European Union Law
By Noëlle Quénivet and Christian Dadomo
()
About this ebook
European Union Law is written for students on LLB and GDL courses and aims to reflect developments in legal education. The book fully explores the core areas of European Union law, whilst setting them in a contextual and practical framework. Its writing style is accessible to all.
To show how the law applies in reality, key cases are summarised and explained in discrete boxes, and the structure of European Union law is abundantly illustrated with diagrams, tables and other visual aids. At the end of each chapter, summaries enable students to remember the main relevant points, and, to encourage them to engage further with the law, there are suggested reading lists.
New for this edition:
- expanded discussion on the post-Zambrano cases (including Chavez-Vilchez and others of 10 May 2017) on the rights of EU children living with third country nationals;
- explanation of Article 50 TEU and the state of the Brexit negotiations and the EU position up to 22 May 2017;
- new structure presenting the requirements for EU liability;
- inclusion of a discussion on the euro area and its future;
- inclusion of the EU Pilot Scheme regarding enforcement actions by the European Commission;
- inclusion of changes in light of the reform of the CJEU;
- inclusion of Scotch Whisky Association and Others v Lord Advocate case regarding the compatibility of minimum price per unit of alcohol with Article 34 TFEU;
- inclusion of Ålands vindkraft AB v Energimyndigheten case on protection of the environment as a derogation from Article 34 TFEU;
- expanded discussion on the European Citizenship Initiative, including the latest case Minority SafePack of 3 February 2017.
Noëlle Quénivet
Noëlle Quénivet is an Associate Professor in International Law and Head of the International Law and Human Rights Unit at the Faculty of Business and Law of the University of the West of England. She teaches European Union Law, Public International Law and International Humanitarian Law.
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Book preview
European Union Law - Noëlle Quénivet
EUROPEAN UNION LAW
EUROPEAN UNION LAW
Christian Dadomo and Noëlle Quénivet
THIRD EDITION
Hall and Stott Publishing Ltd
27 Witney Close
Saltford
BS31 3DX
© Christian Dadomo and Noëlle Quénivet 2020
The moral rights of the authors have been asserted
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior written permission of the copyright holder, application for which should be addressed to the publisher, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organisation.
Contains public sector information licensed under the Open Government Licence v3.0. EU material is © European Union, 1998–2020, source: http://eur-lex.europa.eu.
British Library Cataloguing in Publication Data
Data available
ISBN 978 0 993336 59 1
Typeset by Style Photosetting Ltd, Mayfield, East Sussex
PREFACE
Between the publication of the first edition in 2015 and the publication of the current one, the Brexit saga started and unravelled and will continue for some time.
It took the British Government nearly a year after the June 2016 referendum result to notify the EU of its intention to withdraw from the European Union under Article 50 TEU. The European Council then issued the Guidelines Following the United Kingdom’s Notification under Article 50 TEU on 29 April 2017 which formed the basis for the negotiation discussions. The negotiations on the UK withdrawal culminated, after months of difficult, complex, protracted negotiations and many political and constitutional peripeteia, with the entry into force of the final version of the Withdrawal Agreement on 1 February 2020 and the UK officially leaving the EU on 31 January 2020. The coming into force of the Withdrawal Agreement was followed by the opening of negotiations with the United Kingdom for a New Partnership Agreement. At the time of writing, these negotiations are still ongoing, and doubt has been cast as to their conclusion before the end of the transitional period on 31 December 2020.
However, whether the future relationship between the UK and the EU following the withdrawal is finalised or not, EU law will still play a major role in UK law, albeit in a subliminal way, and therefore a solid understanding of EU law would still be warranted for current or future British lawyers advising their clients on EU internal market regulations.
Brexit should not distract us from the latest key developments in EU law which have been incorporated in this third edition. These include, among others, the impact of the Smith and Poplawski cases on primacy of EU law and its relationship with direct effect; the reaction of Supreme constitutional courts (including the Ajos case of the Danish Supreme Court and the ECB case of the German Federal Constitutional Court); the new 2019 Regulation on the European Citizens’ Initiative and the latest cases; the latest developments regarding the roadmap on the completion of the economic and monetary union, the single market and the principle of mutual recognition; the recent case law of the CJEU on European citizenship (including Coman, Tjebbes, Chenchooliah, Banger, Lounes, Diallo, Vomero and TopFit) and in the field of competition law (including the ODD Drive cartel, Intel, Icap, Skanska cases).
