Wyatt and Dashwood's European Union Law

Transcription

1 Wyatt and Dashwood's European Union Law Alan Dashwood, Michael Dougan, Barry Rodger, Eleanor Spaventa and Derrick Wyatt HART- PUBLISHING OXFORD AND PORTLAND, OREGON 2011

2 Contents Preface Table of Cases Table of Legislation v xxi xcv PART I: INTRODUCTION 1 1 From the Founding Treaties to the Treaty of Lisbon 3 I THE SCHUMAN PLAN AND THE ESTABLISHMENT OF THE ECSC 3 II THE EDC AND THE EPC: A FALSE DAWN 5 III THE SPAAK REPORT AND THE TWO TREATIES OF ROME 7 IV A SINGLE SET OF INSTITUTIONS 8 V ENLARGEMENT FROM SIX TO FIFTEEN 9 VI AMENDMENT AND DEVELOPMENT OF THE FOUNDING TREATIES UP TO A The Budgetary Treaties of 1970 and B Own Resources Decisions 12 C A Directly Elected European Parliament 12 D The Single European Act 12 E The Treaty on European Union 13 F The Treaty of Amsterdam 15 G The Treaty of Nice 16 VII ENLARGEMENT FROM 15 TO 27 (PLUS...) 16 VIII TREATY REFORM SINCE 2004: FROM THE CONSTITUTIONAL TREATY TO THE TREATY OF LISBON 18 A The Treaty Establishing a Constitution for Europe 18 B The Treaty of Lisbon 19 C Yet Further Treaty Reform An Overview of the Union's Primary Law 23 I INTRODUCTION 23 II THE TREATY ON EUROPEAN UNION 24 A Title I: Common Provisions 24 B Title II: Provisions on Democratic Principles 26 C Title III: Provisions on the Institutions 26 D Title IV: Provisions on Enhanced Co-operation 27 E Title V: General Provisions on the Unions External Action and Specific Provisions on the Common Foreign and Security Policy 27 F Title VI: Final Provisions 28 III THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION 30 IV THE RELATIONSHIP BETWEEN TEU AND TFEU 33 V OTHER WRITTEN SOURCES OF PRIMARY LAW 34 VI UNWRITTEN SOURCES OF PRIMARY LAW 36 vii

3 viii Contents PART II: INSTITUTIONAL FUNDAMENTALS 41 3 The Institutions of the European Union ^ I ARTICLE 13 TEU 43 II THE EUROPEAN COUNCIL ^ III THE COUNCIL 51 IV THE COMMISSION V A NOTE ON THE HIGH REPRESENTATIVE OF THE UNION FOR ^ FOREIGN AFFAIRS AND SECURITY POLICY ^ VI THE EUROPEAN PARLIAMENT VII THE COURT OF JUSTICE OF THE EUROPEAN UNION VIII SOME CONCLUDING REMARKS: ON THE UNION'S 'INTER- ^ INSTITUTIONAL BALANCE' 4 The Union's Decision-making Procedures I A NEW DISTINCTION BETWEEN LEGISLATIVE AND NON-LEGISLATIVb ^ ACTS 71 II ADOPTION OF LEGISLATIVE ACTS 72 A Initiation of Legislative Procedures 73 B Ordinary Legislative Procedure 77 C Special Legislative Procedures 80 D Passerelle Clauses 82 E Emergency Brakes, III ADOPTION OF NON-LEGISLATIVE ACTS 83 A Non-legislative Acts Adopted Directly Under the Treaties g6 B Non-legislative Acts Adopted as Delegated Acts 87 C Non-legislative Acts Adopted as Implementing Acts IV SOME FURTHER ISSUES CONCERNING DECISION-MAKING ^ INTERACTION BETWEEN THE UNION INSTITUTIONS 91 A The Commission's Right to Alter or Withdraw Its Proposal ^ B The Council's Power of Amendment 94 C The European Parliament's Participation, V SOME CONCLUDING REMARKS 5 The System of Union Competences 97 I THE FUNDAMENTAL PRINCIPLES OF UNION COMPETENCE IN ARTICLES 4 AND 5 TEU II THE PRINCIPLE OF CONFERRAL g9 A Establishing the Existence of Union Competence o 9 B Establishing the Nature of Union Competence ]05 C The Problem of'competence Creep' nl D The Problem of 'Legal Basis Disputes' HI THE PRINCIPLE OF SUBSIDIARITY l \\ A The Meaning(s) of Subsidiarity *, B Implementing Subsidiarity: The Role of the Union's Political Institutions ll C Implementing Subsidiarity: The Role of the Union Courts D Implementing Subsidiarity: The Role of the National Parliaments g U IV THE PRINCIPLE OF PROPORTIONALITY 39 l22

