Wyatt and Dashwood's European Union Law

Alan Dashwood, Michael Dougan, Barry J Rodger, Eleanor Spaventa, Derrick Wyatt

• Publisher: Hart Publishing
• Year: 2011
• Print ISBN: 9781849461269
• eBook ISBN: 9781847317667
• Edition: 6
• Topic: Law
• Subtopic: International Law
• Index: Law

First published 30 years ago, Wyatt and Dashwood's European Union Law was a landmark publication, designed and written for students taking degree level courses in EU law. In the intervening years new editions have appeared at regular intervals, firmly establishing the book as a reliable and authoritative text. Besides introducing generations of students to the intricacies of European law it has also been increasingly relied upon by scholars, practitioners and the courts as a valuable source of reference on this complex and ever-expanding body of law. While the book cannot cover every aspect of the subject matter, it nevertheless offers comprehensive coverage of those aspects of EU law most commonly studied at degree level. Part I introduces the history and foundations of the Union's primary law. Part II looks at the Union's institutions, decision-making procedures and competences. It also deals with the Union judiciary, focusing on direct actions before the Union courts and preliminary references from national courts. The constitutional fundamentals of direct effect and supremacy, effective judicial protection before national courts, general principles of Union law and the Charter of Fundamental Rights are dealt with in Part III. Part IV covers the internal market: free movement of goods, Union citizenship, workers, establishment and services, the services directive, mutual recognition of qualifications, corporate establishment and company law harmonisation. Part V deals with competition law: Articles 101 and 102 TFEU, the enforcement of Union competition rules and other related competition law issues. Part VI then includes a brand new chapter concerned with the EU's external relations, together with treatment of the legal effects of international agreements entered into by the EU. As with previous editions the aim is to provide an accurate, critical, pragmatic and original account of the subject, at times also offering unique insiders' insights. The book holds to its reputation as being both broad and profound, the ideal foundation for gaining a deep understanding of EU law. This edition reflects the law post-Lisbon. It has also been re-structured and re-designed, so as to facilitate ease-of-use. Its original authors, Derrick Wyatt and Alan Dashwood, continue to make a significant contribution. Michael Dougan, Eleanor Spaventa and Barry Rodger complete the team of authors working on this invaluable textbook and reference work. The 6th edition has already been cited in the Northern Ireland High Court by The Honourable Mr. Justice Bernard McCloskey [2011] NIQB 61.

Part I

Introduction

1

From the Founding Treaties to the Treaty of Lisbon

The modern European Union is a highly idiosyncratic entity, whose complexity can prove both confusing and offputting. But some of that complexity can be unravelled if one appreciates that it stems from a particular historical experience: understanding how the EU evolved can help clarify and explain much about its current nature and functioning. This chapter provides a brief overview of the development of European integration since the end of the Second World War. Beginning with the establishment, by the six founding Member States, of the three original ‘European Communities’, we will explore two major sets of subsequent developments. The first concerns the accession of new Member States, bringing the total number of participating countries to 27 (though with further enlargements in sight for the future). The second line of developments has been concerned rather with substantive reform of and additions to the original agreements. The main breakthrough was the Treaty on European Union (TEU) of 1992, which first created the modern European Union and regulated its relationship to the pre-existing Communities. The TEU was followed by a prolonged period of further reform, reflection and contestation, culminating in the Treaty of Lisbon (TL) of 2007, which proposed a thorough overhaul of the Union’s primary law. The TL entered into force on 1 December 2009. There is general consensus that it will continue to provide the basic architecture for European integration into the forseeable future.

