The European Court of Justice

by Arnull, Anthony

• ISBN13: 9780199258857
• ISBN10: 0199258856
• Edition: 2nd
• Format: Paperback
• Copyright: 2006-08-24
• Publisher: Oxford University Press

Summary

The European Court of Justice has played a major role in the development of what is now the European Union, but the way the Court has used its powers have been highly controversial. The new edition of this book examines the contribution of the Court in shaping the legal framework within which the EU operates. It considers the Court's place among the Union's institutions; its organization and working methods; what its powers are; how it has used those powers to resolve important questions of both constitutional and substantive law; and certain general questions relating to its overall approach. Throughout, the implications of the Union's Constitutional Treaty, signed by the Member States in Rome in October 2004 are taken fully into account.

Author Biography

Anthony Arnull is Professor of European Law and Director of the Institute of European Law at the University of Birmingham. In 1994 he was awarded a Jean Monnet Chair by the European Commission. Professor Arnull is joint Editor of the European Law Review and sits on the Editorial Advisory Board of the Cambridge Yearbook of European Legal Studies, the International Advisory Board of the Irish Journal of European Law and the Advisory Board of the Common Market Law Reports. He is a member of the Advisory Board of the British Institute of International and Comparative Law and of that Board's Community Law Section.

Table of Contents

Table of abbreviations	xxiii
Table of cases	xxvii
Table of treaties and legislation	lxxii
The Court and its jurisdiction	1	(156)
1. Europe's Judges	3	(31)
The origins of the Court	5	(2)
The members of the Court and its working methods	7	(18)
Judges	7	(7)
The number of Judges	7	(1)
The formations of judgment	8	(1)
The judgment	9	(5)
Advocates General	14	(5)
Method of appointment	19	(6)
The advent of the Court of First Instance	25	(2)
The accountability of the Court	27	(5)
The jurisdiction of the Court	32	(2)
2. Infringement proceedings	34	(19)
The Court and the complainant	35	(5)
The Court and the Commission	40	(4)
The Court and the defendant State	44	(3)
How effective are infringement proceedings?	47	(4)
The effect of the Constitutional Treaty	51	(2)
3. The action for annulment	53	(42)
Acts susceptible to review	56	(7)
The position of the European Parliament	63	(6)
Légitimation passive	63	(1)
Légitimation active	64	(3)
The position of the European Parliament: an assessment	67	(2)
The standing of private parties	69	(13)
The distinction between regulations and decisions	70	(4)
Direct concern	74	(2)
Individual concern	76	(4)
General	76	(2)
Special cases	78	(2)
Interest in bringing proceedings	80	(2)
The availability of a remedy in the national courts	82	(6)
The effect of the Constitutional Treaty	88	(3)
Standing: an assessment	91	(4)
4. The preliminary rulings procedure	95	(43)
The importance of the preliminary rulings procedure	97	(7)
The subject of the reference	104	(10)
General	104	(1)
The preserve of the national courts	105	(35)
Questions of fact	105	(2)
Questions of national law	107	(7)
The discretion conferred on inferior national courts	114	(5)
Courts of last resort	119	(6)
Preliminary rulings on validity	125	(6)
Preliminary rulings and the area of freedom, security and justice	131	(7)
5. The judicial architecture of the Union	138	(19)
The advent of the Treaty of Nice	140	(13)
References for preliminary rulings	142	(4)
Direct actions	146	(2)
Judicial panels	148	(4)
General	148	(1)
The Civil Service Tribunal	149	(2)
The proposed Community Patent Court	151	(1)
Appeals from the CH to the Court	152	(1)
The future	153	(4)
The Court and the legal order	157	(234)
6. Treaty provisions and national law	159	(25)
Van Gend en Loos and the birth of direct effect	161	(9)
The Opinion of Advocate General Roemer	164	(1)
The judgment of the Court	165	(3)
An assessment of the Court's decision	168	(2)
