Steiner and Woods EU Law

Name: Steiner and Woods EU Law
Price: 5260 ISK
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Author: Marios Costa; Steve Peers
ISBN: 9780192884558

Höfundar: Marios Costa; Steve Peers (Útgáfa: 15)

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Trusted by students and lecturers for over thirty years, Steiner & Woods EU Law is the most comprehensive black letter guide to the subject, leading the reader through the subject in a straightforward way. The book includes a well-balanced range of topics for students taking an EU law course at any level. Offering a careful blend of institutional and substantive coverage, it focuses on explaining the law clearly for student readers.

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Útgefandi: Oxford University Press Academic UK

ISBN: 9780192884558

Print ISBN: 9780192884534

Format: ePub

Útgáfa: 15

Höfundar: Marios Costa; Steve Peers

Tungumál: English

Útgefið: 2023-07-28

Prent takmörkun á líftíma: 100

Prent takmörkun: 2

Afritunar takmörkun: 2

Kaflar

Cover Page
Title page
Copyright page
Dedication
Preface
Guide to the Online Resources
Table of Contents
Abbreviations
Table of cases
United Kingdom
Court of Justice: alphabetical
Court of Justice: numerical
General Court: alphabetical
General Court: numerical
European Court of Human Rights (ECtHR)
Commission Decisions
National cases
Belgium
Czech Republic
Estonia
France
Germany
Italy
Poland
Table of legislation
EU treaties and international instruments
EU secondary legislation
Regulations
Directives
National Legislation
Estonia
Finland
France
Germany
Ireland
Netherlands
United Kingdom
Part I
1 From EEC to EU: A Brief History of the Development of the Union
1.1 Introduction
1.2 Development prior to the Single European Act
1.3 Enlargement
1.3.1 Current membership
1.3.2 Process for joining the EU
1.3.3 Conditions for membership
1.3.4 Beyond enlargement: the EU’s European Neighbourhood Policy
1.4 Kick-starting the internal market: the Single European Act
1.5 Wider or deeper? Treaty on European Union
1.5.1 Monetary union
1.5.2 Union citizenship
1.5.3 The other two pillars of the Union
1.6 Impact of the Treaty of Amsterdam
1.6.1 Strengthening the EC pillar
1.6.2 Equality and fundamental rights
1.6.3 Closer cooperation
1.7 Preparations for enlargement: Treaty of Nice
1.7.1 Changes to the TEU: enhanced cooperation
1.7.2 Changes to the EC pillar
1.7.3 Ratification of the Treaty of Nice
1.8 Doomed: Treaty establishing a Constitution for Europe
1.9 Democracy and effectiveness? Treaty of Lisbon
1.9.1 Themes of the Lisbon Treaty
1.9.2 Constitutional issues
1.9.3 Institutional matters
1.9.4 Policy matters
1.9.5 Key differences from the Constitution
1.10 Theories of integration
1.10.1 Functionalism
1.10.2 Neofunctionalism
1.10.3 Intergovernmentalism
1.10.4 Multi-level governance
1.11 Conflicting attitudes towards the Union
1.12 Conclusions: the future
Self-test questions
Further reading
2 Institutions of the Union: Composition and Powers
2.1 Introduction
2.2 The institutions
2.3 European Parliament (Article 14 TEU; Articles 223–34 TFEU)
2.3.1 Appointment
2.3.2 Composition
2.3.3 Functions
2.3.3.1 Consultative and advisory role
2.3.3.2 Legislative role
2.3.3.3 Supervisory role
Role of the European Ombudsman
Protection of Human Rights
2.4 European Council (Article 15 TEU; Articles 235–6 TFEU)
2.5 Council (Article 16 TEU; Articles 237–43 TFEU)
2.5.1 Appointment
2.5.2 Composition
2.5.3 Functions
2.5.4 The emergence of qualified majority voting
2.5.5 COREPER
2.6 Commission (Article 17 TEU; Articles 244–50 TFEU)
2.6.1 Appointment
2.6.2 Composition
2.6.3 Probity
2.6.4 Management powers of the Commission president
2.6.5 Functions
2.6.5.1 Initiator
2.6.5.2 Watchdog
2.6.5.3 Executive
2.6.5.4 External representation
2.7 Economic and Social Committee (Articles 301–4 TFEU)
2.8 Committee of the Regions
2.9 Budgetary procedures (Articles 313–16 TFEU)
2.10 Court of Auditors (Articles 285–7 TFEU)
2.11 Court of Justice of the European Union (Article 19 TEU; Articles 251–81 TFEU)
2.11.1 Appointment
2.11.2 Composition
2.11.3 Functions
2.11.4 General Court
2.12 Lisbon Treaty
2.12.1 European Council President
2.12.2 High Representative for Foreign Affairs and Security Policy
2.13 EU institutions outside the EU Framework
2.14 Conclusions
Self-test questions
Further reading
