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EMA
This end-of-module assessment (EMA) is the examinable component of the module. The score for the EMA will give you your overall examination score (OES).
The cut-off date for the EMA is 12:00 midday (UK local time) on 27 May 2021. This is the latest date by which your EMA must be submitted. You must submit your EMA using the online TMA/EMA service.
The EMA consists of two questions. Your answers must be written in your own words.
The word limit in this EMA for each question is a maximum of 2000 words for Question 1 and a maximum of 1500 words for Question 2. Remember, all the words you use to answer the questions, including quotations and citations, count. Any words used that exceed the overall word count for the EMA will not be marked or commented upon. Further guidance on what is included in the word limit is given in the OU Law School Undergraduate
Assessment Guide.
At the end of your EMA text, you must provide a reference list and a word count. The reference list is not included
in the word count.
Question 1
ACME Limited (ACME), a company registered in a Member State of the EU (the Republic of Ireland), is a manufacturer of laminated wooden beams, which are highly regarded for their ruggedness and strength. ACME’s main buyers, who are located in Ireland, France and Spain, use the laminated wooden beams as a key element in the construction of non-steel framed commercial buildings. ACME uses only bur oak trees for the laminated wooden beams.
Bur oak is widely acknowledged in the commercial building industry as the best wood for use in laminated wooden beams with its high strength and integrity. However, there are other timbers available within the EU; but only one
forestry firm, Coyote GmbH (Coyote), grows bur oak. Coyote is incorporated in Germany.
Coyote’s market share of the EU-wide bur oak market is 42 per cent and it has 15 per cent of the overall EU-wide timber market. Another German company, Strassenlälufer GmbH (Strassenlälufer), has 20 per cent of the EUwide bur oak market and 11 per cent of the overall EU-wide timber market.
For the last 20 years the market share of these two companies (Coyote and Strassenlälufer) has remained constant. Between them, both companies grow and supply 80 per cent of the bur-oak seeds and seedlings. Also, for the last 15 years they have agreed not to licence the sale of bur oak seedlings to anyone else.
ACME has brought its bur oak supplies from Coyote for many years as importing bur oak from wood mills in the USA, where it is widely grown, would be prohibitively expensive. As a result of the recession in the building industry in 2020, Coyote has recently reviewed its sales strategy and has decided to appoint exclusive distributors
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As part of its revised sales strategy, Coyote has retained a local company to distribute bur oak in the market in the Republic of Ireland. The local company is named HS Limited (HS) and is incorporated and registered in the
Republic of Ireland.
Coyote, in its distributorship agreement with HS, has included a term in the agreement requiring HS to include, in its contracts with its customers, that those customers must agree not to on-sell the unprocessed bur oak to other customers anywhere in Ireland or in another Member State. Coyote has not imposed a similar restrictive term on any of its other exclusive distributors in other markets.
Another clause in the distributorship agreement, between Coyote and HS, is to the effect that HS may only sell bur oak to manufacturers of wooden beams in the Republic of Ireland at a specified minimum price. HS, in its pricelist, is asking ACME to pay triple the price that it has paid to Coyote in previous years.
ACME thought that these changes in contractual terms and pricing are unfair and the conditions which Coyote’s subsidiary (HS) imposed were unacceptable. ACME tried to use alternative wood for some laminated wooden beams. It produced these alternative laminated wooden beams as samples for potential buyers; however, the laminated alternatives did not have the structural integrity of those made from bur oak.
a. Explain why an EU Commission investigation may find Coyote is in breach of Article 102 TFEU.
(15 marks)
b. Advise ACME whether the Commission has any grounds under Article 101 or 102 TFEU, or both Articles, for challenging the conduct of HS or Coyote, or both of them. Would your answer change if Coyote, instead of contracting with HS, establishes a subsidiary in Ireland to perform the same functions? (15 marks)
c. What EU remedies might ACME rely on in the national courts if it sues HS or Coyote, or both of them, for breaching Article 101 or 102 TFEU, or both Articles?
(5 marks)
Assume that, because of legal advice received on competition law issues, Coyote has decided not to proceed with its distributorship arrangement in each Member State as described earlier. Coyote is now in discussions with Marie-Anne (MA).
