Exclusive rights and state monopolies under EC law : Article 86 (formerly Article 90) of the EC Treaty

Abstract

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

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