View Table of Contents
1 - EU History & Brexit2 - EU Lawmaking & InstitutionsLawmakingAddendum: Human Right in the EUEU Institutions (Artt. 13 TEU)3 - Internal Market & Five FreedomsFree Movement of Goods Art. 28 TFEUFree Movement of Services Artt. 56 TFEUFree Movement of Workers / Persons Art. 21 TFEU and 45 TFEUFreedom of Establishment Art. 49 TFEUFree Movement of Capital Artt. 63 TFEU4 - EU Company LawAreas of EU company lawCustoms Union and Commercial PolicyEU Competition LawBan of Cartels Art.101 TFEU (Antitrust Law I)Abuse of dominant Market Position Art. 102 TFEU (Antitrust Law II)Merger Control, EU Merger Control Regulation (139/2004) (Ex Ante)Additional: State Aids Art. 107 et seq TFEU5 - The Euro & Central BankThe EuroCentral Bank Art. 123 et seqq TFEU6 - Common Agricultural Policy & Security RegulationsCAPSecurity Regulations7 - EU Intellectual Property LawIntroductionPatent LawThe European and International PatentTrade secret lawOther intellectual property rights
1 - EU History & Brexit
What are and where can you find the political aims of the EU?
- TEU (Art.3) Treaty of the European Union (Eu Vertrag)
- Promote peace, values and well-being
- Union shall offer to citizens; Freedom, Security, Justice, Free Movement of persons
- Establishment of internal market
- Establish economic and monetary union whose currency is the euro
What and when was the first steps towards common european policy?
1949 → Coucil of Europe: cooperation and trading between french and german coal and steel production
1950 → Schuhmann Plan: Common Goal to keep peace and protect against russia.
What was the first treaty signed in 1951? What did it regualte?
- Treaty on the european coal and steel community (ECSC)
- between BEL; GER; FRA; ITA; LUX; NET
What other two communities followed later that eventually formed the foundation of europeans communities of 3 pillars of unification? What is the name of the treaty manifesting it?
1957 → Treaty of Rome
- European economic community (EEC)
- European atomic energy community (Euratom)
What effect did the establishment of the customs union in 1968 have?
Shared border controls with unified customes system
What treaty was signed in 1992? What is the EEA and what did it consist of? What was replaced?
Treaty of Maastricht:
- European Economic Area (EEA) replacing the european economic community (EEC)
- Consisted of european communities (EC) and
- European Free Trade Association (EFTA)
What did the schengen agreement allow from 1995 onwards?
Abolishment of mandatory border controls → Free movement of persons
What treaty was singed in 2009? What was the european communities treaty replaced with?
Treaty of Lisbon
- Replacing the EC treaty with the Treaty on the Functioning of the EU (TFEU)
What two financial stability machanisms were created between 2010-13 after the euro crisis?
- European financial stabilisation mechanism (EFSM) (equity)
- common EU instrument providing 60 billion from the EU Budget
- accessed by the comission
- European Fianncial Stability Facility (EFSF) (debt)
- possible to lend up to 440 billion euros from capital markets and provide this money to individual states
- investors lend money to the EFSF instead of lending it to the individual states
- lends money from the capital markets
- follows clear regulations and gurantees refinanciation
At the end of 2013 both financial stability measures were replaced with the ESM = European Stability Mechanism (more on that later)
What EU Law provides you with the right to leave the EU?
- Any Ms may decide to withdraw from the union in accordance with its own consitutiiona requirements
How did GB violate Art.50 III?
After notification of leaving the EU, there is actually only a two year period to create an agreement with the council → if that period is exceeded an exit without agreement should be done
What are some legal issues for GB?
- Probelems with market access of businesses and free movement of persons
- EU residents living in UK
- End of EU passporting
- Future payment obligaitons
- annual contribution for access to EEA?
Which of the EU freedoms do not apply to the UK anymore
- Freedom of movement of persons
- No Free movement of goods
- coutry of origin regulation is not valid anymore
- custom duties
- No more free movement of services and capital
- no more freedom of establishment
2 - EU Lawmaking & Institutions
What law text fall under primary EU Law? What do they cover? How is primary law construed (gebaut)?
- TEU = Treaty on the EU → general principles, democracy, EU institutions, cooperation and principles
- TFEU = Treaty on the functioning of the EU → Rules on Freedom, instutional powers, responsibilities, Company and Business Rules
What is a supranational organisation? How is it different from a state?
- Supranationality (of the EU} concerns the competence of an international organisation ( here the EU) to (1) autonomously enact legal rules binding on it in certain areas which have been (2) conferred upon it
- A state is a community of persons in its political organization, which requires a state territory, a state people and a state power
What are two other international organisations?
- ASEAN - Associatino of Southeast Asia Nations
- also intergovernmental orgnization
- makes decision by consensus
- African Union:
- also 55 member states that make up the countires of the african continent
What is required for supranational actions of the EU? What principles limits it?
- Suprationality is only given if aims of actions in question cannot be achieved adequately on MS level (Principle of subsidary).
- Also those actions can be handled more efficienly on supranational level
What does the principle of conferral say?
General framework of the EU as supranational organization:
= EU may only act within the limits of competences, the EU Member States have conferred upon it by the founding treaties
What two principles define the competences of the EU as supranational organisation?