4 Contents ix V FLEXIBILITY 124 A Primary Flexibility: The Opt-out Provisions 125 B Secondary Flexibility: Enhanced Co-operation 127 VI SOME CONCLUDING REMARKS Direct Actions Before the Union Courts 135 I INFRINGEMENT ACTIONS AGAINST MEMBER STATES 135 A Introduction 135 B Procedure 137 C Substantive Issues in Infringement Proceedings 143 D Fines and Penalty Payments 149 II THE ACTION FOR ANNULMENT 153 A Introduction 153 B The Time Limit 155 C Acts Susceptible of Judicial Review 156 D Standing of Privileged and Semi-privileged Applicants 160 E Standing of Non-privileged Applicants 162 F Grounds of Review 177 G The Effects of Annulment 180 III THE ACTION FOR FAILURE TO ACT 182 A Introduction 182 B No Set Time Limit 183 C Failures to Act that May Be Challenged 183 D Standing 185 E Taking a Position 187 F The Effect of a Finding of Failure to Act 189 IV THE ACTION FOR DAMAGES 189 A Introduction 189 B 'Traditional' Case Law and the Schoppenstedt Formula 191 C The Case Law after Bergaderm 195 D Concurrent Liability of the Union and the Member States 198 E Damage and Causation 198 F Limitation 199 V THE PLEA OF ILLEGALITY AND NON-EXISTENCE OF AN ACT 200 VI INTERIM MEASURES 203 VII CONCLUDING REMARKS References for Preliminary Rulings 209 I GENERAL ISSUES 209 II QUESTIONS THAT MAY BE REFERRED 211 III COURTS AND TRIBUNALS OF THE MEMBER STATES 214 IV THE RELATIONSHIP BETWEEN THE COURT OF JUSTICE AND THE REFERRING COURT 216 V REFERRAL: DISCRETION OR DUTY? 218 A The Discretion Conferred by Article 267(2) TFEU 218 B Mandatory References 222 C References on Validity 225 VI EFFECTS OF THE RULING BY THE COURT OF JUSTICE 228 VII CONCLUDING REMARKS 230

5 x Contents PART III: CONSTITUTIONAL FUNDAMENTALS The Direct Effect and Supremacy of Union Law 235 I INTRODUCTION: THE SYSTEM OF DECENTRALISED ENFORCEMENT 235 II THE DUTY OF CONSISTENT INTERPRETATION III THE PRINCIPLE OF DIRECT EFFECT 244 A The Threshold Criteria for Direct Effect ^ B Who May Rely on Directly Effective Union Law? 248 C Against Whom May Directive Effective Union Law Be Enforced? 252 IV THE PRINCIPLE OF SUPREMACY V THE RELATIONSHIP BETWEEN DIRECT EFFECT AND SUPREMACY 278 VI CONCLUDING REMARKS m 9 Judicial Protection of Union Rights before the National Courts 287 I INTRODUCTION II THE FUNDAMENTAL RIGHT TO JUDICIAL PROCESS 289 III THE PRINCIPLE OF EQUIVALENCE IV THE PRINCIPLE OF EFFECTIVENESS ^ A The Courts Early Period: Until the Mid-1980s l B The Courts Middle Period: Until 1993 L. C The Courts Most Recent Period: Since (13 V ACTIONS BASED DIRECTLY UPON UNION LAW ^ A The Right to Interim Relief 305 B The Right to the Recovery of Unlawfully Levied Charges? C The Francovich Right to Reparation,.4 D A Private Law Right to Damages? VI UNION LEGISLATION CONCERNING REMEDIES AND PROCEDURAL RULES 3 VII CONCLUDING REMARKS General Principles of Union Law I II FUNCTION AND SOURCES OF GENERAL PRINCIPLES THE GENERAL PRINCIPLE OF SINCERE OR LOYAL CO-OPERATION III SUBSIDIARITY AS A GENERAL PRINCIPLE IV PROPORTIONALITY ^ A The Principle of Proportionality as a Limit to the Actions of the Institutions B The Principle of Proportionality as a Limit to Member States Actions V LEGAL CERTAINTY AND LEGITIMATE EXPECTATION 3 VI THE PRINCIPLE OF NON-DISCRIMINATION VII OTHER GENERAL PRINCIPLES 11 Fundamental Rights I II III EVOLUTION OF THE CONCEPT THE RESPONSE OF THE POLITICAL INSTITUTIONS A From the 1977 Political Declaration to the Nice Treaty... B The Treaty of Lisbon 34 THE SCOPE OF APPLICATION OF FUNDAMENTAL RIGHTS A Fundamental Rights as a Limit to the Acts of the Institutions (1 m W j 3 f 3

