Principles of Law of European Union - Coursework Example

?EU Law Table of Contents Question 3 Principles of EU LAW 3 Principles of Directive 2004/38 3 Case 48/75 Royer under Directive 2004/38 -14(4) (b) 4Article 18 TFEU 5 Article 6 of Regulation 1612/68 5 Case of Lawrie, Blum 6 Case of Trojani 6 Purposes of Employment - Article 45(3) 7 Question 2 8 Restrictions on Free Movement of Goods 8 Directive and Dassonville Case 9 Cassis de Dijon Case 10 Question 3 11 Summary of the Case 11 Undertaking 12 Case of United Brands v Commission 12 Substantial Part of Market 13 Case of KAFE AZKO 13 Case of Hoffmann-La Roche 14 References 15 Question 1 Principles of EU LAW “Free Movement of Workers” is a central principle of EU Law. According to this law, the EU inhabitants are permitted for searching employment opportunities in other EU nations and work there. The law, in this regards, state that EU inhabitants can also reside in other EU nations for employment purposes possessing the right to identical treatments in comparison to other residents concerning job opportunities and similar welfares concerning working situations (European Commission, n.d.). In this regards, Article 21 states that there should not be any discrimination with respect to religion, colour, cultural or social origin, generic features, language, political faith, minority, property, disability, age and gender (Pearson Education, n.d.). Principles of Directive 2004/38 Article 6 denotes that EU Citizens have the right of residence on the area of other EU member nations for a period up to three month (Europa, 2004). Hence, considering the principles stated in Article 6 of EU Law, as an EU citizen, Sally has the right to reside in Spain for employment purposes for three months. However, if Sally desires to remain in Spain for over 3 months, there is a need for registering herself with any of the relevant governmental bodies in the region such as “town hall” or “local police station”. As Sally wants to settle down permanently in Spain, she only needs to reside in the city with legal registration for a minimum of 5 consecutive years as an employee designated in Spain. In that case Sally will be eligible to enjoy the right of permanent residence in Spain as long as she wishes to (Europa, n.d.). Directive 68/360 offers employees to migrate in different regions of EU proposing the entry decorum which the member state might execute, such as departure from residence certifications. The Directive principles have also been pursued for eliminating needless limitations on the “Free Movement of Workers”. This directive principle has perpetually narrowed the pathway for employees, so that they can search for work in any other EU nations. On the basis of Directive 2004/38/EC, the people of EU can authorise their existence in any of the EU nations within a rational and unbiased span of time. However, depending on the duration to reside in foreign nations, other procedures also require to be fulfilled (European Parliament, n.d.). Case 48/75 Royer under Directive 2004/38 -14(4) (b) The case of Royer provides significant insight about the free movement of workers. The case agrees that freedom of institution of self-employed person and autonomy to offer services are all reinforced by the injunction of discrimination with respect to nationality. In the case, it has been depicted that freedom of employees depend on the similar principles as they concern the entry and reside into other EU nation which has been considered within the community regulations and the preventions of all judgements which is majorly based on racial differences (Tovey, 2003). Article 18 TFEU The subject matter of Article 18 TFEU is to implement initiatives with the aim to combat discrimination on the basis of nationality. To be precise, this article states that the right of individuals will not be differentiated with respect to race which is considered as the fundamental principle of EU law (Pearson Education, n.d.). Article 6 of Regulation 1612/68 In the year 1968, the “Council of European Communities” sanctioned “Council Regulation 1612/68” with respect to race. This principle provides differing views about the primary objectives for the formation of European Economic Community (EEC). It defines the right of employees to obtain job opportunities and settle in any other EU nation. The right of people to ‘freedom of movement’ is improved by numerous provisions of the regulation. For instance, as mentioned in the Article 6, it has been stated that “the engagement and recruitment of a national of one Member State for a post in another Member State shall not depend on medical, vocational or other criteria which are discriminatory on grounds of nationality by comparison with those applied to nationals of the other Member State who wish to pursue the same activity” (Europa, 2004). Case of Lawrie, Blum In EU