- Principle of subsidary → Art. 5 TEU
- EU does not take action (except in areas where it has exclusive competence), Unless it is more effective than any action that could be taken on the national, regional or local level
- Principle of proportionality → Art. 5 TEU
- Any action taken by EU should no go beyond what is necessary to achieve the objectives laid down in the Treaties
- Legitimate aim, suitable means, necessity
This is to test in the last step of the 5 Freedom Schemes.
What does the principle (duty) of sincere cooperation regulate? Art. 4 TEU?
Mutual legal obligation between EU and MS to assist in carrying out the tasks which flow from the treaties
⇒ Relationship between EU as supranational organization and the underlying member states
What is the application power of Primary EU Law?
Overruling of National Law, thus for any case to solve direct applicablity of EU law is generally given for primary law
What 4 things are considered as secondary EU law? In which provisions are they laid out?
- Regulations (Art. 228 II)→ Also directly applicable and binding like primary laws. Also derogates national laws (overruling)
- Directives (288 III) → Obligations for MS to implement / transfer into national law within certain period → Can be binding, direct applicability is to test depending on certain requirements
- Decisions / Resolutions (288 IV) → Not necessarly binding for specific person,
- Unwritten EU law principles
- e.g fundamental right, rule of law, effet utiile
What happens if directives are not transposed/ or transposed too late?
- Cintizens may claim damages from their MS, if they experience disadvantages due to lack of transposition (Franchovich-Judgement) compared to nationals of other states
What is race to the bottom?
- Negative spiral of lowering EU law standarts
- domestic policies are in competition with EU Law, companies choose to move to places where law requirements are the lowest
What is minimum harmonisation? What is maximum harmonisation?
Usually for EU directives
- Min harmonazation:
- Directives needs to be implemented into the national law of the specified MS
- To ensure harmonized implementation and tackle race to the bottom, directives are set out with minimum law requirements for all the states
- Stricter rules are possible, however the minimum requirement needs to be met for all states.
- Max harmonization
- directive implementation should not exceed the terms when transposing them into national lwa
What is the difference between a direct effect of EU law and an indirect Effect of EU law?
- Direct Effect: European provisions create direct legal consequences (claims, invalidity of actions, legal transactions)
- EU citizens can refer to and rely directly on treaty provisions and invoke those in front of their national courts
- indirect Effect: National rules are interpreted while keeping EU standarts and rules in mind (interpretation in conformity with union law)
In case of a collision between EU and national law, what requirements needs to be met for direct applicability of EU law (supermarcy over national law? E.g for a company to refer to free movement of goods over some kind of national law?
The EU standart becomes the relevant norm if the:
- obligation imposed on the MS in the (primary law, regulation, or directive) is:
- sufficiently clear and precise
- unconditional (not-temporal) and
- does not leave any margin of discretion in it's implementation (Beurteilungsspielraum)
If the case concerns one of the 5 freedoms, the above conditions are generally acknowledged. You should rather test them more extensively for secondary law and here especially directives.
What does "primacy of application" mean?
- In case of a collsion of natinoal and directly applicable (test conditions before) EU law, applicability of national is excluded
- merly on domestic situations national legal norm remains applicable.
What is the principle of non-discrimination? What are the two (three) way in which it can occur?
- The principle of non-discrimination prohibits discrimnation (of people, companies, ...) on grounds of nationality
- Open discrimination → Measures by states with explicit reference to certain nationalities (rare cases)
- Hidden discrimination → Measures by states that are seemingly neutral, but generally and factually only affect non-national of that member sates.
- Reverse Discrimination → Measure putting own national at a disadvantage compared to non-nationals
How does ECJ define supremacy of EU Law over national law (constitutional and non constitutional)?
= absolute, underconditional supremancy of PRIMARY AND SECONDARY EU law over ANY law, including constitutinoal law
Argumentation based on:
- Principle of conferral
- Maintenance of EU law order
- Principle of subsidary
How does the german BverfG (FCC) define supremacy?
- FCC does not aknolwedge absolute supremancy over ANY law
- It sets out three limits to absolute supremacy that could justify inadmissability of claims based on EU secondary Law
What are the three limits to absolute supremacy? How does the BverfG justify jurisdiction against EU secondary Law? Which ones apply to secondary EU law? Which ones to primary EU law?
- Absolute supremacy of EU law is justified to be (at least) tested, if:
- Protection of fundamental rights of citizens→ Artt. 1-19 GG (Solange II - Judgement)
- Solange II: As long as EU secondary law ensures effective protection of fundamental rights similar to the protection scope of german fundamental rights, the FCC DOES NOT exercise jurisdiction
- Solange I:Only if EU were to deprive EU citizens fundamental rights entirely or severely compromise them permanently in secondary legislation, FCC acts
- Result: Consitutional claims based on that specific secondary EU Law against breaches of german national are inadmissable (unzulässig)
- Possible ultra-vires acts of the EU in regards of secondary law
- EU organs may only act within the limits of competencies that have been conferred to them (principle of conferral) and the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties (principle of proportionality)
- Further the union only had rights and powers that MS conferred upon the institution but cannot grant new competences to itself → any areas not conferred remain with the member states (principle of subsidary)
- FCC exercises jursidcation to review EU actions that potentially exceed limits
- Constitutional Identity is in question
- EU primary law must respect the inviolable core content of the constitutional identity of the national basic law
- In germany Art. 23 in conjuction with Article 79 GG
Addendum: Human Right in the EU
What are the values of the EU preseneted in Art. 2 TEU?
