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{"title":"Soft Law Before the European Courts: Discovering a ‘common pattern’?","authors":"M. Eliantonio, Oana Stefan","doi":"10.1093/YEL/YEY017","DOIUrl":"https://doi.org/10.1093/YEL/YEY017","url":null,"abstract":"Citing this paper Please note that where the full-text provided on King's Research Portal is the Author Accepted Manuscript or Post-Print version this may differ from the final Published version. If citing, it is advised that you check and use the publisher's definitive version for pagination, volume/issue, and date of publication details. And where the final published version is provided on the Research Portal, if citing you are again advised to check the publisher's website for any subsequent corrections.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"13 1","pages":"457-469"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87840537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article engages in a critical reading of the treatment of issues concerning the jurisdiction of the European Court of Justice (the Court), the rule of law, and the principle of unity of EU law in the Rosneft ruling of March 2017, and offers a contemplation of the nature of the Court's jurisdiction and of its role in the EU legal order. In Rosneft, the Court engaged in a judicial correction of the scheme of Common Foreign and Security Policy (CFSP) remedies in the Treaties. In light of previous developments in case law, the finding of jurisdiction to hear preliminary rulings on the validity of CFSP acts in Rosneft was doctrinally unsurprising. That being said, the justifications offered for that finding in the ruling slightly mistreat both the Treaty text and the case law upon which they build. The reading given to Rosneft in this article suggests that the outcome of the jurisdictional question in the case is primarily based on considerations flowing from the principle of unity of EU law and the Foto-Frost maxim. This notwithstanding, the Court's reasoning rested centrally on arguments relying on the principle of the rule of law, thus making the justifications seem like a veneer rarher than a transparent representation of the logic underlying the ruling. It is suggested that in light of the interests at play, a more open emphasis of all relevant considerations in the ruling would have been both possible and preferable. After sketching an alternative reasoning for the rationale of Rosneft and discussing the risk of future expansion of Article 267 TFEU jurisdiction within the field of CFSP, the article concludes by drawing conclusions on the implications of the chosen manner of justification for the Court itself, and on the importance of the Court's self-depiction in Rosneft for the broader scheme of the Treaties.
{"title":"Jurisdiction, Rule of Law, and Unity of EU Law in Rosneft","authors":"M. Kuisma","doi":"10.1093/YEL/YEY016","DOIUrl":"https://doi.org/10.1093/YEL/YEY016","url":null,"abstract":"This article engages in a critical reading of the treatment of issues concerning the jurisdiction of the European Court of Justice (the Court), the rule of law, and the principle of unity of EU law in the Rosneft ruling of March 2017, and offers a contemplation of the nature of the Court's jurisdiction and of its role in the EU legal order. In Rosneft, the Court engaged in a judicial correction of the scheme of Common Foreign and Security Policy (CFSP) remedies in the Treaties. In light of previous developments in case law, the finding of jurisdiction to hear preliminary rulings on the validity of CFSP acts in Rosneft was doctrinally unsurprising. That being said, the justifications offered for that finding in the ruling slightly mistreat both the Treaty text and the case law upon which they build. The reading given to Rosneft in this article suggests that the outcome of the jurisdictional question in the case is primarily based on considerations flowing from the principle of unity of EU law and the Foto-Frost maxim. This notwithstanding, the Court's reasoning rested centrally on arguments relying on the principle of the rule of law, thus making the justifications seem like a veneer rarher than a transparent representation of the logic underlying the ruling. It is suggested that in light of the interests at play, a more open emphasis of all relevant considerations in the ruling would have been both possible and preferable. After sketching an alternative reasoning for the rationale of Rosneft and discussing the risk of future expansion of Article 267 TFEU jurisdiction within the field of CFSP, the article concludes by drawing conclusions on the implications of the chosen manner of justification for the Court itself, and on the importance of the Court's self-depiction in Rosneft for the broader scheme of the Treaties.