EUL

Art. 52(1) CFR: "Any limitation on the  exercise of the rights and freedoms  recognised by this Charter

Comparison with Art. 36 Swiss Federal  Constitution (restrictions on fundamental  rights)

§According to Art. 51(1) CFR, the CFR is addressed to the EU, but to the member states  only when they implement EU law

§In its case law before the entering into force of the CRF the CJEU had applied  unwritten EU fundamental rights to the member states not only when they implemented  EU law, but also when they derogated from EU law and, more generally, when they act  within the scope of EU law (see in particular ERT [1991])

§The "Explanations on the Charter of Fundamental Rights" also use the term "within  the scope of EU law" and refer to the earlier CJEU case law on this point

§In its interpretation of Art. 51(1) CFR, the CJEU confirmed its earlier case law and  declared that the CFR did not only apply to member states when they implement EU law,  but whenever it falls within the scope EU law (Åkerberg Fransson [2013])

§Art. 6(1) TEU and Art. 51(2) CFR state that the CFR does not extend the competences  of the EU, following earlier case law of the CJEU (see Grant [1998])

1.The ECHR is not directly binding on the EU, because the EU has not (yet) acceded

to the ECHR (despite the obligation to do so pursuant to Art. 6(2) TEU)

2.However, the ECHR exerts an important indirect influence on EU law in at least two  ways

a.Unwritten fundamental rights of the EU: The ECHR is (was) the most important  source of inspiration for the CJ's development of unwritten fundamental rights, as  explicitly acknowledged in Art. 6(3) TEU

●

b.CFR (written fundamental rights of the EU): The ECHR's rights have been copied  into the CFR (cf. the explanations to Art. 52 CFR in the official "Explanations relating  to the Charter of Fundamental Rights"), and, according to Art. 52(3) CFR, the  meaning and scope of these CFR rights shall be the same as their corresponding  ECHR rights, i.e. these CFR rights shall be interpreted in the same way as their  ECHR counterparts

Art. 26 TFEU

• Free movement of goods Art. 28-37 and 10-13 TFEU
• Free movement of persons:
  • Free movement of workers Art. 45-48 TFEU
  • Freedom of establishment Art. 49-55 TFEU
• Free movement of services Art. 56-62 TFEU
• Free movement of capital and payments Art. 63-66 TFEU

• Negative integration:
  Prohibiton of national measures
  -> Four market freedoms of the treaties as individual rights
• Positive integration:
  • Harmonization of national measures that create barriers to the to the free movement of goods, persons, services and capital
    -> EU secondary law on harmonization

1. Preliminary question: Is the matter already dealt with by the EU secondary law?
   If there is already a secondary law, than it and not the relevant market freedom applies. Moreover, the market freedoms of primary law can be used to help interpret secondary law.
    
2. Scope: Is the case within the scope of the market freedom?
   1. Material scope (subject matter)
   2. Personal scope?
      Natural persons / legal persons / citizens?
      
3. Restriction: Has the market freedom been restricted?
   1. Adressee of the freedom: Is the entity restricting the freedom bound by the freedom?
   2. Is the measure at issue deemed to be a restriction?
      1. Discriminatory measures
         Art. 18(1)
      2. Non discriminatory measures
         In general, a non discriminatory measure is a restriction if it prohibits the exercise of a freedom or makes its exercise less attractive or less likely, ir if it impedes acces to the market of another member state.
4. Justification: Is there a proper justification for the restriction?
   1. Is there a legitimate reason justifying the restriction?
      1. Written reasons: Art. 36 (goods), Art. 45(3) (workers), 52 (services), 62 (establishment), 65 (capital and payments)
      2. Unwritten reasons
      3. Purely economic reasons are not allowed!
   2. Proportionality
      1. Appropriate / suitable
      2. Is the measure necessary?
   3.  

• Fiscal barriers:
  • Custom duties and measures with equivalent effect Art. 28-33 TFEU
  • Discriminatory internal taxation of goods based on thei national origin Art. 10-13 TFEU
• Regulatory barriers:
  • Quantitative restrictions and measures having equivalent effect Art. 37-37 TFEU

Humblot (1985)

Facts: France imposed two different taxes on motor vehicles. First,  there was a differential tax to which cars rated at 16 CV (fiscal  horsepower) or less were subject and, secondly, a special tax on  vehicles rated at more than 16 CV. Whereas the amount of differential  tax payable increased progressively and uniformly with the power rating  for tax purposes, the special tax was levied at a single and five times  higher rate. Notably, only foreign car manufacturers offered cars above  16 CV, all French cars were below 16 CV. Mr. Humblot bought a foreign  car with more than 16 CV and was charged with the higher special tax.