Respecting human dignity, freedom, democracy, rule of law and preserving human rights
How does the EU externally promote human rights?
- EU contributes to abolishing poverty and safeguarding right by
- strict observance and development of international law, i.e especially the united national human rights charta
What is the EU Charter of Fundamental Freedom? What legal power does it have?
= Source of EU human rights law
- Binding as primary law from 2009 onwards
⇒ directly applicable for all EU institutions, bodies and member states
What is the European Convention for the Protection of Human Rights and Fundamental Freedoms?
- international treaty which came into place 1953 and regulates classical freedoms (poverty, right to live, assembly, vote, ...)
- regualted and enforced by the european court of human rights in strassbourg.
EU Institutions (Artt. 13 TEU)
What is the role and status of the European Council? What are the participants?
- Role → Discussion of greater political issues and major policies in EU
- Heads of member states meet twice a year together with thte president of the comission
What is the role and status of the council of the european union? What is the voting structure?
- primary legislative body of the EU who works together with the parliment
- formed by minisiters of the member states
- legislative decisions are made with
- qualified majority
- 55% of member states, representing at least 65% of the EU population, vote in favour
- unanimous vote (Einstimmig)
What is the role and status of the parliament? What are participants? What is degressive proportionality?
- second legislative body of the EU, with three main competences:
- Budget power → with council approves or reject budget suggestion from comission
- Legislative power → Approves or rejects legislative suggestions from comission
- Supervision power → supervises and approves comission in general
- 751 members with 3-96 per member state depending on size
- however degressive proportionality reduces the voting power of each seat with increasing size → ensures level voting for all states
What is the role and status of the comission? Who participates? What does guardian of the treaties mean?
- Executive branch of EU with day to day busienss
- initiates and suggests legislation to parliment and council
- guardian of the treaties → supervision of MS to fulfill obligations of directives and regulations
- From each MS there is one comissioner
What is the role and status of the ECJ?
- judicative branch of the EU → controls validity of EU law
- ensures supranationality of EU lwa
- handles proceedings filed from EU institutions against member states or between member states
Read Art. 263 TFEU carefully. What does this provision provide for? Name the organs involved and the actions the annulment action applies to. (ECJ)
- Goal: ECJ is competent to hear actions for annulment brought by a Member State, the European Parliament, the Council or the Commission "on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or [...] misuse of powers" (Art. 263 (2) TFEU).
- Acts or legal acts of the Community institutions can be reviewed in this context for their compatibility with primary Community law and declared null and void, i.e. annulled
- Competence: Within the framework of the action for annulment, the competence of the institutions, the formal requirements, possible infringements of the Treaty and misuse of powers are examined in detail.
- also applies to recommendations and opinions, insofar as these have legal effect vis-àvis third parties
What is and what are the goals of the ECB?
- Central bank managing a capital stock with is paid up by the euro zone central banks
- price stability
- define and implement monetary policy → inflation rates at 2%
- issue and print bank notes
What is the role of european court of auditors?
- auditors supervising eu finance and financal mangement
Who is the High Representative?
- one of the vice preseidents from comision
- foreign representation
3 - Internal Market & Five Freedoms
What is (what are the goals of) a common market? What are 4 things ensure it?
- Highly competitive social market with full employment
- no internal fronties, and guarantee of five freedoms
- customs union with unitary duties vis a vis third countires
- economic AND monetary union
What ensures it?
- Fundamental freedoms
- Economic Policy (Art.3, 119 TFEU)
- Competition Policy (Art. 101 TFEU)
- Border Control (Art. 67 TFEU)
Free Movement of Goods Art. 28 TFEU
What is the definition of a good?
All physical products that have a monetary value and can be the subject of commercial transactions
I. Good originating from a member state
II. Goods from third countries free in circulaiton
What are the three ways in which the free movement of goods can be infringed?
- Measured having equivalant effect are specified in dassonville and their scope is reduced by the Keck formula
Can actions infringing the free movement of goods be justified?
Summarise the main findings of and consequences of Dassonville
Summarise the main findings and consequences of Keck
Summarise the main findings and consequences of Cassis-de Dijon
What is the principle of mutual recognition / country of origin? What might it cause?
- Good that comply with legal manufacturing rules of one MS, generally also comply with those of any other MS
- Thus those goods are marketable without major restrictions in any other MS
- Might cause a race to the bottom in terms of producing in those MS where regulaitons are the lowest to save costs
Free Movement of Services Artt. 56 TFEU
What is the definition of a service?
“any independent service which is normally provided for remuneration and which does not merely constitute a service ancillary to the pursuit of an activity which is covered by the scope of another fundamental freedom
How can freedom to provide services be infringed?
