The other Members of the European Parliament (MEP), 2009-2014

735 additional members (in total 736), elected by the peoples of all Member States in direct elections, based on a proportional representation system, for five years. There is no uniform election procedure yet (see Art. 229(1) TFEU). In 2010, transitional measures have been adopted in order to raise the number of MEPs to 754 until the end of the 2009-2014 legislative period. For twelve Member States, the number of MEPs has changed, as provided for by the Intergovernmental Conference which approved the Lisbon Treaty.
Distribution of seats:

Germany	99
France	74
United Kingdom, Italy	73 each
Spain	54
Poland	51
Romania	33
Netherlands	26
Belgium, Czech Republic,Hungary, Greece, Portugal	22 each
Sweden	20
Austria	19
Bulgaria	18
Denmark, Finland, Slovakia	13 each
Ireland, Lithuania	12 each
Latvia	9
Slovenia	8
Cyprus, Estonia, Luxembourg	6 each
Malta	3

 

On the right to vote in special territories of the Member States, see e.g. Spain v UK (2006), concerning the UK and Gibraltar; Eman and Sevinger (2006), concerning the Netherlands and Aruba.

Comprehensive application: Art. 18(1) TFEU and provisions on free movement

In all fields of EU law, prohibition of discrimination on grounds of nationality; see Chart 7/15. Includes social issues; e.g. social advantages under Art. 7(2) of Regulation 492/2011/EU; see Chart 8/42.

A new directive on self-employment was adopted on 7 July 2010. Accordingly the box entitled “Comparatively narrow: sex equality law” (4th row) should read:

Comparatively narrow: sex equality law

Prohibition of sex discrimination:
• Art. 157 TFEU: equal pay and positive action;
• Directive 2006/54/EC (Recast Directive): employment and occupation, including occupational social security;
• Directive 79/7/EEC: statutory social security;
• Directive 2010/41/EU: self-employment, including agriculture;
• Directive 2004/113/EC (Goods and Services Directive): access to, and supply of, goods and services available to the public.

• Treaty establishing the European Coal and Steel Community, signed in 1951 (English translation: 261 U.N.T.S. 143), not published in the OJ, see: http://eur-lex.europa.eu/en/treaties/index.htm (expired 23 July 2002; “Paris Treaty”)

• Treaty establishing the European Atomic Energy Community, signed in 1957 (English translation: 298 U.N.T.S. 169), not published in the OJ in its original version, see: http://www.eur-lex.europa.eu/en/treaties/treaties_founding.htm (as amended; “Rome Treaty”), most recent codified version: OJ 2012 C 327

• Treaty establishing the European Economic Community (English translation: 298 U.N.T.S. 11), signed in 1957, not published in the OJ in its original version, see: http://eur-lex.europa.eu/en/treaties/index.htm (as amended; “Rome Treaty”); later renamed “Treaty Establishing the European Community”, since 1 December 2010 “Treaty on the Functioning of the European Union”), most recent codified version: OJ 2012 C 326/47

• Treaty establishing a single Council and a single Commission of the European Communities (English translation: 1348 U.N.T.S. 81), signed in 1965, OJ 1967 L 152/2 (“Merger Treaty”)

• Act concerning the election of the representatives of the Assembly by direct universal suffrage, signed in 1976, attached to Council Decision 76/787/ECSC, EEC, Euratom, OJ 1976 L 278/1

• Single European Act, signed in 1986, OJ 1987 L 169/1

• Treaty on European Union, signed in 1992, OJ 1992 C 191/1, most recent codified version: OJ 2012 C 326/13

• Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and related acts, signed in 1997, OJ 1997 C 340/1 (“Amsterdam Treaty”)

• Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, signed in 2001, OJ 2001 C 80/1 (“Nice Treaty”; consolidated versions: OJ 2002 C 325/01)

• Treaty establishing a Constitution for Europe, signed in 2004, OJ 2004 C 310/1 (not entered into force; ”Constitutional Treaty”)

• Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed in 2007, OJ 2007 C 306/1 (“Lisbon Treaty”, consolidated versions: OJ 2008 C 115/1, OJ 2010 C 83/1, OJ 2012 C 326 and 327)

• Charter of Fundamental Rights of the European Union (including explanations relating to the interpretation of the Charter), OJ 2012 C 326/391 (originally: OJ 2000 C 364/01, subsequently reenacted: OJ 2007 C 303/1)

• Protocol on protection and welfare of animals, OJ 1997 C 340/110

• Protocol (No 2) (annexed to the Lisbon Treaty) amending the Treaty establishing the European Atomic Energy Community, OJ 2007 C 306/199

• Protocol (No 3) on the Statute of the Court of Justice, OJ 2012 C 326/210

• Protocol (No 26) on services of general interest, OJ 2012 C 326/308

• Protocol (No 27) on the internal market and competition, OJ 2012 C 326/309

• Treaty Establishing the European Coal and Steel Community, signed in 1951, not published in the OJ, see: http://www.eur-lex.europa.eu/en/treaties/treaties_founding.htm, English translation: 261 U.N.T.S. 143 (expired 23 July 2002; “Paris Treaty”)

• Treaty Establishing the European Atomic Energy Community, signed in 1957, not published in the OJ in its original version, see: http://www.eur-lex.europa.eu/en/treaties/treaties_founding.htm, English translation: 298 U.N.T.S. 169 (as amended; “Rome Treaty”), most recent codified version: OJ 2012 C 327

• Treaty Establishing the European Economic Community, signed in 1957, not published in the OJ in its original version, see: http://www.eur-lex.europa.eu/en/treaties/treaties_founding.htm, English translation: 298 U.N.T.S. 11 (as amended; “Rome Treaty”; later renamed “Treaty Establishing the European Community”, since 1 December 2010 “Treaty on the Functioning of the European Union”), most recent codified version: OJ 2012 C 326/47

• Treaty establishing a single Council and a single Commission of the European Communities, signed in 1965, OJ L 152/2 (“Merger Treaty”)

• Act concerning the election of the representatives of the Assembly by direct universal suffrage, signed in 1976, attached to Council Decision 76/787/ECSC, EEC, Euratom, OJ 1976 L 278/1

• Single European Act, signed in 1986, OJ 1987 L 169/1

• Treaty on European Union, signed in 1992, OJ 1992 C 191/1, most recent codified version: OJ 2012 C 326/13

• Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and related acts, signed in 1997, OJ 1997 C 340/1 (“Amsterdam Treaty”)

• Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, signed in 2001, OJ 2001 C 80/1 (“Nice Treaty”; consolidated versions: OJ 2002 C 325/01)

• Treaty Establishing a Constitution for Europe, signed in 2004, OJ 2004 C 310/1 (not entered into force; ”Constitutional Treaty”)

• Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed in 1997, OJ 2007 C 306 (“Lisbon Treaty”, consolidated versions: OJ 2008 C 115, OJ 2010 C 83, OJ 2012 C 326 and 327)

• Treaty on the Functioning of the European Union, signed in 1957 (as amended and renamed), OJ 1992 C 191/1, most recent codified version: OJ 2012 C 326/47

• Charter of Fundamental Rights of the European Union (including explanations relating to the interpretation of the Charter), OJ 2012 C 326/391 (originally: OJ 2000 C 364/01, subsequently reenacted: OJ 2007 C 303/1)

 

• Protocol on social policy, OJ 1992 C 191/90 (no longer in force)

• Protocol on protection and welfare of animals, OJ 1997 C 340/110 (no longer in force)

• Protocol (No 1) (annexed to the Lisbon Treaty) amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community, OJ 2007 C 306/165

• Protocol (No 2) (annexed to the Lisbon Treaty) amending the Treaty establishing the European Atomic Energy Community, OJ 2007 C 306/199