law, the explanation regarding the term ‘worker, is an important aspect for employment associations. The case of Lawrie Blum provides significant insight about the definition of worker so as to confine the regulative measures for better efficiencies. According to the case, the word ‘worker’ denotes any individual who perform with the intention to obtain a fixed salary by a registered/unregistered organisation or even an individual or household. As Sally is currently performing in a job as a Chambermaid, for a fixed salary, Sally can be termed as worker in Madrid. As the ‘freedom of movement’ of workers constitutes one of the central ‘principles of community’, the term ‘worker’ is not inferred in a different way in the regulation of each EU nation having a particular community meaning (UK Council for International Student Affairs, n.d.). Case of Trojani The case of Trojani gives another idea regarding the right of an EU citizen working in any of the EU nations. The right to enjoy the benefits of state is concerned with the ‘right to citizenship’, as every citizen can enjoy the state provided welfares. The ‘right to citizenship’ is a fundamental opportunity rendered for the benefits of each European person. In the EC Treaty, a distinction can be established between commercial and non-commercial immigrants. Contextually, the commercial immigrants possess stronger claim on state benefits (Europa, 2004). Purposes of Employment - Article 45(3) Whether Sally and her son can reside and work in Madrid depends on her purpose for residing as per the Article 45 of TFEU which provides the belief of free movement of employees. According to the Article 45 of TFEU, any EU nation residents have the right to be employed in other EU nation and live there for employment reasons which in turn indicates that Sally can reside in Madrid (Eurofound, n.d.). Question 2 ‘Free movement of goods’ depicts the extent of liberty provided by European Union to the business organisations. Since 1993, the regulations on the transfer of commodities in the regional market have been eradicated. Hence, EU is presently considered as a sole region without internal boundaries. Led by the influence of this change, the eradication of customs tariffs promoted intra-community business which currently represents a larger proportion of total imports and exports in the EU nations. The articles 28 and 29 of the Treaty prohibit the restrictions which are imposed on imports and exports among the member nations of EU. Restrictions on Free Movement of Goods The principle of “free movement of goods” is the major component for forming and improving the inner market in the entire EU region. It is one of the monetary liberties recognised by EC Treaty. Articles 28 to 30 of EC Treaty describe the potentials and content of the principles by removing unfair restrictions on intra EU business. However, in present days, the regional market moves beyond the Treaty articles which has resulted in an precise description of the term ‘intra-market’ and has thus, outlined the code of “free movement of goods” with respect to substantial stipulations for particular commodities. These codes can restrict the “free movement of goods” in EU member states. Hereby, the central purposes of the Treaty principles are to act as a major anchor and security net for the intra-market transactions happening within EU (European Union, 2010). Article 28-9 covers much broader variety of actions in comparison with Article 23 and Article 25 of “free movement of goods”. Article 28 forbids the quantitative restrictions and every other procedure having equal influence on imports. Article 29 comprises equal restrictions on exports. Moreover, Article 31-3 which previously imposed numerous restrictions on commodities throughout the transitional period was removed by the “Treaty of Amsterdam” (Oxford University Press, n.d., pp. 413). Article 30 further offers that the preventions in Article 28 and Article 30 will not apply to restrictions on the imports and exports which are warranted on several circumstances (Oxford University Press, n.d.). Directive and Dassonville Case The case of Dassonville can provide an insight about the circumstances of quantitative restrictions on goods within EU nations. As the case depicts, Dassonville was alarmed with Belgian regulations which necessitate imported products bearing specific labels of origin, having documentation of genuineness from the experts in the country of origin. It further directs that without proper documentation, the goods cannot be moved freely from one EU nation to another. In this case, criminal actions were imposed on the dealers who acquired alcohol products by virtue of free movement through France and exported to Belgium without having documentation of origin from British custom specialists. This circumstance triggered the Article 28 which argued that