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European Union Law Margot Horspool Matthew Humphreys Michael Wells Greco Full Chapter
European Union Law Margot Horspool Matthew Humphreys Michael Wells Greco Full Chapter
Margot Horspool
Emeritus Professor of European and Comparative Law at the University of Surrey; Fellow
in European Law of the British Institute of International and Comparative Law, London
Matthew Humphreys
Professor of Law: Vice Principal (Quality and Standards) and Head of School of Law and
Social Sciences, Royal Holloway, University of London; Professor at the University of
Notre Dame, London
Michael Wells-Greco
With contributions by
Impression: 1
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Ter herinnering aan mijn moeder, Johanna van Ling (1908–1997), in fond and lasting
memory of my husband Christopher (1940–2013), and to Isabella, Amelia, Jude, Opre
and Johan, Europeans of the new Millennium.
MATTHEW
MICHAEL
The law of the European Union has evolved considerably both in scope and importance
since the early days. The rapidly changing legal landscape has made it one of the most
interesting fields of law for the student, the teacher, the practitioner and even the legal
philosopher. Once perceived as a curiosity of only marginal interest to all but the
specialist, it has become of central importance for many aspects of the national legal scene,
so that the lawyer who dismisses Community law as an irrelevance does so at his—and his
insurer’s—peril. This risk is all the greater because much of Community law is hidden
behind national legislation.
In the early days, when lawyers asked what EC law was about, one could simply
recommend them to read the Treaty. Its structure was straightforward and so, for the most
part, were its terms. This is still good advice, for the Treaty remains the primary source of
law and it is impossible to understand Community law without knowing one’s way round
the Treaty. But the treaty structure has been complicated by the addition—without a clear
indication of their interrelationship—of the Single European Act, the EU Treaty and now,
increasingly, Third Pillar Conventions. The EC Treaty itself has been radically amended,
and there has been an explosion of secondary legislation, much of it highly technical.
Some of the new texts seem designed to paper over political differences rather than to set
out in a coherent way the legal rules and institutional relationships that form the basis of
the European Union. To an increasing extent, the Court of Justice is called upon to
complete or explain legislative uncertainties. So, simply to read the texts would give a very
incomplete understanding of their legal effect. They must be set in their historical and
political context and the special methods of interpreting multilingual texts must be
mastered.
This presents a challenge to the student and the teacher. The contours of the Community
legal system change so rapidly that textbooks quickly become out of date. The student
should, in any event, be exposed to more than one view of how the law has evolved, and
how it should be read, understood and applied.
Margot Horspool’s new book presents EU law, not as a static body of legal rules, but as a
dynamic system, evolving as much through case law and academic discussion as legislative
activity. It offers a comprehensive guide to the Union and Community system, looking at
the institutional structure and processes as well as the substantive and procedural law. A
particular strength of the book is that it encourages the reader to adopt a proactive,
reflective approach through the inclusion, at the end of each chapter, of self-test capsules
of questions and points for discussion.
This book is a worthy addition to the valuable contribution that University College London
has already made to the study of European law in the United Kingdom.
Luxembourg
3 September 1998
Foreword to the sixth edition,
at the time of the coming into
force of the Lisbon Treaty
Much has changed in the field of EU law since the publication of the fifth edition of this
book—most of all, as a result of the Lisbon Treaty coming into force.
On the simplest level, the structure of the Treaties has been changed and the Articles have
been renumbered. But the substantive changes are extensive and their consequences are
potentially far-reaching.
What was formerly the Third Pillar (Freedom, Security and Justice—formerly Justice and
Home Affairs) has been removed from the loose structures of inter-governmental
negotiation, and brought within the discipline of the ‘Community system’. Proposals in
this field of activity will now be fully subject to parliamentary and judicial control,
although public understanding is not made any easier by the proliferation of opt-outs.
Indeed, the number and complexity of Protocols and Declarations make the legal regime
extremely confusing, even for experts.
Two consequences of Lisbon have been less widely noticed and commented upon than they
should have been, in Britain at any rate.