• Protocol (No 1) on the role of national parliaments in the European Union, OJ 2012 C 326/203

• Protocol (No 2) on the application of the principles of subsidiarity and proportionality, OJ 2012 C 326/206

• Protocol (No 3) on the Statute of the Court of Justice, OJ 2012 C 326/210

• Protocol (No 6) on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union, OJ 2012 C 326/265

• Protocol (No 8) relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the protection of human rights and fundamental freedoms, OJ 2012 C 326/273

• Protocol (No 12) on the excessive deficit procedure, OJ 2012 C 326/279

• Protocol (No 13) on the convergence criteria, OJ 2012 C 326/281

• Protocol (No 15) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland, OJ 2012 C 326/284

• Protocol (No 16) on certain provisions relating to Denmark, OJ 2012 C 326/287

• Protocol (No 19) on the Schengen Acquis integrated into the framework of the European Union, OJ 2012 C 326/290

• Protocol (No 26) on services of general interest, OJ 2012 C 326/308

• Protocol (No 27) on the internal market and competition, OJ 2012 C 326/309

• Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom, OJ 2012 C 326/313

• Protocol (No 36) on transitional provisions, 2012 C 326/322

 

• Declaration (No 4) on the composition of the European Parliament, OJ 2012 C 326/339

• Declaration (No 7) on Article 16(4) of the Treaty on European Union and Article 238(2) of the Treaty on the Functioning of the European Union, OJ 2012 C 326/340

• Declaration (No 9) on Article 16(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council, OJ 2012 C 326/343

• Declaration (No 17) concerning primacy, OJ 2012 C 326/346

• Declaration (No 18) in relation to the delimitation of competences, OJ 2012 C 326/346

• Declaration (No 38) on Article 252 of the Treaty on the Functioning of the European Union regarding the number of Advocates-General in the Court of Justice, OJ 2012 C 326/352

BUPA (2008):               Case T-289/03 British United Provident Association Ltd (BUPA), BUPA Insurance Ltd and BUPA Ireland Ltd v Commission of the European Communities. [2008] ECR II-81          C53

Deltafina (2011):               Case T-12/06 Deltafina SpA v Commission, judgment of 9 September 2011, n.y.r.          C35

Gibraltar (2011):               Joined cases C-106/09 P and C-107/09 Commission (C-106/09 P) and Kingdom of Spain (C-107/09 P) v Government of Gibraltar and United Kingdom of Great Britain and Northern Ireland, judgment of 15 November 2011 (Grand Chamber)          C50

Follow up on Altmark (2003)

• For certain types of public service obligations that do not meet the Altmark conditions: Commission Decision 2012/21/EU on State aid in the form of public service compensation (Art. 107(1) TFEU applies but there is an exemption under Art. 106(2) TFEU; no notification is required) (replaces Decision 2005/842/EC); see also Commission Communication: European Union framework for State aid in the form of public service compensation (2012) and Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of SGEI (2012);
• For other cases, with the exception of transport and broadcasting: Commission framework for State aid in the form of public service compensation (2011) (notification is required);
• Transport: in particular Regulation 1370/2007/EC (see Chart C52); broadcasting: Commission Communication on the application of State aid rules to public service broadcasting (2009).

In a previous order of 30 April 2010 concerning the application for interim measures, the General Court stated (para. 44 et seq. of the Order): “[...] should Article 263 TFEU be applicable to the present case, the admissibility of the main action could depend on the interpretation of the concept of “regulatory act” in the fourth paragraph of that provision. In that regard, as the Parliament and the Council point out, that category of act would probably have to be defined in relation to that of “legislative acts”, subject to the particular circumstance, in the present case, that Regulation No 1007/2009 was not adopted in accordance with the legislative procedure laid down in Article 294 TFEU. [...] in the context of the interpretation of the fourth paragraph of Article 263 TFEU, the question would arise as to the circumstances in which a regulatory act does not require implementing measures.” The General Court observed that the Courts of the European Union had not, as yet, had the opportunity to rule on these issues “which are, moreover, of some legal complexity”.

