Treaty on the Functioning of the European Union - A Commentary: Volume I: Preamble, Articles 1-89

Description

The Commentary on the Treaty on the Functioning of the European Union (four volumes) is a major European project that aims to contribute to the development of ever closer conceptual and dogmatic standpoints with regard to the creation of “Europeanised research on Union law”. Following on from the Commentary on the Treaty of the European Union, this book presents detailed explanations, article by article, of all the provisions of the TFEU, discussing the application of Union law in the national legal orders and its interpretation by the Court of Justice of the EU. The authors are academics and practitioners from twenty-eight European states and different legal fields, some from a constitutional law background, others experts in the field of international law and EU law.Reflecting the various approaches to European legal culture, this book promotes a system concept of European Union law toward more unity notwithstanding its rich diversity grounded in national traditions. Preface Structure of the Commentary Contents Abbreviations Contributors Preamble Preamble 1 Development, Context, and Aims of the Preamble 1.1 Development 1.2 Context 1.3 Aims 2 Legal Relevance and Function of the Preamble 2.1 Legal Relevance 2.2 Function 3 The Substantive Issues of the Recitals 3.1 An Ever-Closer Union Among the Peoples of Europe 3.1.1 The ``Ever Closer Union´´ Topos in the Case Law of the Court of Justice of the EU 3.1.2 The ``Ever Closer Union´´ Topos in Light of the Brexit 3.1.3 Reaffirming the Mission of an ``Ever-Closer Union Among the Peoples of Europe´´ 3.1.4 Interpreting the Phrase at the Intersection Between National Sovereignty and Democratic Legitimation of the Union 3.1.5 The ``Ever Closer Union´´ as a Criterion Determining the Finality of the Union? 3.2 Economic and Social Progress and Elimination of Barriers 3.2.1 Economic Progress 3.2.2 Elimination of Barriers 3.2.3 Social Progress 3.3 Constant Improvements of Living and Working Conditions 3.4 Steady Expansion, Balanced Trade, and Fair Competition 3.4.1 Steady Expansion 3.4.2 Balanced Trade 3.4.3 Fair Competition 3.5 The Unity of Economies and Their Harmonious Development 3.6 A Common Commercial Policy 3.6.1 Free Trade Agreements 3.6.2 The Developmental Dimension of Free Trade Agreements 3.7 Solidarity with Overseas Countries and Development of Their Prosperity 3.8 Preserving and Strengthening Peace and Liberty 3.9 Development of the Highest Possible Level of Knowledge List of Cases ECJ Opinions of the Advocate General German Federal Constitutional Court (Bundesverfassungsgericht) References Part One: Principles Article 1 [Functioning of the Union, Treaties Same Value] 1 Genesis 2 Bases of the Functioning of the Union 2.1 Competences 2.1.1 Written Competences 2.1.2 Implied Powers 2.1.3 A Competence of the Union to Decide on Its Own Competence? 2.2 Delimitation of Competences Between Union and Member States 2.3 The Principles of Institutional Balance and Separation of Powers 2.4 Forms of Action 2.5 Legislative Procedure 2.5.1 Overview 2.5.2 Binding Force of the Rules of Procedure 2.5.3 Interinstitutional Trilogue Procedures in an Informal Framework 3 The Treaties as the Basis of the Union (para 2) 3.1 Legal Nature of the Treaties 3.2 Constitutional Quality of the Treaties 3.3 Primary Law and Secondary Law 3.3.1 Unwritten Primary Law 3.3.2 The Relationship Between TEU and TFEU 4 Structure of the Union and Characteristics of Union Law 4.1 The Union as an Association of Sovereign States 4.2 Characteristics 4.3 Validity and Autonomy of Union Law 4.4 Direct Applicability and Effect of Union Law 4.5 Primacy of Union Law 4.5.1 Meaning and Justification of the Doctrine 4.5.2 Cases of Application 4.5.3 Primacy Over Legislative and Sub-Legislative Acts of the Member States 4.5.4 Primacy Over National Constitutional Law 4.5.5 Legal Consequences of the Rule of Primacy 5 Union Law and Public International Law 5.1 The Rank of International Public Law Within the Union Law and Its Direct Applicability 5.2 Conclusion of Treaties 5.3 International Treaties Within the Union and Supplementary International Law of the Union List of Cases ECJ/CJEU CFI Opinions of the Advocate General Czech Constitutional Court (Ústavní Soud) French Constitutional Council (Conseil constitutionnel) German Federal Constitutional Court (Bundesverfassungsgericht) House of Lords Hungarian Constitutional Court (Alkotmnybírósg) International Court of Justice Italian Constitutional Court (Corte Costituzionale) Spanish Constitutional Court (Tribunal Constitucional) Permanent Court of International Justice References Title I: Categories and Areas of Union Competence Article 2 [Competences of the Union and Member States] 1 The Division of Powers Between the European Union and the Member States: History and Contents 1.1 Structure of the European Institutions and Their Purposes 1.2 Legal Sources of Community Law and Concurrency with National Sources 1.3 Approximation of the Legislations 1.4 Implied Powers 2 Introduction of the Competence Rules in the Treaties 3 The Categories of Competence 3.1 The Flexibility Clause on Implied Powers 3.2 The Limits, Type, and Enumeration of Competences 3.3 The Union´s Exclusive Powers 3.4 The Shared Competences of the European Union with the Member States 3.4.1 Horizontal Concurrent Competence 3.4.2 Protocol No. 25 on the Exercise of Shared Competence 3.4.3 Declaration No. 18 on the Delimitation of Competences 3.5 Coordination of the Economic and Employment Policies of the Member States and Powers of the European Union 3.6 The Union Competence on a Common Foreign and Security Policy and on a Common Defence Policy 3.7 The Complementary Competences of the EU 4 Descriptive and Prescriptive Elements in the Proposals on the Division of Powers List of Cases ECJ CFI/GC References Article 3 [Exclusive Competence of the Union] 1 The Exclusive Competence and the European Union 2 Consistency and Extent of the Exclusive Competence of the Union 3 Matters of Exclusive Competence 3.1 Customs Union 3.2 The Establishing of the Competition Rules 3.3 Monetary Policy for the Member States Whose Currency is the Euro 3.4 The Conservation of Marine Biological Resources Under the Common Fisheries Policy 3.5 Common Commercial Policy 4 The Union Exclusive Competence for the Conclusion of International Agreements List of Cases References Article 4 [Shared Competence] 1 A Negative Residual Competence 2 Different Types of Shared Competence 3 The Enumeration of Principal Areas of Shared Competence 3.1 Internal Market 3.2 Social Policy for the Aspects Defined in this Treaty 3.3 Economic, Social and Territorial Cohesion 3.4 Agriculture and Fisheries, Excluding the Conservation of Marine Biological Resources 3.5 Environment 3.6 Consumer Protection 3.7 Transport 3.8 Trans-European Networks 3.9 Energy 3.10 Area of Freedom, Security, and Justice 3.11 Common Safety Concerns in Public Health Matters for the Aspects Defined in this Treaty 4 The So-called Parallel Competences 4.1 Research, Technological