Homework answers / question archive / EU LAW COURSEWORK OSCOLA REFERENCING QUESTIONS PART A Feelgut AG (‘Feelgut’) is a manufacturer of dietary supplement drinks to support people at risk of malnutrition through illness

EU LAW COURSEWORK OSCOLA REFERENCING QUESTIONS PART A Feelgut AG (‘Feelgut’) is a manufacturer of dietary supplement drinks to support people at risk of malnutrition through illness

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EU LAW COURSEWORK
OSCOLA REFERENCING
QUESTIONS

PART A

Feelgut AG (‘Feelgut’) is a manufacturer of dietary supplement drinks to support people at risk of malnutrition through illness. The company was set up ten years ago by UK and German pharmacists and has its registered office in Mainz, Germany.

 

It sells its products in Germany and in 19 other Member States across the EU. Producing the supplements in liquid form has helped children and the elderly, who might have problems swallowing tablets. Feelgut has found that a number of countries still prefer to use dietary supplements in tablet form, as this has been the traditional form used. They also find it difficult to make profit on transporting the products to more distant countries as they are quite bulky and need to be transported in refrigerated vehicles. As a result, Feelgut has struggled to make any impact in the other seven countries in Europe. The 20 Member States (Germany and the other 19) are known, in the trade, as ‘the 20’.

 

Feelgut explains that it only manufactures the supplements in liquid form. The processes used for manufacturing tablets are quite different and would need completely different machinery in the factory. They have not considered it economic to diversify in that way.

 

Feelgut’s market shares are as follows:

 

Medicinal dietary supplement drinks across the EU                          38%

Medicinal dietary supplement drinks across the 20                           45%

All medicinal dietary supplements across the EU                               17%

All medicinal dietary supplements across the 20                25%

 

They are very pleased that they have held these market shares fairly consistently for the last 5 years. On the whole they have few competitors able to manufacture these drinks at the price and with the appeal to the market that Feelgut can. The rest of the market is divided between a significant number of small manufacturers.

 

Feelgut has become aware of a new French business, Laboratoire Sante (‘Sante’) which is now trying to sell medicinal dietary supplement drinks to companies in France and Italy, who are two of the countries in the 20.

 

Feelgut is concerned because Sante already sells vitamin drinks to those in the sports industry and so has a good network of distributors across France and Italy. Although it is still small by European standards, Sante has grown quite quickly to be its current size.

 

Feelgut wants to do all it can to prevent Sante from getting a good position in the medicinal supplements market, so it has decided to offer its drinks at a 50% discount in France and Italy for a limited period. It believes it is impossible to make a profit at such low prices. It is also telling its customers that it will not supply drinks to them in the future if it finds out that any of them have bought from Sante

 

 

If Feelgut carries out its proposed action:

 

(i)            would it breach Article 102 TFEU?

(ii)           If so, what consequences might Feelgut face?

 

To answer these questions, you would need to consider Feelgut’s relevant market and explain whether Feelgut has a dominant position in that market.

 

 

PART B

 

Feelgut has decided that it needs to open a factory in a Member State in the east of the European Union, to help with its distribution network and to allow it to increase its sales across Europe. It has chosen to build a factory in Poland to manufacture its drinks there.

 

(Fictitious) Polish law requires all non-Polish businesses establishing in Poland to employ someone who is fluent in Polish, to identify and report possible victims of contemporary slavery. The Polish authorities imposed this requirement after a number of foreign businesses had been discovered to have employed people who were subject to severe exploitation and the authorities claimed not to have the resources to investigate all cases themselves.

 

Explain:

 

(i)            why the Services Directive 2006/123/EC does NOT apply to this scenario.

 

(ii)           whether Feelgut can challenge this Polish law, using the traditional approach to free movement of services and establishment.

 

 

In both Parts A and B, you should ensure that you correctly cite any relevant EU case law or legislation, using footnotes, where appropriate. You are NOT required to produce a bibliography.

 

You are required to produce an answer to Parts A and B not exceeding 2000 words. We would normally expect that your answer to Part A would not exceed 1300 words and Part B would not exceed 700 words.  You will not be penalised if your answer to either part exceeds these totals as long as your answer to both Parts A and B does not exceed 2000 words in total. However, any words over this total will not be marked.