European and International Law

Law ① Role of Law in Globalization Impact on national and global economy trade (barriers), taxes abolition of trade barriers: more production in countries with the lowest production costs, fewer restrictive legal systems, sell in countries with the highest prices Pros: connected, cultures travel Cons: exploitation, climate change, poor countries, job loss, dependency ② European Union Law Treaties Treaty on European Union (TEU) Treaty on functioning of the EU (TFEU) Charter of Fundamental Rights of the EU legally binding (EU, MS, EU citizens) national legal regime superior to other legal acts development EU is supranational geographical expansion after WW2, power balance, cold war, Lisbon Treaty (new TEU + TFEU) reducing national sovereignty EECS (coal + steel), 1957 -> Treaty of Rome, EEC Sources of Law Treaties 2ndary legislation: regulations, directives, decisions, opinions case law general principles international agreements entered into by EU Institutions Checks + balances legislative + executive branch -> more interrelated than in MS judiciary is independent Summary + implementation decline of supremacy (ECJ) -> superior to national law direct effect vs. direct applicability -> indirect effect regulations have general application directives do not directives must be implemented by national legislators direct effect: exception -> non-implementation of directives conditions of direct effect: directive has not been implemented in time/correctly conveys rights to individuals must be clear, precise, unconditional state liability: conditions result (directive): grant rights to individuals identify contents of rights link between MS's failure + loss suffered by individual ③ EU Institutions European Council European Commission European Parliament Court of Justice of the EU - ECJ Court of Auditors Advisory bodies: Economic & Social Committee, Committee of Regions criticism: checks and balances but only judiciary independent legislative + executive more interrelated Commission (executive arm) Council (legislative arm) Sources of Law Case Law decisions of ECJ are binding on us in any given case set non-binding precedents by interpretation of EU law -> possible to predict decisions of ECJ Law making process EU legislation only legible on legal basis Treaty article: procedure, voting, requirements Subsidiary: EU acts if and in so far for action can't be achieved by MS principle of subsidiarity Proportionality: measure only if necessary Fundamental Rights higher ranking, binding on state Germany: Basic Law (beginning constitution) ECJ/EGR: free movement of goods/people/services/capital Charter of Fundamental Rights of EU dignity, freedom, equality, solidarity, citizen's rights, justice EU Fundamental Freedoms internal market: free movement of goods on-ly process half-rights to establish, goods, services, capital free movement of goods workers self-employment freedom of establishment freedom of services free movement of capital Common Market internal market area where goods/ppl/services/capital move freely without restriction includes customs union: free trade area, duty is charged on goods entering from non-MS integration: elimination of restrictions deregulation EU law eliminates national laws Customs rules, state monopolies, regulation guarantees to border customs Free movement of goods goods = products that can be valued in money -> forming transactions borderline cases: human blood has a commercial value transport of non-reusable waste, freedom of services drugs: products that are prohibited are not protected free movement: imports exports Transit third country: free movement if import duty is paid, compare to customs duty prohibition of: restrictions on free movement of goods early barriers -> customs duties non-tariff barriers -> quantitative restrictions measures having equivalent effect HEQR's: health, safety, packaging, marketing requirements General Principles equality: nationality, gender, ethnic proportionality: measure only if necessary legal certainty: distinction legal/illegal, clear non-retro-activity: i.e., penalties not retroactive legitimate expectation International Human Rights legal: political, moral - well-being of individuals negative rights: rights-rights positive rights: socio-economic rights gov small impact, foreign policies protect rights UN big role Good Governance processes - institution's results met needs of society, efficiency, sustainability participation: rule of law, transparency, responsiveness, accountability equity + effectiveness + efficiency: consistent, elaborated Glossary loan: total restraint, blocking import/export customs duty: duty charged on goods (crossing borders) quantitative restrictions: non-tariff barriers import/export limitation quota: partial restriction, limiting quantity tariff barriers: import/export restriction including payments (customs, duties charged) Tariff barriers import/export restriction involving direct payment customs duty measure having equivalent effect exception: charges for services rendered (less for health inspection) service must be about benefit to importer/exporter not a general system of service prohibition of discrimination of taxation Non-tariff barriers measures = total/partial restraint of cross-border trade quantitative restrictions non-fiscal, numerical approach quota = limit quantity measures having equivalent effect to quant. HEQRs HEQRs: health, safety, packaging, marketing requirements Law ② 2. U. 1 Dassonville formula: C-8 74 all trading rules capable of hindering, directly or indirectly, actually or potentially, intra-EU trade MEQR lawfully labelled abroad by product gov, spreading campaigns to domestic products marketing origin, packaging, ingredients marketing arrangement MS must