The first is the importance attached by the Treaty on European Union to the principles of
conferral, subsidiarity and proportionality. All proposals must now pass these tests which
are, in principle at least, judicially enforceable. Judicial enforcement is, however, the
ultimate sanction. Of greater practical importance will be the disciplines imposed on the
political institutions, especially the Commission.
The second consequence, intimately connected with the first, is the role given to national
Parliaments as guardians of these principles in the evolution of EU proposals. The Council,
as an institution, represents the governments of the Member States and is closely involved
in the evolution of legislative proposals. The Lisbon Treaty presupposes that national
Parliaments may, and sometimes will, raise objections to proposals that have found favour
with their governments. The political consequences are potentially far-reaching.
In addition, the Treaty recognises, for the first time, the existence of regional Parliaments
with legislative powers. Admittedly, they are only to be consulted by national Parliaments,
and then only ‘where appropriate’. But the recognition that EU proposals may be of
legitimate concern to democratically accountable actors below the level of the Member
States is also a recognition that respect for subsidiarity is not the exclusive prerogative of
national institutions.
Looked at from this point of view, the Lisbon Treaty is not a further step towards a
‘European super-state’, but rather a step towards a Europe that recognises and protects the
variable geometry of its constituent parts. For one observer at least, it is a pity that the
Lisbon Treaty marks the end of the ‘European Community’—a title that is less ambitious
than ‘European Union’, but perhaps more truly reflective of what we would like to build.
David Edward
Edinburgh
25 June 2010
Foreword to the tenth edition
I am delighted to have been asked to write a foreword to this book, although this is a sad
and confusing time for those of us who have been involved in teaching and practising (and
in my case, judging) EU law.
The vote of the British people, by a slim majority, to leave the EU was the culmination of a
series of Eurosceptic posturings by our Prime Minister, David Cameron, in the vain hope
of uniting his fractured party and keeping at bay a perceived threat from UKIP. Our
current Prime Minster, Theresa May, in her speech in Florence, excused or explained the
outcome on the ground that ‘the European Union never felt to us like an integral part of
our national story in the way it does to so many elsewhere in Europe’. That may be true for
many of our fellow citizens, but not for all. How this sorry melodrama will end is, at the
moment, anyone’s guess.
In the meanwhile, one thing is certain: EU law will not become less important for law
students and practitioners in the UK. It will just become more difficult! People, goods and
services will continue to move between the UK and the EU. Directly or indirectly, EU law
will affect what they do. But the law to be applied will be not only the law of the Treaties
and the case law of the Court of Justice but also the law to be derived from the Withdrawal
Agreement (if any) and any further agreement as to future relations between the UK and
the EU. For the future student and practitioner in the UK, solving the puzzle of the Rubik’s
cube will be as nothing to the multidimensional legal problems with which they will be
faced.
So it becomes all the more important never to treat EU law as a form of black letter law
where it is simply a matter of identifying the applicable rule, interpreting it correctly, and
applying it to the case in hand. All the provisions of EU law must be understood and
interpreted in their own historical context (remote or very recent) and, in the case of
agreements between the UK and the EU27, in light of the intentions of the parties.
Brexit is only one of the many problems with which the EU institutions and Member States
are faced. I offer three examples. First, the immigration crisis has put strains not only on
the political relations between Member States but, more fundamentally, on the principle of
free movement of persons. Second, the rapidly deteriorating relations with Russia have
accentuated the importance of security co-operation and the law relating to the Treaty
provisions on Freedom, Security and Justice. Third, the legal protection of personal data,
which the Court of Justice has enhanced, is now threatened by the wilful misconduct or
negligence of global enterprises whose activities cannot easily be controlled by the EU or
the Member States.
EU law never was, and certainly is not now, confined to the law of the Single Market,
important as that is. As citizens, as well as students and practitioners, we have to ask
ourselves what we think our political and legal institutions are for, and whether our
expectations, and their claims, are rational and attainable.
