Stappenplannen EU Law
Freedom of Establishment and Freedom to Provide Services
1. Does the dispute fall under the scope of EU law, and what law is applied?
a. Is EU Law applicable?
i. Personal scope
1. National from a Member State of the European Union
ii. Material scope
1. Cross-border element
2. Economic activity
a. Must be legal (Josemans)
b. What law is applied?
i. Art. 49 -> Establishment
1. Stable and Continuous basis (Gebhard)
ii. Art. 56 -> Services
1. Temporary basis
iii. Services Directive
2. What is the nature of the restriction
a. Directly discriminatory
b. Indistinctly applicable measures
c. Indirectly discriminatory
3. Is there a justification possible
a. Ground of justification
i. Directly discriminatory
1. Establishment -> art. 51 and 52
a. Public Policy
b. Public Security
c. Public Health
2. Services -> art. 62 jo. Art. 51 and 52
a. Public Policy
b. Public Security
c. Public Health
ii. Indirectly discriminatory
1. Rule of Reason (Gebhard)
a. Public non-economic interest (open list)
b. Other requirements
i. Suitable
ii. Necessary
iii. Stricto sensu
Competition Law (article 101 TFEU)
1. Are there undertakings involved?
a. Undertaking
i. Pursue an economic activity (Höfner and Elser)
1. Offering goods or services on the market (Ambulanz Glöckner)
2. For profit (Pavlov)
b. Association of undertakings
, i. undertakings of the same general type and makes itself responsible for
representing and defending their common interests (Wouters)
2. Is there collusion between those undertakings?
a. Undertakings
i. Agreements
1. Concurrence of wills between parties (Bayer)
ii. Concerted practice
1. Concerted practice is the only plausible explanation (Woodpulp)
b. Association of undertakings
i. Decision of an association
3. Does this collusion have an appreciable object or effect of restricting competition?
a. By object
i. Limited list in art. 101 (1)
b. By effect
i. Actual and potential effects of the collusion (Brasserie de Haecht)
ii. Must be based on analysis of the economic and legal context in which the
agreements at issue occur and the specificities of the relevant market
(Maxima Latvija)
iii. De minimis notice
1. Horizontal -> market share of 10% or more
2. Vertical -> market share of 15% or more
4. Does this collusion have an appreciable effect on trade between Member States?
a. Does this agreement prevent players from other member states to enter the market?
5. Can the collusion be exempted?
a. Art. 101(3)
i. Improvement of production or distribution
ii. Consumers must benefit
iii. Indispensability
iv. No elimination of competition
Competition Law (article 102 TFEU)
1. Are there undertakings involved?
a. Undertaking
i. Pursue an economic activity (Höfner and Elser)
1. Offering goods or services on the market (Ambulanz Glöckner)
2. For profit (Pavlov)
2. Does the undertaking have a dominant position on the given market?
a. Relevant market
i. Product market
1. SSNIP test
2. Supply substitutability
ii. Geographic market
1. SSNIP test but with location
b. Market power assessment
i. Market share
1. Over 50% is dominant (Akzo)
ii. Barriers to enter the market
1. For example
Freedom of Establishment and Freedom to Provide Services
1. Does the dispute fall under the scope of EU law, and what law is applied?
a. Is EU Law applicable?
i. Personal scope
1. National from a Member State of the European Union
ii. Material scope
1. Cross-border element
2. Economic activity
a. Must be legal (Josemans)
b. What law is applied?
i. Art. 49 -> Establishment
1. Stable and Continuous basis (Gebhard)
ii. Art. 56 -> Services
1. Temporary basis
iii. Services Directive
2. What is the nature of the restriction
a. Directly discriminatory
b. Indistinctly applicable measures
c. Indirectly discriminatory
3. Is there a justification possible
a. Ground of justification
i. Directly discriminatory
1. Establishment -> art. 51 and 52
a. Public Policy
b. Public Security
c. Public Health
2. Services -> art. 62 jo. Art. 51 and 52
a. Public Policy
b. Public Security
c. Public Health
ii. Indirectly discriminatory
1. Rule of Reason (Gebhard)
a. Public non-economic interest (open list)
b. Other requirements
i. Suitable
ii. Necessary
iii. Stricto sensu
Competition Law (article 101 TFEU)
1. Are there undertakings involved?
a. Undertaking
i. Pursue an economic activity (Höfner and Elser)
1. Offering goods or services on the market (Ambulanz Glöckner)
2. For profit (Pavlov)
b. Association of undertakings
, i. undertakings of the same general type and makes itself responsible for
representing and defending their common interests (Wouters)
2. Is there collusion between those undertakings?
a. Undertakings
i. Agreements
1. Concurrence of wills between parties (Bayer)
ii. Concerted practice
1. Concerted practice is the only plausible explanation (Woodpulp)
b. Association of undertakings
i. Decision of an association
3. Does this collusion have an appreciable object or effect of restricting competition?
a. By object
i. Limited list in art. 101 (1)
b. By effect
i. Actual and potential effects of the collusion (Brasserie de Haecht)
ii. Must be based on analysis of the economic and legal context in which the
agreements at issue occur and the specificities of the relevant market
(Maxima Latvija)
iii. De minimis notice
1. Horizontal -> market share of 10% or more
2. Vertical -> market share of 15% or more
4. Does this collusion have an appreciable effect on trade between Member States?
a. Does this agreement prevent players from other member states to enter the market?
5. Can the collusion be exempted?
a. Art. 101(3)
i. Improvement of production or distribution
ii. Consumers must benefit
iii. Indispensability
iv. No elimination of competition
Competition Law (article 102 TFEU)
1. Are there undertakings involved?
a. Undertaking
i. Pursue an economic activity (Höfner and Elser)
1. Offering goods or services on the market (Ambulanz Glöckner)
2. For profit (Pavlov)
2. Does the undertaking have a dominant position on the given market?
a. Relevant market
i. Product market
1. SSNIP test
2. Supply substitutability
ii. Geographic market
1. SSNIP test but with location
b. Market power assessment
i. Market share
1. Over 50% is dominant (Akzo)
ii. Barriers to enter the market
1. For example
