Directive (EU) 2016/943 of the European Parliament and of the Council, of 8 June 2016, on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure – brief analysis

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by Ana Margarida Pereira, Collaborating Member of CEDU

The differences in the Member States’ legislation regarding the protection of trade secrets against their unlawful acquisition, use or disclosure, the lack of consistency regarding the civil law remedies available and the differences regarding the treatment to give to a third party who has acquired the trade secret in good faith but subsequently learns that the acquisition derived from a previous unlawful acquisition by another party are some of the reasons that justified European action  regarding the protection of undisclosed know-how and business information (trade secrets).

Such differences were, for many years,  a reason for the fragmentation of the internal market and for the weakening of the overall deterrent effect of the relevant rules applicable. This legal framework lead to a decrease of innovation- related cross-border activity and, naturally, to a decrease of European Union’s intellectual production.  In order to provide rules at Union level regarding the harmonization of the protection of know-how and trade secrets it was necessary to elaborate and publish Directive (EU) 2016/943.

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Summary of Cassis Dijon – C-120/78

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: Common Market; Spirit Drinks, Importation, Minimum Content, Cassis Dijon

Court: CJEU| Date:  Feb. 20th 1979 | Case: C-120/78 | Applicants: Rewe-Zentral AG vs Bundesmonopolverwaltung Für Branntwein

Summary:  Rene-Zentral is a central cooperative undertaking that imports good from other Member States. On 14th September 1976 the company requested authorization for Bundesmonopolverwaltung (Federal Monopoly Administration for Spirits) to import a spirit drink called “Cassis Dijon”. Administration told to Rene-Zentral that there was no need to ask for authorization to import goods, however “Cassis Dijon” couldn’t be sold in Germany because the spirit drink didn’t fulfil the requirements of alcohol (wine-spirits must be around 32% and the mentioned mark had around 20%). Rene claimed that the German provision represented a restriction for the free movement of goods and contrary to article 30 and 37 of the EEC Treaty. Rene brought an action against the decision and the Court suspended the action and referred the following questions to CJEU:

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Sanctions to the anti-trust behaviour: the rethinking

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by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho

It´s not enough for the conducts to be forbidden. The European legislator’s task is much more compelling and challenging because to the European legislator it’s not enough to say “what can’t be done”, he has to be the creator of a coordinated and coherent system of norms in the Member States. The specificity of the regime created will dictate from where these norms start and where they end up. The anti-trust practices, in a internal market logic, are established in the articles 101, 102 and 106, TFEU as prohibited conducts, prejudicial conducts of a European economic project, which shall be conducive to a strong and developed market. However, the European lawmaker could not apply the same logic of cause, effect and consequence that applies to the traditional national systems once these strike back with the set of rules of the market practice – heir to an era when it was every man for himself.

In fact, the European Union has responded with new mechanisms but they are not consistent with integral efficiency of the competition law, in one hand, because in many cases the heavy fines paid by companies outweigh the profit earned by the anti-trust practice or, in the other hand, in case of abuse of dominant position, after the sanction, it converts itself in a long-lasting dominant position. A calculated risk.

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Brexit and the European Football Market: The Consequences for the Premier League and the British Players

by Rita de Sousa Costa, law student at UMinho
and Tiago Sérgio Cabral, law student at UMinho

The results of the referendum held in Great Britain on the 23rd of June of 2016 shall certainly change the course of history. On this day “Brexit” trumped “Bremain” by 52% against 48% with a turnout of about 72%. And while the results of the referendum are not binding it does seem that the British government plans to respect the will of the voters.

Leaving the EU will affect not only the economy but every single aspect of the lives of the British people, including sports. The British love sports, mainly football, and Britain, more precisely England has one of most competitive football leagues in the world: the Premier League. Nigel Farage a top UK politician and one of the most prominent leave supporters said in April:

What this referendum is about is taking back control of our lives, our laws and our borders”.

However, we must ask ourselves what are the consequences of “taking back our laws and borders” for the Premier League?