3 Scope of the EU Treaty: Laws and Lawmaking
3.1 Introduction
3.2 Conferred competence
3.3 The scope of EU competence
3.3.1 General principles
3.3.2 External competence
3.3.2.1 Trade
3.3.2.2 Foreign and security policy
3.3.2.3 Impact of Lisbon
3.4 Types of competence
3.5 Subsidiarity
3.5.1 General
3.5.2 Test for the exercise of concurrent powers
3.5.3 Role of the national parliaments
3.5.4 Principle of proportionality
3.6 Basis for Union action
3.6.1 Broad provisions for action
3.6.1.1 Internal market clauses
3.6.1.2 Flexibility clause
3.6.2 Implied powers
3.7 Union acts
3.7.1 Regulations
3.7.2 Directives
3.7.3 Decisions
3.7.4 Recommendations and opinions
3.7.5 Acts sui generis
3.7.6 Boundary between different types of act
3.7.7 Publication
3.7.8 Soft law
3.7.9 Acts under the CFSP
3.8 Lawmaking process
3.8.1 Ordinary legislative procedure
3.8.2 Special legislative procedures: consultation procedure
3.8.3 Special legislative procedures: assent
3.8.4 Delegated and implementing acts
3.8.5 Enhanced cooperation
3.8.6 ‘Passerelle’ provisions and Treaty amendment
3.8.6.1 Passerelle clauses
3.8.6.2 Revision of the Treaties
3.8.6.3 Brake and accelerator clauses
3.9 Problems in the lawmaking process—democracy, transparency and efficiency
3.9.1 Democracy
3.9.2 Transparency
3.9.3 Efficiency
3.10 Sources of EU law
3.11 Conclusions
Self-test questions
Further reading
4 Principle of Supremacy of EU Law
4.1 Introduction
4.2 The problem of priorities
4.3 The Court of Justice’s contribution
4.3.1 Development of the principle of supremacy
4.3.2 National procedural rules: problems for the national courts
4.3.3 EU rules which do not have direct effect
4.3.4 Supremacy after Lisbon
4.4 The Member States’ response
4.4.1 Shades of supremacy
4.4.2 Acceptance of supremacy
4.4.3 Basis of acceptance
4.4.4 Scope of supremacy
4.4.5 ‘Kompetenz-kompetenz’
4.5 Conclusions
Self-test questions
Further reading
5 Principles of Direct Applicability and Direct Effects
5.1 Introduction
5.2 Doctrine of direct effect
5.2.1 Direct applicability
5.2.2 Relevance of direct effect in EU law
5.2.3 Treaty articles
5.2.4 Regulations
5.2.5 Directives: accepting the principle of direct effect
5.2.6 Direct effect of directives: when does the obligation arise?
5.2.7 Directives: faulty implementation
5.2.8 Must rights be conferred by the directive?
5.2.9 Member States’ initial response
5.2.10 Vertical and horizontal direct effect: a necessary distinction
5.2.11 Vertical direct effect: reliance against public body
5.2.12 Three-party situations
5.2.13 ‘Incidental’ horizontal effect
5.2.14 Directives and general principles of EU law
5.2.15 No direct effect to impose criminal liability
5.2.16 Direct effect of directives: conclusions
5.2.17 Decisions
5.2.18 Recommendations and opinions
5.2.19 International agreements to which the EU is a party
5.2.20 Temporal limitations to the principle of direct effect
5.3 Principle of indirect effect
5.3.1 The scope of the doctrine: Marleasing
5.3.2 The limits of Marleasing
5.3.3 Indirect effect: when does the obligation arise?
5.3.4 Indirect effect in other contexts
5.4 Conclusions
Self-test questions
Further reading
6 General Principles of Law
6.1 Introduction
6.2 Overview of the Treaty framework and development of general principles
6.2.1 Initial phase
6.2.2 Sources of rights: traditions common to the Member States
6.2.3 Sources of rights: ECHR and other international human rights Treaties
6.2.4 Scope of general principles
6.2.5 Circumstances in which general principles may be used: scope of EU law
6.3 Assessment
6.4 The EU Charter of Fundamental Rights
6.4.1 Background
6.4.2 Structure and content
6.4.3 Horizontal provisions: scope
6.4.4 Horizontal provisions: compatibility with national constitution and with the ECHR
6.4.5 CJ’s reaction
6.5 Relationship with ECHR
6.5.1 Historical development
6.5.2 Lisbon and accession
6.6 Rules of administrative justice
6.6.1 Proportionality
6.6.2 Legal certainty
6.6.3 Procedural rights
6.6.4 Natural justice: the right to a hearing
6.6.5 The duty to give reasons
6.6.6 The right to due process
6.6.7 Right to protection against self-incrimination
6.7 Equality
6.8 Subsidiarity
6.9 Effectiveness
6.10 Conclusions
Self-test questions
Further reading
Part II
7 Framework for Enforcement
7.1 Introduction
7.2 Action before the European Union Courts
7.2.1 Actions against the institutions of the Union
