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Map of the European Union

Preface

vii

Abbreviations

xxiii

Acknowledgments

xxv

Table of Cases

xxviii

Table of Treaties, Instruments and Legislation

lxxvi

Table of Equivalents

cxx

Electronic Working Paper Series

cxxv

PART I Constitutional and Institutional Law

European integration and the Treaty on European Union

(43)

Introduction

(1)

The idea of `Europe'

(3)

The idea of `European Union'

(2)

The European Communities and their origins

(5)

From the Treaty of Paris to the Treaty of Rome

(3)

The EEC Treaty

(2)

Early development of the European Communities

(3)

De Gaulle and the Luxembourg Accords

(2)

The initial enlargements

(1)

The Single European Act and beyond

(7)

Run-up to the Single European Act

(2)

The Single European Act

(2)

The road to Maastricht

(3)

The Treaty on European Union

(7)

Three pillars of the European Union

(2)

The new competences

(1)

Recasting the institutional settlement and the quest for `democracy'

(1)

Division of power between the European Union and the Member States

(1)

The 1990s: the decade of self-doubt

(4)

Ratification of the Treaty on European Union

(2)

The Treaty of Amsterdam

(1)

Area of Freedom, Security and Justice

(1)

Amsterdam and the democratic deficit

(1)

Differentiated integration

(1)

Recasting the borders of the European Union

(6)

The Treaty of Nice and beyond

(4)

Fin de-siecle decay: from Amsterdam to Nice

(1)

The Treaty of Nice and its aftermath

(2)

Further reading

(1)

Constitutionalism and the `failure' of the Constitutional Treaty

(42)

Introduction

(1)

Constitutional law and the Court of Justice

(12)

What makes the European Union different

(2)

Van Gend en Loos

(4)

Legitimacy of the `new legal order'

(6)

The Constitutional Treaty

(13)

Explaining the constitutional turn

(4)

Success

(1)

Enlargement

(1)

The democratic challenge

(5)

Roles and policies

(2)

Drafting of the Constitutional Treaty

(6)

The Convention on the Future of Europe

(3)

Process at the Convention

(3)

The Constitutional Treaty: a brief summary

(4)

Overview and assessment

(6)

Further reading

(1)

The EU Institutions

(45)

Introduction

(1)

The Commission

(14)

The Commission bureaucracy

(1)

College of Commissioners

(5)

The Directorates-General

(1)

The Cabinets

(1)

Powers of the Commission

(1)

Legislative and quasi-legislative powers

(3)

Agenda-setting

(2)

Executive powers

(1)

Supervisory powers

(1)

Regulatory agencies and the Commission

(2)

The Council of Ministers

101

(7)

Powers and workings of the Council

101

(1)

Decision-making within the Council

102

(4)

Management of the Council: the Presidency, the Secretariat and COREPER

106

(2)

The European Council

108

(3)

The European Parliament

111

(9)

Composition of the European Parliament

111

(3)

Powers of the European Parliament

114

(1)

Legislative powers of the European Parliament

114

(2)

Powers over the Executive

116

(3)

Powers of litigation

119

(1)

Financial powers of the European Parliament

119

(1)

The Court of Justice and the Court of First Instance

120

(7)

Jurisdiction of the Court of Justice

120

(2)

Composition and working methods of the Court of Justice

122

(2)

The Court of First Instance

124

(3)

Judicial Panels

127

(1)

Other institutions

127

(4)

European Central Bank

127

(1)

Court of Auditors

128

(1)

Economic and Social Committee

128

(1)

The Committee of the Regions

129

(1)

Further reading

130

(1)

Community law-making

131

(51)

Introduction

131

(1)

EU legislation

132

(5)

Soft law

137

(3)

Legal bases for Community legislation

140

(4)

Community primary legislative procedures

144

(11)

Council legislation without consultation of the Parliament

145

(1)

Consultation procedure

146

(3)

Co-decision procedure

149

(1)

Central features of the co-decision procedure

149

(2)

Legislative practice under the co-decision procedure

151

(4)

Law-making and Enhanced Cooperation

155

(4)

Comitology

159

(8)

The `democratic deficit' and the legislative process

167

(15)

Representative democracy and national parliaments

168

(3)

Participatory democracy and republicanism

171

(4)

Deliberative democracy and the European public sphere

175

(3)

Further reading

178

(1)

Annex

178

(4)

Sovereignty and federalism: the authority of EU law and its limits

182

(50)

Introduction

182

(1)

Sovereignty of EU law: primacy and the Court of Justice

183

(13)

Pre-emption and the allocation of competences

188

(1)

Exclusive competence

188

(2)

Shared competence

190

(3)

Supporting, coordinating and complementary action

193

(1)

Fidelity principle

193

(3)

Contesting EU legal sovereignty: primacy and the national courts

196

(13)

Case law of the national courts

196

(2)

European constitutional sovereignty

198

(1)

Unconditional national constitutional sovereignty

199

(2)

Constitutional tolerance

201

(5)

Academic commentary

206

(3)

Federal limits of EU law

209

(23)

Principle of conferred powers

211

(8)

Principle of subsidiarity

219

(1)

Subsidiarity and judicial review

220

(5)

Subsidiarity: changing the European Union's legislative culture?