Development, and Space 4.2 Development Cooperation and Humanitarian Aid List of Cases References Article 5 [Coordination of the Economic Policy] 1 The Nature of the Competences of Article 5 2 Coordination of Member States´ Economic Policies 3 Specific Provisions for Euro Member States 4 Coordination of the Employment Policies of the Member States 5 Coordination of Member States´ Social Policies List of Cases References Article 6 [Support, Coordination or Supplement by the Union] 1 The Complementary Competencies 2 The Sectors of Complementary Competences 2.1 Protection and Improvement of Human Health 2.2 Industry 2.3 Culture 2.4 Tourism 2.5 Education, Vocational Training, Youth, and Sport 2.6 Civil Protection 2.7 Administrative Cooperation References Title II: Provisions Having General Application Article 7 [Policy Consistency; Principle of Conferral of Powers] 1 The Consistency Clause 2 The Provision of Consistency in the Treaties 3 The Subjects of the Obligation of Consistency 4 The Purpose of the Consistency Clause and the Actions of the Union 5 The Problem of Effective Enforceability of the Principle of Coherence References Article 8 [Equal Treatment, Equality Between Men and Women] (ex-Article 3.2 TEC) 1 Overview 2 Gender Equality as a General Principle in EU Law 3 Scope of Application 3.1 In All Its Activities 3.2 Between Men and Women 4 Eliminating Inequalities and Promoting Equality 4.1 Legislative Activities 4.2 Gender Mainstreaming 4.3 Positive Action 5 Conclusions List of Cases References Article 9 [Social Aims] 1 Systematic Context and Function 2 Scope of Normativity 3 The Policy Goals to be Taken Into Account 3.1 Promotion of a High Level of Employment 3.2 Guarantee of Adequate Social Protection 3.3 Fight Against Social Exclusion 3.4 High Level of Education and Training 3.5 High Level of Protection of Human Health 4 Strengthening ``Social Market Economy´´? List of Cases References Article 10 [Non-Discrimination] 1 The Background and Rationale for the Introduction of a Mainstreaming Provision 2 Genealogy of Article 10 TFEU 3 The Role, Legal Nature and Place of the Provision within the TFEU 3.1 The Role of Article 10 TFEU 3.2 The Cross-Section Nature of the Provision 3.3 The Place Within the Framework of Non-Discrimination Law 4 Discrimination 4.1 Definition of Discrimination 4.2 Grounds of Discrimination 4.3 Scope of Application 5 The Obligation on the Union 5.1 The Addressees of the Obligation 5.2 The Intensity of the Performance 5.3 No Promotion, No Worsening? 5.4 Possibility of Judicial Control List of Cases References Article 11 [Compliance with the Requirements of Environmental Protection] (ex-Article 6 TEC) 1 Introduction 2 Protection of the Environment: Origin and Development 3 The Principles 4 The Principle of Integration and Sustainable Development 5 Final Remarks List of Cases References Article 12 [Consumer Protection] (ex-Article 153.2 TEC) 1 The Competence Under Article 12 TFEU 2 The Constitutional Dimension of Article 12 TFEU Under the Impact of Article 38 EUCFR List of Cases CFI/GC ECJ References Article 13 [Animal Protection] 1 Introduction 2 Animals As Sentient Beings and the Protection of Their Wellbeing Requirements 2.1 Origin and Developments 2.2 Principles and Derogations 3 Final Remarks List of Cases ECJ ECtHR References Article 14 [Services of General Economic Interest] (ex-Article 16 TEC) 1 Introduction/General Remarks 2 Origin and Genesis of Services of General Economic Interest: The Tension Between Competition and Public Welfare 2.1 Different Traditions Regarding Services of General Economic Interest Within the EU Member States 2.2 Starting Point: The French Model of Service Public 2.3 Other Member States 2.4 Genesis of a European Approach 3 Detailed Comments 3.1 Article 14 Sentence 1 TFEU 3.1.1 Applicability: Services of General Economic Interest ``Services´´ ``General Economic Interest´´ Services of ``General Interest´´ 3.1.2 SGEIs Role in Promoting Social and Territorial Cohesion 3.1.3 Judicial Reviewability 3.2 Article 14 Sentence 2 TFEU: Regulatory Competence of the Union 3.3 The Relationship Between Article 14 TFEU and Article 106 TFEU: ``Practical Compatibility´´ or a ``Relationship Between Rul... 4 Protocol No 26 on Services of General Interest 5 Conclusion and Outlook List of Cases CFI ECJ References Article 15 [Observance of the Principle of Openness] (ex-Article 255 TEC) 1 Good Governance, Participation of Civil Society and Openness (Paragraph 1) 2 Transparency: Public Meetings in the Legislative Procedure (Paragraph 2) 3 Right of Access to Documents (Paragraph 3) 3.1 Origins and Evolution 3.2 Relevance and Limitations of Regulation (EC) 1049/2001 3.3 Specific Measures Adopted by the European Institutions 3.4 Peculiarities Affecting the CJEU, the ECB and the EIB 3.5 Preferential Access to Legislative Documents of the EP and of the Council 4 Conclusions List of Cases ECJ CFI References Article 16 [Protection of Personal Data] (ex-Article 286 TEC) 1 Introduction 2 Context: A Brief History of the Right to the Protection of Personal Data 3 Establishing the Fundamental Right to the Protection of Personal Data 3.1 Personal Scope 3.2 Material Scope 3.3 Territorial Scope 3.4 Content 3.5 Supervision by an Independent Authority 3.5.1 Independence 3.5.2 Accountability 3.5.3 Tasks and Powers 3.5.4 Reform of the Enforcement Model 4 The Positive Obligation of the EU Legislator to Act 5 The New Data Protection Legal Framework in the EU, Based on Article 16 TFEU 6 Conclusions List of Cases ECJ ECtHR References Article 17 [Confessional and Non-confessional Organisations] 1 Introduction and Historic Background 2 The Clauses of Europe´s Lack of Competence 3 The Legal Status of Churches and Religious Associations and Organisations 4 Philosophical and Non-confessional Organisations 5 The Duty of Dialogue 5.1 The Method of Dialogue 5.2 The Bureau of European Policy Advisers and the European Political Strategy Centre 5.3 Religious and Philosophical Delegations 5.4 Relationship Between the Third and the First Two Paragraphs 6 Some Major Cases List of Cases ECJ Italian Constitutional Court References Part Two: Non-Discrimination and Citizenship of the Union Article 18 [Combating Discrimination Based on Nationality] (ex-Article 12 TEC) 1 Genesis and Rationale 2 The Competence to Adopt Implementing Measures 3 Judgment on Discrimination 3.1 The Concept of Discrimination 3.2 Comparison, Disadvantage and Objective Justifications 4 Scope of Application 4.1 Situations Falling Within the Scope of EU Law 4.2 European Citizenship and the Prohibition of Discrimination 4.3 Purely Internal Situations and Reverse Discrimination 5 Differences in Treatment Between EU Citizens and Third Country Nationals List of Cases ECJ ECtHR References Article 19 [Combating Discrimination Based on Other Grounds] (ex-Article 13 TEC) 1 The Widening of the Non-discrimination Law 2 Rationale and Effects of the Rule 3 Grounds of Discrimination Expressly Provided 3.1 Race, Ethnicity and Nationality 3.2 Religion and Belief 3.3 Disability 3.4 Sexual Orientation and Sex 3.5 Age 4 The First Implementation and