Commercial Law of the European Union (eBook)

Foreword 6
Preface 15
Acknowledgements 17
Contents 18
Abbreviations 31
Table of Cases 33
Table of EU Founding Treaties 75
Table of International Agreements 82
Table of Legislation 88
1 The Political Institutions of the European Union 111
[1.05] Introduction 111
[1.10] Outline of This Chapter 111
[1.15] Basic Policies of the European Union 112
[1.20] Development of the European Union 114
[1.25] Single European Act 116
[1.30] Maastricht Treaty 116
[1.35] Treaty of Amsterdam 117
[1.40] Charter of Fundamental Rights 117
[1.45] Treaty of Nice 118
[1.50] European Constitution 118
[1.55] Treaty of Lisbon 119
[1.60] Relations Between the EU and the United States 120
[1.65] Relations Between the EU and Australia 122
[1.70] Relations Between the EU and Canada 124
[1.75] Relations Between the EU and New Zealand 125
[1.80] Relations Between the EU and South Africa 126
[1.81] Relations Between the EU and Other Common Law Jurisdictions 126
[1.85] Political Institutions of the European Union 128
[1.90] Commission 128
[1.95] Council 130
[1.100] Parliament 130
[1.105] European Council 132
[1.110] EU Courts 132
[1.115] European Central Bank 133
[1.120] EU Committees 134
[1.125] Other Officials 135
[1.130] Distribution of Powers Between the EU and the Member States 136
[1.135] Subsidiarity 137
[1.140] Proportionality 138
[1.145] Cooperation Between and Secession of MemberStates 140
[1.150] EU Legislation 141
[1.155] Public Availability of EU Legal Acts 143
[1.160] Conclusion 144
Further Reading 144
2 Free Movement of Goods 149
[2.05] Introduction 149
[2.10] Customs Union 149
[2.15] Common Customs Tariff 151
[2.20] Rules of Origin 152
[2.25] Added Value 153
[2.30] Elimination of Quantitative Restrictions Between Member States 154
[2.35] Measures with an Equivalent Effect 155
[2.40] Import Authorisation 156
[2.45] Production Quotas 156
[2.50] Transport Restrictions 156
[2.55] Maximum Prices 156
[2.60] Packaging, Labeling and Product Description Rules 157
[2.65] Indications of Origin 158
[2.70] Advertising Restrictions 158
[2.75] Prohibition of Prize Competitions 159
[2.80] Censorship Classification 159
[2.85] Sunday Closing Laws 159
[2.90] Creation of Individual Rights 160
[2.95] Arts 120 and 121 TFEU 160
[2.100] Treaty Exceptions to Art 34 TFEU 160
[2.105] Rule of Reason 165
[2.110] Permissible Grounds for Limitation of Free Movement of Goods 167
[2.115] Restriction of Selling Arrangements 169
[2.120] Necessity Principle 171
[2.125] Proportionality 173
[2.130] Private Action Threatening Interstate Trade 175
[2.135] Harmonisation 176
[2.140] Technical Standards 177
[2.145] Mutual Acceptance of Goods 178
[2.150] European Economic Area (EEA) Agreement 179
[2.155] Conclusion 180
Further Reading 181
3 Free Movement of Persons and Services 183
[3.05] Introduction 183
[3.10] Freedom of Movement for Workers 183
[3.15] Application of Art 45 TFEU 184
[3.20] Concept of ``Worker'' in Art 45 TFEU 184
[3.25] ``Worker'' Is Defined in EU Law Not National Law 185
[3.30] Workers with Low Incomes 186
[3.35] Right of Residence 186
[3.40] Discrimination Based on Nationality of Worker 187
[3.45] Obstacles to Freedom of Movement 188
[3.50] Exceptions to Free Movement of Workers 189
[3.55] Public Policy 189
[3.60] Public Service Employment 191
[3.65] Secondary Legislation Regarding Free Movement of Workers 193
[3.70] Freedom of Establishment 195
[3.75] Establishment by Professionals 196
[3.80] Establishment by Companies 198