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"41 1","pages":"3-26"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77965146","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Creeping Juridification of the Code of Conduct for Business Taxation: How EU Codes of Conduct Become Hard Law","authors":"Anna Beckers","doi":"10.1093/YEL/YEY006","DOIUrl":"https://doi.org/10.1093/YEL/YEY006","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"56 1","pages":"569-596"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78075931","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article discusses the Grimaldi obligation, that is, the duty of national courts to take European soft law into account when deciding cases, in view of the evidence from the longitudinal study of the Grimaldi jurisprudence, it is suggested that although the doctrine has not changed, the world around it has. While the ECJ has not reversed the precedent set by Grimaldi, nearly three decadades of EU soft law making have eroded the foundations of the doctrine to the extent that the obligation has become heavily nuanced. First, to the extent that the soft law measure is issued by an EU institution and its development is foreseen in primary or secondary law, Member State courts can depart from the interpretation offerd in the measure only if they can provide detailed and substantively valid reasons why it should not apply. Secondly, if the soft law instrument is free-standing, that I derived from primary or secondary law, or where non-binding guidance is given by actors other than the institutions, the Member State court has more leeway to decide whether or not to take non-binding guidance into account. The third noteworthy feature that emerges from the analysed jurisprudence is that Member State courts have become more proactive in challenging EU soft law, and, insofar as it is an act of the EU institution, the Court is cautiously accepting validity challenges posed by Member State courts in the preliminary reference procedure. This suggests that if a new or revised Grimaldi is to be found, it should be through judicial dialogue.
{"title":"National Courts and European Soft Law: Is Grimaldi Still Good Law?","authors":"Emilia Korkea‐aho","doi":"10.1093/YEL/YEY008","DOIUrl":"https://doi.org/10.1093/YEL/YEY008","url":null,"abstract":"This article discusses the Grimaldi obligation, that is, the duty of national courts to take European soft law into account when deciding cases, in view of the evidence from the longitudinal study of the Grimaldi jurisprudence, it is suggested that although the doctrine has not changed, the world around it has. While the ECJ has not reversed the precedent set by Grimaldi, nearly three decadades of EU soft law making have eroded the foundations of the doctrine to the extent that the obligation has become heavily nuanced. First, to the extent that the soft law measure is issued by an EU institution and its development is foreseen in primary or secondary law, Member State courts can depart from the interpretation offerd in the measure only if they can provide detailed and substantively valid reasons why it should not apply. Secondly, if the soft law instrument is free-standing, that I derived from primary or secondary law, or where non-binding guidance is given by actors other than the institutions, the Member State court has more leeway to decide whether or not to take non-binding guidance into account. The third noteworthy feature that emerges from the analysed jurisprudence is that Member State courts have become more proactive in challenging EU soft law, and, insofar as it is an act of the EU institution, the Court is cautiously accepting validity challenges posed by Member State courts in the preliminary reference procedure. This suggests that if a new or revised Grimaldi is to be found, it should be through judicial dialogue.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"37 1","pages":"470-495"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78718462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
EnglishEstablishing open and undistorted competition within the internal market is a primary goal of the EU legal framework. Price controls, by contrast, are among the clearest derogations from this overarching objective. Yet much price regulation continues to occur within the internal market, the legal treatment of which is recognized to raise exceptional issues in the context of both negative integration. This article explores the approaches within the EU legal framework to price regulation, broadly construed. Following a theoretical inquiry of the institutional and ideological challenges posed, a range of regulatory circumstances is considered: from competition enforcement, to the free movement rules, to examples of direct regulation through EU law. A tentative explanation for the distinctive treatment of price regulation is then advanced, premised upon the axiomatic role of the price formative mechanism in motivating the entrepeneurial impulses which underpin the internal market. The aim is to contribute to a more nuanced understanding of the challenges facing pursuit of'open undisorted competition' within a modern social market economy Englishcompetition law, price regulation, European Union law, internal market
