capable of handling them - EU handles only stuff that can be handled better at EU level. No one knows what this means.
Key Components of Economic and Monetary Union
Integrated Community money system, Institutional Structure (European Central Bank), The Euro
Treaty Outlining the 3 stages of Economic and Monetary Union
Maastrict Treaty (1992) - entered into force 1 November 1993.
Countries with opt-outs to EMU
UK and Denmark
Stage 1 of EMU
1990: Creation of Exchange Rate Mechanism, free movement of capital
Stage 2 of EMU
Establish European Monetary Institute, INdependence of national central banks, prohibition of monetary financing of budget deficits by central banks, forbidding of priviliged access to financial instituions for State, coordination of macroeconomic policy/surveillance of MS budgets
Stage 3 of EMU
single currency, EMI -> ECB sets monetary policy, fixing of conversion rates
First Wave participants in EMU
1999: Austria, Belgium, Finland, France, Germany, Holland, Ireland, Italy, Luxembourg, Protugal, Spain
Treaty setting out convergence critera
Treaty on European Union (no mention of stage 1- it had already happened)
end of national currency
July 1, 2002
Convergence Criteria (EMU)
Price stability, public finance discipline, interest rate convergence, exchange rate stability. When meet, obligated to join EMU unless opt-out
Costa v. ENEL
EC law holds over subsequent contrary MS law. EC law is "integral part of legal systems of MS" courts are bound to apply it. Stems from MS transfer of powers from State to EC in treaty. Cannot be overridden w/o depriving EC law of its character as community law.
Simmenthal (No. 2)
Every national court must set aside any provision which may conflict with EC Law, whether prior or subsequent to the community rule. (Not just highest court). Reserving authority to rule (say, oh we have to wait for the Supremes to invalidate before we can uphold EC Law) is not allowed, national court is obligated to refuse any conflicting national law.
Merchant Seaman
You have to remove/amend your contrary national legislation to comply with EC Law
CEC v. Finland
When Community adopts common policy envisaged by treaty, MS no longer have power to make deals with 3rd countries affecting the common rules. Even absent contradiction with the rules.
Effect of "Direct Effect" Rules
individuals are granted rights which must be enforced by national courts
Preconditions for Direct Effect
Legally effective from national courts POV (applicable or directly applicable in MS legal system), provision must confer rights on individuals
Direct Effect: question of community or national law?
community law
Van Gend en Loos
individuals may assert claims against their MS in their national courts, and MS courts have obligation to upholld community law over national. Application of national remedies (as the treaty is silent on community remedies)
Two Pillars of the Community Legal Order
supremecy/primacy and direct effect
Criteria for Direct Effect
sufficiently precise (clear and unambiguous), unconditional, operation not dependent on further action being taken by community or national authorities
Reyners v. Belgium
Art 43 (ex 52) held directly effective in principle even without implementing legislation- strength of non-discrimination principle.
Partial direct effect- "direct and overt" discrimination has DE, "indirect and disguised" insufficiently precise to have DE
Do regulations have direct effect?
Regulations are Directly Applicable under art 249 (ex 189), but there are more requirements for direct effect- created rights must be enforceable by indviduals.
Do Decisions have direct effect?
Grad v. Finanzamt- council decision addressed to MS has direct effect.
Van Duyn
Directives can have DE. Incompatible with binding nature, useful effect weakened. Room for argument if this is not the case.
PUbblico Ministero v. Ratti
After implementation date, directives can be pleaded against the state even w/o implementation.
After implementation date, directives can be pleaded against the state even w/improper implementation.
Vertical Direct Effect
an individual enforcing community law against the MS
Horizontal Direct Effect
individual enforcing community law against another (private litigation)
Do Treaty Articles have horizontal direct effect?
Yes- Defrenne.
Do regulations have horizontal direct effect?
Yes - Defrenne.
Do directives have horizontal direct effect?
No- Marshall I and Faccini Dori. However, the court is willing to take a wide view of who is a "member state" (high level of gvt involvement in European economies)
Who is the state for purposed of direct effect?
