European Union law: text and materials
European Union public law: text and materials
Law of Europe > Europe. Organization and integration law > Regional organization and integration (Europe) > The European Communities. Community law > General works. Treatises
Edition Details
- Creators or Attribution (Responsibility): Adam Tomkins, Damian Chalmers
- Biografical Information: Damian Chalmers is Reader in European Law at the London School of Economics and Political Science. He has held numerous VIsiting appointments in Europe, including positions at the College of Europe, the University of Lund, the University of Helsinki, Institutio de Empresa and the University of Fudan (PRC). He is currently editor of the European Law Review and EU Jurist.
- Language: English
- Jurisdiction(s): England
- Publication Information: Cambridge, UK ; New York : Cambridge University Press, 2006
- Material: Internet resource
- Type: Book, Internet Resource
- Permalink: http://books.lawlegal.eu/european-union-law-text-and-materials/ (Stable identifier)
Short Description
cxxvi, 1235 pages : maps ; 26 cm
Purpose and Intended Audience
Useful for students learning an area of law, European Union law: text and materials is also useful for lawyers seeking to apply the law to issues arising in practice.
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Bibliographic information
- Responsable Person: Damian Chalmers [and others].
- Publication Date: 2006
- Country/State: England
- Number of Editions: 61 editions
- First edition Date: 2007
- Last edition Date: 2007
- Languages: English
- Library of Congress Code: KJE947
- Dewey Code: 341.2422
- ISBN: 0521820413 0521527414 9780521820417 9780521527415
- OCLC: 63179053
Publisher Description:
How can the law of the European Union be most effectively taught in face of the Union's current upheavals? With this textbook a team of specialists provide a comprehensive survey of the law, placing it in its social, political and economic context. This innovative approach, coupled with a stimulating and accessible writing style, allows the student to fully engage with the material. It charts the development of the European Union and its laws from its inception to the present day by exploring the subject's four core sections: EU institutions, legislative processes, administrative processes and substantive law. Crucially, it incorporates recent key developments including the Constitutional Treaty crisis and the consequences of its 'failure', and issues arising from an enlarged Europe. With cases and materials integrated throughout the text and recommended reading sections accompanying each chapter, this is essential reading for all European law students at undergraduate or postgraduate level.
Main Contents
European integration and the treaty on European Union
Constitutionalism and the 'failure' of the constitutional treaty
The EU institutions
Community law-making
Sovereignty and federalism : the authority of EU law and its limits
Fundamental rights
Judicial relations in the European Union
Accountability in the European Union
The enforcement of European law
Judicial review : the legal accountability of the community institutions
The single market
Economic and monetary union
Union citizenship
EU law and non-EU nationals
Free movement of goods and the economic constitution
The pursuit of an occupation in another member state
Free movement of services
Financial services
Trade restrictions and public goods
Discrimination law
EC competition law : functions and enforcement
Restrictive practices
Abuse of a dominant position
Merger policy
State regulation and EC competition law.