The direct effect of positive provisions of the Treaty	170	(2)
The horizontal direct effect of Treaty provisions	172	(3)
Treaty provisions not producing direct effect	175	(4)
Primacy	179	(5)
7. Direct effect and Community acts	184	(69)
Direct applicability and direct effect	185	(2)
The status of decisions and directives	187	(11)
The Court's early case law	189	(9)
Grad v Finanzamt Traunstein	189	(1)
SACE v Italian Ministry for Finance	190	(2)
van Duyn v Home Office	192	(1)
Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accjnzen	193	(1)
Pubblico Ministero v Ratti	194	(2)
Becker v Finanzamt Munster-Innenstadt	196	(2)
Can directives have horizontal effect?	198	(5)
Grasping the nettle	199	(1)
The reasoning of the Court in Marshall	200	(3)
Mitigating factors	203	(22)
The notion of State	204	(5)
The duty of consistent interpretation	209	(19)
The Marleasing case and its progeny	211	(6)
Vertical cases and the duty of consistent interpretation	217	(4)
The material scope of the duty of consistent interpretation	221	(4)
Pressure for change	225	(3)
Directives and the limits of direct effect	228	(25)
The effect on individuals of Directive 83/189 on national technical standards	228	(8)
Non-contractual cases	229	(1)
Criminal cases	230	(1)
Contractual cases	231	(5)
Other directives	236	(2)
Preventing abuse	238	(1)
Revisiting horizontal direct effect?	239	(11)
An alternative to the theory of substitution and exclusion	250	(3)
8. Direct effect, primacy and the national courts	253	(14)
The Kompetenz-Kompetenz debate	255	(6)
Reviewing the validity of Community acts	257	(2)
The repercussions of the Maastricht decision	259	(2)
The effect of the Constitutional Treaty	261	(6)
Scope	261	(2)
Kompetenz-Kompetenz and the response of national courts	263	(4)
9. European rights, national remedies	267	(68)
The initial phase: judicial restraint	268	(10)
The principle of national procedural autonomy	268	(2)
The application of the principle of national procedural autonomy	270	(4)
Recovering charges which have been 'passed on'	270	(1)
Interest	271	(1)
Standing	272	(2)
A right to damages?	274	(2)
The need for legislation	276	(2)
The second phase: judicial interventionism	278	(22)
An end to restraint?	278	(1)
The right to effective protection under Directive 76/207	279	(4)
A general right to effective protection	283	(2)
The duties of Member States	285	(2)
Limitation periods	287	(2)
Interim protection	289	(6)
The principle of State liability	295	(5)
The third phase: striking a balance?	300	(29)
The demise of Emmott	301	(3)
Can a national court be prevented from raising points of Community law of its own motion?	304	(4)
The principle of State liability	308	(18)
The conditions under which liability arises	308	(3)
Liability for judicial conduct	311	(8)
Is State liability a remedy of last resort?	319	(7)
The liability of private parties	326	(3)
An assessment of the Court's approach	329	(8)
State liability	329	(1)
Effectiveness	330	(2)
Equivalence	332	(1)
Concluding remarks	333	(2)
10. General principles of law and fundamental rights	335	(2)
The general principle of respect for fundamental rights	337	(30)
Cases involving the Community institutions	340	(13)
Competition law	340	(5)
Staff cases	345	(1)
Legislative acts	346	(7)
Cases involving the Member States	353	(11)
Obligations imposed by Community law	353	(2)
Powers conferred by Community law	355	(1)
Derogations permitted by Community law	355	(9)
What is the right standard of protection?	364	(3)
Political responses to the case law	367	(19)
Opinion 2/94 of the Court	369	(2)
The Treaties of Amsterdam and Nice	371	(4)
The Charter of Fundamental Rights of the European Union	375	(5)
The Convention on the Future of Europe and the Constitutional Treaty	380	(15)
The incorporation of the Charter	382	(2)
Union accession to the European Convention on Human Rights	384	(2)
An assessment	386	(5)
The Court and the substantive law	391	(1)
11. The free movement of goods	393	(212)
The scope of Article 28	395	(8)
The Dassonville formula	398	(1)