State is bodies which were subject to the authority and control of the state AND had special powers beyond those which result from the normal rules applicable between individuals.
4 elements to be the state
1) provide a public service 2) pursuant to measure adopted by state 3) under control of state 4) possess special powers beyond those normally applicable in relations between individuals
In asserting direct effect of a community directive, must the state entity sought to be enfoced be the one with responsability for implementing the directive?
Von Colson and Kamann
National courts are obliged to implement directives and take necessary steps to ensure treaty obligations are met. If MS chooses to compensate by compensation awards, compensation must be effective and have a deterrent effect.
Indirect Effect
Even absent national legislature implementation, courts are obligated to follow directive in interpreting national law.
Officier van Justitite v. Kolpinghuis Nijmegen
Prosecutor may not rely on unimplemented directive to bolster case (indirect effect). Indirect effect is limited by "general principles of Community Law" like legal certainty and non-retroactivity. Unimplemented directive alone cannot determine or aggravate criminal liability.
Courst of MS have obligation to interpret national law as consistent with unimplemented directives to the extent possible. An individual's noncompliance with an unimplemented EU directive is not grounds for suit.
incidental effect
While an individual cannot be sued for failure to comply with an EU directive, the state's failure to comply can be an incidental factor in a suit against an individual.
CIA Security
P may not sue D under unimplemented directive. However, within P/D's suit, Belgian law that fails to implement may be invalidated despite similar effect.
Another spin for indirect effect
try to fit it into "interpreting national law" consistent with directive.
Francovich et al v. Italy
Right to damages even though directive lacked direct effect (insufficiently precise an unconditional). [directive guaranteed wages for EEs of insolvent companies]. Right for damages against ITALY not insolvent company.
Elements of Member State Liability
Francovich: Directive must grant rights to inviduals, content of rights must be identifiable based on provisions of directive, causal link between breach of MS obligation and loss and damage suffered by injured parties
Criteria which national procedural/remedial law must satisfy
Comet: rule of nondiscrimination, rule of adequacy
Statutes of limits
Comet: reasonable statutes of limits do not make it impossible to protect rights, Emmott: statute of limits cannot begin to run until implementation of directive, Johnson(2) and Steenhorst- retroactivity reasonably limited to 1 yr.
Can individuals seek preliminary reference?
Is the relationship between national and ECJ an appellate relationship?
No. It is an inquiry within the scope of initially deciding a case.
Preliminary references of Pillar 3 (Justice and Home Affairs)
PR only from courts from which there is no judicial remedy in national law
Preliminary references of pillar 3 (PJCC)
PR only if MS agrees.
Issues which can be referred by preliminary references
interpretations of th treaty, DE, regulations, decisions, etc, reccommendations and opinions, some agreements between EC & non-MS, national law where based on or incorporates EC
Why might the ECJ decline a PR?
contrivance, not a "court" (issue of EC law, an arbitrator is not a court)
Why might a national court decline to make a PR?
question of EC law is irrelevant to decision, ECJ has already interpreted the community provision in issue, or "so obvious as to leave no scope for any reasonable doubt."
Act Clair qualifications
national court is convinced answer would be equally obvious to court in another MS and ECJ, must compare language versions, must consider legal concepts and technology differ between EC law and national law
Judicial review of acts
MS, Community institutions, "natural & legal persons" - reviewable "acts" are those having binding legal effect producing a change in rights and obligations.
Privileged applicants to challenge acts
Semi-privileged applicants to challenge acts
ECB and CA
non-privileged applicants to challenge an act
private parties
Private Party standing
only if of direct and individual concern to the person asserting standing
individual concern only if decision affects them by reason of certain attricbutes which are peulair to them or by reason of circumstnaces in which they are differentiated from all other persons"
open category of persons
An open category of persons affected exists when membership is not fixed at time the measure is effective.
Will members of an open category usually be individually concerned?
Usually they will lack standing, no, will not be individually concerned.
Direct Concern
causation issue. if MS implements EC decision and exercises discretion, it was the national decision causing the harm, not the EC decision.