prevent illegal barriers Keck Principle: C-267 268-31 "national measures regulating selling arrangements" not MEQR, "purely formal" given they: apply to all traders operating in national territory affect marketing of domestic products in the same manner as those from other MS "rules on": scale of a store advertising hours business opening hours promotions, discounts borderline cases: TV advertising, loan may disadvantage new-comers from other MS "non-applicable on": product related rules non-use of product system of restricting use of jetskis on waterways Cases: "Cassis de Dijon": C-120 78 Part I: Principle of mutual recognition = state - of - origin goods produced + marketed in MS - introduced in another without being subjected to further restrictions Part II: restrictions must be accepted in so far as they are necessary for satisfying a public good, (e.g. regulations) "requires of mandatory reasons": tax collection, public health, consumer protection, fair trading must be a good reason for this + imported products authority and necessity applicable measures Derogations Article 36 "prerequisites for derogation": exhaustion: last, no environment-protection applies to directly + indirectly applicable measures proportionality: no discrimination, restriction on trade "enable mandatory reasons": public morality, public policy, public security, human/animal/plant health, industrial property... "Judge-made law": Cassis de Dijon rule of reason mandate requirements: effectiveness of fiscal supervision consumer protection, public health -> cassis fairness of commercial transactions consumer protection "environmental protection": Danish bottles "legitimate objectives of economic + social policy" (added national + regional, socio-cultural characteristics) Checklist: Art. 34 good from EU or 3rd country national measure legitimate derogation Free movement of persons/services Free movement rights Union citizenship Workers self-employed services employed Free movement of workers main concepts: employment relationship performance of services (for a period, direction of service) fee for a certain period in time remuneration: compensation migrant/seasonal/frontier/part-time workers "free movement rights" "borderline cases": work as part of social reintegration program participation in a drug-rehabilitation program student work, tipping of pooled money exceptions: job seekers, former workers, family members family members too (also from 3rd country) problem: discrimination of workers Art. 45 "right to enter" "job-seekers" also benefits "minimum welfare tourism" "right of residence" "right to remain" (also retired workers) "derogations" (public order, security, health) "employment, remuneration, other conditions" "equal eligibility + treatment" for employment economic, social + tax advantages problem: EU intervention on US social welfare system Violations: in/direct discrimination and direct: only when a German-speaking midwife can't get a job in Spain Public service, exemption 45(4): no access to employment in public sector involves exercise of government authority necessary for safeguarding national positions Checklist legitimate objectives must be appropriate means least restrictive means weighed up balance MS must prevent illegal barriers Freedom of Establishment 49 self-employed companies right to take up + pursue activities as self-employed right to set up + manage undertakings (companies, firm) 54 agencies, branches, subsidiaries of undertakings established in territory of any MS by nationals of any MS Problems of self-employed person national laws on: rules of professional professional qualifications solutions: mutual recognition of qualifications harmonization Free movement of Services 57 (cross-border activities): physical, legal, industrial, commercial, professional services internal to one provider/recipient move from state to another (temporary) provided for remuneration, like self-employed person 62 freedom of temporary establishment state of origin rule Exceptions: 62 + 52 public policy public security public health proportionality test To Establish vs To Service permanent installation vs. duration frequency continuity high/low Alpine Investments financial services: Dutch rules to make "cold calls" consumer protection, reputation Dutch finance industry principle: no restrictions on services 56 even prohibited, also from own state + destination also affects potential recipients in other MS Art. 56 does not preclude national rules consumer protection of non-foreign consumers good reputation + proportionality test proportionality: go beyond what's necessary to achieve prohibiting can be the only way of protection -> MS can prohibit Infringements of Treaty mental Freedoms by Members of Civil society directed against performance of MS Case C 415 93 - Bosman (football player/association) problem: "intermediate powers" in society = severe threat to freedom autonomy of private actors is in danger of transform. of freedoms into obligations of private parties All Freedoms of Persons national measures refusal of entry/expulsion direct discrimination indirect discrimination non-discrimination does measure prevent/hinder market access? breach Art. * Yes -> breach Art. No -> no breach saved only by express derogation + fundamental human rights + proportionality unless justified by public interest requirements or express derogation + fundamental human rights + proportionality 45,49,56,21 Law ③ EU Competition Law Ensuring that firms don't restrict/distort competition competition produces what customers want (efficiency, welfare) anti-competitive business practices: threaten internal market harm consumers harm small/medium sized businesses (SMEs) reduce business efficiency Art. 3: EU aims for highly competitive economy no barriers