This book is the result of years of teaching collaboration in European Union law between Christian Dadomo, Senior Lecturer, and Noëlle Quénivet, Associate Professor in International Law, at the University of the West of England at Bristol. It covers the relevant legal areas in a concise, yet not oversimplifying, manner and includes a growing amount of information, such as cases and practical examples, diagrams and flowcharts which were introduced, following discussion with our students, to clarify or dissect certain points of the law or explain a procedure in a chronological manner.
It will be of great use for all undergraduate or postgraduate students in the UK, Europe and beyond, discovering or rediscovering EU law and its intricacies.
Regular updates on all EU law and policy matters are also provided through social media accounts curated by the authors:
https://twitter.com/EULawPol57
https://eulawpol57.wordpress.com/
Christian Dadomo
Noëlle Quénivet
University of the West of England at Bristol
August 2020
CONTENTS
Preface
Table of Cases
Table of Legislation
Tables of Equivalences
Abbreviations
PART I THE FOUNDATIONS OF THE EUROPEAN UNION
1 Creation of the European Community and European Union
1.1 Introduction
1.2 Motives for European integration
1.3 The creation of international (European) organisations
1.4 Widening participation
1.5 Deepening cooperation
1.6 The UK’s attitude towards the European Union
1.7 Further reading
Summary
Test Your Knowledge
2 The Institutional Framework of the European Union
2.1 Introduction
2.2 Democracy and separation of powers within the European Union
2.2.1 Democracy in the EU
2.2.2 The separation of powers in the EU
2.3 The political institutions of the European Union
2.3.1 The Commission
2.3.2 The Council
2.3.3 The European Parliament
2.3.4 The European Council
2.4 The European Court of Auditors
2.5 The Monetary Union institutions: the European Central Bank and the European System of Central Banks
2.6 The Union’s advisory bodies
2.7 Further reading
Summary
Test Your Knowledge
3 Division of Competences between the Union and the Member States
3.1 Introduction
3.2 Powers
3.2.1 Principle of conferral
3.2.2 Implied powers
3.2.3 Residual powers
3.3 Union competences
3.3.1 Exclusive competences
3.3.2 Shared competences
3.3.3 Supportive competences
3.3.4 The enhanced cooperation procedure
3.4 Limits to competences
3.4.1 Principle of subsidiarity
3.4.2 Principle of proportionality
3.5 Further reading
Summary
Test Your Knowledge
4 The Sources of European Law
4.1 Introduction
4.2 Primary sources
4.3 Secondary sources
4.3.1 Legislative and non-legislative acts
4.3.2 Validity of EU acts
4.3.3 Article 288 TFEU
4.3.4 Other acts
4.4 Case law of the Court of Justice of the European Union
4.5 General principles of EU law
4.6 Fundamental rights: the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights
4.6.1 Charter of Fundamental Rights of the European Union
4.6.2 European Convention on Human Rights
4.7 International agreements
4.8 Further reading
Summary
Test Your Knowledge
5 The Law-making Process in the European Union
5.1 Introduction
5.2 The principles of law-making
5.2.1 Principles relating to the institutions
5.2.2 Principles relating to content and procedure
5.3 The legislative procedures
5.3.1 The ordinary legislative procedure
5.3.2 The special legislative procedure
5.4 The adoption of regulatory acts
5.5 Further reading
Summary
Test Your Knowledge
PART II THE RELATIONSHIP BETWEEN EU LAW AND NATIONAL LAWS
6 The Constitutional Pillars of European Union Law
6.1 Introduction
6.2 Supremacy of EU law
6.2.1 Rationale for the principle of supremacy
6.2.2 The creation and development of the principle of supremacy by the CJEU
6.2.3 Application of the principle of supremacy
6.2.4 The reaction of national constitutional courts to the principle of supremacy
6.2.5 The principle of supremacy in EU legal instruments and documents
6.3 Direct effect
6.3.1 The principle of direct effect
6.3.2 Direct effect of Treaty provisions
6.3.3 Direct effect of EU acts
6.3.4 Direct effect of international agreements
