Exclusive Rights and State Monopolies under EC Law

Dr Jose Luis Buendia Sierra is Legal Adviser in the Cabinet of EC Commissioner Marcelino Oreja. He was previously an official in Directorate General IV of the Commission, and before that Lecturer in Commercial Law at Zaragoza University, Spain.

PART I: THE CONCEPT OF EXCLUSIVE RIGHTS AND ITS DIFFERENTIATION FROM OTHER RELATED CONCEPTS ; I. DEFINING THE CONCEPT ; II. EXCLUSIVITY ; III. THE GRANT OF THE EXCLUSIVE RIGHT AS A STATE MEASURE ; IV. THE GRANT TO AN UNDERTAKING, PUBLIC OR PRIVATE ; V. THE OBJECT OF THE EXCLUSIVE RIGHT: THE CARRYING OUT OF AN ECONOMIC ACTIVITY. ; VI. CLASSES OF EXCLUSIVE RIGHTS ; I. SPECIAL RIGHTS ; II. REGULATED ACCESS ACTIVITIES ; III. INTELLECTUAL PROPERTY RIGHTS ; PART II: THE SUBSTANTIVE LAW OF EXCLUSIVE RIGHTS IN THE EC TREATY ; I. CONCEPT OF STATE MONOPOLIES OF A COMMERCIAL CHARACTER ; II. OBLIGATIONS UNDER ARTICLE 31 ; I. WHO THE PROVISION IS ADDRESSED TO ; II. SUBSTANTIVE CONTENT OF THE PROVISION ; III. STATE MEASURES ; IV. CONNECTION OF THE STATE MEASURE WITH PUBLIC OR PRIVILEGED UNDERTAKINGS ; V. CONTRARY TO OTHER TREATY ; VI. DIRECT EFFECT ; VII. SCOPE OF TEMPORARY APPLICATION ; VIII. SIMILAR RULES CONTAINED IN AGREEMENTS WITH THIRD COUNTRIES ; I. APPLICATION IN CONJUNCTION WITH ARTICLE 82 (FORMERLY ARTICLE 86) ; II. APPLICATION IN COMBINATION WITH ARTICLE 81 (FORMERLY ARTICLE 85) ; I. THE DUAL LEGAL NATURE OF ARTICLE 86(1) IN CONJUNCTION WITH THE TREATY RULES ADDRESSED TO MEMBER STATES ; II. APPLICATION IN CONJUNCTION WITH THE RULES RELATING TO THE FREE MOVEMENT OF GOODS ; III. APPLICATION IN COMBINATION WITH RULES GOVERNING THE FREE PROVISION OF SERVICES ; IV. APPLICATION IN CONJUNCTION WITH REGULATIONS ON THE FREEDOM OF ESTABLISHMENT ; I. PRINCIPLES OF CONNECTION IN COMMUNITY LAW ; II. THE RELATIONSHIP BETWEEN ARTICLES 31 (FORMERLY ARTICLE 37) AND 86 (FORMERLY ARTICLE 90) ; III. THE RELATIONSHIP BETWEEN ARTICLES 86, 31, AND THE FUNDAMENTAL FREEDOMS ; IV. THE RELATIONSHIP BETWEEN ARTICLES 86 AND 31 AND ARTICLES 3, 10, 81, AND 82 ; I. THE UNDERTAKINGS TO WHICH ARTICLE 86(2) APPLIES ; II. ARTICLE 86(2): AN EXCEPTION APPLICABLE TO THE BEHAVIOUR OF UNDERTAKINGS AND TO STATE MEASURES ; III. THE CONDITIONS NECESSARY FOR THE APPLICATION OF ARTICLE 86(2) ; IV. INVOKING ARTICLE 86(2) BY THE MEMBER STATE OR BY THE BENEFICIARY UNDERTAKING ; V. CONNECTION BETWEEN ARTICLE 86(2) AND THE OTHER EXCEPTIONS ; I. OBLIGATION OF NON-DISCRIMINATION IN THE GRANT OF EXCLUSIVE RIGHTS. ; II. DOES AN OBLIGATION TO GRANT EXCLUSIVE RIGHTS EXIST? ; PART III: THE INSTITUTIONAL DIMENSION OF THE RULES RELATING TO EXCLUSIVE RIGHTS IN THE EC TREATY ; I. PROCEDURES FOR THE APPLICATION OF THE COMMUNITY RULES ; II. DECISIONS UNDER ARTICLE 86(3) OF THE EC TREATY ; III. DIRECTIVES UNDER ARTICLE 86(3) OF THE EC TREATY