Grounds of Review in Art 230 (ex 173)
lack of competence, infringement of an essential procedural requirement, infringement of this treaty or any rule of law relating to its application, misuse of powers.
Failure to Act
reviewable under art 232, but institution must be given 2 months to "define its positin"
Requirements for a Damage Action against the EC
Legislative action involving economic policy, no non-contractual liability unless sufficiently flagrant violation of a superior rule of law, for the protection of the individual.
Superior Rule of Law
Treaty provisions, hierarchically superior regulations (more general than the one under challenge), general principles of community law (proportionality, legal certainty, legitimate expectations)
flagrant violation or serious breach for damage action against the EC
mere breach not sufficient, intent not necessarily essential
rule of law for the protection of the individual (for purposes of damage actions against the EC)
purpose of violated rule must be to benefit individuals, generality of interest does not prevent, no "individual concern" under 230 does not prevent standing
"Four Freedoms"
Free movement among MS of goods, persons, services, and capital
cornerstones of 4 freedoms
nondiscrimination on basis of nationality, market access (rules hindering or preventing market access may be unlawful even if nondiscriminatory), centralized harmonized rules level the playing field, competition rules prevent private restrictions from replacing MS restrictions and re-partitioning national markets
prohibitions of customs duties
Art 23 (ex 9): no customs duties between MS, none on imports and exports and no CEEs (Charges having equivalent effect)
any charge which by altering the price of goods exported has same restrictive effect on free circulation as a duty.
Italian Art Case
no distinction based on purpose of duties/charges in prohibition on customs duties
prohibition on customs duties not dependent of distination of proceeds or motive of legislators - whenever obstacel to free movement of goods arises from a $ charge by reason of crossing a border
Statistical Levy case
Charge having equivalent effect = any pencuniary charge, however small and whatever its designation, which is imposed unilaterally on domestic or foreign goods by reason of fact that they cross a frotnier, and which is not a customs duty in the strict sense, even if it is not imposed for the benefit of the state, is not dicriminatory or protective in effect and if the product on which the charge is imposed is not in competition with any domestic product.
CEEs- textual or purposive interpretation
purposive. ECJ looks to see effect on ecnomic integration
Fees for Services conferring a benefit
exception for CEEs, very rare in practice. Charge is not a duty if: the trader received a specific, indentifiable benefit in return for sum paid, the sum paid was proportionate to the benefit.
rejected argument that charge to inspect raw cowhides was per hide, not by value so it could not be a CEE. Fee may have been proportionate, but was not rendered as service to trader, but as public health service, which should be borne by general public.
Ford Espana v. Spain
Spain sought to impose .165% charge on value of cars. The flat rate charge based on value of goods, not cost of services, makes it flunk proportionality --> this is a CEE.
Fees for benefits roundup
Fee for services IMPOSED on trader = CEE, fee for service REQUESTED will escape Art 25. Unlikely to be satisfied in absence of genuine negotiation about service.
Fees for Services Required by Law
where charges are mandated by Community Law, they are not CEEs. National law --> probably CEEs
CEC v. Germany (fees for animal inspections)
Not CEEs if: relate to internal dues system applied equally to domestic and imported animals alike, payment for service rendered to operator proportionate to the service, if charged to carry out obligations imposed by EC law subject to conditions.
Article 90: Internal Taxation
prohibition on discriminatory internal taxation
facially neutral tax with effect to discriminate against imported cars is a CEE.
Chemial Pharmaceuti
justifications for potential CEEs related to national policy chioces (encourage alcohol produced from agricultural products) implemented through fiscal measures are not prohibited.
Objective justification for potential CEEs?
If an objective justification unrelated to nationality exists for measures which only indirectly discriminate, they may be upheld.
Art 90 (1)
art 90(1) prohibits internal taxes levied at rates higher than levied on similar domestic products.
CEC v. France
similar or comparable use = similar products
Art 90(2)
whether there is a protectice effect or nature to the measure.