New Directives on Discrimination Based on Sex 5 The Relationship with the General Principle of Non-discrimination and with the Charter of Fundamental Rights List of Cases ECJ ECtHR References Article 20 [Union Citizenship] (ex-Article 17 TEC) 1 Introduction 2 The Development of the Idea of Union Citizenship 3 The Meaning of the Concept 4 The Single Elements of Union Citizenship and the Further Development of the Concept 5 Acquisition and Loss of Union Citizenship 6 Subjects and Addressees of Union Citizenship 7 The Development of the Concept of Union Citizenship by the ECJ 8 The ``Substance of Union Citizenship´´: The Zambrano Case and the Subsequent Jurisprudence 9 The New Restrictiveness of the ECJ as to the Enjoyment of Social Benefits by Union Citizens: Dano, Garcia Nieto and Alimanov... List of Cases References Article 21 [Free Movement and Establishment] (ex-Article 18 TEC) 1 The Contents of Article 21 TFEU 2 Free Movement and Residence for European Citizens Before Directive 2004/38 3 Directive 2004/38 3.1 General Characteristics of the Directive 3.2 Subjective Scope of Application 3.3 Conditions of Entry and Stay in the Territory of Member States 3.4 Limits to the Right of Movement and Residence 4 The Major Unresolved Issues Surrounding the Right of Residence: The Question of Citizens Looking for Work and So-Called Soci... 4.1 Citizens Looking for Work 4.2 Inactive European Citizens List of Cases References Article 22 [Right to Vote] (ex-Article 19 TEC) 1 Voting Rights of EU Citizens 2 Voting Rights in Municipal Elections (Paragraph 1) 2.1 The Right to Vote in Local Elections in Article 8B, Paragraph 1 2.2 The Implementation of Article 8B 2.3 Article 22, Paragraph 1 TFEU 3 Voting Rights in European Parliament Elections (Paragraph 2) 3.1 The Right to Vote for European Parliament: Article 8B, Paragraph 2 3.2 Implementation of Article 8B, Paragraph 2 3.3 Article 22, Paragraph 2, TFEU 3.4 Judicial Interpretation of the Right to Vote and to Stand for Election in European Parliament List of Cases References Article 23 [Diplomatic and Consular Protection of Another Member State] (ex-Article 20 TEC) 1 The Relevance of This Article 2 The Origin of This Provision and Its Further Development 3 The Meaning of the Right 4 The Implementation of Article 23 TFEU 5 Further Developments References Article 24 [Participative Rights] (ex-Article 21 TEC) 1 Overview of Article 24 TFEU 2 Regulation of a Citizens´ Initiative (Paragraph 1) 2.1 The Right of Popular Initiative 2.2 Regulation 211/2011 2.3 Means of Appeal 2.4 Actualisation in Practice and Proposed Amendment 3 The Right to Petition the European Parliament (Paragraph 2) 3.1 Scope and Object of the Right of Petition 3.2 Review Procedures 4 The Right to Apply to the Ombudsman (Paragraph 3) 4.1 Appointment and Authority of the Ombudsman 4.2 The Practice 5 The Right to Communicate with the Institutions and Bodies of the Union in One of the Languages Mentioned in Article 55 TEU (... List of Cases ECJ CFI/GC CST References Article 25 [Monitoring and Further Development of Union Citizenship] (ex-Article 22 TEC) 1 Introduction 2 The Reporting Obligation 3 The Implementation of the Reports References Part Three: Union Policies and Internal Actions Title I The Internal Market Article 26 [Establishing the Internal Market] (ex-Article 14 TEC) 1 The Internal Market: A Cornerstone of the Union 1.1 Development 1.2 Significance for EU Political Integration 1.3 Systematic Classification and Function of Article 26 TFEU 2 Concept and Organisational Elements of the Internal Market 2.1 The Difference Between the Terms ``Internal Market´´ and ``Common Market´´ 2.2 Legal Definition (Article 26.2 TFEU) 2.2.1 The Fundamental Freedoms as the Essentials of the Internal Market 2.2.2 Further Institutions of the Internal Market: An Overview 2.2.3 Internal Market and Market Economy 2.3 The Concept of the Internal Market 2.3.1 Internal Market Alignment Through the ``Magical Octagon´´ 2.3.2 ``An Area Without National Frontiers´´ 2.3.3 The Relationship Between the Internal Market and the Schengen Agreement 2.4 Further Features of the Internal Market 2.4.1 Positive and Negative Integration 2.4.2 Protection of Market Competition 2.4.3 Development of Trans-European Networks 2.4.4 Relationship with Other Policy Areas 3 Competences of the Union in the Area of the Internal Market 3.1 Exclusive and Shared Competences 3.2 The Institutional Power of the Union According to Paragraph 1 3.3 Competence of the Council to Establish Guidelines and Conditions Under Paragraph 3 3.4 Measures to Establish or Ensure the Functioning of the Internal Market 4 State of Development of the Internal Market 4.1 State of Realisation 4.2 Possible Consequences of ``Brexit´´ for the Internal Market 4.2.1 The Withdrawal Agreement of October 2019 4.2.2 Economic Impacts 4.2.3 The Importance of the Financial Services Sector 4.3 Initial Scenarios for an Economic Relationship Between the EU and the UK (2016) 4.4 The Trade and Cooperation Agreement of December 2020 List of Cases ECJ Opinions of the Advocate General References Article 27 [Exceptions to Internal Market Regulations] (ex-Article 15 TEC) 1 Differentiated Establishment of the Internal Market 1.1 Development and Purpose of the Rule 1.2 Article 27 TFEU as an Expression of Differentiated Integration for Reasons of Solidarity 2 Obligations of the European Commission (Paragraph 1) and the EU Legislators 2.1 The European Commission as the Explicit Addressee of the Rule 2.2 Scope of the Duty to Take Into Account the Economic Disparities Between the Member States 2.3 Content of the Duty ``to Take Into Account´´ 2.4 Proposing Specific Provisions (Legal Consequences of Paragraph 1) 3 The Adoption of Specific Provisions (Paragraph 2) 3.1 Requirements for Exemptions and Derogations 3.2 The Appropriateness of the Provisions 3.3 Characteristics and Justiciability of the Special Regime 4 Practical Scope of Application of the Rule List of Cases ECJ/CJEU Opinions of the Advocate General German Federal Constitutional Court (Bundesverfassungsgericht) References Title II: Free Movement of Goods Article 28 [Free Movement of Goods] (ex-Article 23 TEC) 1 Introduction: The Broad Significance of Article 28 2 Customs Union v. Sectoral Integration: EEC History 3 Customs Union: Economic Theory and Political Integration 4 Customs Union: EU Exclusive Competence and Own Resources 5 The EU, Third Countries and External Affairs 6 Interpretation: Case Law 6.1 ``The Union Shall Comprise a Customs Union´´ 6.2 ``Which Shall Cover All Trade in Goods´´ 6.3 ``Shall Involve the Prohibition Between Member States´´ and ``a Tariff´´ 6.4 ``Of Customs Duties on Imports and Exports´´ 6.5 ``Charges Having Equivalent Effect´´ 7 Conclusion List of Cases ECJ CFI References Article 29 [Products from Third Countries] (ex-Article 24 TEC) 1 Overview 2 The Importance and Effect of Free Circulation 3 The Pre-conditions for Free Circulation 4 Free Circulation and Drawback 5 Case Law: The Nature and Scope of Free Circulation List of Cases Reference Chapter 1: The Customs Union Article 30 [Prohibition of New Customs Duties or