Over the years the ECJ has consistently held that the five freedoms do not apply in "purely internal situations", that is, situations where all the facts are confined within one Member State and where there is no "cross-border element" and therefore no connection with EC law. This has led to what is known as "reverse discrimination". Reverse discrimination arises when nationals/products of a Member State are disadvantaged because they are subject to a national measure, while foreign (EU) nationals/products are protected from that national measure by virtue of EC law. In the Guimont judgment of 2000, the ECJ ruled that it will reply to preliminary questions about purely internal situations because a reply "might be useful" to the national court "if" its national law were to prohibit reverse discrimination. The purpose of this paper is to show that (a) the Guimont principle is (i) misguided and (ii) unnecessary, because it overlaps with the Dzodzi principle; and (b) reverse discrimination is a necessary evil.
{"title":"Purely Internal Situations, Reverse Discrimination, Guimont, Dzodzi and Article 234","authors":"C. Ritter","doi":"10.2139/SSRN.954242","DOIUrl":"https://doi.org/10.2139/SSRN.954242","url":null,"abstract":"Over the years the ECJ has consistently held that the five freedoms do not apply in \"purely internal situations\", that is, situations where all the facts are confined within one Member State and where there is no \"cross-border element\" and therefore no connection with EC law. This has led to what is known as \"reverse discrimination\". Reverse discrimination arises when nationals/products of a Member State are disadvantaged because they are subject to a national measure, while foreign (EU) nationals/products are protected from that national measure by virtue of EC law. In the Guimont judgment of 2000, the ECJ ruled that it will reply to preliminary questions about purely internal situations because a reply \"might be useful\" to the national court \"if\" its national law were to prohibit reverse discrimination. The purpose of this paper is to show that (a) the Guimont principle is (i) misguided and (ii) unnecessary, because it overlaps with the Dzodzi principle; and (b) reverse discrimination is a necessary evil.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":"1 1","pages":"690-710"},"PeriodicalIF":1.0,"publicationDate":"2006-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.954242","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67907915","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"With or without the EU Constitutional Treaty: towards a Common Security and Defence Policy?","authors":"M. Trybus","doi":"10.2139/ssrn.3717499","DOIUrl":"https://doi.org/10.2139/ssrn.3717499","url":null,"abstract":"","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":"1 1","pages":"145-166"},"PeriodicalIF":1.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68628873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-12-30DOI: 10.3935/CYELP.01.2005.03
Z. Kuhn
The process of European enlargement had a peculiar nature. Prior to accession in 2004, EU law was not yet formally binding on EU candidates’ domestic courts, while the obligation of gradual harmonisation with EU law rested upon them. Consequently, the application of EU law in future Member States presented particularly interesting problems and challenges, and required an understanding of the sophisticated concept of EU law’s persuasive force. The only rational choice was to apply Community law, taking into account not only the limited scope of the legislative texts for harmonisation, but also Community law in its full meaning. This included the texts of European directives, which had to be transposed into domestic law, as well as their reasoning and rationale, which would explain why a particular policy was regulated at the European level; ECJ jurisprudence; and, ideally, also the case law of EU Member States. This article argues that this involves a special type of use of comparative law.
{"title":"Application of European law in Central European candidate countries","authors":"Z. Kuhn","doi":"10.3935/CYELP.01.2005.03","DOIUrl":"https://doi.org/10.3935/CYELP.01.2005.03","url":null,"abstract":"The process of European enlargement had a peculiar nature. Prior to accession in 2004, EU law was not yet formally binding on EU candidates’ domestic courts, while the obligation of gradual harmonisation with EU law rested upon them. Consequently, the application of EU law in future Member States presented particularly interesting problems and challenges, and required an understanding of the sophisticated concept of EU law’s persuasive force. The only rational choice was to apply Community law, taking into account not only the limited scope of the legislative texts for harmonisation, but also Community law in its full meaning. This included the texts of European directives, which had to be transposed into domestic law, as well as their reasoning and rationale, which would explain why a particular policy was regulated at the European level; ECJ jurisprudence; and, ideally, also the case law of EU Member States. This article argues that this involves a special type of use of comparative law.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":"1 1","pages":"551-560"},"PeriodicalIF":1.0,"publicationDate":"2005-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70231909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The essay starts from the assumption that the efforts to cure Europe’s democracy deficits will also have to address the social problematique of the Europeanization process. This is a challenge with new dimensions. Europe had started its integrationist path as a mere economic community. In its formative era, the constitutional perspectives of German Ordo-liberalism were attractive. In the ordo-liberal account, the European polity has a twofold structure: At supranational level, it is committed to economic rationality and a system of undistorted competition. Redistributive (social) policies could – and should – be left to the Member States. This edifice was refined in the 1970s and 80s. Monetary Union and the Stability Pact completed it. The German Constitutional Court’s Maastricht judgment endorsed its constitutional validity. However, the new dynamics and the strive for an ever closer Union in the Maastricht Treaty has led to a strengthening of European regulatory policies and a broadening of their scope, which were incompatible with the ordo-liberal legacy. The erosion of the economic constitution has not paved the way to a cure for Europe’s social deficit. Neither the Open Method of Co-ordination nor the commitment to a social market economy in the Constitutional Treaty nor the new social rights provide a conceptually sufficient and politically credible basis for this end.