Procedural history: Mr. Humblot sought repayment of the special tax from the French tax authorities.  As part of the ensuing litigation the competent French court submitted relevant questions of EU law to  the Court of Justice for a preliminary ruling.

Legal question: Does the French system of motor vehicle taxation violate Art. 1 0 TFEU (then Art. 95  TEEC)?

Answer: Yes. "Although the system embodies no formal distinction based on the origin of products it  manifestly exhibits discriminatory or protective features contrary to Article [1 0 TFEU], since the power  rating determining liability to the special tax has been fixed at a level such that only imported cars, in  particular from other Member States, are subject to the special tax whereas all cars of domestic  manufacture are liable to the distinctly more advantageous differential tax."

Dassonville (1974)

Facts:  In 1970, Gustave and Benoit Dassonville bought a consignment of  'Johnny Walker' and 'Vat 69' Scotch whisky in free circulation in France and  imported it into Belgium without being in possession of a certificate of origin  from the British custom authorities, thereby infringing Belgian law. It was very  difficult to obtain such a certificate if one did not import the product directly  from the country of origin.

Procedural history: A Belgian public prosecutor brought criminal proceedings  against the Dassonvilles for infringing Belgian law. The law suit was joined by  the exclusive importers and distributors of 'Johnny Walker' and 'Vat 69' in  Belgium, who claimed to have been injured by the Dassonville's importation.

The competent Belgian court then referred relevant questions of EU law to the  Court of Justice for a preliminary ruling.

Legal question: Does a national provision prohibiting the import of goods  bearing a designation of origin where such goods are not accompanied by an  official document issued by the government of the exporting country certifying  their right to such designation constitutes a measure having an effect equivalent  to a quantitative restriction within the meaning of Art. 34 TFEU?
-> Broad definition of measure having and effect equivalent quantitative restrictions. Any measure that have an adverse impact on EU trade is prohibited unless it can be justified by Art. 36 TFEU.

Cassis de Dijon (1979)

Facts: The German retailer Rewe wanted to import from France the French  liqueur "Cassis de Dijon", a fruit liqueur with an alcohol content between 15 and  20% that was lawfully on the market in France. The German authorities informed  Rewe that although it could import the liqueur, it could not sell it in Germany,  because a German law fixed a minimum alcohol content of 25% for such liqueurs.

The German government justified the minimum alcohol content requirement  with public health and consumer protection reasons:

§As to public health, it argued that alcoholic beverages with a low alcohol  content may more easily induce a tolerance towards alcohol than more highly  alcoholic beverages.

§Regarding consumer protection, it claimed that producers had an incentive  to mislead customers about the alcohol content and provide less than  expected by customers, because alcohol constitutes by far the most expensive  constituent of beverages by reason of the high rate of tax to which it is subject.

Answer: Yes. The ECJ created the unwritten rule that "[o]bstacles to movement within the  Community resulting from disparities between the national laws relating to the marketing of the  products in question must be accepted in so far as those provisions may be recognized as being  necessary in order to satisfy mandatory requirements relating in particular to the effectiveness  of fiscal supervision, the protection of public health, the fairness of commercial transactions  and the defence of the consumer." (par. 8 of the decision)

Principle of mutual recognition (Cassis de Dijon principle)

If goods have been lawfully produced and marketed in one member state,  they may be introduced into any other state, even if they contravene  regulations of those goods by the importing state.

This applies even if, like in the Cassis de Dijon case, the regulation is non-  discriminatory, i.e. if it treats foreign and domestic products alike.

Keck

Facts: French law prohibited reselling goods at a loss. A French department store resold goods at a  loss in violation of this law.

Legal question: Is the prohibition on resale at a loss a measure having equal effect to a quantitative  restriction on imports within the meaning of Art. 34 TFEU?