I – THE SCHUMAN PLAN AND THE ESTABLISHMENT OF THE ECSC

Although there was a certain ideological groundswell in favour of a ‘United Europe’ shortly after the Second World War¹—as evidenced by the call of the 1948 Hague Congress for Western European economic and political union—the first concrete steps towards integration were prompted by the spectre of Soviet expansion. Within days of the signature by France and the United Kingdom of the Dunkirk Treaty, providing for mutual assistance in the event of a renewal of hostilities with Germany, the breakdown of the Moscow Conference over the future of occupied Germany was to set the pattern for future strained relations between the USSR on the one side, and the United States, Great Britain and France on the other. Despite the indispensable US defence commitment affirmed in the North Atlantic Treaty, Western Europe stood divided and vulnerable in the face of a Soviet Union whose wartime military potential had been scarcely diminished by demobilisation, and whose political influence had been enhanced by successful Communist Party coups in Bulgaria, Romania, Poland and Czechoslovakia.² It was in this context that Robert Schuman, the French Foreign Minister, made an historic proposal to a ministerial meeting in London on 9 May 1950.³ His proposal was for nothing less than the fusion of the coal and steel industries of France and Germany, and any other countries wishing to participate, under a supranational High Authority. Not only would such a pooling of production make future conflict between France and Germany impossible, it would provide a sound basis for economic expansion. The implications of the scheme were clearly far-reaching, constituting, as Mr Schuman explained, ‘the first concrete foundation for a European Federation which is indispensable for the preservation of peace’.

The Schuman Plan was enthusiastically endorsed by the Benelux countries, France, Germany and Italy, but the United Kingdom declined to participate, refusing to accept the supranational role of the projected High Authority. The Treaty Establishing the European Coal and Steel Community (ECSC) was signed in Paris on 18 April 1951, and came into force on 20 July of the following year. It was concluded for a period of 50 years from that date and thus expired in July 2002.⁴

The strategy of the Treaty, inspired by the Schuman Declaration, was to set limited and specific economic objectives as steps towards the long-term political objective of European unity. The preamble to the Treaty announced that Europe was to be built ‘through practical achievements which will first of all create real solidarity, and through the establishment of common bases for economic development’. The economic community created pursuant to the Treaty was to constitute ‘the basis for a broader and deeper community among peoples long divided by bloody conflicts’ and the foundations were to be laid ‘for institutions which will give direction to a destiny henceforward shared’.

The central economic mechanism of the ECSC was a common market for coal and steel.⁵ Article 4 of the Treaty thus provided that various measures were to be recognised as incompatible with the common market and should accordingly be prohibited within the Community: for example, import and export duties, or charges having equivalent effect, and quantitative restrictions on the movement of products; measures or practices which discriminated between producers, between purchasers or between consumers, especially in prices and delivery terms or transport rates and conditions; measures or practices which interfered with the purchaser’s free choice of supplier; subsidies or aids granted by states, or special charges imposed by states, in any form whatsoever; and restrictive practices which tended towards the sharing or exploiting of markets.

Article 4 thus envisaged a Community-wide market for coal and steel free from interference by the Member States or by economic operators tending to impede the flow of trade or to distort the play of competition. The Community was empowered to carry out its task under the Treaty ‘with a limited measure of intervention’, inter alia, by placing financial resources at the disposal of undertakings for investment and by bearing part of the cost of readaptation.⁶ Only when circumstances so required was it authorised to exert direct influence upon production or upon the market, for instance, by imposing production quotas.⁷

II – THE EDC AND THE EPC: A FALSE DAWN

Significant as the founding of the ECSC may have been, it contributed little of itself to the increasingly pressing problem of incorporating West Germany into the defence network established by the Brussels and North Atlantic Treaties.

While the United States was enthusiastic for German participation, France was naturally chary of seeing her recently vanquished enemy so soon rearmed. At the instigation of Sir Winston Churchill and Paul Reynaud,⁸ the Consultative Assembly of the Council of Europe⁹ called for the ‘immediate creation of a unified European Army, under the authority of a European Minister of Defence, subject to proper European democratic control and acting in full co-operation with the United States and Canada’.¹⁰

After a French initiative known as the ‘Pleven Plan’, the Treaty Establishing the European Defence Community (EDC) was signed—subject to ratification—by the Benelux countries, France, Germany and Italy.¹¹ Once again the United Kingdom held aloof. If the ECSC had been calculated to bind Germany to France industrially, the EDC was to provide the framework for German rearmament.

