PART 1: EVOLUTION OF THE EUROPEAN UNION PART 2: INSTITUTIONAL STRUCTURE AND LAW MAKING

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1 Contents Table of European Union Treaties Table of European Union Secondary Legislation Table of UK Primary and Secondary Legislation Table of European Cases Table of UK, French, German and US Cases PART 1: EVOLUTION OF THE EUROPEAN UNION Chapter 1: Historical Background 1.1 Introduction 1.2 Who is in and who is out? 1.3 The origins of the EU 1.4 The EEC Treaty and its development 1.5 All change: establishing the EU 1.6 A constitution for Europe? 1.7 The Treaty on Stability, Coordination and Governance 1.8 How does market integration create wealth and stability? The economic objective The common market Market integration and political stability 1.9 The role of EU law 1.10 The UK and the EU The European Union Act Summary PART 2: INSTITUTIONAL STRUCTURE AND LAW MAKING Chapter 2: The Institutions of the EU 2.1 Introduction 2.2 The European Commission What is the Commission? Appointment of the Commission What does the Commission do? Proposing new legislation Implementing EU policies and the budget Enforcing European law How is the Commission s work organised? Accountability of the Commission 2.3 The Council What does the Council do? How is the Council s work organised? How are Council decisions made? i

2 2.3.4 The European Council 2.4 The European Parliament How is Parliament s work organised? The history of the European Parliament A democratic deficit? 2.5 The Court of Justice of the European Union The General Court and the Civil Service Tribunal What does the Court of Justice do? 2.6 Other EU institutions Court of Auditors The European Central Bank (ECB) 2.7 Advisory bodies and agencies of the EU European Economic and Social Committee Committee of the Regions The Office for Harmonisation in the Internal Market (OHIM) The European Ombudsman 2.8 Summary Chapter 3: The Law-making Process 3.1 Introduction 3.2 Legal base 3.3 The ordinary legislative procedure 3.4 Special legislative procedures The consultation procedure The consent procedure 3.5 The Commission Council dialogue 3.6 Publication and notification 3.7 European Citizens Initiative 3.8 Summary PART 3: THE EU LEGAL SYSTEM Chapter 4: Sources of EU Law 4.1 Introduction 4.2 The Treaties 4.3 Regulations 4.4 Directives 4.5 Decisions 4.6 Non-legislative acts: delegated acts and implementing acts 4.7 Giving reasons 4.8 Other binding acts 4.9 Non-binding acts 4.10 Substance not form 4.11 General principles of law Subsidiarity and proportionality Legal certainty Equality ii

3 Natural justice 4.12 Protection of fundamental rights 4.13 The case law of the Court of Justice 4.14 Summary Chapter 5: The Supremacy of EU Law 5.1 Introduction 5.2 The EU concept of supremacy 5.3 The application of the supremacy principle A treaty basis to enforce the principle 5.4 Supremacy of EU law in the UK 5.5 Supremacy of EU law in Germany 5.6 Supremacy of EU law in France 5.7 The basis of EU supremacy in Member States: summary 5.8 Supremacy and the European Union Act Summary Chapter 6: Using EU Law Before National Courts 6.1 Introduction 6.2 Binding obligations and direct applicability Direct applicability and Directives 6.3 The concept of direct effect 6.4 The general test for direct effect Clear and precise Unconditional Require no further act of implementation 6.5 Vertical and horizontal direct effect 6.6 Direct effect and Regulations 6.7 Direct effect and Decisions 6.8 Direct effect and Directives The policy reasoning The deadline for implementation Vertical direct effect only What is a state body? The rule against horizontal direct effect for Directives: some limited flexibility The triangular horizontal direct effect Incidental horizontal effect Horizontal effect to secure the effectiveness of a general principle of EU law 6.9 Indirect effect: the interpretation obligation The Marleasing extension 6.10 State liability State liability: reasoning and perspectives The scope of the state liability principle The requirement of a sufficiently serious breach State liability resulting from the action of a Supreme Court State liability following a breach by the judiciary: practical difficulties 6.11 Jurisdiction in civil and commercial disputes The general operation of the original and recast BR I Problems with the original BR I iii