[3.85] Establishment of Subsidiaries 198
[3.90] Removal of Discrimination 200
[3.95] When the Protection Applies 201
[3.100] Limitations upon Freedom of Establishment 202
[3.105] Exercise of Official Authority 202
[3.110] Public Policy Exception 202
[3.115] Consumer Protection 203
[3.120] Prevention of Crime 203
[3.125] Prevention of Tax Avoidance 204
[3.130] Collective Action 205
[3.135] Abuse of Freedom of Establishment 206
[3.140] Establishment of Service Providers 206
[3.145] EU Company Law 207
[3.150] Freedom to Provide Services 209
[3.155] Services Defined 210
[3.160] Broad Interpretation of ``Services'' 210
[3.165] Scope of Protection 211
[3.170] Discrimination Based on Nationality of ServiceProvider 212
[3.175] Obstacles to Provision of Services 213
[3.180] Limitations to Freedom to Provide Services 214
[3.185] Consumer Protection 215
[3.190] Protection of Fundamental Rights 216
[3.195] EU Secondary Legislation Regarding Provisionof Services 216
[3.200] Services in the Internal Market 216
[3.205] Professional Services 217
[3.210] Transport Services 218
[3.215] Rail Transport 219
[3.220] Air Transport 219
[3.225] Inland Waterways and Maritime Transport 220
[3.230] Road Transport 221
[3.235] Electronic Commerce and Communications 221
[3.240] Postal Services 223
[3.245] Insurance and Investment Services 223
[3.250] Payment Services 224
[3.255] Cross-Border Mediation 224
[3.256] International Commercial Arbitration 225
[3.260] Provision of Services by Non-EU Citizens 226
[3.265] Freedom of Movement and Residencefor EU Citizens Within the Union 226
[3.270] Secondary Legislation 227
[3.275] Right of Entry 227
[3.280] Right of Residence 228
[3.285] Restrictions upon Free Movement of EU Citizens 228
[3.290] Schengen Agreement 230
[3.295] Non-EU Citizens 232
[3.300] Non-discrimination on the Ground of Nationality 234
[3.305] Conclusion 235
Further Reading 237
4 Free Movement of Capital 241
[4.05] Introduction 241
[4.10] Movement of Capital Defined 242
[4.15] Restrictions upon the Movement of Capital 244
[4.20] Justifications for Restrictive Measures 246
[4.25] Overriding Requirements 247
[4.30] Proportionality 250
[4.35] Protective Measures 251
[4.40] Money Laundering 251
[4.45] Banking 252
[4.50] Securities 254
[4.55] Insurance 256
[4.60] Conclusion 256
Further Reading 257
5 Commercial Law and Policy 258
[5.05] Introduction 258
[5.06] Common Commercial Policy 258
[5.10] Broad Interpretation of Art 207 259
[5.15] Treaty-Making by the European Union 260
[5.20] Scope of the EU's Treaty-Making Power 261
[5.25] Express or Implied Treaty-Making Powers? 262
[5.30] Implied Powers Recognised 263
[5.31] Common Rules on Imports and Exports 263
[5.35] Anti-dumping and Subsidies 266
[5.40] WTO Obligations 266
[5.45] Anti-dumping Legislation 268
[5.50] Dumping 268
[5.55] Normal Value 269
[5.60] Constructing the Normal Value 269
[5.65] Constructed Value Includes Sales Costs 270
[5.70] Constructed Value Includes Profit 271
[5.75] Constructed Value Where No Sale in the Ordinary Course of Trade 271
[5.80] Export Price 272
[5.85] Comparison of the Export Price and Normal Value 273
[5.90] Dumping Margin 273
[5.95] Subsidies Legislation 274
[5.100] Subsidy 274
[5.105] Countervailable Subsidies 275
[5.110] Amount of the Subsidy 276
[5.115] Material Injury 276
[5.120] Injury Calculated as a Whole 276
[5.125] Each Determination of Injury Is Independent 277
[5.130] Finding of Injury Gives Rise to a Discretion 278
[5.135] Threat of Injury 279