7.2.1.1 Significance of judicial review
7.2.1.2 Jurisdiction of the GC
7.2.1.3 Appeals to the CJ in judicial review cases
7.2.2 Actions against Member States
7.2.2.1 Right to intervene
7.2.2.2 Interim relief
7.2.3 Action against individuals
7.3 Action before national courts
7.3.1 Basic principles
7.3.2 Significance of actions before national courts
7.3.3 Remedies in national courts
7.3.4 Jurisdiction of the European Courts to give preliminary rulings
7.4 Conclusions
Self-test questions
Further reading
8 Remedies in National Courts
8.1 Introduction
8.2 General principles regarding national procedural rules
8.2.1 Overview of principles
8.2.2 Equivalence and effectiveness
8.2.3 Difficulties in application of national procedural autonomy with the principles of equivalence and effectiveness
8.3 Meaning of ‘effectiveness’
8.3.1 Jurisprudence in the field of sex-discrimination legislation
8.3.2 The creation of new remedies?
8.4 Principle of ‘equivalence’
8.5 Impact of EU law on national remedies
8.5.1 Interim relief
8.5.2 Challenge to statutory provisions
8.5.3 Damages
8.5.4 Restitution
8.5.5 Time limits
8.6 Conclusions
Self-test questions
Further reading
9 State Liability
9.1 Introduction
9.2 Principle of state liability under Francovich
9.2.1 The Francovich ruling
9.2.2 Scope of the principle
9.2.2.1 Type of action
9.2.2.2 For whose actions is the state liable?
9.2.2.3 Liability only where measure confers rights
9.2.3 Conditions of liability
9.2.3.1 Meaning of ‘sufficiently serious’
9.2.3.2 The claimant must prove that damage has been suffered
9.2.3.3 The damage must have been caused by the breach
9.2.4 Brasserie du Pêcheur in the English courts
9.2.5 Relationship of the principle of state liability with direct effect
9.2.6 Classifying state liability in national law
9.2.7 Criticisms of state liability
9.3 Conclusions
Self-test questions
Further reading
10 The Preliminary Ruling Procedure
10.1 Introduction
10.2 The text of Article 267 TFEU and an overview of the procedure
10.2.1 The historical importance of the Article 267 procedure
10.2.1.1 Impact on development of EU law
10.2.2 Nature of the preliminary ruling procedure
10.3 The broad approach of the Court to Article 267 references
10.3.1 What is a ‘court or tribunal’?
10.3.2 Can arbitrators be a ‘court or tribunal’?
10.3.3 The question must be a matter of Union law
10.3.4 The Court’s role is one of interpretation of Union law not application to the facts
10.3.5 The Court must not interfere with the matters within national court discretion
10.3.6 National courts may refer cases on the validity of Union measures
10.3.7 The practical reality of the CJ’s jurisdiction
10.4 The Court’s refusal to give rulings in some cases
10.4.1 The CJ can decline to hear cases brought in artificial proceedings
10.4.2 The case must relate to a cross-border issue and not a purely internal situation
10.4.3 A preliminary ruling must be ‘objectively required’
10.4.4 The parties must challenge Union measures directly under Article 263 TFEU if they have standing
10.5 National courts and the reference procedure
10.5.1 When must a national court refer and when does it have choice?
10.5.2 Article 267(3): The mandatory obligation to refer for courts against whom no appeal lies
10.5.3 Article 267(2): courts that have a discretion whether to refer or not
10.5.4 When does a ‘question’ of Union law arise?
10.5.4.1 Previous rulings
10.5.4.2 Acte clair
10.5.4.3 The question may not be relevant to the case
10.5.4.4 National courts can ignore national rules of precedent in order to refer cases
10.5.4.5 How should non-final courts exercise their discretion to refer?
10.6 What is the temporal effect of a ruling from the Court of Justice?
10.6.1 Rulings involving interpretation are generally retrospective in effect
10.6.2 Rulings as to the validity of Union measures: more flexible temporal effects
10.7 The increasing workload of the Court of Justice: the need for reform
10.8 Conclusions
Self-test questions
Further reading
11 Enforcement Actions
11.1 Introduction
11.2 Outline of enforcement mechanism
11.2.1 Substantive areas covered by Article 258 TFEU
11.2.2 Development of enforcement procedure
11.3 Purpose of enforcement actions
11.4 Liability of Member States
11.4.1 Member States as defendants
11.4.2 Meaning of ‘failure’
11.5 Procedure
11.5.1 Informal proceedings
11.5.2 Formal proceedings: first stage
