EU LAW

The European Union(EU) is a supranational organisation which holds

supremacy over its member states and the intent behind creating this
union was to ensure the creation of a common market where goods,
services and workers can easily travel between all the member states of
the EU. Inorder to ensure smooth running of the EU, seven different
institutions were created including:- The CJEU, The Parliament, The
Council, Central Bank, The EU Council, Commission and The Sources of
EU Law; which further includes treaty, regulation, decisions and directives.

DIRECT EFFECT
However, the primary power within the EU lies with the CJEU and for that
matter it becomes the responsibility to ensure that they are able to make
laws in line with the EU and taking into consideration the diversity that
exists within these countries. Therefore in order to ensure the
aforementioned point, the CJEU created the concept of direct effect in the
case of Van Gend En Loos wherein the local courts now have the authority
to tailor the laws that they receive from the EU inline with the practices of
their country and avoid any sort of contradiction with the EU (Garland v.
British Railways) but for the direct effect to be fully implemented the
sources of law of the EU need to have a vertical direct effect and a
horizontal direct effect and in absence of either of them the EU laws
cannot be implemented. As for the direct effect to be applicable upon the
local states the concept of VDE(Vertical Direct Effect) and HDE(Horizontal
Direct Effect) becomes mandatory to be applied in all sources of EU law
including treaty where VDE and HDE was granted in the case of Van Gend
En Loos and Sabina case respectively. As for the regulations since it is
automatically binding upon the local countries hence VDE and HDE are
automatically given, for decisions, VDE and HDE was granted in the case
of Grad. However, as for the directives there was no VDE and HDE initially
but after a long discussion VDE was granted and for HDE to be granted
either of the three exceptions had to be met including state definition or
indirect effect or state liability.

FREE MOVEMENT OF GOODS

The entire intent behind creating the EU was to ensure that they are able
to create a common market which will ensure that things between EU have
autonomy without any restrictions including goods, services, persons,
establishments and regulating the competition for that matter one such
example includes free movement of goods where goods have been defined
as any element which can form part of a commercial transaction hence it
will qualify as a good where commercial transaction includes buying or
selling of any product. Furthermore, often travelling within the EU it could
develop certain restrictions including monetary and non monetary
restrictions where the former refers to any sort of financial restrictions
whereas the latter refers to a non financial restriction.

MONETARY RESTRICTIONS

Financial restrictions can be seen under article 28, 30 and 110 where
article 28 restricts countries who have their own tax rates when dealing
with non EU member states rather there should be one tax rate to be
followed by everyone as for article 30 it restricts states to charge money
from EU members internally (C v. Italy) unless they are able to prove either
of the three exceptions:-

1. Administrative Costs (C v. Denmark).

2. Internal Tax if paid on the border (Co Frutta Case).
3. Inspection Cost

As per article 110 it was stated that inorder to set the same rate for all
similar products 3 stage test has to be passed which includes raw
materials, manufacturing and consumer needs moreover in order to avoid
any sort of direct or indirect discrimination regardless of the product
coming from a different EU state it has to be solved at the same rate as
the rate being charged for the local product.
 NON MONETARY RESTRICTION

One form of restriction on the law of free movement of goods are the
non-monetary barriers which generally impose a non-financial restriction
on the goods that are coming into the country and this may lead to a
violation of the law of free movement of goods and for that matter the
CJEU developed multiple steps through which it could be identified
whether the restriction is violating EU law or not. In order to prove this, the
first thing that needs to be proved is whether the restriction is a state
measure or not i.e. any restriction which is directly or indirectly connected
with the state or may happen due to the omission of the state will fall
within the ambit of being a state measure (Apple & Pear Development
Case)(C v. Italy)(Spanish Strawberries Case).