- Prohibition of discriminatory measures → unqueal treatment of non-nationals and their services compared to national services
- Prohibition of other restrictions (non-discriminative)
- Gebhardt / Dassonville
- all actions enacted by Member States which are hindering directly or indirectly, actually or potentially, the freedom to provide services
- Broad scope limited by Gebhard / Keck:
- Mere modalities regarding the specific provision/receipt of a service are excluded according to the Keck judgement in conjunction with the Gebhard judgement
What rights do freedom of service entitle citizens have?
- Right to temporarily exercise services
- In another member state than the state of residence (active freedom)
- where only the service crosses the border
- where the recipient needs to cross the border to the country of residence of the service provider
- so both the service provider and recipient are granted the freedom of services, in particular crossing borders without changing place of permanent residence
What is the freedom of services a catch-all provision?
It covers all those services which do not fall under
- freedom of establishment
- free movement of capital
- free movement of goods
What separates freedom of services from freedom of persons and workers?
- Like the freedom of establishment, freedom to provide services refers to activities carried out for remuneration, free of instructions and on one's own responsibility.
- Works are provide a service against renummeration, HOWEVER
- they are bound by a contract and
- are dependend on an employer
What kind of services are not protected by the freedom?
According to Art.62 and 51 TFEU, the freedom to provide services does not apply to activities which, in a Member State, are linked to the exercise of official authority
Can measures infringing the free movement of services be justified?
- Written justification Art.62 TFEU
Different here: Reference to Art. 52 TFEU and it's ordre public reservation
- Unwritten justification
Free Movement of Workers / Persons Art. 21 TFEU and 45 TFEU
What is the definition of a worker?
- A citizen of the Union is an employee if he/she performs services for another person in return for remuneration for a certain period of time
- Essential is thus, the dependence on an employer and being bound by instructions (lack of independence
In what ways can the free movement of workers be infringed?
- Direct/indirect discrimination
- Restricting right to work in another MS without a work permission and move there
- Restricting the right to reside in another MS for the purpose of Employment
- Restrict residence in another MS after employment has ended.
- Restricting ascess to employment, force stricter working conditions
- Other restrictions pursuant to the Dassonville Formula in conjunction with the Gebhard formula
How might third country citizens also benefit from the free movement of workers?
There are transitional arrangements for Union citizens from the Eastern European Member State = family members of a Union citizen who are not Union citizens themselves have their own rights of entry and residence through the free movement of workers of their family member with Union citizenship
What does the Gebhard formula say?
national measures which hinder or make less attractive the exercise of the fundamental freedoms guaranteed by the Treaty must fulfil four conditions. If those conditions are not met, an infringement of a fundamental freedom is generally given.
The conditions are:
- Measure applied non-discriminatory
- Measure justified by public interest
- Measure is suitable for attaining the objective pursued
- Measures does not go beyond what is necessary
Can actions infringing the free movement of workers be justified?
- Written grounds Art. 45 III
- ordre public reservation
- Unwritten Grounds
= Cassis de Dijon in conjunction with Gebhard Formula
What kind of work is not protected?
- any work or actions directly and specifically related to exercises of official authority
Freedom of Establishment Art. 49 TFEU
What is the definition of establishment? (material protection)
According to Art. 49 I 1
= The actual pursuit of an economic activity through a fixed infrastructure with its main activity in the state of destination for an indefinite period
- Primary Establishment
- Secondary Establishment → agencies, branches, subsidaries
Who is protected by the freedom of establishment? (personal protection)
- EU citizens
- Legal entities
- Existing company or firm (Art. 54 II TFEU)
- Formed in accordance with the law of a Member State (Art. 54 I TFEU)
- A seat in the EU (Art. 54 I TFEU)
How can the freedom of establishment be infringed?
- E.g restricting the ability to establish a new business based on some criteria
Can actions infringeing the freedom of establishment be justified?
- Written Art.52
- ordre public
- Cassis Gebhardt
What is the difference between real seat theory and incorporation theory? What do they try to solve?
- if a company is relocating it's central administration from one state to another it is questionable what law is governing the companies internal matters
- Real seat theory: The law of the state in which the central adiminstration was moved into
- Incorporation: The law of the state in which the company was established
Summarize and state the main effects of the case Überseering
- Dutch company überseering got shares aquired by two germany nationals and thus decided to move central adim to germany → real seat theory required german law to apply
- germany restricted legal proceding, as company was not established in germany
- A company incorporated in member state A and deemed (under the laws of member state B) to have moved its central administration to member state B cannot be denied legal capacity by member state B
Summarize and state the main effect of the case Daily Mail
- UK holding Daily Mail wanted to move central admin to netherlands in order to receive tax benefits, but wanted to remain legal status of UK company
- British minstry refused consent
- Member state A can prevent a company from moving its central administration to member state B.
- The freedom of establishment does not grant a company incorporated under the laws of and keeping its registered seat in member state A the right to transfer its central administration to member state B
Free Movement of Capital Artt. 63 TFEU
What is the definition for a movement of Capital or movement of payment?
What can be an infringement of the free movement of capital or payment?
= No specific infringement but generally: (especially gebhardt)
Can actions infringing the free movement of capital/payment be justified?