{"title":"Regulating prices in the European Union","authors":"N. Dunne","doi":"10.1093/YEL/YEY002","DOIUrl":"https://doi.org/10.1093/YEL/YEY002","url":null,"abstract":"EnglishEstablishing open and undistorted competition within the internal market is a primary goal of the EU legal framework. Price controls, by contrast, are among the clearest derogations from this overarching objective. Yet much price regulation continues to occur within the internal market, the legal treatment of which is recognized to raise exceptional issues in the context of both negative integration. This article explores the approaches within the EU legal framework to price regulation, broadly construed. Following a theoretical inquiry of the institutional and ideological challenges posed, a range of regulatory circumstances is considered: from competition enforcement, to the free movement rules, to examples of direct regulation through EU law. A tentative explanation for the distinctive treatment of price regulation is then advanced, premised upon the axiomatic role of the price formative mechanism in motivating the entrepeneurial impulses which underpin the internal market. The aim is to contribute to a more nuanced understanding of the challenges facing pursuit of'open undisorted competition' within a modern social market economy Englishcompetition law, price regulation, European Union law, internal market","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"28 1","pages":"344-394"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83924570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Public opinion in various EU Member States increasingly perceives energy prices as unreasonable. Primarily owing to distributional concerns, state interference with the liberalized retail energy market is ever-present across many EU Member States, despite its implications for the development of competitive (national and EU) energy markets. Rather than solely engaging with the conditions of state intervention as such, this article takes a step back and argues that an appreciation of what constitutes a reasonable price for energy supply is a necessary prerequisite in determining the relevance, scope, and conditions of state intervention in retail energy prices. In the absence of a definition of the concept in secondary legislation, it offers a novel conceptual framework centred on the contextual interpretation of ‘a reasonable price for energy supply’. This article offers two understandings of reasonableness: one underpinned by the principle of market competition and the other understood as affordability. It elaborates on the different set of conditions and criteria against which they are judged and it explains how these have informed various instruments enshrined in the energy liberalization directives for achieving reasonable prices for end-consumers. These range from consumer empowerment measures to more direct consumer protection measures informed by affordability concerns. After providing a taxonomy of the latter instruments, it examines their respective advantages and disadvantages by focusing on how these are perceived by the EU framework. Its broader aim is to contribute to a more nuanced understanding of what is meant by a ‘reasonable retail energy price’ within the context of national and EU competitive retail energy markets and explore how the resulting tension between the two understandings of reasonableness is accommodated in the broader EU constitutional and institutional context.