11.5.2.1 Formal notice
11.5.2.2 Reasoned opinion
11.5.2.3 Challenging a reasoned opinion
11.5.2.4 Time limits
11.5.3 Formal proceedings: second stage
11.6 Burden of proof
11.7 Common defences
11.7.1 Reciprocity
11.7.2 Necessity and force majeure
11.7.3 Constitutional difficulties
11.7.4 De facto compliance
11.7.5 Domestic law is in compliance
11.7.6 Treaty derogation
11.7.7 Public order
11.8 Consequences of a ruling and of a failure to comply
11.8.1 Obligations following a ruling under Article 258 TFEU
11.8.2 Penalty payments for continuing failure to comply
11.9 Action by Member States (Article 259 TFEU)
11.10 Special enforcement procedures: state aid, breach of Article 114(4) TFEU procedures and measures to prevent serious internal disturbances
11.11 Conclusions
Self-test questions
Further reading
12 Direct Action for Annulment
12.1 Introduction
12.2 Judicial review: overview
12.2.1 Acts that may be challenged
12.2.2 Acts of Parliament
12.2.3 Acts of other bodies
12.2.4 Review under TEU
12.2.5 Review of national measures
12.3 Locus standi: who may bring an action?
12.3.1 Privileged applicants
12.3.1.1 Semi-privileged applicants
12.3.2 Non-privileged applicants
12.3.2.1 Representative bodies
12.3.3 Challenging acts addressed to another person
12.3.3.1 The measure must be, as far as the applicant is concerned, an act which is of direct and individual concern or a regulatory act which is of direct concern and requires no implementing measures
12.3.3.2 The act must be of individual concern to the applicant
12.3.3.2.1 Acts referable specifically to applicant’s situation and affecting a closed class
12.3.3.2.2 Acts issued as a result of proceedings initiated by applicant or in which the applicant has played a legitimate part
12.3.3.2.3 Anti-dumping and competition cases
12.3.3.3 A regulatory act not entailing any implementing measures
12.3.3.4 Can the restrictive interpretation of locus standi for individuals be justified?
12.3.3.5 A false dawn: Jégo-Quére and Unión de Pequeños Agricultores (UPA)
12.4 Time limits
12.4.1 Expiry of time limit
12.5 The merits
12.5.1 Lack of competence
12.5.2 Infringement of an essential procedural requirement
12.5.3 Infringement of the Treaties or any rule of law relating to their application
12.5.4 Misuse of power
12.6 Consequences of a successful action
12.7 Indirect review under Article 277 TFEU
12.7.1 Scope
12.7.2 Proceedings in which Article 277 TFEU may be invoked
12.7.3 Reviewable acts
12.7.3.1 Is the scope for challenge under Article 277 TFEU limited to general measures?
12.7.4 Locus standi
12.7.5 Consequences of a successful challenge
12.8 Action for failure to act: overview of the provisions
12.8.1 Reviewable omissions
12.8.2 Privileged applicants
12.8.3 Individuals
12.8.3.1 Measures subject to challenge by individuals
12.8.3.2 Challengeable acts
12.8.3.3 Procedural rights
12.9 Effect of definition of position
12.9.1 Definition of position and Article 263 TFEU
12.10 Consequences of a successful action
12.11 Conclusions
Self-test questions
Further reading
13 Union Liability in Tort: Action for Damages
13.1 Introduction
13.2 Scope of non-contractual liability
13.2.1 The Treaty provisions
13.3 Locus standi
13.3.1 Personal limitations
13.3.2 Time limits
13.3.3 Relationship with Articles 263 and 265 TFEU
13.4 Elements of non-contractual liability
13.5 Wrongful acts or omissions
13.5.1 Action taken under the TFEU
13.6 Establishing an unlawful act
13.6.1 Development of the Schöppenstedt formula: a brief overview
13.6.1.1 A legislative measure involving choices of economic policy
13.6.1.2 A breach of a superior rule of law for the protection of individuals
13.6.1.3 The breach must be ‘sufficiently serious’
13.6.2 The modern approach: Bergaderm and beyond
13.6.3 Individual acts
13.7 Liability for lawful acts
13.8 Damage
13.8.1 Only specific losses are recoverable
13.8.2 Loss and third parties
13.8.3 Loss of a chance
13.8.4 Payment of damages in national currency
13.9 Causation
13.9.1 Break in the chain of causation
13.9.2 Loss must be foreseeable
13.9.3 Contributory negligence
13.10 Impact of other possible causes of action
13.11 Relationship between Article 340(2) TFEU and other remedies
13.12 Concurrent liability
13.13 Conclusions
Self-test questions
Further reading
Part III
14 Introduction to the Internal Market
14.1 Introduction
14.2 Overview of the four freedoms