The effect of Dassonville	399	(4)
Non-discriminatory barriers to trade and the rule of reason	403	(12)
The relationship between the rule of reason and Article 30	406	(4)
What is a discriminatory rule?	410	(5)
Testing the limits of Article 28	415	(7)
The demise of the Dassonville formula?	422	(16)
The Sunday trading cases	423	(4)
The ruling in Keck and Mithouard	427	(4)
What are selling arrangements?	431	(2)
Second thoughts?	433	(5)
Concluding remarks	438	(4)
12. The free movement of workers	442	(3)
Discrimination	445	(6)
From discrimination to obstacles to freedom of movement	451	(5)
The outer limits of Article 39	456	(9)
A de minimis rule?	456	(2)
Abuse of rights	458	(4)
13. The right of establishment and freedom to provide services	462	(13)
The distinction between establishment and services	465	(3)
Direct effect	468	(2)
The mutual recognition of qualifications	470	(5)
The beneficiaries of the Treaty	475	(11)
General	475	(3)
Education	478	(1)
Health care	479	(7)
From discrimination to a rule of reason	486	(8)
Services	487	(5)
Establishment	492	(2)
The rule of reason and mutual recognition	494	(4)
The convergence of the freedoms	498	(3)
14. Towards citizenship	501	(1)
The Treaty prohibition of discrimination on grounds of nationality	501	(5)
Legislative initiatives	506	(2)
Citizenship of the Union	508	(3)
Background	508	(3)
The Martinez Sala case	511	(1)
An independent right of residence?	512	(4)
The rights of lawfully resident Union citizens	516	(11)
Rights of a non-financial nature	516	(3)
Financial rights	519	(8)
An assessment	527	(6)
15. Equal treatment for men and women	533	(1)
The evolution of the legal framework	534	(13)
The provisions of the EEC Treaty on social policy and the decision in Defrenne II	534	(3)
The importance of Defrenne II	537	(3)
Equal pay for work of equal value	540	(2)
The equal treatment directives	542	(1)
Changes to the Treaty	543	(3)
The role of the Court	546	(1)
The material scope of the Community rules	547	(23)
What is pay?	547	(11)
General	547	(1)
Pensions and the Barber case	548	(1)
The temporal effect of the Barber case	549	(1)
Levelling down	553	(1)
The relevance of actuarial considerations	554	(2)
An assessment	556	(2)
The material scope of Directive 76/207	558	(12)
The principle of equal treatment	558	(1)
Qualifications to the principle of equal treatment	559	(5)
Gender reassignment and sexual orientation	564	(6)
Indirect discrimination	570	(11)
The Court's general approach	571	(2)
The application of the general rule	573	(4)
The burden of proof	577	(3)
An assessment	580	(1)
Pregnancy	581	(9)
Positive action	590	(10)
Background	590	(1)
The case law	591	(9)
An assessment	600	(1)
Concluding remarks	600	(5)
The Court and its general approach	605	(1)
16. Interpretation and the limits of literalism	607	(61)
The multi-lingual nature of Community law	608	(3)
The drafting of Community provisions	611	(9)
The Treaty	611	(4)
Community acts	615	(5)
An assessment of the Court's approach	620	(2)
17. The normative status of the case law	622	(1)
The origins of the Court's judicial style	622	(2)
The evolution of the Court's judicial style	624	(1)
Precedent and the Court of Justice	625	(8)
Background	625	(2)
Dealing with previous case law	627	(5)
General	627	(2)
Overruling	629	(1)
Reaffirming and distinguishing	630	(2)
A preliminary assessment	632	(1)
Precedent in the Court of First Instance	633	(4)
Concluding remarks	637	(2)
18. Judging Europe's Judges	639	(1)
The first phase: from consensus to qualified majority	639	(5)
Making the system work	639	(3)
Protecting the rights of individuals	642	(2)
The second phase: from QMV to EU	644	(6)
A reduced role for the Court?	644	(2)
The momentum of the case law	646	(1)
Making up for lost time	647	(1)
Protecting the institutional balance	648	(2)
The third phase: Maastricht and beyond	650	(9)
Conferred powers, subsidiarity and public opinion	650	(4)
The Court's reaction	654	(5)
A new phase? The Treaty of Nice and beyond	659	(9)
An alternative ending	662	(6)
Select bibliography	668	(15)
Index	683