6 Contents xi B Fundamental rights and Member States' Implementing Powers 344 C Member States Acting within the Scope of Union law 346 D The Institutional Structure of the Union and Fundamental Rights 351 E Relationship between the European Union and the European Convention of Human Rights The Charter of Fundamental Rights 359 I BACKGROUND TO THE DRAFTING OF THE CHARTER 359 II THE CHARTER: STRUCTURE AND SUBSTANTIVE PROVISIONS 361 A Structure of the Charter 361 B Preamble 362 C Substantive Provisions 363 III THE HORIZONTAL PROVISIONS: INTERPRETATION AND SCOPE OF APPLICATION OF THE CHARTER 382 A Article 51: The Charters Field of Application 382 B Article 52: Scope of the Charter's Provisions 383 C Article 53: Level of Protection 385 D Article 54: Abuse of Rights 385 IV THE UK AND POLISH PROTOCOL 386 PART IV: THE INTERNAL MARKET Fiscal Barriers to the Free Movement of Goods 391 I THE FREE MOVEMENT OF GOODS 391 A Customs Union and Charges Having Equivalent Effect 392 B Customs Duties and Charges Having Equivalent Effect 393 C Charges Falling Outside the Scope of Article 30 TFEU: Services Provided to the Importer and EU Law Obligations 394 II PROHIBITION ON DISCRIMINATORY INTERNAL TAXATION 395 A Discriminatory Taxation: Article 110(1) TFEU 396 B Protectionist Taxation: Article 110(2) TFEU 399 C The Importance of a Comparator 401 III THE RELATIONSHIP BETWEEN ARTICLES 30 AND 110 TFEU 401 IV THE RELATIONSHIP BETWEEN ARTICLES 30 AND 110 TFEU AND OTHER PROVISIONS OF THE TREATY 403 V DISCRIMINATORY TAX TREATMENT OF EXPORTS 404 VI THE COMMON CUSTOMS TARIFF AND EXTERNAL RELATIONS The Free Movement of Goods: Quantitative Restrictions and Measures Having Equivalent Effect 407 I INTRODUCTION 408 II QUANTITATIVE RESTRICTIONS ON IMPORTS AND EXPORTS 408 III MEASURES HAVING EQUIVALENT EFFECT TO QUANTITATIVE RESTRICTIONS ON IMPORTS 409 A The Inception of the Court's Case Law: Dassonville and Cassis de Dijon 409 B The Application of the Cassis Ruling 413 C The Sunday Trading Saga 415 D The Keck and Mithouard Judgment 418 E The Case Law after the Keck Judgment 422 F The Member States' Positive Duties 430