14.2.1 Free movement of goods
14.2.2 Free movement of people
14.2.3 Freedom to provide services
14.2.4 Free movement of capital
14.3 Common themes in the free movement provisions
14.3.1 Economic activity
14.3.2 Internal situations and migration
14.3.3 Discrimination or access to the market?
14.3.4 Direct effect
14.3.5 Need for harmonisation
14.4 Relationship between the freedoms
14.5 The social dimension
14.6 Completion of the internal market: an Area of Freedom, Security and Justice
14.7 Conclusions
Self-test questions
Further reading
15 Harmonisation
15.1 Introduction
15.2 The nature of harmonisation
15.2.1 Positive and negative harmonisation
15.2.2 Harmonisation and unification
15.2.3 Other forms of Union action
15.3 Types of harmonisation
15.3.1 Total harmonisation
15.3.2 The Union’s power to re-legislate
15.3.3 Minimum harmonisation
15.3.4 Minimum harmonisation and reverse discrimination
15.3.5 Technical harmonisation and the ‘new approach’
15.3.6 Other types of harmonisation
15.3.7 The ‘country of origin’ principle and mutual recognition
15.4 Article 114 TFEU and harmonisation
15.4.1 The extent of the Union’s power to legislate under Article 114 TFEU
15.4.2 Article 114 TFEU and ‘flanking policies’
15.4.3 Article 114 TFEU as the basis for establishing EU agencies
15.4.4 Derogation under Article 114 TFEU
15.5 Conclusions
Self-test questions
Further reading
16 Customs Union
16.1 Introduction
16.2 Common customs tariff
16.3 Prohibition between Member States of customs duties on imports and exports and of all charges of equivalent effect
16.3.1 Scope of the prohibition
16.3.1.1 Customs duties
16.3.1.2 Charges having equivalent effect
16.3.2 Distinction between customs duties and taxes
16.3.3 An effects-based test
16.3.4 Limitations on the prohibition: permissible charges
16.3.5 Non-discriminatory charges
16.3.6 Derogation from prohibition on customs duties
16.3.7 Enforcing Article 30 TFEU
16.3.8 Approaching Article 30 TFEU
16.4 Prohibition of discriminatory taxation
16.4.1 Meaning of taxation
16.4.2 Scope of Article 110 TFEU
16.4.3 Discriminatory measures
16.4.3.1 Direct discrimination
16.4.3.2 Indirect discrimination
16.4.3.3 No domestic competing products
16.4.3.4 High rates of taxation
16.4.3.5 Identification of discrimination
16.4.4 Products from other Member States
16.4.5 ‘Similar’ products
16.4.6 Objective grounds for differentiation
16.4.7 Taxation affording indirect protection to competing domestic products
16.5 Harmonisation of taxation
16.6 Conclusions
Self-test questions
Further reading
17 Free Movement of Goods
17.1 Introduction
17.2 Outline of provisions
17.2.1 Quantitative restrictions
17.2.2 State monopolies
17.3 Whose actions are caught?
17.3.1 Application to the institutions
17.3.2 Public bodies
17.3.3 Horizontal direct effect
17.4 Types of act caught by Articles 34 and 35 TFEU
17.5 Prohibition on quantitative restrictions (Article 34 TFEU)
17.6 Prohibition on measures having equivalent effect to quantitative restrictions (Article 34 TFEU)
17.6.1 Dassonville and the early years
17.6.1.1 Reverse discrimination
17.6.1.2 Pricing rules
17.6.2 Indistinctly applicable measures: Cassis de Dijon
17.6.2.1 Rule of reas
17.6.2.2 Mutual recognition
17.6.2.3 Post-Cassis de Dijon application
17.6.3 ‘Over-extension’ of Article 34 TFEU
17.6.4 Keck and Mithouard
17.6.5 Weaknesses of the Keck approach
17.6.6 Meaning of ‘selling arrangement’
17.6.7 Non-discrimination in Keck
17.6.8 Other categories of trading rule: ‘use rules’
17.6.9 Alternative solutions
17.6.9.1 De minimis
17.6.9.2 Remoteness
17.7 Prohibition, as between Member States, of quantitative restrictions on exports and of all measures having equivalent effect (Article 35 TFEU)
17.8 State monopolies (Article 37 TFEU)
17.8.1 Meaning of ‘monopoly’
17.8.2 Prohibition on discrimination on grounds of nationality
17.9 Relationship with other Treaty provisions
17.9.1 Article 34 TFEU
17.9.2 Other provisions
17.10 Derogation from the free movement of goods
17.10.1 Relationship with the ‘rule of reason’ under Cassis de Dijon
17.11 Proportionality and disguised restriction on trade
17.12 Grounds for derogation under Article 36 TFEU
17.12.1 Public morality
17.12.2 Public policy
17.12.3 Public security
17.12.4 Protection of the health and life of humans, animals and plants
17.12.5 Protection of national treasures possessing artistic, historic or archaeological value