[5.140] Community Industry 279
[5.145] Community Interest 280
[5.150] Investigation of Complaints 281
[5.155] Termination of the Investigation and the Proceeding 282
[5.160] Undertakings 283
[5.165] Anti-dumping and Countervailing Duties 284
[5.170] Provisional Duty 285
[5.175] Definitive Duty 285
[5.180] Duty Applies Prospectively 286
[5.185] Duty Applied Generally 286
[5.190] Refund of Duty 286
[5.195] Review by the Council 287
[5.200] Judicial Review of Findings 287
[5.205] Conclusion 289
Further Reading 290
6 Competition Law 291
[6.05] Introduction 291
[6.10] Direct Effect of the Competition Rules 292
[6.15] Art 101 TFEU 292
[6.20] Voidness of Prohibited Agreements 293
[6.25] Concept of an ``Undertaking'' 293
[6.30] Single Economic Unit 295
[6.35] Associations of Undertakings 295
[6.40] Undertakings Situated Outside the EU 296
[6.45] Concept of ``Agreement'' 297
[6.50] Unilateral Acts 298
[6.55] Types of Prohibited Agreements 299
[6.60] Exclusive Purchasing Agreements 300
[6.65] Object of the Agreement 300
[6.70] Prevention, Restriction or Distortion 301
[6.75] Effect upon Trade Between Member States 301
[6.80] De Minimis Effect 303
[6.85] Justification for Limitations 304
[6.90] Declaration of Inapplicability 305
[6.95] Block Exemptions 305
[6.100] Concerted Practices 306
[6.105] Abuse of a Dominant Position 307
[6.110] Dominant Position 308
[6.115] Concept of Abuse 308
[6.120] Special Responsibility of Dominant Undertakings 310
[6.125] Substantial Part of the Internal Market 311
[6.130] Relevant Market 311
[6.135] Exercise of Industrial Property Rights 312
[6.140] Effect upon Trade 313
[6.145] No Exemptions for Abuses 314
[6.150] Merger Control Under the TFEU 314
[6.155] Merger Control Under the EU Regulation 315
[6.160] State Aid 316
[6.165] Application of the Competition Rules 318
[6.170] Agriculture 318
[6.175] Transport 319
[6.180] Undertakings with Exclusive Rights 320
[6.185] Services of General Economic Interest 320
[6.190] Enforcement of the Competition Rules 321
[6.195] Regulation 1/2003 321
[6.200] Investigation by the Commission 322
[6.205] Imposition of Fines 322
[6.210] Limitation Periods 323
[6.215] Judicial Review of Commission Assessments 324
[6.220] Researching Commission Documents 324
[6.225] Enforcement by National Competition Authorities 325
[6.230] Interaction of EU and National Competition Law 325
[6.235] Cooperation with Non-member States 326
[6.240] Conclusion 328
Further Reading 329
7 Removal of Taxation Barriers to Trade 337
[7.05] Introduction 337
[7.10] Customs Duties 337
[7.15] Internal Taxation 338
[7.20] Customs Duty or an Internal Tax? 339
[7.25] Indirect Taxation 341
[7.30] Similar Domestic Products 342
[7.35] Harmonization of Indirect Taxation 344
[7.40] Value Added Tax (VAT) 345
[7.45] Capital Taxation 346
[7.50] Excise Duties 347
[7.55] Harmonization of Direct Taxes 348
[7.60] Mergers Directive 348
[7.65] Parent/Subsidiary Directive 350
[7.70] Arbitration Convention 351
[7.75] Interest and Royalties Directive 352
[7.80] Taxation of Individuals 352
[7.85] Conclusion 353
Further Reading 354
8 Public Procurement 355
[8.05] Introduction 355
[8.10] Public Works, Supplies and Services Directive 356
[8.15] Exclusions from the Directive 356
[8.20] Contracting Authorities Regulated by the Directive 356
[8.25] Threshold Amounts 356
[8.30] Definitions of Public Contracts 357
[8.35] Requirements Applicable to Annex II A Services 357
[8.40] Non-discrimination Obligations of Contracting Authorities 357