7 xii Contents G The Cross-border Element and Reverse Discrimination 431 IV MEASURES HAVING EQUIVALENT EFFECT TO QUANTITATIVE RESRICTIONS ON EXPORTS 4S V GENERAL REMARKS ABOUT ARTICLES 34 AND 35 TFEU W VI DEROGATION FROM ARTICLES 34 AND 35 TFEU A Grounds of Derogation * 3 B Burden of Proof Lies with the National Authorities * C The Effect of Harmonisation Directives and Other EU Measures on Recourse to Article 36 TFEU tt VII MANDATORY REQUIREMENTS IN THE GENERAL INTEREST «' A Mandatory Requirements * B The Principle of Proportionality VIII THE RELATIONSHIP BETWEEN ARTICLES TFEU AND OTHER PROVISIONS OF THE TREATY W IX ARTICLE 37 TFEU: STATE MONOPOLIES OF A COMMERCIAL CHARACTER * X ARTICLES TFEU AND INTELLECTUAL PROPERTY RIGHTS * A Intellectual Property and the Internal Market B A Distinction between the Existence and Exercise of Intellectual Property Rights & C Free Movement of Goods: The Exhaustion of Rights Principle D Exhaustion of Patent Rights.«E Exhaustion of Trade Mark Rights 45? XI CONCLUDING REMARKS 15 Union Citizenship and the Rights to Move and Reside in the European Union 461 I THE ROAD TO CITIZENSHIP 463 II THE EVOLUTION OF THE CASE LAW ON UNION CITIZENSHIP III THE RESIDENCE DIRECTIVE ^ A The Personal Scope of Directive 2004/38 B The Material Scope of the Directive: Right to Enter, Exit and Temporary ^ Residence C The Material Scope of the Directive: Right of Residence for more than Three ^ Months,- D Administrative Formalities 0 E Right of Permanent Residence $\ F Rights of Residents and Permanent Residents G Derogations on the Right of Entry and Residence on the Grounds of PuW lc ^ Policy, Public Security and Public Health 0 H Abuse of Rights IV OTHER RIGHTS PERTAINING TO EU CITIZENS $ A Right to Equal Treatment, Right to Move and Beyond 49; B Political Rights and Rights to Good Administration 49 '- I INTRODUCTION II THE AMBIT OF ARTICLE 45 TFEU 5J A The Cross-border Element 5(!1 B Vertical, Semi-horizontal and Horizontal Effect 50: B Territorial Application 16 Freedom of Movement for Workers 4ii

8 Contents xiii III THE PERSONAL SCOPE OF APPLICATION OF ARTICLE 45 TFEU: THE CONCEPT OF 'WORKER' 503 A The Definition of Worker 503 B Retention of Status of Worker 505 C Work-seekers 506 IV THE MATERIAL SCOPE OF ARTICLE 45 TFEU: ACCESS TO EMPLOYMENT AND EQUAL TREATMENT 508 A Right to Move and Reside in Member States 508 B The Right to Equal Treatment 509 C Equality in the Employment Context and Beyond 514 D Equality in Social and Tax Advantages 517 V THE MATERIAL SCOPE OF ARTICLE 45 TFEU: NON-DISCRIMINATORY RESTRICTIONS 520 VI THE WORKER'S FAMILY 525 A Right to Education 525 B Tax and Social Advantages 527 VII THE TRANSITIONAL ARRANGEMENT FOR THE NEW MEMBER STATES The Right of Establishment and the Freedom to Provide Services 531 I ESTABLISHMENT AND SERVICES 532 A Meaning of the Right of Establishment and Freedom to Provide Services 532 II THE SCOPE OF THE PRESENT CHAPTER 534 III THE RIGHT OF ESTABLISHMENT 534 A General Scope 534 B Evolution of the Court's Case Law on the Interpretation of Article 49 TFEU 535 C Abolition of Restrictions on the Right of Establishment 541 D Effect of the Direct Applicability of Article 49 TFEU on Harmonisation 543 E Direct and Indirect Discrimination on Grounds of Nationality 545 F Relationship between Article 18 TFEU and Articles 49 and 56 TFEU 547 G Non-discriminatory Restrictions on the Right of Establishment 547 H Parallel Interpretation of Articles 45, 49 and 56 TFEU and Horizontal Effect 552 IV FREEDOM TO PROVIDE SERVICES 554 A General Scope 554 B National Measures Affecting both Free Movement of Goods (Article 34 TFEU) and Freedom to Provide Services (Article 56 TFEU) 558 C Abolition of Discriminatory Restrictions: The General Programme and Secondary Legislation 558 D Effect of the Direct Applicability of Article 56 TFEU on Harmonisation 559 E Prohibition of Restrictions on Freedom to Provide Services: Evolution of the Court's Case Law 559 F Prohibition of Non-discriminatory Restrictions on Freedom to Provide Services 565 V ESTABLISHMENT AND SERVICES: NATIONAL MEASURES TO PREVENT CIRCUMVENTION, AND DEROGATION ON EXPRESS OR IMPLIED GROUNDS 567 A National Measures to prevent Circumvention of National Rules in the Context of the Right of Establishment and Freedom to Provide Services 567 B Articles 51 TFEU and 62 TFEU: Exception for Activities connected with the Exercise of Official Authority 568 C Articles 52 TFEU and 62 TFEU: The Public Policy Proviso 571 D Imperative Requirements in the General Interest 573 VI NATIONAL TAX MEASURES AS RESTRICTIONS ON FUNDAMENTAL FREEDOMS 581

