European Union Law

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EUROPEAN UNION LAW Preface Contents Table of Cases Table of Legislation Tables of Equivalences Abbreviations THE FOUNDATIONS OF THE EUROPEAN UNION Creation of the European Community and European Union Introduction Motives for European integration The creation of international (European) organisations Widening participation Deepening cooperation The UK’s attitude towards the European Union Further reading The Institutional Framework of the European Union Introduction Democracy and separation of powers within the European Union Democracy in the EU The separation of powers in the EU The political institutions of the European Union The Commission Constitution and appointment of the Commission Role of the Commission The Council Configuration of the Council Function of the Council Council voting procedures The European Parliament Composition of the European Parliament Functions of the European Parliament Legislative powers Budgetary powers Control of the ‘Executive’ Right to litigate Additional functions The European Council The European Court of Auditors The Monetary Union institutions: the European Central Bank and the European System of Central Banks The Union’s advisory bodies Further reading Division of Competences between the Union and the Member States Introduction Powers Principle of conferral Implied powers Residual powers Union competences Exclusive competences Shared competences Supportive competences The enhanced cooperation procedure Limits to competences Principle of subsidiarity Principle of proportionality Further reading The Sources of European Law Introduction Primary sources Secondary sources Legislative and non-legislative acts Legislative acts Non-legislative acts Validity of EU acts Article 288 TFEU Binding EU acts: regulations, directives and decisions Regulations Directives Decisions Non-binding EU acts: recommendations and opinions Other acts Other binding acts outside Article 288 TEU Soft law Case law of the Court of Justice of the European Union General principles of EU law Fundamental rights: the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights Charter of Fundamental Rights of the European Union European Convention on Human Rights International agreements Further reading The Law-making Process in the European Union Introduction The principles of law-making Principles relating to the institutions Principles relating to content and procedure The legislative procedures The ordinary legislative procedure The special legislative procedure The adoption of regulatory acts Further reading THE RELATIONSHIP BETWEEN EU LAW AND NATIONAL LAWS The Constitutional Pillars of European Union Law Introduction Supremacy of EU law Rationale for the principle of supremacy The creation and development of the principle of supremacy by the CJEU Application of the principle of supremacy Principle of disapplication of national law Principle that national law must be interpreted in light of EU law Principle of State liability in relation to the principle of supremacy The reaction of national constitutional courts to the principle of supremacy The principle of supremacy in EU legal instruments and documents Direct effect The principle of direct effect Direct effect of Treaty provisions Direct effect of EU acts Direct effect of regulations Direct effect of directives Direct effect of decisions Direct effect of international agreements Circumventing the lack of horizontal direct effect of directives: indirect effect, triangular situations, incidental effect and the fundamental rights approach Indirect effect Triangular situations Incidental effect The general principles approach Further reading The Effectiveness of European Union law Introduction Enforcement actions against Member States under Articles 258 to 260 TFEU The procedure The pre-judicial (administrative) phase Informal phase Formal phase Reasoned opinion The judicial phase The procedure(s) Defences Interim measures Effect of the Court’s ruling Financial penalties Member State liability for breaches of EU law Background to and rationale of the principle Author of the violation: definition of a State Development of the principle Procedural autonomy and domestic responsibilities Further reading THE EUROPEAN JUDICIARY The Court of Justice of the European Union Introduction The Court of Justice The aims and roles of the Court of Justice The procedure Judicial proceedings Orders and Opinions The General Court Specialised courts Methods of interpretation The CJEU as a constitutional court and judicial activism Further reading Preliminary Ruling Procedure on Interpretation and Validity Introduction Jurisdiction of the Court of Justice of the European Union and division of tasks Jurisdiction of the Court of Justice of the European Union Division of tasks Which ‘national court or tribunal’ can make a reference? Obligation and discretion to refer Can the Court of Justice of the European Union refuse to hear a preliminary reference? The special preliminary ruling procedures The effects of the