Answer: No. "In view of the increasing tendency of traders to invoke [Art. 34 TFEU] 

§so long as those provisions apply to all relevant traders operating within the national territory and

§so long as they affect in the same manner, in law and in fact, the marketing of domestic products

and of those from other Member States." (par. 16)

§Keck restricts the Dassonville formula in order to limit the reach of Art. 34 TFEU, i.e. after Keck, Art. 34 TFEU  no longer protects against

Øregulations of "selling arrangements"

Øwhich are non-discriminatory, i.e. which, first, apply to all relevant traders and, second, treat foreign and  domestic products alike (in law and in fact)

§After Keck, the question whether a restriction is a "selling arrangement" or another kind of restriction (in particular  a product requirement) has become an important issue in Art. 34 TFEU cases; examples of "selling  arrangements"

§Selling arrangements (like in Keck) and product requirements (like in Cassis de Dijon) are not the only types  of regulatory interferences with the free movement of goods; in more recent case law the CJEU has determined  that other types of regulatory interferences, like restrictions on the use of a product, are within the scope of  Art. 34 TFEU as well; examples

• Differences in product requirements
• Differens in the enforement of product requirements

Art. 114 TFEU: Can be used for regulations, directives and decisions.
Limit of the comptecnces -> Tobacco AdvertisingThe harmonization measure must actually make a contribution to the elimination of obstacles to  the free movement of goods or of distortions of conditions. L

115 TFEU

§CE = Conformité Européenne = European conformity

§CE marking is defined in Art. 30 Regulation 765/2008

§Only products subject to EU harmonization legislation may carry  the CE marking; on the other hand, every product subject to EU  harmonization legislation has to bear a CE marking if it is placed  on the EU market

§The manufacturer is responsible for affixing the CE marking to  the product

§By affixing the CE marking to the product, the manufacturer  affirms that the product conforms with all the requirements of the  relevant EU harmonization legislation (notably, the CE marking  is not a sign of approval by a public authority, it is merely a self-  declaration by the manufacturer)

The sign shows, that the product is subject of the EU harmonization.
The sign doesn’t mean, that it is approved. It means, that the manufactures, say that it follows the harmonization rules.

Step 1: Identify the  directive(s) and  harmonized  standards applicable  to the product
Step 2: Verify the  product-specific  requirements
Step 3: Identify whether an independent  conformity assessment  is required from a  notified body
Step 4: Test the  product and check  its conformity
Step 5: Draw up and  keep available the  required technical  documentation
Step 6: Affixation of  the CE marking to  the product and EC  Declaration of  Conformity

Existing member state regulations: Mutual recognition (Cassis de Dijon principle

 

§In principle, products in non-harmonized areas are entitled to automatic access to other  EU member states' market based on the mutual recognition principle developed by the  CJEU under Arts. 34-36 TFEU

§In practice though, very often implementation problems exist, for instance due to  lack of knowledge of the principle both by companies and by public authorities, or  due to administrative difficulties

§Regulation 764/2008 tries to address some of these problems by

Ødefining basic procedures for determining market access based on mutual recognition  (Arts. 4-8) and

Øobligating each member state to establish Product Contact Points, which have to  provide information on product regulations and contact details of the competent  authorities (Arts. 9-10)

§Directive 2015/1535 (which replaced Directive 98/34, which in turn had replaced Directive  83/189) requires EU member states to notify the EU Commission on planned new  technical regulations (Art. 5)

§From the date of notification, member states have to postpone adoption of the planned  new technical regulation (Art. 6)

Øin any event for 3 months

Øfor 6 months if the EU Commission or another member state delivers a reasoned  opinion arguing that the regulation may create an obstacle to the free movement  of goods

Øfor 12 months if the EU Commission announces its intention to propose  harmonization legislation on the area at issue

• Fiscal barriers:
  • Custom duties and measures having equivalent effect Art. 3-7 FTA (Art. 30 TFEU)
  • Discriminatory int. taxation Art. 18 FTA (Art. 10(1) TFEU)
• Regulatory barriers
  • Quantitative restrictions having equivalent effect
    Art. 13 "& 20 FTA (Art. 34-36 TFEU)
• Rules on competition
  • Art. 23 FTA
    • Private Parties (101-102 TFEU)
    • State: State aid (Art. 107-109 TFEU)

The FTA is negatives intergration!

The first to are unilateral measures.

1)We are not obliged to follow EU rules.

