European Union Law

EUROPEAN UNION LAW

EUROPEAN UNION LAW

Christian Dadomo and Noëlle Quénivet

THIRD EDITION

Hall and Stott Publishing Ltd

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Saltford

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© Christian Dadomo and Noëlle Quénivet 2020

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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.

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ISBN 978 0 993336 59 1

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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