Charges Having Equivalent Effect] (ex-Article 25 TEC) 1 The Rationale for Adopting Article 30 TFEU 2 Imposing Customs Duties on Imports and Exports 2.1 Pecuniary Border Measures 2.2 Direct Applicability and Concept of a Member State 3 Charges Having Equivalent Effect (CEE) 3.1 Defining Charges Having Equivalent Effect 3.2 Effect, Not Purpose 3.3 Exempted Measures 3.4 Duties of a Fiscal Nature List of Cases References Article 31 [Common Customs Tariff] (ex-Article 26 TEC) 1 General Background 2 Harmonisation of Customs Rules on External Borders 3 The Powers of the Council and the Commission on Fixing the CCT 3.1 Fixing the CCT 3.2 The Role of the European Parliament List of Cases References Article 32 [Principles for Commission Duties] (ex-Article 27 TEC) 1 General Background 2 Guidance for the Commission Under the TFEU Chapter on the Customs Union 2.1 Tasks Under the Chapter on the Customs Union 2.2 Promoting Trade Between Member States and Third Countries 2.3 Developments in Conditions of Competition Within the Union 2.4 Distorting Conditions of Competition Between Member States 2.5 Rational Development of Production and Expansion of Consumption References Chapter 2: Customs Cooperation Article 33 [Customs Cooperation] (ex-Article 135 TEC) 1 General Background 2 Ordinary Legislative Procedure 3 Customs Cooperation Within the EU References Chapter 3: Prohibition of Quantitative Restrictions Between Member States Article 34 [Prohibition of Quantitative Restrictions on Imports] (ex-Article 28 TEC) 1 Overview 2 Direct Effect of Article 34 TFEU 3 Prohibition of Quantitative Restrictions on Imports 4 Prohibition of Measures Having Equivalent Effect 4.1 Dassonville Formula 4.2 Trading Rules 4.2.1 General Remarks 4.2.2 No De Minimis Rule 4.2.3 Addressees of Article 34 TFEU 4.2.4 Actual or Potential Restriction on Trade with Goods 4.2.5 Direct or Indirect Restriction on Trade with Goods Prohibition of Direct Discrimination of Imported Goods Prohibition of Indirect Discrimination of Imported Goods: Mutual Recognition Principle 4.2.6 Cross-Border Element and Reversed Discrimination 4.3 Rules on Circumstances of Trade and Free Movement of Goods 4.3.1 Regulating Circumstances of Sale 4.3.2 Keck: ``Certain Selling Arrangements´´ Are Outside the Scope of Article 34 TFEU 4.3.3 Certain Selling Arrangements National Advertising Restrictions Distance Selling 4.4 Arrangements on the Use of Products 5 Conclusion List of Cases ECJ WTO Case Law USA Case Law References Article 35 [Prohibition of Quantitative Restrictions on Exports] (ex-Article 29 TEC) 1 Overview 2 Quantitative Restrictions on Exports 3 Measures Having Equivalent Effect to Quantitative Restrictions on Exports 3.1 The Groenveld Test 3.2 Opportunity for Coherence: Gysbrechts 4 Conclusion List of Cases References Article 36 [Derogations] (ex-Article 30 TEC) 1 Overview: Protection of Non-economic National Interests and Free Movement of Goods 2 Legal Bases for Justification of Restrictions 3 Conditions for the Application of Derogations 3.1 What Types of Measures Can Be Justified? 3.2 Non-harmonisation of the Field 3.3 Prohibition of Arbitrary Discrimination or Disguised Restriction on Trade 3.4 Principle of Proportionality 3.5 Who Adjudicates on Proportionality: The EU Court or National Courts? 3.6 The Burden of Proof 4 Conclusion List of Cases UK Case Law US Case Law WTO Case Law References Article 37 [State Monopolies of Commercial Character] (ex-Article 31 TEC) 1 Overview 2 The Definition of the State Monopoly of Commercial Character 3 The Conformity of the Exclusive Rights of State Monopolies with the EU Internal Market Principles 3.1 Compliance of the Exclusive Rights with Article 37 TFEU 3.2 The Relationship Between Articles 37 and 34 TFEU 3.3 The Relationship Between Articles 37 and 49 TFEU 4 Justifiability of State Monopolies that Restrict Free Movement of Goods 5 Conclusion List of Cases WTO Case Law References Title III: Agriculture and Fisheries Article 38 [Common Agriculture and Fisheries Policy] (ex-Article 32 TEC) 1 General Comments 2 Evolution 3 Directly Effective 4 System Context 4.1 Relationship to Other Provisions of the Treatyinternal marketrelationship to other provisions of the Treaty6 4.2 Unity of the Internal Market and Common Agricultural Policyinternal marketunity of the internal market and common agricult... 4.3 Free Movement of Personsinternal marketfree movement of persons8 4.4 Common Commercial Policyinternal marketcommon commercial policy9 5 Objective Scope 5.1 Priority of Application of Special Provisions 5.2 Forestry 6 Agricultural Products 6.1 Definitionagricultural productsgeneral definition12 6.2 The Meaning of Article 38.3 TFEUagricultural productsthe meaning of Article 38.3 TFUE13 6.3 Differences Between Article 38.1 and Article 38.3 TFEUagricultural productsdifferences between Article 38. 1 and Article 3... 6.4 Fishery Productsagricultural productsfishery products15 7 Extension of the Scope of Annex I 7.1 Regulation 7 a 7.2 Cotton 8 Products Not Included in Annex I 8.1 The Importance of Article 43 TFEUproducts not included in Annex 1the importance of Article 43 TFUE20,23 8.2 Products Functionally and Economically Related to Products Listed in Annex I 8.2.1 Agricultural Products Obtained with the Use of Products Not Included in Annex Iproducts not included in Annex 1agricultu... 8.2.2 Products Obtained from Basic Productsproducts not included in Annex 1products obtained from basic products22,23 8.2.3 Substitutes of Products Included in Annex Iproducts not included in Annex 1substitutes of products included in Annex I24 9 Marketingmarketing25 Annex: List Referred to in Article 38 of the Treaty on the Functioning of the European Union (Annex I to the Treaties) List of Cases References Article 39 [Objectives of Common Agricultural Policy] (ex-Article 33 TEC) 1 General Comments 1.1 Significance 1.2 Protected Interests 1.3 Addressees 1.4 Task 2 Evolution 3 Character 4 System Context 4.1 Relation to Articles 40-42 TFEU 4.2 Relation to Article 3 TEU and Articles 3-6 TFEU 4.3 Horizontal Provisionshorizontal provisions11 5 Objective Scope 5.1 Objectives of the Common Agricultural Policy 5.1.1 CAP and the Common Market 5.1.2 CAP Guidelines 5.1.3 Complex Nature of the Provision 5.2 Catalogue of Interests 5.2.1 General Overview 5.2.2 Increasing Agricultural Productivity (Article 39.1 (a) TFEU) Increasing Productivity Agricultural Structures Methods of Implementation 5.2.3 Ensure a Fair Standard of Living for Agricultural Community and Increasing the Individual Earnings of Persons Engaged in... The Relationship Between Point (a) and Point (b) Ensuring a Fair Standard of Living Increasing Earnings 5.2.4 Stabilisation of Agricultural Markets (Article 39.1 (c) TFEU) 5.2.5 Ensuring of Food Security (Article 39.1 (d) TFEU) Availability of Supplies Supply 5.2.6 Ensuring Reasonable Prices of Food for Consumers (Article 39.1 (e) TFEU) 5.3 Hierarchy of Objectives in Paragraph 1 5.4 Setting Priorities 6 The Functions of Paragraph 1 6.1 Catalogue of Functions 6.2 Limits for the Legislator 6.3 Legal Reinterpretation of the Objectives 6.4 The