[8.45] Requirements as to Technical Specifications 358
[8.50] Procedures for the Award of Public Contracts 358
[8.55] Publicity of Contracting Opportunities 359
[8.60] Award of Public Contracts 359
[8.65] Requirements Applicable to Annex II B Services 359
[8.70] Qualification and Disqualification of Bidders 360
[8.75] Excluded Sectors 360
[8.80] Enforcement of the Procurement Rules 361
[8.85] General Provisions of the TFEU 362
[8.90] Quantitative Restrictions 362
[8.95] Competition Law Rules 363
[8.100] WTO Agreement on Public Procurement 364
[8.105] Conclusion 364
Further Reading 365
9 Industrial and Commercial Property Rights 367
[9.05] Introduction 367
[9.10] Compatibility of National Law with EU Law 367
[9.15] Industrial and Commercial Property 368
[9.20] Protection of Packaging 369
[9.25] Art 36 TFEU Derogates from Free Movementof Goods 370
[9.30] Exhaustion of Rights: Copyright 370
[9.35] Exhaustion of Rights: Patents 371
[9.40] Exhaustion of Patent Rights: Compulsory Licences 372
[9.45] Exhaustion of Rights: Trade Marks 373
[9.50] Exhaustion of Other Rights 375
[9.55] Prevention of Deception of Consumers 375
[9.60] Relationship with Competition Law 376
[9.65] Relationship Between Arts 36 and 101 TFEU 376
[9.70] Exemptions 378
[9.75] Systems of Property Ownership 379
[9.80] Harmonisation of Copyright 379
[9.85] Copyright in the Information Society 380
[9.90] Copyright in Computer Programs 381
[9.95] Copyright in Databases 381
[9.100] International Treaties Relating to Copyright 382
[9.105] Patents 382
[9.110] Trade Marks 384
[9.115] Harmonisation of Trade Marks 385
[9.120] Graphical Representation 385
[9.125] Distinctive Character 386
[9.130] Prohibited Uses of Marks 387
[9.135] Exhaustion of Trade Marks Rights 388
[9.140] Violation of a Licensing Agreement 389
[9.145] Revocation of a Trade Mark 390
[9.150] Community Trade Marks 390
[9.155] International Registration of Trade Marks 391
[9.160] Designs 391
[9.165] Plant Variety Rights 393
[9.170] Semi-conductors 393
[9.175] Geographical Indications 394
[9.180] Enforcement Measures 396
[9.185] Counterfeit Goods 397
[9.190] Conclusion 398
Further Reading 399
10 Social Dimension of the European Union 402
[10.05] Introduction 402
[10.10] Equal Pay for Equal Work 402
[10.15] Equal Pay and the Elimination of SexDiscrimination 403
[10.20] Defrenne (No 2) Litigation 403
[10.25] Equal Work Carried Out in the Same Establishment 404
[10.30] Application of Art 157 TFEU to IndirectDiscrimination 405
[10.35] Further Indirect Discrimination Rulings 407
[10.40] Concept of ``Pay'' 408
[10.45] Equal Pay Under EU Directives 409
[10.50] Job Classification Schemes 410
[10.55] Concept of ``Sex'' Discrimination 410
[10.60] Equal Opportunities Directive 411
[10.65] Genuine and Determining OccupationalRequirements 412
[10.70] Discrimination in the Supply of Goods and Services 412
[10.75] Discrimination Against Pregnant Workers 413
[10.80] Maternity Leave 414
[10.85] Prohibited Forms of Affirmative Action 415
[10.90] Permissible Forms of Affirmative Action 416
[10.95] Affirmative Action Under the Current Directive 417
[10.100] Other Forms of Discrimination 418
[10.105] Racial Discrimination 419
[10.110] Age Discrimination 420
[10.115] Disability Discrimination 421
[10.120] Sexual Orientation Discrimination 421
[10.125] Other Social Provisions: Arts 151 and 153 TFEU 422
[10.130] Charter of Fundamental Rights 422
[10.135] Vocational Training 423
[10.140] Data Protection: Personal Information 423