Table of Contents
CONTENTS
Preface page XVIII
Abbreviations XXI
Table of Cases 000
Table of Treaties, Instruments and Legislation 000
PART I Constitutional and Institutional Law
1 European integration and the Treaty on European Union 1
1 Introduction 2
2 The idea of 'Europe' 3
3 The idea of 'European Union' 6
4 The European Communities and their origins 8
(I) From the Treaty of Paris to the Treaty of Rome 8
(II) The EEC Treaty 11
5 Early development of the European Communities 13
(I) De Gaulle and the Luxembourg Accords 13
(II) The initial enlargements 15
6 The Single European Act and beyond 16
(I) Run-up to the Single European Act 16
(II) The Single European Act 18
(III) The road to Maastricht 20
7 The Treaty on European Union 23
(I) Three pillars of the European Union 25
(II) The new competencies 27
(III) Recasting the institutional settlement and the quest for 'democracy' 28
(IV) Division of power between the European Union and the
Member States 29
8 The 1990s: the decade of self-doubt 30
(I) Ratification of the Treaty on European Union 30
(II) The Treaty of Amsterdam 32
(a) The Area of Freedom, Security and Justice 32
(b) Amsterdam and the democratic deficit 33
(c) Differentiated integration 33
9 Recasting the borders of the European Union 34
10 The Treaty of Nice and beyond 40
(I) Fin-de-si`ecle decay: from Amsterdam to Nice 40
(II) The Treaty of Nice and its aftermath 41
Further reading 43
2 Constitutionalism and the 'failure' of the Constitutional
Treaty 44
1 Introduction 44
2 Constitutional law and the Court of Justice 45
(I) What makes the European Union different 45
(II) Van Gend en Loos 47
(III) Legitimacy of the 'new legal order' 51
3 The Constitutional Treaty 57
(I) Explaining the constitutional turn 57
(a) Success 61
(b) Enlargement 62
(c) The democratic challenge 63
(d) Roles and policies 68
4 Drafting of the Constitutional Treaty 70
(I) The Convention on the Future of Europe 70
(II) Process at the Convention 73
5 The Constitutional Treaty: a brief summary 76
6 Overview and assessment 80
Further reading 85
3 The EU Institutions 86
1 Introduction 86
2 The Commission 87
(I) The Commission bureaucracy 87
(a) The College of Commissioners 87
(b) The Directorates-General 92
(c) The Cabinets 93
(II) Powers of the Commission 93
(a) Legislative and quasi-legislative powers 93
(b) Agenda-setting 96
(c) Executive powers 98
(d) Supervisory powers 98
(III) Regulatory agencies and the Commission 99
3 The Council of Ministers 101
(I) Powers and workings of the Council 101
(II) Decision-making within the Council 102
(III) Management of the Council: the Presidency, the Secretariat
and COREPER 106
4 The European Council 108
5 The European Parliament 111
(I) Composition of the European Parliament 111
(II) Powers of the European Parliament 114
(a) Legislative powers of the European Parliament 114
(b) Powers over the Executive 116
(c) Powers of litigation 119
(d) Financial powers of the European Parliament 119
6 The Court of Justice and the Court of First Instance 120
(I) Jurisdiction of the Court of Justice 120
(II) Composition and working methods of the Court of Justice 122
(III) The Court of First Instance 124
(IV) Judicial Panels 127
7 Other institutions 127
(I) European Central Bank 127
(II) Court of Auditors 128
(III) Economic and Social Committee 128
(IV) The Committee of the Regions 129
Further reading 130
4 Community law-making 131
1 Introduction 131
2 EU legislation 132
3 Softlaw 137
4 Legal bases for Community legislation 140
5 Community primary legislative procedures 144
(I) Council legislation without consultation of the Parliament 145
(II) Consultation procedure 146
(III) Co-decision procedure 149
(a) The central features of the co-decision procedure 149
(b) Legislative practice under the co-decision procedure 151
6 Law-making and Enhanced Cooperation 155
7 Comitology 159
8 The 'democratic deficit' and the legislative process 167
(I) Representative democracy and national parliaments 168
(II) Participatory democracy and republicanism 171
(III) Deliberative democracy and the European public sphere 175
Further reading 178
9 Annex 178
5 Sovereignty and federalism: the authority of EU law
and its limits 182
1 Introduction 182
2 Sovereignty of EU law: primacy and the Court of Justice 183