9 xiv Contents A The Normal Principles Apply but Account is Taken of the Particular Features of Tax Law 581 B For Tax Purposes Residence and the Location of a Company's Seat Are Legitimate Connecting Factors but National Rules which Differentiate on these Grounds may Be Held to Be Discriminatory 582 C Tax Measures which Discriminate against Non-residents May Amount to Restrictions on the Right of Establishment 584 D Discrimination against Non-resident Parent Companies in their Dealings with Resident Subsidiaries 585 E National Tax Rules which Inhibit Individuals and Companies Established in a Member State from Extending their Activities to Another Member State 588 F Possible Justifications for National Tax Rules which Restrict the Exercise of Fundamental Freedoms 589 VII CONCLUDING REMARKS The Directive on Services in the Internal Market I GENERAL 599 II SERVICES COVERED BY THE DIRECTIVE III 'REQUIREMENTS' 601 IV FREEDOM OF ESTABLISHMENT FOR PROVIDERS A General 602 B Authorisations 602 C Prohibited Requirements 604 D Requirements which Must Be Amended if They Cannot Be Justified 604 V THE FREE MOVEMENT OF SERVICES 605 A General 605 B Freedom for Providers to Provide Services 605 C Additional Derogations from the Freedom of Providers to Provide Services 607 D Case-by-case Derogations from the Freedom of Providers to Provide Services 607 E Rights of Recipients of Services 607 VI QUALITY OF SERVICES 609 A Information from Providers 609 B Professional Liability Insurance and Guarantees 610 C Advertising and Other Forms of Commercial Communications by the Regulated Professions 610 VII ADMINISTRATIVE CO-OPERATION A General 611 B The Division of Supervisory Tasks 611 C Mutual Assistance: General Obligations 612 D Checks, Inspections and the Supply of Information by the Member State of Establishment 612 E Checks, Inspections and the Supply of Information by the Member State where the Service is provided 613 F Information on the Good Repute of Providers 613 G Mutual Assistance in the Event of Case-by-case Derogations 614 H Internal Market Information System 615 VIII ADMINISTRATIVE SIMPLIFICATION 616 A Simplification of Procedures 616 B Points of Single Contact: 'One-stop Shops' 617 C Procedures by Electronic Means 619 IX MUTUAL EVALUATION 619 X SOME PROVISIONS OF THE DIRECTIVE COVER INTERNAL AS WELL AS CROSS-BORDER SITUATIONS U