17.12.6 Protection of industrial and commercial property
17.13 Conclusions
Self-test questions
Further reading
18 Free Movement of Payments and Capital
18.1 Introduction
18.2 Outline of provisions relating to the free movement of capital
18.3 Scope of the free movement of capital
18.3.1 Who can rely on the free movement of capital?
18.3.2 Direct effect
18.3.3 Types of act caught
18.3.4 Meaning of capital
18.3.5 Test for application of free movement of capital
18.4 Exceptions to the free movement of capital
18.4.1 Express Treaty derogation
18.4.1.1 National taxation systems
18.4.1.2 Fiscal supervision
18.4.1.3 Public policy and public security
18.4.2 Interpreting the derogations
18.4.3 Non-euro Member States
18.4.4 Rule of reason?
18.5 Relationship with other freedoms
18.6 Power to legislate in the field of free movement of capital
18.7 Economic and Monetary Union (EMU)
18.8 Conclusions
Self-test questions
Further reading
19 Citizenship: Rights of Free Movement and Residence
19.1 Introduction
19.2 Overview
19.2.1 Citizenship: Article 21 TFEU
19.2.2 Workers: Article 45 TFEU
19.2.3 Establishment: Article 49 TFEU
19.2.4 Services: Article 56 TFEU
19.2.5 Implementing legislation
19.3 Enforcement
19.4 Personal scope: who benefits?
19.4.1 General
19.4.2 Nationality
19.4.3 Companies
19.4.4 Migration and the internal situation
19.4.4.1 Economic rights
19.4.4.2 Citizenship
19.4.4.3 Companies
19.4.5 Is migration status indefinite?
19.4.6 Meaning of ‘worker’ for Article 45 TFEU
19.4.6.1 The position of students
19.4.7 Meaning of establishment for Article 49 TFEU
19.4.7.1 General
19.4.7.2 Elements of establishment
19.4.8 Meaning of services for Article 56 TFEU (ex Article 49 EC)
19.4.8.1 General
19.4.8.2 Types of activity caught
19.4.9 Distinction between the provisions
19.4.10 Families
19.4.10.1 ‘Spouse’ and ‘partner’
19.4.10.2 Dependants and descendants
19.4.10.3 Return to the home Member State
19.5 Material scope: rights of access of the host Member State (CRD)
19.5.1 Rights of entry
19.5.1.1 TCN family members
19.5.2 Right of residence
19.5.2.1 Temporary residence
19.5.2.2 Settled residence
19.5.2.3 Permanent residence
19.5.3 Formalities
19.6 Social rights
19.6.1 Economic migrants
19.6.1.1 Equality of treatment Article 45(2) TFEU and Regulation 492/2011
19.6.1.1.1 Social advantages
19.6.1.1.2 Continuing rights
19.6.1.1.3 Tax advantages
19.6.1.1.4 Access to training in vocational schools and retraining centres
19.6.1.1.5 Housing
19.6.1.1.6 The rights of workers’ families
19.6.1.1.7 Children: Access to educational apprenticeship or vocational training courses
19.6.1.1.8 Article 45 and workers’ rights
19.6.1.2 Establishment
19.6.1.3 Services
19.6.2 Social security
19.6.3 Citizenship
19.6.4 Equality of treatment
19.6.4.1 Martinez Sala
19.6.4.2 Citizens’ Rights Directive (CRD)
19.6.4.3 Welfare benefits
19.6.4.4 Jobseekers
19.6.4.5 Accessing education and training
19.6.4.6 Student finance
19.6.4.7 Rights against state of origin
19.7 Limitations
19.7.1 Scope of provisions
19.7.2 Who benefits?
19.7.3 Relationship with Treaty provisions
19.7.4 Enforcement
19.7.5 Substantive grounds for derogation
19.7.5.1 Public policy
19.7.5.2 Public security
19.7.5.3 Public health
19.7.6 Personal conduct
19.7.7 Types of measure
19.7.7.1 Partial restrictions
19.7.7.2 Expulsion
19.7.8 Procedural rights
19.8 Conclusions
Self-test questions
Further reading
20 Economic Rights: Workers, Establishment and Services
20.1 Introduction
20.2 Overview and Treaty provisions
20.2.1 The free movement of workers
20.2.2 Freedom of establishment
20.2.3 The freedom to provide services
20.2.4 Public service
20.3 Right of access to the market
20.3.1 Workers
20.3.2 Establishment
20.3.3 Services
20.3.4 Linguistic concerns
20.3.5 Public service
20.4 Test for the application of Articles 45, 49 and 56 TFEU
20.4.1 Discrimination
20.4.2 Beyond discrimination
20.4.3 Establishment
20.4.4 Workers
20.4.5 Distinctions between different kinds of rule?
20.4.6 ‘Exports’
20.4.7 A common approach, a consistent approach?
20.5 Limitations on the application of Articles 45, 49 and 56 TFEU
20.6 A rule of reason?
20.7 Harmonisation
20.7.1 Mutual recognition and the home-country principle
20.7.2 Relationship between directives and other provisions
20.8 The Services Directive (Directive 2006/123)
20.8.1 Scope of the Directive
20.8.2 Administration