(I) Pre-emption and the allocation of competences 188
(a) Exclusive competence 188
(b) Shared competence 190
(c) Supporting, coordinating and complementary action 193
(II) Fidelity principle 193
3 Contesting EU legal sovereignty: primacy and the national courts 196
(I) Case law of the national courts 196
(a) European constitutional sovereignty 198
(b) Unconditional national constitutional sovereignty 199
(c) Constitutional tolerance 201
(II) Academic commentary 206
4 Federal limits of EU law 209
(I) Principle of conferred powers 211
(II) Principle of subsidiarity 219
(a) Subsidiarity and judicial review 220
(b) Subsidiarity — changing the EU's legislative culture? 225
(c) Subsidiarity and process: national parliaments as guardians of EU
law-making 228
Further reading 230
6 Fundamental rights 232
1 Introduction 232
2 Development of fundamental rights protection in the EC legal order 234
(I) Incorporation of fundamental rights into EC law by the
Court of Justice 234
(II) Types of EC fundamental rights 237
3 Development of fundamental rights by the political institutions of
the European Union 241
(I) Fundamental rights and non-violation 241
(II) Fundamental rights and the external relations of the
European Union 243
(III) Development of an internal fundamental rights policy 244
4 The European Union Charter of Fundamental Rights 246
(I) Development of the Charter 246
(II) The rights and freedoms recognised in the Charter 253
(III) Interpretation of the Charter 258
5 Fundamental rights and the institutional scheme of the European Union 261
(I) Fundamental rights and the EU institutions 261
(II) Fundamental rights and the Member States 263
Further reading 270
7 Judicial relations in the European Union 272
1 Introduction 272
2 Mechanics of the preliminary reference procedure 273
(I) EC Treaty provisions 273
(II) The sequence of the reference procedure 277
3 Functions of the preliminary reference procedure 280
(I) Development of EC law 281
(II) Judicial review of EU institutions 283
(III) Preserving the unity of EC law 285
(IV) Dispute resolution 287
4 Preliminary references and the European judicial order 291
(I) Article 234 EC and the creation of a Community judicial order 291
(II) The subjects of the Community judicial order 293
(III) Docket-control by the Court of Justice 295
5 Reform of the judicial architecture of the European Union 303
Further reading 310
PART II Administrative law
8 Accountability in the European Union 311
1 Introduction 311
2 Nature and importance of accountability 312
3 Transparency 316
4 Responsibility and resignation: governance and the Commission 329
5 The European Ombudsman 337
Further reading 346
9 The Enforcement of European Law 348
1 Introduction 348
2 Enforcement by the Court of Justice: Articles 226–228 EC 349
(I) Article 226 EC procedure 350
(II) Complainants and Article 226 EC 353
(III) Scope of Member States' responsibilities 357
(IV) Sanction: Article 228 EC 360
(V) Conclusions 364
3 Enforcement through the national courts: direct effect 365
(I) Establishment of direct effect 366
(II) Liberalisation and expansion of direct effect 368
(III) Direct effect of Directives 371
(IV) Vertical direct effect and the extension of the state 380
4 Duty of consistent interpretation ('indirect effect') 381
(I) Establis
hment of the duty 381
(II) Extent of the duty 384
(III) When does the duty arise? 387
(IV) Range of measures that national courts must take into account 388
5 State liability 390
(I) 'National procedural autonomy' and its (partial) erosion 390
(II) Establishment of state liability 394
(III) Conditions for, and expansion of, state liability 400
Further reading 408
10 Judicial review: the legal accountability of
the community institutions 410
1 Introduction 410
2 Scope of judicial review under Article 230 EC 412
3 Standing to seek judicial review under Article 230 EC 416
(I) Privileged and semi-privileged applicants 417
(II) Non-privileged applicants: direct concern 418
(III) Non-privileged applicants: individual concern 420
(a) The Plaumann formula 420
(b) Individual concern and Regulations 424
(c) A more generous approach? 426
(d) Reform? 429
(e) Nature of applicants: private parties and interest groups 433
4 Grounds of review under Article 230 EC 436