6.3.5 Circumventing the lack of horizontal direct effect of directives: indirect effect, triangular situations, incidental effect and the fundamental rights approach
6.4 Further reading
Summary
Test Your Knowledge
7 The Effectiveness of European Union law
7.1 Introduction
7.2 Enforcement actions against Member States under Articles 258 to 260 TFEU
7.2.1 The procedure
7.2.2 Financial penalties
7.3 Member State liability for breaches of EU law
7.3.1 Background to and rationale of the principle
7.3.2 Author of the violation: definition of a State
7.3.3 Development of the principle
7.3.4 Procedural autonomy and domestic responsibilities
7.4 Further reading
Summary
Test Your Knowledge
PART III THE EUROPEAN JUDICIARY
8 The Court of Justice of the European Union
8.1 Introduction
8.2 The Court of Justice
8.2.1 The aims and roles of the Court of Justice
8.2.2 The procedure
8.3 The General Court
8.4 Specialised courts
8.5 Methods of interpretation
8.6 The CJEU as a constitutional court and judicial activism
8.7 Further reading
Summary
Test Your Knowledge
9 Preliminary Ruling Procedure on Interpretation and Validity
9.1 Introduction
9.2 Jurisdiction of the Court of Justice of the European Union and division of tasks
9.2.1 Jurisdiction of the Court of Justice of the European Union
9.2.2 Division of tasks
9.3 Which ‘national court or tribunal’ can make a reference?
9.4 Obligation and discretion to refer
9.5 Can the Court of Justice of the European Union refuse to hear a preliminary reference?
9.6 The special preliminary ruling procedures
9.7 The effects of the ruling of the Court of Justice of the European Union
9.8 Further reading
Summary
Test Your Knowledge
10 Judicial Supervision of European Union Institutions
10.1 Introduction
10.2 Annulment of EU acts
10.2.1 Reviewable acts
10.2.2 Grounds of review
10.2.3 Time limits
10.2.4 Locus standi – who may seek annulment of an EU act?
10.2.5 Effect of annulment
10.3 Failure to act
10.4 Plea of illegality
10.5 Extra-contractual liability
10.5.1 Admissibility of the action
10.5.2 Requirements for a right to damages
10.6 Further reading
Summary
Test Your Knowledge
PART IV TRADE WITHIN THE INTERNAL MARKET
11 The Internal Market and Harmonisation
11.1 Introduction
11.2 From the common market to the internal market
11.2.1 The road to the Single European Act
11.2.2 The Single European Act and the internal market
11.2.3 The internal market of the 21st century
11.3 Harmonisation
11.3.1 The legal basis of harmonisation
11.3.2 Harmonisation, approximation or coordination?
11.3.3 Methods of harmonisation
11.4 Further reading
Summary
Test Your Knowledge
12 The Free Movement of Goods: The Customs Union and the Abolition of Tariff Barriers
12.1 Introduction
12.2 The Customs Union
12.2.1 The creation of the Customs Union
12.2.2 The Union Customs Code
12.2.3 The internal and external aspects of the Customs Union
12.3 The definition of ‘goods’
12.4 The elimination of tariff barriers
12.4.1 The abolition of customs duties
12.4.2 Charges having equivalent effect to customs duties
12.4.3 Permissible charges
12.4.4 The prohibition of discriminatory internal taxation
12.5 Further reading
Summary
Test Your Knowledge
13 The Free Movement of Goods: The Abolition of Non-tariff Barriers
13.1 Introduction
13.2 The prohibition of physical and technical barriers
13.2.1 Measures caught under Articles 34 and 35 TFEU
13.2.2 Quantitative restrictions
13.2.3 Measures having equivalent effect to quantitative restrictions on imports
13.2.4 Quantitative restrictions and measures having equivalent effect on exports
13.3 Further reading
Summary
Test Your Knowledge
14 The Free Movement of Goods: Derogations and Justifications
14.1 Introduction
14.2 Treaty derogations
14.2.1 Derogations under Article 36 TFEU
14.2.2 Derogations under Article 114 TFEU
14.3 Justifications in the case law of the Court of Justice
14.3.1 The first Cassis de Dijon principle
14.3.2 Principles of law
14.4 Further reading
Summary
Test Your Knowledge
15 Freedom to Exercise an Economic Activity
15.1 Introduction
15.2 Free movement of workers
15.2.1 The concept of worker
15.2.2 The worker’s rights
15.3 Freedom of establishment and freedom to provide services
