Affect on trade between Member States meaning

In this issue: EU fundamentals Competition and state aid Corporate Data protection and cybersecurity Free movement, immigration and employment Financial services Environment Insurance and reinsurance IP Life sciences Regulatory TMT International trade Daily and weekly news alerts Trackers EU fundamentals Commission issues formal notices to EU Member States for failing to transpose EU directives The European Commission has dispatched letters of formal notice to several EU Member States that have not implemented five directives into national law. These measures span electricity market design (26 Member States), building energy performance (9 Member States), digital operational resilience (13 Member States), road transport social legislation (16 Member States), and food extraction solvents (5 Member States). Member States have two months to reply and finalise transposition of the directives, whose deadlines fell between January and February 2025. Denmark alone has fully transposed the Electricity Market Directive within the required timeframe. See: LNB...

Article 101(1) TFEU outlaws agreements liable to affect trade between Member States whose object or effect is to prevent, restrict, or distort competition within the common market. Nonetheless, EU case law makes clear that limiting a party’s economic freedom does not automatically amount to a ‘restriction of competition’ under Article 101(1). The Court of Justice has suggested, for example, that it can be doubtful there is any interference with competition where a clause truly appears necessary for an undertaking’s move into a new area. That observation gave rise to the ‘ancillary restraints doctrine’, with the EU Courts and the European Commission (Commission) acknowledging that certain limitations are not ‘restrictions of competition’ within Article 101(1) when, having regard to the ‘legal and economic context’, they are shown to be necessary to protect the parties’ legitimate interests under the agreement. Doctrine Inspired by the common law analysis of commercial restraints (ie, exceptions to the rule against ‘restraints of trade’), an ‘ancillary restraint’ is any limitation directly related to, and necessary...

This Practice Note offers practical guidance on trade and the environment within the WTO. It outlines the relevant WTO agreements that touch on aspects of environmental protection, the pertinent ministerial decisions, and the ongoing talks on an Environmental Goods Agreement within that context. Introduction Since its creation in 1995, the WTO has recognised the interplay between commerce and the natural environment. The Marrakesh Agreement establishing the WTO lists among its aims the optimal utilisation of the world’s resources in pursuit of sustainable development. This objective is to be realised by striving both to safeguard and conserve the environment and to strengthen the tools for doing so, in a way that aligns with each Member States’ particular needs and priorities across varying stages of economic development. Historically, Members have tended to view the trade–environment nexus through the lens of how environmental policies may affect trade flows. As a result, during the Tokyo Round negotiations, Members concluded the Agreement on Technical Barriers to Trade (TBT Agreement). From an environmental...

Article 101(1) TFEU and Article 102 TFEU bite only on market behaviour—whether agreements/concerted practices or unilateral action—that is liable to appreciably influence trade between EU Member States. This operates as a jurisdictional filter, deciding whether EU or national competition law governs the conduct. Where there is no cross‑border ‘effect on trade’, national rules may apply—for example, French competition prohibitions where the impact is confined to France. The European Commission and the EU Courts have read the inter‑state clause broadly, with the result that Articles 101(1) and 102 can capture national agreements or conduct where there is some foreclosure or an effect on imports. In practice this threshold is a low one. In addition, the inter‑state condition matters less now that all Member States have competition regimes modelled on EU law, so there is little practical difference as to whether EU or Member State law applies—a price‑fixing cartel is unlawful under both. The Commission Notice In 2004, the Commission issued a Notice on the ‘effect on...