20.8.3 Freedom of establishment
20.8.4 The cross-border provision of services
20.8.5 Provisions to ensure quality of service
20.8.6 Administrative cooperation
20.9 Professional qualifications
20.9.1 Jurisprudence of the CJ
20.9.2 The directives
20.9.2.1 Rules for lawyers
20.9.2.2 Unregulated activities
20.9.2.2.1 Third-country qualifications
20.10 Establishment, services and companies
20.10.1 General
20.10.2 Regulatory competition
20.10.3 Taxation: are anti-avoidance measures permissible?
20.10.4 Regulatory competition: the position of services—home-country control and abuse
20.11 Recipients of services
20.11.1 General
20.11.2 Non-discrimination and Union competence
20.11.2.1 Fees and access to courses
20.11.2.2 Scholarships and grants
20.11.3 Scope of services: corollary to the right to receive
20.11.4 Remuneration and publicly funded services: where lies the dividing line?
20.11.4.1 Education
20.11.4.2 Healthcare services
20.11.5 Legislation
20.11.5.1 The Patients’ Directive
20.12 Exceptions
20.12.1 Non-discriminatory measures
20.12.2 A rule of reason?
20.12.2.1 Boundary between discriminatory measures and those that apply without distinction
20.13 Conclusions
Self-test questions
Further reading
21 The Area of Freedom, Security and Justice: EU Justice and Home Affairs Law and Policy
21.1 Introduction
21.2 Historical development
21.2.1 From JHA to AFSJ
21.2.2 The acquisition by the European Union of powers over home affairs
21.2.3 The need to respect fundamental rights
21.3 The migration of TCNs and the need for EU powers
21.4 Economic migration and integration
21.4.1 Schengen
21.4.2 Integration of long-term residents
21.4.3 The Long-term Residents Directive
21.4.4 The Family Reunification Directive
21.4.5 Students Directive
21.4.6 Blue Card Directive
21.4.7 Other EU immigration measures
21.5 The regulation of asylum: harmonisation or exclusion?
21.6 Irregular migration and policing the EU border
21.6.1 People smuggling and people trafficking
21.6.2 The Returns Directive
21.7 EU criminal justice policy
21.7.1 Criminal liability arising ancillary to legislation passed under non-AFSJ provisions
21.7.2 AFSJ post-Lisbon
21.8 Conclusions
Self-test questions
Further reading
22 Discrimination
22.1 Introduction
22.2 Historical development
22.2.1 Phase 1
22.2.2 Phase 2
22.2.3 Phase 3
22.3 TFEU provisions
22.4 Legislation in force
22.4.1 Common provisions
22.4.2 Minimum standards
22.4.3 Direct and indirect discrimination
22.4.4 Enforcement
22.4.5 Burden of proof
22.5 Overview of provisions on gender equality
22.5.1 Pay
22.5.2 Sources of pay
22.5.2.1 Collective agreements
22.5.2.2 A single source
22.5.2.3 Ex gratia payments
22.5.2.4 Statutory payments
22.5.2.5 Payments resulting from a judicial decision
22.5.2.6 Access to pay
22.6 Pensions
22.7 Meaning of ‘worker’
22.8 Equal pay for equal work
22.8.1 Job classification schemes
22.8.2 Contemporaneity
22.8.3 Equal work
22.9 Discrimination
22.9.1 Direct discrimination
22.9.2 Indirect discrimination
22.9.3 Time rates/piecework
22.9.4 Computation of pay
22.10 Grounds of discrimination: limited to sex
22.11 Objective justification
22.11.1 General criteria
22.11.2 Justifications based on economic factors, job performance and market forces
22.11.3 Administrative convenience
22.11.4 Social-policy objectives
22.12 Recast Directive: Article 14(2): genuine and determining occupational requirement
22.12.1 Positive discrimination
22.13 Scope of the Recast Directive
22.13.1 Access to employment
22.13.1.1 Vocational training
22.13.1.2 Employment conditions including dismissal
22.13.2 Direct and indirect discrimination
22.13.3 Derogation from the equal treatment principle
22.13.3.1 Sex as a determining factor
22.13.3.2 Pregnancy and maternity
22.13.3.3 Enforcement
22.14 Directive 2010/41: equal treatment in self-employment
22.15 Directive 2004/113: equal treatment of men and women in access to goods and services
22.16 Directive 2000/43: equal treatment irrespective of racial or ethnic origin
22.16.1 Minimum levels of protection
22.16.2 Scope of application
22.16.3 Discrimination
22.16.4 Exceptions
22.16.4.1 Nationality
22.16.4.2 Genuine and determining occupational requirement
22.16.4.3 Positive measures
22.16.5 Enforcement and remedies
22.17 Directive 2000/78: equal treatment in employment and occupation
22.17.1 Key concepts
22.17.1.1 Religion or belief
