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Chapter

Cover An Introduction to European Law

Introduction  

This introductory chapter provides an overview of the European Union, which is based on two treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The TEU contains the general provisions defining the EU, while the TFEU contains the specific provisions with regard to the EU institutions and policies. The EU Treaties are treaties whose substance is mainly made up from institutional provisions that are to provide the framework for subsequent secondary law. The policy areas in which the EU can act are thereby set out in Parts III and V of the TFEU. In order to legislate within one of these policy areas, the Union must have a legislative competence. These competences will constitute the principal legislative fountain for a particular part of European Union law. This book then analyses the creation, enforcement, and substance of European law.

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Cover EU Law

3. The Institutions  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. There are seven principal institutions listed in Article 13 of the Treaty on European Union entrusted with carrying out the tasks of the Union: the European Parliament, the European Council, the Council, the Commission, the Court of Justice of the European Union, the European Central Bank, and the Court of Auditors. This chapter considers their respective roles and the way in which they interrelate, and also looks at other important institutions such as the Economic and Social Committee, the Committee of the Regions, and agencies. The UK version contains a further section analysing the relation between the UK and the institutions post-Brexit.

Chapter

Cover EU Law

3. The Institutions  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. There are seven principal institutions listed in Article 13 of the Treaty on European Union entrusted with carrying out the tasks of the Union: the European Parliament, the European Council, the Council, the Commission, the Court of Justice of the European Union, the European Central Bank, and the Court of Auditors. This chapter considers their respective roles and the way in which they interrelate, and also looks at other important institutions such as the Economic and Social Committee, the Committee of the Regions, and agencies. The UK version contains a further section analysing the relation between the UK and the institutions post-Brexit.

Chapter

Cover An Introduction to European Law

6. (Legal) Primacy  

This chapter assesses the ‘primacy’ of European law. When the European Union was born, the European Treaties did not expressly mention the primacy of European law. Did this mean that primacy was a matter to be determined by each national legal order; or was there a European Union doctrine of primacy? There are two perspectives on the primacy question. According to the European perspective, all Union law prevails over all national law. This ‘absolute’ view is not, however, shared by the Member States. According to the national perspective, the primacy of European law is relative. The chapter then considers the two national challenges to the absolute primacy of European law. The first is the national claim asserting the relative primacy of European law in the context of fundamental human rights. The second is the contested question of who is the ultimate arbiter of the scope of the European Union's competences.

Chapter

Cover European Union Law

2. Development of the EU  

Paul Craig

This chapter traces the development of what is now the EU. It first describes the origins of ideas of European unity. It then discusses the various treaties that paved the way towards broader European integration. These include the European Coal and Steel Community Treaty of 1951,the Single European Act 1986, the Treaty on European Union (TEU) of 1992, and the Lisbon Treaty of 2009. Next, the chapter turns to the impact of the global financial crisis on the EU and considers several theories of integration.

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Cover An Introduction to European Law

8. European Actions  

This chapter describes the direct enforcement of European law in the European Courts. The judicial competences of the European Courts are enumerated in the section of the Treaty on the Functioning of the European Union (TFEU) dealing with the Court of Justice of the European Union. The chapter discusses four classes of judicial actions. The first class is typically labelled an ‘enforcement action’ in the strict sense of the term. This action is set out in Articles 258 and 259 TFEU and concerns the failure of a Member State to act in accordance with European law. The three remaining actions ‘enforce’ the European Treaties against the EU itself. These actions can be brought for a failure to act, for judicial review, and for damages.

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Cover EU Law

11. EU International Relations Law  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses EU law on international relations. The area of external relations has become increasingly important in recent years, as the EU strives to enhance its global presence on issues such as trade, climate change, development, human rights, and international terrorism. Some of the crucial issues for the conduct of EU international relations are effective coordination across policy fields, coordination between the EU and the Member States, and coordination at the level of international representation. Consistency across and between policies has become a constitutional requirement of EU external relations. The UK version contains a further section analysing how far EU law concerning international relations impacts on the UK post-Brexit.