against entry for new companies/industries encouraging economic activity of SMEs Rules of: anti-competitive agreements (101) abuse of dominant position (102) restriction of aids granted by state (107) transparent + fair public procurement by public tender Anti-competitive agreements (Art. 101) All agreements between undertakings decisions by associations of undertaking concerted practices which may affect trade between MS and which have as their objective/effect: prevention/restriction/distortion of competition Agreement: formal contract Concerted arrangements: informal arrangements Undertaking: legal person engaged in a commercial activity Decisions by: coordination through trade associations or professional organizations Examples a. price fixing / fixing other conditions b. limit/control product, markets, investment, technology development c. sharing markets / sources of supply d. application of dissimilar conditions to equivalent transactions with other trading parties may be justified i.e., placing selected trading parties at a competitive advantage e. supply goods having no connection to contract Hard-core restrictions: non-exhaustive catalogue Exemption 101(3) agreement contributes to improving production/distribution of goods or promoting technical/economic progress allows consumers a fair share of the benefits which doesn't: impose restrictions that are indispensable -> proportionality test possibility of eliminating competition Case: please see your laundry detergent washing machines necessary to achieve benefits Agreements cover when continuous and not a one-off horizontal agreements: between parties of the same level of production/distribution chain e.g., 2 manufacturers agree to sell some products at the same price vertical agreements: between parties operating at a different level of production/distribution chain e.g., a retailer agrees to sell only products from a supplier Matters of jurisdiction Dassonville formula: effect on trade wherever possible to foresee that the agreement may have an effect on trade between MS even agreements within MS even agreements of companies outside EU if no interstate effect, jurisdiction of national authorities Sufficient to establish objective (intention) or effect (result) -> even potential impact exclusion of agreements of minor importance EU commission notice (De Minimis) non-binding no-insignificant impact doesn't apply to agreements containing hard-core restrictions Enforcement by EU commission (101-102) enforcement by European Commission European Commission -> investigate, fines Individual exemption (Commission) -> block exemptions regulation 330/2010 for vertical agreements EU Competition Law Mergers EU merges control: Regulation 139/04 large EU, small national restrict merges to avoid dominant positions Abuse of a dominant position Art. 102 applies: for more undertakings abuse of a dominant position within internal market prohibits: abuse of this position which is capable of affecting trade between MS applies: where organizations have a near monopolistic position share in oligopolistic market or small companies takes unfair advantage by detriment of market other companies consumers provides that: affects trade between MS within internal market unilateral position may suffice "abuse": (pricing, imposing, discriminating, refusal to supply) Market definition relevant product market defined by product substitutability in which market does undertaking operate? relevant market dominance in relevant market market share (50% or less fragmented market is not dominant) market structure duration of market position financial and technical resources vertical integration intellectual property rights essential facilities (barriers to entry) Abuse exploitative -> targets consumers anti-competitive -> targets competitors e.g.: excessive prices predatory pricing, imposing import/export bans discriminating, refusal to supply "Boyes" - Adalat no agreement between parties, unilateral conduct "Boyes" redirects imports -> abuse dom. position monopolizing final destination but no abuse when enough products are present relevant market: Adalat: yes Cardio-Vascular: no Kardio-Vascular +: yes -> dom. share State Aid - Art. 107 Definition: state aid (only resources from state budget) advantages in any form (subsidies, loans, tax reduction, gifts) "different from competition" by favouring certain undertakings the production of certain goods likely to affect trade between MS in principle: incompatible with the internal market Art. 107 only prohibits subsidies by MS, not by EU Private Investor Principle selective measures: state aid, unless they satisfy the private investor principle is it state aid? -> private investor test "applicable when": public authority acts as a private investor "must not" pursue financial measures to commercial transaction only applies to economic activities (offering goods + services) criteria: does the undertaking receive an economic advantage? is the return insufficient by reference to the private investor principle? Economic Obligations "good" and "bad" competition reduce efficiency, costing free riders effect Altmark criteria where a state measure is compensation for services provided by undertaking (public service obligation) so that undertakings don't face financial disadvantages "reasonable comp." position than competing undertaking measure not caught by Art. 107 Criteria: undertaking must have public service obligations must be clearly defined parameters on basis of compensation must be established in advance compensation must not exceed what is necessary to cover costs Exceptions General Art. 107(2): "shall be compatible" aid having a social character aid to make good a damage caused by natural disasters aid related to German reunification