every trading regulation passed by EU member states, which can hamper the internal trade, should be measured as an impact of quantitative restrictions imposed (Oxford University Press, n.d.). Cassis de Dijon Case Cassis de Dijon is the other case related with ‘movement of goods’ that apparently has explained the ideologies laid down in the principle. Cassis de Dijon case acts as a landmark for ‘movement of goods’. This case is well-known due to code of interchange or shared acknowledgement of product criterion across EC. When a product is legally marketed in a particular EU nation, the sales of the same product can be restricted in other EU nations. However, the restriction must be justified for fulfilling specific compulsory necessities which are associated with the efficiency of economic administration, safety of public health, equality of commercial operations and security of the customer. Under these circumstances, one EU nation can lawfully confine or forbid the “free movement of goods” to other EU Nation (Oxford University Press, 2007). Question 3 Article 102 TFEU is a legislation of EU which is related with competition and prohibits the misuse of market which can have an impact on the businesses connecting two or more EU nations. Article 102 excludes one particular activity or several activities which embraces a dominant position in the intra-market for a considerable share. It is to be noted in this regards that the component of dominant position and misuse, are tough to be described and established comprehensively. The central meaning of Article 102 is that grasping dominant position is not prohibited by the law, but the misuse of that particular dominant position is prohibited. It is used in a formalistic manner by concentrating on the code of conduct performed by any national organisation. However, it does not assess the real impact of such conducts on the market. Besides, Article 102 is frequently used for defending competition, and not the competitive procedure, for the welfare of customers (Oxford University Press, n.d.). Summary of the Case In order to prove the violation of Article 102, SIMS LTD needs to demonstrate that CARP LTD is in a dominant market position and has misused that position having an impact the business environment prevailing among UN member states. According to the “court of justice”, the dominant position is regarded as a position of financial power enjoyed by an organisation which permits to inhibit effective competition. In order to evaluate, whether CARP LTD is dominant, it is compulsory to recognise the market where the organisation is operating. Furthermore, the appropriate product, geographic and regional market should be considered by SIMS LTD. Undertaking Undertaking has the similar meaning as it ensures with respect to Article 101. Undertaking denotes the act that can assist organisations to grasp a collective place in the market. In this case the activity of discounts provided by CARP LTD can be suspected as undertaking for abusing marketing position. Case of United Brands v Commission The case of United Brands vs. Commission can be regarded as a significant case which covers the idea of dominant position and numerous kinds of misuses in the market. It describes the principles of proportionality when United Brands levies margins on the resellers, even if it has been performed with the intention of pursuing genuine purposes such as preserving the product quality and defending the commercial benefits. It was alleged that United Brands had trespassed Article 82. However, United Brands had defied the allegation by opposing that it does not have a dominant position in the market. However, it was found that United Brand had abused the position by rejecting the supply. Although the court recognises the right of any organisation to use certain business activities for defending the welfare of the organisation, it articulates that regarding dominant organisations, such activities should be strictly proportional to the appropriate commercial aims pursued (Reckon LLP, n.d.). Substantial Part of Market Article 102 prohibits exploitation of substantial part of market by any organisation. It can be observed that CARP LTD has market share of 6% in the EU market with respect to roofing tiles which cannot be measured as dominant. On the other hand, CARP LTD have market share of 80% in the market of UK, France as well as Belgium. The market is substantial portion of the intra market of EU member countries. Case of KAFE AZKO The evaluation of anti-competitive pricing by organisations is a challenging task. The case of AKZO provides the evidence of pricing which can be considered as unfair by dominant organisation. In this case, the court has found that alignment of price provided by the competitor can be a defensive activity. It is in this regards that the case depicts that pricing below