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17. Damages Actions and Money Claims  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. Article 340 of the Treaty on the Functioning of the European Union (TFEU) governs compensation against the EU. It leaves the Court of Justice of the European Union with considerable room for interpretation, and directs it to consider the general principles common to the laws of the Member States. The key issue is the test for liability where losses are caused by EU acts that are illegal. The Court has fashioned different tests for cases where the challenged act is of a discretionary nature and for those where it is not. This chapter discusses the application of Article 340 in relation to discretionary and non-discretionary EU acts, official acts of Union servants, valid legislative acts, causation and damage, joint liability for the EU and Member States, contractual liability, and restitution. The UK version contains a further section analysing the relevance of Article 340 in relation to the UK post-Brexit.

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Cover EU Law

4. Competence  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The existence and scope of EU competence are outlined in the Lisbon Treaty: the EU may have exclusive competence, shared competence, or competence only to take supporting, coordinating, or supplementary action. This chapter examines these three principal categories of EU competence, and their implications for the divide between EU and Member State power. It also considers certain areas of EU competence that do not fall within these categories, and the extent to which the new regime clarifies the scope of EU competence and contains EU power. The UK version contains a further section analysing issues of EU competence in relation to the UK post-Brexit.

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9. The Application of EU Law: Remedies in National Courts  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines the application of EU law by national courts and the way in which the CJEU controls national remedies for breach of EU law. Article 19 of the Treaty on European Union contains a new clause added by the Lisbon Treaty, which specifies that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Article 47 of the Charter of Fundamental Rights provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. However, beyond these broad new provisions, EU law does not lay down any general scheme of substantive or procedural law governing remedies for its enforcement. The European Court of Justice has responded to the lack of a harmonized system of EU remedies by requiring national courts, in certain cases, to make available a particular type of remedy (e.g., restitution or interim relief), regardless of whether this would be available under national law. The UK version contains a further section analysing issues concerning remedies and EU law in relation to the UK post-Brexit.

Chapter

Cover EU Law

11. EU International Relations Law  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses EU law on international relations. The area of external relations has become increasingly important in recent years, as the EU strives to enhance its global presence on issues such as trade, climate change, development, human rights, and international terrorism. Some of the crucial issues for the conduct of EU international relations are effective coordination across policy fields, coordination between the EU and the Member States, and coordination at the level of international representation. Consistency across and between policies has become a constitutional requirement of EU external relations. The UK version contains a further section analysing how far EU law concerning international relations impacts on the UK post-Brexit.

Chapter

Cover EU Law

17. Damages Actions and Money Claims  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. Article 340 of the Treaty on the Functioning of the European Union (TFEU) governs compensation against the EU. It leaves the Court of Justice of the European Union with considerable room for interpretation, and directs it to consider the general principles common to the laws of the Member States. The key issue is the test for liability where losses are caused by EU acts that are illegal. The Court has fashioned different tests for cases where the challenged act is of a discretionary nature and for those where it is not. This chapter discusses the application of Article 340 in relation to discretionary and non-discretionary EU acts, official acts of Union servants, valid legislative acts, causation and damage, joint liability for the EU and Member States, contractual liability, and restitution. The UK version contains a further section analysing the relevance of Article 340 in relation to the UK post-Brexit.

Chapter

Cover EU Law

4. Competence  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The existence and scope of EU competence are outlined in the Lisbon Treaty: the EU may have exclusive competence, shared competence, or competence only to take supporting, coordinating, or supplementary action. This chapter examines these three principal categories of EU competence, and their implications for the divide between EU and Member State power. It also considers certain areas of EU competence that do not fall within these categories, and the extent to which the new regime clarifies the scope of EU competence and contains EU power. The UK version contains a further section analysing issues of EU competence in relation to the UK post-Brexit.

Chapter

Cover EU Law

9. The Application of EU Law: Remedies in National Courts  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines the application of EU law by national courts and the way in which the CJEU controls national remedies for breach of EU law. Article 19 of the Treaty on European Union contains a new clause added by the Lisbon Treaty, which specifies that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Article 47 of the Charter of Fundamental Rights provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. However, beyond these broad new provisions, EU law does not lay down any general scheme of substantive or procedural law governing remedies for its enforcement. The European Court of Justice has responded to the lack of a harmonized system of EU remedies by requiring national courts, in certain cases, to make available a particular type of remedy (e.g., restitution or interim relief), regardless of whether this would be available under national law. The UK version contains a further section analysing issues concerning remedies and EU law in relation to the UK post-Brexit.