David Edward
Edinburgh
April 2018
Preface
This book is intended as an introductory text to European Union law. Successive Treaties
follow the initial ones, the impact of European Union law has expanded even further than
before. It is becoming practically impossible for law students, and increasingly difficult for
legal practitioners in many areas, to do without at least a basic knowledge of European
law. This book hopes to serve as a guide and as a basis for further studies of the subject.
For a more extensive knowledge of any of the areas of European Union law dealt with in
this book, reference should be made to:
the original sources of European Union legislation
the case law of the Court of Justice and the General Court
textbooks on European Union law
casebooks on European Union law
European (and sometimes national) law journals
Internet sources, in particular the Europa website.
( a ) Original sources
European Union primary legislation is to be found in the various Treaties. There are
original versions of the treaties available in all 24 official languages of the Union, but
useful texts collate the Treaties and the most important secondary legislation. Foster,
Blackstone’s EU Legislation (OUP, latest edition); Rudden and Wyatt, EU Treaties and
Legislation (OUP, latest edition).
Regulations are numbered giving the number first, followed by the year of publication, e.g.
Regulation 1/2003; Directives indicate the year of publication first, followed by the
number, e.g. Directive 2004/38. The same applies to Decisions.
( b ) Case law of the European Courts
The Court of Justice cases are referred to by number, followed by the year. Cases before
the General Court of the European Union (formerly the Court of First Instance) are
preceded by a T, and cases before the Court of Justice of the European Union are preceded
by a C. Readers should note that the distinction between General Court and Court of
Justice cases only starts with the establishment of the Court of First Instance in 1989, and
cases before that date have no letter prefix. Appeals are marked P, interim measures are
marked R. Until September 2016, there was also a European Union Civil Service Tribunal,
where staff cases were heard and case numbers are preceded by an F.
The European Court Reports (ECR) was the official citation for Court of Justice of the
European Union reports. Reports have moved to electronic publication as from 2014 and
with this came a new citation system: the European Case Law Identifier (ECLI). The Court
has also retrospectively added an ECLI to all earlier judgments, and also to Opinions of the
Advocates General. Reference will usually be made to these official reports. The All
England Law Reports have published EU law reports since 1995 and reference will be
made to them where appropriate. Historically, a widely used unofficial reporter was the
Common Market Law Reports (CMLR). This series publishes the principal judgments of
the Court of Justice, competition decisions taken by the European Commission, important
judgments on EU law by courts of the Member States and other important
communications. Reference will be made to this series particularly in respect of national
cases which are not reported in the European Court Reports. Important judgments of the
Court are also reported in the Times Law Reports (TLR), the Independent, the Financial
Times and the Industrial Relations Law Reports (IRLR). Most accessible are the digital
reports of the Court of Justice, freely available from the Court’s website. The official
reports of the General Court (and the European Union Civil Service Tribunal) have for
some time only been available in digital format. The printed version remains the official
format of the Court of Justice reports, but these reports are also freely available online.
( c ) Textbooks
There are a number of textbooks which may be referred to for more extensive treatment of
the subjects in this book. It is best mainly to consult books published since the ratification
of the Lisbon Treaty, but some earlier books are still useful:
Woods, Watson and Costa, Steiner & Woods EU Law (Oxford: OUP, latest edition)
Hartley, The Foundations of European Union Law (8th edn, Oxford: OUP, 2014)
Kapteyn and Verloren van Themaat, Introduction to the Law of the European Union and
the European Communities, edited by L Gormley (4th edn, Kluwer, 2009)
Bermann, Goebel, Davey and Fox, European Union Law (3rd edn, Thomas Reuters
Westlaw, 2011)
( d ) Casebooks
Because of the rapid development of EU law, the most recent casebooks are the most
useful. While not exclusively a casebook, the most current book including extensive case
extracts is:
Craig and de Búrca, EU Law, Text, Cases and Materials (7th edn, Oxford: OUP, 2020)
( e ) Law journals
The principal English language journals that publish articles on European Union law
include:
Common Market Law Review (CMLRev)
European Law Review (ELRev)
The most useful website is that of the European Union itself: www.europa.eu, on which
most of the materials referred to in (a) and (b) may be found. In addition, all the latest
developments are also reported there. The website of the Court of Justice is
https://curia.europa.eu/.