225

(3)

Subsidiarity and process: national parliaments as guardians of EU law-making

228

(2)

Further reading

230

(2)

Fundamental rights

232

(40)

Introduction

232

(2)

Development of fundamental rights protection in the EC legal order

234

(7)

Incorporation of fundamental rights into EC law by the Court of Justice

234

(3)

Types of EC fundamental rights

237

(4)

Development of fundamental rights by the political institutions of the European Union

241

(5)

Non-violation and fundamental rights

241

(2)

Fundamental rights and the external relations of the European Union

243

(1)

Development of an internal fundamental rights policy

244

(2)

The European Union Charter of Fundamental Rights

246

(15)

Development of the Charter

246

(7)

The rights and freedoms recognised in the Charter

253

(5)

Interpretation of the Charter

258

(3)

Fundamental rights and the institutional scheme of the European Union

261

(11)

Fundamental rights and the EU institutions

261

(2)

Fundamental rights and the Member States

263

(7)

Further reading

270

(2)

Judicial relations in the European Union

272

(39)

Introduction

272

(1)

Mechanics of the preliminary reference procedure

273

(7)

EC Treaty provisions

273

(4)

The sequence of the reference procedure

277

(1)

Making of the reference

277

(1)

Interim measures

278

(1)

Application of the ruling

279

(1)

Functions of the preliminary reference procedure

280

(11)

Development of EC law

281

(2)

Judicial review of EU institutions

283

(2)

Preserving the unity of EC law

285

(2)

Dispute resolution

287

(4)

Preliminary references and the European judicial order

291

(12)

Article 234 EC and the creation of a Community judicial order

291

(2)

The subjects of the Community judicial order

293

(2)

Docket-control by the Court of Justice

295

(1)

The binding effects of judgments on national courts

295

(2)

Limiting the circumstances in which the Court of Justice will accept references

297

(1)

Setting out the circumstances in which referral is obligatory

297

(4)

The accountability of national judges

301

(2)

Reform of the judicial architecture of the European Union

303

(8)

Further reading

310

(1)

PART II Administrative law

Accountability in the European Union

311

(37)

Introduction

311

(1)

Nature and importance of accountability

312

(5)

Transparency

317

(12)

Responsibility and resignation: governance and the Commission

329

(8)

The European Ombudsman

337

(11)

Further reading

346

(2)

The enforcement of European law

348

(62)

Introduction

348

(1)

Enforcement by the Court of Justice: Articles 226--228 EC

349

(16)

Article 226 EC procedure

350

(3)

Complainants and Article 226 EC

353

(4)

Scope of Member States' responsibilities

357

(3)

Sanction: Article 228 EC

360

(4)

Conclusions

364

(1)

Enforcement through the national courts: direct effect

365

(16)

Establishment of direct effect

366

(2)

Liberalisation and expansion of direct effect

368

(3)

Direct effect of Directives

371

(9)

Vertical direct effect and the extension of the state

380

(1)

Duty of consistent interpretation ('indirect effect')

381

(9)

Establishment of the duty

381

(3)

Extent of the duty

384

(3)

When does the duty arise?

387

(1)

Range of measures that national courts must take into account

388

(2)

State liability

390

(20)

`National procedural autonomy' and its (partial) erosion

390

(4)

Establishment of state liability

394

(6)

Conditions for, and expansion of, state liability

400

(8)

Further reading

408

(2)

Judicial review: the legal accountability of the Community institutions

410

(55)

Introduction

410

(2)

Scope of judicial review under Article 230 EC

412

(4)

Standing to seek judicial review under Article 230 EC

416

(20)

Privileged and semi-privileged applicants

417

(1)

Non-privileged applicants: direct concern

418

(2)

Non-privileged applicants: individual concern

420

(1)

The Plaumann formula

420

(4)

Individual concern and Regulations

424

(2)

A more generous approach?

426

(3)

Reform?