Objectives According to the Commission 6.5 Modification of the Objectives in Case Law 6.6 Expansion of Tasks 7 Construction of Article 39.1 TFEU in Case Law 8 Integration of the CAP with SEA Objectives 8.1 Overview 8.2 Integration Strategy 8.3 Strategy of Limiting the Scope of CAP 8.4 The Concept of Agriculture in ECJ Case Lawconcept of agriculture in ECJ case law41 9 The Significance of Article 39.2 TFEU 9.1 The Addressees 9.2 The Relations Between Detailed Policies Implemented by the CAP 9.3 Principles 9.4 Diversification and Discrimination 9.5 Structural Policy 9.5.1 Grounds and Concept 9.5.2 Relations Between the Market and Incomes Policy (Short Term) and Structural Policy (Long Term) 9.5.3 Instruments of Structural Policy 9.5.4 Distinction Between Market Policy and Structural Policy 9.5.5 Permanent Agricultural Structures Committee 9.6 Priorities of the Common Agricultural Policy in the Context of Article 39.2 TFEU 9.7 Common Undertakings 9.8 Level of Centralization of Both Policies 9.9 Legal Instruments 9.10 Agricultural Structures and the Provisions of the Treaty 9.11 Agricultural Structures and the General Objectives of the Treaty 9.12 EU CompetencesEU competences60 List of Cases References Article 40 [Common Organisation of Agricultural Markets] (ex-Article 34 TEC) 1 Significance 2 Evolution 3 Character 4 System Context 5 The Concept of Common Organization of Agricultural Markets 5.1 Introductory Comments 5.2 Essence 5.3 The Common Organization of Agricultural Markets in the Light of European Court of Justice Case Law 5.4 Legal Forms of the Common Organization of Agricultural Markets 5.5 Common Markets Organization and a Market Organization 5.6 National Market Organization 6 Legal Measures Regulating Agricultural Markets 6.1 Preliminary Comments 6.2 Choice of Measures for Regulating Agricultural Markets 6.3 Review by the ECJ of the Measures Adopted Within the Framework of the Common Organization of Agricultural Markets 7 Instruments of Intervention on the Agricultural Markets 7.1 The Market and Pricing Policy Model 7.2 Common Agricultural Prices 7.3 Intervention Prices 7.4 Intervention Buying 7.5 Agricultural Products Storage Subsidies 7.6 Currency Exchange Rates 7.7 Direct Subsidies 7.8 Direct Subsidies in New Member States 8 Legal Measures of Limiting Agricultural Production (Production Quotasproduction quotas45) 9 Legal Measures in Trade with Third Countries 10 Role of the Ban on Discrimination of Producers or Consumers 10.1 Introductory Comments 10.2 Subjective Scope 10.3 Objective Scope 11 Principle of Proportionality in the Light of Union Agricultural Law 12 Financing of the Common Agricultural Policy 12.1 European Agriculture Guidance and Guarantee Fund 12.2 The Guarantee Section 12.3 The Guidance Section 12.4 EAGF and EAFRD 12.5 Managing the Funds Allocated for the Agricultural Sector 12.6 Methods of Financing 12.7 Scope of Financing 12.8 Financial Liability of the EU and the Member States List of Cases References Article 41 [Measures Under a Common Agricultural Policy] (ex-Article 35 TEC) 1 General Comments 2 Evolution 3 Directly Effective 4 Vocational Training, Research, and Dissemination of Agricultural Knowledge (lit. a) 5 Joint Financing of Projects and Institutions (lit. a) 6 Modification of the Structure of Consumption (lit. b) List of Cases Article 42 [Application of Rules on Competition] (ex-Article 36 TEC) 1 General Comments 1.1 Object 1.2 Scope of Application of General Rules of Competition 1.3 Derogation Competences 2 Evolution 2.1 Treaty Establishing of European Economic Community (EEC Treaty) 2.2 Secondary Legislation 3 Directly Effective 4 System Context 5 Competition Rules 6 Exclusion of Certain Agricultural Products 7 State Aid 8 Implementation of Article 42: The Evolution of Solutions Regarding the Common Organization of Agricultural Markets 8.1 Council Regulation 1234/2007 8.1.1 General Overview 8.1.2 Subjective Scope 8.1.3 Objective Scope 8.1.4 The Application of Article 101 TFEU 8.1.5 Temporal Scope of the Exclusion 8.1.6 Objective Scope of the Exclusion 8.1.7 Practices Constituting an Integral Part of a National Market Organization 8.1.8 Practices Required for the Attainment of the Objectives of the CAP 8.1.9 Principles of Evaluating Necessity 8.1.10 The German Clause 8.1.11 Exclusive Powers of the Commission 8.1.12 Non-pricing Agreements 8.1.13 Farmers and Farmer Associations 8.2 Council Regulation 1308/2013 8.2.1 General Overview 8.2.2 Subjective Scope 8.2.3 Objective Scope 8.2.4 Competition Rules Applicable Between Undertakings 8.2.5 The Application of the Rules on Competition Between Businesses in the Event of Serious Disturbances on the Market of Agr... 8.2.6 Derogation from the Application of Articles 101 TFEU to Recognize Producer Organization (Article 152.1a and 152.1b of th... 9 Common Agricultural Policy Versus National Aid for Agriculture 9.1 The Effect of National Aid on Competition 9.2 Distinctions Between Union and State Aid 9.3 Exclusion for Union Aid 9.4 Application to State Aid 9.5 Coordination of State Aid and Article 42 TFEU 9.5.1 Rules of Granting Aid 9.5.2 Standard Clause 9.5.3 Exclusions List of Cases References Article 43 [Implementing the Common Agricultural Policy] (ex-Article 37 TEC) 1 General Comments 2 Evolution 2.1 Overview 2.2 Preparatory Phase: Stage I and Stage II 2.3 The Determination Phase 3 Directly Effective 4 System Context 5 EU Right to Freedom in Working Out and Implementing the Common Agricultural Policy 6 Normative Acts of the Common Agricultural Policy 7 Secondary Legislation 8 Procedures 9 Relationship Between Paragraphs 2 and 3: Basis for the Law-Making Activity of EU Bodies on the Production and Trade of Agric... 10 Replacing National Market Organizations 11 The Concept of National Market Organization 12 Imports of Agricultural Products from Third Countries (Article 43.5) List of Cases References Article 44 [Countervailing Charge] (ex-Article 38 TEC) 1 General Comments 2 Evolution 3 Character 4 Conditions for Establishing Charges in Agricultural Trade with Other Member States 4.1 Overview 4.2 Transition Period 4.3 National Support of Production and Trade in Agricultural Products 4.4 No Application of Subsidies for Exports 5 Rules for Establishing the Amounts of Charges 6 Other Protective Measures List of Cases Reference Title IV: Free Movement of Persons, Services and Capital Chapter 1 Workers Article 45 [Free Movement of Workers] (ex-Article 39 TEC) 1 The Origins and Genesis of Article 45 TFEU 2 Freedom of Movement for Workers as Protected Under Article 45 TFEU and EU Secondary Legislation 2.1 The Current Legal Framework 2.2 The Personal Scope of the Free Movement of Workers Provisions 2.3 The Material Scope of the Free Movement of Workers Provisions 2.3.1 Introductory Points 2.3.2 Primary Rights Stemming from Article 45 TFEU The Right to Look For, Or Take-Up, Work in Another Member State The Right to Pursue an Economic Activity in a Cross-Border Context 2.3.3 Secondary Rights Stemming from Article 45 TFEU The Right Not to Be Discriminated Against on the Ground of Nationality Family Reunification and Related Rights 