Acknowledgements
The United Kingdom finally left the European Union in the period since the tenth edition
— the first time a Member State has done so. Yet for the all the debate and detailed
package of new rules affecting the UK and the EU, the structure of the European Union’s
founding Treaties is unchanged. We have retained the scope of the book from the previous
editions and updated the law and key Union developments since the tenth edition,
incorporating elements of the UK and EU Trade and Cooperation Agreement Treaty as
appropriate. We would like to thank Noreen O’Meara, Menelaos Makakis, and Adam
Lazowski for their contributions to particular chapters. We would also like to thank
Thomas Kozdron for research and assistance with updates to internal market law and the
law on the EU’s general principles. Finally, we would like to express our gratitude to the
numerous individuals who have assisted and contributed to the earlier editions of the
book.
Margot would like to thank her family, in particular her son David, who applied his
editorial experience to his reading of the entire text of the first edition, and always
remember her late husband Christopher, who put up bravely with her mental and physical
absences when working on this book in all its previous editions, with remarkably few
complaints. Matthew would like to thank all his students who have engaged with EU Law
at this time of great change, keeping it relevant while also looking at the big picture.
Despite appearances to the contrary, always believe positive change can happen if you
believe in it! And Michael would like to send his heartfelt thanks to David, Théa and Ava
for all the support, distraction and for just being wonderful.
• A new Chapter 17 covering the EU’s external relations, which includes the
relationship with the UK
• Expanded discussion of climate change policy and the EU
Throughout this book, a number of abbreviations are used to save space and to make the
text more concise:
AAC average avoidable costs
AFSJ Area of Freedom, Security and Justice
AG Advocate General
CFI Court of First Instance (now General Court)
CFSP Common Foreign and Security Policy
CJEU Court of Justice of the European Union
COR Committee of the Regions
COREPER Committee of Permanent Representatives
IP intellectual property
JHA Justice and Home Affairs
LRAIC long run average incremental cost
MEP Member of the European Parliament
NAP national action plan
NATO North Atlantic Treaty Organization
NCA Nuclear Cooperation Agreement
NGO non-governmental organisation
Alabaster v Woolwich plc (C-147/02) [2004] ECR I-3101; [2005] ICR 695, ECJ …
16.21, 16.104
Ålands Vindkraft (C-573/12) ECLI:EU:C:2014:2037, ECJ … 15.32
Albron Catering (C-242/09) [2010] ECR I-10309, ECJ … 6.121
Alpine Investments v Minister van Financiën (C-384/93) [1995] ECR I-1141, ECJ …
11.32, 11.55, 12.141
AM v EM (C-667/19) [2020] ECLI:EU:C:2020:1039 … 10.18
AM & S Europe Ltd v Commission (155/79) [1982] ECR 1575, ECJ … 6.4, 6.13, 6.137
Amministrazione delle Finanze dello Stato v San Giorgio (199/82) [1983] ECR
3595, ECJ … 7.136
Arsenal Football Club v Reed [2002] EWHC 2695 (Ch); [2003] 1 All ER 137 … 4.45
Art Treasures see Commission v Italy (‘Art Treasures’) (7/68)
Ascafor and Asidac v Administración (C-484/10) ECLI:EU:C:2012:113, ECJ … 10.20
[Inhalt]
J e1879
n t i n k T. Ned. D. Ver. IV p. LV („5o“); id. NLM. I, 11
id.1883
ibid. V, 176
id.1887
Cat. MPB. IX, 212
id.1888
ibid. XII, 65
W1894
e b e r Zool. Erg. III, 474
T 1896
h o m a s AMNH. (6) XVIII, 246
T r1897
o u e s s a r t Cat. Mam. 479.
mas,a. in Spiritus, Minahassa, Nord Celébes, 8. V.