10 Contents XV XI THE DIRECTIVE EXCLUDES CERTAIN JUSTIFICATIONS WHICH WOULD OTHERWISE BE AVAILABLE 622 XII CONCLUDING REMARKS: ASSESSMENT OF THE SERVICES DIRECTIVE Mutual Recognition of Diplomas, Training and Experience, and the Co-ordination of National Qualifications 625 I DIRECT APPLICABILITY OF ARTICLES 49 AND 56 TFEU (AND ARTICLE 45 TFEU) 626 A The Principles Applicable Where No Relevant Harmonisation Directives Have Been Adopted 626 B The Principles Applicable in the Absence of Harmonisation Directives Are Also Applicable after Harmonisation to Situations Not Covered by Relevant Directives 627 C A National Requirement that a Person Possess a Particular Qualification in Order to Carry on a Particular Occupational Activity is in Itself a Restriction on a Fundamental Freedom which Must Be Justified 628 II MUTUAL RECOGNITION OF DIPLOMAS AND THE CO-ORDINATION OF NATIONAL QUALIFICATIONS BY EU RULES 630 A Introduction 630 B Freedom of Establishment: Recognition on the Basis of Co-ordination of Minimum Training Conditions Chapter III of Title III of the PQ Directive 631 C Freedom of Establishment: Recognition of Professional Experience Chapter II of Title III of the PQ Directive 631 D Freedom of Establishment: The General System Chapter I of Title III of the PQ Directive 632 E Freedom to Provide Services: Pursuit of Activities under Home-Country title Title II of the PQ Directive 634 F Right of Establishment under 'Home-country' Professional Title? 637 G Other Specific Arrangements for a Given Regulated Profession 638 III LAWYERS: FREEDOM TO PROVIDE SERVICES 639 IV LAWYERS: RIGHT OF ESTABLISHMENT 640 V CONCLUDING REMARKS Corporate Establishment, Cross-border Acquisitions and Golden Shares 647 I CORPORATE ESTABLISHMENT 647 A General 647 B Right of Primary and Secondary Establishment of Companies 649 C Parent Company May Implement a Uniform Advertising Concept at EU level through its Subsidiaries in Other Member States 658 D National Rules Making it More difficult for Subsidiaries to Compete with Existing Market Operators Hinder their Market Access and Must be Justified 659 E Harmonisation at EU Level to Achieve Freedom of Establishment 659 F Mergers and Acquisitions as Aspects of Freedom of Establishment 660 II CROSS-BORDER ACQUISITIONS 661 A Free Movement of Capital 661 B Meaning of 'Capital Movement': 'Direct Investment' and 'Portfolio Investment 662 C D Cross-border Acquisitions Involve both the Free Movement of Capital and the Right of Establishment 663 National Rules on Surveillance and Control of Cross-border Investments and the Free Movement of Capital 663

11 xvi Contents E Restrictions on Capital Movement Arising from 'Special Shares* or 'Golden 664 Shares' III CAN THE CORPORATE CONSTITUTION AND PRIVATE ACTION TAKEN PURSUANT TO IT AMOUNT TO RESTRICTIONS ON FUNDAMENTAL FREEDOMS? 67 A State Action Derogating from the Normal Rules of Company Law: Only Actions External to the Market Can Place Restrictions Upon It 670 B Actions of Private Operators under Private Law May Amount to Restrictions on Fundamental Freedoms " 673 IV CONCLUDING REMARKS 21 Company Law Harmonisation I COMPANY LAW HARMONISATION WAS DESIGNED TO PROMOTE FREEDOM OF ESTABLISHMENT 677 II OBSTACLES TO ESTABLISHMENT ADDRESSED BY COMPANY LAW HARMONISATION 679 A Summary B Psychological Obstacles to Dealing with Foreign Companies, Unfamiliarity with Regimes Applicable to Foreign Companies, and Promoting Legal Certainty679 C Differences between National Rules which Unless Harmonised Would Require Compliance with Further Requirements by Virtue of Establishment in Another Member State D National Rules or Practices which (Whether or Not they Vary from State to State) Inhibit Cross-border Establishment 68 III HAS COMPANY LAW HARMONISATION MADE AN EFFECTIVE CONTRIBUTION TO THE INTERNAL MARKET? f 4 A An Open Question 6b B Claims to Promote Cross-border Activity Have Not Always Been Made Good: The Example of EEIGs 6 Z. C The Need for Empiricism: Evaluation and Feedback on European legislation 687 IV IMPROVING COMPETITIVENESS THROUGH COMPANY LAW HARMONISATION 688 A The Evolution of Law and Policy 6!z B Reports of the High Level Group of Company Law Experts C The Commission's Response: Modernising Company Law and Enhancing Corporate Governance in the European Union V IS THE PROMISE OF MORE EMPIRICAL AND MORE PRO-COMPETITIVE EUROPEAN LEGISLATION BEING REALISED? f A Two Recent Initiatives B The European Company Statute. C Directive 2004/25/EC on Takeover Bids VI CONCLUDING REMARKS 70 PART V: COMPETITION LAW 22 Introduction to EU Competition Law I EU COMPETITION LAW SOURCES A The Principal Treaty Provisions B Other Sources of EU Competition Law II COMPETITION LAW AND POLICY IN AN EU CONTEXT A The Early Focus Upon the Market O O9 70