(I) Intensity of review 436
(II) Lack of competence 437
(III) Infringement of an essential procedural requirement 439
(a) Right to be heard 440
(b) Duty to give reasons 446
(IV) Infringement of the EC Treaty or of any rule of law relating
to its application 448
(a) Proportionality 448
(b) Legal certainty and legitimate expectation 454
(V) Misuse of powers 456
(VI) Consequences of annulment 456
5 Liability under Article 288(2) EC 457
Further reading 463
PAR T III Social and economic law
11 The single market 465
1 Introduction 465
2 Nature of the single market 466
3 Reach of the single market project 470
4 Harmonisation 475
(I) Approaches to harmonisation: the 'old' approach and
the 'new' approach compared 475
(II) Harmonisation and plural interests 480
(III) Harmonisation and government by expertise 484
(IV) Harmonisation and the non-market values of the Member States 487
5 European standardisation 491
(I) European standardisation bodies 491
(II) European standardisation and the Community legislature 493
(III) Evaluating the European standardisation process 494
(a) Efficiency of the standard-setting process 495
(b) Representation 495
(c) Accountability 496
6 Mutual accommodation of national regimes 497
(I) Ex ante measures 497
(II) Ex post measures 501
Further reading 504
12 Economic and monetary union 506
1 Introduction 506
2 Liberalising payments and the movement of capital 508
3 The move to economic and monetary union 513
(I) Early attempts to achieve monetary unification 513
(II) The Delors blueprint for EMU and its implementation 516
(III) Economics of monetary unification and the Maastricht
convergence criteria 522
4 Economic policy coordination in the eurozone 528
(I) The fragmentary macro-economic policy-making framework
of EMU 528
(II) The excessive deficit procedure and the Stability Pact 530
5 Institutions of monetary union: the ECB and the ESCB 539
(I) Institutional framework of the ESCB 539
(II) Central bank independence and accountability 540
(III) Decentralised structure of the ESCB 551
(IV) Monetary policy in the eurozone 554
(V) External aspect of the eurozone 557
Further reading 559
13 Union citizenship 561
1 Introduction 561
2 Modern citizenship and its evolution 562
3 Distinctive nature of EU citizenship 566
(I) Composite nature of EU citizenship 567
(II) Complementary nature of EU citizenship 573
4 Political citizenship and representation rights 574
(I) Rights to vote and hold office 574
(II) Right to petition and hold the administration accountable 578
5 Citizenship and civil rights 580
(I) Right to diplomatic protection 580
(II) Right to move, reside and remain within the territory of the
Member States 581
(a) Administrative formalities 582
(b) Grounds for excluding the citizen from the host
state's territory 584
(III) Equality before the law 588
(IV) Family rights 589
(a) The EU idea of the family 590
(b) EU and non-EU family members 592
(c) Fundamental rights and family rights 594
6 Citizenship and social rights 597
Further reading 602
14 EU law and non-EU nationals 604
1 Introduction 604
2 Central themes of EU law on non-EU nationals 606
(I) Economic mercantilism 606
(II) National security and national sovereignty 608
(III) Humanitarianism 611
(IV) European security 613
3 Institutional architecture for non-EU nationals 615
(I) Legislative competencies 615
(II) Ring-fencing of national security 619
(III) Norms of fundamental rights 622
4 'Desirable' non-EU nationals: the Long-Term Residents
Directive 625
(I) Acquisition of long-term resident status 626
(II) Rights acquired against the host state 631
(III) Rights of long-term residents in other Member States 636
5 'Suspicious foreigners': the EU regime on asylum seekers 637
(I) Allocation of responsibilities between Member States for
asylum seekers 639
(II) Reception of asylum seekers 642
(a) Policing of asylum seekers through welfare 643
(b) Movement, residence and detention of asylum seekers 645
(c) Wider rights of asylum seekers 647
6 'Poor foreigners': refugees and subsidiary protection 648
(I) Acquisition and loss of refugee status 650
(II) Subsidiary protection 652
(III) Varying benefits of international protection 653
Further reading 656
15 Free movement of goods and the economic constitution 657