Der Färbung und weichen Beschaffenheit des Pelzes nach eine sehr
schöne Art. Der Schwanz ist (nach dem S a r a s i n schen Spiritus-
Exemplar) unten gelblich, oben im basalen Drittel grau, im mittleren
zu gelblich übergehend, im distalen gelblich wie unten (dies zur
Ergänzung der J e n t i n k schen Beschreibung). Die schöne braune
Farbe der Oberseite ist scharf von der weissen Unterseite abgesetzt,
auch an den Beinen.
[Inhalt]
J.1867
E. G r a y PZS. 598
G1879
ü n t h e r ib. 75 (Mus everetti); J e n t i n k T. Ned. D.
Ver. IV p. LV („4o“) und p. LVI („2o“); id. NLM. I, 10
J e1883
n t i n k NLM. V, 177
H 1887
o f f m a n n Abh. Ber. Dresd. 1886/7 Nr. 3 p. 1, 4, 13;
T h o m a s PZS. 514 (Mus xanthurus und everetti);
J e n t i n k Cat. MPB. IX, 212
J e1888
n t i n k Cat. MPB. XII, 66
H 1893
i c k s o n Nat. N. Cel. 229 [26]
W1894
e b e r Zool. Erg. III, 474
T 1895
h o m a s AMNH. (6) XVI, 163 (Mus everetti)
id.1896
ibid. XVIII, 246
T r1897
o u e s s a r t Cat. Mam. 472
T 1898
h o m a s TZS. XIV, 400 (Mus everetti).
Bälge
a, b.mit Schädel, mares, Tomohon, Minahassa, Nord
Celébes, 11. VII 94 und 30. III 95.
Balg c.mit Schädel, fem. juv., Makassar, Süd Celébes. 26.
XI 95.
2 mares,
d–f. 1 fem., in Spiritus, Tomohon, Minahassa, Nord
Celébes, III und IV 94.
1 mas,
g, h. 1 fem., in Spiritus, Minahassa.
fem. juv.,
i. in Spiritus, Matinang Südspitze, 29. VIII 94.
Die Fundorte auf Celébes sind bis jetzt in der Minahassa: Tondano
(Brit. Mus.), Manado, Langowan, Tondano, Kakas, Amurang (Mus.
Leid.), Manado, Amurang, Lotta, Rurukan 3500 Fuss hoch, Berg
Masarang 3500 Fuss hoch (Mus. Dresd.), Berg Kelelonde 4000 Fuss
hoch (Hickson), Tomohon (Sarasins); ausserhalb der Minahassa:
Matinangkette, westlich vom Gorontaloschen (Sarasins); im Süden:
Makassar (Mus. Dresd. und Sarasins).
Die Art muss sehr zahlreich vorkommen nach der relativ grossen
Zahl von Exemplaren im Leidener und Dresdner Museum und in der
Ausbeute der Herren Sarasin zu urtheilen (in Dresden 17).
H i c k s o n erwähnt dies auch für den Berg Kelelonde und sagt,
dass diese Ratten die saftigen Stiele der Kaffeebeeren besonders
lieben und daher den Plantagen sehr schaden. Ratten sind in der
Minahassa eine gesuchte Zuspeise zum Reise, 3 Arten Rattenfallen
von dort befinden sich im Museum der Bataviaasch Genootschap
(Not. XXV, 145 1897 und LIV [1898]), was beides für die Häufigkeit
der Thiere spricht.
[Inhalt]
J e1879
n t i n k T. Ned. D. Ver. IV p. LV („7o“) und LVI („5o“, J.
verwies hier irrthümlich auf 6o p. LV = M. callitrichus); id.
NLM. I, 12
H 1887
o f f m a n n Abb. Ber. Dresd. 1886/7 Nr. 3 p. 12, 17, 21,
Tafel Fig. 2 a und b (Zähne); T h o m a s PZS. 514;
J e n t i n k Cat. MPB. IX, 211 pl. VII, 5–8 (Schädel)
J e1888
n t i n k Cat. MPB. XII, 65
W1894
e b e r Zool. Erg. III, 474
T 1896
h o m a s AMNH. (6) XVIII, 246
T r1897
o u e s s a r t Cat. Mam. 472
T 1898
h o m a s TZS. XIV, 409 Anm., pl. XXXVI, 1 (Zähne).
