How Peter Griffin Ltd May Challenge the Legality of the European Commissions Actions - Assignment Example

Business Law al Affiliation) C How Peter Griffin Ltd may challenge the legality of the European Commission’s actions. The question mainly addresses the topic of European Union single market disputes with regard to European Union Business Law. European Union law is basically a body of treaties and legislation, which have direct or indirect effect on the laws of European Union member states. Any issues or disputes arising within the European Union as a result of this legislation, whether against member states inter se or against the EU, will have to be resolved .This duty of resolving such disputes falls on the judicial branch of the EU. It consists of three courts: the Court of Justice, the General Court and the European Union Civil Service Tribunal. Together they interpret and apply the treaties and the law of the EU . The Court of Justice primarily deals with cases taken by member states, the institutions, and cases referred to it by the courts of member states .The General Court mainly deals with cases taken by individuals and companies directly before the EUs courts, and the European Union Civil Service Tribunal adjudicates in disputes between the European Union and its civil service .Decisions from the General Court can be appealed to the Court of Justice but only on a point of law. The mission of the Court of Justice of the European Union mission is to ensure that “the law is observed….in the interpretation and application" of the Treaties . The Court reviews the legality of the acts of the institutions of the European Union; ensures that the Member States comply with obligations under the Treaties; and interprets European Union law at the request of the national courts and tribunals.1 In the given scenario, Peter Griffin Ltd (PG), an importer of American wine in the United Kingdom, is unhappy with an EU regulation whose application negatively affects its operation. Under the provisions of EU law, PG can either pursue litigation as a means of having its issues 2addressed, or pursue alternatives to litigation. Either way, Peter Griffin Ltd may challenge the legality of the European Commission’s act. PG could challenge the regulation in court either directly or directly. Direct challenges would entail either an action for annulment (as provided in Article 263 TFEU) or an action for inaction of the regulation (Article 265 TFEU). Indirect challenges would entail either a plea of illegality (Article 277 TFEU) or references on validity of the regulation (Article 267 TFEU). If PG was to opt for alternatives to litigation, the European Ombudsman and the Committee on Petitions would be the options available .However, The Court of Justice of the European Union has the mandate, in accordance with the Treaties, to decide on such matters as PG’s. This is provided for under Article 19 of The Treaty on European Union (TEU). Article 263 of The Treaty on the Functioning of the European Union (TFEU) goes on to state: “The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties”. These provisions give PG the avenue through which it may challenge the legality of the regulation it is against . Article 267 TFEU underlines that The Court of Justice of the European Union has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties, and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. An action for annulment as provided under Article 263 TFEU entails privileged or non – privileged applicants. The former can challenge any reviewable act without showing interest while the latter cannot . The article provides for a ‘semi-privileged’ class which can challenge any reviewable act but only if the apiplicant can show that its interests have been affected. An applicant may challenge an EU regulation for fear of facing financial ruin. The applicant would be required to establish a direct link between the challenged measure and the damage or loss suffered (The Plaumann problem (Case 25/62). EU Courts ask who has been affected by the measure in question. Applicant must show they have been affected in a way that sets them apart from others affected by the measure as this qualifies them into a ‘closed category’ (depicted in case 11/82Piraiki-Patraiki (Greek cotton)). Otherwise they will be classed as belonging to an ‘open category’ and therefore unable to challenge (envisaged in Case 231/82 Spijker (Chinese brushes)). 3 Should PG present its case and the court rule in its favor, it would succeed in having its issues addressed . Article 277 TFEU provides that a party may plead the grounds specified in the second paragraph of Article 263 in order to invoke before the Court of Justice of the European Union the inapplicability of that act. The effect of this would be to free PG of any obligation to fulfill any provision of the EU Regulation. However, all the proceedings provided for in Article 263 TFEU should be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or of the day on which it came to the knowledge of the latter, as the case may be. This is provided for in the last paragraph of the article. Failure to meet this deadline would hamper PG’s cause of seeking redress. 4 D. Whether, considering the implications under EU Law, the parties should enter into an agreement on these terms. This question mainly addresses the topic of European Union Competition Law. The purpose of this law is multi – fold: Prevents monopolies which large and powerful companies use to abuse their economic dominance in the market, allows small and medium-sized businesses to be harmed 5defeats competition, restricts consumer choice and results in higher prices (Rose); Prevents distortion of Competition resulting from collusion between different businesses (Article 101 TFEU) and the predominant power of a single business (Article 102 TFEU); Prevents recreation of obstacles to free movement of goods, services and persons by private firms, which the member states are prohibited from maintaining . Issues severe penalties to firms in breach Can be invoked against businesses that trade within the EU regardless of where their registered office is . In the given scenario, Happy-Go-Lucky Toy Factory (HGL) is proposing to enter into a distribution agreement with Monkey Me (MM). The concept of an agreement within the meaning of Art 101(1) TFEU, as interpreted by the case law, centers on the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties intention. The effect of this is that an agreement does not have to be written, nor does it have to be legally binding . It is also irrelevant that a party has entered into the agreement reluctantly or with reservations . HGL and MM, both undertakings (entities engaged in economic activity regardless of their legal status or source of finance) in their own respect, have merely agreed on the terms to the agreement and are yet to enter into a formal agreement. Article 101(1) TFEU (previously Art. 81 TEC) renders all agreements between undertakings and decisions by associations of undertakings and concerted practices, which may affect