[10.145] Transfer of Personal Data to Non-member States 425
[10.150] Data Protection: Electronic Communications 426
[10.155] Consumer Protection 428
[10.160] Unfair Commercial Practices 428
[10.165] Sale of Consumer Goods 429
[10.170] Advertising Restrictions 431
[10.175] Unfair Terms 432
[10.180] Unit Pricing 432
[10.185] Product Labelling 432
[10.190] Distance Contracts 433
[10.195] Doorstep Selling 434
[10.200] Consumer Credit 435
[10.205] Timeshare Contracts 436
[10.210] Air and Rail Passengers 436
[10.215] Product Liability 436
[10.220] Product Safety 437
[10.225] Implementation by Member States 438
[10.230] Conclusion 439
Further Reading 440
11 Judicial Review and the European Court of Justice 443
[11.05] Introduction 443
[11.10] Composition of the Court 443
[11.15] Independence of the Judges 444
[11.20] Judgments of the Court 444
[11.25] Advocates-General 445
[11.30] Advice of the Advocates-General 445
[11.35] Role of the Advocate-General 446
[11.40] General Court 447
[11.45] Methods of Interpretation 447
[11.50] Literal Interpretation 448
[11.55] Historical Interpretation 448
[11.60] Contextual Interpretation 449
[11.65] Teleological Interpretation 450
[11.70] All Language Versions Considered 451
[11.75] Jurisdiction of the Court 452
[11.80] Causes of Actions 452
[11.85] Action for Annulment 453
[11.90] Characteristic of a Reviewable Act 455
[11.95] Substance Not Form 455
[11.100] Review Is Not Limited to Regulations, Decisions or Directives 455
[11.105] Reviewability of ``Acts'' of the Institutions and Other Bodies 456
[11.106] Grounds of Review 456
[11.110] Action for Failure to Act 457
[11.115] Action for Failure to Fulfil a Treaty Obligation 458
[11.120] Indirect Actions 459
[11.125] Preliminary Rulings 460
[11.130] Concept of ``Court or Tribunal'' in Art 267 TFEU 463
[11.135] Scope of Art 267 TFEU 465
[11.140] Obligatory References 467
[11.145] Acts of the Institutions 468
[11.150] Judicial Policy-Making and Retroactivity 469
[11.155] Blaizot Case 470
[11.160] Conclusion 471
Further Reading 472
12 The Effect of EU Law upon National Law 473
[12.05] Introduction 473
[12.10] van Gend en Loos Case 473
[12.15] Test for Direct Effect 475
[12.20] When Are Treaty Provisions Directly Effective? 476
[12.25] Vertical and Horizontal Direct Effect 476
[12.30] Direct Applicability Versus Direct Effect 477
[12.35] Direct Effect of Regulations 478
[12.40] Direct Effect of Directives 479
[12.45] Vertical Versus Horizontal Direct Effect of Directives 481
[12.50] Indirect Effect of Directives 482
[12.55] Direct Effect of Decisions 484
[12.60] Compensation for Breaches of EU Law 484
[12.65] Supremacy of EU Law Over National Law 487
[12.70] Supremacy Over National Constitutional Law 488
[12.75] Reassertion of the Supremacy of EU Law 490
[12.80] Duty of the National Authorities 490
[12.85] Factortame Litigation 491
[12.90] Fundamental Rights as General Principlesof EU Law 492
[12.95] Protection of Fundamental Rights Expanded 493
[12.100] Broad Range of Fundamental Rights Protected 495
[12.105] Textual Basis for Fundamental Rights Protection 496
[12.110] Relationship with the European Convention on Human Rights 497
[12.115] Conclusion 499
Further Reading 500
13 The European Union and the World Trading System 503
[13.05] Introduction 503
[13.10] Three-Track Trading System 503
[13.15] Multilateral Approach: GATT 1994 504
[13.20] Dispute Resolution System 504
[13.25] Most-Favoured Nation 505
[13.30] Non-discrimination 505
