Professional Documents
Culture Documents
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 multi-
dimensional 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 law dealt with
in this book, reference should be made to:
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.
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
x Preface
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.
There are two sets of court reports published in English. The European Court Reports
(ECR) is the official reporter of cases before the Court of Justice of the European Union
and publishes all such cases. Reference will usually be made to these 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 Union 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:
Craig and de Búrca, EU Law, Text, Cases and Materials (6th edn, Oxford: OUP, 2015)
Woods, Watson and Costa, Steiner & Woods EU Law (13th edn, Oxford: OUP, 2017)
Hartley, The Foundations of European Union Law (8th edn, Oxford: OUP, 2014) (very
good on institutional and constitutional law)
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)
Preface xi
(d) Casebooks
Because of the rapid development of EU law, the most recent casebooks are the most
useful, such as:
Weatherill, Cases and Materials on EU Law (12th edn, Oxford: OUP, 2016)
The principal English language journals that publish articles on European Union law
include:
A major headache caused by both the Treaties of Lisbon and Amsterdam is the
renumbering of the Articles of the Treaty on European Union and of the European
Community Treaty, now the Treaty on the Functioning of the European Union. A table
of equivalences of the old and the new articles charting both alterations is included in the
Online Resources and the tables section of this book. The book uses the new numbers
throughout, but frequently refers to older numbers in brackets.
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.
Acknowledgements
The most important of the changes to the text for the sixth edition related to the ratification
of the Treaty of Lisbon, a major reform of the Treaties, albeit not in the form of the
originally envisaged ‘Constitution’. For the tenth edition, we have retained the scope of
the book from the sixth edition and updated the law and key Union developments since
the ninth edition. We would like to thank Noreen O’Meara, Menelaos Makakis, Alexis
Cooke and Esther McFarlane for the various contributions made to helping with these
updates. We would also like to express our gratitude to the numerous individuals who
have assisted and contributed to the different editions of the book.
Finally, 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 his family, and in particular Ian, for all their
support, and is still waiting in anticipation for the Winds of Winter. And Michael wishes
to nirringrazzjak ħafna għall-familja kollha.
London
February 2018
New to the tenth edition
• Th
e complex situation concerning the UK’s status in the European Union prior
to Brexit.
• F
urther post-Lisbon developments considered in detail with reference to continuing
eurozone problems, the problems surrounding the Schengen agreement and the
Dublin Convention in the light of the overwhelming refugee and asylum-seekers’
problem.
• Th
e increasing importance and interaction between EU law and International law in
the EU courts (Chapter 5).
• C
onsideration of new European Court case law in the field of the Four Freedoms,
with increased consideration given to the proportionality principle in the area of the
free movement of goods (Chapter 10).
• E
xtensive consideration of the expansion of the concept of citizenship, in particular
by the application of Directive 2004/38 and its interpretation by the European Court
(Chapters 12 and 13).
• Evaluation of the impact of the Services Directive (Chapter 13).
• C
onsideration of the role played by national courts and the European Court in the
area of competition (Chapter 14).
• Consideration of access to justice in the field of environment (Chapter 15).
• D
evelopment of the general principle of non-discrimination (Chapters 6 and 16) in
further case law on specific forms of discrimination.
Table of contents
1 Introduction 1
FU R T H E R READ ING 11
Introduction 40
The history of the institutions 42
The European Council 43
The Council 44
Decision-making procedure of the Council: voting procedures 50
The Luxembourg Accords and the ‘Ioannina Compromise’ 53
The Commission 55
xvi Table of contents
Introduction 293
The customs union 294
Free movement of goods provisions in the TFEU 295
Customs duties and common customs tariff 296
Charges having equivalent effect to a customs duty 297
Charges falling within the scope of internal taxation 302
FURT H ER READ ING 312
S E LF-T EST QUESTIONS 313
11 Free movement of services: the freedom to provide and receive services 353
Introduction 440
Facets of citizenship 446
Political citizenship and European Citizens’ Initiative 459
Problems with citizenship 461
FURT H ER READ ING 465
S E LF-T E ST QUESTIO NS 465
Introduction 558
Article 157 TFEU and Treaty changes relevant to sex equality 561
Does Article 157 TFEU have direct effect? 568
Temporal effect of Article 157 TFEU 569
Secondary legislation 569
Time limits and the secondary legislation 576
Burden of proof 577
Direct and indirect discrimination and justification 580
Discrimination on grounds of age, disability and sexual orientation:
discrimination as a ‘general principle’ 590
FU R T H E R READ ING 595
S E LF-T E ST QUESTIONS 595
Index 597
Table of abbreviations
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
COR Committee of the Regions
COREPER Committee of Permanent Representatives
CWP Commission’s Work Programme
DG Directorate General
EC European Community
ECA European Communities Act 1972
ECB European Central Bank
ECHR European Convention for the Protection of Human Rights and
Fundamental Freedoms
ECJ European Court of Justice
ECN European Competition Network
ECR European Court Reports
ECSC European Coal and Steel Community
ECtHR European Court of Human Rights
EEA European Economic Area
EEAS European External Action Service
EEC European Economic Community
EESC European Economic and Social Committee
EFTA European Free Trade Association
EMI European Monetary Institute
EMU Economic and Monetary Union
EP European Parliament
EU European Union
Euratom European Atomic Energy Community
Table of abbreviations xxiii
Capm. vii. Dic, Adam, dic, Eua parens, dic vnus et alter,
Dic tibi si desit gracia plena dei.
Cuncta tuis pedibus subiecit, ouesque bouesque,
570 Et volucres celi pisciculosque maris:
En, elementa tibi, sol, aer, sidera, tellus,
Diuitis vnda maris, cetera queque fauent.