2.3.4 What Amounts to a Restriction 2.3.5 Filtering Mechanisms 2.4 The Territorial Scope of the Free Movement of Workers Provisions 3 The Justifications 3.1 Some General Points 3.2 The Treaty Derogations 3.2.1 Public Policy 3.2.2 Public Security 3.2.3 Public Health 3.3 Objective Justifications 3.4 The Public Service Exception 3.5 The Principle of Proportionality 4 Conclusion List of Cases ECJ References Article 46 [Implementation of the Free Movement of Workers] (ex-Article 40 TEC) References Article 47 [Exchange of Young Workers] (ex-Article 41 TEC) References Article 48 [Social Security] (ex-Article 42 TEC) 1 Coordination of National Social Security Systems 2 Consistency with Union Law 3 Coordination Through Regulations 4 Social Security and Social Assistance List of Cases ECJ References Chapter 2: Right of Establishment Article 49 [Freedom of Establishment] (ex-Article 43 TEC) 1 The Concept of ``Establishment´´ 2 Direct Effect 3 Beyond ``Discrimination´´ to ``Market Access´´ 4 Imperative Requirements in the General Interest: The Notion 5 Natural PersonsNatural Persons 6 Companies or Firms 6.1 The Right 6.2 Primary EstablishmentPrimary Establishment and Its Transfer in the Case of a Company 6.3 Secondary Establishment for Companies and Firms List of Cases References Article 50 [Implementation of the Freedom of Establishment] (ex-Article 44 TEC) 1 Harmonisation, Establishment and Services: Some Difficult Cases 2 Article 50.2: Implementation of Article 50.1 by the Institutions 2.1 Priority Treatment to Activities Valuable to Production and Trade (lit. a) 2.2 Close Cooperation Between the Competent National Authorities (lit. b) 2.3 Abolishing Administrative Obstacles (lit. c) 2.4 Establishment of Workers (lit. d) 2.5 Acquisition and Use of Land or Buildings (lit. e) 2.6 Progressive Abolition of Restrictions (lit. f) 2.7 Coordinating National Safeguards (lit. g) 2.7.1 The Terms of Article (50.2 lit. g) 2.7.2 The Main Adopted EU Measures 2.7.3 ``Core´´ Company Law Harmonisation: The Holy Grail 2.7.4 Analysis of the Measures Adopted: The Vision Offered? 2.7.5 The Future of Company Law and Corporate Governance as Pursued Through Article 50.2 (g) Introduction Company Law Theory and Corporate Governance UK Law: A Common Law View and an In-house Critique Criteria for the Exercise of Power: Standards The Position of the European Commission 2.7.6 The Shareholders. Under a Duty? 2.8 State Aid (lit. h) List of Cases References Article 51 [Exemptions in the Exercise of Official Authority] (ex-Article 45 TEC) 1 Exercise of Official Authority (Paragraph 1) 2 Exemptions Made by Secondary Law (Paragraph 2) List of Cases References Article 52 [Special Provision on Public Policy, Public Security, or Public Health] (ex-Article 46 TEC) 1 Overview 2 Applicability 2.1 Direct Applicability and Secondary Legislation 2.2 Freedom of Establishment and Free Movement of Services 2.3 Personal Scope of Application 2.3.1 Natural Persons and Companies 2.3.2 The Addressee of the Rule of Justification 2.4 The Type of Interference 2.4.1 Distinctly and Indistinctly Applicable Measures 2.4.2 Restrictions Beyond Entry and Residence 3 Grounds of Justification 3.1 General Remarks 3.2 Public Policy 3.3 Public Security 3.4 Public Health 4 Limits of Justification 4.1 Overview 4.2 Proportionality 5 Legal Basis for Secondary Legislation List of Cases References Article 53 [Mutual Recognition of Diplomas] (ex-Article 47 TEC) 1 Introduction 2 Mutual Recognition of Diplomas, Certificates, and Qualifications 2.1 Sectoral Harmonisation 2.2 From Sectoral to General Harmonisation 2.3 The Professional Qualifications Directive (Directive 2005/36/EC) 3 Facilitating Practice of the Profession of Lawyer 4 Harmonisation of Other Areas 5 Article 53 TFEU and Competence Problems in the Context of Harmonisation 6 Services Directive 7 The Significance of Article 49 TFEU for Cases Not Covered by the Harmonisation of Professional Qualifications List of Cases ECJ References Article 54 [Equality of Treatment of Companies and Firms] (ex-Article 48 TEC) 1 Introduction 2 The Meaning of ``Companies or Firms´´ 3 The Two Conditions for Companies or Firms to Be Entitled to Exercise the Freedom of Establishment 3.1 The Two Conditions 3.2 The ECJ´s Case Law 3.3 ``Registered Office, Central Administration or Principal Place of Business´´ 4 Exercising Freedom of Establishment for Companies 4.1 Introductory Remarks 4.2 Primary Establishment 4.3 Secondary Establishment 4.4 Efforts to Harmonise Cross-Border Transfer of Registered Office and Cross-Border Conversions List of Cases ECJ References Article 55 [Equal Participation in the Capital of Companies or Firms] (ex-Article 294 TEC) 1 Introduction 2 Critical Assessment of Article 55 TFEU 2.1 Freedom of Establishment and Article 55 TFEU 2.2 Free Movement of Capital and Article 55 TFEU 3 Case Law on Article 55 TFEU List of Cases ECJ References Chapter 3: Services Article 56 [Freedom to Provide Services] (ex-Article 49 TEC) 1 General Overview 2 Personal Scope and Addressees 3 Direct Effect 4 Discrimination 5 Restrictions 6 Justifications: Overriding Reasons of Public InterestOverriding Reasons of Public Interest26 et seqq. 6.1 Overview 6.2 Conditions of ApplicabilityOverriding Reasons of Public InterestConditions of Applicability29 et seqq. 6.3 Justification of Non-discriminatory MeasuresOverriding Reasons of Public InterestNon-Discriminatory Measures31 et seqq. 6.4 The Presence of Overriding Reasons of Public Interest 6.5 The Absence of Pre-emptionOverriding Reasons of Public InterestPre-emption37 6.6 The Principle of ProportionalityOverriding Reasons of Public InterestProportionality39 6.7 The Principle of Mutual RecognitionOverriding Reasons of Public InterestMutual Recognition44 List of Cases References Article 57 [Notion of Services] (ex-Article 50 TEC) 1 DefinitionServices Definition1 of Services 2 Remuneration 3 Temporary NatureTemporary Nature7 4 Relation to Other FreedomsRelation to Other Freedoms10 List of Cases References Article 58 [Services in Transport, Banking, Insurances] (ex-Article 51 TEC) 1 General Overview 2 Transport Services 3 Banking and Insurance Services List of Cases References Article 59 [Liberalisation] (ex-Article 52 TEC) 1 General Overview 2 Directives List of Cases References Article 60 [Further Liberalisation] (ex-Article 53 TEC) References Article 61 [Transitional Rules] (ex-Article 54 TEC) 1 Overview 2 Legal Effect 3 Interpretation List of Cases References Article 62 [Application of the Rules on the Right of Establishment] (ex-Article 55 TEC) 1 Overview 2 Official Authority ExclusionOfficial AuthorityExclusion3 (Article 51 TFEU) 2.1 The ConceptOfficial AuthorityConcept5 of Official Authority 2.2 Conditions of ApplicabilityOfficial AuthorityConditions of Applicability7 3 Exceptions on Public Policy, Public Security, and Public HealthPublic Policy, Public Security and Public HealthExceptions16 ... 