{"title":"The Quest for Reasonable Retail Energy Prices in Europe: Positive and Normative Dimensions","authors":"Despoina Mantzari","doi":"10.1093/YEL/YEX016","DOIUrl":"https://doi.org/10.1093/YEL/YEX016","url":null,"abstract":"Public opinion in various EU Member States increasingly perceives energy prices as unreasonable. Primarily owing to distributional concerns, state interference with the liberalized retail energy market is ever-present across many EU Member States, despite its implications for the development of competitive (national and EU) energy markets. Rather than solely engaging with the conditions of state intervention as such, this article takes a step back and argues that an appreciation of what constitutes a reasonable price for energy supply is a necessary prerequisite in determining the relevance, scope, and conditions of state intervention in retail energy prices. In the absence of a definition of the concept in secondary legislation, it offers a novel conceptual framework centred on the contextual interpretation of ‘a reasonable price for energy supply’. This article offers two understandings of reasonableness: one underpinned by the principle of market competition and the other understood as affordability. It elaborates on the different set of conditions and criteria against which they are judged and it explains how these have informed various instruments enshrined in the energy liberalization directives for achieving reasonable prices for end-consumers. These range from consumer empowerment measures to more direct consumer protection measures informed by affordability concerns. After providing a taxonomy of the latter instruments, it examines their respective advantages and disadvantages by focusing on how these are perceived by the EU framework. Its broader aim is to contribute to a more nuanced understanding of what is meant by a ‘reasonable retail energy price’ within the context of national and EU competitive retail energy markets and explore how the resulting tension between the two understandings of reasonableness is accommodated in the broader EU constitutional and institutional context.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"7 1","pages":"599-627"},"PeriodicalIF":0.4,"publicationDate":"2017-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78886726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyses the recent decision of the UK Supreme Court determining the UK’s ‘constitutional requirements’ for triggering Article 50 TEU. It demonstrates that the underlying disagreement in the case concerned the proper conceptualisation of EU law as it operates in the UK legal order. The Government and its academic supporters denied that EU law rights could be equated to domestic law rights; this allowed them to argue that their loss through withdrawal from the EU would not breach the long-standing prohibition on Executive prerogative action removing domestic law rights or altering domestic law. The article argues that the Supreme Court was right to reject this argument. In doing so, the Court emphasised that EU law had not only deeply infused the domestic legal order but had significantly changed it. Hence use of Executive powers to withdraw from the EU would amount to the Executive changing the constitution. The article considers how this ‘constitutional change’ argument – already strongly criticised – should be understood, and seeks to shed light on it via the notion that constitutional amendment is usually recognised as an exercise of especial normative significance. While acknowledging that the UK’s constitution lacks the formal process for such change required by other European states, it argues that the invocation of this principle in Miller may be related to recent developments in constitutional doctrine recognising the special status of fundamental constitutional rights and principles. In doing so, it argues for a significant change to our understanding of ‘constitutional statutes’.
{"title":"EU Law as an Agent of National Constitutional Change: Miller v Secretary of State for Exiting the European Union","authors":"G. Phillipson","doi":"10.1093/YEL/YEX012","DOIUrl":"https://doi.org/10.1093/YEL/YEX012","url":null,"abstract":"This article analyses the recent decision of the UK Supreme Court determining the UK’s ‘constitutional requirements’ for triggering Article 50 TEU. It demonstrates that the underlying disagreement in the case concerned the proper conceptualisation of EU law as it operates in the UK legal order. The Government and its academic supporters denied that EU law rights could be equated to domestic law rights; this allowed them to argue that their loss through withdrawal from the EU would not breach the long-standing prohibition on Executive prerogative action removing domestic law rights or altering domestic law. The article argues that the Supreme Court was right to reject this argument. In doing so, the Court emphasised that EU law had not only deeply infused the domestic legal order but had significantly changed it. Hence use of Executive powers to withdraw from the EU would amount to the Executive changing the constitution. The article considers how this ‘constitutional change’ argument – already strongly criticised – should be understood, and seeks to shed light on it via the notion that constitutional amendment is usually recognised as an exercise of especial normative significance. While acknowledging that the UK’s constitution lacks the formal process for such change required by other European states, it argues that the invocation of this principle in Miller may be related to recent developments in constitutional doctrine recognising the special status of fundamental constitutional rights and principles. In doing so, it argues for a significant change to our understanding of ‘constitutional statutes’.