Johnny Walker case
fruit liqueur similar to whiskey? Objective characteristics (manufacture, alcohol content), Fulfill consumer needs the same way? (Both diluted for consumption) --> found not similar -> origin neutral -> did not serve to protect competing domestic products.
CEC v. Denmark (wine)
wine from grapes and wine from other fruit are "similar". Derived from agri produce, same process of production, same alcohol content, fulfilled consumer needs the same way.
Art 25 or Art 90?
general system of internal tax = 90, imported = 25.
quantitative restriction (on imports) barred by Art. 28. usually a quota, but includes total ban (Henn & Darby - ban on porn)
measure having equivalent effect. Dassonville: All trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade
Free Movement of Goods Analysis
Is it a QR? Is it an MEE? if no, not prohibited by Art 28. If yes, prohibited unless justified. No de minimis rule.
distinctly applicable
measures directly discrimination against imports are distinctly applicable
indistinctly applicable
marketing of products which deal with shape, size, weight, composition, presentation, identification, or putting up and which are equally applicable to domestic and imported products.
Hinderances to trade (Ireland cases)
meeting local standards in excess or addition to international standards = MEE (Ireland pipe case), but souvenirs made outside ireland labelling ok (Irish Souvenirs)
Marks of Origin Case
applied to both domestic/imported goods -> effect to increase cost of marketing in other MS and allow buyers to assert prejudicess against foreign goods. Consumer protection justification fails since producers can voluntarily designate origin, and prohibition of false statements of origin is enough to prevent misleading consumers.
Apple and Pear case
promotional campaign which merely discussed attractive aspects of nationally produced fruits did not constitute a MEE
Postage Machines case
An administrative measure with conssitency and generality can be a MEE
Looted Lorries case
France's failure to stop the lorry looting (authorities watched and took no steps to prevent) on the border = hinderance to free movement of goods
Brenner Pass
Austrian trade demonstration. Whether or not issuance of protest permit constitutes MEE, this measure was objectively justified. Limited in time, controlled, and denial would have interfered with free expression.
Openbaar Ministerie v. Van Tiggele
fixed minimum retail prices are a MEE (even though applied equally to foreign and domestic)
maximum prices making it impossible to sell imported sugar except at a loss made importing more difficult and infringed = MEE
Article 28/30 Analysis
1.) Is it a QR or MEE? 2.) If som is it distinctly applicable or indistinctly applicable? 3. If distinctly applicable- prohibited except justified for public morality, public policy, public security, protection of healh and life of humans, animals or plants, protetion of national treasures, protection of industrial/commercial property 4. If indistinctly applicable determine whether caught by "Rule of Reason" ---> Casis de Dijon mandatory requirements analysis
Exceptions to Art 30 (ex 36) justifications for a QR/MEE
may not constitute a means of arbitrary discrimination or disguised restriction on trade between Member States
Rules relating to product requirements (size, shape, color) tend to be illegal, while rules pertaining to selling arrangements (opening hours) probably will not.
Keck proviso
national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly actually or potentially, trade between MS
Austrian crossword puzzle case
crossword puzzle prizes infringes Austrian law. THough directed against a type of sales promotion, bears on content of product (magazine) = not selling arrangement. Importer must alter content for sale in Austrai = hinder trade.
Swedish alcohol ban
prohibition of all ads tend to impede access to market by foreign products less well known within MS. Therefor caught by Art 28.
Free Movement of People/Services (subsets)
"Workers" - Art 39-42, "Right of Establishment" Art 43-48, "Services" Art 49-55
wage/salary earners. Anyone pursuing or wishing to pursue genuine and effective employment. Art 29 has direct effect. Angonese- vertically and horizontally directly effective.
typical obstacels to free movement of workers/free establishment/services
nationality restrictions, other unjustifiable restrictions which can be abolished in their entirety, restrictions which cannot be abolished, but whose adverse effects can be removed by harmonization
parasitic rights
right of 3rd party national derived from EU citizen relative
right of entry
"migrant workers' may move freely throughout MS in order to: accept offers of employment, stay in MS for purposes of employment and after, right to be issued ID card/passport, right to leave national territory and enter another by producing ID, right to look for employment (min 3 mo)
Right of Residence
Once working in another MS: entitled to reside in territory, residence permit for 5 years and automatically renewable, right to remain after employ (retirement). May be required to show resources such as not to burden social assistance
Equal Treatment
Art 10 and 48(2). Any rule making finding work for non-nationals more difficult is prima facie a violation of EC law. APplies to indrect and direct discrimination. Exceptions include language reqs where objectively justified.