Lenomys, von den früheren Autoren zu Mus gestellt.
Bälge
a, b.mit Schädel, fem., Tomohon, Minahassa, Nord
Celébes, 6. und 18. III 94.
Skelette,
c, d. mas, fem., Tomohon III 94. [27]
Skelet, e. mas, Kema, Minahassa, Nord Celébes, VIII 93.
mares,
f, g. in Spiritus, Tomohon, III 94.
Bis jetzt nur aus der Minahassa und dem Gorontaloschen bekannt,
aus letzterem von Bone (Mus. Leid.), aus ersterer von Manado-
Langowan (Mus. Leid.), Lotta, Rurukan 3600 Fuss hoch, Berg
Masarang 3500 Fuss hoch, Amurang (Mus. Dresd.) und Tomohon
(Sarasins). Vielleicht ist der Verbreitungsbezirk der Art über Celébes
ein viel grösserer. Wenn man bedenkt, wie lange dieses relativ
grosse Thier aus der Minahassa, wo so viel gesammelt worden ist,
unbekannt blieb, so dürfte diese Vermuthung nicht ungerechtfertigt
erscheinen.
[Inhalt]
J.1867
E. G r a y PZS. 599 Echiothrix (Schädel abgebildet)
J e1879
n t i n k T. Ned. D. Ver. IV p. LVI. Echiothrix
id.1880
NLM. II, 12. Echiothrix
id.1883
ibid. V, 177. Echiothrix
id.1888
Cat. MPB. XII, 73. Echiothrix
F 1891
l o w e r & L y d e k k e r Intr. Mam. 477 Echinothrix
W1894
e b e r Zool. Erg. III, 474 Echiothrix
T 1896
h o m a s AMNH. (6) XVIII, 246 Craurothrix
T r1897
o u e s s a r t Cat. Mam. 502 Echiothrix.
Balg a. mit Schädel, fem., Tomohon, Minahassa, Nord
Celébes, 11. VII 94
2 fem.,
b–d. 1 mas juv., in Spiritus, Tomohon, IV 94 und IV 95.
Bis jetzt nur von der Minahassa, Nord Celébes, bekannt, und zwar
von den Localitäten Amurang (Mus. Dresd. und Mus. Leid.), Berg
Masarang 3500 Fuss hoch (Mus. Dresd.), Tomohon (Sarasins).
G r a y hatte zwar die Art von Australien beschrieben, aber
T h o m a s desavouirte diesen Fundort. Ob sie auf Celébes eine
grössere Verbreitung hat, wird die Zukunft lehren.
[Inhalt]
[Inhalt]
Ich bin an der Hand dieser Daten jetzt mehr geneigt, c 1/1 für die
Norm und c 0/1 für abnorm anzusehen. Bei seiner Gracilität kann der
Zahn unter Umständen früh ausbrechen oder ist überhaupt deciduös
und sein Fehlen daher, wie in dem von mir l. c. p. 24 beschriebenen
Falle, möglicherweise besser so zu erklären, als durch die Annahme,
dass er nie vorhanden gewesen sei; denn sein Nichtvorhandensein
bei j u n g e n Schädeln mit Milchgebiss oder Resten davon beweist
nicht, dass er nicht schon vorhanden gewesen sein konnte. [29]
[Inhalt]
Schädel,
a, b. mas und fem., von Tomohon, Minahassa, Nord
Celébes, III 94.
Schädel,
c. fem., von der Insel Djampea im Süden von
Celébes.
20d–x.
Geweihe: 1 von Kema (Nord Celébes), 3 von
Tomohon (Nord Celébes), 1 aus der Minahassa, 3 von
der Insel Djampea, 12 ohne nähere Bezeichnung aus der
Umgebung des Tominigolfes (in Gorontalo gekauft).
[30]