[13.35] Gradual Reduction of Tariff Barriers 506
[13.40] Elimination of Import Quotas 506
[13.45] Safeguards 506
[13.50] Uniform Administration of Customs 506
[13.55] Protection of Health 507
[13.60] The EU and GATT 507
[13.65] GATT and Preliminary Rulings 509
[13.70] Position of GATT Under EU Law 509
[13.75] Position of the WTO Agreement Under EU Law 510
[13.80] WTO Agreement 511
[13.85] Agricultural Products 511
[13.90] Sanitary Measures 512
[13.95] Technical Barriers 512
[13.100] Preshipment Inspection 513
[13.105] Rules of Origin 513
[13.110] Import Licensing 513
[13.115] Services 514
[13.120] Intellectual Property 514
[13.125] Continuing Negotiations Through the WTO 515
[13.130] Regional Free Trade Agreements 515
[13.135] Bilateral Free Trade Agreements 517
[13.140] International Sale of Goods 519
[13.145] Domestic Implementation 520
[13.150] Application of the CISG 522
[13.155] Formation of the Contract 523
[13.160] Performance of the Contract 523
[13.165] Breach of Contract and Remedies 524
[13.170] Conclusion 525
Further Reading 525
Appendix to A Problem Questions 529
Appendix to B Table of Equivalence: EEC Treaty Version -- Treaty of Amsterdam Version 544
Appendix to C Table of Equivalence: Treaty of Amsterdam Version -- Treaty of Lisbon Version 559
Index 579

"Chapter 1 The Political Institutions of the European Union (p. 1-2)

[1.05] Introduction

The European Union (EU) is an economic trading bloc comprising 27 nations. The Member States are (in order of accession): Belgium, the Netherlands, Luxembourg, France, Germany, Italy, the United Kingdom, Ireland, Denmark, Greece, Spain, Portugal, Austria, Finland, Sweden, Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, Slovak Republic, Bulgaria and Romania. Given its membership, the EU is one of the world’s most important trading entities.

European Union Law is of considerable interest to international trade lawyers and businesspeople in non-member States such as the United States, Australia, Canada, New Zealand and South Africa. First, the EU is a major trading and investment partner. Secondly, the EU is one of the great powers in the world’s economic affairs. Thirdly, the future regional development of other regions of the world will at some stage need a reference point.

The EU is a viable model of regional economic integration. It is a fallacy to assume that lawyers and businesspeople who have not been trained in EU law would be able to deal ef?ciently with the avalanche of complex legal acts adopted by the European Union. While it is practically impossible to keep up with all of the legislation and case law issued by EU legislators and the European Court of Justice, an understanding of the EU legal system as a whole substantially facilitates the work of lawyers and businesspeople involved in trade with the European Union. This book thus gives an account of the most important areas of European Union business law. It has been written from the viewpoint of legal practitioners, businesspeople and law students from non-member States.

[1.10] Outline of This Chapter

This chapter discusses the development of the EU, the trading relationship between the EU and a number of common law nations, the EU’s political institutions and the legal acts which they may adopt. In subsequent chapters, speci?c trade-related topics will be discussed in order to provide a comprehensive overview of the EU’s legal system so far as it is relevant to the development of trading opportunities."