● Once the state measure has been proven then the next thing is to
prove whether the restriction is a Quantitative Restriction(QR:-
restricting the quantity of goods i.e. ban or quota) or measure
equivalent to QR(MEQR:- creating hindrance for the products to
come inside the country but not restricting the quantity of it).
● If it’s a QR measure then direct infringement of article 34 and if it's
an MEQR then the next step will be to prove whether restriction is on
DA(distinct application) or IDA(indistinct application).
● Where DA refers to restriction on foreign goods only and not on
local goods whereas IDA refers to restricting local and foreign
goods. If it’s a DA measure then direct infringement. If it’s an IDA
then we need to see if it's a selling arrangement(SA) or a product
requirement(PR).
● For SA restriction has to be on how the goods have to be sold and
for PR the restriction has to be in relation to the physical
appearance of the product.
● If it’s a PR then there is a direct requirement of article 34 and if it’s a
SA then it does no fall within the ambit of article 34
● For SA am exception was created under the Keck Case i.e. market
access test (MAT) wherein if you are able to prove that the restriction
 is causing more burden on the foreign vendors than the local
vendors hence selling arrangement will be infringed
● However, in order to justify why the law was made the accused
country will make a derogation under article 36 where they will have
to prove or justify on three different levels including the law being
recognised under the treaty i.e. public morality (Hans & Debry Case),
public security (Campus Oil Case), public health (C v. Germany) and
public policy (Animal Care Case) but all of these derogations are
generally recognised under DA or QR measure. In case if it's an IDA
measure then the list is non-exhaustive which also includes the
aforementioned points.
● Once the first step is proven, the next step will be to prove public
benefit where the law has to provide benefit to the public and after
this the next step to prove proportionality wherein it has to be
proven that the law is providing more benefits to the people than
detriment to the people.
 FREE MOVEMENT OF SERVICES(FMS)
● For services to move freely within the EU and inorder to create a
common market the concept of FMS was introduced under the law of
FMS as per article. 57 of the TFEU which defines service as which is
temporary in nature and is available against some form of
remuneration (Belgium v. Humble)(Deligi Case). Once the service has
been proven the next thing to prove is how the service is moving
within the EU and this has been set out under article. 56 of the TFEU
where either the service can move, the receiver can move to obtain
the service (Louisi and Carbon Case), or the service provider is
moving. However, in order to prove the breach further the restriction
has to be either a DA or an IDA measure wherein the former refers
to the restriction being imposed on foreign services only whereas
 the latter refers to restriction on both the foreign and local services
(Webb Case).
● Once the restriction has been proven as an IDA restriction
thereafter the courts will apply the dual burden test wherein they will
prove that the restriction is creating more burden on the foreign
service provider rather than imposing more burden on the local
service provider giving an unfair advantage.
● Once the dual burden test has passed then the host country shall
apply the derogations which have to be proven on three separate
grounds including:- that it has to be included in the treaty, it has to
be provide public benefits and it has to consider proportionality
where there has to be more benefit than detriment to the law of FMS.
However, for the first point to be met multiple grounds happen which
should protect the law made by the country including public health,
public policy, public security and linguistic knowledge. For IDA this
list is non-exhaustive.

FREE MOVEMENT OF WORKERS(FMW)

● Inorder to promote the concept of free movement, the EU
introduced the law for free movement of workers wherein the law has
been set out under article 45. and the definition of worker is
available under the case of kempf where the initial definition was
given in the case of hoe kstra thereafter in the case of levin and the
current definition is in the case of kempf where the worker is anyone
who does an effective job rather than doing any sort of ancillary and
marginal job and is doing it against any sort of remuneration(Lawrie
Blum Case)(Blum Case)(Steymann Case)(Bettray Case).
● Once the individual has qualified as a worker then the next thing to
identify is whether what benefits are available to such an individual
where benefits are set out under article 45(3). and includes tax
benefits, right of residence, right of residence for the family, social
advantages and free education for the children and healthcare.

COMPETITION POLICY
 ARTICLE 101

● In order to promote a smooth and efficient operations within the

market the EU commission introduced the idea of having a
competition policy which has been set out under article 101 and 102
where under 101 if the companies try to create a dominance in the
market by collaborating with each other then in that case such an
activity will lead to a breach of article 101 of the TFEU i.e. the
competition policy.
● However, in order to prove this breach 2 steps have to be met
including proving that there are undertakings operating in the
market, wherein undertakings have been defined in the case of
Hofner v. Elsner as any company engaged in an economic activity
where economic activity has been defined as any activity which
creates an impact on the economy. These undertakings can also be
in association with the undertaking, where undertakings are being
led by an institution. The next thing to prove is that there has to be
an agreement between the undertakings and such can either be
either a vertical, horizontal or an oral agreement i.e. the gentleman's
promise.
● Once this breach has been proven then a defence is available by the
EU commission i.e. concerted practice (refer to the notes).