Marie-Anne owns a business in France supplying wood. MA regularly buys bur oak from Coyote. Coyote is attempting to renegotiate the terms upon which it sells to MA so that they will require her to also buy all her supplies of elm and ash wood from Coyote in return for which they will discount all timber treatments, such as special glues and oils, used in the manufacture of timber wooden beams.
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During an informal golf game after an industry conference in December 2020, a director of Coyote discussed with representatives from a US forestry firm and a Norwegian wood supplier (from either of which MA might source her wood requirements) the idea of not undercutting Coyote when supplying any purchasers of their products that are located within the EU.
MA has noticed that during 2021 the sales prices of the three undertakings (i.e. Coyote, the US forestry firm and the Norwegian wood supplier) have increased and decreased in a parallel pattern.
MA shops around to find the cheapest deal and usually ends up buying elm and ask from the cheapest source.
Coyote has said that if MA does not buy all her elm and ash from them, they will not supply her with bur oak. MA has ascertained that no other buyer of bur oak is required to buy all their elm and ash from Coyote when
purchasing supplies of bur oak.
d. Advise MA if she has any grounds under Article 101 TFEU for challenging these terms and practices.
(20 marks)
e. What EU procedure might the Norwegian wood supplier invoke in order to limit its exposure in the
event of a European Commission investigation?
(5 marks)
Question 2
Article 34 TFEU states that ‘[q]uantitative restrictions on imports and all measures having equivalent effect shall
be prohibited between Member States.’
Then, in Criminal proceedings against Bernard Keck and Daniel Mithouard (Joined Cases C-267/91 & C-268/91)
[1993] ECR I-6097, [1995] 1 CMLR 101), the CJEU, in applying Article 34 TFEU, drew a somewhat formalistic
distinction between rules relating to the characteristics of products and selling arrangements without considering
market access (‘the statement’).
a. Critically analyse what type of national restrictions Article 34 TFEU covers, ensuring that you make reference to the decision in Keck and subsequent decisions of the CJEU.
(25 marks)
b. With reference to the above statement, how consistent and successful has the CJEU been in striking
a balance between Member State regulation and the freedom to move goods?
(15 marks)
Learning outcomes
The EMA tests the following learning outcomes:
Knowledge and understanding:
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Cognitive skills:
organise and assimilate legal and factual material relating to European Union law and express a reasoned personal view about that material
identify, describe and analyse the relative merits of different legal and policy arguments in relation to European Union Law as articulated in public discourse, academic debate, case law and legal scholarship present arguable and reasoned conclusions.
Key skills:
critically read, understand and discuss legal materials in the area of European Union law that involve technical and complex language (e.g. legislation, cases or academic commentary).
Advice
The OU Law School Undergraduate Assessment Guide contains definitions of words used in assessment questions. It also gives advice on referencing and the reference list that you must produce and include at the end of your work. You should read this guide before attempting the EMA.
For all in-text citations (other than treaties and your reference list at the end of your EMA), it is acceptable to shorten EU legislation and case law to the style set out in the second column examples (headed ‘In-text citation – subsequent occurrences’) in Sections 3.2 and 3.3 of your OU Law School guide to legal citations and references.
Your answers should be written in full sentences and in clear and concise language. You should write in formal English and take care to ensure that your language is grammatically correct. Your work should be arranged into paragraphs and you should only be using bullet points and other types of lists where necessary. You can use headings and sub-headings where you find it appropriate.
It is important to write in your own words. The OU Law School Undergraduate Assessment Guide contains guidance on writing in your own words in Section 5.
The questions are asking you to draw on your knowledge and understanding of all units. You may draw on material outside this module. While Units 1, 3, 4, 6, 8 and 10 constitute sensible starting points for your approach to this EMA, you should not limit yourself to the material of these units, but rather you need to look at a much wider understanding of European Union law and its legal framework.
You are not expected to follow a specific format when answering this EMA, apart from the advice given in the OU
Law School Undergraduate Assessment Guide and in tutorials on answering problem and essay questions.
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References
Criminal proceedings against Bernard Keck and Daniel Mithouard (Joined Cases C-267/91 & C-268/91) [1993]
ECR I-6097, [1995] 1 CMLR 101.
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