KLUWER LAW INTERNATIONAL. Views of European Law from the Mountain. Liber Amicorum Piet Jan Slot. Edited by

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1 KLUWER LAW INTERNATIONAL Views of European Law from the Mountain Liber Amicorum Piet Jan Slot Edited by M. Bulterman L. Hancher A. McDonnell and H. Sevenster Welters Kluwer Law & Business AUSTIN BOSTON CHICAGO NEW YORK THE NETHERLANDS

2 Summary of Contents Table of Contents Foreword Personal Foreword Biography of Piet Jan Slot Select bibliography of Piet Jan Slot Introduction About the contributors Table of Cases xiii xxvii xxix xxxi xxxiii xxxvii xlix lv Part I The Internal Market, the Freedoms and Harmonization 1 1. Minimum Harmonization after Tobacco Advertising and Laval Un Partneri 3 Michael Dougan 2. Harmonization in a Globalizing Market Place 19 Wessel W. Geursen 3. Sexual Harassment as Sex Discrimination: A Logical Step in the Evolution of EU Sex Discrimination Law or a Step Too Far? 27 Rikki Holtmaat

3 viii Summary of Contents 4. The Free Movement of Capital in the EC and with Third Countries and its Application on the Basis of ECJ Case Law 41 M.R. Mok 5. The Demise of Intra-EU Technical Barriers? 59 Jacques Pelkmans 6. Economic Justifications and the Internal Market 73 Wulf-Henning Roth 7. Market Access, The Outer Limits of Free Movement of.goods and... The Law? 91 Gert Straetmans Part II Competition and State Aid Antitrust Damages Actions Under the Rome II Regulation 109 Thomas Ackermann 9. Constitutional Horse Trading: Some Comments on the Protocol on the Internal Market and Competition 123 Rene Barents 10. Why? The Giving Reasons Requirement of, EU Administration 133 Onno Brouwer and Deirdre Curtin 11. Quality Control of Competition Decisions 143 David Edward 12. Resale Price Maintenance: Growing Convergence Between the US and the EC in Sight? 151 Luc Gyselen 13. EC Competition Law Post-Lisbon: A Matter of Protocol 167 Robert Lane 14. Scope of Judicial Review and Sanctions in Competition Cases 179 Arjen Meij

4 Summary of Contents ix 15. Some Reflections on the Position of Competitors in State Aid Cases 187 Tom R. Ottervanger 16. State Aid Under Swiss-EU Bilateral Law: The Example of Company Taxation 195 Christa Tobler 17. No Time for Time 207 Marc van der Woude and Christof Swaak 18. Harmonization of Actions for Cartel Damages - not the White Paper 223 Elaine Whiteford and Andrew Skudder Part III Sector-related Analyses Marine Pollution and Its Scapegoats: The Fragile Legitimacy of A European Directive and A European Judgment 235 Agustin Blanco-Bazdn 20. Interconnector Law: Interconnecting Competition and Security of Supply 245 Berend Jan Drijber 21. A Look Back at the Open Skies Judgments 257 Christophe Hillion 22. Harmonization of National Procedural Law via the Back Door? Preliminary Comments on the ECJ's Judgment in Janecek in a Comparative Context 267 Jan H. Jans 23. Ownership Unbundling: Prolegomenon to a Legal Analysis 277 Angus Johnston 24. Re-Reading External Relations Cases in the Field of Transport: The Function of Community Loyalty 291 Pieter Jan Kuijper 25. Nouvelles Frontieres: Trading International Law and European Law in the Context of the Establishment of an Emission Trade System 301 Pablo Mendes de Leon

5 x Summary of Contents Part IV Institutional Issues Reviewing the Review: Did the European Court of Justice in Kadi Indirectly Review Security Council Resolutions? On the Downside of a Courageous Judgment 315 Niels Blokker 27. National Sovereignty in the EU: An Outdated Concept 327 Laurens Jan Brinkhorst 28. What Can Be Salvaged if the Treaty of Lisbon Is Lost? 335 Alan Dashwood 29. Inverse Direct Effect and Community Loyalty 345 Thijs Drupsteen 30. EU Regulatory Agencies: What Future do They Have? 355 Jacqueline Dutheil de la Rochere 31. European Court of Justice Forces the Institution's Legal Services to Open Up 367 Herke Kranenborg 32. When Will the New Emperor Wear his Clothes? The Efforts of the European Union Towards a Common Development Cooperation Policy 379 Nico Schrijver 33. EU Governance: The Practice of EU Decision-Making and Law-Making 391 Hans van den Oosterkamp PartV Academic and Judicial Dialogue From "Direct Effect" to "Muted Dialogue": Recent Developments in the European Courts' Case Law on the WTO And Beyond 403 Marco Bronckers 35. European Law as an Academic Discipline: Unity and Fragmentation 417 Bruno de Witte