3.1 General Remarks 3.2 Legal BasisPublic Policy, Public Security and Public HealthLegal Basis19 3.3 DefinitionPublic Policy, Public Security and Public HealthDefinition22 of Public Policy, Public Security, and Public Health 3.4 Conditions to Invoke the Treaty DerogationsTreaty derogationsinvocability26 3.5 The Non-discrimination PrincipleTreaty derogationsNon-Discrimination Principle28 4 The Services DirectiveServices Directive30 4.1 Overview 4.2 Scope 4.3 Negative Liberalisation 4.3.1 EstablishmentServices DirectiveEstablishment37 4.3.2 Provision of ServicesServices DirectiveProvision of Services40 4.4 Administrative Simplification and Cooperation List of Cases References Chapter 4: Capital and Payments Article 63 [Free Movement of Capital and Payment] (ex-Article 56 TEC) 1 Scope of Application 2 Genesis 2.1 Rome Treaty and the First Capital Directive 2.2 Capital Directive 88/361/EEC 2.3 Treaty of Maastricht 2.3.1 The Case of Sanz de Lera 2.3.2 Legal Status of Directive 88/361 3 Duty to Abolish Restrictions 4 Notion of ``Third Country´´ 5 Notion of ``Capital´´ 5.1 Pre-Sanz de Lera 5.1.1 Thompson 5.1.2 Luisi and Carbone 5.1.3 Lambert 5.2 Post-Sanz de Lera 5.2.1 André Ambry 5.2.2 Klaus Konle 5.2.3 Trummer and Mayer 5.2.4 Commission v Belgium 5.2.5 Église de Scientologie de Paris v Prime Minister 5.3 Golden Shares Cases 5.3.1 Commission v Spain 5.3.2 Commission v Germany 5.3.3 Commission v United Kingdom 5.3.4 Commission v Belgium 5.3.5 Commission v France 5.3.6 Commission v Portugal 5.3.7 Federconsumatori and Others 5.4 Concluding Remarks on ECJ Judgments 6 Free Movement of Payments 6.1 Overview and Genesis 6.2 Legislative Packages on Payment Systems 6.2.1 Payment Services Directive 6.2.2 Cross-Border Payments in Euro 6.3 Payment Services Directive 6.3.1 List of Activities 6.3.2 Payment Institution 6.3.3 Tied Agents and Branches 6.3.4 Competent Authorities 6.3.5 Payment Contracts Single Payment Transaction Framework Contract Common Rules 6.4 Single Euro Payment Area 7 Impact of Brexit on the Free Movement of Capital and Payments 7.1 Overview 7.2 Trade and Cooperation Agreement Between the EU and UK 7.3 Brexit and Free Movement of Capital 7.4 Brexit and the Unity of the Single Market 7.5 Brexit and Article 63 TFEU List of Cases References Article 64 [Restrictions on Third Countries] (ex-Article 57 TEC) 1 Scope of Article 64 TFEU 1.1 Time Limit 1.2 Notion of ``Direct Investment´´ 1.3 Real Estate, Financial Services, and Capital Markets 1.4 Limitation of Cash Transfer to Third Countries 1.5 Declaration of Capital Movements to Third Countries 2 Procedural Rules 3 Fiscal Bridge Between Articles 64 and 65 TFEU 4 Bilateral Trade Agreements 5 Litigation Based on Article 64 TFEU 6 Brexit and Article 64 TFEU 6.1 UK-Based Financial Entities 6.2 EU-Based Financial Entities 6.3 Withdrawal of Access to EU Financial Market List of Cases Article 65 [Restrictions by Member States] (ex-Article 58 TEC) 1 Scope of the Exception 2 National Tax Competence 2.1 Criterion of Residence and the Place of Investment 2.2 Declaration Added to Article 65 TFEU 2.3 Discriminatory Tax Measures on Non-residents and Foreign Investments 2.4 Infringement of Tax Laws and Regulations 2.5 Strengthening National Tax Competence Towards Third Countries 3 Prudential Supervision of Financial Institutions 4 Restriction on Financial Services 4.1 Gradual Erosion of National Supervisory Competence 4.2 Global Financial Crisis 4.3 Establishment of Financial Authorities 4.4 Supervisory Reforms After the 2011 Fiscal Crisis 5 Declaration of Capital Movements 5.1 Declaration Based on National Law 5.2 Declaration Based on Secondary Law 5.3 Declaration vs Prior Authorisation 5.4 Administrative or Statistical Information 6 Public Policy Considerations 7 Right of Establishment 8 Unwritten Exceptions to Free Movement of Capital 9 Prohibition of Arbitrary Discrimination or a Disguised Restriction 10 Uneven Application of Article 65 TFEU 11 Duration of the Exceptions in Article 65 TFEU 12 Brexit and Article 65 TFEU List of Cases ECJ CFI References Article 66 [Short-Term Protection Measures] (ex-Article 59 TEC) 1 Scope of Application 1.1 Uncertainties of the Scope of Application 1.2 Quasi-Membership of Monetary Union 2 Capital Movements and Monetary Union 3 Safeguard Measures 3.1 General Comments 3.2 Procedure to Adopt Safeguard Measures 3.3 Exceptional Circumstances 3.4 Time Framework of Safeguard Measures 4 Brexit and Article 66 TFEU Reference Title V: Area of Freedom, Security and Justice Chapter 1 General Provisions Article 67 [Establishing the AFSJ] (ex-Article 29 TEU, ex-Article 61 TEC) 1 Historical Background 2 Positioning of Article 67 TFEU Within the Treaty 3 General Provision (Paragraph 1) 3.1 Concept of AFSJ 3.1.1 Linguistic Versions 3.1.2 Legal Concept? 3.1.3 Balanced Tripod 3.1.4 Link Between AFSJ and Citizenship 3.1.5 AFSJ: A Constitutional Concept 3.2 With Respect for Fundamental Rights 3.3 Respect for the Different Legal Systems and Traditions of the Member States 4 Area of Freedom (Paragraph 2) 5 Area of Security (Paragraph 3) 5.1 Notion of Security 5.2 Mutual Recognition 5.3 Mutual Trust 5.4 European Arrest Warrant 5.5 Ne Bis in Idem 5.6 Approximation of Criminal Laws, if Necessary 6 Area of Justice (Paragraph 4) 7 Area à la Carte 8 External Aspects of the AFSJ 9 Conclusion List of Cases ECJ ECtHR References Article 68 [Strategic Guidelines] 1 The Codification of a Practice 1.1 The Practice 1.2 The Codification 2 A Practice That Has Become Superfluous? 3 The Remaining Added Value 3.1 Operational Planning 3.2 Internal and External Aspects 3.3 Political Impetus Still Needed List of Cases References Article 69 [Control by National Parliaments and Subsidiarity Principle] 1 Precedents and Historical Roots 2 Normative Content 3 Symbolic Relevance of the Provision References Article 70 [Evaluation of the Implementation of the Union Policies] 1 Introduction 2 Framework for the Application of Article 70 TFEU 3 Evaluation Procedures References Article 71 [Standing Committee and Operational Cooperation on Internal Security] (ex-Article 36 TEU) Article 72 [Clause on Maintaining Internal Security by Member States] (ex-Article 64.1 TEC and ex-Article 33 TEU) References Article 73 [Interstate Cooperation] 1 Overview 2 Development of Relationships Between the Member States 3 The Scope and Importance of Cooperation and Coordination 3.1 Cooperation 3.2 Coordination 4 Instruments for Relationships Between Member States References Article 74 [Administrative Cooperation] (ex-Article 66 TEC) 1 Scope of the Provision in the Light of the Distribution of Powers 2 Administrative Cooperation from the European Union 3 Guarantee of Administrative Cooperation 4 Instruments for Administrative Cooperation References Article 75 [Prevention and Combating Terrorism] (ex-Article 60 TEC) 1 Scope of Application 2 Terrorism and Related Activities 3 Freezing of Funds 4 Legal Safeguards 5 Scope of ex-Article 60 TEC 5.1 Link Between ex-Article 60 TEC and ex-Article 228 TEC 5.2 Unilateral Measures by Member States 5.3 Measures Adopted in Terms of ex-Article 60 TEC 6 Free Movement of Capital and AFSJ 7 Activation of Article 75 TFEU 8 Natural or Legal Persons, Groups, or Non-state Entities 9 Combatting Terrorism Within the Union 10 Case Law on Sanctions 11 Brexit and Article 75 TFEU List of