ruling of the Court of Justice of the European Union Further reading Judicial Supervision of European Union Institutions Introduction Annulment of EU acts Reviewable acts Grounds of review Lack of competence Infringement of an essential procedural requirement Infringement of the Treaty or of any rule of law relating to its application Misuse of powers Extent of judicial review Time limits Locus standi – who may seek annulment of an EU act? Privileged applicants Semi-privileged applicants Non-privileged applicants Effect of annulment Failure to act Plea of illegality Extra-contractual liability Admissibility of the action Requirements for a right to damages Further reading TRADE WITHIN THE INTERNAL MARKET The Internal Market and Harmonisation Introduction From the common market to the internal market The road to the Single European Act The Single European Act and the internal market Common market and internal market The internal market: a gradual process of creation The internal market after the first 10 years The internal market of the 21st century Harmonisation The legal basis of harmonisation Harmonisation, approximation or coordination? Methods of harmonisation Original methods of harmonisation The new approach and the global approach Further reading The Free Movement of Goods: The Customs Union and the Abolition of Tariff Barriers Introduction The Customs Union The creation of the Customs Union The Union Customs Code The internal and external aspects of the Customs Union The definition of ‘goods’ The elimination of tariff barriers The abolition of customs duties Charges having equivalent effect to customs duties The nature of the charge The origin of the charge The tax point of the charge Permissible charges Charges as fees for services rendered by the Member State The service must be effective and genuine The service is for the sole benefit of the trader The charge must be proportionate to the actual cost of the service Charges attached to inspections required under EU law Charges imposed on domestic goods only Charges imposed on domestic and imported goods The prohibition of discriminatory internal taxation ‘Genuine tax’ Application of Article 110 TFEU ‘Similar products’ ‘Products in competition’ Direct and indirect discrimination Direct discrimination Indirect discrimination Further reading The Free Movement of Goods: The Abolition of Non-tariff Barriers Introduction The prohibition of physical and technical barriers Measures caught under Articles 34 and 35 TFEU National measures ‘Purely internal measures’ EU measures Quantitative restrictions Measures having equivalent effect to quantitative restrictions on imports The Dassonville formula The Cassis de Dijon approach The ruling The principle of mutual recognition or equivalence The economic significance of Cassis de Dijon Examples of measures having equivalent effect Distinctly applicable measures Indistinctly applicable measures Marketing restrictions: chronicle of a jurisprudence foretold Review of the scope of application of Article 34 TFEU: Keck and Mithouard Examples of national measures governing ‘certain selling arrangements’ The limits of the Keck and Mithouard approach Quantitative restrictions and measures having equivalent effect on exports Further reading The Free Movement of Goods: Derogations and Justifications Introduction Treaty derogations Derogations under Article 36 TFEU General considerations Scope of application of Article 36 TFEU Conditions of application of Article 36 TFEU Grounds for justification Public morality, public policy and public security Protection of health and life of humans, animals and plants Protection of industrial and commercial property Derogations under Article 114 TFEU Justifications in the case law of the Court of Justice The first Cassis de Dijon principle Legal basis of ‘mandatory requirements’ Relationship between the first Cassis de Dijon principle and Article 36 TFEU ‘Mandatory requirements’ Principles of law The precautionary principle Protection of fundamental rights Further reading Freedom to Exercise an Economic Activity Introduction Free movement of workers The concept of worker A European law concept Work seekers The worker’s rights Freedom of establishment and freedom to provide services The concept of establishment The concept of services The beneficiaries of the freedom of establishment and the freedom to provide services Natural persons Legal persons The Services Directive Scope of application of the Directive Freedom of establishment for providers Free provision of services Cooperation between Member States The principle of non-discrimination Prohibition of direct and indirect discrimination Non-discrimination and access to an economic activity Non-discrimination and pursuit of an economic activity Prohibition of non-discriminatory restrictions Mutual recognition of professional qualifications The original legislative movement The health professions Architects The legal profession The new approach to harmonisation The first wave of legislation Consolidation under Directive 2005/36 Modernisation of