- Written justification Art.65 TFEU
- Tax law
- prevent infringements of national law and regualtions
- purposees of administrative or statistical information
- "ordre-public reservation"
- if justifications grounds related to freedom of establishment apply
- HOWEVER, measure needs to be non-discriminatory
- Unwritten justificaiton
= Obstacles to the internal market shall be accepted to the extent such provisions are necessary to satisfy mandatory requirements, in particular: effective fiscal control, public health, fair trading, public interest, consumer protection, fundamental rights of third parties
4 - EU Company Law
Areas of EU company law
What is the goal of EU company law?
- harmonization of member states company laws to
- promote freedom of establishment and level playing field
- establish minimum requirements for e.g setting up branches, financial reporting, disclose, reorganization ...
What is the purpose and requirement of an European econmic interest grouping?
What is the regulatory mix behind the societas europeae? What is regulated by EU law, what by e.g german national law?
How do you create an SE? What are the requirements to set it up?
- merging existing publicly listed companies
- form a holding promoted by plcs
- forming subsidaries
- convert a plc which had a subsidary in another member state for 2 years to a SE
- Two member states
- capital of 120.000€
Where does employee participation in a SE work?
- participation at board level in supervisoin → not involved in management
What is the principle of no absolute participation?
- applies when negotiating employee participation in a newly formed SE
- Concerning also the board structure (one or two boards)
- pre-existing employee rights shall still be the same after formation of SE
- if no agreement is reached standart national employee participation rules apply
- Exception: SE via merger → possibility to waive national employee participaition solution → if so, their negotiations NEED to be successfull → otherwise establishment not possible
What is the societas privata europea and the societas unius personae?
Customs Union and Commercial Policy
What is the EFTA? What does it grant?
- Free trade association
- No duty on imports from MS, but each MS is competent to charge different duties on imports from non-MS
What characterises a customs union?
- trade policy centralized at union not each MS
- unified duties on imports from non-MS
What is the goal of a common market?
The 5 freedoms
What characterises an economic union?
common market with common economic policy
What does the EU common commercial policy say?
- competence to negotiate foreign trade relations lies within EU, not each MS
What is the schengen agreement?
= no fixed border controls between MS, but possibility to reintroduce for up to 30 days in case of serious threat to public policy
What is the doublin agreement?
EU Competition Law
Why is there competition Law on EU level?
- ensure effective comeptition to achive internal market
- fundamental freedoms can only be safeguarded if they are accompanied by competition rules
- harmonization of competition law provides equal playing field
What are the two steps of defining the correct market?
- Identify the products included with the SNIPP test
- imagine product and here small but significant, non-transitory increase in price
- Question: "Would customers switch to another falvor or type of the product?"
- If yes, then this other type is also included in the market
- If no, the test is complete and the product palette for the market is defined
- Identify the relevant geographical and time-related market
- worldwide and subject to worldwide regulations?
- national and subject natinoal regulations?
- regional and subject to regional laws?
- Does the market consist of a temporal element?
What role do market shares play in the application of competition law rules?
- determine the impact on the defined maket of the undertaking
What is the difference between ex ante and ex post?
Ban of Cartels Art.101 TFEU (Antitrust Law I)
What are gentlemen agreements?
- informal agreemens between different parties which are often non-written
- attendence at the meeting where agreement is made is sufficient for an anti-competitive conduct under 101 TFEU
How might a company infringe 101 TFEU?
What are block exemption regulations?
- Regulations specifically adressing certain industries, companies, or types of agreements (e.g vertical agreements)
- provide reasons for exempting the prohibition of agreements that have been made between undertakings → allow those agreements → to test in last step of antitrust law case
- hardcore restrictions on competition cannot be exempted by BER's → the whole agreements remains void
What is an undertaking according to the ECJ?
any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed
What is an effects docrine?
According to this doctrine, domestic competition laws are applicable to foreign firms — but also to domestic firms located outside the State's territory, when their behaviour or transactions produce an 'effect' within the domestic territory.
What are vertical and horizontal agreements?
What are concerted practises?
catch-all practice, coordination between undertakings without formal agreement (so called practical cooperation)
What are associations of undertakings?
association of undertakings means any company, partnership, association, society, institution or body of persons having legal personality or not, which represents the trade interests of autonomous undertakings and takes decisions or enters into contracts for the promotion of those interests;
What are hard-core restrictions?
What are restrictions on competition?
is any restriction of one of the free competition • e.g. price, product range, product features, terms and conditions, research, sales, marketing, cooperation with other market participants
Benchmark: effect of agreement
What is distortion of competition?
market participant deliberately favours other market participants or hinders such in a targeted manner
What is a restriction by object?
Object of restriction given, when express goal of a certain agreement
What is a restriction by effect?
Restriction of competition effected where it is a causal consequence of agreement
What is the de-minimis-rule?
agreements will not appreciably restrict competition if the aggregate market share of the parties to the agreement does not exceed 10%, where the agreement is made between actual or potential competitors.
What is an appreciable effect?
If the market share is larger than 10%
What are the requirements for the legal expemption of Art. 101 III to apply
What are the requirements for a block exemption to apply?
What are possible sactions for infringements of competition law?
Abuse of dominant Market Position Art. 102 TFEU (Antitrust Law II)
How might a company infringe 102 TFEU?
“Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.”
What are the two steps of testing for an abuse of dominant market position?