On 6 September 2011, the General Court (7th Chamber, extended composition consisting of 5 judges) issued an order deciding of the admissibility of the action in the Inuit case, and more specifically about the question of whether the Regulation at issue in this case (Regulation 1007/2009 on trade in seal products) is a „regulatory act“ within the meaning of Art. 263(4) TFEU. The Court, relying on a literal, historical and teleological interpretation approach, decided that the term „regulatory act“ within the meaning of Art. 263(4) TFEU covers „all acts of general application apart from legislative acts“. In the context of the historical interpretation element, the Court relied on the history of the new part of Art. 263 TFEU, i.e. the corresponding provision in the Constitutional Treaty, and the meaning given to it by the Praesidium of the Convention. As for the term “legislative act”, following the Lisbon revision, under Art. 289 TFEU legislative acts are acts adopted in a legislative procedure, i.e. in a procedure in which the European Parliament and the Council jointly adopt the act in question. That was the case in relation to the specific regulation in question in the Inuit case, which had been adopted on the basis of Art. 95 EC, and thus in the ordinary legislative procedure (co-decision).

An appeal against the Court’s decision is pending (Case C-583/11 P).

In order to reflect the above case-law, Chart 12/7 has been updated and a new Chart 12/7a has been created. They are available for download here.

Terms of the Regulation, Arts. 3-5 and 8

In principle, all arrangements that do not contain hardcore restrictions or excluded restrictions are allowed, if:
• Where the parties are (potential) competitors, the combined market share of the parties is ≤20% on the relevant technology and product market;
• Where the parties are not competitors, the individual market share of each of the parties is ≤30% on the relevant technology and product markets.
In the case of a subsequent rise, the exemption continues to apply for a limited period of time.

For the definition of the technology market, see the Commission Guidelines on technology transfer agreements (2004).

Terms of the Regulation, Arts. 2-8

In principle, everything that is not prohibited (i.e. hardcore restrictions, excluded restrictions) is allowed, if:

• The _ market shares of both the supplier and _ the buyer in their respective relevant markets do not exceed 30%;

• In the case of associations: if no individual member of the association, together with its connected undertakings, has a total annual turnover exceeding EUR 50 million.

In cases above the thresholds, individual exemption may be possible under Art. 101(3) TFEU; see Chart 9/18.

Vertical agreements: ≤15%

I.e. agreements between non-competitors; see Chart C8

Threshold of 15% _ market share on any of the relevant markets affected by the agreement.

Vertical agreements: ≤15%

I.e. agreements between non-competitors; see Chart C8

Threshold of 15% _ market share on any of the relevant markets affected by the agreement.

Rights and duties, Art. 20(2) TFEU

EU citizens enjoy the rights conferred on them by the Treaties and are also subject to the duties imposed by
the Treaties.

Regarding the box entitled “Political rights” (bottom, in the middle), first bullet point, Parliament and the Council adopted Regulation 211/2011.

Accordingly the box at the bottom in the middle must read as follows:

• Art. 11 TEU, citizens’ initiative: right of not less than 1 million citizens of a significant number of Member States to invite the Commission to submit proposals for legal acts. Procedures and conditions: Art. 24 TFEU, Regulation 211/2011/EU.
• Arts. 20(2)(b) and 22 TFEU: right of citizens to both vote and stand in communal elections in the host Member State and in elections to the EP; e.g. Commission v Belgium (1998).
• Arts. 20(2)(d) and 24 TFEU: making petitions to the EP, applications to the Ombuds- man and writing to EU institutions, bodies, offices or agencies.

Temporary framework in the economic crisis

The Commission Communication: Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis (2011) expired on 31 December 2011:

Based on Art. 107(3)(b) TFEU, the Commission _ considered temporary state aid acceptable if it did not exceed a cash grant of EUR 500,000 per undertaking and if it fulfilled certain further criteria.