the average variable cost is regarded as destructive when practiced by a dominant organisation with proof of accomplishment of certain objectives (Skilbeck, 2005). Case of Hoffmann-La Roche The case of Hoffmann-La Roche can provide an exclusive piece of evidence regarding the misuse of the acquired dominant position by the organisation which is often cited by classification of competition regulation. It has been found that Hoffmann-La Roche had abused its dominant position by making private contracts with other organisations which can certainly influence the welfare of customers and fair competition in the market (Reckon LLP, 2006). On the basis of above information, it can be affirmed that CARP LTD has abused its dominant position in the market by providing huge discounts to SIMS LTD if the latter company agrees to switch their custom to the brand. This discounting arrangement can also have an impact on the intra-trade of EU and other competitors. Therefore, the activity breaches the Article 102. References European Commission, No Date. Free Movement - EU nationals. Employment, Social Affairs & Inclusion. [Online] Available at: http://ec.europa.eu/social/main.jsp?catId=457&langId=en [Accessed May 30, 2012]. Europa, No Date. Rights, Conditions and Formalities. Workers and Pensioners. [Online] Available at: http://europa.eu/youreurope/citizens/residence/worker-pensioner/rights-conditions/index_en.htm [Accessed May 30, 2012]. Europa, 2004. Michel Trojani vs. Centre public d'aide Sociale de Bruxelles. Opinion of Advocate General Geelhoed. [Online] Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62002C0456:EN:HTML [Accessed May 30, 2012]. Europa, 2004. Directive 2004/38/EC of The European Parliament And Of The Council. Official Journal of the European Union. [Online] Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF [Accessed May 30, 2012]. Europa, 2004. Regulation (EEC) No 1612/68 of the Council. On Freedom Of Movement For Workers Within The Community. [Online] Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1968R1612:20060430:EN:PDF [Accessed May 30, 2012]. European Parliament, No Date. Legal Basis. Free Movement of Workers. [Online] Available at: http://www.europarl.europa.eu/ftu/pdf/en/FTU_3.2.2.pdf [Accessed May 30, 2012]. Eurofound, No Date. Free Movement of Workers. European Industrial Relations Dictionary. [Online] Available at: http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/freemovementofworkers.htm [Accessed May 30, 2012]. European Union, 2010. Free Movement of Goods Guide to the Application of Treaty Provisions Governing the Free Movement of Goods. European Commission. [Online] Available at: http://ec.europa.eu/enterprise/policies/single-market-goods/files/goods/docs/art34-36/new_guide_en.pdf [Accessed May 30, 2012]. Fuster, J. L., 1988. Council Regulation 1612/68: A Significant Step in Promoting the Right of Freedom of Movement within the EEC. Boston College International and Comparative Law Review, Vol. 11, No. 1, pp. 127-136. Oxford University Press, No Date. Introduction. Free Movement of Goods. [Online] Available at: http://www.oup.com/uk/orc/bin/9780199219070/steiner10e_ch19.pdf [Accessed May 30, 2012]. Oxford University Press, No Date. Central Issues. Introduction to Article 102. [Online] Available at: http://www.oup.com/uk/orc/bin/9780199572731/js4e_ch05.pdf [Accessed May 30, 2012]. Oxford University Press, 2007. Central Issues. Free Movement of Goods: Quantitative Restrictions. [Online] Available at: http://www.oup.com/uk/orc/bin/9780199273898/craigdeburca_ch19.pdf [Accessed May 30, 2012]. Pearson Education, No Date. Sources of EU law. Constitutional and administrative law of the European Union. [Online] Available at: http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/M02_FAIR5446_08_SE_C02.pdf [Accessed May 30, 2012]. Reckon LLP, No Date. United Brands v Commission of the European Communities. United Brands (ECJ). [Online] Available at: http://www.reckon.co.uk/open/United_Brands [Accessed May 30, 2012]. Reckon LLP, 2006. Hoffmann-La Roche & Co. AG v Commission of the European Communities. Hoffmann-La Roche (ECJ). [Online] Available at: http://www.reckon.co.uk/open/Hoffman-La_Roche [Accessed May 30, 2012].   Skilbeck, J., 2005. Competitive Pricing in Competition Law ~ Food for Thought from the Privy Council. Competition Case Note. [Online] Available at: http://www.monckton.com/docs/library/CompetitivePricingJul05JSS.pdf [Accessed May 30, 2012]. Tovey, G., 2003. Free Movement of Workers. European Community Law. [Online] Available at: http://www.topnotes.org/EC17v1.pdf [Accessed May 30, 2012]. UK Council for International Student Affairs, No Date. Deborah Lawrie-Blum vs. Land Baden-Wurttemberg Case 66/85. Case Law on EEA Migrant Worker/Swiss ‘worker’. [Online] Available at: http://www.ukcisa.org.uk/student/eea_migrant_case_law.php [Accessed May 30, 2012]. Read More