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Cover EU Law

21. Free Movement of Capital and Economic and Monetary Union  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter, focuses on the free movement of capital and economic and monetary union (EMU). It first considers the movement of capital, one of the four freedoms enshrined in the original Rome Treaty. It then discusses EMU and analyzes the movement towards EMU, and the Treaty provisions that set the legal framework for EMU. The chapter considers arguments for and against EMU and the position of the European Central Bank, concluding with an overview of the stresses and strains of EMU in the light of the banking and financial crisis. The UK version contains a further section analysing issues concerning free movement of capital between the EU and the UK post-Brexit.

Chapter

Cover EU Law

21. Free Movement of Capital and Economic and Monetary Union  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter, focuses on the free movement of capital and economic and monetary union (EMU). It first considers the movement of capital, one of the four freedoms enshrined in the original Rome Treaty. It then discusses EMU and analyzes the movement towards EMU, and the Treaty provisions that set the legal framework for EMU. The chapter considers arguments for and against EMU and the position of the European Central Bank, concluding with an overview of the stresses and strains of EMU in the light of the banking and financial crisis. The UK version contains a further section analysing issues concerning free movement of capital between the EU and the UK post-Brexit.

Chapter

Cover An Introduction to European Law

Epilogue Brexit: Past, Present, Future  

This epilogue discusses the past, present, and future of the British exit (‘Brexit’) from the European Union. It begins by offering a brief historical overview of the past tensions between the United Kingdom and the European Union in an attempt to better explain the ‘special’ unease with which the United Kingdom viewed European integration. A former imperial and global power, its political self-understanding indeed differed from the very beginning from that of other Member States. The chapter then explores the ‘present’ withdrawal process under Article 50 TEU and the ‘Withdrawal Agreement’. It also analyses four possible EU–UK trade relationship options. Will both parties decide to create a common customs union or will they conclude a ‘Canada Plus’ agreement? A future trade deal is currently being negotiated; yet the option of a ‘hard’ Brexit remains.

Chapter

Cover An Introduction to European Law

4. Fundamental Rights  

This chapter evaluates the European fundamental rights. Human rights constitutionally limit the exercise of all European Union competences—including its legislative competences. Three sources of European fundamental rights were subsequently developed: the ‘unwritten’ bill of rights in the form of general principles of European law; the European Convention on Human Rights (ECHR); and the EU Charter of Fundamental Rights. The chapter investigates these three bills of rights of the EU, beginning with the discovery of an ‘unwritten’ bill of rights in the form of general principles of European law. It then discusses possible structural limits to European human rights in the form of international obligations flowing from the United Nations Charter. The chapter also analyses the EU's ‘written’ bill of rights in the form of its Charter of Fundamental Rights. Finally, it explores the ECHR as an external bill of rights for the EU.

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Cover An Introduction to European Law

5. Direct Effect  

This chapter focuses on the direct effect of European law in the national legal orders. The European Union insists on a monistic relationship between European and national law. This, in particular, means that the EU will itself determine the effect of its law in the national legal orders. The chapter then looks at the direct effect of the European Treaties. The European Treaties are, however, mainly framework treaties; that is, they primarily envisage the adoption of European secondary law and especially EU legislation. This secondary law may take various forms, which are set out in Article 288 TFEU. The provision acknowledges three binding legal instruments—regulations, directives, and decisions—and two non-binding instruments. Much of the constitutional discussion on the direct effect of European secondary law has consequently concentrated on the direct effect of directives. The chapter also analyses the doctrine of indirect effect within the EU legal order.

Chapter

Cover An Introduction to European Law

9. Internal Market: Goods I  

This chapter explores the European Union's negative integration tools in the context of the free movement of goods. In order to create an internal market in goods, the EU insists that illegal barriers to intra-Union trade must be removed. Its constitutional regime is, however, split over two sites in Part III of the TFEU. It finds its principal place in Title II governing the free movement of goods, which is complemented by a chapter on ‘Tax Provisions’ in Title VII. Within these two sites, one finds three important prohibitions. The first is the prohibition on customs duties, which are fiscal duties charged when goods cross national borders. The second type of fiscal charge is the discriminatory taxes imposed on foreign goods. The chapter then investigates the legality of and possible justifications for regulatory restrictions to trade in goods.