Commission Communication on the application, from 1 January 2012, of State aid rules to support measures in favour of banks in the context of the financial crisis: The Commission extends the crisis rules for banks.

European Convention on Human Rights……………C36-C38, B7

There must be an advantage for “certain undertakings or the production of certain goods” in comparison with other undertakings that are in a comparable legal and factual situation; e.g. Commission v Italy (1974), Azores (2006), Gibraltar (2011).

Terms of the Regulation, Arts. 2-8

In principle, all arrangements that do not constitute hardcore restrictions or excluded restrictions are allowed, if the _ market shares of both the supplier and _ the buyer in their respective relevant markets are ≤30% (in the case of a subsequent rise, the exemption continues to apply for a limited period of time).

To the following types of agreements further conditions apply, Art. 2(2)-(4):
• Agreements between an association and its members, or an association and its suppliers;
• Non-reciprocal agreements between competing undertakings;
• Agreements relating to the assignment to, or the use by, the buyer of intellectual property rights provided that those provisions do not constitute the primary object of such agreements and are directly related to the use, sale or resale of the contract goods or services (primary object: see Chart C21).

Information by the undertaking to the Commission, in order to obtain a certain (beneficial) reaction from the Commission, namely:

• Finding of inapplicability of Art. 101 TFEU (formal decision), Art. 10 of Regulation 1/2003/EC;
• Informal guidance letter; recital 38 in the preamble to Regulation 1/2003/EC, Commission Notice on guidance letters (2004);
• Immunity from fines (provided cooperation by the undertaking was full, continuous and expeditous; Deltafina (2011)).

• Regulation 1/2003/EC (formerly: “Regulation 17″ of 1962);
• Regulation 773/2004/EC;
• Commission Notice on best practices (2011)

 

See Chart C33 et seq.

Generally: a system of parallel competences

• Arts. 4, 5 and 6 of Regulation 1/2003/EC: the NCAs, the national courts and the Commission share the competence to apply Arts. 101 and 102 TFEU (note: regarding Art. 5, only the Commission and not the NCA is empowered to make a finding that there has been no breach of Article 102 TFEU, even if that provision is applied in a procedure undertaken by an NCA; Tele2 Polska (2011)).;
• Any person or firm affected by anti-competitive behaviour may bring the matter before the national courts and seek damages (private enforcement); e.g. Pfleiderer (2011); see Chart B17.

The box in the 3rd row, entitled “Specifically: shared competence between the NCAs and the Commission, until the Commission takes the case”, must read:

Specifically: shared competence between the NCAs and the Commission, until the Commission takes the case

• Art. 11(1) of Regulation 1/2003/EC: the Commission and the NCAs apply the EU competition rules in close cooperation;
• Art. 11(6) of Regulation 1/2003/EC: proceedings by the Commission under Chapter III of the Regulation relieve the NCAs of their competence. For effect prior to accession: Toshiba (2012).

Traghetti (2010):               Case C-140/09 Fallimento Traghetti del Mediterraneo SpA v Presidenza
del Consiglio dei Ministri [2010] ECR I-5243           C53

X (2009):                 Case C-429/07 Inspecteur van de Belastingdienst v X BV [2009] ECR I-4833          C34

 

The following entries must be added:

Tele2 Polska (2011):               Case C-375/09 Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., devenue Netia SA, judgment of 3 May 2011, n.y.r. (Grand Chamber)          C34

Toshiba (2012):               Case C-17/10 Toshiba Corporation and Others v Úřad pro ochranu hospodářské soutěže, judgment of 14 February 2012, n.y.r. (Grand Chamber)          C34

The following new title and the following new entry must be added:

VII. Case law of the European Court of Human Rights

Menarini (2011)               Affaire A. Menarini Diagnostics S.r.l. c. Italie, Requête no 43509/08, judgment of 27 September 2011          C37