2)When there is no harmonization -> Cassis de Dijon one sided

3)Mutual recognition

Second Tutorial Case is about the copying of aproach and content of the EU for make life easier for swiss business

One-sided Cassis de Dijon Principle

§Art. 16a(1) ATBT: Products may be sold in Switzerland (even if they do not comply  with Swiss product requirements) if

Øthey comply with EU product requirements in case of harmonized product  requirements or otherwise with the product requirements of an EU member state and

Øthey are lawfully marketed in the EU or in the relevant EU member state

§Art. 16a (2) ATBT excludes certain product categories, e.g. chemical products and products  which need a permit by a public authority (e.g. medical products)

§Foodstuffs to which Art. 16(1) ATBT applies need a general permit by the Federal Office on  Food Safety, which checks whether the conditions of Art. 16a(1) ATBT are met (Art. 16c and  16d ATBT)

§Otherwise imported products fulfilling the conditions of Art. 16a (1) ATBT can be sold in  Switzerland without any further permits

§The Cassis de Dijon principle of Art. 16a(1) ATB is called one-sided, because it only  provides access of EU products to the Swiss market, but it does not (and cannot) provide  access of Swiss products to the EU market

Treaty provisions Art. 63-66 TFEU

In Art. 65 are the justification for restrictions

§Natural persons regardless of citizenship or residence

§Legal persons regardless of domicile or state of incorporation

§

Material scope

§Protected activity: (1) Movement of capital

ØDefinition

-  Neither the TFEU nor the Court of Justice in its case law has provided a general definition of  capital or capital movements

-  Directive 88/361 contains in its Annex I a non-exhaustive list of capital movements; the Court of  Justice has accepted this as indicative for purposes of Art. 63 TFEU (Trummer and Mayer [1999])

ØThe material scope includes not only capital movements within the EU but also capital movements  to or from third countries (i.e. countries outside the EU); limits on third-country movements:

-  Certain measures (regarding direct investments, establishment, financial services and admission  of securities to capital markets) imposed until 1993 are excluded (Art. 64(1) TFEU)

-  The Commission or the Council can declare measures imposed by a member state restricting  capital movements with regard to third countries as compatible with the treaties (Art. 65(4) TFEU)

-  If such capital movements threaten to cause serious difficulties for the economic and monetary  union, the Council may take safeguard measures (Art. 66 TFEU)

§Protected activity: (2) Payments

§

Ø  Definition

-  Like in the case of capital, there is no general definition in the TFEU or in the case  law of the Court of Justice

-  In general, payments are transfers of moneys, regardless of the form  (e.g. cash, bank transfer, credit cards, cheques)

Ø  Like in the case of capital, third-country transactions (payments from and to third  countries) are also within the material scope

§Cross-border element: Can be either a transaction involving at least two EU member state,  or a transaction between EU member states and third countries

§Sectoral exemptions: None

Art. 15: Freedom to choose an occupation and right to engange in work:

1.Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.

2.Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of  establishment and to provide services in any Member State.

3.Nationals of third countries who are authorised to work in the territories of the Member States are  entitled to working conditions equivalent to those of citizens of the Union.

Art. 45 CFR: Freedom of movement and residence
 

1.Every citizen of the Union has the right to move and reside freely within the territory of the Member  States.

2.Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals  of third countries legally resident in the territory of a Member State.

Art. 52 CFR: Scope and interpretation of rights and principles
2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised  under the conditions and within the limits defined by those Treaties.

Art. 45-48 TFEU
Art. 45 TFEU -> Substantive issues of free movement of workers

Secondary law:
Regulation 201/192 on freedom of movement for workers within the Union, Directive 2004/38

Matrial scope:
Art. 45 TFEU: The CJEU interpreted the concept of workers broadly. Protected acitivities in Art. 4(3). Cross border element: No wholly internal situation. Public sector exemption 45(4) TFEU -> Functional definition: Participation in the exercise of powers conferred by public law, duties designed to safeguard the general interest of the state, existence of a special relationship of allegian. Another exemption is the applies only to the acces -> allowed to choose only nationals.

Personal scope: Person protected under Art. 45 TFEU

Restriction:

• Is the freedom restricted by an addressee of that freedom?
• Is the measure deemed to be a restriction? discriminiation or non-discriminatory restriction

Justification:

• Written reasons in Art. 45(3) TFEU or unwritten reasons
• Principle of proportionality. 

Bosman

Procedural history: Mr. Bosman brought an action against the UEFA, the Belgian Football  Association and RC Liégois before the competent French courts, asking for damages and for an  order restraining the defendants from requiring a transfer fee as condition for allowing his transfer  to another club. The court referred relevant questions of EU law to the Court of Justice for a  preliminary ruling.

Bosman (1995)

Legal questions: Does Art 45 TFEU preclude the application of rules of sporting associations under  which

§a professional footballer who is a national of one member state may not, on the expiry of his  contract with a club, be employed by a club of another member state unless the latter club has  paid to the former a transfer fee?

§in matches in competitions which they organize, football clubs may field only a limited number  of foreign professional players?