Farage is a supporter of Crystal Palace, whose team is composed of 32 players, and 12 of those players are not British. Manchester United, the winner of the FA Cup, regularly plays with 7 non-British players on its line-up even if in total it has more than 50% British players on its roster. How will the Premier League survive after Brexit? Will its teams agree with Farage’s statement “outside of this single market we will be better off” (here)?
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Editorial of May 2016

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by Pedro Madeira Froufe, Editor
and Joana Covelo de Abreu, Junior Editor

Competition, Public Procurement and Citizenship

Last 18th April 2016, the transposition deadline for new public procurement Directives passed: Directives 2014/23/EU, 2014/24/EU and 2014/25/EU. The first one deals with the award of the concession contracts and the latter have to do, respectively, with public procurement (and repealing Directive 2004/18/CE) and procurement by entities operating in the water, energy, transport and postal services sectors (repealing, for that matter, Directive 2004/17/CE).

Public procurement has a fundamental role in the European Union, namely in the EUROPE 2020 Strategy context, since it appears as an internal market instrument that is adequate to promote a sustainable development, an intelligent and inclusive growth, aiming, equally, a more reasonable use of public funding. Besides, public procurement regulation, in the European context, always prosecutes competition’s preservation and reinforcement – the background where internal market edification was set.

With those new Directives, there were some aspects of the previous regime that were revised, namely the European thresholds (which define the scope of application of European rules on public procurement). Those were supposed to be updated every two years if necessary. Still, a new proceeding was created: the innovation partnership established between the contracting entity and the participants, which allows setting successive stages and intermediate objectives. E-procurement gains a more relevant role.

According to information provided by European Institutions, public procurement contracts have a significant weight in Member-States economies, representing about 16% of the Union’s GDP. But before public procurement had been regulated by the European Union, only 2% of economic operators that had won public contracts were non-national companies. In this perspective, application of Internal Market rules (namely freedom to provide services and free competition) allowed a better usage of public resources and a better and more fruitful competition, demanding economic operators in the European context to improve their services and to provide them to a lower price (to a more competitive price). With public procurement Europeanization there was also a reinforcement of transparency and equality principles’ respect and a diminishing of fraud and corruption’s risk.

As stated, competition policy always ends up to be in the base (even when indirectly) of the functioning dynamic’s type that we aim to the Internal Market and to the economic integration. Besides, to a large degree, the creation of a competition culture in Europe is the result of integration. Actual challenges are connected, in a great extent, by the balanced markets’ regulation, by the implementation of an economy that is always competitive but also socially aware. New technologies set today new realities not always easy to ordain, safeguarding, in a balanced way, economic efficiency (more competition) and what we can call, in a detailed way, common interest manifestation (and, therefore, of a socially balanced regulation). In the “common economy” field, difficulties of that balance are particularly evident and immediate. Let’s consider an illustrative example: the tension between a (very closely) regulated sector of providing services – taxi services – and the emergence, also in Europe and with great success, of the UBER phenomenon. This is something to follow with interest. It is also a challenge to the densification of European citizenship (economic, directly connected to European consumers).

Picture credits: Numbers and Finance  by Reynermedia.

Summary of Tetra Pak – T-51/89

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: Common Market, Abuse, Dominant Position, European Commission, Exemption.

Court: CJEU, General Court | DateJune 10th 1990 | Case: T-51/89 | Applicants: Tetra Pak Raussing S.A. vs European Commission

Summary: On 26th July 1988, European Commission declared that Tetra Pak Raussing S.A. was in breach of article 86 of the EEC Treaty because by purchasing LiquiPak, they would have access to LiquiPak’s exclusivity contract of patent. This exclusive licence relates to a new UHT milk-packaging process. On 26th June 1986, EloPak made a complaint to the European Commission contesting TetraPak act according to articles 85 and 86 of the EEC Treaty. European Commission concluded that TetraPak infringed article 86 of the EEC Treaty by abusing its dominant position. TetraPak contested the decision and appealed to First Instance Court based on the argument that European Commission couldn’t disallow the deal based on article 86 when this deal is an exemption to n.3 of article 85 of the EEC Treaty. This argument is separated in three sub-categories:

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