- Definition of the relevant market → Recall this question
- Determine if there is market dominance
= “A position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers”
- hereby market share plays a big role → in DE dominance is assumed with market share above 40%
What are consequences abusing dominant market position?
Merger Control, EU Merger Control Regulation (139/2004) (Ex Ante)
What is the difference between mere cooperation and a merger between undertakings?
What is the concept of merger control?
- Controlling a market structure not a certain behavior
- not only behavior but also mergers and aquisitions can affect competition
- mergers can lead to monopolisation and thus significant lessening or even elimination of competition
What are the three types of mergers?
What are the two necessary questions to ask at the beginning of a merger?
- Is tere a merger control filing obligation in general?
- Where does the transaction have to be notified?
What are the two conditions for a merger control filing oblugation in the EU?
- Concentration (Art. 3 ECMR)
- A concentration shall be deemed to arise where a change of control on a lasting basis results from:
- the merger of two or more previously independent undertakings or parts of undertakings
- the acquisition by one or more persons already controlling at least one undertaking by any means of acquisition (shares, purchase, ...)
- Turnover thresholds (Art.1 ECMR)
What are "stand still obligation" in merger control?
Merger of undertakings that fulfils conditions of Community-wide relevance, cannot be implemented until it has been declared compatible with common market
Undertakings have to wait out Commission’s decision before they implement their planned transaction
When and if so how may the european comission refer merger cases to the Member states?
- If the merger significantly affect competition in a market within a MS
When and if so how may multiple MS refer merger cases to the comission?
One or more Member States may request the Commission to examine any concentration as defined in Article 3 that does not have a Community dimension within the meaning of Article 1 but affects trade between Member States and threatens to significantly affect competition within the territory of the Member State (Art. 22 I ECMR)
- example whatapp / facebook → whatsapp did not meet turnover threshold community wide, but in cyprus, spain and UK
After the conditions for a merger filing obligation are met, what test is applied to determine whether the merger will be cleared?
- SEIC-test: Test for significant impediment to effective competition (regarding a merger)
- The current pre-transaction competitive situation is being compared with the future post-transaction situation
Additional: State Aids Art. 107 et seq TFEU
What is a state aid? What are forms?
What is the problem with state aids? Are they allowed?
In an internal market state aids provide competitive advantages for receiving undertakings over competitiors.
⇒ They are generally prohibited by 107 I TFEU
- State aids that affect trade between Member States and that threaten to distort competition by favouring certain undertakings are incompatible with the internal market
Where do you find justification ground for state aids?
Art. 107 II, III TFEU → There is a catalogue of things that could justify state aids
Who is in charge of reviewing aid systems of Member States? Refer to the relevant legal provision
5 - The Euro & Central Bank
What where the three stages to remedy insufficiencies in economic convergence?
- Closer econmic integration & membership of all EC members in exchange rate mechanims from 1990
- European bank system of central banks with more coordination form 1994
- Lock of currency exchange rates leading to one single currecy with different denominaitions from 1999
What are the theoretical effects of a single currency for business?
- Possibility of influencing decision making where to set up business
- Price stability might be enhanced
- Transaction costs between states may be reduced
- may increase ability to pin down costs when quoting
What are some of the 5 "Maastricht Criteria?" Are states complying with them?
- Eurozone members are obliged to limit their deficit spending and debt levels
- Government budget deficit max 3% in relation to national GDP → general max debt ratio not more than 60% of GDP
- Inflation rate not more than 1,5pt above rate of 3 eurozone members with lowest inflation rate
- Form 1990s onwards stats started violating criteria, however comission never took action against it
Central Bank Art. 123 et seqq TFEU
What are objectives and tasks of the central bank?
How does the "no bail-out" clause apply to the central bank?
- ECB is not allowed to directly intervene in state finances
- any liability of EU (here ECB) for member states is exluceded.
- monetary state financing is not allowed Art. 123 TFEU
What was the classical approach of monetary policy in times of Crisis?
- ECB lowered interest rates to zero to avoide credit crunch → foster money lending and thus economic growth
What is quantitative easing? What is full strerilization?
- New approach in times of crisis when interest rates are already at 0
- ECB buys bonds from commercial banks in member states and thus increases prices for them → limit of 60 million per month and not more than 1/3 of one single states debt.
- money is created, loans become cheaper which eventually boost consumption
- full sterilization is a promise by the ECB to eventually fully absorb the money pumped in.
What are outright moneatary transactions? What is the ECJ judgement about them?
- Also bond purchase programm by ECB, however allowing the ECB to UNLIMITLY buy short-term bonds from member states
- So difference to QE: here no limit, while QE is 60 million per month. Also QE cannot cover more than 1/3 of one state's debt. Also promise of full sterilization with QE.
- ECJ defined them as compatible with 123 TFEU.
What happened to the Maastricht criteria during covid?
First time ever that the general excape clase was applied and "measures necessary to adequately adress crisis" were allowed starting 2020-
What is the Corona recovery fund? How is it moving away from Art.123 TFEU?
- Council agreed that grants and loans to member states are allowed to repair immediate economic and social damages caused by the corona crisis and foster digital transformation
- To finance grants and loans the comission is authorized to issue EU bonds on the market of up to 750 billion
- first time that EU will be able to borrow funds on open market → like a state
- This could be an ultra vires act against 123 TFEU as direct grants and loans are normally not allowed.