429

(4)

Nature of applicants: private parties and interest groups

433

(3)

Grounds of review under Article 230 EC

436

(21)

Intensity of review

436

(1)

Lack of competence

437

(2)

Infringement of an essential procedural requirement

439

(1)

Right to be heard

440

(6)

Duty to give reasons

446

(2)

Infringement of the EC Treaty or of any rule of law relating to its application

448

(1)

Proportionality

448

(6)

Legal certainty and legitimate expectation

454

(2)

Misuse of powers

456

(1)

Consequences of annulment

456

(1)

Liability under Article 288(2) EC

457

(8)

Further reading

463

(2)

PART III Social and economic law

The single market

465

(41)

Introduction

465

(1)

Nature of the single market

466

(4)

Reach of the single market project

470

(5)

Harmonisation

475

(16)

Approaches to harmonisation: the `old' approach and the `new' approach compared

475

(5)

Harmonisation and plural interests

480

(4)

Harmonisation and government by expertise

484

(3)

Harmonisation and the non-market values of the Member States

487

(4)

European standardisation

491

(6)

European standardisation bodies

491

(2)

European standardisation and the Community legislature

493

(1)

Evaluating the European standardisation process

494

(1)

Efficiency of the standard-setting process

495

(1)

Representation

495

(1)

Accountability

496

(1)

Mutual accommodation of national regimes

497

(9)

Ex ante measures

497

(4)

Ex post measures

501

(3)

Further reading

504

(2)

Economic and monetary union

506

(55)

Introduction

506

(2)

Liberalising payments and the movement of capital

508

(5)

The move to economic and monetary union

513

(15)

Early attempts to achieve monetary unification

513

(3)

The Delors blueprint for EMU and its implementation

516

(6)

Economics of monetary unification and the Maastricht convergence criteria

522

(6)

Economic policy coordination in the eurozone

528

(11)

The fragmentary macro-economic policy-making framework of EMU

528

(2)

The Excessive Deficit Procedure and the Stability Pact

530

(9)

Institutions of monetary union: the ECB and the ESCB

539

(22)

Institutional framework of the ESCB

539

(1)

Central bank independence and accountability

540

(11)

Decentralised structure of the ESCB

551

(3)

Monetary policy in the eurozone

554

(3)

External aspect of the eurozone

557

(2)

Further reading

559

(2)

Union citizenship

561

(43)

Introduction

561

(1)

Modern citizenship and its evolution

562

(4)

Distinctive nature of EU citizenship

566

(8)

Composite nature of EU citizenship

567

(6)

Complementary nature of EU citizenship

573

(1)

Political citizenship and representation rights

574

(6)

Rights to vote and hold office

574

(4)

Right to petition and hold the administration accountable

578

(2)

Citizenship and civil rights

580

(17)

Right to diplomatic protection

580

(1)

Right to move, reside and remain within the territory of the Member States

581

(1)

Administrative formalities

582

(2)

Grounds for excluding the citizen from the host state's territory

584

(4)

Equality before the law

588

(1)

Family rights

589

(1)

The EU idea of the family

590

(2)

EU and non-EU family members

592

(2)

Fundamental rights and family rights

594

(3)

Citizenship and social rights

597

(7)

Further reading

602

(2)

EU law and non-EU nationals

604

(53)

Introduction

604

(2)

Central themes of EU law on non-EU nationals

606

(9)

Economic mercantilism

606

(2)

National security and national sovereignty

608

(3)

Humanitarianism

611

(2)

European security

613

(2)

Institutional architecture for non-EU nationals

615

(10)

Legislative competencies

615

(4)

Ring-fencing of national security

619

(3)

Norms of fundamental rights

622

(3)

`Desirable' non-EU nationals: the Long-Term Residents Directive

625

(12)

Acquisition of long-term resident status

626

(5)

Rights acquired against the host state

631

(5)

Rights of long-term residents in other Member States

636

(1)

`Suspicious foreigners': the EU regime on asylum seekers

637

(11)

Allocation of responsibilities between Member-States for asylum seekers

639

(3)

Reception of asylum seekers

642

(1)

Policing of asylum seekers through welfare

643

(2)

Movement, residence and detention of asylum seekers

645

(2)

Wider rights of asylum seekers

647

(1)

`Poor foreigners': refugees and subsidiary protection

648

(9)

Acquisition and loss of refugee status

650

(2)

Subsidiary protection

652

(1)

Varying benefits of international protection

653

(3)

Further reading

656

(1)

Free movement of goods and the economic constitution

657

(40)

Introduction

657

(2)

Material reach of Articles 28 to 30 EC

659

(2)

Functions of Article 28 EC

661

(5)