4 The court first seized principle and Italian torpedoes The arbitration exception The forum non conveniens principle Enforcement: exequatur proceedings Reform: the new BR I Regulation 6.12 European Small Claims Procedure 6.13 Summary Chapter 7: Infringement Actions Before the European Court of Justice 7.1 Introduction 7.2 Action by the Commission 7.3 The administrative stage Informal discussions EU Pilot CHAP SOLVIT Letter of formal notice The reasoned opinion 7.4 The judicial stage 7.5 Interim measures in infringement proceedings 7.6 Actions by Member States 7.7 Remedies Financial penalties under Art 260(2) TFEU Calculating the financial penalty Financial penalties under Art 260(3): the new power 7.8 Summary Chapter 8: References to the Court of Justice under Art 267 Treaty on the Functioning of the European Union 8.1 Introduction 8.2 Art 267 and the basic procedures 8.3 Questions for referral Form and content Artificial disputes and hypothetical questions 8.4 Who can refer questions? Can arbitrators make a reference? 8.5 The discretion to refer: Art 267(2) 8.6 The obligation to refer: Art 267(3) The courts within the scope of Art 267(3) The obligation to refer under Art 267(3) The significance of CILFIT State liability and Art 267(3) 8.7 Questions concerning validity 8.8 Procedure before the Court of Justice Improvements to the procedure 8.9 The preliminary ruling: form and effect 8.10 The relationship between national courts and the Court of Justice 8.11 Summary iv

5 Chapter 9: Action for Annulment Before the European Court of Justice 9.1 Introduction 9.2 Arts 263 and 264 TFEU 9.3 Locus standi Direct concern Individual concern Reform of Art 263: regulatory acts The meaning of the term regulatory act 9.4 Grounds for review Lack of competence Infringement of an essential procedural requirement Infringement of the Treaty or of a rule of law relating to its application Misuse of powers 9.5 Time limits 9.6 The effects of annulment 9.7 Art 277 TFEU: plea of illegality 9.8 Summary Chapter 10: Other Proceedings Before the European Court of Justice 10.1 Introduction 10.2 The action for failure to act 10.3 Contractual and non-contractual liability: Art 340 TFEU 10.4 The new approach to the Schöppenstedt formula 10.5 Summary PART 4: THE LAW OF THE INTERNAL MARKET: THE FOUR FREEDOMS Chapter 11: Free Movement of Goods: Customs Duties and Internal Taxation 11.1 Introduction 11.2 The purpose and effect of fiscal barriers 11.3 Charges equivalent to a customs duty Where there is no protectionism or fiscal motive behind the charge Where the charge is a fee for an inspection A fee for a service 11.4 Discriminatory taxation Indirect discrimination Similar domestic products 11.5 Protective taxation A genuine (lawful) tax 11.6 A charge equivalent to a customs duty or a discriminatory tax? The charge is for the exclusive benefit of the domestic producers Where the charges on domestic goods are applied differently from those on imports 11.7 Private remedies for a breach of Arts 30 and 110 TFEU v

6 Direct effect Where the cost of the unlawful charge is passed on Damages for loss of sales 11.8 Summary Chapter 12: Free Movement of Goods: Quantitative Restrictions 12.1 Introduction 12.2 Who is bound by Arts 34 and 35? Public bodies and semi-public bodies Member State responsibility for private restrictions The limited horizontal application of Art The reasoning and significance of Fra.bo Spa [2012] 12.3 What is a quantitative restriction? 12.4 Measures having equivalent effect 12.5 Distinctly applicable measures equivalent to a quantitative restriction Measures that favour direct imports over indirect imports National measures encouraging discrimination Administrative practices Origin labelling Import and export restrictions Minimum and maximum prices 12.6 Indistinctly applicable measures The significance and reasoning of the Cassis ruling The application of the Cassis approach Need to refine the Cassis approach The Keck refinement The application of Keck: Selling arrangements Other rules impeding market access The significance of Commission v Italy and Mickelsson Summary of the types of measure in breach of Art Indistinctly applicable measures and Art 35 on exports 12.7 Justification of a breach: public interest reasons and Art Mandatory requirements The Art 36 derogations Derogation based on public morality Derogation based on public policy Public security Protection of health and the life of humans, animals or plants The protection of industrial and commercial property Protection of national treasures possessing artistic, historic or archaeological value 12.8 Summary Chapter 13: Free Movement of Persons 13.1 Introduction 13.2 Background and development of EU citizenship EU citizenship and Member State nationality The initial development of the rights from EU citizenship 13.3 Entry and residence rights from the Citizens Rights Directive 2004/ Personal scope of the CRD vi