6 - Common Agricultural Policy & Security Regulations
What are the goals of CAP?
− Safeguarding agricultural productivity and assuring availability of supplies in EU − Ensuring EU farmers’ fair income and fair prices for EU consumers − Stabilising agricultural markets
What are the three CAP principles?
- Single agricultural market Art. 40 I TFEU
- free movement of ag good in EU
- Union Preference
- MS encouraged to give preference to consumption of ag products from EU
- encouragement through taxes and duties on non-eu products
- Financial solidarity
- all member states contribute to CAP, as EU budget allocates 36% to agriculture → still biggest item
What are problems with CAP?
- Unfair focus on farming instead of other areas such as digitazation
- Artificially high food prices due to union preference → Products form non-eu could be cheaper and thus prices for consumers lower
- Large farms are more supported than small farmers
What is security regulation?
The regulation of offering and trading of financial product
What are three objectives and aims of Security regulation?
- protect investors
- ensure fair, efficient and transparent markets
- reduce systematic financial risks
What are the three measures of security regulation?
- Adressing information asymmetries
- disclosure requirements for companies
- Regulate market behavior
- ban of insider dealing, market manipulation and (in-parts) short selling
- Ensure market participant hygiene
- license requirements for intermediaries (brokers, financial advisors, ...)
- skill requirement tests for market participants
What is an prospectus requirement? What happens if companies do not comply?
Art. 3 I Reg 2017/1129:
- all offers to the public require a prospectus before the emission starts
- public companies must issue a document containing material information for potential investors to make informed decisions.
- if requirements are not met, the securities issued can be returned for original purchase prices
- also fines up to 700.000€ possible
What is ad-hoc disclosure?
- Listed companies shall disclose all information relevant to the markets
- when companies are then publicly traded, they need to issue publicly all information that are likely to significantly effect the price of financial instruments immediately
What is insider dealing? What is prohibited?
- possesing of insider information
- allowed is not:
- buying or selling based on that information
- recommend buying or selling to others using that information
- unlawfully disclosing those information
What is market manipulation?
- prohibition of misleading the markets by:
- releasing misleading information or statements
- placing buy or sell order to provoke market reactions
7 - EU Intellectual Property Law
What are intellectual property rights?
Subjective (only you right, not public), absolute rights that grant a person the exclusive right to use an intellectual property
Is every intellectual property protected by a right?
No, as there must be a balance between the protection of intellectual property and the public interest in the use of IP
What is the purpose of protecting IP creations by IP rights?
Protection of the effort that some creator has put into his work. Efforts are attributed a value and this value should be protected
Are IP rights only nationally protected?
no there is national legislation but also EU and internaltional Ip right (WIPO, WTO)
- high level of minimum requiremets due to TRIPS agreement → harmonization
What are the most common IP rights?
- utility models → first step of patents, rough outlines
What are licenses? What are the two types of licencing?
- Exclusive licenses = only one licensee
- non-exclusive = more than one licensee
- IP owner grants the licensee the permission to use the IP, who then pay royalities or license fees to the IP owner
- most important element in knowledge sharing economy
What is the problem with licenses and compeition law?
- exclusive and cross licensing can have an anticompetitive effect, Art .101 TFEU
- licensee providers need to issue their IP in a FRAND way → Fair, resonable and non-discriminative way
What are remedies for infringement of IP rights?
- Injuction = Stop the other from using your IP proporty
- Destruction or removal
- Acess to information of infringing acts
- Monetary remedies
- own damages or losses based on infringemnt
- license analogy
- infringers profits
What is the background, problem and solution of the essential facilities doctrine?
Background (Scenario): undertaking as exclusive access to facilities (access to data, information, products, ...) and refuses access to downstream market and strengthen market power
- Problem: Generally no dominant player can be coerced (gezwungen) into sharing resources that have been legitimately earned in performance competition (e.g through R&D) → However this exclusive access can distort competition
- Under special conditions a prohibition of Art. 102 TFEU is NOT given:
- Facilities must be "essential," i.e can be dispensed with some other facility
- If this is however the case, one must still consider objective grounds mentioned by the company that validate a rejection of access to their facilities.
What is a patent?
- Subjective absolute right relating to an immaterial object or invention
- has form of a description and drawing of a technical invention
What rights do patentees have?
- right to prohibit others from commercially using an inverntion
- does not provide regual permission
What are the 4 "classical" patent law theories?
- Disclosure → Big library of all technical inventions. After 10 years everyone can copy that patent
- Reward → Inventors are rewarded as "inventor of the nation"
- Incentive → Patents motivate investors and industry to invent, as they are at least guaranteed that once they publish a new invention, no one else can easily steal it
- Property → natural right for having patents → However, today there are regualtions that need to be applied before you have a patent.
Why can patent law be viewed as economic development law?
- promotes innovation and thus fosters innovative industries and sustainable econmic growth
- mere "copy society" might be innovative in the short run, however sustainable growth is only possible if technological inventons are protected
How does the application process of a patent look like?
