Goods and Services in EC Law A Study of the Relationship between the Freedoms

by Snell, Jukka

• ISBN13: 9780199250097
• ISBN10: 019925009X
• Format: Hardcover
• Copyright: 2002-05-23
• Publisher: Oxford University Press

Summary

The book examines the law of the free movement of goods and services. These two freedoms are fundamental to the Community's internal market and form the basis for an ever-increasing number of economic transactions as the markets of the Member States become more integrated. The book focuses inparticular on the relationship between the freedoms, asking whether the same principles can be applied in both fields.The book begins by analyzing the economics of trade in goods and services, and the general legal background. The aim is to establish whether goods and services ought, as a matter of principle, to be treated similarly by Community economic law. The book then moves on to investigate whether theEuropean Court of Justice has in practice applied similar principles in both areas. This is examined in three contexts: the scope of the freedoms, the author of the restrictions, and the issue of the justifications are all analyzed. In the case of a divergent approach, the reasons for thedifferences are explored, and the possibilities for a uniform solution are investigated.The book also tackles some general questions of EC law. The nature of the internal market is discussed in the context of the scope of the freedoms. The questions posed are whether the internal market is unitary or federal in character and how the theory of regulatory competition should affect theinterpretation of the Treaty free movement rules. The relationship between competition law and free movement provisions is addressed in the context of private restrictions to free movement of goods and services. The discussion of the proportionality of restrictions offers a chance to examine thedivision of power between the courts and legislatures.

Author Biography

Jukka Snell is Lecturer in Law at the University of Wales, Swansea

Table of Contents

Table of Abbreviations	xiii
Table of Cases	xv
Table of Legislation	xli
Introduction	1	(30)
The free movement of goods and services in the scheme of the EC Treaty	1	(3)
Subject matter	4	(11)
Goods	4	(2)
Services	6	(9)
The uniform interpretation of the freedoms	15	(11)
Terminology	26	(2)
The objective of the study	28	(3)
Restriction	31	(98)
Vertical division of power in the Community and the scope given to the freedoms	31	(18)
Introduction	31	(1)
From inter-governmentalism and supra-nationalism to decentralisation and centralisation	31	(2)
The scope of the freedoms	33	(2)
The economics of federalism	35	(10)
Implications for integration	45	(3)
Conclusion	48	(1)
Early developments	49	(6)
Goods	49	(2)
Services	51	(4)
Disparity between national rules	55	(10)
Goods	55	(1)
Services	56	(9)
Obstacles created by truly non-discriminatory rules: early cases	65	(5)
Goods	65	(2)
Services	67	(3)
Keck and the free movement of services	70	(59)
Background to Keck	70	(8)
The Keck judgment	78	(4)
The case law on the free movement of services	82	(34)
The free movement of goods and a test based on market access	116	(10)
Conclusion	126	(3)
Persons bound	129	(40)
Introduction	129	(1)
Private parties	129	(30)
The free movement of goods	129	(10)
The free movement of services	139	(5)
Criticism	144	(9)
Member State responsibility for private restrictions	153	(6)
Conclusion	159	(1)
The Community	159	(10)
The binding nature of the free movement of goods and services	159	(3)
Restrictions imposed by the Community	162	(7)
Justification	169	(50)
Introduction	169	(3)
EC Treaty exceptions	172	(9)
General	172	(3)
Grounds of justification	175	(6)
Arbitrary discrimination and disguised restrictions	181	(1)
Judicially created exceptions	181	(13)
Origin	181	(5)
Application	186	(5)
Grounds of justification	191	(2)
Nature	193	(1)
Proportionality	194	(24)
General	194	(1)
The nature of the test	195	(17)
The intensity of the review	212	(5)
Conclusion	217	(1)
Conclusion	218	(1)
Conclusion	219	(12)
Introduction	219	(1)
The approach of the Court	220	(5)
Restriction	220	(2)
Persons bound	222	(1)
Justification	223	(2)
Reasons far the differences	225	(1)
Proposed solutions	226	(5)
Restriction	227	(1)
Private parties	228	(3)
Appendix: Cases analysed in the study	231	(6)
Bibliography	237	(12)
Index	249