6 Summary of Contents xi 36. Recent Case Law of the Bundesverfassungsgericht and EC Law: A View from the Outside 429 Richard H. Lauwaars 37. Ex Boreale Lux: On the Influence of the ECJ on the Interpretation of the ECHR 439 Rick Lawson 38. Unilateral Termination and Suspension of Bilateral Agreements Concluded by the EC 455 Marc Maresceau 39. The Dutch Council of State: Constitutional Cases with a European Union Background 467 Kamiel Mortelmans

7 Table of Contents Summary of Contents Foreword Personal Foreword Biography of Piet Jan Slot Select bibliography of Piet Jan Slot Introduction About the contributors Table of Cases vii xxvii xxix xxxi xxxiii xxxvii xlix lv Part I The Internal Market, the Freedoms and Harmonization 1 1. Minimum Harmonization after Tobacco Advertising and Laval Un Partneri 3 Michael Dougan 1. Introduction 3 2. Judicial Practice Before Tobacco Advertising 4 3. The Impact of Tobacco Advertising I 6 4. The Impact of Laval Concluding Remarks on the Broader Context of Minimum Harmonization 16

8 xiv Table of Contents 2. Harmonization in a Globalizing Market Place 19 Wessel W. Geursen 1. Introduction Globalization and Harmonization Globalization, the Race to the Bottom and International Cooperation The Case of Harmful Tax Competition and the Savings Directive Conclusion Sexual Harassment as Sex Discrimination: A Logical Step in the Evolution of EU Sex Discrimination Law or a Step Too Far? 27 Rikki Holtmaat 1. Introduction The Concept of Sex Discrimination in EU Law, Including Harassment Sexual Harassment and Sex Discrimination: The Difference It Makes A Provisional Phenomenological Definition of Sexual Harassment The Definition by the EU Legislature The Causal Relationship Between the Sexual Harassment and the Sex of the Victim To Conclude: Sexual Harassment as a Fake Egg Or a Cuckoo's Egg in the Anti-Discrimination Nest? The Free Movement of Capital in the EC and with Third Countries and its Application on the Basis of ECJ Case Law 41 M.R. Mok 1. The Fourth Freedom The Maastricht Reform The Scope of the Free Movement of Capital Exceptions Relations with Non-Member States The Relation Between Free Movement of Capital and Other Aspects of the Single Market National Taxation and the Free Movement of Capital The Demise of Intra-EU Technical Barriers? 59 Jacques Pelkmans 1. Introduction The "Old Approach" as the First Generation 61

9 Table of Contents xv 3. Mutual Recognition, a Second Generation in Removing Technical Barriers The New Approach as the Third Generation The 2008 "Goods Package" as the Fourth Generation Conclusion Economic Justifications and the Internal Market 73 Wulf-Henning Roth 1. Introduction ;, The Legal Framework of the EC Treaty Article 30 EC Article 96 EC Article 86(2) EC The Case Law The Starting Point Articles 29, 49 EC: Good Reputation of the Industry Campus Oil, Commission v. Spain ("Golden Share") Health Services Minimum Wages Disturbances on the Labour Market, Industrial Peace Price Control Regulations Analysis of the Case Law Another View on Viking and Laval Preliminary Considerations Introducing Economic Justifications? "General Principles" and Economic Justifications Community Legislation Economic Justifications for Private Actors Economic Justifications for Member State Action? Market Access, The Outer Limits of Free Movement of Goods and... The Law? 91 Gert Straetmans 1. Introduction Market Access: The Irreversible Erosion of Keck Keck and Beyond: A Case for Erosion? Beyond Discrimination? Selling Arrangements as Substantial Restrictions: Giving Due Weight to the Inherent Regulatory Competence of Member States? Conclusion 105

