Notes on EU Nations and the EC Treaty
Jake's Notes from Meeting with Professor Caruso
Article 81 is both vertical and horizontal (includes cartels)
Distinction between conduct that has interstate and intrastate effects.
Purely intrastate effects
Simple case. If the conduct is solely within the member state (intrastate), then there is no overlap of EC and state law. The state, however, will inform the EC so they can investigate the possibility of interstate effects.
Article 82 (dominance) with interstate effects.
The state must apply EC law to those interstate effects. As for intrastate effects, the member state can apply EC law if it is harsher than the national code.
Achal's Notes from Meeting with Professor Caruso
Conduct that has purely interstate effects and conduct that has purely intrastate effects. And then each one is broken down between dominance and restrictive trade practices.
If the conduct is purely intrastate, then only the local law would apply and the EU law plays no part.
Intrastate effects -> only the local law applies, and EU law plays no part (however, so the Commission knows of any possibly interstate effects, they will be notified)
Interstate effects -> EU law applies, article 82 (dominance/monopolization), the court must apply EU law to the interstate effects. To the intrastate effects, the state may apply its local laws if its local laws are harsher than EU law. When it comes to Article 81, you cannot sanction/prohibit at a national level things that are allowed by the state.
Conduct that has interstate effects and there are also intrastate effects, what kind of sanctions can the court apply? What sort of conduct violates the law? That will be determined by article 82. Assuming something violates 82, what kinds of sanctions take place and where do they come from? Answer: If the Commission is investing a violation, and they find one, they will issue a decision, which is an Act. This act is reviewable, and this happens at the federal level.
Let's say there's already been a EU fine, can the state impose a national fine too? Caruso doesn't know.
The EU has told member states that breach of 82 is equivalent to a statutory breach. So if you're a Belgiumer, and ....
So the EU gives injunctions and the Any private party can sue under the EU law, if it's
Private parties can bring an action
What happens when the state wants to impose additional fines?
Must have individual and direct concern for a small local guy to sue a large firm in EU court after the Commission denies the suit.
So where the big firm is in violation of the EU statute, and you're a small local guy, you can bring suit in the Belgium court under the EU law (even though it doesn't violate the Belgium law).
82 is the direct law of the land. So if you're the small guy, the Commission sues the big guy, he loses, the Commission will impose an injunction and collect fines, but they won't pay you because they don't care about you. You then go to the local Belgium court and sue for damages. The Belgium court's hands are tied because of the federal decision. And even if the act was "not prohibited" by Belgium law, it actually is prohibited because 82 is the direct law of the land. So the Belgium court must (by EU case law) give damages to you, the small firm, from the large firm.
How does the small guy complain about the big guy? Pre-2004, the process was informal. After the reforms of 2004, Caruso doesn't know whether there was then an informal process.
Valentine Korah; Elanor Fox; Slott and Johnston; Danicker and Jensen
Small guy can go to Commission and say I have a problem with big guy. Commission can say okay, it was bad. Small guy can be unhappy with decission and take it to the court of first appearance (and can appeal). Small guy can then go to Belgium court and get damages (b/c 82 is binding).
Instead, imagine Small guy goes straight to national court. They say there's a violation of 82, and gives damages. This is the dream of the EU, that eventually they'll stop hassling the EU court. If Belgium had never seen a case like this, they will stay it, and send it to the EU first appereance court. Let's say they all say 82 hasn't been violated. Can small guy still do something? Only if Belgium law is harsher than EU law.
Our model is someone that goes to the national court and sues under the EU law.
We have to pretend that a local competition authority is going after a foreign firm.
- Mark a 1 for prison sentences wherever the member state can impose them based on their national statute.
- Mark 1 for fine because EU law allows it. This serves as a baseline for remedies.
- Find Council Regulation that gives EU the power to impose fines.
- State can impose its own fines if they are greater than what is allowed under EU law.
- Divestitures is a 1 from EU law, although our source on this is only from 2003.
- Need to know about pre-2003.
Get a book that contains discussions about remedies and private enforcement under EU law. We need to find-out how this has changed over time.
Private enforcement should be a 1, but we need to find a date for that. Sean coded this as a 0, is this a new thing?
Remedies available to third parties is a 1. Find source for that.
3rd party rights in proceedings. Sean coded this based on local law, because it involves local procedural law.