Directive 2005/36 Activities falling outside the scope of those freedoms Public service Exercise of official authority Further reading COMPETITION LAW Core Concepts of Competition Law Introduction The concept of ‘undertaking’ Irrelevance of the form or legal status The economic nature of the activity Specific sectors of activities The liberal professions Insurance, pension and social security funds Single economic entity Market definition The importance of the concept of relevant market Purpose of market definition Definition of relevant market The relevant product market The relevant geographic market The relevant temporal market The concept of ‘effect on trade between the Member States’ The purpose of the concept Definition and interpretation of the concept Appreciability The applicability of the concept to agreements or abuses covering one, or part of a, single Member State Further reading Substantive Competition Rules Applicable to Undertakings Introduction Control of horizontal and vertical restraints under Article 101 TFEU The general economy of Article 101(1) TFEU The constituent elements of Article 101(1) TFEU The different forms of collusion Joint intention Decision by associations of undertakings Concerted practice Interference with competition The object or effect of the agreement or practice The prevention, restriction or distortion of competition Article 101(1) TFEU applies to horizontal and vertical agreements alike Horizontal agreements Vertical agreements The nullity of a restrictive agreement under Article 101(2) TFEU Exemptions under Article 101(3) TFEU The general economy of Article 101(3) TFEU Objective benefits Fair share for consumers No indispensable restrictions No substantial elimination of competition Block exemptions Abuse of dominant position Market power Dominance in a substantial part of the internal market Abuse Concept of abuse Types of abuse Objective justification of an abuse Concentrations Definition of a concentration The Union dimension of concentrations Appraisal of concentrations Further Reading Article 101 TFEU Article 102 TFEU Control of concentrations Enforcement of Competition Rules Introduction The territoriality principle in EU competition law Public enforcement of competition rules The modernisation of European competition law The enforcement of Articles 101 and 102 TFEU The role of the Commission Investigation by the Commission Commission decisions Penalties Cooperation between the Commission and national competition authorities and courts Cooperation between the Commission and national competition authorities Cooperation between the Commission and national courts Review of public enforcement under Regulation 1/2003 Private enforcement of competition rules Private enforcement in the national courts The new EU regime governing actions for damages under national law for breaches of competition law Aims and objectives of the Directive Key provisions of the Directive Right to full compensation Proof of a breach of competition rules Limitation periods Joint and several liability Disclosure of evidence Passing-on defence Quantification of harm Consensual dispute resolution Temporal application of the Directive Further reading EUROPEAN CITIZENSHIP AND THE FREE MOVEMENT OF EUROPEAN CITIZENS European Citizenship Introduction From a People’s Europe to European citizenship People’s Europe and citizens’ Europe European citizenship under the EU treaties European citizenship and national citizenship The status of European citizens Citizenship as the fundamental status of EU nationals The political rights of European citizens The right to vote and to stand at European and municipal elections The European citizens’ initiative The legal protective rights of European citizens The right to diplomatic and consular protection The right to petition the European Parliament The right to complain to the European Ombudsman The right to use any EU official language in correspondence with EU institutions and bodies Further reading The Free Movement of European Citizens Introduction Free movement within the area of freedom, security and justice Genesis of the area of freedom, security and justice The area of freedom, security and justice under the Lisbon Treaty European Union migrants and family members’ right to free movement and residence Economically active and inactive EU migrants Migrants’ family members Right to move and reside in another Member State The right to move freely The right of exit The right of entry The right of residence The right of residence for up to three months The right of residence for more than three months The right of permanent residence Equal treatment rights Limits to free movement rights Conditions of application Grounds for justification Public policy and public security Public health Protection against restrictive measures Protection against expulsion Normal protection Enhanced protection Procedural requirements and safeguards Notification in writing Access to judicial redress Exclusion ban Expulsion as a legal consequence of a custodial penalty Further reading Index