§

Answers

§Transfer fee: Yes. "Provisions which preclude or deter a national of a Member State from leaving  his country of origin in order to exercise his right to freedom of movement (..) constitute an  obstacle to that freedom even if they apply without regard to the nationality of the workers  concerned." (par. 96) The transfer rules were found to be such a deterrence (paras. 99-101).

§Nationality requirement: Yes. Art. 45(2) TFEU expressly prohibits discrimination based on  nationality (par. 1 7) and a limitation on the number of foreign players a club can field "obviously  also restricts the chances of employment of the player concerned." (par. 120)

Art. 49-55 TFEU

Secondary law:

• Natural persons: Directive 2004/38
• Legal persons: -

Material scope:
Distinguish between self employed Art. 49 TFEU from workers Art. 45 TFEU. Protected activities are primary and secondary establishment. Cross border element. Secotral exemption Art. 51 TFEU!

Personal Scope: Natural  persons (self-employed persons) -> Domicile not relevant and legal persons (companies)

• Real seat theory -> Formation and recognition of a company will be governed by the law of the state where it has its central administration or its principle of business.
  Examples: Germany, France...
• Incoporations theory
  Example Switzerland

Centros case: Since United Kingdom (UK) law imposes no  requirement on limited liability companies as to the provision for and the  paying-up of a minimum share capital, Centros's share capital of GBP 100  was neither paid up nor made available to the company. Centros was held  by Mr and Mrs Bryde, Danish nationals residing in Denmark. Mr. Bryde  was also the director of the company. The company's registered office  was situated in the UK, at the home of a friend of Mr Bryde.

Legal question: Is it contrary to Arts. 49 and 54 TFEU for a member state to refuse to register a branch  of a company formed in accordance with the legislation of another member state in which it has its  registered office but where it does not carry on any business when the purpose of the branch is to  enable the company concerned to carry on its entire business in the state in which that branch is to be  set up, while avoiding the formation of a company in that state, thus evading application of the rules  governing the formation of companies which are, in that state, more restrictive so far as minimum paid-  up share capital is concerned?

Answer: Yes "It is true that (...) a Member State is entitled to take measures designed to prevent certain of its  nationals from attempting, under cover of the rights created by the Treaty, improperly to circumvent  their national legislation (...).". However, "[t]he provisions of the Treaty on freedom of  establishment are intended specifically to enable companies formed in accordance with the law of a  Member State and having their registered office, central administration or principal place of business  within the Community to pursue activities in other Member States through an agency, branch or  subsidiary. (..) That being so, the fact that a national of a Member State who wishes to set up a  company chooses to form it in the Member State whose rules of company law seem to him  the least restrictive and to set up branches in other Member States cannot, in itself, constitute  an abuse of the right of establishment."

§Moreover, the Court found that the restriction in this case could not be justified as a measure  necessary to meet an imperative requirement in the general interest (paras. 31-38)

Art. 56-62 TFEU

Art. 57 is the definition of Art. 56 TFEU

Secondary law: 

• Vertical: Directive 2010/13 , Directive 2011/24
• Horizontal (cross-sectoral ) harminozation: Directive on the internal market, directive concerning the posting of workers in the framework of the provision of services (related to the Cassis de Dijon principle)

Material scope:
Defining features of the protected activity: A service provider is someone who provides servies, normally for remuneration Art. 57(1) TFEU. Include: Illegal services in the hosttate. Excludes services provided by the stat efree of charge.
-> Posted workers. Personal scope: Natural person s (Art. 56(1 & 2) TFEU). Legal persons acc. to Art. 54 TFEU

Restriction:

• Is the freedom restricted by an addressee of that freedom?
• Is the measure deeemed to be restriction?

Justifiaction?
Written reasons Art. 62 TFEU. + principle of proportionality

Free movement of workers, freedom of establishment, free movement of services, free movement of persons not pursuing an economic activity.

-> In general direct effect (Art. 11 AFMP).

Relationship to EU: Extending Eu law to the Swiss-EU relationship. It makes explicit references to EU legislation which shall also apply between CH and EU (Art. 16(1) AFMP. It is a static agreement -> no dynamic adoption of new provisions.

• Restrictions of competition private parties (Art. 101-106 TFEU)
  • Agreements
  • Abuse of dominant market position
  • merger control
• Restrictions of competition by the state: Stateaid Art. 107-109 TFEU

In most case when people are talking about competition law, then they mean restrictions of competition.