10 xvi Table of Contents Part II Competition and State Aid Antitrust Damages Actions Under the Rome II Regulation 109 Thomas Ackermann 1. Private Antitrust Enforcement in an International Context: The Vitamins Case Jurisdiction and Choice of Law > The Application of Antitrust Tort Laws of Other Member States The Need for a Conflict-of-Law Rule in Cases with a European Dimension Market Effect as a Connecting Factor The Concept of Restriction of Competition Non-Compensatory Damages The Application of Antitrust Tort Laws of Third Countries The Treatment of Multi-State Effects Conclusion Constitutional Horse Trading: Some Comments on the Protocol on the Internal Market and Competition 123 Rene Barents 1. The End of Article 3(1 )(g) EC Industrial Policy vs. Competition The Relation Between Articles 2 and 3 EC The Concept of Internal Market The Scope of the Requirement of Undistorted Competition Effective Competition as an Expression of the Proportionality Principle Where Do We Go From Here? Why? The Giving Reasons Requirement of EU Administration 133 Onno Brouwer and Deirdre Curtin 1. Why? A Fundamental Principle? The Interaction with Administrative Discretion The Link with the Substantive Context Towards General "Public Accountability"? 140

11 Table of Contents xvii 11. Quality Control of Competition Decisions 143 David Edward 1. Introduction From Market Integration to "Competition Law" Constitutional Challenges The Court of First Instance Changing Priorities and Perceptions The Consequences for the Courts Effective Quality Control v Resale Price Maintenance: Growing Convergence Between the US and the EC in Sight? 151 Luc Gyselen 1. Introduction EC Case Law The ECJ and CFI Judgments The Commission's Regulation 2790 and its Guidelines Conclusions US Case Law Towards Convergence Between EC and US? EC Competition Law Post-Lisbon: A Matter of Protocol 167 Robert Lane 1. Introduction The Basics Promotion and Relegation What Have We Done? Scope of Judicial Review and Sanctions in Competition Cases 179 Arjen Meij 1. Introduction The Degussa Case Result on Appeal Margin of Appreciation as to Substance Some Reflections on the Position of Competitors in State Aid Cases 187 Tom R. Ottervanger 1. Background Introducing the Issues 189

12 xviii Table of Contents 3. The Casino Case Epilogue State Aid Under Swiss-EU Bilateral Law: The Example of Company Taxation 195 Christa Tobler 1. Introduction > Facts and Issues of the Dispute on Company Taxation Main Arguments: Relevance and Applicability of the FTA Argument 1: No Harmonization of Company Taxation in the Bilateral Law Argument 2: No Provision with the Practical Effect of a Prohibition Argument 3: No Parallel Interpretation of Article 23(l)(iii) FTA and Article 87(1) EC Argument 4: No Relevance of Article 23(l)(iii) FTA in the Context of Tax Measures Arguments Concerning Certain Elements of Article 23(l)(iii) FTA (Specificity, Effect on Trade with Goods and Justification) Final Remarks No Time for Time 207 Marc van der Woude and Christof Swaak 1. Introduction Ex ante versus Ex Post Control Market Definition Antitrust Law Cartels Abuse of Dominant Position Concentration Control Conclusion Harmonization of Actions for Cartel Damages - not the White Paper 223 Elaine Whiteford and Andrew Skudder 1. Introduction The Availability of Multiple or Punitive Damages Devenish v. Aventis and Others Ne Bis in Idem 225

13 Table of Contents xix The Respective Roles of National Courts and Competition Authorities Comment Article 16 of Regulation 1/2003: Who Is Bound by What? What Does "Run Counter To" Mean? Subsidiaries of the Addressees of Decisions Are NCAs Bound in the Same Way As National Courts? What Parts of Commission Decisions Bind? Conclusion 232 Part III Sector-related Analyses Marine Pollution and Its Scapegoats: The Fragile Legitimacy of A European Directive and A European Judgment 235 Agustin Blanco-Bazdn 1. Introduction UNCLOS and MARPOL as Treaty Law Sources of the Directive A Bewildering Ruling The Directive in the Context of MARPOL and UNCLOS Strange Territories From Wilful Intention to Negligence A Convenient Omission Conclusions Interconnector Law: Interconnecting Competition and Security of Supply 245 Berend Jan Drijber 1. Introduction General Competition Rules Sector-Specific Rules on TPA The VEMW Ruling The NorNed Cable (Electricity) The BBL Interconnector (Gas) BBL Expansion Outlook A Look Back at the Open Skies Judgments 257 Christophe Hillion 1. Introduction The Open Skies Judgments and "Classic Authorities" on EC External Powers 258

