International Business Program Faculty of Management, University of Warsaw Maciej Bernatt EUROPEAN BUSINESS LAW
I. EBL Introduction Syllabus please read it carefully Reading and active participation requirement; cases assigned to particular persons Materials: - EU Treaties - Handbook (EU law but also US perspective) Available at: http://www.wz.uw.edu.pl/pracownicy/lista/maciej-bernatt/materialy password: competition Office hours: Tue 11:30-12:30, B-309 e-mail: mbernatt@wz.uw.edu.pl
The scope of course: Introduction EU Internal market s free movements (of goods, persons, services and capital) EU Internal market s common competition rules and state aid
1. EU history, enlargements and legal basis From three European Communities (European Economic Community, European Coal and Steel Community, European Atomic Energy Community) via three pilars of the European Union (1993-2009: European Communities, Common Foreign and Security Policy and Police and Judicial Co-operation in Criminal Matters) to one European Union, including the Euro zone: https://www.youtube.com/watch?v=xgnxwrsmbus From 6 to 28 ; Poland within the new EU Legal basis of the EU (EU Treaty/TEU, Treaty on the Functioning of the EU/TFEU + Charter on Fundamental Rights of the EU/CFR and secondary law) What is the European Union? Do the EU has future as political union? Will Ukraine become EU Member State?
2. European economic integration EU axiology; common values (Article 2, 6-8 TEU + CFR) EU objectives: economic integration combined with other EU objectives (Preamble & Article 3 TEU; different provisions of TFEU) EU economic integration mostly by establishment of internal market (IM) and Economic and Monetary Union (EMU) (Articles 3(3-4) TEU & Article 2-6 TFEU), but among other EU tasks EU is not only an economic organization
3. EU internal market Concept of the EU Internal market (Article 26 TFEU) Competition rules of high importance: Article 3 TEU ( Highly competitive market economy ); Article 119(2) TFEU ( principle of open market economy with free competition ) IM and CR in balance with other EU values, objectives and tasks, for example with the obligation to ensure services of general interests (Article 14 TFEU)
4. EU internal market principles Negative market integration (decentralized model ) removing obstacles of free trade (four/five freedoms of movement); direct applicability & direct effect Principle of non-discrimination on grounds of nationality (Article 18 TFEU), but EU courts in favour of market access approach also non-discriminatory MS measures beaching the IM rules Fundamental rights as general principles of the Union s law (Article 6 TEU, CFR, accession to ECHR) Positive market integration (harmonisation & Common Policies) both not covered by this course More than 20 years of EU single market: https://www.youtube.com/watch?v=53_8gwoquas
5. Free movements of the EU internal market Concept of the freedoms of movement : a) rights of market operators to free trade; b) MS obligations not to restrict a trade between MS Three main elements: a) substantive scope, b) essence (principle of national treatment/non discrimination on grounds of nationality or general prohibition to restrict free trade) c) exceptions & derogations
Next class For the second class (March 3) please have a look on pages 441-512 and focus particularly on pages 441-454, 475-479 and 495-512. Cases assigned: Dassonville, Rewe Zentral, Schmidberger, Keck and post-keck cases
Class March 10 For the second class (March 10) please have a look on pages 558-651 and focus particularly on pages: - 558-566 - 568-577 - 581-586 - 590-605 - 608-614 - 617-628 - 646-647
6. Common competition rules Axiology Rules applicable to undertakings a) prohibition of restrictive practices cartels and abusive practices) b) preventive control of concentrations Rules applicable to MS, mostly prohibition of anticompetitive state aid Application of CR by MS authorities
II. COMMON COMPETITITON RULES. 1. Axiology & introduction Common competition rules CCR) = EU competition law (rules inntended to protect competititon process in order to maximise consumer welfare (Whish) EU primary CCR: Article 101 & 102 TFEU (direct aplicability & direct effect) EU secondary CCR: regulations exempting agreements from Article 101 TFEU + enforcement regulations + 2004 Merger Regulation + enforcement regulations Two groups of CCR: Rules applicable to undertakings: (a) prohibition of restrictive practices cartels and abusive practices); (b) preventive control of concentrations Rules applicable to MS, mostly prohibition of anticompetitve state aids
II. COMMON COMPETITITON RULES. 1. Axiology & introduction Goals: ultimate & direct Ultimate: maximising consumer welfare Direct: counteracting anti-competititve practices & preventing anticompetitive mergers = punishing the past destortions of competition & protection of present competition & preventive future protection i.e EU-specific aim: creation of the single market Other posible: facilitating economic progress, protecting SMEs Who are consumers? Who are competitiors? What is competition & and effective competition What is market power
II. COMMON COMPETITITON RULES. 1. Axiology & introduction When are CCR applicable? Extraterritial jurisdiction Jurisdictional criteria of CCR ( effect of trade & Union s dimension ) CCR & competition laws of MS Non-exclusive jurisdiction (parallel application) of Articles 101 & 102; exclusive EU jurisdiction of mergers with Union s dimension (one-stopshop principle) Ex-post (Article 101 &102) and ex-ante/pre-empitve (merger control); pre-empitive elements of enforcement of Article 101 & 102 Public and Private enforcement of CCR Instruments mostly by decisions, but with elements of negotiations