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"18 1","pages":"46-93"},"PeriodicalIF":0.4,"publicationDate":"2017-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84822608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The 'four freedoms' in EU law are locked together by Article 26 TFEU, which declares that the internal market ‘shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. But those freedoms are divisible. More than that: they are divided. In truth the EU has several internal markets. Its market for goods is different from its market for services and different again from its market for people. I have written elsewhere of the ambiguous character of the internal market (Weatherill, The Internal Market as a Legal Concept (OUP, 2016): this paper is more concerned to focus on the points of heterogeneity that attend the law of the internal market. It shows (in Section III) that the Court of Justice has refused to adopt an overtly common approach to the determination of when a measure that applies equally in law and in fact is properly placed beyond the reach of the free movement provisions – the Keck conundrum – and it has adopted an inflated reading of the incursion of EU law into practices that do not arise in the context of an obstruction of cross-border mobility in the particular case of dependent children of third country nationals. Moreover the personal scope of the free movement provisions is not aligned: those concerning goods do not bind private parties, those concerning persons and services do. Section IV explores the pattern of legislative harmonisation, and it demonstrates that across the many sectors that have been the subject of harmonisation the precise patterns according to which primary and secondary law combine reveal myriad different models. Moreover the acquis is marked by a great many instances of sanctioned variation of many different types – geographical, material, personal, temporal and so on. Section V looks to legislative activity beyond the programme of harmonisation. It reveals a number of legal bases which are explicitly tied to the internal market, most of which are simply sector-specific iterations of the basic assumptions associated with market-making harmonisation, but it finds other legal bases such as social policy and cohesion which are not declared to operate in the service of the internal market yet which plainly have some (contested) connection to it. This shows that the EU’s internal market, as a bargain or a package deal, is surprisingly lacking in precise legal definition or boundary. Section VI examines provisions which place off limits activities that are apt to harm the internal market but finds that this may have little relevance in practice: the treatment of enhanced co-operation by the legislative institutions and by the Court is emblematic. The internal market also has a presence beyond the EU’s external frontiers. The EEA, examined in Section VII and sometimes – though without legal foundation – termed the ‘single market’, takes on most, though not all, of the baggage of the internal m
欧盟法律中的“四大自由”被TFEU第26条捆绑在一起，该条款宣布，内部市场“应包括一个没有内部边界的区域，在这个区域内，货物、人员、服务和资本的自由流动，按照条约的规定得到保证”。但这些自由是可以分割的。不仅如此，他们还存在分歧。事实上，欧盟有几个内部市场。它的商品市场不同于服务市场，也不同于人的市场。我在其他地方写过内部市场的模棱两可特征(Weatherill, the internal market as a Legal Concept (OUP, 2016)):本文更关注的是内部市场法律的异质性。它显示(第三节)法院拒绝采用公开的常用方法的决心当一个措施,同样适用于正确地放置在法律和事实上的自由流动规定——凯克难题——它采用了一个膨胀的入侵的欧盟法律解读实践的上下文中不要出现的障碍物的跨境流动的具体情况依赖于第三国公民的孩子。此外，自由流动条款的个人范围并不一致:与货物有关的条款不约束私人当事方，与人员和服务有关的条款约束私人当事方。第四节探讨了立法协调的模式，它表明，在许多部门中，协调的主题是根据初级法和次级法结合的精确模式揭示了无数不同的模式。此外，事实的特点是许多不同类型的批准变异实例- -地理的、物质的、个人的、时间的等等。第五节着眼于协调方案之外的立法活动。它揭示了一些明确与内部市场相关的法律基础，其中大多数只是与做市协调相关的基本假设的特定部门迭代，但它发现了其他法律基础，如社会政策和凝聚力，这些法律基础没有被宣布为内部市场服务，但显然与内部市场有一些(有争议的)联系。这表明欧盟的内部市场，作为一个交易或一揽子交易，令人惊讶地缺乏精确的法律定义或边界。第六节审查了禁止可能损害内部市场的活动的规定，但发现这在实践中可能没有什么相关性:立法机构和法院对加强合作的处理是象征性的。内部市场的存在也超越了欧盟的外部边界。欧洲经济区，在第七节中被审查，有时-尽管没有法律依据-被称为“单一市场”，承担了大部分，尽管不是全部，内部市场的包袱，欧洲自由贸易联盟的政治和司法机构通常寻求，但不是不可避免地，使欧洲经济区法律与欧盟法律相一致。第八节考虑欧盟的联系国协议。它们没有欧洲经济区那么雄心勃勃，而且它们的范围通常不包括人员自由流动等事项，但即使它们的条款复制了欧盟法律秩序中熟悉的那些条款，它们也并不总是被解释为意味着同样的事情。内部市场的规则被输出，但被稀释了。因此，可能存在的内部市场范围很广，从支持不受限制的跨管辖区竞争的选择而导致的彻底分散的市场，到另一个极端，从立法能力被完全剥夺的意义上说，一个彻底集中的市场，有利于中央当局。从一个极端到另一个极端，存在着巨大的选择范围，全球各地发现的许多内部市场远非同质化。但即使在欧盟内部，人们也可以发现异质性——人们可以发现几个内部市场。这篇论文不是关于英国退欧的，而是关于内部市场的定义。但英国脱欧使人们关注到这一令人不安的不精确定义，而关于硬脱欧和软脱欧版本的一些混淆源于辩论缺乏一个安全的锚，而混淆(尤其是在英国)也源于未能把握欧盟态度的关键是内部市场很可能表现出一定程度的法律异质性，这种异质性有助于区分四大自由。但在政治上，人们坚决反对英国退欧，因为这将导致同质性退化，这是一个原则问题。
