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? 1.8.1 The economic objective 1.8.2 The common market 1.8.3 Market integration and political stability 1.9 The role of EU law 1.10 The UK and the EU 1.10.1 The European Union Act 2011 1.11 Summary PART 2: INSTITUTIONAL STRUCTURE AND LAW MAKING Chapter 2: The Institutions of the EU 2.1 Introduction 2.2 The European Commission 2.2.1 What is the Commission? 2.2.2 Appointment of the Commission 2.2.3 What does the Commission do? 2.2.3.1 Proposing new legislation 2.2.3.2 Implementing EU policies and the budget 2.2.3.3 Enforcing European law 2.2.4 How is the Commission s work organised? 2.2.5 Accountability of the Commission 2.3 The Council 2.3.1 What does the Council do? 2.3.2 How is the Council s work organised? 2.3.3 How are Council decisions made? i
2.3.4 The European Council 2.4 The European Parliament 2.4.1 How is Parliament s work organised? 2.4.2 The history of the European Parliament 2.4.3 A democratic deficit? 2.5 The Court of Justice of the European Union 2.5.1 The General Court and the Civil Service Tribunal 2.5.2 What does the Court of Justice do? 2.6 Other EU institutions 2.6.1 Court of Auditors 2.6.2 The European Central Bank (ECB) 2.7 Advisory bodies and agencies of the EU 2.7.1 European Economic and Social Committee 2.7.2 Committee of the Regions 2.7.3 The Office for Harmonisation in the Internal Market (OHIM) 2.7.4 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 3.4.1 The consultation procedure 3.4.2 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 4.11.1 Subsidiarity and proportionality 4.11.2 Legal certainty 4.11.3 Equality ii
4.11.4 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 5.3.1 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 2011 5.9 Summary Chapter 6: Using EU Law Before National Courts 6.1 Introduction 6.2 Binding obligations and direct applicability 6.2.1 Direct applicability and Directives 6.3 The concept of direct effect 6.4 The general test for direct effect 6.4.1 Clear and precise 6.4.2 Unconditional 6.4.3 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 6.8.1 The policy reasoning 6.8.2 The deadline for implementation 6.8.3 Vertical direct effect only 6.8.4 What is a state body? 6.8.5 The rule against horizontal direct effect for Directives: some limited flexibility 6.8.5.1 The triangular horizontal direct effect 6.8.5.2 Incidental horizontal effect 6.8.5.3 Horizontal effect to secure the effectiveness of a general principle of EU law 6.9 Indirect effect: the interpretation obligation 6.9.1 The Marleasing extension 6.10 State liability 6.10.1 State liability: reasoning and perspectives 6.10.2 The scope of the state liability principle 6.10.3 The requirement of a sufficiently serious breach 6.10.4 State liability resulting from the action of a Supreme Court 6.10.5 State liability following a breach by the judiciary: practical difficulties 6.11 Jurisdiction in civil and commercial disputes 6.11.1 The general operation of the original and recast BR I 6.11.2 Problems with the original BR I iii
6.11.2.1 The court first seized principle and Italian torpedoes 6.11.2.2 The arbitration exception 6.11.2.3 The forum non conveniens principle 6.11.2.4 Enforcement: exequatur proceedings 6.11.3 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 7.3.1 Informal discussions 7.3.1.1 EU Pilot 7.3.1.2 CHAP 7.3.1.3 SOLVIT 7.3.2 Letter of formal notice 7.3.3 The reasoned opinion 7.4 The judicial stage 7.5 Interim measures in infringement proceedings 7.6 Actions by Member States 7.7 Remedies 7.7.1 Financial penalties under Art 260(2) TFEU 7.7.2 Calculating the financial penalty 7.7.3 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 8.3.1 Form and content 8.3.2 Artificial disputes and hypothetical questions 8.4 Who can refer questions? 8.4.1 Can arbitrators make a reference? 8.5 The discretion to refer: Art 267(2) 8.6 The obligation to refer: Art 267(3) 8.6.1 The courts within the scope of Art 267(3) 8.6.2 The obligation to refer under Art 267(3) 8.6.3 The significance of CILFIT 8.6.4 State liability and Art 267(3) 8.7 Questions concerning validity 8.8 Procedure before the Court of Justice 8.8.1 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
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 9.3.1 Direct concern 9.3.2 Individual concern 9.3.3 Reform of Art 263: regulatory acts 9.3.3.1 The meaning of the term regulatory act 9.4 Grounds for review 9.4.1 Lack of competence 9.4.2 Infringement of an essential procedural requirement 9.4.3 Infringement of the Treaty or of a rule of law relating to its application 9.4.4 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 11.3.1 Where there is no protectionism or fiscal motive behind the charge 11.3.2 Where the charge is a fee for an inspection 11.3.3 A fee for a service 11.4 Discriminatory taxation 11.4.1 Indirect discrimination 11.4.2 Similar domestic products 11.5 Protective taxation 11.5.1 A genuine (lawful) tax 11.6 A charge equivalent to a customs duty or a discriminatory tax? 11.6.1 The charge is for the exclusive benefit of the domestic producers 11.6.2 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