14 xx Table of Contents 3. The Open Skies Judgments and the Compliance!Coherence Case Law Conclusion Harmonization of National Procedural Law via the Back Door? Preliminary Comments on the ECJ's Judgment in Janecek in a Comparative Context 267 s Jan H. Jans 1. Introduction The Judgment in Janecek Janecek from a Comparative Perspective Is the Obligation to Draw Up Action Plans According to Article 7(3) Directive 96/62 Directly Effective? Locus Standi of Whom? Concluding Remarks Ownership Unbundling: Prolegomenon to a Legal Analysis 277 Angus Johnston 1. Introduction Ownership Unbundling The Unbundling Requirements Under Current EC Energy Legislation Forcing Ownership Unbundling Through Legislation Unbundling Legislation to be Adopted at the EC Level EC Competence to Adopt Such Measures? National Constitutional Constraints? Unbundling Legislation to be Adopted at the National Level Fundamental Rights and National Constitutional Issues Free Movement of Capital and Freedom of Establishment Legal Constraints and Issues Where Ownership Unbundling Is not Required by (EC or National) Legislation Competition Law (Both EC and National Systems) Merger Control Antitrust Law Free Movement Rules Free Movement of Capital Free Movement of Goods and Freedom to Provide Services Conclusion 290

15 Table of Contents xxi 24. Re-Reading External Relations Cases in the Field of Transport: The Function of Community Loyalty 291 Pieter Jan Kuijper 1. Introduction Re-Reading ERTA Some Cases Outside the Transport Field Recent Cases from the Transport Sector The Luxembourg Inland Waterway Transport Case Conclusions - _ Nouvelles Frontieres: Trading International Law and European Law in the Context of the Establishment of an Emission Trade System 301 Pablo Mendes de Leon 1. Introduction Presentation of the Subject Matter International Law Considerations The Rio Declaration The Kyoto Protocol of The Chicago Convention of ICAO Resolutions and Guidance Materials European Initiatives Multi-level Jurisdictional Questions Conclusions 311 Part IV Institutional Issues Reviewing the Review: Did the European Court of Justice in Kadi Indirectly Review Security Council Resolutions? On the Downside of a Courageous Judgment 315 Niels Blokker 1. Introduction The Court "Must Ensure Review" - a Four-step Underpinning Is "Any Judicial Review" Excluded? Four Observations The Central Question Is Too Narrow Where Is Article 103? In Search of a Bridge Over Troubled Water Is the Review by the Court Really Limited to the Implementation? Indirect Review of Security Council Resolutions? Concluding Observations 324

16 xxii Table of Contents 27. National Sovereignty in the EU: An Outdated Concept 327 Laurens Jan Brinkhorst 1. Introduction years of Integration: Changes in Europe Origin of National Sovereignty ' EU and National Sovereignty Towards a European Superstate? What Can Be Salvaged if the Treaty of Lisbon Is Lost? 335 Alan Dashwood 1. Introduction Rationalization of the Treaty/Union Structure Addressing the Democratic Deficit in the Union's Legislative Process The Generalization of Co-decision The Enhanced Role of National Parliaments Reform of the Institutions A Full-Time European Council President The New-Style High Representative A Slimmed-Down Commission Conclusion Inverse Direct Effect and Community Loyalty 345 Thijs Drupsteen 1. Introduction Two Simple Cases Change of Case Law Inverse Direct Effect The Wells Case Concluding Observations EU Regulatory Agencies: What Future do They Have? 355 Jacqueline Dutheil de la Rochere 1. Introduction Agencies in the Institutional Framework The Ambivalent Attitude of the Commission as Regards Regulatory Agencies The Variety of Agencies Established Over Time Failure to Adopt a Common Operative Framework 359

17 Table of Contents xxiii 3. What Future Is There for Regulatory Agencies? Does the Meroni Doctrine Impose the Prohibition of Any Regulatory Powers being Conferred on Agencies? ^ The Example of the European Aviation Safety Agency Conclusion European Court of Justice Forces the Institution's Legal Services to Open Up 367 Herke Kranenborg 1. Introduction Previous Practice with Regard to the Disclosure of Legal Advice The Judgment of the Court of Justice The Assessment to be Made by the Institution The Requirement to State Reasons Application of the Above Principles to the Case of Turco The Approach of the ECJ: More Leaning towards Transparency than the CFI Consequences for the Working Methods of the Commission Legal Service When Does an Opinion of the Commission's Legal Service Relate to the "Legislative Process"? At What Stage Should the Legal Advice be Disclosed? What About "Old" Opinions and the Nature of New Ones? Concluding Remarks When Will the New Emperor Wear his Clothes? The Efforts of the European Union Towards a Common Development Cooperation Policy 379 Nico Schrijver 1. Introduction From the Treaty of Rome through Maastricht to Lisbon: The Legal Basis Part Four of the Treaty of Rome: Maintaining Colonial Relations A Legal Gap Up to The Maastricht Treaty: Filling the Legal Gap Examining the Lisbon Treaty of 2007 on Development Cooperation General Goals of the Common Policies and Actions Specific Goals and Objectives of Development Cooperation 384

