Making Community Law

Making Community Law

The Legacy of Advocate General Jacobs at the European Court of Justice

Edited by Philip Moser and Katrine Sawyer

The inspirational ideas of Advocate General Francis Jacobs have been drawn together here for the first time in one volume. Fifteen leading EU law practitioners and academics have contributed, including both Sir Francis’s predecessor and his successor, covering topics of current discussion in this continually evolving field. Each contributor deals with a discrete topic of EU law and discusses its evolution to date, its current state and its future development, always with specific reference to Sir Francis’s opinions.

Chapter 5: Competition Law

Richard Whish

Subjects: law - academic, european law


Richard Whish1 INTRODUCTION2 In his remarkable career as Advocate General at the European Court of Justice (‘the ECJ’), Sir Francis Jacobs delivered Opinions on many aspects of Community law. Amongst those Opinions were many in the field of competition law – I believe the number to be 20 – beginning with Ministère Public v Jean-Louis Tournier3 on 26 May 1989 and ending with JCB Service v Commission4 on 15 December 2005. The Opinion in JCB was the final one that Sir Francis delivered to the ECJ. It is rather interesting to look at these two cases, separated by a period of more than 16 years, before examining in greater depth the contribution that Sir Francis has made to the development of the competition law of the Community during his time at the ECJ. Ministère Public v Jean-Louis Tournier In Ministère Public v Jean-Louis Tournier5 complex issues in relation to the activities of copyright management societies fell to be considered, including the compatibility with Article 81 EC of reciprocal agreements between such societies for the management of each others’ repertoires in their respective territories; the application of Article 82 EC to the ‘global’ licence which SACEM, the society in question, granted to discothèques, irrespective of the type or number of musical works actually used by them; and the difficult question of how to determine whether the fees charged by SACEM were excessive. On this last point, we often say in 2006 that there is little jurisprudence on what is...

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