With specific reference to the EU’s doctrine of direct effect, critically assess the extent to which EU law concerning commercial activities are enforceable within member states. The WritePass Journal

With specific reference to the EU’s doctrine of direct effect, critically assess the extent to which EU law concerning commercial activities are enforceable within member states. Introduction With specific reference to the EU’s doctrine of direct effect, critically assess the extent to which EU law concerning commercial activities are enforceable within member states. : 115). This rendered Art 101 exorbitant and demonstrated the need for courts to apply it more rigidly (Bright, 1996: 535). Three categories of exemptions now apply to Art 101, namely; 1) commercial activities that are beneficial to consumers; 2) agreements of minor importance, and 3) block exemptions for different types of contract, such as vertical agreements (Bright, 1996: 535). As a result of these exemptions, the extent to which Art 101 is enforceable within member states is unclear and it is likely that consumers and businesses will have difficulty demonstrating that certain commercial activities fall within the ambit of this Article and subsequently invoking EU law against a private individual. EU competition law does not intend to stand in the way of legitimate commercial activities, but to instead promote and maintain fair competition within nation states (Europa, 2013: 1). Whilst this is often deemed necessary to prevent unfairness and to regulate anti-competitive conduct, unnecessary restraints are capable of being placed upon commercial activities (Rodger, et al; 2009: 103). Arguably, it is imperative that some exemptions do exist so that the application of Article 101 is not exorbitant. This ensures that any positive benefits stemming from an agreement are balanced against the restrictions that apply to Art 101. Article 102 TFEU is primarily aimed at preventing those undertakings who hold a dominant position in the market. Through the principle of direct effect, individuals will be capable of invoking this Article by showing that an undertaking who holds a dominant position in the market has abused its position as highlighted in Case 27/76, United Brands Continental BV v Commission (1978) ECR 207. Such abuse may include; unfair purchase selling prices, unfair trading conditions, restricting production and applying different provisions to similar transactions (Kennedy, 2011: 237). A degree of uncertainty surrounds the scope of Art 102 because of how serious a finding of infringement would be, which renders the extent to which Art 102 is being enforced in member states unclear. For a firm to be dominant, it is not necessary for there to exist no competition at all and instead it merely needs to be shown, as identified in Case 85/76 Hoffman-La Roche v Commission [1979] ECR 461, Â  that the firm has an appreciable influence on the conditions under which the competition develops. It is likely to be extremely difficult for a private individual to establish that a firm has an appreciable influence on the conditions under which the competition develops and as such it is again questionable how far Art 102 will go in protecting private individuals and businesses through the principle of direct effect. Regulations are also subject to direct effect, meaning that they will be directly applicable in all EU member states, as provided for by Art 288 (ex Art 247 TEC). This w as illustrated in Case C-253/00 Munoz [2002] ECR I-7289 when it was stated that regulations operate to confer rights on individuals which the national courts have a duty to protect. EU decisions and Directives are also directly effective in member states, as signified in Foster v British Gas (1990) C-188/89. This case exemplified the courts willingness to confer horizontal direct effect upon individuals and signified how EU law concerning commercial activities are enforceable within member states. Conclusion Overall, whilst there are some restrictions in place to regulate the application of EU law, it is evident that many EU rules and regulations will be capable of being enforced within all member states. This is necessary when it comes to commercial activities as it is important that some form of protection exists to prevent the market from being abused. The extent to which EU law applies will always be subject to some controversy because of the fact that certain exceptions will apply. Though this is necessary in preventing abuse and ensuring that a balance is being maintained. The extent to which this balance is achieved is likely to be open to much debate though it is evident that member states have made some attempt to invoke EU law provisions concerning commercial activities. References Bright, C. (1996) EU Competition Policy: Rules, Objectives and Deregulation Oxford Journal of Legal Studies, Volume 16, Issue 4, 535-559. Dashwood, A. (2008) The Principle of Direct Effect in European Community Law, Journal of Common Market Studies, Volume 16, Issue 3, 229-245. Â   Europa. (2013) 50 Years of Direct Effect of EU Law Benefitting Citizens and Companies Press Release Database, [Online] Available:Â   http://europa.eu/rapid/press-release_CJE-13-56_en.htm [27 August, 2014]. Rodger, B. MacCulloch, A. and Galloway, J. (2009) Cases and Materials on UK and EC Competition Law, Oxford University Press: Oxford. Kaczorowska, A. (2013) European Union Law, Routledge: London. Kennedy, T. P. (2011) European Law, Oxford University Press: Oxford. Moens, G. and Trone, J. (2010) Commercial Law of the European Union, Springer Science Business Media: London. Whish, R. (2012) Competition Law, Oxford University Press: Oxford. Cases Belgische Radio en Televisie v SV Saban (127/73) [1974] ECR 51 Case 85/76 Hoffman-La Roche v Commission [1979] ECR 461 Case C-41/90 Hofner and Elser [1991] ECR I-1979 Case 27/76, United Brands Continental BV v Commission (1978) ECR 207 Defrenne v SABENA [1974] ECR 631 Foster v British Gas (1990) C-188/89 Van Gend en Loos v Nederlandse Administratie der Belastingen Case 26/62, [1963] ECR 1 Walrave v Association Union Internationale (36/74) [1974] ECR 1405; [1975] 1 CMLR 320