12 Contents xvii B Post-'Lisbon" Modernisation: Competitiveness, Consumer Welfare and Efficiency 711 III THE SCOPE OF THE EU COMPETITION RULES 713 A 'Personal' Scope 713 B Material Scope 718 C Territorial Scope 718 IV COMPETITION LAW IN AN INTERNATIONAL CONTEXT 722 A Co-operation Agreements 722 B Developments Towards Global Regulation or Co-operation 724 V CONCLUDING REMARKS Article 101: Cartels and Anti-competitive Agreements 729 I INTRODUCTION: RATIONALE AND PURPOSE 729 II UNDERTAKINGS AND CONCURRENCE OF WILLS 731 III FORMS OF CO-OPERATION 734 A Decisions of Associations of Undertakings 734 B Agreements between Undertakings 735 C Concerted Practices 735 IV RESTRICTING COMPETITION 741 A 'By Object' Restrictions 742 B 'By Effect' Restrictions 744 C Information Exchange 750 D Appreciable Effects on Competition and on Trade between Member States 752 V THE LEGAL EXCEPTION UNDER ARTICLE 101(3) 754 A Efficiency Gains 756 B Benefit to Consumers 758 C No Restrictions That Are Not Indispensable 758 D No Possibility of Eliminating Competition 759 E Block Exemptions 760 VI CONCLUDING REMARKS Abuse of Dominance: Article I INTRODUCTION: THE PURPOSE OF ARTICLE II ESTABLISHING THE RELEVANT MARKET 768 A The Relevant Product or Service Market 768 B The Geographic Market 773 C The Temporal Market 775 III DOMINANCE 775 A Market Shares 776 B Barriers to Market Entry or Expansion by Rivals 777 C Conduct and Performance of the Undertaking 778 IV THE CONCEPT OF JOINT OR COLLECTIVE DOMINANCE 779 V THE CONCEPT OF AN ABUSE 781 A Recurring Conceptual Issues 782 B Commission Guidance on Enforcement Priorities C Types of Abuse 786 VI CONCLUDING REMARKS Enforcement of Articles 101 and I INTRODUCTION 809

13 xviii Contents II REGULATION 1/2003 AND EU COMPETITION LAW ENFORCEMENT 810 A The Commission's Powers 811 B The National Competition Authorities 812 C The ECN in Operation 812 III THE CONDUCT OF PROCEEDINGS BY THE COMMISSION 814 A Information and Evidence 815 B The Right to a Hearing 820 C Final Decision 823 IV PUBLIC ENFORCEMENT: FINES A Calculating Fines: The 2006 Guidelines Notice 827 B Rights of the Defence, Fundamental Rights Protection and the Commission's Enforcement Processes: The Future 832 C Uncovering Cartels: Leniency Incentives 833 D Settlements 836 V PRIVATE ENFORCEMENT: REMEDIES BEFORE NATIONAL COURTS 838 A Regulation 1/2003: Facilitating Private Enforcement? 838 B Crehan v Courage and an EU-based Remedy for Private Parties? 840 C Commission Reform Proposals 842 VI CONCLUDING REMARKS 26 State Aid and State Regulation I II INTRODUCTION: STATE AID AND THE MODERNISATION AGENDA THE STRUCTURE OF ARTICLE 107 TFEU III DEFINING STATE AID: THE CONDITIONS OF ARTICLE 107(1) A Intervention by the State or Through State Resources B Liable to Affect Trade between Member States C Conferring an Advantage on the Recipient D Distortion of Competition IV JUSTIFICATIONS FOR AID: MANDATORY EXCEPTIONS UNDER ARTICLE 107(2) 857 V DISCRETIONARY EXCEPTIONS UNDER ARTICLE 107(3) VI ARTICLE 107 AND SERVICES OF GENERAL ECONOMIC INTEREST A Aid or Compensation B Article 106(2) after Altmark C Legislation Post-AftmarA: in Relation to SGEIs VII ENFORCEMENT OF STATE AID RULES: THE LEGISLATIVE MACHINERY & 6 A Notified Aid 867 B Unlawful Aid 868 C Misuse of Aid 87 D Existing Aids 871 VIII RIGHTS OF INTERESTED PARTIES IX X XI THE ROLE OF NATIONAL COURTS INTRODUCTION TO ARTICLE 106 TFEU ARTICLE 106(1): THE RESPONSIBILITY OF MEMBER STATES A The Categories of Undertaking in Article 106(1) B The Scope of the Obligation Imposed on Member States under Article 106(1) XII ARTICLE 106(2): ENTRUSTED UNDERTAKINGS AND FISCAL MONOPOLIES 884 A The Categories of Undertaking in Article 106(2) 88^ B Application of the Conditions in Article 106(2) M ( j 85^ ] ^ 8. 88