15.3.1 The concept of establishment
15.3.2 The concept of services
15.3.3 The beneficiaries of the freedom of establishment and the freedom to provide services
15.3.4 The Services Directive
15.4 The principle of non-discrimination
15.4.1 Prohibition of direct and indirect discrimination
15.4.2 Non-discrimination and access to an economic activity
15.4.3 Non-discrimination and pursuit of an economic activity
15.4.4 Prohibition of non-discriminatory restrictions
15.5 Mutual recognition of professional qualifications
15.5.1 The original legislative movement
15.5.2 The new approach to harmonisation
15.6 Activities falling outside the scope of those freedoms
15.6.1 Public service
15.6.2 Exercise of official authority
15.7 Further reading
Summary
Test Your Knowledge
PART V COMPETITION LAW
16 Core Concepts of Competition Law
16.1 Introduction
16.2 The concept of ‘undertaking’
16.2.1 Irrelevance of the form or legal status
16.2.2 The economic nature of the activity
16.2.3 Specific sectors of activities
16.2.4 Single economic entity
16.3 Market definition
16.3.1 The importance of the concept of relevant market
16.3.2 Purpose of market definition
16.3.3 Definition of relevant market
16.4 The concept of ‘effect on trade between the Member States’
16.4.1 The purpose of the concept
16.4.2 Definition and interpretation of the concept
16.4.3 Appreciability
16.4.4 The applicability of the concept to agreements or abuses covering one, or part of a, single Member State
16.5 Further reading
Summary
Test Your Knowledge
17 Substantive Competition Rules Applicable to Undertakings
17.1 Introduction
17.2 Control of horizontal and vertical restraints under Article 101 TFEU
17.2.1 The general economy of Article 101(1) TFEU
17.2.2 The constituent elements of Article 101(1) TFEU
17.2.3 Article 101(1) TFEU applies to horizontal and vertical agreements alike
17.2.4 The nullity of a restrictive agreement under Article 101(2) TFEU
17.2.5 Exemptions under Article 101(3) TFEU
17.3 Abuse of dominant position
17.3.1 Market power
17.3.2 Dominance in a substantial part of the internal market
17.3.3 Abuse
17.4 Concentrations
17.4.1 Definition of a concentration
17.4.2 The Union dimension of concentrations
17.4.3 Appraisal of concentrations
17.5 Further Reading
Summary
Test Your Knowledge
18 Enforcement of Competition Rules
18.1 Introduction
18.2 The territoriality principle in EU competition law
18.3 Public enforcement of competition rules
18.3.1 The modernisation of European competition law
18.3.2 The enforcement of Articles 101 and 102 TFEU
18.4 Private enforcement of competition rules
18.4.1 Private enforcement in the national courts
18.4.2 The new EU regime governing actions for damages under national law for breaches of competition law
18.5 Further reading
Summary
Test Your Knowledge
PART VI EUROPEAN CITIZENSHIP AND THE FREE MOVEMENT OF EUROPEAN CITIZENS
19 European Citizenship
19.1 Introduction
19.2 From a People’s Europe to European citizenship
19.2.1 People’s Europe and citizens’ Europe
19.2.2 European citizenship under the EU treaties
19.2.3 European citizenship and national citizenship
19.3 The status of European citizens
19.3.1 Citizenship as the fundamental status of EU nationals
19.3.2 The political rights of European citizens
19.3.3 The legal protective rights of European citizens
19.4 Further reading
Summary
Test Your Knowledge
20 The Free Movement of European Citizens
20.1 Introduction
20.2 Free movement within the area of freedom, security and justice
20.2.1 Genesis of the area of freedom, security and justice
20.2.2 The area of freedom, security and justice under the Lisbon Treaty
20.3 European Union migrants and family members’ right to free movement and residence
20.3.1 Economically active and inactive EU migrants
20.3.2 Migrants’ family members
20.3.3 Right to move and reside in another Member State
20.4 Equal treatment rights
20.5 Limits to free movement rights
20.5.1 Conditions of application
20.5.2 Grounds for justification
20.5.3 Protection against restrictive measures
20.6 Further reading
Summary
Test Your Knowledge
Index
TABLE OF CASES