The projected Defence Community had two significant characteristics. First, it was to be endowed with a supranational institutional structure not unlike that of the Coal and Steel Community. Secondly, its statute assumed that it would be of a transitional nature, and would give way to some more comprehensive form of federal or confederal European Union.

The EDC Treaty provided for a European Army, composed of units placed at the disposal of the Council of Ministers by the Member States. A Common Budget would be drawn up, and an executive body, the ‘Commissariat’, would lay down common programmes in the field of armaments, provisioning and military infrastructure. The objects of the Community were to be purely defensive, within the context of the North Atlantic Treaty.

The transitional nature of the proposed Community was evidenced by the terms of Article 8(2), which provided that the institutional structure laid down in the Treaty would remain in force until displaced by the establishment of the federal or confederal organisation envisaged by Article 38.

This latter Article required the Assembly of the EDC to make proposals to the governments of the Member States on the establishment of a directly elected Assembly, and the powers it should exercise. Particular regard was to be had to the principle that such a modified parliamentary body should be able to constitute one of the elements in a subsequent federal or confederal structure.

These proposals were to be presented to the governments of the six founding states after the Assembly of the EDC assumed its functions, but within days of the signature of the Treaty, the Consultative Assembly of the Council of Europe resolved that it would be

of great advantage if the basic principles of a European supranational political authority and the nature and limits of its powers were defined within the next few months, without waiting for the entry into force of the Treaty instituting the European Defence Community.¹²

Despite the fact that the Assembly provided for in Article 38 of the EDC Treaty was not yet in existence, and that the Article only referred to the constitution of a future parliamentary body, the foreign ministers of the Member States of the Coal and Steel Community requested the members of the Coal and Steel Community Assembly to co-opt additional members, reorganise the distribution of seats laid down in the Paris Treaty in accordance with that prescribed for the Assembly of the proposed EDC, and draw up a draft Treaty for a European Political Community (EPC). On 10 March 1953, the ‘Ad Hoc Assembly’ presented the requested draft .¹³

The ‘European Community’ proposed by the Ad Hoc Assembly provided for the extensive political and economic integration of its Members. Its aims were as follows:

– to contribute towards the protection of human rights and fundamental freedoms in Member States;

– to co-operate with the other free nations in ensuring the security of Member States against all aggression;

– to ensure the co-ordination of the foreign policy of Member States in questions likely to involve the existence, the security or the prosperity of the Community;

– to promote the development of employment and the improvement of the standard of living in Member States, by means, in particular, of the progressive establishment of a common market.

To ensure the protection of human rights in the proposed Community, provision was made for the application—as part of the Community Statute—of the provisions of section I of the European Convention on Human Rights (ECHR), along with the first Protocol to that Convention, signed in Paris on 20 March 1952.

The institutions of the EPC were to comprise a bicameral legislature, a European Executive Council, a Council of National Ministers, a Court of Justice, and an Economic and Social Council. Financial resources would be derived from a combination of Community taxation and contributions from the Member States.

The hopes of those who saw the future of Western Europe in immediate federation were dashed when the French Parliament voted against ratification of the EDC Treaty. A change of government in France, and an easing of tension between East and West,¹⁴ contributed to the rejection of the Treaty by the combined votes of Gaullists, Communists, socialists and radicals.¹⁵

In the event, Germany’s participation in the defence of Western Europe was achieved by other means. The Paris Agreemen...

Table of contents

• Cover Page
• Title Page
• Copyright
• Contents
• Preface
• Table of Cases
• Table of Legislation
• Part I: Introduction
• Part II: Institutional Fundamentals
• Part III: Constitutional Fundamentals
• Part Iv: The Internal Market
• Part V: Competition Law
• Part Vi: External Relations
• Index