1 Introduction 657
2 Material reach of Articles 28 to 30 EC 659
3 Functions of Article 28 EC 661
(I) Economic constitutionalism 662
(II) Socially embedded market polity 664
(III) Economic supranationalism 665
4 Prohibition on discrimination 666
(I) Discrimination and the economic constitution 667
(II) Discrimination and the socially embedded market polity 670
(III) Discrimination and economic supranationalism 672
5 'Cassis de Dijon' and market integration 675
(I) 'Cassis de Dijon' and a new institutional settlement for
Article 28 EC 675
(II) Reach of 'Cassis de Dijon': Keck and the resort to formalism 681
6 Market access and the partial economic constitution 688
Further reading 696
16 The pursuit of an occupation in another Member State 697
1 Introduction 697
2 Taking up and pursuit of an occupation in another Member State 699
(I) Employment and self-employment 699
(II) Taking up an occupation in another Member State 702
(III) Performance of significant economic activity in another
Member State 702
(IV) Enjoyment of the rights and limits of EU citizenship 704
(V) Towards an overarching right to pursue an occupation in another
Member State 705
3 Restrictions on the taking up of an occupation 707
(I) Restrictions on the taking up of an occupation on grounds
of nationality 707
(II) Restrictions on access to labour markets 708
(III) Restrictions on secondary establishment 714
(IV) Restrictions on the use of diplomas and qualifications 716
4 Restrictions on the pursuit of an occupation 722
(I) Discrimination in labour markets 723
(II) Discrimination in the pursuit of a business 725
(III) Discrimination and social advantages 726
(IV) Non-discriminatory restrictions on the pursuit of an occupation 730
5 Free movement of companies 734
(I) Discrimination and foreign companies 734
(II) Relocation of company activity from one Member State to another 735
Further reading 741
17 Free movement of services 743
1 Introduction 743
2 Concept of a service and the material reach of Article 49 EC 747
(I) Private actors and Article 49 EC 748
(II) Presence of a gainful transaction 751
(III) Inter-state dimension to the transaction 751
(IV) Article 49 EC and the other economic freedoms 753
3 Article 49 EC and the market society 755
(I) Article 49 EC and market citizenship 755
(II) Article 49 EC and ethical goods 760
(III) Article 49 EC a
nd the supply of public goods 763
4 Discrimination and the provision of services 770
5 Indistinctly applicable restrictions on the provision of services 772
(I) Restrictions on who can provide services 772
(II) Beyond market access: the outer reaches of Article 49 EC 776
Further reading 779
18 Financial services 781
1 Introduction 781
2 Significance of financial services for the European economy 782
3 Creating a single market for financial services: an overview 786
(I) The 'passport' strategy 786
(II) Limits of mutual recognition 792
(III) Towards greater regulatory convergence: the Financial Services
Action Plan 799
4 Institutional reform 804
(I) Streamlining financial regulation: the Lamfalussy process 805
(II) Supervision in the single financial market 818
Further reading 828
19 Trade restrictions and public goods 830
1 Introduction 830
2 Public goods protected under EC law 831
3 Principles mediating conflicts between the economic freedoms and
public goods 836
(I) Prohibition on unequal treatment 837
(II) Measure must be effective 840
(III) Principle of equivalence 840
(IV) Measure must be the least restrictive necessary to
secure its objectives 844
4 Consumer protection 851
5 Environmental protection 856
6 Public health 860
7 Public policy, public security and public morality 864
8 Cohesion of fiscal regimes 867
Further reading 871
20 Discrimination Law 872
1 Introduction 872
2 Development of EC discrimination law 874
(I) Economic versus non-economic VIsions of EU law 874
(II) Equal opportunities versus substantive equality 879
(III) Core framework of EC discrimination law:
the labour market 880
3 Equality grounds 884
(I) Sex/gender 885
(II) Racial or ethnic origin 887
(III) Religion or belief 889
(IV) Disability 891
(V) Age 892
(VI) Sexual orientation 893
(VII) Excluded groups 895
4 Discrimination: meaning, defences and remedies 897
(I) Direct discrimination 897