7 The right to leave and enter The right of residence Temporary residence (up to three months) Residence beyond three months Permanent residence 13.4 Internal situations: the substance of the rights test Internal situations: the Surinder Singh route 13.5 Derogations on the right of entry and residence Public policy and public security Public health Procedural safeguards 13.6 The right to equal treatment based on citizenship Equal treatment and the CRD 13.7 Additional rights for citizens who are workers Who is a worker? Cross-border economic activity Direct effect Discrimination and restrictions to market access Direct discrimination Indirect discrimination Restrictions on market access Additional residence rights for workers and their family members Temporary residence (up to three months) Residence beyond three months Permanent residence The right to access employment The right to equal treatment Conditions of employment Social advantages Equal treatment in vocational training and education Uniform application and enforcement of the rights of EU workers 13.8 Summary Chapter 14: Freedom of Establishment and Services 14.1 Introduction 14.2 General Services Directive 14.3 Rights of establishment 14.4 The nature of services 14.5 Recipients of services 14.6 Exceptions Establishment: the exercise of official authority under Art 51 TFEU Establishment: exceptions based on public policy, public security and public health Services 14.7 Recognition of Qualifications and Directive 2005/36/EC System of automatic recognition of qualifications attested by professional experience in certain industrial, craft and commercial activities System of automatic recognition of qualifications for the professions of doctor, nurse, dentist, veterinary surgeon, midwife, pharmacist and architect vii

8 Procedure for the mutual recognition of professional qualifications Reform of Directive 2005/ Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained 14.8 Rules of professional conduct 14.9 National measures which hinder market access Summary PART 5: THE COMMON POLICIES OF THE EU Chapter 15: Social Policy 15.1 Introduction 15.2 The principle of equal pay 15.3 The impact of Directive 75/117/EEC 15.4 Objective justification 15.5 What constitutes pay? 15.6 Equality of treatment Discrimination on grounds of religion, belief, disability, age and sexual orientation in employment Directive 2000/43 on discrimination on grounds of racial and ethnic origin 15.7 Summary Chapter 16: Competition Policy 16.1 Introduction 16.2 The aim of EU competition policy 16.3 Principles of EU competition policy Economic efficiency Market integration Fairness 16.4 The regulation of competition Mergers State aid Abuse of market power Restrictive agreements and concerted practices Undertakings May affect trade between Member States 16.5 Enforcement of EU competition law 16.6 Summary Chapter 17: Abuse of a Dominant Position 17.1 Introduction 17.2 What is dominance? 17.3 The relevant market The relevant product market (RPM) Demand substitutability viii

9 Supply substitutability Additional product market factors The relevant geographical market (RGM) The relevant temporal market (RTM) 17.4 The assessment of dominance Market share Barriers to entry Financial and technical resources Vertical integration 17.5 Abusive conduct Unfair trading conditions Tying/bundling Discriminatory pricing Predatory pricing Margin squeezing Refusal to supply 17.6 Summary Chapter 18: Anti-competitive Agreements and Concerted Practices 18.1 Introduction 18.2 Agreement 18.3 Decisions by associations of undertakings 18.4 Concerted practice Concerted practice or an oligopoly? 18.5 Distortion of competition Vertical agreements within Art 101(1) The de minimis principle 18.6 Art 101(3) exemption The Commission guidelines on horizontal co-operation agreements [2011] 18.7 Block exemptions Regulation 330/2010 on vertical agreements and concerted practices Market share threshold Hardcore restrictions Regulation 1217/2010 on research and development agreements Scope of the Regulation Requirements of the Regulation Hardcore restrictions Regulation 316/2014 on technology transfer 18.8 Summary Chapter 19: Enforcement of Competition Law 19.1 Introduction 19.2 The role of the Commission and national competition authorities (NCAs) 19.3 The start of the enforcement procedure 19.4 The investigation ix

10 Legal privilege 19.5 The Statement of Objection 19.6 Access to the Commission s file 19.7 The hearing 19.8 The burden and standard of proof 19.9 Fines and penalties Private enforcement Private enforcement in the UK Reform of private enforcement of EU competition law: Directive 2014/104/EU Changes to facilitate the protection of leniency documents Summary Answers to Self-assessment Questions Appendix Index x

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