trade between member states and which have as their object or effect the prevention, restriction or 6distortion of competition within the internal market as being prohibited, as they are incompatible with the internal market. Particularly, the article prohibits directly or indirectly fixing purchase or selling prices or any other trading conditions; limiting or controlling production, markets, technical development, or investment, sharing markets or sources of supply; applying dissimilar conditions to equivalent transactions with other trading parties. Thereby placing them at a competitive disadvantage; and making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations, which, by their nature or according to commercial usage, have no connection with the subject of such contracts. Article 102 (ex Article 82 TEC) is to the same effect. The first term of the proposed agreement between HGL and MM provides that HGL will appoint MM as HGL’s only authorized distributor in France and that HGL will not sell its own products directly to customers in France. This is in contravention with Article 101 as it clearly prohibits agreements of undertakings which limit or control production, markets, technical development, or investment; or which are to the effect of sharing markets or sources of supply. The third term of the agreement provides that MM will re-sell HGL’s toys at prices determined by HGL. Article 101(1) TFEU prohibits agreements of undertakings, which directly or indirectly fix purchase or selling prices or any other trading conditions. 7 Any agreements or decisions prohibited pursuant to this Article shall be automatically void (Article 101(2) TFEU). Consequently, the proposed agreement between HGL and MM cannot come to fruition in its current form as that would be repugnant to the provisions of this Article and the entire Treaty as a whole (Folsom, Principles of European Union law, 2011). However, Article 101(3) TFEU provides exceptions to these provisions. These are: any agreement or category of agreements between undertakings, any decision or category of decisions by associations of undertakings, any concerted practice or category of concerted practices, Which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not? (a) Impose on the undertakings concerned restrictions, which are not indispensable to the attainment of these objectives; (b) Afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.Conquistador was a name given to the warriors and explorers from Spain who took over and dominated over much of the American colonies in the sixteenth century. The most widely known subjugation were the ones that involved the conquering of the city of Tenochtitlan, the conquering of the Mayan empire, and the domination over the 89civilization of Peru. The Spanish explorers also subjected the Caribbean colonies to a lot of terror10. The purpose of this paper, therefore, is to look into the issue of the Spanish armies in the 1500s and 1600s, and especially at the issue of conquistadors, and discuss their contribution to the history of this period. Hernan Cortes was one of the leaders of the Spanish warriors and explorers. He lived between the period of 1485 and 1547. During his time, he led numerous invasions through which he conquered empires, as well as, ruined civilizations11. In 1506, Cortes is believed to have sailed to Santo Domingo in search of material wealth and military adventure. During his time, he led a total number of 600 men who helped him conquer and capture Mayan, from where he obtained numerous slaves and concubines. He soon started to lust for power rather than wealth. The leader’s success in invading the Aztec capital was furthered considerably by his concubine Malinali, who he had captured in Mayan. The Spaniards were extremely advanced in war weapons and armor, unlike their captives. As a result, of these weapons and tools they were able to conquer many emperors. Subsequent influenza, measles and small pox outbreaks served as an ally of the Spanish army in conquering Aztec. Through his cunningness, Cortes was able to conquer and take over the Aztec empire12. Francisco Pizarro was also another powerful military leader of the Spanish armies. He led his men towards the Inca Empire, which was extremely powerful. This empire was as well conquered with the help of diseases. Spain managed to conquer and rule over much of the western hemisphere in thirteen years. As soon as the conquistadors had conquered these empowers, the monarchs of Spain took over by establishing complex, bureaucratic empires. This had significant impacts in the regionii. For example, they permanently changed the natural environment by the introduction of human diseases, livestock and food crops from different continents. The conquistadors also enslaved numerous civilians from these empiresiii13. The reign of the Spaniards also saw the downfall and the destruction of many civilizations and empires. For example, the civilizations of Mexico, as well as, that of Peru lay in ruins after the conquistadors were done with them14. The Spanish conquistadors managed to conquer and take over much of the civilizations in the western hemisphere. As it follows, they influenced the new shape of the society that followed these conquests. The Spaniards took new ecological impacts wherever they went, for example, they introduced new foods and produce to their destinations, as well as, new diseases. The cultural heritages of these civilizations were also forever changed as a result of intermarriages and slavery. Bibliography Arnull, Anthony. The European Union and its Court of Justice. Oxford University Press, 1999. Bermann, George A. Cases and materials on European Union law. West Group, 2002. Berry, Elspeth, and Sylvia Hargreaves. European Union law. Oxford University Press, 2007. Bodewig, Frauke. Unfair competition law: European Union and member states. Kluwer Law International, 2006. Cairns, Walter. Introduction to European Union law. Cavendish, 2002. Communities, Office for Official publications of the European. Consolidated versions of the treaty on European Union and of the treaty on the functioning of the European Union: charter of fundamental rights of the European Union. 2010. Communities, Office for Official Publications of the European. The Court of Justice of the European Communities. 1998. Emmert, Frank. European union law: cases. Kluwer Law International, 2000. European Union, Council. Report of the Council on the functioning of the Treaty on European Union. 1995. Folsom, Ralph Haughwout. European Union law in a nutshell. Thomson/West: 7th edition, 2011. —. Principles of European Union law. 3rd Edition: Thomson/West, 2011. Howells, Geraint G. European business law. Dartmouth, 1996. Kaczorowska, Alina. European Union law. Routledge-Cavendish, 2009. Mathijsen, P. S. R. F.. A guide to European Union law. Sweet & Maxwell, 2004. Rose, Vivien. European Union law of competition. Seventh Edition. Sideri, Katerina. Laws practical wisdom the theory and practice of law making in new governance structures in the European Union. Ashgate, 2007. Read More