Auctor enim rerum sic res decreuit, vt orbis
Queque creatura consequeretur eum;
Vt seruiret ei factura, suumque vicissim
Factorem solum consequeretur homo.
Erige sublime caput et circumspice mundum,
Collige cuncta, sue dant tibi queque manus:
Omnia subiecta tibi sunt, tibi cuncta ministrant,
580 Omnia respondent obsequiumque parant.
Qui tibi tanta tulit, qui pro te tanta peregit,
Qui pro te mundum duxit ad esse suum,
Qui dedit ex nichilo tantarum semina rerum,
Confusumque chaos ordine stare suo,
Sortes distribuens per partes quatuor equas,
Iratos motus temperat arte sua:
Sidere depingens celum, septemque planetas,
Et si nitantur, ad sua puncta vocans,
Signifer accessu solis signis duodenis
590 Tempora per totidem dat variare vices.
Qui totum mundum, postquam decreuerat illum,
Ornauit vario multiplicique bono,
Esse feras siluis, in montibus esse leones,
In planis pecudes, rupibus esse capras.
Pluma tegit volucres et oues sua lana decorat,
Inque tuos vsus est tamen hoc quod habent.
Respice delicias mundi, quas flumina dotes,
Quas tibi donat opes diuitis vnda maris;
Arboribusque sitis, herbis, radicibus ortos,613
600 Floribus et foliis fructiferisque bonis.
Pre cunctis recolat tua mens, quem te quoque
fecit,
Et de quam nichilo traxit ad esse bonum;
Nam tuus illius est spiritus, et tuus eius
Est sensus, racio de racione sua.
Te caput esse dedit rerum, rebusque locatis
Nomina te cunctis queque vocare dedit:
Qui tibi spem prolis dedit in mulieris amore,
Consortemque parem coniugiique fidem.
Te sibi pene parem fecit, te pene secundum,
610 Dicere si possem, prestitit esse deum:
Contulit in celum sese, tibi tradidit orbem,614
Et mundi tecum dimidiauit opes.
Celum sole tibi, sol lumine seruit, et aer
Flatibus, vnda cibis, terraque mille bonis.
Set quod es vnde tibi? quod habes quis prebet?
Vtrumque
Sponte facit pietas dulcis et ampla dei:
Qui tibi te tribuens sese promisit, eoque
Non habuit melius quod daret ipse deus.
Nonne superbire quemcumque virum decet ergo
620 Contra mandata que dedit ipse deus?
Celum deiecit set et odit terra superbum,
Solus et inferni fit locus aptus ei.
Hoc etenim vicio tactum fuit et viciatum,
Quod genitor primus protulit, omne genus:
In radice fuit omnis viciata propago,
Quo mundum quicquam mundus habere nequit.
Non fuit in mundo qui mundum mundificaret,
Nec quod in hoc venie posset habere locum:
Set pietate prius qui condidit omnia solus,
630 Ille reformauit et reparauit opus.
Accepit serui formam seruosque redemit,
Demonis et quod erat fecerat esse dei:
Hunc igitur superest deuota mente sequaris,
Vtque tuum dominum confitearis eum;
Preceptumque leue, vetitum non tangere crimen,
Si toto sequeris corde, beatus eris.
Capm. ix. O tibi quid dices, cum non mouet aura capillos,
Arent et fauces, nec via vocis inest,
Et color in vultu sine sanguine, lumina mestis
720 Sunt inmota genis osque madere nequit,
Atque per interius cum duro lingua palato618
Congelat, et pulsum vena mouere negat,
Nec flecti ceruix nec brachia plectere quicquid
Possunt, nec passus pes valet ire suos?
Quid modo respondet homo mortuus ille
superbus?
Dicat nunc quid ei gloria vana dabit.
Eius enim, nuper alios qui despiciebat,
Corporis exanimi iam perit omnis honor:
Et quia se corpus dudum tollebat in altum,
730 Vermibus esca modo subditur ipsa caro.
Non modo palpebra quasi dedignando leuatur,
Nec manus in longum planat vtrumque latus:
Quas vires habuit mortalis vis superauit,
Est musce spina forcior ecce sua.
Si decor aut species nuper florebat in illo,
Eius turpedo iam fugat omne pecus:
Si fuerat sapiens, modo differt a sapiente,
Est sibi conclusum quo nichil ipse sapit:
Que magis in studio peciit subtilia longo,
740 Mors ea dissoluit de breuitate cito.
Artibus in variis fuerat licet ipse peritus,
Iam cecidit prudens artis in arte sua:
Desinit ingenii racio sine iam racione,
Mors ruit in vacuum que racionis erant:
Littera quem docuit magis est indoctus asello,
Pectore nec remanet iota vel vnus apex.
Non sibi mentalis presumpcio iudicat vllos,
Se neque iactare mortua causa sinit:
Qui solet ypocrisi ficte virtutis honorem
750 Tollere, nunc monstrat quid fuit ipse palam.
Nil sibi quod genera linguarum nouerat olim
Confert, qui muto mortuus ore silet:
Organa nulla sibi nota vel citharistea plaudunt,
Quo perit auditus, musica nulla placet.
Nil valet ingenuas corpus coluisse per artes,
Qui modo nature perdidit omne decus:
Nil vestis pompa, nichil aut ascensus equorum,
Corpus iam rigidum magnificare queunt.
Nil sibi pulcra domus aut seruicium famulorum;
760 Nunc foris in populo nemo salutat eum:
Nunc serpens famulus puteusque vocabitur aula,
Nuncque loco thalami tetra cauerna datur.
Sic quia nuper eum fallebat gloria vana,
Nunc sibi nil remanet vnde superbus erit.
Hic loquitur de corporis mortui corrupcione
secundum Inuidiam.