- why 18 months in the beginning? → able to withdraw patent application if you think innovation will lead nowhere
- if you get exposed by the authorities for not involving any new teachings in the patent, you can scilently withdraw your patent without anyone knowing about it
- you have 7 years to file publicaiton or examination, which you can also start right from the beginning to speed up the process
- in the end you are grated a patent
What are the 5 requirements for being granted a patent?
- Invention Sec. 1 PatG
- technical with physical effect
- NOT: patents regarding the human genome
- Novelty Sec. 3 PatG
- invention idea can't be found in any kind of literature or other source. Anywhere around the world in any language
- Incentive Step Sec.4 PatG
- Invention was not obvious for an expert in that field
- Commercial Exploitation possible Sec. 5 PatG
- Not Contrary to public policy Sec. 2 PatG
What happens with innovations made by employees?
- most innovations are made by employees
- inventions need to be attributed to employers because they are most often the applicant of the patent
- In germany the german employee invention act specifies that since 2009 employees making innovations need to receive due compensation
What are pros and cons of filing a patent?
- protection of invention
- competition gets restricted
- protection against competitiors working on similar inventions
- first to file rule → first patent wins over competitiors
- Disclosure of invention after 18 months → in time frame you can still decide to withdraw patent filing and public will never see invention idea
- High costs of application
- enforcement costs of patent
When does IP protection begin? How is this different for medical or plant related products?
As soon as the granted patent is published for 20 years
- however, third parties using the invention before granted patent with knowledge about filing procedure, might need to pay fines before or after patent is granted.
- medical inventions are often patented early but require a lot more medical authorisation to be states as safe for the public
- this can take up to years and it would be unfair if the patent protection would count down while there is not even a product on the market → there is a supplemetary protection (NOT a prolongation of the patent) that covers that authorization period
What are the two types of patent infringements?
- if someone makes use of all the features of the claimed invention → read patent claim
- direct infringement: all features of the patent claim are used by the infringer
- indirect: infringer sells essential means of a patented device or process
What are defenses against patent infringements?
- Non-infringement → not all features are realized by me
- Exhaustion → I bought license to use. I am allowed to use the invention
- Right of prior use → invention was practised before the application
- FRAND defense → fair resonable and non discriminatory defense
- Compulsory license → infringer unsuccessfully filed a license
What is an injunction gap? What measure was introduced to tackle it?
- injuction gap = injunction courts handle infringements of patents. federal court handle validity of patents
- injunctions courts work faster, thus there was a gap between decision of infringement and validity of patent.
- Reform in 2021 forces supreme court to issue a preliminary opionin 6 months after filing the validity complaint.
The European and International Patent
What is the european patent?
- A bundle of national patents (from 38 contracting states) granted by a centralized authority (called European Patent Office)
- after granting of bundle each national court needs to enforce the patent under national law
- There is only a centralized grant, no centralized enforcement
What is the idae behind a unified patent court?
- court by 25 MS of european member states
- has exclusive jurisdiction for disputed concering both unitary patens (new) and old european patents with unitary effect
- idea to relief ECJ with IP claims, as they are not specialized in that. Rather create a separate court that spcifically handles those transctions
Invalidity as defense claim can lead to inprisonment in germany.
Trade secret law
What sectors often apply trade secret law? What advantages does it bring for them?
- Often used by software, food and chmistry industry
- no disclose of the innovation
- reducing administrative costs
- no time limit (in theory)
What are the requirements for a successful trade secret protection?
- Documented comprehensive legal protection measures (NDA, internally binding policies)
- Documented comprehensive de-facto protection measures
- access control and restriction to the innovation
- acess monitoring and evalution
- Permanent and documented monitoring of the effectiveness of all measures
- PROACTIVE and documented improvement in case of self-identified deficits.
Other intellectual property rights
What is a utility model?
Alternative or addition to patent protection
How is the appication process different from a patent filing?
- Examination of novelt, inventive step and industrial applicability is not required
- however subsequent examinations in case of infringements or invalidities is possible
What are pros and cons?
- easier, lower cost and faster than apply a patent
- can be used as "flanking protection" in the period between patent application and grant
- increased risk of infringing actions and higher probablity of cancellation
What is a trademark? What are examples?
Distinguishment of the products from one undertaking from those of another
⇒ protection of marketing investments
- pictures, terms, colors, sounds, positions of objecsts
- threshold: needs to be distinctive and there can't be a breach of public policy
What are pros and cons?
- no time limit as long as annuity fee is paid
- guarantees quality
- very easy to litigate (einzuleiten)
- trademark piracy
- annuity fees
What is the idea of EU trademarks?
How does the application for trademarks work? What are the two ways?
- Official registration
- here the good or service class is important to consider. Different goods can have the same name but are completely different in nature
- existance via market penetration and gaining authority → however here any competitor can file a trademark on the same thing
What is concept and protection of design law?
- incentivize crativity in product design by protecting
- design of a part, outward appearance, lines, colors, shapes, ...
- available protection on EU and national level
What is a copyright?
Preventing copying of:
- works → something created by an author (novels, visual arts, music, ...)
What are advantages?
- no need to apply for protection
- protection is granted as sson as the author created the work
What are issues?
- idea of the work is not protection only the result in the end
- hard to find infringer on internet