{"title":"What is Left of the European Economic Constitution? A Melancholic Eulogy","authors":"C. Joerges","doi":"10.2139/SSRN.635402","DOIUrl":"https://doi.org/10.2139/SSRN.635402","url":null,"abstract":"The essay starts from the assumption that the efforts to cure Europe’s democracy deficits will also have to address the social problematique of the Europeanization process. This is a challenge with new dimensions. Europe had started its integrationist path as a mere economic community. In its formative era, the constitutional perspectives of German Ordo-liberalism were attractive. In the ordo-liberal account, the European polity has a twofold structure: At supranational level, it is committed to economic rationality and a system of undistorted competition. Redistributive (social) policies could – and should – be left to the Member States. This edifice was refined in the 1970s and 80s. Monetary Union and the Stability Pact completed it. The German Constitutional Court’s Maastricht judgment endorsed its constitutional validity. However, the new dynamics and the strive for an ever closer Union in the Maastricht Treaty has led to a strengthening of European regulatory policies and a broadening of their scope, which were incompatible with the ordo-liberal legacy. The erosion of the economic constitution has not paved the way to a cure for Europe’s social deficit. Neither the Open Method of Co-ordination nor the commitment to a social market economy in the Constitutional Treaty nor the new social rights provide a conceptually sufficient and politically credible basis for this end.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":"1 1","pages":"461-489"},"PeriodicalIF":1.0,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.635402","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67781540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2002-01-01DOI: 10.1017/cbo9780511493676.007
Philip Allott
{"title":"European governance and the re-branding of democracy","authors":"Philip Allott","doi":"10.1017/cbo9780511493676.007","DOIUrl":"https://doi.org/10.1017/cbo9780511493676.007","url":null,"abstract":"","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":"91 1","pages":"60-71"},"PeriodicalIF":1.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cbo9780511493676.007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57051488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2001-01-01DOI: 10.1007/978-90-6704-449-3_6
J. Wouters
{"title":"Institutional and constitutional challenges for the European Union: some reflections in the light of the Treaty of Nice","authors":"J. Wouters","doi":"10.1007/978-90-6704-449-3_6","DOIUrl":"https://doi.org/10.1007/978-90-6704-449-3_6","url":null,"abstract":"","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":"26 1","pages":"342-356"},"PeriodicalIF":1.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51462048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-01-01DOI: 10.1097/00006199-197007000-00001
Robin C. A. White
{"title":"The new Commission","authors":"Robin C. A. White","doi":"10.1097/00006199-197007000-00001","DOIUrl":"https://doi.org/10.1097/00006199-197007000-00001","url":null,"abstract":"","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":"1 1","pages":"329-330"},"PeriodicalIF":1.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1097/00006199-197007000-00001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61512662","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-01-01DOI: 10.5040/9781472562081.ch-009
G. Mancini, S. O'Leary
{"title":"The new frontiers of sex equality law in the European Union","authors":"G. Mancini, S. O'Leary","doi":"10.5040/9781472562081.ch-009","DOIUrl":"https://doi.org/10.5040/9781472562081.ch-009","url":null,"abstract":"","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":"1 1","pages":"331-353"},"PeriodicalIF":1.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70514770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The emergence of a European immigration policy.","authors":"D O'keeffe","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":"20 1","pages":"20-36"},"PeriodicalIF":1.0,"publicationDate":"1995-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22020220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1992-01-01DOI: 10.4324/9781315183367-14
S. Wheeler
{"title":"Competition in the telecommunications sector","authors":"S. Wheeler","doi":"10.4324/9781315183367-14","DOIUrl":"https://doi.org/10.4324/9781315183367-14","url":null,"abstract":"","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":"17 1","pages":"67-74"},"PeriodicalIF":1.0,"publicationDate":"1992-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70635931","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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