(II) Indirect discrimination 899
(a) Concept of indirect discrimination 899
(b) Legitimate aim defence 900
(III) Harassment 900
(IV) Defences 903
(a) Genuine occupational requirements 903
(b) Other defences 905
(V) Remedies 908
(a) Procedures 908
(b) Compensation 910
5 Widening the scope of EC discrimination law 911
(I) Beyond the labour market 912
(II) Positive action 916
(a) Affirmative action under the 1976 Equal Treatment
Directive 916
(b) The new legislation 917
(III) Dialogue 920
(IV) Mainstreaming 922
(a) Gender mainstreaming 922
Further reading 925
PART IV Competition law and policy
21 EC competition law: functions and enforcement 927
1 Introduction 927
2 Aims of EC competition law 928
(I) Economics of competition 929
(II) Politics of competition law 934
(III) Aims of EC competition policy 936
3 Enforcement by the Commission 940
(I) First stage: investigation 941
(a) Requests for information and interviews 941
(b) Inspections 944
(II) Second stage: adjudication 946
(a) Statement of objections and access to the file 947
(b) Oral hearing 948
(III) Penalties for infringement 949
(a) Fining policy 950
(b) Leniency policy 952
(IV) Settlements 953
(V) The Commission's procedures: an assessment 954
4 Resettlement of competition regulatory authority 957
(I) Modernisation 957
(II) The Commission's new role 961
(III) Network of national competition authorities 962
(a) Case allocation 963
(b) Cooperation within the network 964
(IV) Assessment 966
5 Private enforcement 967
(I) Community right to damages 968
(II) Commission cooperation with national courts 971
(III) Prospects for private enforcement 972
Further reading 974
22 Restrictive practices 975
1 Introduction 975
2 Scope of application of EC competition law 978
(I) Undertakings 978
(II) Effect on trade between Member States 980
(III) Excluded agreements 983
3 Agreements, decisions and concerted practices 987
(I) Cartels 988
(II) Tacit collusion 994
(III) Distinguishing between agreement and unilateral action 996
4 Substantive assessment 1000
(I) History of the controversy 1000
(II) The procedural solution 1004
(III) Role of Article 81(3) EC 1006
5 Vertical restraints 1009
(I) The economic debate 1010
(II) EC competition law and vertical agreements 1015
(a) Scheme of the Block Exemption 1017
(b) Assessment 1021
Further reading 1022
23 Abuse of a dominant position 1024
1 Introduction 1024
2 Market definition 1026
(I) Product market definition 1027
(II) Geographical market definition 1030
(III) Supply substitutability 1033
(IV) Market Definition Notice 1035
3 Dominance 1041
(I) Concept of dominance 1041
(II) Market shares 1042
(III) Barriers to/ease of entry 1043
4 Abuse of dominance 1046
5 Exploitative abuse 1048
6 Exclusionary abuse 1050
(I) Predatory pricing 1052
(II) Refusals to supply 1056
(a) The seminal cases 1056
(b) The 'essential facilities' doctrine and refusals to license intellectual
property rights 1057
(c) Reconciling the case law 1058
(d) Competition versus innovation 1061
7 Perspectives on the evolution of the abuse doctrine 1064
Further reading 1067
24 Merger policy 1069
1 Introduction 1069
2 Jurisdiction and procedure 1072
(I) Transactions falling within the scope of the ECMR 1072
(II) Community dimension 1076
(III) Exceptions to one-stop-shop 1080
(IV) From notification to decision 1083
(V) Decision-making context 1085
(VI) Judicial review 1087
3 Substantive assessment 1089
(I) Creating or strengthening a dominant position 1090
(II) Coordinated effects in oligopoly markets 1095
(III) Non-coordinated effects in oligopoly markets 1098
(IV) Vertical mergers 1100
(V) Conglomerate mergers 1103
4 Merger defences 1108
(I) Efficiencies 1108
(II) The failing firm defence and other policy considerations 1110
Further reading 1113
25 State regulation and EC competition law 1114
1 Introduction 1114
2 Anti-competitive state regulation 1116
(I) A general obligation 1116
(II) A specific obligation 1122
3 Services of general interest 1133
(I) Definition of 'undertakings' 1134
(II) Application of Article 86(2) EC 1137
(III) Community approach to services of general economic interest? 1141
4 Positive integration: the liberalisation Directives 1144
5 Evaluation 1151
Further reading 1153
Index 1155
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