18 xxiv Table of Contents 4. The Institutional Structure of the European Union for Development Cooperation Concluding Observations EU Governance: The Practice of EU Decision-Making and Law-Making 391 Hans van den Oosterkamp 1. Introduction Decision-making Procedure The EU Legislative Machinery The European Parliament, the Council, Council Working Groups, COREPER and Co-decision Council Working Groups Complexities Brought by Co-decision Role of COREPER EU governance: State-centric or Multi-level Governance? Conclusion. 399 PartV Academic and Judicial Dialogue From "Direct Effect" to "Muted Dialogue": Recent Developments in the European Courts' Case Law on the WTO And Beyond 403 Marco Bronckers 1. Introduction The Virtual Lack of "Direct Effect" of WTO Law in European Court Litigation The "Indirect" Effect of WTO Law in European Court Litigation Treaty-Consistent Interpretation Muted Dialogue with WTO Tribunals Other Substantiation of EC Law Principles Damage Actions Will WTO Law Remain an Exception Amongst International Agreements? Concluding Remarks European Law as an Academic Discipline: Unity and Fragmentation 417 Bruno de Witte 1. Introduction The Unity Hypothesis 418

19 Table of Contents xxv 3. Fragmentation Through Legal Education? Fragmentation in the Production of Legal Scholarship? National/Linguistic Fragmentation Disciplinary Fragmentation ^ Recent Case Law of the Bundesverfassungsgericht and EC Law: A View from the Outside 429 Richard H. Lauwaars 1. Introduction v The FCC and Community law The Court of Justice and the National Court in Interim Proceedings Telekom Case The Facts The Ruling of the FCC: Fotofrost and Suderdithmarschen Applied Admissibility Not Manifestly Unfounded Balance of Interests Outcome of the Case Between Scylla (Solange) and Charybdis (Suderdithmarschen) Assessment The Contents of the Directive The Implementation as Such Has not Been Impeded An Alternative Interpretation: The Implementation Has Been Impeded Conclusion Ex Boreale Lux: On the Influence of the ECJ on the Interpretation of the ECHR 439 Rick Lawson 1. Introduction ' Beyond Rivalry Interpreting the ECHR in the Light of Community Law: Five Scenarios Taking into Account EU Law as "Law of the Land" Judicial Borrowing: Taking Inspiration from Luxembourg With a Little Help from My Friends Anything You Can Do, I Can Do Better The Sirens' Call Concluding Remarks: ex boreale lux 452

20 xxvi Table of Contents 38. Unilateral Termination and Suspension of Bilateral Agreements Concluded by the EC 455 Marc Maresceau Introduction Denunciation 2.1. The 1980 Cooperation Agreement with Yugoslavia 2.2. The PNR Agreement with the US 2.3. Fisheries Agreements Suspension Conclusion The Dutch Council of State: Constitutional Cases with a European Union Background, 467 Kamiel Mortelmans 1. Introduction The Principle of Loyalty (Bundestreue) Bundesverfassungsgericht The Dutch Council of State RTL Luxembourg Case Housing Benefit Case Conclusion Principle of Occupational Freedom European Court of Justice: Gambelli Bundesverfassungsgericht: Betting Monopoly in Bavaria The Dutch Council of State CFR The Schindler Case Betfair Conclusion Principle of Equality and Reverse Discrimination European Court of Justice: Belgian Care Insurance Scheme Bundesverfassungsgericht: Meisterprufung Case Dutch Council of State: The Dutch Schindler Case Conclusion The Principle of Social Housing The Dutch Council of State: Sint Servatius Case The Belgian Constitutional Court: The Flemish Housing Code Conclusion General Conclusion 481

KLUWER LAW INTERNATIONAL. Views of European Law from the Mountain. Liber Amicorum Piet Jan Slot. Edited by

KLUWER LAW INTERNATIONAL. Views of European Law from the Mountain. Liber Amicorum Piet Jan Slot. Edited by KLUWER LAW INTERNATIONAL Views of European Law from the Mountain Liber Amicorum Piet Jan Slot Edited by M. Bulterman L. Hancher A. McDonnell and H. Sevenster ^). Wolters Kluwer Law & Business AUSTIN BOSTON