22.17.1.2 Disability
22.17.1.3 Age
22.17.1.4 Sexual orientation
22.17.2 Scope of the Directive
22.17.3 Reasonable accommodation
22.17.4 Minimum requirements
22.17.5 Discrimination
22.17.5.1 Age discrimination
22.17.5.2 Sexual orientation
22.17.5.3 Disability discrimination
22.17.5.4 Religious discrimination
22.17.6 Exceptions and derogations
22.17.7 Compulsory retirement
22.17.8 Enforcement
22.18 Conclusions
Self-test questions
Further reading
23 EU Competition Law
23.1 Introduction
23.2 The general scheme
23.2.1 Elements of an infringement
23.2.2 Agreements between undertakings, decisions by associations of undertakings and concerted practices
23.2.2.1 Undertakings
23.2.2.2 Agreements
23.2.2.3 Decisions by associations of undertakings
23.2.2.4 Concerted practices
23.2.2.5 Unilateral conduct
23.2.2.6 Public authorities
23.2.3 Field of application of Article 101(1) TFEU
23.2.3.1 Group companies
23.2.3.2 Undertakings situated outside the European Union
23.2.4 ‘Which may affect trade between Member States’
23.2.5 Agreements within a Member State
23.2.6 The network effect: combined effect of similar agreements
23.2.7 Actual or potential effect
23.2.8 ‘Which have as their object or effect the prevention, restriction or distortion of competition within the common market’
23.2.8.1 ‘Object or effect’
The de minimis principle
23.2.9 Consequences if agreement is within Article 101(1)
23.2.10 Article 101(3): exemption
23.2.10.1 It must contribute to improving the production or distribution of goods or to promoting technical or economic progress
Production
Distribution
Technical progress
Economic progress
23.2.10.2 The agreement must allow consumers a fair share in the resulting benefit
23.2.10.3 The agreement must not impose on the undertakings concerned restrictions which are not indispensable
23.2.10.4 The agreement must not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question
23.2.11 Block exemptions
23.2.11.1 Background
23.2.12 Horizontal agreements
23.2.12.1 Price fixing
23.2.12.2 Market sharing
23.2.12.3 Restrictions on output
23.2.12.4 Collusive tendering
23.2.12.5 Cooperation agreements
23.2.12.6 Vertical agreements
23.2.12.7 Commercial agents
23.2.12.8 Independent distributors
Types of distribution arrangements
23.2.12.9 Franchise agreements
23.2.12.10 The Vertical Agreements Block Exemption Regulations
Scope
Key concepts
The exemption
Hard-core restrictions
Excluded restrictions
Withdrawal/disapplication of the block exemption
23.2.12.11 Ancillary restrictions
23.2.13 Conclusions on Article 101 TFEU
23.3 Abuse of a dominant position
23.3.1 Overview of prohibition
23.3.2 Undertakings
23.3.3 Joint dominance
23.3.4 The principle of dominance
23.3.4.1 The relevant product market (RPM)
End products
Raw materials
Size of relevant product market
23.3.4.2 The relevant geographical market (RGM)
Determining the RGM
23.3.4.3 The temporal market
23.3.4.4 Dominance in fact
Market share
The length of time during which a firm has held its position in the RPM
Financial and technological resources
Access to raw materials and outlets
Behaviour
Barriers to entry
Associated markets
23.3.5 Abuse
23.3.5.1 Exploitative abuses
Unfair prices
Unfair trading conditions
Discriminatory treatment
23.3.5.2 Exclusionary abuse
Tying and bundling
Predatory pricing
Refusal to supply
An ‘essential facilities’ doctrine?
Exclusive reservation of activities
Import and export bans
Margin squeeze
23.3.6 Trade between Member States
23.3.7 Relationship with Article 106(2) TFEU
23.3.7.1 When will Article 102 not apply?
23.3.7.2 Interests of the Union
23.4 Enforcement of Articles 101 and 102
23.5 Private enforcement
23.6 Mergers and concentrations
23.6.1 Background: from Articles 101 and 102 to the Merger Regulation
23.6.2 The Merger Regulation
23.7 Conclusions
Self-test questions
Further reading
24 Brexit
24.1 Introduction
24.2 Article 50 TEU: notifying withdrawal
24.3 Article 50: negotiating withdrawal
24.4 The withdrawal agreement
24.5 The Trade and Cooperation Agreement
24.6 Conclusions
Self-test questions
Further reading
Further Reading
Index
List of Illustrations
List of Tables
Images
3 Scope of the EU Treaty: Laws and Lawmaking
5 Principles of Direct Applicability and Direct Effects
16 Customs Union
17 Free Movement of Goods
19 Citizenship: Rights of Free Movement and Residence
20 Economic Rights: Workers, Establishment and Services