Economic constitutionalism

662

(2)

Socially embedded market polity

664

(1)

Economic supranationalism

665

(1)

Prohibition on discrimination

666

(9)

Discrimination and the economic constitution

667

(3)

Discrimination and the socially embedded market polity

670

(2)

Discrimination and economic supranationalism

672

(3)

Cassis de Dijon and market integration

675

(13)

Cassis de Dijon and a new institutional settlement for Article 28 EC

675

(6)

Reach of Cassis de Dijon: Keck and the resort to formalism

681

(7)

Market access and the partial economic constitution

688

(9)

Further reading

696

(1)

The pursuit of an occupation in another Member State

697

(46)

Introduction

697

(2)

Taking up and pursuit of an occupation in another Member State

699

(8)

Employment and self-employment

699

(3)

Taking up an occupation in another Member State

702

(1)

Performance of significant economic activity in another Member State

702

(2)

Enjoyment of the rights and limits of EU citizenship

704

(1)

Towards an overarching right to pursue an occupation in another Member State

705

(2)

Restrictions on the taking up of an occupation

707

(15)

Restrictions on the taking up of an occupation on grounds of nationality

707

(1)

Restrictions on access to labour markets

708

(6)

Restrictions on secondary establishment

714

(2)

Restrictions on the use of diplomas and qualifications

716

(6)

Restrictions on the pursuit of an occupation

722

(12)

Discrimination in labour markets

723

(2)

Discrimination in the pursuit of a business

725

(1)

Discrimination and social advantages

726

(4)

Non-discriminatory restrictions on the pursuit of an occupation

730

(4)

Free movement of companies

734

(9)

Discrimination and foreign companies

734

(1)

Relocation of company activity from one Member State to another

735

(6)

Further reading

741

(2)

Free movement of services

743

(38)

Introduction

743

(4)

Concept of a service and the material reach of Article 49 EC

747

(8)

Private actors and Article 49 EC

748

(3)

Presence of a gainful transaction

751

(1)

Inter-state dimension to the transaction

751

(2)

Article 49 EC and the other economic freedoms

753

(2)

Article 49 EC and the market society

755

(15)

Article 49 EC and market citizenship

755

(5)

Article 49 EC and ethical goods

760

(3)

Article 49 EC and the supply of public goods

763

(7)

Discrimination and the provision of services

770

(2)

Indistinctly applicable restrictions on the provision of services

772

(9)

Restrictions on who can provide services

772

(4)

Beyond market access: the outer reaches of Article 49 EC

776

(3)

Further reading

779

(2)

Financial services

781

(49)

Introduction

781

(1)

Significance of financial services for the European economy

782

(4)

Creating a single market for financial services: an overview

786

(18)

The `passport' strategy

786

(6)

Limits of mutual recognition

792

(7)

Towards greater regulatory convergence: the Financial Services Action Plan

799

(5)

Institutional reform

804

(26)

Streamlining financial regulation: the Lamfalussy process

805

(13)

Supervision in the single financial market

818

(10)

Further reading

828

(2)

Trade restrictions and public goods

830

(42)

Introduction

830

(1)

Public goods protected under EC law

831

(5)

Principles mediating conflicts between the economic freedoms and public goods

836

(15)

Prohibition on unequal treatment

837

(3)

Measure must be effective

840

(1)

Principle of equivalence

840

(4)

Measure must be the least restrictive necessary to secure its objectives

844

(7)

Consumer protection

851

(5)

Environmental protection

856

(4)

Public health

860

(4)

Public policy, public security and public morality

864

(3)

Cohesion of fiscal regimes

867

(5)

Further reading

871

(1)

Discrimination Law

872

(55)

Introduction

872

(2)

Development of EC discrimination law

874

(10)

Economic versus non-economic visions of EU law

874

(5)

Equal opportunities versus substantive equality

879

(1)

The core framework of EC discrimination law: the labour market

880

(4)

Equality grounds

884

(13)

Sex/gender

885

(2)

Racial or ethnic origin

887

(2)

Religion or belief

889

(2)

Disability

891

(1)

Age

892

(1)

Sexual orientation

893

(2)

Excluded groups

895

(2)

Discrimination: meaning, defences and remedies

897

(14)

Direct discrimination

897

(2)

Indirect discrimination

899

(1)

The concept of indirect discrimination

899

(1)

Legitimate aim defence

900

(1)

Harassment

900

(3)

Defences

903

(1)

Genuine occupational requirements

903

(2)

Other defences

905

(3)

Remedies

908

(1)

Procedures

908

(2)

Compensation

910

(1)