14 Contents xix C The Proviso to Article 106(2) 888 D Direct Effect of Article 106(2) 889 E Article 106(3): The Supervisory and Legislative Competence of the Commission889 XIII NATIONAL LEGISLATION AND ARTICLE A Requiring or Favouring Anti-competitive Agreements, or Reinforcing their Effects 891 B Legislation Deprived of its State Character by Delegation 892 XIV CONCLUDING REMARKS 893 PART VI: EXTERNAL RELATIONS External Action 899 I THE CONSTUTIONAL FRAMEWORK 899 A External Action Under the New Treaty Structure 899 B Part Five of the TFEU 900 C The High Representative of the Union for Foreign Affairs and Security Policy 902 D The General Treaty Provisions on the Union's External Action 903 E Continuing Particularity of the CFSP 905 F The Interface Between CFSP Competence and TFEU External Competences 907 II EXPRESS AND IMPLIED EU EXTERNAL COMPETENCE 909 A Two Fundamental Questions 909 B The Pre-Lisbon Case Law on Implied External Competence 909 B Article 216(1) TFEU 918 C Summing Up: The TL's Answer to the Existence Question 922 III EXCLUSIVE EU EXTERNAL COMPETENCE 922 A Exclusive External Competence Post-Lisbon 922 B Article 3(2) TFEU and the Case Law on Supervening External Exclusivity 923 C Article 3 (2) and Other Provisions of the Treaties 931 D Lawful Member State Action in Areas of Exclusive EU Competence 932 IV SHARED COMPETENCE AND THE DUTY OF CLOSE CO-OPERATION 933 V THE PROCEDURAL CODE IN ARTICLE 218 TFEU 936 VI MIXED AGREEMENTS 939 VII THE COMMON COMMERCIAL POLICY 941 A Introduction 941 B Scope of the CCP 943 C Procedure 949 D Summing Up on the CCP 950 VIII CONCLUDING REMARKS The Legal Effects of International Agreements 953 I THE DIRECT EFFECT OF INTERNATIONAL AGREEMENTS CONCLUDED BY THE EU 953 II LIMITED LEGAL EFFECTS FOR THE GATT 1947 AND WTO AGREEMENTS 956 III REVIEW OF EU MEASURES ON THE BASIS OF DIRECTLY EFFECTIVE INTERNATIONAL AGREEMENTS 958 IV THE NAKAJIMA EXCEPTION: REVIEW OF EU MEASURES ON THE BASIS OF NON-DIRECTLY EFFECTIVE INTERNATIONAL AGREEMENTS 961 V EXTENSION OF THE NAKAJIMA EXCEPTION TO THE REVIEW OF EU MEASURES ON THE BASIS OF CUSTOMARY INTERNATIONAL LAW 963

15 xx Contents VI INTERPRETATION OF EU MEASURES IN LIGHT OF INTERNATIONAL AGREEMENTS AND CUSTOMARY INTERNATIONAL LAW 964 VII NATIONAL COURTS MUST INTERPRET NATIONAL LAW IN LIGHT OF NON-DIRECTLY EFFECTIVE PROVISIONS OF INTERNATIONAL AGREEMENTS BINDING ON THE EU 965 VIII THE JURISDICTION OF THE COURT OF JUSTICE TO INTERPRET MIXED AGREEMENTS 966 IX CONCLUDING REMARKS 967 Index 969