{"title":"The Several Internal Markets","authors":"S. Weatherill","doi":"10.1093/YEL/YEX007","DOIUrl":"https://doi.org/10.1093/YEL/YEX007","url":null,"abstract":"The 'four freedoms' in EU law are locked together by Article 26 TFEU, which declares that the internal market ‘shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. But those freedoms are divisible. More than that: they are divided. In truth the EU has several internal markets. Its market for goods is different from its market for services and different again from its market for people. I have written elsewhere of the ambiguous character of the internal market (Weatherill, The Internal Market as a Legal Concept (OUP, 2016): this paper is more concerned to focus on the points of heterogeneity that attend the law of the internal market. \u0000It shows (in Section III) that the Court of Justice has refused to adopt an overtly common approach to the determination of when a measure that applies equally in law and in fact is properly placed beyond the reach of the free movement provisions – the Keck conundrum – and it has adopted an inflated reading of the incursion of EU law into practices that do not arise in the context of an obstruction of cross-border mobility in the particular case of dependent children of third country nationals. Moreover the personal scope of the free movement provisions is not aligned: those concerning goods do not bind private parties, those concerning persons and services do. Section IV explores the pattern of legislative harmonisation, and it demonstrates that across the many sectors that have been the subject of harmonisation the precise patterns according to which primary and secondary law combine reveal myriad different models. Moreover the acquis is marked by a great many instances of sanctioned variation of many different types – geographical, material, personal, temporal and so on. Section V looks to legislative activity beyond the programme of harmonisation. It reveals a number of legal bases which are explicitly tied to the internal market, most of which are simply sector-specific iterations of the basic assumptions associated with market-making harmonisation, but it finds other legal bases such as social policy and cohesion which are not declared to operate in the service of the internal market yet which plainly have some (contested) connection to it. This shows that the EU’s internal market, as a bargain or a package deal, is surprisingly lacking in precise legal definition or boundary. Section VI examines provisions which place off limits activities that are apt to harm the internal market but finds that this may have little relevance in practice: the treatment of enhanced co-operation by the legislative institutions and by the Court is emblematic. The internal market also has a presence beyond the EU’s external frontiers. The EEA, examined in Section VII and sometimes – though without legal foundation – termed the ‘single market’, takes on most, though not all, of the baggage of the internal m","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"14 1","pages":"125-178"},"PeriodicalIF":0.4,"publicationDate":"2017-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91108897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article revisits the antitrust treatment of unilateral conduct in Standard Essential Patent (SEP) disputes in the EU, with particular focus on the landmark CJEU judgment in Huawei v ZTE and the way it has affected subsequent developments before national courts. It explains that while the court in Huawei significantly improved legal certainty both for SEP holders and their potential licensees, it also left open a number of crucial questions affecting everyday licensing practice. First, it is not entirely clear whether the liability of an SEP holder presupposes leveraging by a vertically integrated firm or can also arise in purely vertical or horizontal relationships. Secondly, the safe harbour procedure formu- lated in the judgment begs important questions concerning burden of proof and portfolio licensing, which have given rise to divergent interpretations. It follows that the space remains wide open for competing national and even regional approaches to the rights and obligations of SEP holders, calling for further European harmonization—be it judicially, legislatively, or administratively through the European Commission. In support of the latter measures, the article illustrates the limited remit of EU private international law rules in preventing the forum shopping which is likely to unfold as a result of a fragmented landscape for the resolution of SEP disputes, and the limited ability of the Unified Patent Court to ameliorate the associated fragmentation a.nd coordination problems.