Cases ECJ CFI/GC References Article 76 [Legislative Initiative] 1 Overview and Genesis 2 Field of Application 3 Implementation of MS Initiative 4 Relation to the Commission´s Right of Initiative 5 Other Exceptions to the Monopoly of Initiative of the Commission 6 Transitional Provisions References Chapter 2: Policies on Border Checks, Asylum and Immigration Article 77 [Features and Measures of the Policy] (ex-Article 62 TEC) 1 Background 2 Efficient Border Monitoring (Article 77.1 TFEU) 3 Scope of EU Competences (Article 77.2 TFEU) 3.1 Visas 3.2 External Border Controls 3.3 Intra-European Free Movement 3.4 Integrated Border Management System 3.5 Absence of Internal Border Controls 4 Travel Documents (Article 77.3 TFEU) List of Cases References Article 78 [Common Policy on Asylum] (ex-Articles 63, Points 1 and 2, and 64.2 TEC) 1 Background 2 Compliance with International Law (Article 78.1 TFEU) 3 Scope of EU Competences (Article 78.2 TFEU) 3.1 Uniform Status of Asylum 3.2 Subsidiary Protection 3.3 Temporary Protection 3.4 Procedural Rules 3.5 Determining Which Member State Is Responsible 3.6 Reception Conditions 3.7 Cooperation with Third States 4 Emergency Situations (Article 78.3 TFEU) List of Cases References Article 79 [Common Immigration Policy] (ex-Article 63, Points 3 and 4, TEC) 1 Overview 2 Union Competence in Immigration Law 2.1 Historical Overview 2.1.1 Intergovernmental Approach of the Pre-Amsterdam Era 2.1.2 Amsterdam Era - Introducing the Supranational Method for Irregular Migration 2.2 Current Framework Under the Treaty of Lisbon 3 Opt-Outs 4 Legal Migration 4.1 General Overview 4.2 Development of Secondary Legislation 4.3 Limits of Regulating Economic Migration 5 Irregular Migration 5.1 General Overview 5.2 Development of Secondary Legislation 5.3 Criminal Law Aspects of Irregular Migration List of Cases References Article 80 [Solidarity and Responsibility] 1 Solidarity in EU Law 2 Solidarity and Responsibility Sharing in EU Asylum, Migration, and Border Controls 3 How to Define and Measure Solidarity? 4 The Relation Between Fairness and Solidarity in Article 80 TFEU 5 Financial Assistance as an Expression of Solidarity List of Cases ECJ ECtHR References Chapter 3: Judicial Cooperation in Civil Matters Article 81 [Judicial Cooperation in Civil Matters] (ex-Article 65 TEC) 1 Overview 2 Scope of EU Competence in Civil Law Matters 3 The Principle of Mutual Recognitionmutual recognition 3.1 The Constitutional Nature of the Principle 3.2 Giving Shape to the Principle of Mutual Recognitionmutual recognition 3.3 Compliance with the ECHR Standards on Fundamental Rightsfundamental rights Protection 4 A Complex Area of Cooperation 4.1 An Area of Freedom, Security, and Justice à la Carte 4.2 Enhanced CooperationEnhanced cooperation 4.3 External RelationsExternal relations 4.4 Constitutional Consequences 5 Results Achieved and to Be Accomplished 5.1 Measures Adopted in Accordance with the Ordinary Legislative Procedureordinary legislative procedure 5.2 Cooperation in Civil Matters and the Achievement of the Internal Marketinternal market 5.2.1 Mutual Recognition and Enforcement of Judgments and of Decisions in Extrajudicial Cases (Lit. a) 5.2.2 Cross-Border Service of Judicial and Extrajudicial Documents (Lit. b) 5.2.3 Compatibility of the Rules Concerning Conflict of Laws and Jurisdiction (Lit. c) 5.2.4 Cooperation in the Taking of Evidence (Lit. d) 5.2.5 Effective Access to Justice (Lit. e) 5.2.6 Elimination of Obstacles to the Proper Functioning of Civil Proceedings (Lit. f) 5.2.7 Development of Alternative Methods of Dispute Settlement (Lit. g) 5.2.8 Support for the Training of the Judiciary and Judicial Staff (Lit. h) 5.3 Measures Adopted in Accordance with a Special Legislative Procedure List of Cases CJEU ECtHR References Chapter 4: Judicial Cooperation in Criminal Matters Article 82 [Principle of Mutual Recognition] (ex-Article 31 TEU) 1 Genesis 2 The Principle of Mutual Recognition of Judgments and Judicial Decisions and the Approximation of the Laws and Regulations of... 3 The New Legislative Procedure 4 Minimum Standards for Criminal Procedural Law: Defence of the Accused 5 The Flexible Approach to Integration: Emergency Brake and Simplified Enhanced Cooperation List of Cases ECJ CFI/GC ECtHR References Article 83 [Minimum Harmonisation] (ex-Article 31 TEU) 1 Genesis 2 The Harmonisation of Substantive Criminal Law 3 The Most Important Adopted Provisions 4 Human Trafficking 5 Illicit Drug Trafficking 6 Other Measures 7 The Approximation of Criminal Laws Essential to Ensuring the Effective Implementation of a Union Policy 8 Emergency Brake and Simplified Enhanced Cooperation List of Cases ECJ CFI/GC References Article 84 [Promotion of Crime Prevention] 1 Genesis and EU Competences 2 Measures Adopted References Article 85 [Eurojust] (ex-Article 31 TEU) 1 Overview 2 Legislative History 3 Eurojust´s Mission As Defined in the Treaty (Competence Rationae Materiae) 4 The Tasks Conferred on Eurojust 5 Use and Processing of Data and Information Under Eurojust 6 The Innovations of the Treaty 7 Relations to Third Parties 8 The European Judicial Network (EJN) 9 Parliamentary Control List of Cases References Article 86 [European Public Prosecutor´s Office] 1 Overview 2 Legislative History 3 The Proposal of the Commission to Establish the European Public Prosecutor´s Office (EPPO) 4 Competence Rationae Materiae 5 Establishing the EPPO ``from Eurojust´´ 6 Legislative Procedure 7 Responsibilities Assigned to the EPPO 8 Performing Duties of the Public Prosecutor 9 The General Rules Applicable to Its Activities 10 The Conditions Under Which the Public Prosecutor Executes Its Functions 11 The Admissibility of Evidence 12 Judicial Review List of Cases References Chapter 5: Police Cooperation Article 87 [Establishment and Measures of Police Cooperation] (ex-Article 30 TEU) 1 Overview: Police Cooperation and Sovereignty 2 Police Cooperation Before the Lisbon Treaty 3 Cooperation and EU Law: From Trevi to Schengen to Lisbon 4 The Scope of Police Cooperation: The Authorities Involved (Paragraph 1) 5 Tools and Object of Cooperation (Paragraph 2) 5.1 The ``Communitarisation´´ of Cooperation Tools 5.2 The Object of Cooperation: The Problem of Personal Data Processing 6 Operational Cooperation and Enhanced Cooperation (Paragraph 3) List of Cases ECJ ECtHR References Article 88 [Europol] (ex-Article 30 TEU) 1 Overview 2 Origin of the Provision 3 Nature and Tasks of Europol (Paragraph 1) 4 The Architecture of the Europol System and the Central Structure of Europol (Paragraph 2) 5 Limits to the Flow of Information to Europol 6 Processing of Personal Data 7 Operational Powers, Coercive Measures (Paragraph 3), and Participation in Joint Investigation Teams 8 Europol´s External Relations 9 Parliamentary Control (National and European) on Europol´s Activity List of Cases ECJ References Article 89 [Interstate Cooperation] (ex-Article 32 TEU) 1 Overview 2 Procedural Aspects 3 Cross-Border Operations in Council Decision 2008/615/JHA 4 Joint Investigation Teams References 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