Citizens Rights Directive
Longer in MS more rights. 3 categories.
Category 1 of CRD (lowest level)
Under 3 mos- right of residence without regard to ecoenomic activity or reqs to show resources. no rights to student r social assistance.
category 2 of CRD
Up to 5 years- right of residence, but only if gainfully employed/self employed. If not economically active, must show resources or be students with insurance or be family members accompanying EU citizen who satisfies the conditions. No student aid to persons other than workers/self employed and families.
Category 3 of CRD
Over 5 years: right of permanent residence, need not show worker/self employed etc. In effect, national.
Art 39 covers job seekers. Can be limited in time "reasonable" and cannot claim entitlement to all benefits.
must treat job seakers as nationals if "genuinely linked" to emt market of that state
National Measure exhibiting refusal of entry/expulsion in free movement of services/workers/establishment
breach of treaty art 39, 43, 39. Saved only by Express derogations and proportionality.
national measure exhibiting direct discrimination in fmw
breach of treaty saved only be express derogations and proportionality
national measure demonstrating indirect discrimination in fmw
breach of treaty unless justified by public interets requirement or express derogations and proportionality
measure preventing of substaintially hindering market access in fmv
breach of treaty unles justified by public interest requirement or express derogation + proportionality
public service exception to indirect discrimination prohibition in regards to fmv
employment requiring exercise of public law powers and safeguarding general interests of state
Freedom of Establishment and Services
Art 52- restrictions on freedom of establishment abolished 59- restrictions on freedom to provide services art 59. Art 60- person providing services may do so temporarily in another MS w/o establishment under same conditions as nationals
Thieffrey completed all qualifications to be French lawyer, except he had a Belgian diploma. Requirement for french diploma struck down
French protection for victims of crime denied b/c UK citizen. ECJ says protection from harm is natural corollary to freedom of travel and movement.
partial equivalence available
General system of recognition of professional qualifications
Subject to the same conditions as nationasl, but recognition of qualifications can be subject to "compensatory measures" tests or adaptation period
System of automatic recognition of qualifications attested by professional experience
Listed activities attested to automatically mutually recognized in full.
System of automatic recognition of qualifications for specific professions
Combines unqualified mtutal recognition with partial harmonization of training requirements for doctors, nurses etc
Lawyers and Establishment
recognition of diplomas with possibility of aptitutde test/adaptation period. Practice under original professional title. 3 years under home state title can seek admission in host state and practice under both w/o test or adapt period
Art 81(1)
Agreements between undertakings that affect trade between Member States (with effects prevention restriction or distortion of competition in common market) incompatible with common market.
Particular competition distortion problems in Art 81(1)
price fixing, limiting/controlling production, share markets or sources of supply, price/condition discrimination, tying/bundling.
consequences of anticompetative agreements/decisions
void under 81(2)
exceptions to voiding of anticompetative agreement/decision
those that improve production/distribution of goods, promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit and which does not impose restrictions on the undertakings which are not "indispensable", affording the undertakings the possibility of eliminating competition
How to determine if a practice is caught by Art 81(1)?
Pro/con of competative effects weighed under 81(3), not against each other.
Art 82
prohibits the abusive exploitation of a dominant position within the common market. No exemptions.
dominant position
fact dependent, but 40-50% is presumed dominant but rebuttable.
Components of dominant position
Product market, geographic market. Regulator seeks to narrow the market to show increased dominance, defendant seeks to expand it to show lack of dominance or market power.
ACF Chemiefarma
A "gentlemen's agreement" is still an agreement.

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