{"title":"The Legal Framework for SEP Disputes in the EU Post-Huawei: Whither Harmonization?","authors":"N. Zingales","doi":"10.1093/YEL/YEX018","DOIUrl":"https://doi.org/10.1093/YEL/YEX018","url":null,"abstract":"This article revisits the antitrust treatment of unilateral conduct in Standard Essential Patent (SEP) disputes in the EU, with particular focus on the landmark CJEU judgment in Huawei v ZTE and the way it has affected subsequent developments before national courts. It explains that while the court in Huawei significantly improved legal certainty both for SEP holders and their potential licensees, it also left open a number of crucial questions affecting everyday licensing practice. First, it is not entirely clear whether the liability of an SEP holder presupposes leveraging by a vertically integrated firm or can also arise in purely vertical or horizontal relationships. Secondly, the safe harbour procedure formu- lated in the judgment begs important questions concerning burden of proof and portfolio licensing, which have given rise to divergent interpretations. It follows that the space remains wide open for competing national and even regional approaches to the rights and obligations of SEP holders, calling for further European harmonization—be it judicially, legislatively, or administratively through the European Commission. In support of the latter measures, the article illustrates the limited remit of EU private international law rules in preventing the forum shopping which is likely to unfold as a result of a fragmented landscape for the resolution of SEP disputes, and the limited ability of the Unified Patent Court to ameliorate the associated fragmentation a.nd coordination problems.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"95 1","pages":"628-682"},"PeriodicalIF":0.4,"publicationDate":"2017-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74670160","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Starting from the example offered by the 2015 SWA preliminary ruling, this paper will examine the current approaches to price control rules and then critique them against the wider background of the principles governing, respectively, Union action in the field of internal market policy and member states' intervention directed at safeguarding high levels of public health. It will be argued that given the renewed commitment to respecting the principle of conferral, resulting from the Treaty of Lisbon, it may be time for a reassessment of the scope of Article 34 TFEU so that the member states can continue exercising the legitimate regulatory powers that they enjoy in this area, albeit within limits dictated by the demands of a well-functioning internal market. Additional Information:
从2015年SWA初步裁决提供的例子开始，本文将审查当前价格控制规则的方法，然后在更广泛的原则背景下对它们进行批评，分别是欧盟在内部市场政策领域的行动和成员国旨在保障高水平公共卫生的干预。有人认为，鉴于《里斯本条约》(Treaty of Lisbon)重新承诺尊重授予原则，或许是时候重新评估第34条TFEU的范围了，这样成员国就可以继续行使它们在这一领域享有的合法监管权力，尽管这是在一个运作良好的内部市场的要求所限定的范围内。附加信息:
{"title":"Making markets work in the public interest: Combating hazardous alcohol consumption through minimum pricing rules in Scotland","authors":"A. Andreangeli","doi":"10.1093/yel/yex004","DOIUrl":"https://doi.org/10.1093/yel/yex004","url":null,"abstract":"Starting from the example offered by the 2015 SWA preliminary ruling, this paper will examine the current approaches to price control rules and then critique them against the wider background of the principles governing, respectively, Union action in the field of internal market policy and member states' intervention directed at safeguarding high levels of public health. It will be argued that given the renewed commitment to respecting the principle of conferral, resulting from the Treaty of Lisbon, it may be time for a reassessment of the scope of Article 34 TFEU so that the member states can continue exercising the legitimate regulatory powers that they enjoy in this area, albeit within limits dictated by the demands of a well-functioning internal market. Additional Information:","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"71 1","pages":"1-31"},"PeriodicalIF":0.4,"publicationDate":"2017-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83962271","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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