11.7.1 Direct effect 11.7.2 Where the cost of the unlawful charge is passed on 11.7.3 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? 12.2.1 Public bodies and semi-public bodies 12.2.2 Member State responsibility for private restrictions 12.2.3 The limited horizontal application of Art 34 12.2.4 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 12.5.1 Measures that favour direct imports over indirect imports 12.5.2 National measures encouraging discrimination 12.5.3 Administrative practices 12.5.4 Origin labelling 12.5.5 Import and export restrictions 12.5.6 Minimum and maximum prices 12.6 Indistinctly applicable measures 12.6.1 The significance and reasoning of the Cassis ruling 12.6.2 The application of the Cassis approach 12.6.3 Need to refine the Cassis approach 12.6.4 The Keck refinement 12.6.5 The application of Keck: Selling arrangements 12.6.6 Other rules impeding market access 12.6.7 The significance of Commission v Italy and Mickelsson 12.6.8 Summary of the types of measure in breach of Art 34 12.6.9 Indistinctly applicable measures and Art 35 on exports 12.7 Justification of a breach: public interest reasons and Art 36 12.7.1 Mandatory requirements 12.7.2 The Art 36 derogations 12.7.2.1 Derogation based on public morality 12.7.2.2 Derogation based on public policy 12.7.2.3 Public security 12.7.2.4 Protection of health and the life of humans, animals or plants 12.7.2.5 The protection of industrial and commercial property 12.7.2.6 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 13.2.1 EU citizenship and Member State nationality 13.2.2 The initial development of the rights from EU citizenship 13.3 Entry and residence rights from the Citizens Rights Directive 2004/38 13.3.1 Personal scope of the CRD vi
13.3.2 The right to leave and enter 13.3.3 The right of residence 13.3.3.1 Temporary residence (up to three months) 13.3.3.2 Residence beyond three months 13.3.3.3 Permanent residence 13.4 Internal situations: the substance of the rights test 13.4.1 Internal situations: the Surinder Singh route 13.5 Derogations on the right of entry and residence 13.5.1 Public policy and public security 13.5.2 Public health 13.5.3 Procedural safeguards 13.6 The right to equal treatment based on citizenship 13.6.1 Equal treatment and the CRD 13.7 Additional rights for citizens who are workers 13.7.1 Who is a worker? 13.7.2 Cross-border economic activity 13.7.3 Direct effect 13.7.4 Discrimination and restrictions to market access 13.7.4.1 Direct discrimination 13.7.4.2 Indirect discrimination 13.7.4.3 Restrictions on market access 13.7.5 Additional residence rights for workers and their family members 13.7.5.1 Temporary residence (up to three months) 13.7.5.2 Residence beyond three months 13.7.5.3 Permanent residence 13.7.6 The right to access employment 13.7.7 The right to equal treatment 13.7.7.1 Conditions of employment 13.7.7.2 Social advantages 13.7.7.3 Equal treatment in vocational training and education 13.7.8 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 14.6.1 Establishment: the exercise of official authority under Art 51 TFEU 14.6.2 Establishment: exceptions based on public policy, public security and public health 14.6.3 Services 14.7 Recognition of Qualifications and Directive 2005/36/EC 14.7.1 System of automatic recognition of qualifications attested by professional experience in certain industrial, craft and commercial activities 14.7.2 System of automatic recognition of qualifications for the professions of doctor, nurse, dentist, veterinary surgeon, midwife, pharmacist and architect vii
14.7.3 Procedure for the mutual recognition of professional qualifications 14.7.4 Reform of Directive 2005/36 14.7.5 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 14.10 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 15.6.1 Discrimination on grounds of religion, belief, disability, age and sexual orientation in employment 15.6.2 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 16.3.1 Economic efficiency 16.3.2 Market integration 16.3.3 Fairness 16.4 The regulation of competition 16.4.1 Mergers 16.4.2 State aid 16.4.3 Abuse of market power 16.4.4 Restrictive agreements and concerted practices 16.4.5 Undertakings 16.4.6 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 17.3.1 The relevant product market (RPM) 17.3.1.1 Demand substitutability viii
17.3.1.2 Supply substitutability 17.3.1.3 Additional product market factors 17.3.2 The relevant geographical market (RGM) 17.3.3 The relevant temporal market (RTM) 17.4 The assessment of dominance 17.4.1 Market share 17.4.2 Barriers to entry 17.4.3 Financial and technical resources 17.4.4 Vertical integration 17.5 Abusive conduct 17.5.1 Unfair trading conditions 17.5.2 Tying/bundling 17.5.3 Discriminatory pricing 17.5.4 Predatory pricing 17.5.5 Margin squeezing 17.5.6 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 18.4.1 Concerted practice or an oligopoly? 18.5 Distortion of competition 18.5.1 Vertical agreements within Art 101(1) 18.5.2 The de minimis principle 18.6 Art 101(3) exemption 18.6.1 The Commission guidelines on horizontal co-operation agreements [2011] 18.7 Block exemptions 18.7.1 Regulation 330/2010 on vertical agreements and concerted practices 18.7.1.1 Market share threshold 18.7.1.2 Hardcore restrictions 18.7.2 Regulation 1217/2010 on research and development agreements 18.7.2.1 Scope of the Regulation 18.7.2.2 Requirements of the Regulation 18.7.2.3 Hardcore restrictions 18.7.3 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
19.4.1 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 19.10 Private enforcement 19.10.1 Private enforcement in the UK 19.10.2 Reform of private enforcement of EU competition law: Directive 2014/104/EU 19.10.3 Changes to facilitate the protection of leniency documents 19.11 Summary Answers to Self-assessment Questions Appendix Index x
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