Widening the scope of EC discrimination law

911

(16)

Beyond the labour market

912

(4)

Positive action

916

(1)

Affirmative action under the 1976 Equal Treatment Directive

916

(1)

The new legislation

917

(3)

Dialogue

920

(2)

Mainstreaming

922

(1)

Gender mainstreaming

922

(3)

Further reading

925

(2)

PART IV Competition law and policy

EC competition law: functions and enforcement

927

(48)

Introduction

928

(1)

The aims of EC competition law

928

(12)

The economics of competition

929

(5)

The politics of competition law

934

(2)

The aims of EC competition policy

936

(4)

Enforcement by the Commission

940

(17)

First stage: investigation

941

(1)

Requests for information and interviews

941

(3)

Inspections

944

(2)

Second stage: adjudication

946

(1)

Statement of objections and access to the file

947

(1)

Oral hearing

948

(1)

Penalties for infringement

949

(1)

Fining policy

950

(2)

Leniency policy

952

(1)

Settlements

953

(1)

The Commission's procedures: an assessment

954

(3)

The resettlement of competition regulatory authority

957

(10)

Modernisation

957

(4)

The Commission's new role

961

(1)

Network of national competition authorities

962

(1)

Case allocation

963

(1)

Cooperation within the network

964

(2)

Assessment

966

(1)

Private enforcement

967

(8)

A Community right to damages

968

(3)

Commission cooperation with national courts

971

(1)

Prospects for private enforcement

972

(2)

Further reading

974

(1)

Restrictive practices

975

(49)

Introduction

975

(3)

Scope of application of EC competition law

978

(9)

Undertakings

978

(2)

Effect on trade between Member States

980

(3)

Excluded agreements

983

(4)

Agreements, decisions and concerted practices

987

(13)

Cartels

988

(6)

Tacit collusion

994

(2)

Distinguishing between agreement and unilateral action

996

(4)

Substantive assessment

1000

(9)

History of the controversy

1000

(4)

The procedural solution

1004

(2)

The role of Article 81(3) EC

1006

(3)

Vertical restraints

1009

(15)

The economic debate

1010

(5)

EC competition law and vertical agreements

1015

(2)

Scheme of the Block Exemption

1017

(4)

Assessment

1021

(1)

Further reading

1022

(2)

Abuse of a dominant position

1024

(45)

Introduction

1024

(2)

Market definition

1026

(15)

Product market definition

1027

(3)

Geographical market definition

1030

(3)

Supply substitutability

1033

(2)

The market definition Notice

1035

(6)

Dominance

1041

(5)

The concept of dominance

1041

(1)

Market shares

1042

(1)

Barriers to/ease of entry

1043

(3)

Abuse of dominance

1046

(2)

Exploitative abuse

1048

(2)

Exclusionary abuse

1050

(14)

Predatory pricing

1052

(4)

Refusals to supply

1056

(1)

The seminal cases

1056

(1)

The `essential facilities' doctrine and refusals to license intellectual property rights

1057

(1)

Reconciling the case law

1058

(3)

Competition versus innovation

1061

(3)

Perspectives on the evolution of the abuse doctrine

1064

(5)

Further reading

1067

(2)

Merger policy

1069

(45)

Introduction

1069

(3)

Jurisdiction and procedure

1072

(17)

Transactions falling within the scope of the ECMR

1072

(4)

Community dimension

1076

(4)

Exceptions to one-stop-shop

1080

(3)

From notification to decision

1083

(2)

Decision-making context

1085

(2)

Judicial review

1087

(2)

Substantive assessment

1089

(19)

Creating or strengthening a dominant position

1090

(5)

Coordinated effects in oligopoly markets

1095

(3)

Non-coordinated effects in oligopoly markets

1098

(2)

Vertical mergers

1100

(3)

Conglomerate mergers

1103

(5)

Merger defences

1108

(6)

Efficiencies

1108

(2)

The failing firm defence and other policy considerations

1110

(3)

Further reading

1113

(1)

State regulation and EC competition law

1114

(41)

Introduction

1114

(2)

Anti-competitive state regulation

1116

(17)

A general obligation

1116

(6)

A specific obligation

1122

(11)

Services of general interest

1133

(11)

Definition of `undertakings'

1134

(3)

Application of Article 86(2) EC

1137

(4)

A Community approach to services of general economic interest?

1141

(3)

Positive integration: the liberalisation Directives

1144

(7)

Evaluation

1151

(4)

Further reading

1153

(2)

Index

1155

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European Union Law : Text and Materials

9780521527415

0521527414

Summary

Table of Contents

Supplemental Materials

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